v. Scott

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 21, 2019

2019COA174

No. 19CA0976, People v. Scott — Crimes — Escape; Criminal
Law — Sentencing

In this prosecution appeal, a division of the court of appeals

holds that the General Assembly did not legislatively overrule People

v. Andrews, 871 P.2d 1199 (Colo. 1994), concerning the mandatory

minimum sentence for the crime of escape, by its 1995 amendment

to section 18-8-208, C.R.S. 2019. Therefore, because the division

concludes that Andrews is still binding authority, it affirms the trial

court’s sentence.
COLORADO COURT OF APPEALS 2019COA174

Court of Appeals No. 19CA0976
Mesa County District Court No. 18CR1011
Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Cody Jay Scott,

Defendant-Appellee.

SENTENCE AFFIRMED

Division III
Opinion by JUDGE WEBB
Dunn and Lipinsky, JJ., concur

Announced November 21, 2019

Daniel P. Rubinstein, District Attorney, George Alan Holley II, Senior Deputy
District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 This prosecution appeal requires us to decide whether the

General Assembly has legislatively overruled People v. Andrews, 871

P.2d 1199 (Colo. 1994), concerning the mandatory minimum

sentence for the crime of escape (F3), by its 1995 amendment to

section 18-8-208, C.R.S. 2019. Because we conclude that Andrews

is still binding authority, we affirm the trial court’s sentence, which

it imposed based on Andrews.

I. Background

¶2 Under section 16-12-102(1), C.R.S. 2019, the District Attorney

for the 21st Judicial District appeals the four-year sentence (plus

mandatory parole) imposed on defendant, Cody Jay Scott, following

his guilty plea — without a sentencing concession — to escape, in

violation of section 18-8-208(2). Specifically, the District Attorney

contends the trial court erred as a matter of law in concluding

based on Andrews that the mandatory minimum sentence was four

years, under section 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2019, rather

than eight years under section 18-1.3-401(8)(a)(IV). Scott concedes

preservation.

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II. Standard of Review

¶3 The parties agree that we review interpretation of a sentencing

statute de novo. See, e.g., People v. Wylie, 260 P.3d 57, 60 (Colo.

App. 2010) (“To the extent defendant’s argument requires us to

interpret statutory provisions, we do so de novo.”). That review is

guided by several familiar principles.

 A court’s principal task when construing a statute is to give

effect to the General Assembly’s intent, as determined

primarily from the plain language of the statute. Romero v.

People, 179 P.3d 984, 986 (Colo. 2007).

 The court construes the statute as a whole in an effort to give

consistent, harmonious, and sensible effect to all its parts,

and reads words and phrases in context and according to the

rules of grammar and common usage. People v.

Banuelos-Landa, 109 P.3d 1039, 1041 (Colo. App. 2004).

 If the statutory language is clear and unambiguous, the court

does not engage in further statutory analysis, much less

consider extrinsic information. Romero, 179 P.3d at 986.

 “The plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific

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context in which that language is used, and the broader

context of the statute as a whole.” Robinson v. Shell Oil Co.,

519 U.S. 337, 340 (1997); see also Klinger v. Adams Cty. Sch.

Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006).

 A statutory interpretation leading to an illogical or absurd

result will not be adopted, and courts avoid constructions that

are at odds with the overall legislative scheme. See People v.

Tixier, 207 P.3d 844, 847 (Colo. App. 2008).

III. Law

¶4 The sentencing range for a class 3 felony is four to twelve

years. § 18-1.3-401(1)(a)(V)(A.1). But the presence of one or more

“extraordinary aggravating circumstances” requires an enhanced

minimum sentence of “at least the midpoint in the presumptive

range” — which is eight years for a class 3 felony.

§ 18-1.3-401(8)(a). Relevant here, one such aggravating factor is

that “[t]he defendant was under confinement . . . or in any

correctional institution as a convicted felon, or an escapee . . . at

the time of the commission of a felony.” § 18-1.3-401(8)(a)(IV). And

at least on appeal, Scott does not dispute that he “was under

3
confinement or in any correctional institution” when he walked

away from a halfway house.

¶5 The first Colorado case to address whether a defendant’s

conviction for escape “triggered the operation of this enhanced

sentencing provision” was People v. Russell, 703 P.2d 620, 622

(Colo. App. 1985), abrogated on other grounds by People v. Sanchez,

769 P.2d 1064 (Colo. 1989). Unsurprisingly, the Attorney General

argued that this enhancement provision applied “because

commission of felony escape is a felony committed while under

confinement and continued while an escapee.” Id.

¶6 The division disagreed. It explained that under this

construction, “conviction of the class 3 felony of escape would

always require imposition of a sentence in excess of the

presumptive range specified for such class of felonies.” Id. Instead,

the division held that the enhancement provision “does not apply to

the crime of escape, but rather it applies to other felonies

committed while under confinement or to other felonies committed

after escape from confinement.” Id.

¶7 Almost a decade later, and without any intervening legislation,

our supreme court addressed application of the enhancement

4
provision to escape in Andrews. Again, the Attorney General

argued that, “because the defendant was under confinement as a

convicted felon at the time he committed the felony of attempted

escape, the sentence enhancement provision applies.” 871 P.2d at

1201. The supreme court disagreed.

¶8 Echoing Russell, the court explained that, under the Attorney

General’s construction, the enhancement provision “would apply

automatically to every individual convicted of class 3 felony escape.”

Id. at 1202. And such a construction was unacceptable because it

“would effectively render meaningless the classification of the felony

as class 3, since in each and every case an enhanced sentence

would be imposed upon the defendant.” Id.

¶9 The supreme court went on to hold that “the legislature did

not intend to punish escape and attempted escape through

application of the enhancement provision . . . .” Id. at 1203. In

doing so, it noted “that since it was decided in 1985, this court has

addressed the Russell decision on at least four occasions, and while

limiting its application to crimes of escape we have not altered its

force.” Id.; see also People v. Phillips, 885 P.2d 359, 360 (Colo. App.

1994) (“According to Andrews . . . automatic aggravation of every

5
felony escape conviction would render meaningless the original

statutory classification of that crime and that, therefore, it was

contrary to the presumption that statutes are intended to be

effective in their entirety.”).

¶ 10 Everyone would agree that the Colorado Court of Appeals

must follow binding Colorado Supreme Court precedent. See, e.g.,

In re Estate of Ramstetter, 2016 COA 81, ¶ 40. So, if the story

stopped here, under Andrews its ending would be obvious.

¶ 11 But divisions have sometimes avoided this limitation by

holding that because a supreme court decision has been

legislatively overruled by the General Assembly, it is no longer

binding. See, e.g., People v. Bondurant, 2012 COA 50, ¶ 75 (“We

agree with other divisions of this court that the 1999 amendments

legislatively overruled Cooper with respect to the intent element of

burglary.”).

¶ 12 So, do we follow Andrews and affirm or conclude — as the

District Attorney argues — that Andrews was overruled when the

General Assembly added section 18-8-208(9) and reverse? We

conclude that Andrews was not legislatively overruled.

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IV. The Continuing Vitality of Andrews in Light of Section
18-8-208(9)

¶ 13 According to the District Attorney, section 18-1.3-401(8)(a)(IV)

mandates an enhanced sentence for escape because the General

Assembly “clearly annunciated that it intended for escapes to be

aggravated” by adding subsection (9) to section 18-8-208 the year

after Andrews was announced. We begin with the plain language of

section 18-8-208(9) but discover that it is not so clear.

A. Section 18-8-208(9) is Ambiguous

¶ 14 When subsection (9) was added, it read: “The minimum

sentences provided by sections 18-1-105, 18-1-106, and 18-1-107

respectively, for the violation of the provisions of this section shall

be mandatory, and the court shall not grant probation or a

suspended sentence . . . .” Ch. 240, sec. 16, § 18-8-208, 1995 Colo.

Sess. Law 1255 (emphasis added). At that time, section

18-1-105(9)(a)(V), C.R.S. 1995, required — as section 18-1.3-

401(8)(a)(IV) does now — an enhanced sentence if “[t]he defendant

was under confinement . . . in any correctional institution as a

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convicted felon, or an escapee . . . at the time of the commission of

a felony.”1

¶ 15 The District Attorney argues that the plain language of section

18-8-208(9) requires an enhanced sentence for escape. Scott

responds that section 18-8-208(9) does not address whether an

escapee is subject to an enhanced sentence, but “rather what

sentencing options are available to the court — specifically, that

probation or a suspended sentence are not possibilities because the

minimum sentences outlined in the sentencing statutes . . . are

mandatory.”

¶ 16 To be sure, differing possible interpretations of statutory

language do not necessarily mean that the statute is ambiguous.

Cf. Klun v. Klun, 2019 CO 46, ¶ 19 (“The mere fact that the parties

may interpret the agreement differently, however, does not alone

———————————————————————
1 Section 18-1.3-401(8)(a)(IV), C.R.S. 2019, is substantially similar
to former section 18-1-105(9)(a)(V), C.R.S. 1995, which was in effect
when section 18-8-208(9), C.R.S. 2019, was enacted. See People v.
Willcoxon, 80 P.3d 817, 821 (Colo. App. 2002) (recognizing that
former section 18-1-105(9)(a)(V) is now codified at section
18-1.3-401(8)(a)(IV)), overruled on other grounds by People v. Adams,
2016 CO 74. The cross-reference in section 18-8-208(9) has since
been amended to change, among others, section 18-1-105 to
section 18-1.3-401.

8
establish an ambiguity.”). But as explained below, both

interpretations are reasonable. And “[a] statute is ambiguous if it is

susceptible to multiple reasonable interpretations.” Carrera v.

People, 2019 CO 83, ¶ 18.

¶ 17 On the one hand, the General Assembly’s use of the phrase

“shall be mandatory” in section 18-8-208(9) after referencing

section 18-1-105 could mean that all of section 18-1-105 was

mandatory for escape, including the enhanced sentencing provision

of section 18-1-105(9)(a)(V). On the other hand, the General

Assembly cross-referenced three sentencing statutes generally —

those for felonies, misdemeanors, and petty offenses — followed by

the language “shall be mandatory, and the court shall not grant

probation or a suspended sentence.” § 18-8-208(9). So, subsection

(9) could be read as requiring a sentence under whichever of those

statutes applied, while removing any discretion for the court to

grant probation or impose a suspended sentence.

¶ 18 Of course, the General Assembly could have avoided this

ambiguity by expressly declaring its intent to overrule Andrews.

See § 2-4-214, C.R.S. 2019 (“[T]he rule of statutory construction

expressed in the Colorado supreme court decision entitled People v.

9
McPherson, 200 Colo. 249, 619 P.2d 38 (1980), . . . has not been

adopted by the general assembly and does not create any

presumption of statutory intent.”). But because it did not, at least

expressly, we must look beyond the language of section 18-8-208(9)

to determine the meaning. See In re Marriage of Garrett, 2018 COA

154, ¶ 29 (“We must engage in [an] examination of legislative intent

because the statute is ambiguous.”).

B. The General Assembly Did Not Clearly Intend to Overrule
Andrews

¶ 19 “[W]hen the General Assembly amends a statute, we presume

that it is aware of published judicial precedents construing the prior

version of the statute.” Przekurat v. Torres, 2016 COA 177, ¶ 23.

So, in weighing the District Attorney’s argument that the General

Assembly overruled Andrews by adding section 18-8-208(9) after

that opinion was announced, we recognize that the General

Assembly could have intended to disavow that case without

expressly mentioning it.

¶ 20 Passamano v. Travelers Indemnity Company, 882 P.2d 1312,

1323 (Colo. 1994), is illustrative. There, the supreme court held

that section 10-4-609(1), C.R.S. 1994, applied to automobile rental

10
companies. Then the General Assembly amended section

10-4-609(1) as follows: “This subsection (1) shall not apply to motor

vehicle rental agreements or motor vehicle rental companies.” See

Ch. 51, sec. 4, § 10-4-609(1)(b), 1995 Colo. Sess. Laws 143. In a

later case, the supreme court explained that “[t]his amendment was

inconsistent with our holding in Passamano and clearly implied

abrogation.” Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997).

¶ 21 But the language of section 18-8-208(9) does not similarly

imply a legislative intent to overrule Andrews. See id. (explaining

that “[e]ven if a connection could be imagined between Savio and

the 1991 amendment to section 8-43-304(1),” the standard for

abrogation “requires more than an imagined connection”). Consider

that had the General Assembly intended to overrule Andrews —

albeit without mentioning the case — it could have referenced

section 18-1-105(9)(a)(V) rather than more broadly citing to section

18-1-105.

¶ 22 Given the lack of textual support for the District Attorney’s

position, you might wonder whether legislative history provides him

with the necessary explanation. See Gallegos v. Phipps, 779 P.2d

856, 861 (Colo. 1989) (“According to the legislators who sponsored

11
House Bill 1205, which later became section 13-21-115, the

common-law categories were reestablished because the reasonable

person standard created by Mile High Fence [v. Radovich, 175 Colo.

537, 489 P.2d 308 (1971),] led to unpredictable and inequitable

results.”); see also In re Marriage of Ciesluk, 113 P.3d 135, 141

(Colo. 2005) (“[T]his reading of the statute is equally consistent with

the legislative history of the statute, which indicates that legislators

proposed the amendments in an effort to eliminate the Francis

test.”). It does not.

¶ 23 The legislative history does not mention Andrews. Compare In

re Marriage of Gallo, 752 P.2d 47, 50 (Colo. 1988) (“The legislative

history of the Protection Act makes it clear that the principal

purpose of the legislation was to legislatively overrule the McCarty

decision.”), with People v. Carey, 198 P.3d 1223, 1230 (Colo. App.

2008) (“The legislative history of the 1994 amendment includes no

discussion of Bossert.”).

¶ 24 Rather, the legislative history paints a clear picture that the

General Assembly’s focus was on correcting a disparity between

escape, which allowed for probation or a suspended sentence, and

attempted escape, which did not, although the latter offense is the

12
less serious. In a hearing before the Senate Judiciary Committee,

Ray Slaughter — then the Director for the Colorado District

Attorney’s Counsel — explained that the addition of section

18-8-208(9)

corrects an error between escape and
attempted escape. Currently . . . if you are
convicted of escape from a penitentiary or a jail
facility . . . you can get probation. Which
doesn’t make a lot of sense because you’ve just
escaped from jail. But you are eligible for
probation. On the other hand, if you are
convicted of attempting to escape, but not
getting away with it, you are not eligible for
probation. We felt that you probably didn’t
want these people eligible for probation in
either case. And in fact, the practice, of
course, is to take the plea to attempted escape
to preclude any possibility of probation. That
is the practice. So, [the amendment] remedies
that by simply stating that with a conviction
for escape you’re not eligible for probation.

Hearings on H.B. 1070 before the S. Judiciary Comm., 60th Gen.

Assemb., 1st Sess. (Apr. 5, 1995).

¶ 25 This reason was echoed by Senator Dorothy Wham during the

second reading of the bill on the senate floor. The senator

explained that the bill overall “deals with . . . problems that have

come up in the substantive criminal law.” And regarding section

18-8-208(9) specifically, she explained:

13
If a defendant is convicted of attempt to
escape, the sentence is mandatory and the
court shall not grant probation or a suspended
sentence. This was not included in the greater
offense of escape. And this section corrects
that.

Second Reading of H.B. 1070 before the Senate, 60th Gen. Assemb.,

1st Sess. (Apr. 28, 1995).

¶ 26 These statements of purpose are particularly persuasive in

resolving ambiguity. See § 2-4-203(1)(a), C.R.S. 2019 (“If a statute

is ambiguous, the court, in determining the intention of the general

assembly, may consider . . . [t]he object sought to be

attained . . . .”).

¶ 27 Despite all of this, the District Attorney argues that the

General Assembly’s intent to enhance the sentence for escape is

shown by the lack of a comparable amendment to section

18-8-208.1, C.R.S. 2019, sentencing for attempted escape. But

when section 18-8-208(9) was added, the attempted escape statute

already required that “the minimum sentences . . . of this section

shall be mandatory, and the court shall not grant probation or a

suspended sentence, in whole or in part . . . .” § 18-8-208.1(5),

C.R.S. 1995. Because — as the legislative history explains — the

14
purpose of section 18-8-208(9) was to correct a disparity between

escape and attempted escape, precise drafting would amend only

the escape statute.

¶ 28 For these reasons, we discern no basis for holding that the

General Assembly intended to overrule Andrews by adding section

18-8-208(9). Therefore, we conclude that the trial court acted

within its discretion in sentencing defendant to four years’

imprisonment.

V. Conclusion

¶ 29 The sentence is affirmed

JUDGE DUNN and JUDGE LIPINSKY concur.

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