v. People , 2020 CO 37 ( 2020 )

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ADVANCE SHEET HEADNOTE
May 11, 2020
2020 CO 37
No. 18SC646, Russell v. People—Criminal Law—Sentencing and Punishment—
Presentence Confinement Credit.
Because the supreme court determines that its prior decisions interpreting
the presentence confinement credit (“PSCC”) statute are not consistent with the
language of the statute and cannot be reconciled with each other, the court here
identifies three principles for determining when a defendant is entitled to PSCC
and resolves inconsistencies in its previous interpretations of the PSCC statute and
the related substantial nexus test.
First, a defendant is entitled to PSCC for each day served where there is a
substantial nexus between the conduct or charges for which he is confined and the
sentence ultimately imposed. A substantial nexus exists where the defendant
would have remained confined on the charge or conduct for which credit is sought
in the absence of any other charge. Second, causation, not geography, is the defining
question in determining if there is a substantial nexus. And third, a defendant is
not entitled to duplicative PSCC.
Applying these principles here, the supreme court concludes that Derick
Wayne Russell is entitled to additional PSCC against his Douglas County sentence
for the period that he was confined after he was resentenced in Jefferson County
until he was resentenced in Douglas County. Accordingly, the judgment of the
court of appeals is reversed and the case is remanded with instructions to return
it to the district court for correction of the PSCC award consistent with this
opinion.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 37
Supreme Court Case No. 18SC646
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA2073
Petitioner:
Derick Wayne Russell,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
May 11, 2020
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Lisa Weisz, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Grant R. Fevurly, Assistant Attorney General
Denver, Colorado
JUSTICE HART delivered the Opinion of the Court.
JUSTICE BOATRIGHT concurs in the judgment only, and CHIEF JUSTICE
COATS joins in the concurrence in the judgment only.
¶1 The issue here—whether Derick Wayne Russell is entitled to presentence
confinement credit (“PSCC”) in Douglas County1—stems from the interplay
between two unrelated criminal cases, one in Douglas County and another in
Jefferson County.
¶2 Russell was sentenced to six years in community corrections for an offense
in Douglas County to be served concurrently with a three-year sentence incurred
in Jefferson County. Before completing his concurrent sentences, on May 26, 2016,
Russell was unsuccessfully terminated from community corrections in both cases
and immediately confined in the Denver County Jail. On June 1, 2016, the Jefferson
County District Court resentenced Russell to serve the remainder of his three-year
sentence in the custody of the Department of Corrections. Four months later, on
October 13, 2016, the Douglas County District Court also resentenced Russell to
the Department of Corrections to serve the remainder of his six-year Douglas
County sentence, again to be served concurrently with the Jefferson County
1 We granted certiorari to review the following issue:
When the defendant was terminated from his concurrent community
corrections sentences from Jefferson and Douglas Counties, and
resentenced to concurrent prison sentences in both counties, whether
he is entitled to presentence confinement credit in Douglas County
for time served in prison after his Jefferson County resentencing but
before his Douglas County resentencing.
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sentence. The Douglas County District Court, however, did not award Russell any
PSCC for the time he was confined between his Jefferson County resentencing on
June 1 and his Douglas County resentencing on October 13.
¶3 A division of the court of appeals affirmed this decision not to award PSCC,
relying on the substantial nexus test outlined in People v. Torrez, 2017 CO 91,
403 P.3d 189. People v. Russell, No. 16CA2073, ¶¶ 15–19 (Aug. 23, 2018). In doing
so, the division noted that the Torrez substantial nexus test departed from our prior
decisions on the calculation of PSCC. Id. at ¶ 16 n.2. It further noted that under
previous iterations of the substantial nexus test, Russell would be entitled to PSCC.
See id. at ¶ 17; see also Massey v. People, 736 P.2d 19, 23 (Colo. 1987).
¶4 This case highlights that our prior decisions applying the PSCC statute are
not easy to reconcile with each other and are inconsistent with the statutory
language. Torrez broke from Massey and Massey’s companion case, People v.
Freeman, 735 P.2d 879 (Colo. 1987), by establishing a but-for causation test for
PSCC that is not supported by the plain language of the statute. See Torrez, ¶¶ 3,
24, 403 P.3d at 190, 194. And the causation test outlined in Massey and Freeman
relied on a geography-based distinction that finds no purchase in the statutory
language and that we disavowed in Torrez. See id. at ¶ 25, 403 P.3d at 194–95.
While we recognize the importance of stare decisis, our prior cases construing the
PSCC statute cannot be squared with each other or with the language of the
3
statute. Here, consequently, we conclude that sound reasons exist for sorting out
the confusion created by our prior caselaw by setting out the following principles
that must apply in every PSCC case.
¶5 First, a defendant is entitled to PSCC for each day served where there is a
substantial nexus between the conduct or charges for which he is confined and the
sentence ultimately imposed. Second, causation, not geography, is the defining
question in determining if there is a substantial nexus. And third, a defendant is
not entitled to duplicative PSCC.
¶6 We also clarify that a substantial nexus exists where the defendant would
have remained confined on the charge or conduct for which credit is sought in the
absence of any other charge. In other words, the court should ask what would
happen if only the sentencing charge existed; in such a scenario, would the
defendant have remained confined? If the answer to this question is yes, a
substantial nexus exists, and the defendant is entitled to PSCC so long as it is not
duplicative.
¶7 Applying these principles, we conclude that there is a substantial nexus
between the period that Russell was confined while he awaited resentencing in
Douglas County and his Douglas County sentence. And because an award of
PSCC for this period is not duplicative, he is entitled to additional PSCC.
4
Consequently, we reverse the judgment of the court of appeals and remand for
correction of Russell’s PSCC award consistent with this opinion.
I. Facts and Procedural History
¶8 In October 2015, Russell pleaded guilty to theft, a class five felony, in
Douglas County. For this offense, the Douglas County District Court sentenced
Russell in January 2016 to six years in community corrections. This sentence was
to be served concurrently with a three-year community corrections sentence that
Russell received in December 2015 for an unrelated offense in Jefferson County.
¶9 Russell entered a community corrections program located in Denver in
February 2016. But on May 26, 2016, he was terminated from the program, and he
was taken into the custody of the Denver County Jail. The next day, the probation
department issued a notice of rejection requesting transfer of sentence in Douglas
County. And, on May 31, 2016, the Douglas County District Court issued a no-
bond arrest warrant for Russell. Defense counsel received no notice of the
community corrections termination or the arrest warrant.
¶10 Meanwhile, on June 1, 2016, the Jefferson County District Court resentenced
Russell to the Department of Corrections, where he would serve the remainder of
his three-year sentence for the Jefferson County offense.
¶11 Two months later, while preparing for a previously scheduled restitution
hearing in the Douglas County case, Russell’s defense counsel learned of Russell’s
5
termination from community corrections and of the notice of rejection.
Consequently, at the restitution hearing in August, Russell’s defense counsel
requested that the court set a transfer hearing in the Douglas County case.
¶12 The Douglas County District Court held a transfer hearing on October 13,
2016, and resentenced Russell to six years in the custody of the Department of
Corrections to run concurrently with his Jefferson County sentence. The court also
granted Russell PSCC for the time he was confined before his sentence to
community corrections, the time he served in residential community corrections,
and the days he spent in the Denver County Jail before he was resentenced in the
Jefferson County case. However, the court declined to award Russell PSCC
against the Douglas County sentence for his confinement from June 1 to October
13, 2016, concluding that once Russell was resentenced to the Department of
Corrections for his Jefferson County offense on June 1, he could no longer be
credited PSCC against his Douglas County offense.
¶13 Russell appealed, arguing that pursuant to section 18-1.3-405, C.R.S. (2019),
he was entitled to PSCC against his Douglas County offense for his incarceration
in the Denver County Jail and the Department of Corrections between May 26 and
October 13, 2016. A division of the court of appeals disagreed with Russell and
affirmed. Citing Torrez, the division held that because the Jefferson County
sentence provided an alternate source for his confinement, Russell’s Douglas
6
County case was not the but-for cause of his confinement after he was resentenced
in Jefferson County. Russell, ¶¶ 15–17. Therefore, he was not entitled to PSCC for
the period from June 1, 2016, to October 13, 2016. Id. Though bound by our
decision in Torrez, the division noted that the Torrez substantial nexus test differed
from the previous substantial nexus test outlined by this court in Massey, id. at ¶ 16
n.2, and that Russell would have been entitled to credit under the Massey test, see
id. at ¶ 17.2
¶14 Russell petitioned this court for certiorari, and we granted review.
II. Analysis
¶15 We begin by discussing the standard of review and the doctrine of stare
decisis. We then turn to Colorado’s PSCC statute and our previous decisions
2 We recognize that the credit requested and denied here may reasonably be
described as credit for time served. However, the trial court, the division, and the
parties all have referred to it as presentence confinement credit, and no argument
has been presented to the contrary. Indeed, at oral argument, the People were
asked on multiple occasions whether this was really just a continuation of Russell’s
sentence. Each time, they said it was not and that this time should be evaluated as
presentence confinement. Moreover, section 18-1.3-301(1)(e), C.R.S. (2019),
specifically references the trial court’s obligations with regard to resentencing after
termination from community corrections. Finally, our caselaw has at times used
the terms “credit for time served” and “presentence confinement credit”
interchangeably with regard to crediting a defendant for time spent in community
corrections prior to resentencing. See, e.g., Beecroft v. People, 874 P.2d 1041,
1045–46 (Colo. 1994) (describing one case from the court of appeals as requiring
“presentence confinement credit” and another as requiring “credit for time
served”).
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interpreting it. Here, because we determine that our prior decisions are not
consistent with the language of the statute and cannot be reconciled with each
other, we conclude that sound reasons exist for clarifying this area of the law, even
if it requires departing from the norm of stare decisis.
¶16 We therefore take this opportunity to identify three clear principles for
determining when a defendant is entitled to PSCC and to resolve inconsistencies
in our previous interpretations of the PSCC statute and the related substantial
nexus test. First, a defendant is entitled to PSCC for each day served where there
is a substantial nexus between the charge or conduct for which he is confined and
the sentence that is ultimately imposed. A substantial nexus exists when the
defendant would have remained confined on the charge or conduct for which credit
is sought in the absence of any other charge. Second, regarding whether a
substantial nexus exists, causation, not geography, is the defining question. And
third, a defendant is not entitled to duplicative PSCC.
¶17 Applying these principles here, we conclude that Russell is entitled to
additional PSCC against his Douglas County sentence for the period that he was
confined after he was resentenced in Jefferson County until he was resentenced in
Douglas County.
8
A. Applicable Law
1. Standard of Review and Stare Decisis
¶18 Whether a district court properly denied PSCC is a legal question that we
review de novo. Fransua v. People, 2019 CO 96, ¶ 11, 451 P.3d 1208, 1210.
¶19 Issues of statutory interpretation are also subject to de novo review.
People v. Baker, 2019 CO 97M, ¶ 13, 452 P.3d 759, 762. Our primary responsibility
when interpreting a statute is “to ascertain and give effect to the General
Assembly’s purpose and intent.” Id. “To do so, we look to the plain language of
the statute, the context of words and phrases, and their common usage.” Id.
¶20 With regard to case law, the doctrine of stare decisis requires that we adhere
to precedent in order to promote “uniformity, certainty, and stability of the law.”
People v. Porter, 2015 CO 34, ¶ 23, 348 P.3d 922, 927 (quoting People v. LaRosa,
2013 CO 2, ¶ 28, 293 P.3d 567, 574). This rule, however, “is not so rigid as to
prevent us from reevaluating our precedent.” Id. And we will depart from
precedent where sound reasons exist for doing so. People v. Kutlak, 2016 CO 1,
¶ 18, 364 P.3d 199, 205 (quotation omitted); People v. Novotny, 2014 CO 18, ¶ 24,
320 P.3d 1194, 1202.
2. PSCC
¶21 Pursuant to Colorado’s PSCC statute, section 18-1.3-405, “A person who is
confined for an offense prior to the imposition of sentence for said offense is
9
entitled to credit against the term of his or her sentence for the entire period of
such confinement.” We clarify today that courts should apply this statute
consistent with three principles.
¶22 The first principle flows from the statutory mandate that a defendant receive
credit for each day or “the entire period” of presentence confinement served.
What this means is that a defendant is entitled to PSCC if “the presentence
confinement [was] actually caused by the charge or conduct for which the defendant
is to be sentenced.” Massey, 736 P.2d at 22. From our earliest interpretation of the
PSCC statute, we have been clear that “causation in this context does not mean
that the charge or conduct for which the sentence is to be imposed must be the
exclusive cause of the offender’s confinement.” Schubert v. People, 698 P.2d 788,
795 (Colo. 1985); see also People v. Johnson, 797 P.2d 1296, 1298 (Colo. 1990); Massey,
736 P.2d at 22; Freeman, 735 P.2d at 881; Torand v. People, 698 P.2d 797, 800 (Colo.
1985). And we explained in Massey that “where two or more charges form
multiple bases for the defendant’s presentence confinement, the defendant is
entitled to credit against each sentence imposed on those charges, as long as the
credit would not be duplicative.” 736 P.2d at 23. Yet, in Torrez, we departed from
these earlier holdings, concluding that but-for causation was required for an
award of PSCC. ¶¶ 3, 24, 403 P.3d at 190, 194; see also People v. Torrez, 2017 CO 91,
¶ 32, 403 P.3d 189, 196 (Márquez, J., dissenting); People v. Torrez, 2017 CO 91,
10
¶¶ 60–63, 403 P.3d 189, 201–02 (Hood, J., dissenting). Instead of asking, as we had
in previous cases, whether the defendant would have remained confined in the
absence of any other charge, Torrez flipped the test and asked whether “the
defendant would have been released from the confinement had that offense not
existed.” ¶ 3, 403 P.3d at 190.
¶23 The Torrez but-for causation test is inconsistent with the language of the
PSCC statute. The statute does not limit a defendant’s entitlement to PSCC to
those situations in which the sentencing offense is the exclusive basis for
confinement. Moreover, under the test set forth in Torrez, a defendant sentenced
on multiple charges would be entitled to no PSCC because none of the charges
would alone be the but-for cause of his confinement. This is inconsistent with the
intent of the PSCC statute, which makes PSCC mandatory.
¶24 As noted, Torrez also cannot be reconciled with our earlier precedent, which
made it clear that the causation required under the PSCC statute was not but-for
causation. Therefore, there are sound reasons to overrule Torrez’s but-for
causation test and return to a substantial nexus test that ensures a defendant will
receive the PSCC to which he is statutorily entitled. Under that test, a substantial
nexus exists where the defendant would have remained confined on the charge or
conduct for which credit is sought in the absence of any other charge. Put another
way, the court should ask “what would happen if only the sentencing charge
11
existed; in such a scenario, would the defendant have remained confined?” Torrez,
¶ 51, 403 P.3d at 200 (Márquez, J., dissenting). If the answer to this question is yes,
a substantial nexus exists, and the defendant is entitled to PSCC so long as the
credit would not be duplicative.
¶25 We agree, however, with the court’s observation in Torrez that “[t]he
substantial nexus test is about causation, not geography.” ¶ 25, 403 P.3d at 195.
And this leads us to the second principle that courts should apply in awarding
PSCC: When determining whether a substantial nexus exists, causation, not
geography, is the defining question. The PSCC statute supports this principle,
saying nothing about geographic limitations on credit for confinement. See
§ 18-1.3-405. Furthermore, when a defendant is confined on charges from two
different jurisdictions, he will necessarily have to be physically confined in only
one of the two jurisdictions at any given time. His confinement, however, may be
caused by the charges in both jurisdictions, and he is still entitled to nonduplicative
credit as mandated by the PSCC statute. Consequently, to the extent that our prior
caselaw imported a geographic component into the PSCC analysis, we conclude
here that there is no basis in the statutory language for doing so, and we clarify
that geography does not play a role in the calculation of PSCC.
¶26 Third, and finally, a defendant is not entitled to duplicative PSCC. The
PSCC statute addresses directly one of the most likely risks of duplication. When
12
a defendant commits a new crime while already serving a sentence or on parole,
the period of confinement prior to sentencing on the new offense will be credited
only against the original sentence. Id. In circumstances not covered explicitly by
the statute, courts should take care when sentencing to give the defendant a day
of credit, and only a day of credit, for each day he was confined prior to sentencing.
¶27 These three principles clarify inconsistencies in our precedent interpreting
the PSCC statute and should allow courts to award PSCC in a manner consistent
with the language of the statute. A defendant is entitled to PSCC when he would
have remained confined on the charge or conduct for which credit is sought in the
absence of any other charge, whether that charge is in the same or a different
jurisdiction, so long as the PSCC is not duplicative.
B. Russell Is Entitled to Additional PSCC Against His
Douglas County Sentence
¶28 Russell argues that he is entitled to PSCC against his Douglas County
sentence for the period that he was confined after his termination from community
corrections until his Douglas County resentencing. Because there is a substantial
nexus between Russell’s confinement and his Douglas County offense, and
because this additional PSCC would not be duplicative, we agree.
¶29 Russell would have remained confined on the Douglas County offense
pursuant to section 17-27-104(6), C.R.S. (2019), and the Douglas County no-bond
arrest warrant. When a defendant is terminated from a community corrections
13
program, he must be confined without bond until the court determines whether
to remove him from the program. § 17-27-104(6). Accordingly, after Russell was
terminated from community corrections, the probation department filed a notice
of rejection requesting transfer of sentence, and the Douglas County District Court
issued a no-bond arrest warrant for Russell. In the absence of the Jefferson County
charge, pursuant to both section 17-27-104(6) and the related Douglas County
arrest warrant, Russell would have remained confined without bond on the
Douglas County charge until the court transferred the balance of Russell’s six-year
sentence to the Department of Corrections. In other words, if only the Douglas
County theft charge had existed, Russell would have remained confined after his
termination from community corrections until his Douglas County resentencing.
Thus, there is a substantial nexus between his confinement and the Douglas
County theft offense that he was ultimately resentenced on.
¶30 Also, because Russell was sentenced to concurrent sentences, awarding him
PSCC against his Douglas County sentence would not be duplicative. In fact, if
PSCC is not applied against Russell’s Douglas County sentence, as a practical
matter, he would receive no credit for the months that he was confined while
awaiting resentencing. This is because Russell’s six-year Douglas County sentence
was the longer of his two concurrent sentences; thus, applying the credit against
his three-year Jefferson County sentence would have no impact on the actual
14
length of his term of incarceration. Here, only by giving Russell PSCC against his
Douglas County sentence will he be guaranteed to receive credit for the full period
of his presentence confinement against his total term of imprisonment.
III. Conclusion
¶31 We conclude that Russell is entitled to PSCC against his Douglas County
sentence for the period that he was confined after his Jefferson County
resentencing until his Douglas County resentencing. Accordingly, we reverse the
judgment of the court of appeals and remand the case with instructions to return
it to the district court for correction of the PSCC award consistent with this
opinion.
JUSTICE BOATRIGHT concurs in the judgment only, and CHIEF JUSTICE
COATS joins in the concurrence in the judgment only.
15
JUSTICE BOATRIGHT, concurring in the judgment only.
¶32 I agree with the majority that the defendant should be given credit for the
time he spent in jail awaiting his transfer to the Department of Corrections
(“DOC”). I disagree, however, with the majority’s characterization that the credit
qualifies as presentence confinement credit. In my view, although the majority and
the parties did not recognize the distinction between presentence confinement and
postsentence credit for time served, the time that the defendant spent in jail
between his arrest on May 26, 2016, until he was transferred to the DOC on
October 13, 2016, should be classified as time served. Simply put, presentence
confinement and credit for time served are not interchangeable terms. Hence, we
should not be analyzing presentence confinement jurisprudence. Therefore, I
concur in the judgment only.
¶33 To explain my position, I briefly go back over the events of the defendant’s
sentencing journey as laid out in more detail in the majority opinion. In January
2016, the defendant was sentenced to community corrections for six years in
Douglas County. Presumably, the defendant spent time in jail awaiting the
resolution of this case as community corrections was deemed appropriate, and he
had another case pending in Jefferson County at the same time. As the majority
noted, the defendant did not begin the community corrections sentence until
February 2016. Therefore, he was in jail waiting for bed space in community
1
corrections between the time he was sentenced and the time he actually entered
community corrections. He then began serving time in community corrections.
His Douglas County community corrections sentence was revoked on May 26,
2016. Finally, he waited until October 13, 2016, to be resentenced to the DOC.
¶34 Under these circumstances, at the time of his transfer to the DOC, the court
should have given the defendant the following types of credit: (1) presentence
confinement credit for any time he spent in jail awaiting his original sentence to
community corrections—that presentence confinement is not at issue here;
(2) credit for time served for any time he spent in jail after the sentencing as he
waited for a bed to become available at community corrections; (3) credit for time
served for any time he spent in residence at community corrections—he should
not be given any credit for any time he served in a nonresidential community
corrections, if any, see People v. Hoecher, 822 P.2d 8, 10 (Colo. 1991); and (4) credit
for time served for the time he spent in jail awaiting his transfer to the DOC.
¶35 My point is that the time the defendant spent in jail waiting to be transferred
to the DOC was part of his community corrections sentence. After all, as the
majority correctly points out, the defendant was being held on a no-bond warrant
at that time. Why? Because he was serving a sentence. Hence, it is not presentence
confinement. It is postsentence confinement. As a result, that time should be
treated as time served.
2
¶36 By treating the time that the defendant was incarcerated as time served, the
defendant gets the full credit for the time he served on the sentence itself, and the
court need not engage in the substantial nexus analysis. That avoids questions
about whether the defendant would have remained confined. It only asks whether
the defendant was in fact confined. In my view, treating the time that the
defendant spent in jail from May 26, 2016, to October 13, 2016, waiting to be
transferred to the DOC as part of his community corrections sentence and not as
presentence confinement is less complicated, and it gives the defendant the credit
for the time he actually served on a sentence. Further, treating the time in question
as credit for time served would make overruling the recently decided case of
People v. Torrez, 2017 CO 91, 403 P.3d 189, unnecessary.
¶37 Hence, I concur in the judgment only.
I am authorized to state that CHIEF JUSTICE COATS joins in this
concurrence in the judgment only.
3