v. Chavez , 2020 COA 80 ( 2020 )

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
May 21, 2020
2020COA80
No. 17CA1304, People v. Chavez — Criminal Procedure —
Postconviction Remedies — Reduction of Sentence; Criminal
Law — Sentencing — Punishment for Habitual Criminals —
Mandatory Sentences for Violent Crimes
Defendant, Nehemiah Felipe Chavez, appeals the district
court’s order denying his Crim. P. 35(b) motion for sentence
reconsideration. He contends that the court should not have
imposed consecutive sentences under the crime of violence statute
because he was sentenced under the habitual criminal statute.
Applying the principles of statutory construction set forth in
People v. Adams, 2016 CO 74, a division of the court of appeals
agrees with the trial court and concludes, like an earlier division —
see People v. Pena, 794 P.2d 1070 (Colo. App. 1990), overruled on
other grounds by Robles v. People, 811 P.2d 804 (Colo. 1991) — that
there is no conflict between the two provisions. Thus, the division
concludes that (1) both provisions applied to Chavez and (2) they
required the district court to impose Chavez’s two habitual offender
sentences to run consecutively.
COLORADO COURT OF APPEALS 2020COA80
Court of Appeals No. 17CA1304
Weld County District Court No. 11CR378
Honorable Shannon D. Lyons, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nehemiah Felipe Chavez,
Defendant-Appellant.
ORDER AFFIRMED
Division IV
Opinion by JUDGE FURMAN
Welling and Pawar, JJ., concur
Announced May 21, 2020
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Heather Wong, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Nehemiah Felipe Chavez, appeals the district
court’s order denying his Crim. P. 35(b) motion for sentence
reconsideration. He contends that the court should not have
imposed consecutive sentences under the crime of violence statute
because he was sentenced under the habitual criminal statute. We
disagree and, therefore, affirm the order.
I. Chavez’s Sentence
¶2 A jury found Chavez guilty of two counts of attempted second
degree murder and one count of attempted manslaughter. The jury
also found that Chavez’s two convictions for attempted second
degree murder were crimes of violence.
¶3 The district court found that Chavez had three prior felonies
and adjudicated him a habitual criminal.
¶4 On each conviction for attempted second degree murder, the
court sentenced Chavez to sixty-four years in the custody of the
Department of Corrections (DOC) — the mandatory sentence under
the habitual criminal statute. See § 18-1.3-801(2)(a)(I), (2)(a)(I)(A),
C.R.S. 2019. Then, the court applied the crime of violence statute’s
consecutive sentencing requirement, which provides that a “court
shall sentence a person convicted of two or more separate crimes of
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violence arising out of the same incident so that his or her
sentences are served consecutively rather than concurrently.”
§ 18-1.3-406(1)(a), C.R.S. 2019. Because Chavez’s two convictions
were crimes of violence arising out of the same incident, the court
ordered Chavez’s two sentences to run consecutively. The court
also imposed a concurrent twelve-year sentence on the attempted
manslaughter conviction. All told, Chavez received an aggregate
sentence of 128 years.
¶5 On direct appeal, a division of this court affirmed the
judgment of conviction. See People v. Chavez, (Colo. App. No.
12CA1774, Dec. 17, 2015) (not published pursuant to C.A.R. 35(f)).
¶6 Chavez then filed a Crim. P. 35(b) motion and a supplemental
brief in which he contended that the court should impose all three
of his sentences to run concurrently. He claimed that section
18-1.3-406(1)(a)’s consecutive sentencing requirement should not
apply where a defendant is sentenced under the habitual criminal
statute, section 18-1.3-801.
¶7 The district court denied Chavez’s motion, concluding that the
crime of violence statute required it to impose consecutive
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sentences on his two convictions for attempted second degree
murder.
II. Standard of Review
¶8 We review a ruling on a Crim. P. 35(b) motion for an abuse of
discretion. People v. Rodriguez, 914 P.2d 230, 288 (Colo. 1996). A
court abuses its discretion if it misinterprets or misapplies the law.
People v. Henson, 2013 COA 36, ¶ 9. The proper interpretation of a
sentencing statute presents a question of law, which we review de
novo. People v. Adams, 2016 CO 74, ¶ 12. So, here, we review de
novo whether the district court misinterpreted or misapplied the
sentencing statutes.
III. Analysis
¶9 Chavez does not dispute that his two convictions for attempted
second degree murder constituted “separate crimes of violence
arising out of the same incident” under section 18-1.3-406(1)(a).
Thus, the crime of violence statute required the district court to
impose consecutive sentences on those two convictions.
¶ 10 But Chavez contends that the consecutive sentencing
requirement in the crime of violence statute does not apply when a
defendant is sentenced under the habitual criminal statute.
3
¶ 11 A division of this court previously addressed the same issue
we now face. See People v. Pena, 794 P.2d 1070, 1071-72 (Colo.
App. 1990), overruled on other grounds by Robles v. People, 811
P.2d 804, 806-07 (Colo. 1991). In Pena, the division recognized
that the habitual criminal statute preempts one provision in the
crime of violence statute. See id. The first sentence of section
18-1.3-406(1)(a) requires that the length of a sentence for a crime of
violence be “at least the midpoint in, but not more than twice the
maximum of, the presumptive range provided for such offense in
section 18-1.3-401(1)(a), [C.R.S. 2019].” That provision is
incompatible with, for example, the habitual criminal statute
requiring a sentence of either three times or four times the
maximum of the presumptive range. See § 18-1.3-801(1.5), (2). So,
the Pena division held that the habitual criminal statute preempts
incompatible provisions of the crime of violence statute. 794 P.2d
at 1071-72; see also People v. Hoefer, 961 P.2d 563, 568-69 (Colo.
App. 1998) (same).
¶ 12 But Pena held that “the preemptive scope of the habitual
criminal statute does not extend so far as to preclude the
mandatory consecutive sentencing requirement for multiple crimes
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of violence arising out of the same incident.” 794 P.2d at 1072. We
agree with Pena.
¶ 13 The habitual criminal statute says nothing about whether
multiple habitual criminal sentences should be imposed
consecutively or concurrently. See generally § 18-1.3-801. And the
provision in the habitual criminal statute under which Chavez was
sentenced says nothing about the situation of triggering offenses
being crimes of violence. See § 18-1.3-801(2). Because the crime of
violence statute’s consecutive sentencing requirement does not
conflict with the habitual criminal statute, we must give effect to
both.
¶ 14 Adams is persuasive authority on the issue. There, the
supreme court faced “the intersection of two sources of sentence
enhancement”: section 18-1.3-401(8)(a)(IV), which requires an
aggravated sentence range, and section 18-3-203(1)(f), C.R.S. 2019,
which requires consecutive sentences. Adams, ¶¶ 2, 13-17. The
court concluded there was no conflict between these provisions. Id.
at ¶ 11. It explained,
The plain language of these two statutes
permits us to give effect to both provisions. A
specific or local provision may apply to the
5
exclusion of a general provision, but that rule
only applies where “the conflict between the
provisions is irreconcilable.” § 2-4-205[,
C.R.S. 2019] . . . . Here, there is no such
conflict. A defendant can be sentenced to a
greater number of years based on the general
aggravator, and he can be made to serve that
sentence [consecutively] following completion
of his other sentences. We therefore apply
both provisions.
Id. at ¶ 16; see also People v. Opana, 2017 CO 56, ¶ 11 (“If a statute
is clear and unambiguous, and is not in conflict with another
statute, it must simply be applied as written.”).
¶ 15 Likewise, we conclude there is no conflict between the habitual
criminal statute and the crime of violence statute’s consecutive
sentencing requirement. So, we must give effect to both.
¶ 16 But wait, says Chavez. His interpretation of the statutory
scheme avoids the unjust and unreasonable result that the
habitual offender sentence enhancements could mandate a harsher
sentence for an individual who commits multiple crimes of violence
arising out of a single occasion than one who does so through
separate and distinct criminal episodes. But we see nothing unjust
or unreasonable about this result. The legislature has mandated a
harsher, consecutive, sentence for crimes of violence arising out of a
6
single incident and has not done so for crimes of violence arising
out of separate incidents.
¶ 17 Chavez also contends that we should construe the statutory
scheme to preserve district courts’ sentencing discretion. See, e.g.,
People v. Padilla, 907 P.2d 601, 609-10 (Colo. 1995) (“We decline to
interpret [a particular statute and rule of criminal procedure] in a
manner that compromises the effectiveness of discretionary
sentencing.”). But the legislature has removed this discretion in
cases such as the present one.
¶ 18 Chavez also asks us to consider the statutory construction
aids enumerated in section 2-4-203, C.R.S. 2019, along with the
rule of lenity. See People v. Thoro Prods. Co., 70 P.3d 1188, 1198
(Colo. 2003) (“[A]mbiguity in the meaning of a criminal statute must
be interpreted in favor of the defendant under the rule of lenity.”).
But these principles apply only where a statutory scheme is
ambiguous. § 2-4-203(1); Thoro Prods. Co., 70 P.3d at 1198. We
discern no ambiguity in the fact that both section 18-1.3-801(2) and
the last sentence of section 18-1.3-406(1)(a) apply. So, we need not
rely on these principles.
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¶ 19 That this is an appeal of the district court’s order denying
Chavez’s Crim. P. 35(b) motion does not change the analysis.
“Under Crim. P. 35(b), the court’s discretion is constrained by
applicable statutory limits.” People v. Dunlap, 36 P.3d 778, 781
(Colo. 2001). “Crim. P. 35(b) cannot expand the trial court’s
authority in resentencing beyond that which it had initially.” Id.
“The same statutes that governed the original sentencing limit the
trial court’s authority on resentencing.” Id.
¶ 20 At oral argument, Chavez argued for the first time that the
district court had the discretion in a Crim. P. 35(b) proceeding to
change consecutive sentences to concurrent sentences under the
provision in section 18-1.3-406(1)(a) allowing a court to modify a
sentence “in a case which it considers to be exceptional and to
involve unusual and extenuating circumstances.” Because Chavez
did not raise this argument in the district court to preserve it for
appeal, we will not consider it. See People v. Huggins, 2019 COA
116, ¶ 17 (“When a defendant does not raise an issue in a
postconviction motion or during the hearing on that motion, and
the postconviction court therefore does not have an opportunity to
8
rule on the issue, as a general rule, the issue is not properly
preserved for appeal and we will not consider it.”).
¶ 21 We recognize that Chavez’s aggregate DOC sentence is lengthy.
But reviewing the applicable sentencing statutes de novo, we
conclude that they required the district court to impose consecutive
sentences on Chavez’s two convictions for attempted second degree
murder. Thus, the court did not abuse its discretion in denying
Chavez’s Crim. P. 35(b) motion.
IV. Conclusion
¶ 22 The order is affirmed.
JUDGE WELLING and JUDGE PAWAR concur.
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