ROMERO v. PEOPLE

Justice RICE delivered the Opinion of the Court.

I. Introduction

The issue presented is whether the court of appeals erred in holding that when an offender's sentence to community corrections has been revoked, a court may resentence that offender to a longer term than the original sentence, so long as a hearing is held. Petitioner William Romero argues that increasing the offender's sentence violates both section 18-1.3-301(1)(e), C.R.S. (2007), and double jeopardy. We affirm the court of appeals.

Specifically, we granted certiorari on the question of "[w]hether the court of appeals erred in ruling that the imposition of a longer community corrections term upon revocation of the original term violates neither double jeopardy nor section 18-1.3-301(1)(e), C.R.S. (2007), so long as the defendant is afforded a hearing."

II. Facts and Procedural History

In May 2001, Romero pled guilty to one count of distribution of a schedule two controlled substance, a class three felony, and was sentenced to four years in Minnequa Community Corrections. One condition of Romero's sentence was that he remain drug and alcohol free. Over a year later, Romero's urine tested positive for cocaine, and he was terminated from the community corrections program. The sentencing court held a hearing at which counsel for Romero was present. After the hearing, the court sentenced Romero to five years in a community corrections program in Greeley, called the Restitution Center. The court stated that the reason for the increased sentence was that it believed the extra year was needed to rehabilitate Romero.

Romero moved for postconviction relief under Rule 35 of the Colorado Rules of Criminal Procedure, alleging that the five-year sentence violated subsection (1)(e) because it exceeded the four-year sentence which was originally imposed. The district court agreed with Romero and set aside the five-year sentence, imposing instead a four-year sentence.

The prosecution appealed the sentence reduction. In an unpublished opinion, the court of appeals reversed and remanded for reinstatement of the five-year sentence. Romero appealed that ruling, and this court granted certiorari.

Upon examination of the record, it appears likely that Petitioner has already been released, making this case moot. Generally, we decline to decide a matter that is moot. However, an exception to the mootness doctrine exists when the controversy is capable of repetition, yet evades review. Colo. Dep't of Con., Parole Div. ex rel. Miller v. Madison, 85 P.3d 542, 544 (2004). We are persuaded that, given the relatively short sentences involved and the length of the appeals process, this issue falls within the exception.

III. Statutory Interpretation

Romero asserts that the court of appeals erred in reinstating the five-year sentence because the increased sentence violates both the community corrections statute and double jeopardy. If Romero is correct that the court of appeals' interpretation does not comport with the statute, we need not reach the constitutional issue. Therefore, we begin our decision with the statutory analysis.

A. Standard of Review and Methods of Judicial Interpretation

At issue is the correct interpretation of subsection (1)(e) of the community corrections statute. The interpretation of a statute is a question of law, which is reviewed de novo. Hendricks v. People, 10 P.3d 1231, 1235 (Colo. 2000).

Our primary task when construing a statute is to give effect to the General Assembly's intent. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006). We determine legislative intent primarily from the plain language of the statute. Indus. Claim Appeals Office v. Ray, 145 P.3d 661, 668 (Colo. 2006). If the statutory language is clear and unambiguous, we do not engage in further statutory analysis. Klinger, 130 P.3d at 1031. However, if the statutory language is ambiguous, we may look to other rules of statutory construction or to the legislative history to discern the legislature's intent. Grant v. People, 48 P.3d 543, 546 (Colo. 2002).

B. Subsection (1)(e) Implies That a Sentence Increase Is Allowed

Subsection (1)(e) states, "If an offender is rejected after acceptance by a community corrections board or a community corrections program, the court may resentence the offender without any further hearing so long as the offender's sentence does not exceed the sentence which was originally imposed upon the offender." This provision applies when an offender has been sentenced to and accepted by a community corrections board or program and has subsequently been rejected from that board or program (when an offender is "rejected after acceptance"). The rejection may be due to the offender's conduct, such as when an offender violates a condition of treatment. An offender may also be rejected through no fault of his own, such as when a community corrections program is closed. Regardless of the reason for rejection, an offender who is terminated from community corrections is subject to resentencing by a district court. At issue is whether subsection (1)(e) absolutely forbids a sentencing court from increasing an offender's sentence beyond the original sentence to community corrections.

Romero argues that subsection (1)(e) prohibits a sentence increase under all circumstances. The People counter that a sentence increase is allowed when, as here, the offender has been afforded a hearing. We determine by the statute's plain language that, upon holding a hearing, a sentencing court may increase an offender's sentence under subsection (1)(e). We find that subsection (1)(e) implies that an offender's sentence may be increased, and that section 18-1.3-301(1)(h), C.R.S. (2007), makes that implication explicit.

The language of subsection (1)(e) permits a court to "resentence the offender without any further hearing so long as the offender's sentence does not exceed the [originally imposed] sentence." The plain language of the phrase "so long as" makes conditional the court's power to resentence the offender without any further hearing. In other words, the court has the power to omit a hearing only if it meets certain conditions (i.e., if the new sentence does not exceed the original sentence). Implicitly, then, the opposite must also be true; when those conditions are not met (i.e., when the new sentence does exceed the original sentence), the court must hold a hearing. Thus, the language of subsection (1)(e) implies that, under some circumstances, the sentencing court would have the authority to impose a longer sentence than the original sentence to community corrections. Put another way, the implication of the statute's plain language is that the court has the authority to increase an offender's sentence on the condition that the offender is afforded a hearing.

C. Subsection (1)(h) Makes Explicit the Implication of Permissibility in Subsection (1)(e)

Subsection (1)(h) makes explicit the implication in subsection (1)(e) that a sentence increase is permissible. Subsection (1)(h) states in its entirety, "The sentencing court shall have the authority to modify the sentence of an offender who has been directly sentenced to a community corrections program in the same manner as if the offender had been placed on probation." Under subsection (1)(h), therefore, this court must look to what sentence Romero could have been given had he violated a condition of probation rather than a condition of his community corrections sentence.

An examination of Colorado law indicates that had Romero been placed on probation, the sentencing court could have modified his sentence by increasing it to five years. We look to section 16-11-206(5), C.R.S. (2007), because it governs the resentencing of an offender who has violated a condition of probation. When an offender violates a condition of probation, a sentencing court may "impose any sentence . . . which might originally have been imposed. . . ." § 16-11-206(5). The sentencing court in this case could initially have imposed a sentence of up to twelve years in the presumptive range, or more in the aggravated range. § 18-1.3-401(1)(a)(V), C.R.S. (2007) (presumptive range sentence for class three felony ranges between four and twelve years). Therefore, had Romero violated a condition of probation rather than a condition of his sentence, the sentencing court could have increased his sentence to five years at community corrections. Because subsection (1)(h) by its plain language permits a sentencing court to sentence an offender as if he had been placed on probation, the five-year sentence is permissible.

The plain language of subsection (1)(h) permits the sentencing court to modify a sentence as if the offender had been placed on probation. Therefore, in reviewing a sentence change, we must look to the facts of the case at hand to determine which provision of the probation statute would apply had the offender been placed on probation, rather than being sentenced to community corrections. Here, the offender violated a condition of his sentence to community corrections. Therefore, we look to the section of the probation statute, section 16-11-206(5), that controls when an offender has violated a condition of probation.

We note that the sentencing court must provide a hearing to a probationer before revoking probation and subjecting the offender to resentencing. See § 16-11-206(5). Romero and his counsel were present at his hearing, and we are satisfied that the hearing would have met the due process requirements under section 16-11-206(5).

D. Result Is Reasonable and Consistent with Caselaw 1. Interpretation of Subsection (1)(e) Is Rational

This interpretation of subsection (1)(e) leads to a rational result. First, it is reasonable that the legislature would give courts flexibility to increase a sentence when the circumstances merit it. In fact, the legislative declaration to the community corrections statute states, "[I]t is the purpose of this article to establish and maintain community corrections programs which provide the courts . . . with more flexibility and a broader range of correctional options for offenders. . . ." § 17-27-101, C.R.S. (2007). Second, information about an offender's correctional needs may come to light during an offender's time at community corrections, justifying a sentencing change. Here, for instance, the trial court justified the imposition of a longer rehabilitation period by noting Romero's initial success at community corrections and his subsequent relapse to cocaine. Third, it is reasonable that the legislature would afford a hearing only to those who receive increased sentences, thereby providing those offenders with more procedural rights than an offender whose sentence is reduced or stays the same.

This provides an explanation for the distinction between subsection (1)(e) and section 18-1.3-301(1)(d), C.R.S. (2007). Under subsection (1)(d), the offender has not begun serving a sentence at community corrections when he is resentenced. Thus, under subsection (1)(d), the sentencing court normally would not have any more information at resentencing than it did at the initial sentencing.

Last, this reading is consistent with the distinct functions of subsections (1)(e) and (1)(h). By its own terms, subsection (1)(e) applies only when the sentencing court has not held a hearing. On the other hand, because a probationer is afforded a hearing before resentencing under section 16-11-206(5), subsection (1)(h) applies only where the offender has been afforded a hearing. See § 16-11-206(5) (court may revoke probation within five days after holding a hearing; if probation is revoked, court may resentence the offender). Therefore, subsections (1)(e) and (1)(h) work together to dictate permissible sentences for offenders who have been directly sentenced to community corrections.

2. Caselaw Supports Permitting a Sentence Increase

The position that a sentence increase is permitted is supported by the court of appeals' opinion in People v. Adams, 128 P.3d 260 (Colo.App. 2005). The facts in Adams are similar to the facts in this case. In Adams, the defendant was sentenced to community corrections, but she was rejected shortly after beginning to serve her sentence there. Id. at 261. After a hearing, she was resentenced under subsection (1)(e) in a manner that had the effect of increasing the amount of time she would be required to serve. Id. The Adams court noted that subsection (1)(e), by its own language, applies only when an offender has been resentenced "without any further hearing." Id. at 262. Therefore, the court held that subsection (1)(e) does not apply to offenders who have been afforded a hearing. Id. It stated that because the sentencing court had held a hearing for the defendant in that case, it "was not subject to the limitation contained in § 18-1.3-301(1)(e)." Id. Instead, the Adams court applied subsection (1)(h), holding that the sentencing court could resentence the defendant as if she had been placed on probation. Id. Therefore, the Adams court held that the district court was permitted to increase the offender's term at resentencing. Id.

In addition, the court of appeals' opinion in People v. McPherson, 53 P.3d 679 (Colo.App. 2001) supports this court's position. In that case, the court of appeals held that the defendant was not entitled to a hearing because the new sentence did not exceed the original sentence to community corrections. Id. at 683. In other words, the McPherson court would have permitted a trial court to increase a sentence under circumstances in which the offender was afforded a hearing.

Specifically, the resentencing court changed the Adams defendant's sentence from concurrent to consecutive, which is considered a sentence increase. See People v. Sandoval, 974 P.2d 1012, 1015 (Colo.App. 1998).

3. The Alternative Position Lacks Meaningful Support in Caselaw

Romero relies on prior caselaw to argue that his sentence increase was not allowed under subsection (1)(e). This caselaw is not convincing because the facts are distinguishable from the case at hand and the statutory interpretation in those cases lacks significant analysis. Additionally, sources supporting the People's position undermine any argument that a consensus exists within the court of appeals.

Romero primarily cites People v. Johnson, 987 P.2d 928 (Colo.App. 1999), rev'd, 13 P.3d 309 (Colo. 2000), and People v. Snare, 7 P.3d 1025 (Colo.App. 1999), cert. denied, No. 99SC937 (Colo. Aug. 21, 2000), to support his position. The facts of Johnson and Snare are similar. The defendants in both cases were initially sentenced to a term at community corrections and subsequently rejected from community corrections. Snare, 7 P.3d at 1027; Johnson, 987 P.2d at 930.

While the defendant in Snare did not receive a hearing, id., it is unclear whether the defendant in Johnson received a hearing. Both defendants were then resentenced to the Department of Corrections under the predecessor to subsection (1)(e). Snare, 7 P.3d at 1027; Johnson, 987 P.2d at 930. While the defendants' new sentences were for the same duration as their initial community corrections sentences, their new sentences additionally required each defendant to serve a term of parole that was not part of their original requirements. Snare, 7 P.3d at 1027; Johnson, 987 P.2d at 930. The court of appeals in Johnson held that the addition of a term of parole constituted a sentence increase and that the sentence increase violated the predecessor to subsection (1)(e). 987 P.2d at 931. The court of appeals in Snare disagreed with the Johnson court, holding that the defendant had not suffered an illegal sentence increase because the term of mandatory parole was not part of the defendant's new sentence. 7 P.3d at 1027. However, in dictum, the Snare court stated that a defendant's new sentence may not exceed the length of the original direct sentence to community corrections. Id. at 1028.

In 2003, the provision at issue was renumbered from section 17-27-105(1)(e), C.R.S. (2002) to section 18-1.3-301(1)(e). The language of section 17-27-105(1)(e) is identical to the current version of subsection (1)(e). Both Johnson and Snare interpret the meaning of the predecessor statute, section 17-27-105(1)(e).

Upon appeal to this court, we overruled Johnson in People v. Johnson, 13 P.3d 309 (Colo. 2000). We held that the addition of parole did not constitute a sentence increase. Id. at 314. Because there was no sentence increase, we did not reach the issue of whether such an increase would have violated the statute. Therefore, any discussion by this court in Johnson as to the permissibility of increasing a sentence under the predecessor to subsection (1)(e) is mere dicta.

Moreover, the facts of Johnson and Snare are distinguishable from the current case, and the court of appeals' statutory analysis is unhelpful. The facts are distinguishable because in Snare, the defendant did not receive a hearing, and in Johnson, there is no mention of whether the defendant received a hearing. As discussed above, the existence of a hearing is vital to our determination of whether a sentencing court may properly increase an offender's sentence under subsection (1)(e). Furthermore, the court of appeals' opinions in Johnson and Snare lack meaningful statutory analysis. In Johnson, the court of appeals made the conclusory statement that the provision prohibited imposition of a sentence that exceeds the length of the original sentence. 987 P.2d at 931. Similarly, the Snare court stated without explanation that the statute prohibited the re-sentencing court from exceeding the original term to community corrections. 7 P.3d at 1028. Because the Snare and Johnson courts' conclusions lack substantial analysis and explanation, they provide limited guidance to this court.

IV. Double Jeopardy

Romero also argues that the increase in his sentence violates the double jeopardy clauses of the United States and Colorado Constitutions. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. Under some circumstances, increasing a lawful sentence after a defendant has begun to serve it violates the double jeopardy protection against multiple punishments for the same offense. People v. Chavez, 32 P.3d 613, 614 (Colo.App. 2001) (citing People v. Shepard, 989 P.2d 183 (Colo.App. 1999)). However, double jeopardy does not bar the imposition of an increased sentence if the defendant lacked a legitimate expectation of finality in the sentence. See United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (asserting that the argument that a trial judge should be prohibited from increasing an offender's sentence once an offender has begun serving it has no force where there can be no expectation of finality in the original sentence); Adams, 128 P.3d at 261 (stating that a punishment may be increased where offender has no legitimate expectation of finality in the original sentence).

In this case, Romero lacked a legitimate expectation of finality in his four-year sentence. As discussed above, the legislature provided in the community corrections statute that certain offenders' sentences may be increased. Because the legislature provided for the possibility of a sentence increase under Romero's circumstances, Romero lacked a legitimate expectation of finality in his sentence. In so finding, we agree with a long line of decisions in which the court of appeals has held that there is no expectation of finality in community corrections sentences. See, e.g., Adams, 128 P.3d at 261; People v. Rodriguez, 55 P.3d 173, 174 (Colo.App. 2002); McPherson, 53 P.3d at 681; Chavez, 32 P.3d at 615. Thus, we hold that the sentence increase did not violate double jeopardy.

V. Conclusion

In sum, we hold that subsection (1)(e) gives the sentencing court the authority to increase an offender's sentence on the condition that the offender has been afforded a hearing. Additionally, we hold that imposing a sentence increase under subsection (1)(e) does not violate double jeopardy.

We affirm the court of appeals.

Justice MARTINEZ dissents, Chief Justice MULLARKEY and Justice BENDER join in the dissent.