GODBOLD v. DIST. CT

JUSTICE ERICKSON delivered the opinion of the Court.

Robert Earl Godbold petitioned for a writ of mandamus to compel the district court to grant him credit for 174 days presentence confinement time. Godbold claims that the respondent court's failure to credit his sentence with time spent in presentence confinement violated his constitutional guarantee of equal protection of the laws. He also contends that the equal protection guarantee requires that he be afforded retroactive relief under the provisions of section 16-11-306, C.R.S. 1973 (1979 Supp.). We issued a rule to show cause and now discharge the rule.

Godbold was arrested on June 20, 1979, and charged with attempted felony theft and first-degree assault. Shortly thereafter, Godbold was determined to be indigent. The Public Defender's office was appointed to represent him and bail was set in the amount of $5,000. Godbold did not post bail and spent the 174-day period from his arrest until sentence was imposed in confinement.

Sections 18-2-101 and 18-4-401, C.R.S. 1973 (1978 Repl. Vol. 8).

Section 18-3-202, C.R.S. 1973 (1978 Repl. Vol. 8).

Godbold did not file a request or motion for modification or reduction of bail.

In a trial to the court, Godbold was convicted of attempted felony theft and third-degree assault. A sentencing hearing was scheduled for November 13, 1979, but was postponed so that a competency examination could be conducted. The court found that Godbold was competent to proceed and on December 11, 1979, sentenced him to a term of two to four years for attempted felony theft and a concurrent term of twelve months for third-degree assault. Pursuant to section 16-11-306, C.R.S. 1973 (1978 Repl. Vol. 8), the sentencing judge stated that he had considered Godbold's presentence confinement, but based upon reports of his misconduct in the jail, denied him credit for the time he spent in presentence confinement.

Sections 18-2-101 and 18-4-401, C.R.S. 1973 (1978 Repl. Vol. 8).

Section 18-3-204, C.R.S. (1978 Repl. Vol. 8).

The competency examination was ordered pursuant to section 16-8-111, C.R.S. 1973 (1978 Repl. Vol. 8).

Prior to July 1, 1979, section 16-11-306, C.R.S. 1973 (1978 Repl. Vol. 8), provided: "(1) In sentencing a defendant to imprisonment, the sentencing judge shall take into consideration that part of any presentence confinement which the defendant has undergone with respect to the transaction for which he is to be sentenced. "(2) The judge shall state in pronouncing sentence, and the judgment shall recite, that such consideration has been given, but no sentence shall be set aside or modified on review because of alleged failure to give such consideration unless the record clearly shows that the judge did not, in fact, consider the presentence confinement when imposing sentence. "(3) If the maximum sentence imposed is longer than the statutory maximum for the offense less the amount of allowable presentence confinement, it shall be presumed that the judge did not consider the presentence confinement. "(4) The provisions of this section shall apply to all defendants, whether sentenced before or after April 11, 1974." The general assembly has amended section 16-11-306, C.R.S. 1973 (1979 Supp.) to provide credit for presentence confinement: "A person who is confined prior to the imposition of sentence is entitled to credit against the term of his sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include such finding in the mittimus. Such period of confinement shall be deducted from the sentence by the department of corrections." Colo. Sess. Laws 1979, Ch. 157, 16-11-306 at 665. That section, however, does not apply to offenses committed prior to July 1, 1979.

The sentencing judge stated: "The Court will not grant credit for time served in this case because Mr. Godbold's behavior in the jail, which was admitted to the doctor . . . Mr. Godbold [at the jail] stopped up the toilet, set some fires, he says maybe three or four fires, also assaulted an officer by throwing water on the officer. I feel that granting credit for time served is discretionary with the Court, and those are the reasons I am not going to grant it."

The respondent court subsequently denied Godbold's motion for the correction of sentence filed under Crim. P. 35(c)(2)(I) (1979 Supp.), which alleged that the court's refusal to grant him credit for his presentence confinement violated his right to equal protection of the laws. U.S. Const. Amend. XIV, Colo. Const. Art. II, Sec. 25. Godbold then filed an original proceeding in this Court.

Godbold asserts two reasons to support his request for a writ of mandamus. First, he claims that equal protection of the laws requires that a court grant an indigent defendant credit for presentence confinement. However, there is nothing in the record before us to indicate that Godbold was unable to make bail due to indigency. Second, he asserts that equal protection of the laws requires that section 16-11-306, C.R.S. 1973 (1979 Supp.) be applied retroactively to his sentence.

In Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), the United States Supreme Court stated: "The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty." Id. at 4. In those cases where the facts warrant that bail be set in a high amount in order to insure the defendant's presence at trial, it cannot be said that indigency is the sole reason for presentence confinement. In those cases, the amount of bail may be such that even a "man of means" cannot or will not post the required bond.

I.

Godbold urges us to overrule a long line of cases which have held that there is no constitutional right to credit for presentence confinement. See, e.g. Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).

He argues that the United States Supreme Court's decisions in Tate v. Short 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) require reconsideration of our previous opinions and that we should follow the growing trend which has recognized a constitutional right to credit for presentence confinement. We decline to do so and reaffirm People v. Jones, supra, and its progeny.

In Tate v. Short, supra, the United States Supreme Court held that it was a denial of equal protection of the laws to impose a fine as a sentence and then to automatically convert it into a jail term solely because the defendant is indigent and cannot pay the fine in full.

In Williams v. Illinois, supra, the United States Supreme Court concluded that an indigent criminal defendant could not be imprisoned for default in the payment of a fine imposed in conjunction with a sentence beyond the maximum term of imprisonment authorized by the statute. We note that here, Godbold was sentenced to a term of two to four years for attempted felony theft and a concurrent term of twelve months for third-degree assault. The crime of attempt to commit felony theft as charged is a class 5 felony and on the date of the offense carried an indeterminate penalty of one day to five years. Section 18-1-105(1), C.R.S. 1973 (1978 Repl. Vol. 8). Because Godbold had been previously convicted of a felony within five years prior to the date of the attempted felony theft, he was not eligible for an indeterminate sentence. The authorized minimum sentence for a class 5 felony in such a case was not less than one year. Section 16-11-101(1)(d), C.R.S. 1973 (1978 Repl. Vol. 8). The crime of assault in the third-degree is a class 1 misdemeanor and was punishable by a sentence of six months to twenty-four months. Section 18-1-106, C.R.S. 1973 (1978 Repl. Vol. 8). Considering the statutory maximum imprisonment authorized by the statutes regulating the substantive offenses along with the 174 days that Godbold spent in presentence confinement, we note that the total sentence was less than the maximum imprisonment authorized by both the attempted felony theft and third-degree assault statutes.

Here, the record shows that the sentencing judge considered the presentence confinement and determined that credit should not be given. Under the provisions of section 16-11-306, C.R.S. 1973 (1978 Repl. Vol. 8), the judge was not required to grant credit for presentence confinement.

See n. 8, supra.

II.

Godbold argues that equal protection requires that he be afforded retroactive relief under section 16-11-306, C.R.S. 1973 (1979 Supp.), which provides that a person who is confined prior to the imposition of sentence is entitled to credit against the term of his sentence for the entire period of such confinement. We disagree.

See n. 7, supra.

We have concluded that there is no constitutional right to credit for presentence confinement. See People v. Jones, supra. Additionally, section 16-11-306, C.R.S. 1973 (1979 Supp.) provides that the act applies to offenses committed on or after July 1, 1979, and notwithstanding any other provision of law or court rule, does not apply to offenses committed prior to that date. See People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980).

In People v. Johnson, 185 Colo. 285, 523 P.2d 1403 (1974), we addressed the issue of whether Johnson was entitled to be sentenced under the amended provisions of C.R.S. 1963, 39-11-306, which required the sentencing judge to take into consideration a defendant's presentence confinement. C.R.S. 1963, 39-11-306, provided that this section was to be applied retroactively. Because no constitutional or statutory requirement dictated that the sentencing judge consider the presentence confinement at the time that Johnson was sentenced, we concluded that:

Now section 16-11-306, C.R.S. 1973 (1978 Repl. Vol. 8).

"To the extent that the statute and its amendment authorizes a court to alter or reduce, after a final conviction, a defendant's sentence to reflect credit for presentence confinement, when such was not constitutionally or statutorily required at the time sentence was imposed, it falls within the principles announced in People v. Herrera, and is an unconstitutional infringement on the executive power of commutation." Id. at 287-8.

People v. Johnson, supra, is dispositive of the issue before us. Not only does section 16-11-306, C.R.S. 1973 (1979 Supp.) provide that its application is not retroactive, but the principle of Johnson mandates that it cannot be applied retroactively.

Accordingly, we discharge the rule to show cause.

JUSTICE DUBOFSKY and JUSTICE QUINN dissent.