Martin v. People

JUSTICE MARTINEZ delivered the Opinion of the Court.

[77] JUSTICE COATS, dissenting:

[78] The majority holds that in 1993, when the General Assembly changed the sentencing scheme to mandate that felony sentences include a period of parole supervision extending as much as five years beyond the term of incarceration imposed by the court, it intended to exempt sex offenders, despite expressly naming them and singling them out for the longest possible period of "mandatory parole." The majority reasons that the General Assembly's intent to exempt sex offenders is evident from its failure to simultaneously amend a fourteen-year-old statute, in a title of the revised code devoted to the powers and duties of the State Board of Parole, specifying that parole may not exceed the maximum sentence imposed by the court.

[79] While legislative intent may be difficult to discern from the seemingly enigmatic series of amendments to the sentencing and parole scheme in this state, and although the available legislative history undeniably evidences a lack of both understanding and agreement about the effect of a number of those amendments, I find nothing in or since the 1993 return to a kind of mandatory parole to suggest any inclination on the part of the General Assembly to release any felony sex offenders into the community without first subjecting them to the discretion of the parole board. I consider this possibility to be the single most glaring consequence of the majority's construction. Because I believe that a correct application of the various aids to statutory construction, developed precisely for the purpose of deriving legislative intent from ambiguous and conflicting provisions, leads to the conclusion that the 1993 mandatory parole provisions do not conflict with existing provisions and would prevail in any event, I respectfully dissent. [80] In 1993, the General Assembly amended the already complex felony sentencing statute, §18-1-105, 8B C.R.S. (1993 Supp.), by adding to felony sentences a period of parole, the service of which could be compelled after and in addition to the term of years imposed by the court, rather than merely in place of a portion of it. ch. 322, sec. 7, §18-1-105, 1993 Colo. Sess. Laws 1981, 1981-84; ,986 P.2d 951,963(Colo. 1999). This was done, at least in part, to insure the post-incarceration supervision of offenders who were not offered, or chose not to accept, parole release prior to the completion of their entire sentence to incarceration. Page 865Committee, 59th General Assembly, 1st Reg. Sess. (Feb. 16, 1993). The length of the additional period of parole — from two to five years — was generally set according to the classification of the particular offense, although the parole board retained the discretion to shorten the term based on the board's assessment of the rehabilitative progress of the individual offender. §18-1-105(1)(a)(V)(A) (B), 6 C.R.S. (2000). With regard to felony offenses of "unlawful sexual behavior" and "incest," however, the statutory parole term permitted over and above the offender's sentence to confinement was expressly set at the full five years, regardless of the classification of the specific offense. §18-1-105(1)(a)(V)(C).

[81] Until this significant policy shift in 1993, parole supervision in Colorado had (except for a short period beginning in 1979) consisted of nothing more than an alternate method of serving a sentence to incarceration. ,986 P.2d at 958n. 3. After an offender became eligible, it was within the discretion of the parole board to decide whether, when, and for how much of the remainder of his prison sentence to release him to parole supervision. §17-2-201(5)(a), 8 C.R.S. (1978). The incidents and parameters of parole were generally treated in title 17 of the revised statutes, entitled "Corrections" (formerly "Parole and Probation"), rather than in title 18, the "Criminal Code." In 1977, with the repeal and reenactment of title 17, the statutory provisions for the creation and terms of the State Board of Parole and its general powers and duties were recodified as section17-2-201. ch. 223, sec. 10, §17-2-201, 1977 Colo. Sess. Laws 903, 911-14. Subsection17-2-201(5)(a) reflected the board's discretion to grant or refuse to grant parole and to set the conditions and terms of parole, not to exceed the maximum sentence imposed by the court.

[82] In 1979, the General Assembly radically changed the state's felony sentencing scheme, creating "presumptive ranges of penalties" from which a specific term of years was to be imposed by the court, and mandating the release of all but limited classes of felony offenders for a one-year period of parole supervision, as soon as they accumulated the requisite "good" and "earned" time credits. ch. 157, sec. 10, §16-11-310, 1979 Colo. Sess. Laws 666; ch. 157, sec. 16, §18-1-105, 1979 Colo. Sess. Laws 669, 669-70. Since parole release for class 2 through 5 felony offenders became mandatory as soon as they were eligible, the parole board lost the discretion to grant or deny their parole. Although the board retained the discretion to set the conditions of parole and discharge an offender from parole when it considered him sufficiently rehabilitated, the length of parole ceased to be related to the unserved remainder of the sentence to confinement. Even upon revocation of parole for a violation, the offender's reincarceration and reparole were limited only by the requirement that together they not exceed one year. ch. 157, sec. 14, §17-22.5-103, 1979 Colo. Sess. Laws 667, 668.

[83] As a consequence of the 1979, presumptive sentencing scheme and its one-year mandatory parole requirement, subsection17-2-201(5)(a) was amended to reflect its greatly reduced applicability. The discretion of the parole board described in subsection (5)(a) was expressly limited to persons convicted of felonies committed before July 1, 1979; those convicted of misdemeanors, to which the one-year parole provision did not apply; those sentenced as habitual criminals to mandatory terms of twenty-five to fifty years; those receiving mandatory life sentences, who at that time became eligible for parole after serving twenty calendar years; and those convicted of the specific sex offenses enumerated in the Colorado Sex Offenders Act of 1968, who could be sentenced by a court that acquired jurisdiction under the provisions of the Act to an indeterminate term of one day to life.¹ ch. 157, sec. 12, §17-2-201(5)(a), 1979 Colo. Sess. Laws 667, 667.Page 866

[84] Although the parole scheme was radically amended again in 1985, returning discretion to the parole board to grant or refuse to grant parole for all class 2, 3, 4 and 5 felony offenders, ch. 145, sec. 4, §17-22.5-303(6), 1985 Colo. Sess. Laws 648, 649, and was substantially amended yet a third time in 1990, abolishing the concept of good time altogether and substantially changing the requirements for parole eligibility and duration and the consequences of parole revocation, ch. 120, sec. 19, §17-22.5-401-405, 1990 Colo. Sess. Laws 946, 947-52, subsection 201(5)(a) was not amended to reflect any of these changes.²When the General Assembly added subsection18-1-105(1)(a)(V) in 1993, once again subjecting offenders to periods of parole supervision that were neither related to nor limited by the unserved remainder of the term of confinement imposed by the court, section17-2-201(5)(a) had not been amended since 1979.³By 1993 it had come to reflect a mere fraction of the parole board's actual discretion to grant or refuse to grant parole and by its own terms applied only to those offenders who had never been subject to the 1979 mandatory parole provision and over whom the board had never lost the discretion to grant or deny parole. [85] By subjecting a class of sex offenders covered by subsection17-2-201(5)(a) to the possibility of parole supervision beyond the term of confinement imposed upon them by the court, the 1993 amendments raised the question whether the General Assembly, rather than again simply extending additional discretion to the parole board without reference to subsection 201(5)(a), had in fact given the board discretion to do something that subsection 201(5)(a) expressly prohibited. Unlike the 1979 mandatory parole provision, the 1993 provision does not require the release of an offender when he becomes eligible and therefore does not suggest any conflict with the discretion of the parole board to grant or refuse to grant parole. Similarly, although section18-1-105(1)(a)(V)(C) sets the mandatory sentence to parole for sex offenders at five years, the parole board retains the discretion even under that provision to determine what portion of the term the offender must actually serve. §18-1-105(1)(a)(V)(B). Rather, it is subsection17-2-201(5)(a)'s prohibition against exceeding the lesser of the maximum sentence imposed by the court or five years with which the majority finds a conflict.

[86] Statutes should be construed to give effect to the intent of the General Assembly. ,993 P.2d 493,500(Colo. 2000). In ascertaining that intent, the terms used in statutes should be given their plain meaning,Page 867but when terms are susceptible of more than one meaning, other aids may be relied upon to discover legislative intent. Also it is presumed that the legislature intended for statutes dealing with the same subject to form a consistent whole, and therefore they should be construed harmoniously where possible. .,856 P.2d 844,849(Colo. 1993).

[87] The majority holds that the words "maximum sentence" as used in subsection 201(5)(a) can only refer to the term of incarceration imposed by the sentencing court, and therefore it finds a parole term that could extend beyond the unserved remainder of that term of incarceration to be in conflict with subsection 201(5)(a).⁴The plain meaning of the term "maximum sentence," however, is not so limited. Rather than the maximum prison sentence or period of incarceration, confinement, or institutionalization of any kind, "maximum sentence," on its face, refers to the largest or longest penalty to which the offender is sentenced.⁵Even though not served in an institution, parole is unquestionably an infringement on an offender's liberty and therefore a part of his penalty. ,6 P.3d 774,779n. 10 (Colo. 2000). Since 1993, when the General Assembly once again changed parole from an alternate method of serving a sentence of confinement into a separate and additional component of the overall sentence, the offender's sentence has included not only a term of years for which he can be confined but also an additional period of parole supervision during which his liberty can be further limited.

[88] In a closely related context, I believe this court has already recognized as much by construing the "possible penalty or penalties" of which a defendant must be advised before acceptance of his guilty plea to include not only the term of incarceration that may be imposed but also the additional period of parole mandated by the 1993 amendments. ,986 P.2d 943,948(Colo. 1999) ("[A] plea agreement calling for a sentence of `five years, D.O.C.' should be understood as envisioning a sentence that consists of both a five year term in a Department of Corrections facility, and any additional period of mandatory parole demanded by section18-1-105(1)(a)(V)(A)."); ,986 P.2d at 959,963(noting that "mandatory parole is a statutorily prescribed sentence component that attaches automatically to any sentence involving imprisonment" and a proper advisement must indicate that a "parole term occurs after, in addition to, or distinct from any period of imprisonment"); . ,738 P.2d 20,22(Colo.App. 1986) (holding that under the 1979 presumptive sentencing provision, a five-year term of probation did not exceed the "maximum authorized sentence" — four years of confinement plus one-year of mandatory parole).⁶Page 868

[89] The precise content of the term "maximum sentence" has varied greatly since 1969 when the term appeared in the statutes to limit the duration of parole.⁷ ch. 111, sec. 7, § 39-18-1(4), 1969 Colo. Sess. Laws 289, 290. Unlike today, the term initially applied to a sentencing scheme dating back to 1899 under which the sentence imposed by the court actually included both a "minimum" and "maximum" sentence. ch. 104, sec. 1, 1899 Colo. Sess. Laws 233, 233. Since 1979, however, the sentencing scheme has required the imposition of a specific term of years, somewhere between one-half of the minimum and twice the maximum presumptive sentence to incarceration. §18-1-105(6), 8 C.R.S. (1979 Supp.). The maximum possible sentences to incarceration have changed over this period, in some cases literally doubling, and at times (at least between 1979 and 1981 and again since 1993), the total sentence for most felonies has included an additional specified period of parole. ., §18-1-105(1)(a), 8 C.R.S. (1979 Supp.); §18-1-105(1)(a)(V)(A), 8B C.R.S. (1993 Supp.). As with the term "possible penalty or penalties," the content of the term "maximum sentence" necessarily changes as the component parts of a felony "sentence" change.

[90] Acknowledging the presumption that the legislature did not intend to adopt conflicting provisions governing the same subject, maj. op. at 14, and the corresponding duty of courts to construe a statutory scheme to give harmonious and sensible effect to all its parts, ., the majority nevertheless finds an irreconcilable conflict by concluding that the word "sentence" as used in section17-2-201(5)(a) is susceptible of no other meaning than "incarceration." . at 39. Unlike the majority, I do not find evidence that either this court or the General Assembly has previously given the term such a narrow meaning. Neither the term "sentence," nor "maximum sentence," is specifically defined as a term of art in the statute. In the Criminal Code generally, the term has been consistently used synonymously with "penalty" or "penalties which are authorized upon conviction." §18-1-105(1)(a)(V)(A).⁸Within its provisions for "Imposition of Sentence," Title 16, Art. 11, the Criminal Procedure Code treats "Sentences to Imprisonment" as but one alternative sentence, Part 3, along with other sentencing alternatives like "Restitution," Part 1, "Probation," Part 2, "Fines," Part 5, and "Community Service," Part 7.Page 869

[91] Similarly, I find no indication that this court has defined "sentence" or "maximum sentence" in this context, except to recognize that during periods in which the sentencing scheme did not permit any infringement upon a convicted felon's liberty beyond his maximum term of incarceration, his maximum sentence equaled his maximum term of incarceration. ., ,868 P.2d 375(Colo. 1994) (construing term as applied to indeterminate sentence from 1972, which included both a minimum and maximum sentence to incarceration, marking the point at which a defendant became eligible for parole and the point beyond which his parole could not extend). Our failure to previously consider a parole term in assessing the length of a "maximum sentence" within the meaning of section17-2-201(5)(a) does not reflect any decision to limit the meaning of the term to incarceration regardless of the nature of the sentencing scheme but merely reflects the fact that the legislature had not previously defined sentences over which the Parole Board had discretion to include a period of parole extending beyond the maximum term of incarceration. Where the legislature has chosen to limit the discretion of the Parole Board in relation to the length of a sentence rather than by imposing a specific time limit, it necessarily extends the limits of parole board discretion by extending the length of the overall sentence.

[92] Finally, giving the term "maximum sentence" its plain meaning — the longest sentence that the defendant can be made to serve in no way changes the incidents of parole or permits any longer parole term than is prescribed by section18-1-105(1)(a)(V)(C).⁹The mandatory parole statute sets the term of parole for sex offenders at five years. While that statute represents a substantial policy change from the existing scheme by permitting parole supervision even of an offender who serves his full sentence to incarceration, it does not alter parole eligibility requirements, which still permit many offenders to be paroled after serving less than half of their sentences to incarceration. Similarly, although the mandatory parole provisions continue to permit the parole board to discharge a defendant whenever it no longer considers parole supervision necessary, they do not permit the expansion of the statutorily prescribed term, and therefore no matter how much time remains on an offender's sentence to incarceration when he is released on parole, he may not be made to serve more than five years of parole for his initial offense.

[93] Even if the plain meaning of the term did not compel an understanding including the additional period of parole, I believe it would at least be a permissible construction to avoid conflict with the newer, mandatory parole requirement for felony sex offenders and harmonize the sentencing and parole board statutes. Whether or not the General Assembly actually considered the meaning of the term "maximum sentence" or the way in which that concept limited the Parole Board's discretion relative to the offenses delineated in section17-2-201(5)(a), it clearly changed the nature of the sentencing scheme with regard to parole supervision and it expressly included sex offenses within those changes. If the words of the statutes permit a reconciling construction that furthers the intent of the legislature, that construction should be adopted. [94] In any event, I do not agree that sex offenders would be exempt from mandatory parole even if the statutes in question were actually irreconcilable because in that case I believe the 1993 sentencing statute rather than the 1979 parole board statute would prevail. When statutes dealing with the same subject simply cannot be harmonized, a special provision prevails as an exception to aPage 870general one, precisely because it is a clearer indication of the legislative intent with regard to the specific application. §2-4-205; .,17 P.3d 159,163(Colo. 2001). I believe that the 1993 sentencing provision is related to the 1979 parole board provision as a special to a general statute. The 1993 sentencing statute singles out sex offenders for special treatment and expressly designates the applicable term of parole supervision, prohibiting any offender from avoiding that supervision, even by serving his entire sentence of confinement. By contrast, the general statute describing the powers and duties of the parole board deals with felony sex offenders only within the broader category of all offenders to whom the 1979, one-year mandatory parole requirement did not apply, and it addresses the length of parole merely by imposing a broad limitation on the board's discretion to supervise offenders for more than five years or after completion of their sentences.

[95] Furthermore, where conflicting statutes are not related as general and specific statutes, the statute with the effective date that is latest in time prevails, §2-4-206, and even if the newer statute can be characterized as the more general, it still prevails if the manifest intent of the legislature is that it do so. §2-4-205. The 1993 revision of sex offender sentences in section18-1-105(1)(a)(V)(C) is the later by some fourteen years, and even if it were the more general of the two, it expresses the "manifest intent" of the legislature that sex offenders be subject to the supervision of the parole board for as much as five years, whether or not that period extends beyond the time they could have been incarcerated. In light of its clarity, specificity, and substantial change in sentencing policy or philosophy, subsection18-1-105(1)(a)(V)(C) must be understood to evidence a legislative intent to modify, create an exception to, or flatly overrule, any existing limitation on the parole board's discretion, that might conflict with it.

[96] The majority does not directly address the intent of the legislature in adopting the new sentencing provision for sex offenders in subsection18-1-105(1)(a)(V)(C) but chooses instead to compare subsection17-2-201(5)(a) to the 1990 parole scheme, as amended in 1993 to account for the new mandatory parole sentencing requirements. ch. 322, sec. 4, §17-22.5-403, 1993 Colo. Sess. Laws 1975, 1978-80. Whether or not I were to agree, I do not find it meaningful to characterize subsection17-2-201(5)(a) as a more specific parole provision than section17-22.5-403because the five-year mandatory parole requirement does not derive from section17-22.5-403. It is expressly made a separate component of the sentence that must be imposed on felony sex offenders by subsection18-1-105(1)(a)(V)(C). In addition to disagreeing with the majority's premise that the parole provision at section 403(7) acts as "a threshold provision through which convicted felons must pass before arriving at the sentencing schedules of section18-1-105(1)(a)(V)," maj. op. at 44, I know of no authority for the suggestion that a clear, specific legislative mandate loses its effect as an expression of legislative intent by also being incorporated by reference in a more general provision. [97] In 1996 the General Assembly amended section17-2-201by adopting a new subsection (5)(a.5) and correspondingly limiting subsection (5)(a). ch. 280, sec. 6, §17-2-201, 1996 Colo. Sess. Laws 1584, 1584-85. The majority characterizes this amendment as confirmation that the General Assembly never intended for sex offenders to be subject to the 1993 mandatory parole provisions. Rather than perpetuating a limitation on sex offender supervision, when the amendments to subsection 201(5) are considered in the full context of the 1996 amendments of which they were but a small part, I think they evidence a clear legislative intent to insure that section17-2-201(5) not have a limiting effect on the legislature's desire for increased supervision of sex offenders. In any event when "maximum sentence" is construed to include both confinement and the additional parole required by statute, the amended version of subsection17-2-201(5)(a) is no more in conflict with subsection18-1-105(1)(a)(V)(C) than was the unamended version.

[98] These amendments were part of a larger bill (H.B. 96-1181), generally concerning offensesPage 871involving unlawful sexual behavior, which contained twenty-two separate sections, dealing with, among other things, the admission of evidence of other sexual offenses, genetic testing of sex offenders, registration of sex offenders, juvenile sex offenders, and the confidentiality and sealing of records of sex offenders. ch. 280, secs. 1-22, 1996 Colo. Sess. Laws 1578-1594. In conjunction with requiring sex offender registration, the bill defined "unlawful sexual behavior" to include a far broader range of offenses than either the Sex Offender's Act of 1968 or subsection18-1-105(1)(a)(V)(C). Ch. 280, sec. 5, §18-3-412.5(1), 1996 Colo. Sess. Laws 1581, 1581-83. An undeniable effect of the bill was to impose a variety of additional burdens of disclosure and supervision on a larger class of sex offenders. By its own terms, H.B. 96-1181 took effect on July 1, 1996 and applied only to offenses committed on or after that date. Ch. 280, sec. 21, 1996 Colo. Sess. Laws 1589, 1589-90.

[99] For crimes committed on or after July 1, 1996, the new subsection17-2-201(5)(a.5) did not include the five-year limitation of subsection (5)(a) and instead permitted parole supervision of persons convicted of the newly defined category of unlawful sexual behavior up to the maximum sentence imposed by the court. Ch. 280, sec. 6, §17-2-201, 1996 Colo. Sess. Laws 1584, 1584-85. That portion of subsection (5)(a) referring to sex offenses as defined in the Colorado Sex Offenders Act of 1968 was correspondingly amended to refer instead to offenses within the new category of unlawful sexual behavior committed prior to July 1, 1996. . The addition of the new subsection expands both the range of sex offenders and the extent of the board's discretion to supervise sex offenders for crimes committed after 1996. Amending the existing subsection by reference to a date beyond which it is no longer applicable follows a formula used by the legislature elsewhere for superceding a parole provision rather than repealing and completely eliminating it from the revised code.¹⁰

[100] Considered in light of the other provisions of the bill, the addition of subsection (a.5) superceding a portion of subsection (a), and the express, prospective application of the bill as a whole, the amendatory language in subsection (a) was clearly intended to restrict subsection (5)(a) from applying to sex offenses in the future rather than to revive it or reverse the effect of earlier exceptions created by implication. Rather than confirming a legislative intent that subsection18-1-105(1)(a)(V)(C) never take effect and remain a nullity from its inception, I believe the legislature's amendment of the parole board statute three years later (without reference to the mandatory parole provision) is more reasonably understood as evidence that the legislature did not perceive any conflict between the two statutes. [101] I therefore do not agree with the majority's conclusion that section17-2-201(5)(a) should prevail in the event of a conflict, but perhaps more importantly I do not think it is necessary. If anything is clear from the convoluted history of Colorado's sentencing and parole scheme, it is that in 1993 the legislature intended to prevent felony offenders, and especially sex offenders, from avoiding parole supervision that the board considered necessary, by first completing or substantially completing their sentences to incarceration. Whether or not anyone involved in the enactment of the new mandatory parole scheme was even aware of a limitation on parole board discretion in title 17, the 1993 mandatory parole provision for sex offenders is easily harmonized with that limitation by giving the term "maximum sentence" its plain meaning. Were the two statutes not soPage 872easily harmonized, however, I would nevertheless be reluctant to find sex offenders exempt from mandatory parole because the consequences of any particular construction should be given due consideration in determining legislative intent, §2-4-203, and I believe the statutes are susceptible of a construction that furthers the legislative intent.

[102] Because I believe accepted aids to statutory construction, including those specifically prescribed by the legislature for the resolution of ambiguities in its enactments, lead to the conclusion that the legislature intended offenders like the defendant, convicted of sex offenses committed between July 1, 1993 and July 1, 1996, to be subject to the supervision of the parole board according to the provisions of section18-1-105(1)(a)(V), I would affirm the decision of the court of appeals. I therefore respectfully dissent.

[103] JUSTICE KOURLIS and JUSTICE RICE join in the dissent.Page 1