COLORADO COURT OF APPEALS                                       2016COA98


Court of Appeals No. 14CA1549
Pueblo County District Court No. 12CR83
Honorable Victor I. Reyes, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tony James Reyes,

Defendant-Appellant.


                            SENTENCE AFFIRMED

                                  Division VII
                       Opinion by JUDGE LICHTENSTEIN
                        J. Jones and Dunn, JJ., concur

                          Announced June 30, 2016


Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellan
¶1    Defendant, Tony James Reyes, asks us to decide whether a

 district court can set a resentencing hearing sua sponte and impose

 an increased sentence after an offender is terminated from a

 community corrections program. Because we conclude that it can,

 we affirm his sentence.

                           I.   Background

¶2    Reyes was charged with second degree burglary, a class 3

 felony, and misdemeanor theft. Pursuant to his plea agreement, he

 pleaded guilty to the theft count and received a two-year deferred

 sentence for second degree burglary. The district court imposed a

 two-year probationary sentence, with a suspended jail term.

¶3    Near the end of those two years, his probation officer filed a

 revocation complaint. In a new plea agreement, Reyes admitted to

 violating the terms of his probation and agreed to a sentence with a

 cap of eight years in the custody of the Department of Corrections.

 The district court resentenced him to four years in community

 corrections.

¶4    Reyes was subsequently terminated from the community

 corrections program for violating its policies. Reyes appeared before


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 a different judge for resentencing. The judge questioned whether

 the original four-year community corrections sentence imposed by

 the previous judge was sufficient, and noted that, by statute, the

 court could set a resentencing hearing if it wanted to impose a

 higher sentence to the custody of the Department of Corrections.

¶5    Defense counsel objected, asserting that the court was not

 statutorily authorized to set a hearing sua sponte, and also argued

 that the court was treating his client differently from “hundreds of

 other defendants.” The court disagreed, and after holding a

 resentencing hearing it imposed a five-year sentence in the custody

 of the Department of Corrections.

¶6    Reyes raises four contentions on appeal. First, he argues that

 the court lacked statutory authority under the community

 corrections statute to set a resentencing hearing sua sponte.

 Second, he contends that the court violated separation of powers

 principles when it set the hearing despite the fact that the

 prosecution never requested one. Third, he asserts that the court

 violated his right to equal protection when it singled him out for a

 sua sponte resentencing hearing just because it disagreed with the

 previous judge’s sentence. Finally, he claims the court abused its

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 discretion when it set a resentencing hearing for that same reason.

 We discuss and reject each contention in turn.

 II.   Court’s Statutory Authority to Set Resentencing Hearing Sua
                                  Sponte

¶7     Reyes contends that the court lacked the statutory authority

 to set a resentencing hearing without a request from one of the

 parties. We disagree with Reyes’s contention because the statutes

 governing the resentencing of an offender after a termination from

 community corrections do not condition the court’s authority to set

 a hearing on a request from one of the parties, and we will not read

 such a requirement into them.

               A. Standard of Review and Relevant Law

¶8     Statutory interpretation is a question of law that we review de

 novo. Romero v. People, 179 P.3d 984, 986 (Colo. 2007). Our main

 goal when interpreting any statute is to give effect to the General

 Assembly’s intent. Id. To do so, we start by looking at the statute’s

 plain language. Id. “When a statute is part of a complex of

 sentencing prescriptions, the entire scheme should be construed to

 give consistent, harmonious, and sensible effect to all its parts.”




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  People in Interest of J.S.R., 2014 COA 98, ¶ 13 (quoting A.S. v.

  People, 2013 CO 63, ¶ 11).

¶9     Section 18-1.3-301, C.R.S. 2015, governs the district court’s

  authority over community corrections sentences. Subsection (1)(e)

  addresses the court’s authority to resentence an offender who has

  been terminated from a community corrections program. It

  provides that, if an offender is rejected from a community

  corrections program after he or she was initially accepted, “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.” § 18-1.3-301(1)(e).

¶ 10   In Romero, our supreme court was asked to resolve whether

  this language authorized a court to increase an offender’s sentence

  if it held a resentencing hearing, or whether the language simply

  authorized a court to convert a community corrections sentence to

  an equivalent (or shorter) Department of Corrections sentence

  without having to hold a hearing. The Romero court construed the

  plain language of subsection (1)(e) to mean that the district court

  can increase an offender’s sentence so long as it holds a

  resentencing hearing. Romero, 179 P.3d at 986-87. It found

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  support for this construction in another subsection of the

  community corrections statute, section 18-1.3-301(1)(h)(I), which

  gives the sentencing court authority “to modify” a community

  corrections sentence “in the same manner as if the offender had

  been placed on probation.” The court determined that it “must look

  to what sentence [a defendant] could have been given had he

  violated a condition of probation rather than a condition of his

  community corrections sentence.” Romero, 179 P.3d at 987. In

  this inquiry, the supreme court concluded that it must apply

  section 16-11-206(5), C.R.S. 2015, of the probation revocation

  statute, because that subsection governs the resentencing of an

  offender who has violated a condition of probation. Id. And, under

  section 16-11-206(5), a court may impose any sentence “which

  might originally have been imposed or granted.”

                             B. Discussion

¶ 11   Reyes does not dispute that Romero permits a court to

  increase a sentence after holding a hearing, but contends that the

  court can hold a resentencing hearing only if the prosecutor or

  defendant requests it. He reasons that because subsection (1)(h) of

  the community corrections statute allows the court “to modify” a

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  community corrections sentence in the same manner as a probation

  sentence, we ought to look to the probation modification statute,

  section 18-1.3-204(4)(a), C.R.S. 2015, which, he contends, does not

  permit a court to set a resentencing hearing sua sponte. The

  probation modification statute states in pertinent part:

             For good cause shown and after notice to the
             defendant, the district attorney, and the
             probation officer, and after a hearing if the
             defendant or the district attorney requests it,
             the judge may reduce or increase the term of
             probation or alter the conditions or impose
             new conditions.

  Id. (emphasis added). Reyes concludes, from this highlighted

  language, that the court can hold a resentencing hearing only if the

  prosecutor or the defendant requests it. We are not persuaded that

  the probation modification statute applies here.

¶ 12   When the supreme court in Romero construed subsection

  (1)(h) of the community corrections statute, it first “look[ed] to the

  facts of the case at hand to determine which provision of the

  probation statute would apply.” See 179 P.3d at 987 n.3. It then

  determined that a resentencing on a termination from community

  corrections is analogous to resentencing on a probation revocation,

  and therefore it was required to limit its review to the probation

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  revocation sentencing statute to determine if a sentencing court has

  authority to increase the sentence. See id.

¶ 13   We are bound to follow this limit placed by our supreme court.

  We may not, therefore, apply the resentencing provisions of the

  probation modification statute because a “modification of probation

  is not analogous to a probation revocation proceeding.” People v.

  Hotle, 216 P.3d 68, 70 (Colo. App. 2008) (stating that a modification

  of probation occurs “prior to the commencement of revocation

  proceedings and provides a defendant with another opportunity to

  complete his probation without having it revoked”).

¶ 14   Accordingly, we conclude that section 16-11-206(5), and not

  the modification statute in section 18-1.3-204(4)(a), applies to the

  resentencing here. See Romero, 179 P.3d at 987-88; see also People

  v. Griego, 207 P.3d 870, 871 (Colo. App. 2008) (looking to the

  probation revocation statute when offender was terminated from

  community corrections).

¶ 15   Section 16-11-206(5) provides in pertinent part, “If probation

  is revoked, the court may then impose any sentence or grant any

  probation pursuant to the provisions if this part 2 which might

  originally have been imposed or granted.” Id.

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¶ 16   The plain language of this resentencing provision in section

  16-11-206(5) does not state, much less suggest, that the prosecutor

  or defendant must request a resentencing hearing before the court

  can hold one. See id.

¶ 17   Reading section 16-11-206(5) together with section

  18-1.3-301(1)(e), we perceive no legislative intent in either statute to

  restrict the court’s ability to set a resentencing hearing only if the

  prosecutor or the defendant requests it. See Carruthers v. Carrier

  Access Corp., 251 P.3d 1199, 1204 (Colo. App. 2010) (“[W]e will not

  interpret a statute to mean that which it does not express. Nor will

  we add or substitute language in an otherwise clear statute.”)

  (citations omitted). As a result, we conclude that section

  18-1.3-301(1)(e) does not condition a district court’s authority to set

  a resentencing hearing on a request from one of the parties.

¶ 18   Our conclusion is consistent with the legislative purpose

  underlying section 18-1.3-301(1)(e). In Romero, the supreme court

  noted that “it is reasonable that the legislature would give courts

  flexibility to increase a sentence when the circumstances merit it.”

  179 P.3d at 987.



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¶ 19   Reyes nonetheless points to language in People v. James, 940

  P.2d 1092 (Colo. App. 1996), to argue that a hearing cannot be held

  absent a request from one of the parties. In James, a division of

  this court stated that a district court has “discretion to grant a

  hearing at the time of resentencing” under the community

  corrections statute. Id. at 1095 (emphasis added). Reyes argues

  that a court cannot “grant” something unless it was first requested

  by a party.

¶ 20   We are not persuaded by this argument. The issue in James

  was the constitutionality of the community corrections statute

  allowing the court to resentence a terminated offender without a

  hearing. Id. The division never addressed whether a district court

  has authority under the statute to set a hearing absent a request to

  do so. As a result, we will not read the language in James so

  broadly without clear statutory guidance to the contrary.

¶ 21   Accordingly, we conclude that section 18-1.3-301(1)(e) of the

  community corrections statute does not condition a district court’s

  authority to set a resentencing hearing on a request from one of the

  parties.



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                       III.   Separation of Powers

¶ 22   Next, Reyes contends that the court violated separation of

  powers principles when it set a resentencing hearing sua sponte.

  We do not agree with this contention.

                A. Standard of Review and Relevant Law

¶ 23   Whether the district court violated separation of powers

  principles is a question of law that we review de novo. People v.

  Renander, 151 P.3d 657, 659 (Colo. App. 2006).

¶ 24   The separation of powers doctrine “bars the judiciary from

  interfering with the executive or legislative branches.” Id. As a

  member of the executive branch, a prosecuting attorney retains

  discretion “to initiate, alter, or dismiss charges.” Id. (citing People v.

  Dist. Court, 632 P.2d 1022, 1024 (Colo. 1981)); People v. Dist. Court,

  186 Colo. 335, 339, 527 P.2d 50, 52 (1974)). Prosecutorial

  discretion extends to the power to investigate, to decide whom to

  prosecute, and to choose which charges to file. Dist. Court, 632

  P.2d at 1024.

                               B. Discussion

¶ 25   Reyes claims that both the community corrections statute and

  separation of powers principles give the prosecutor discretion to

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  request a resentencing hearing after an offender is terminated from

  community corrections. He reasons that the court violated the

  separation of powers doctrine when it set a resentencing hearing

  after the prosecutor exercised her discretion not to request one.

¶ 26   Reyes first argues that the community corrections statute, by

  way of the probation modification statute, confers prosecutorial

  discretion to request a resentencing hearing. We are not

  persuaded. As we have concluded above, the probation

  modification statute is not applicable when an offender is

  terminated from community corrections and resentenced.

¶ 27   Reyes also relies on People v. Storlie, 2014 CO 47, to support

  his claim. His reliance is misplaced.

¶ 28   In Storlie, the supreme court addressed the district court’s

  authority to deny a prosecutor’s good faith motion to dismiss a

  case. Id. at ¶¶ 10, 11. It is well-established that “the discretion to

  dismiss criminal charges lies with the prosecution, not the court.”

  Id. at ¶ 10. But Reyes points to no similar authority, and we have

  found none, that suggests that the discretion to request a

  resentencing hearing under these circumstances lies solely with the



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  prosecution. We decline to extend the separation of powers

  doctrine so far in this case.

¶ 29   Accordingly, we conclude that the district court did not violate

  separation of powers principles when it set the resentencing hearing

  sua sponte.

                         IV.    Equal Protection

¶ 30   Reyes also argues that the court violated his right to equal

  protection under the laws when it singled him out from hundreds of

  other defendants and set a resentencing hearing just because it

  disagreed with the prior judge’s four-year sentence. We perceive no

  equal protection violation.

                A. Standard of Review and Relevant Law

¶ 31   We review equal protection challenges de novo. See People v.

  Firm, 2014 COA 32, ¶ 6.

¶ 32   “Equal protection of the laws assures the like treatment of all

  persons who are similarly situated.” Dean v. People, 2016 CO 14,

  ¶ 11; see U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25.

  Where, as here, the challenged state action does not affect a

  fundamental right or a traditionally suspect class, we apply a

  rational basis review. Dean, ¶ 12. Under this standard, the

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  challenging party bears the burden of proving that the action “bears

  no rational relationship to a legitimate legislative purpose or

  government objective, or that the classification was otherwise

  unreasonable, arbitrary, or capricious.” Id.; see also Tassian v.

  People, 731 P.2d 672, 675 (Colo. 1987) (“[A] governmental

  classification which singles out a group of persons for disparate

  treatment [must] be rationally founded on differences that are real

  and not illusory and that such classification be reasonably related

  to a legitimate state interest.”).

                               B. Discussion

¶ 33   Reyes contends that the court singled him out for a

  resentencing hearing based solely on its disagreement with the prior

  court’s original four-year sentence. He argues that this is an

  arbitrary distinction that violates his right to equal protection.

¶ 34   At Reyes’s first court appearance for resentencing, the judge

  stated that it was setting a hearing because he thought “the four-

  year sentence that was originally given by the Judge, when I wasn’t

  here, is [in]sufficient, as far as this Class 3 felony.” At the next

  appearance, defense counsel sought to clarify the court’s motivation

  for setting the resentencing hearing:

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            [Defense Counsel]: [T]he rationale that the
            Court gave last Monday was that it didn’t
            necessarily agree with [the previous judge’s]
            sentence. That was my recollection.

            [Court]: What I’m saying is that, based upon
            the revocation that he had, I believe that he
            should have a longer sentence than four years.
            And without giving him a hearing, I can’t
            impose a longer sentence than four years.

            ....

            [Defense Counsel]: But the Court stated last
            week the reason for doing this, and setting this
            hearing, is because you didn’t agree with what
            [the previous judge] gave him in the first place.

            [Court]: The only way I can sentence him . . .
            to a longer sentence is by giving him a hearing.

            [Defense Counsel]: I understand. But I want
            to get on the record why the Court wants to
            give him a longer sentence. And the reason
            the Court gave last week was that it did not
            agree with [the previous judge’s] sentence of
            four years.

            [Court]: That I don’t think it’s proper, at this
            point?

            [Defense Counsel]: Yes.

            [Court]: Absolutely, or else we wouldn’t be
            having a hearing.

¶ 35   Read in context of its further explanation, we are persuaded

  that the court set a resentencing hearing because it knew that,


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  pursuant to statute, the original four-year sentence would restrict

  its ability to impose a lengthier prison sentence, and it believed that

  four years was no longer appropriate in light of the circumstances

  of Reyes’s case, particularly his prior probation violations and his

  violations of the community corrections program’s policies.

¶ 36   This reason is rationally related to a legitimate government

  objective: giving courts that are resentencing offenders terminated

  from community corrections the “flexibility to increase a sentence

  when the circumstances merit it.” Romero, 179 P.3d at 987.

  Indeed, “the sentencing court’s responsibility is to individualize and

  tailor a sentence to fit the crime and the particular defendant before

  the court. . . . The exercise of this discretionary power does not

  deny a defendant equal protection under the laws.” People v.

  Garberding, 787 P.2d 154, 158 (Colo. 1990).

¶ 37   Therefore, we are persuaded that the court’s decision to set a

  resentencing hearing was rationally related to a legitimate

  governmental objective and did not violate Reyes’s right to equal

  protection.




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       V.    Whether Setting a Resentencing Hearing Was an Abuse of
                                   Discretion

¶ 38        Finally, Reyes asserts that even if the court did not violate his

  equal protection rights, the court abused its discretion when it set

  the resentencing hearing because its decision was manifestly

  arbitrary and abrogated the previous judge’s sentence, which was

  the law of the case. We are not persuaded.

¶ 39        As discussed above, we conclude that the court’s decision to

  set a hearing was not arbitrary, but rationally based on the

  particular circumstances of Reyes’s case. And the prior judge’s

  four-year sentence was not binding as the law of the case because

  of changed conditions. See People v. Roybal, 672 P.2d 1003, 1005

  n.5 (Colo. 1983) (“However, the law of the case as established by

  trial court rulings is not binding if it . . . is no longer sound due to

  changed conditions . . . .”). After the original judge imposed the

  four-year community corrections sentence, Reyes violated its

  policies and was terminated from the program. Thus, by statute,

  the court was required to resentence Reyes, and, by setting a

  hearing, it had the authority to impose any sentence that could

  have been originally imposed. § 16-11-206(5); § 18-1.3-301(1)(e);


                                         16
  Romero, 179 P.3d at 987. Therefore, we conclude that the court did

  not abuse its discretion when it set the resentencing hearing.

                             VI.   Conclusion

¶ 40   Reyes’s five-year sentence to the custody of the Department of

  Corrections is affirmed.

       JUDGE J. JONES and JUDGE DUNN concur.




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