     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
                                                          September 6, 2018

                               2018COA128

No. 15CA0868 People v. Jompp — Crimes — Escapes; Criminal
Law — Sentencing — Punishment for Habitual Offenders

     A division of the Colorado Court of Appeals concludes that

section 18-1.3-801(5), C.R.S. 2013, precludes noncustodial escape

convictions from being used as a current conviction for adjudicating

a defendant an habitual criminal.
COLORADO COURT OF APPEALS                                       2018COA128


Court of Appeals No. 15CA0868
Mesa County District Court No. 13CR1336
Honorable Richard T. Gurley, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Allen Jompp,

Defendant-Appellant.


          JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART
     AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

                                  Division V
                       Opinion by JUDGE HAWTHORNE
                        Berger and Miller*, JJ., concur

                        Announced September 6, 2018


Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sean J. Lacefield, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Christopher Allen Jompp, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of third degree

 assault, robbery, and escape. He also appeals his sentence. We

 affirm the judgment, but we vacate his sentence on the escape

 conviction and remand the case for resentencing on that conviction.

 We affirm the remainder of the sentence.

           I.   Factual Background and Procedural History

¶2    Jompp, the victim, and an acquaintance, B.B., were driving

 around one evening in a stolen car while high on

 methamphetamine. During the night they stopped at two

 apartments to use more methamphetamine. Another acquaintance,

 C.P., who was also high, left with the group from the second

 apartment. The four continued to drive around town, with the

 victim driving, Jompp in the passenger seat, and B.B. and C.P.

 sitting in the back. Tension arose between the victim and Jompp.

 The victim had propositioned B.B. and C.P. numerous times for sex

 in return for money and drugs, and Jompp asked him to stop.

¶3    Eventually the victim parked the car near one of the

 apartments they had visited earlier. What happened next isn’t

 clear, but by all accounts a fight broke out between Jompp and the

                                   1
 victim. When the fight ended, the victim fell out of the driver’s side

 door unconscious.

¶4    C.P. recalled that B.B. then got out of the car and hit and

 kicked the victim while he was on the ground. B.B. said, however,

 that she remained in the car and saw C.P. go over to the victim.

 C.P. admitted that at some point after the victim was unconscious

 on the ground, at Jompp’s direction, she went through the victim’s

 pockets, took money from him, and gave it to Jompp. B.B. also

 took the victim’s cell phone from the backseat.

¶5    Jompp, B.B., and C.P. left the victim on the ground and

 dropped the car off in an alley. Around four o’clock that morning a

 security guard noticed the victim still on the ground and called the

 police. An ambulance took him to the emergency room where he

 was diagnosed with multiple serious head injuries.

¶6    The police traced the victim’s cell phone to B.B., who identified

 Jompp as the victim’s assailant. Days after the victim was injured,

 the police found Jompp and C.P. The police ordered Jompp to the

 ground, handcuffed him, and searched him. One officer led Jompp

 to a police car to take him to jail. As the officer was about to place



                                    2
 Jompp in the police car’s back seat, Jompp took off running. After

 a short chase, the police caught Jompp and he was taken to jail.

¶7    The victim died approximately one month later from the

 injuries he sustained in the fight.

¶8    The People charged Jompp with second degree murder, second

 degree assault, robbery, escape, and several habitual criminal

 counts. At trial, Jompp’s defense theories were that B.B. killed the

 victim and that the prosecution otherwise failed to prove the

 charges. The jury convicted Jompp of third degree assault, robbery,

 and escape. The trial court adjudicated Jompp an habitual

 criminal1 and sentenced him to forty-eight years in prison.

                           II.   Speedy Trial

¶9    Jompp contends the court violated his speedy trial rights by

 continuing his jury trial, over his objection, beyond six months after

 he pleaded not guilty and thirteen months after he was arrested.

 We disagree.




 1 While we prefer “[a] habitual criminal,” we use the statute’s
 language. See The Chicago Manual of Style § 5.72 (17th ed. 2017).
                                       3
                            A.      Preservation

¶ 10   The People agree that Jompp preserved his statutory speedy

  trial claim, but argue that he didn’t preserve his constitutional

  speedy trial claim.

¶ 11   At the hearing to continue the trial, defense counsel objected

  “to the continuance of Mr. Jompp’s speedy trial rights under the

  Federal and State Constitutions, as well as, his statutory right.”

  But for the rest of the hearing, the parties and the court only

  discussed and considered the statutory speedy trial elements

  required to continue the trial.

¶ 12   On the morning of trial, defense counsel again objected:

             Judge, at this time, I wanted to reiterate a
             previous objection we made for the record. It
             is the Defense’s position that [the]
             Prosecution’s previous request to continue the
             trial that was in the context of their
             unavailability of some witnesses. It is the
             Defense’s position that there was not good
             cause for that at that time. And as such, it is
             our position that this trial is outside of speedy
             trial. So we are objecting to being outside of
             speedy trial. We’d ask the Court to note that
             objection.

¶ 13   So at both the hearing and trial, defense counsel “provided no

  analysis of the constitutional issues and never sought a ruling from


                                      4
  the trial court.” People v. Roberts, 2013 COA 50, ¶ 48. Nor did he

  “ask the court to determine whether, under the applicable four-part

  balancing test of Barker v. Wingo, 407 U.S. 514 (1972), and People

  v. Small, 631 P.2d 148 (Colo. 1981), the delay in this case violated

  the state and federal constitutions.” People v. Scialabba, 55 P.3d

  207, 209-10 (Colo. App. 2002); see People v. McMurtry, 122 P.3d

  237, 243 (Colo. 2005) (“[H]e did not argue any of the elements of

  this constitutional right in either his motion or at the hearing on

  the motion.”). So Jompp didn’t preserve his constitutional speedy

  trial claims.

¶ 14   But, unpreserved constitutional errors may be reviewed for the

  first time on appeal. Reyna-Abarca v. People, 2017 CO 15, ¶ 37.

  And we “do not presume acquiescence in the loss of fundamental

  constitutional rights, and therefore indulge every reasonable

  presumption against waiver.” People v. Rediger, 2018 CO 32, ¶ 39

  (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)). So we

  review Jompp’s constitutional speedy trial claims for plain error.

  See id. at ¶ 47.




                                    5
                        B.     Standard of Review

¶ 15   We review a trial court’s decision to apply the statutory speedy

  trial exclusion in section 18-1-405(6)(g)(I), C.R.S. 2017, for an abuse

  of discretion. Scialabba, 55 P.3d at 209. “We will not disturb the

  trial court’s findings granting a continuance if the record supports

  these findings.” People v. Trujillo, 2014 COA 72, ¶ 18.

       An error is plain if it is obvious and substantial and so

  undermines the trial’s fundamental fairness as to cast serious

  doubt on the judgment of conviction’s reliability. Rediger, ¶ 48.

                          C.    Additional Facts

¶ 16   Jompp was arrested on October 31, 2013. On March 14,

  2014, he entered a not guilty plea and jury trial was set for August

  25, 2014.

¶ 17   Over the following months, the prosecution sought to secure

  B.B.’s attendance at trial. The prosecution knew B.B. lived in Utah

  and in April 2014 asked the trial court to issue a certificate to

  summon her from outside the state under section 16-9-203, C.R.S.




                                     6
  2017, which the court granted.2 After trying unsuccessfully to

  serve B.B. the summons, the prosecution learned that she may

  have been living at a different address in Utah, and in June the

  court issued a second certificate to summon. In August the

  prosecution requested a third certificate to summon, and the court

  issued it with a recommendation that B.B. be taken into custody to

  assure her presence at trial.

¶ 18   On August 18, 2014, the prosecution filed a motion to

  continue the trial if B.B. was still unavailable. At the motion

  hearing, the prosecutor provided additional information on his

  efforts to locate and serve B.B. Specifically, the prosecutor

  explained that he had three people from the police department

  working with local Utah agencies. And, investigators had contacted

  B.B. via Facebook and believed they could trace her cell phone,

  which they guessed would probably take two to three weeks. The

  investigators had also been following her on another Facebook

  account she used under a different name. The prosecutor also said



  2 Section 16-9-203, C.R.S. 2017, adopted the uniform act to secure
  the attendance of witnesses from without a state in criminal
  proceedings, which had also been adopted by Utah.
                                    7
  that B.B.’s biological son and the son’s adoptive parents were

  cooperating and were still in touch with B.B. The investigators were

  also tracking B.B.’s husband who had just been released from jail

  and was thought to be with B.B.

¶ 19   The prosecutor also said there was a $25,000 outstanding

  warrant in Utah, they were “close to getting her,” and that

  “leads . . . on her address in the past two weeks looked very

  promising,” but that she was “something of a couch surfer.” It

  concluded that “there’s reasonable grounds to believe that we will

  have her in the not too distant future.” The court granted the

  motion and set Jompp’s trial date for December 1, 2014.

¶ 20   Not long after, B.B. was arrested in Utah based on the

  certificate to summon and appeared in court in Colorado on

  September 11, 2014. She testified at trial.

                       D.    Statutory Speedy Trial

¶ 21   Section 18-1-405(1) provides a defendant a statutory right to

  be brought to trial within six months from the date he or she enters

  a not guilty plea. If a trial is not brought within this time frame,

  generally the charges against the defendant must be dismissed.



                                     8
  § 18-1-405(1); see also People v. Roberts, 146 P.3d 589, 592 (Colo.

  2006).

¶ 22     But section 18-1-405(6)(g)(I) allows an additional delay of up to

  six months at the prosecution’s request, without the defendant’s

  consent, if the prosecution demonstrates that (1) evidence material

  to the state’s case is unavailable; (2) the prosecution has exercised

  due diligence to obtain the evidence; and (3) there exist reasonable

  grounds to believe the evidence will be available at a later date. The

  prosecution must make a sufficient record that these three

  elements have been met. People v. Trujillo, 2014 COA 72, ¶ 17. The

  trial court may rely on the prosecution’s uncontested offers of proof.

  Id.

¶ 23     Jompp contends that the court erred in continuing the trial

  because the People’s evidence of “‘[p]romising leads’ to merely

  contact a witness” wasn’t sufficient under the statute to show

  “reasonable grounds to believe the evidence will be available at the

  later date.”3 See § 18-1-405(6)(g)(I). We disagree.




  3   Jompp doesn’t contest the other two statutory elements.
                                      9
¶ 24    We reject Jompp’s contention that this means the prosecution

  must show that it’s “known or proved to be true” or “incapable of

  failing.” To support this proposition, Jompp relies on a case from

  another division of this court that said “[t]he prosecution must

  prove with some certainty that the unavailable evidence will become

  available at a later date,” but the Supreme Court has vacated that

  opinion. People v. Valles, 2013 COA 84, ¶ 41, cert. granted,

  judgment vacated, and case remanded, No. 13SC551, 2015 WL

  4999239 (Colo. Aug. 24, 2015) (unpublished order). And the

  statute simply requires that “there are reasonable grounds to

  believe that this evidence will be available at the later date.” § 18-1-

  405(6)(g)(I).

¶ 25    We also reject Jompp’s argument that prior case law effectively

  requires the prosecution to provide evidence of a “cooperative

  witness, known facts about later availability, or circumstances

  within the State’s control.” In Trujillo, a division of this court found

  that reasonable grounds existed that a witness’s testimony would

  be available at a later date based on the prosecution’s statement

  that “it believed a plea agreement with [the witness] would soon be

  reached.” ¶ 23 (emphasis added); see also People v. Koolbeck, 703

                                     10
  P.2d 673, 677 (Colo. App. 1985) (“The court was entitled to believe

  that if either the accomplice was acquitted or if he was convicted

  but did not appeal, then his testimony would be available for trial at

  the later date.”).

¶ 26   And, Jompp didn’t challenge the prosecution’s evidence or

  otherwise show that its belief that it would secure the witness for

  trial wasn’t reasonable. “Accordingly, the trial court acted within its

  discretion by relying on the prosecution’s offer of proof and by

  finding that there was a reasonable possibility [the witness] would

  be available to testify.” Valles, ¶ 42.

¶ 27   We conclude that sufficient record evidence supported the

  court’s granting of the prosecution’s request for a continuance. See

  Marquez v. Dist. Court, 200 Colo. 55, 57-58, 613 P.2d 1302, 1304

  (1980) (“The burden [of compliance with the speedy trial statute]

  includes making a record sufficient for an appellate court to

  determine statutory compliance.”).

                       E.   Constitutional Speedy Trial

¶ 28   A defendant has a constitutional speedy trial right under the

  United States Constitution’s Sixth Amendment and article II,

  section 16 of the Colorado Constitution. Small, 631 P.2d at 154.

                                     11
  “The analysis of whether the constitutional right was violated differs

  from the analysis of whether the statutory right was violated.”

  People v. Nelson, 2014 COA 165, ¶ 21. Under both the Federal and

  State Constitutions, “the right to a speedy trial attaches with the

  filing of a formal charge or with a defendant’s arrest.” People v.

  Glaser, 250 P.3d 632, 635 (Colo. App. 2010) (citing United States v.

  Marion, 404 U.S. 307, 320 (1971), and People v. Chavez, 779 P.2d

  375, 376 (Colo. 1989)). Under both provisions, compliance is

  determined by considering four factors: (1) the length of the delay;

  (2) the reasons for the delay; (3) the defendant’s assertion of the

  right; and (4) the prejudice to the defendant resulting from the

  delay. Barker, 407 U.S. at 530; Chavez, 779 P.2d at 376. A

  defendant bears the burden of showing that his constitutional right

  to a speedy trial was violated. Valles, ¶ 45.

¶ 29   Under the four Barker factors, we conclude that the trial court

  didn’t plainly err by granting the prosecution’s requested

  continuance.

¶ 30   First, the length of the delay was thirteen months. A delay

  over a year is presumptively prejudicial. See Doggett v. United

  States, 505 U.S. 647, 652 n.1 (1992). “This delay, however, was by

                                    12
  no means extreme.” Nelson, ¶ 33 (discussing delay just short of

  fourteen months); see also People v. Fears, 962 P.2d 272, 279 (Colo.

  App. 1997) (the defendant’s constitutional right wasn’t violated by

  three-year delay between charge and trial). Still, Jompp was

  incarcerated during this time. So this factor weighs in his favor.

¶ 31   Second, while the delay is attributable to the prosecution, the

  delay was justified. See Barker, 407 U.S. at 531 (“Finally, a valid

  reason, such as a missing witness, should serve to justify

  appropriate delay.”). So this factor favors the prosecution.

¶ 32   Third, while Jompp asserted his right to a speedy trial, he “did

  not expand upon that argument” at any time. Valles, ¶ 49. This

  factor may slightly favor Jompp because he generally asserted his

  right.

¶ 33   Fourth, Jompp asserts he was prejudiced by “oppressive

  pretrial incarceration” because he was incarcerated from arrest

  until trial. The Supreme Court in Barker identified three interests

  of a defendant to consider in assessing prejudice: (1) preventing

  oppressive pretrial incarceration; (2) minimizing the accused’s

  anxiety and concern; and (3) limiting the possibility the defense will

  be impaired. 407 U.S. at 532. “Of these, the most serious is the

                                    13
  last, because the inability of a defendant adequately to prepare his

  case skews the fairness of the entire system.” Id. Jompp doesn’t

  describe how his incarceration was oppressive or unjustified and

  doesn’t establish any prejudice to his defense from his

  incarceration. See Nelson, ¶ 41 (“[H]e presented no evidence or offer

  of proof to establish any such anxiety or concern beyond that

  normally to be expected from the fact of a criminal prosecution.

  And he did not allege, much less establish, any prejudice to the

  defense resulting from the delay.”); People v. Fennell, 32 P.3d 1092,

  1095 (Colo. App. 2000) (“[S]ignificantly, defendant has not asserted

  any specific prejudice resulting from the delays. In this context, the

  fact that defendant was incarcerated is given slight weight absent a

  showing that his ability to present a defense was impaired.”). So

  this factor favors the People.

¶ 34   Having reviewed the four factors, we conclude the trial court

  didn’t plainly err because Jompp’s constitutional right to a speedy

  trial wasn’t obviously violated.

       III.   Sufficient Evidence Supported the Robbery Conviction

¶ 35   Jompp contends that the prosecution “presented insufficient

  evidence” that he committed robbery, as either a principal or

                                     14
  accomplice, because it (1) failed to show that he “applied physical

  violence against [the victim] during the course of an unlawful taking

  of property from his person or presence”; and (2) “presented nothing

  more than speculation . . . that [the theft] was even conceived,

  much less started, until after the assault.” We disagree.

              A.    Standard of Review and Governing Law

¶ 36   We review the evidence’s sufficiency de novo. Dempsey v.

  People, 117 P.3d 800, 807 (Colo. 2005). We must determine

  whether the evidence, when viewed as a whole and in the light most

  favorable to the prosecution, is substantial and sufficient to support

  a conclusion by a rational fact finder that the defendant is guilty

  beyond a reasonable doubt. Clark v. People, 232 P.3d 1287, 1291

  (Colo. 2010). We give the prosecution the benefit of every

  reasonable inference that can fairly be drawn from the evidence, so

  long as any inference is supported by a convincing logical

  connection between the facts established and the conclusion

  inferred. People v. Perez, 2016 CO 12, ¶ 25; People v. Villalobos,

  159 P.3d 624, 627 (Colo. App. 2006) (“[W]here reasonable minds

  could differ, the evidence is sufficient to sustain a conviction.”).



                                     15
¶ 37   A person commits robbery if he “knowingly takes anything of

  value from the person or presence of another by the use of force,

  threats, or intimidation.” § 18-4-301(1), C.R.S. 2017. “The

  gravamen of robbery is the application of physical force or

  intimidation against the victim at any time during the course of a

  transaction culminating in the taking of property from the victim’s

  person or presence.” People v. Bartowsheski, 661 P.2d 235, 244

  (Colo. 1983). “There is no requirement that the application of force

  or intimidation must be virtually contemporaneous with the

  taking.” Id. at 244-45.

¶ 38   In Bartowsheski, the supreme court held that the evidence

  was sufficient to support a conviction for robbery where the

  defendant entered a house to steal guns; killed a child who was

  awakened and had gotten into his path; and, at some point after the

  attack, took guns from the house. Id. at 243-45.

                             B.    Analysis

¶ 39   The record contains sufficient evidence to support the jury’s

  conclusion beyond a reasonable doubt that Jompp robbed the

  victim.



                                   16
¶ 40   B.B. said that while the group was parked in the car, Jompp

  suddenly attacked the victim. After Jompp and the victim

  exchanged blows, the victim fell out of the car and onto the ground.

  B.B. said she then saw C.P. get out of the car, go over to the victim,

  and start digging through his pockets. C.P. then got back in the car

  and the group left the scene. And C.P. admitted that she went

  through the victim’s pockets to get money at Jompp’s direction and

  she gave him the money she found. But she was unsure whether

  she took the money after the fight or later when she went back to

  check on the victim.

¶ 41   We acknowledge that other evidence may support the contrary

  conclusion that the assault resulted solely from the argument

  between Jompp and the victim and wasn’t part of “the course of a

  transaction culminating in the taking of property from the victim.”

  But as to such factual determinations, “[w]e do not sit as a

  thirteenth juror to determine the weight of the evidence presented

  to the jury.” Clark, 232 P.3d at 1293.

¶ 42   We also reject Jompp’s argument that the prosecution had to

  show that the force he used against the victim was “calculated to

  take [the victim’s] money.” Robbery isn’t a specific intent crime, so

                                    17
it doesn’t require proof of intent to permanently deprive another

person of the use or benefit of a thing of value. People v. Moseley,

193 Colo. 256, 262, 566 P.2d 331, 335 (1977). And under

Bartowsheski’s “course of the transaction” doctrine, Jompp’s use of

force against the victim during the course of a transaction in which

C.P., as his accomplice,4 took the victim’s money was sufficient to

constitute a robbery. See Bartowsheski, 661 P.2d at 244; People v.

Buell, 2017 COA 148, ¶ 26 (evidence necessarily sufficient to

support aggravated and attempted aggravated robbery convictions

where the defendant committed theft and used a knife to avoid

apprehension) (cert. granted Apr. 23, 2018). Whether Jompp told

C.P. to take the money before, after, or contemporaneous with the

assault, his use of force against the victim made it possible for C.P.

to take the money without resistance. See People v. Davis, 935 P.2d

79, 85 (Colo. App. 1996) (“Thus, the [Bartowsheski] court

essentially set out a ‘but for’ test — but for the force, the victim

would have kept the property, irrespective of how the force was

used.”).



4   The court instructed the jury on accomplice liability.
                                    18
       IV.    The Court Didn’t Err by Refusing to Give the Resisting Arrest
                                    Instruction

¶ 43         Jompp contends that the court erred by failing to instruct the

  jury that it could convict him of the lesser nonincluded offense of

  resisting arrest. We disagree.

                             A.   Standard of Review

¶ 44         “Colorado cases have not conclusively established the

  standard of appellate review applicable to denials of lesser

  nonincluded offense instructions.” People v. Wartena, 2012 COA

  12, ¶ 29. But whether “the record contains sufficient evidence to

  support instruction on a lesser offense is a factual inquiry reviewed

  for an abuse of discretion.” Id. at ¶ 30; People v. Nozolino, 2014

  COA 95, ¶ 43 (“Because the district court denied [the] instruction

  on a factual basis, we review for an abuse of discretion.”); cf. People

  v. Montante, 2015 COA 40, ¶ 32 (“We review de novo the trial

  court’s refusal to give the lesser nonincluded offense instruction

  because the court’s determination that the medical marijuana

  registry fraud statute is inapplicable to defendant’s conduct is a

  question of law.”). A court abuses its discretion when its decision is




                                        19
  “manifestly arbitrary, unreasonable, or unfair.” People v. Ibarra,

  849 P.2d 33, 38 (Colo. 1993).

¶ 45   A defendant is entitled to a lesser nonincluded offense

  instruction as part of his defense theory if the evidence provides a

  rational basis to support a “verdict acquitting [the defendant] of a

  greater offense . . . and convicting [the defendant] of the lesser

  offense.” People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (quoting

  Bartowsheski, 661 P.2d at 242).

                          B.    Additional Facts

¶ 46   Two police officers spotted Jompp outside an apartment

  complex while interviewing a witness. One officer drew his

  handgun and ordered him to the ground. Jompp lay face down

  with his arms extended outward. Minutes later, other officers

  arrived and handcuffed Jompp behind his back. An officer

  searched him. One officer then led Jompp by the arm to the

  officer’s patrol car to transport him to jail. While the officer was

  checking the patrol car’s backseat before placing Jompp into it, he

  briefly let go of Jompp, who ran off while still handcuffed. He was

  caught shortly after and transported to jail.



                                    20
¶ 47        At trial, defense counsel tendered a resisting arrest instruction

  as a lesser nonincluded offense of escape. Defense counsel argued

  that whether Jompp was under arrest or was in the process of

  being arrested when he ran away was a factual question for the jury

  to decide. The court rejected the instruction because it found that

  the arrest had already been effectuated and it didn’t think the

  instruction would be appropriate based on the evidence.

       C.    The Evidence Didn’t Support Giving the Tendered Instruction

¶ 48        Jompp asserts that “there was a rational basis to acquit [him]

  of escape while convicting [him] of resisting arrest because the

  distinguishing element between the two offenses was the disputed

  point . . . whether police established physical control sufficient to

  provide reasonable assurance that Jompp would not leave.”

¶ 49        A person commits escape if “while being in custody or

  confinement and held for or charged with but not convicted of a

  felony, he knowingly escapes from said custody or confinement.”

  § 18-8-208(3), C.R.S. 2017. “[E]ffecting an arrest, in the sense of

  establishing physical control over the arrestee, is required before a

  person is ‘in custody’ for the purposes of the escape statute.”

  People v. Thornton, 929 P.2d 729, 733 (Colo. 1996). “In custody” is

                                        21
  defined as the “physical control of the person by physical restraint

  or by the person’s submission to control, which is sufficient to

  provide reasonable assurance that he or she will not leave.” People

  v. Padilla, 113 P.3d 1260, 1261 (Colo. App. 2005); see Thornton,

  929 P.2d at 733.

¶ 50   A defendant commits resisting arrest “if he knowingly prevents

  or attempts to prevent a peace officer, acting under color of his

  official authority, from effecting an arrest of the actor, by . . . [u]sing

  any other means which creates a substantial risk of causing bodily

  injury to the peace officer or another.” § 18-8-103(1)(b), C.R.S.

  2017.

¶ 51   The undisputed record evidence shows that Jompp was in

  custody. He had already submitted to the police officer’s

  instructions, was handcuffed, searched, and led by the arm to a

  patrol car for transport to jail. By the time he ran from the officer,

  he was already under the officer’s sufficient “physical control . . . by

  physical restraint” and by his “submission to control” such that

  there was a “reasonable assurance that he . . . [would] not leave.”

  Padilla, 113 P.3d at 1261; see also People v. Stanley, 56 P.3d 1241,

  1245 (Colo. App. 2002) (“The People do not contest that leg shackles

                                      22
  bound defendant when he allegedly resisted arrest. Defendant

  argues that he was already in custody, and therefore the People

  could not establish that he attempted to prevent a police officer

  from effecting his arrest. We agree.”). That the officer removed his

  hand from Jompp for an instant to prepare the patrol car’s back

  seat doesn’t create a disputed factual issue, and “the mere chance

  that a jury may reject uncontroverted testimony and convict on the

  lesser charge does not require the trial court to instruct the jury on

  the lesser charge.” People v. Carey, 198 P.3d 1223, 1234 (Colo.

  App. 2008) (quoting People v. Hall, 59 P.3d 298, 300 (Colo. App.

  2002)).

¶ 52   We conclude the court didn’t abuse its discretion by declining

  to instruct the jury on the crime of resisting arrest.

                     V.   Habitual Criminal Sentencing

¶ 53   Jompp contends the court convicted him in violation of his

  Sixth Amendment right to a jury trial when, at sentencing, it, not

  the jury, found that he had prior convictions and increased his

  sentence under the habitual criminal sentencing statute. We reject

  this contention.



                                    23
¶ 54     We review a sentence’s constitutionality de novo. Lopez v.

  People, 113 P.3d 713, 720 (Colo. 2005). But because Jompp failed

  to preserve this issue at trial, reversal is required only if the court

  plainly erred. People v. Miller, 113 P.3d 743, 750 (Colo. 2005); see

  Reyna-Abarca, ¶ 47.

¶ 55     In a nutshell, Jompp’s argument is a criticism of

  Almendarez-Torres v. United States, 523 U.S. 224 (1998), where the

  United States Supreme Court originally recognized a jury trial

  exception for determining prior convictions for sentencing

  enhancement purposes. This argument is based on a more recent

  Supreme Court opinion in Alleyne v. United States, 570 U.S. 99,

  111 (2013), which some have construed as criticizing Almendarez

  and its progeny.

¶ 56     But the prior conviction exception remains well-settled law.

  See Lopez, 113 P.3d at 723; People v. Parks, 2015 COA 158, ¶ 29;

  People v. Poindexter, 2013 COA 93, ¶ 72. So the court didn’t err.

   VI.    Noncustodial Escape as an Habitual Criminal Current Offense

¶ 57     Jompp contends that his sentence is illegal because his

  noncustodial escape conviction can’t be deemed a current offense

  under the habitual criminal statute. The People disagree and

                                     24
  respond that noncustodial escape convictions are precluded only

  from being used as prior convictions. We agree with Jompp.

                         A.   Standard of Review

¶ 58   A sentence that is beyond the court’s statutory authority is

  illegal. People v. Anaya, 894 P.2d 28, 31 (Colo. App. 1994). A

  sentence’s legality is a question of law that we review de novo.

  People v. Bassford, 2014 COA 15, ¶ 20. We review a court’s

  statutory construction de novo. People v. Hernandez, 250 P.3d 568,

  570-71 (Colo. 2011).

¶ 59   “Our primary purpose in statutory construction is to ascertain

  and give effect to the intent of the General Assembly.” Doubleday v.

  People, 2016 CO 3, ¶ 19. We look first to the statute’s language,

  giving words and phrases their plain and ordinary meanings. Id.

  We read statutory words and phrases in context and construe them

  according to the rules of grammar and common usage. Id.;

  Marquez v. People, 2013 CO 58, ¶ 8 (“It is widely accepted that

  where the legislature has not expressly defined a statutory term or

  otherwise limited its meaning, that term must be given its ordinary

  meaning.”). If the statute is unambiguous, we needn’t conduct any

  further statutory analysis. Doubleday, ¶ 20.

                                   25
                          B.    Additional Facts

¶ 60   The jury convicted Jompp of escape, a class 4 felony. The

  conviction had a presumptive sentencing range of two to six years.

  At sentencing, the trial court found that the prosecution had proved

  six habitual criminal counts and sentenced Jompp to twenty-four

  years for the escape conviction under section 18-1.3-801(2)(a),

  C.R.S. 2017.5

¶ 61   After Jompp appealed his conviction, he filed a motion for

  limited remand with this court to allow the trial court to rule on his

  pending Crim. P. 35(a) motion to correct an illegal sentence. A

  division of this court granted the motion and, on limited remand,

  Jompp challenged the escape sentence as illegal because section

  18-1.3-801(5) C.R.S. 2013,6 precluded the court from imposing an

  habitual criminal sentence on his escape conviction. The trial court

  denied Jompp’s motion, and his appeal was recertified to this court.




  5 Jompp was also adjudicated an habitual criminal on his robbery
  conviction and sentenced to twenty-four years on that conviction.
  6 We cite to this statute’s subsection that was in effect at the time of

  Jompp’s sentencing as the language relevant to this appeal has
  been subsequently amended.
                                    26
                               C.    Analysis

¶ 62   The trial court sentenced Jompp as an habitual criminal on

  his escape conviction under section 18-1.3-801(2)(a)(I), C.R.S. 2017,

  which states in relevant part as follows:

             Except as otherwise provided . . . in subsection
             (5) of this section, every person convicted in
             this state of any felony, who has been three
             times previously convicted, upon charges
             separately brought and tried, and arising out
             of separate and distinct criminal episodes,
             either in this state or elsewhere, of a felony . . .
             shall be adjudged an habitual criminal and
             shall be punished: . . . For the felony offense
             of which such person is convicted . . . for a
             term of four times the maximum of the
             presumptive range.

  So, to be “adjudged an habitual criminal” requires: (1) a current

  conviction “of any felony” in Colorado and (2) three prior felony

  convictions on charges separately brought and tried and arising out

  of separate and distinct criminal episodes. Id.; see People v.

  Hampton, 876 P.2d 1236, 1242 (Colo. 1994) (“An adjudication of

  habitual criminality — a component of sentencing — is an integral

  part of a conviction, not a separate conviction.”).




                                     27
¶ 63   Subsection (5) precludes certain escape convictions from being

  used in habitual criminal adjudications, and the statute in effect at

  the time of Jompp’s adjudication stated in relevant part as follows:

             A conviction for escape . . . shall not be used
             for the purpose of adjudicating a person an
             habitual criminal as described in . . .
             subsection (2) of this section unless the
             conviction is based on the offender’s escape or
             attempt to escape from a correctional
             facility . . . or from physical custody within a
             county jail.

  § 18-1.3-801(5), C.R.S. 2013.7 Because Jompp didn’t escape from a

  correctional facility or from within a county jail, for our purposes

  here, subsection (5) can be boiled down as follows: “A conviction for

  escape . . . shall not be used for the purpose of adjudicating a

  person an habitual criminal as described in . . . subsection (2) of

  this section.” Id.

¶ 64   We conclude that the statute’s plain language precluding

  noncustodial escape convictions from being “used for the purpose of



  7 We also note that the General Assembly has since amended
  subsection (5) to read: “A current or prior conviction for escape . . .
  may not be used for the purpose of adjudicating a person an
  habitual criminal as described in . . . subsection (2) of this section.”
  Ch. 374, sec. 1, § 18-1.3-801, 2017 Colo. Sess. Laws 1937
  (emphasis added). Neither party contends that this should make a
  difference in our analysis. We don’t think it should.
                                     28
  adjudicating a person an habitual criminal,” id., applies to both

  prior and current noncustodial convictions.

¶ 65   The word “purpose” is generally defined as “[a]n objective, goal,

  or end.” Black’s Law Dictionary 1431 (10th ed. 2014). “The

  purpose of the Habitual Criminal Act is to punish more severely

  those individuals who show a propensity toward repeated criminal

  conduct.” People v. Dist. Court, 711 P.2d 666, 670 (Colo. 1985). To

  effectuate this purpose, that is to adjudicate a defendant as an

  habitual criminal, requires that a defendant be convicted of a

  qualifying current offense and of qualifying prior offenses. See § 18-

  1.3-801(2)(a)(I), C.R.S. 2017; § 18-1.3-801(2)(b) (exempting certain

  level 4 drug felonies as current offenses from habitual adjudication);

  § 18-1.3-801(3) (exempting certain “drug law conviction[s]” as prior

  offenses for habitual adjudication). So under the statute’s plain

  language, by definition, a conviction is “used for the purpose” of

  adjudicating a person an habitual criminal whether it is used as the

  current conviction or as a prior conviction. After all, both types of

  convictions are necessarily used to achieve the statute’s purpose —

  habitual criminal adjudication.



                                    29
¶ 66   To construe subsection (5)’s language as exempting only prior

  noncustodial escape convictions from the habitual adjudication

  process would be contrary to its common meaning. And “unless

  [the language has] acquired a technical meaning by legislative

  definition,” we must read “words and phrases in context and

  construe them literally according to common usage.” People v.

  Yascavage, 101 P.3d 1090, 1093 (Colo. 2004); see also Dep’t of

  Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004) (“[W]e presume

  that in using the phrase ‘state highway purposes,’ the General

  Assembly intended that CDOT have a condemnation authority

  which was broader than that needed simply for constructing ‘state

  highways.’ To read the grant of authority as restricted to the list of

  structures included in the definition of ‘highway’ under section 43-

  1-203, as urged by the Respondent, would render the word

  ‘purposes’ in section 43-1-208(3) superfluous.”) (emphasis added).

¶ 67   The statute’s other subsections support our reading of

  subsection (5)’s broad language. Where the General Assembly

  intends to exempt only certain convictions from being prior offenses

  for habitual adjudication purposes, it has specifically done so. See

  § 18-1.3-801(3) (“No drug law conviction shall be counted as a prior

                                    30
  felony conviction under this section unless such prior offense would

  be a felony if committed in this state at the time of the commission

  of the new offense.”) (emphasis added). And the General Assembly

  has exempted certain convictions as current offenses using specific

  language. § 18-1.3-801(2)(b) (“The provisions of paragraph (a) of

  this subsection (2) shall not apply to a conviction for a level 4 drug

  felony . . . even if the person has been previously convicted of three

  or more qualifying felony convictions.”).

¶ 68   The People argue that if the General Assembly meant to

  exempt noncustodial escape convictions as current convictions, it

  could have used language similar to that in subsection (2)(b)

  exempting level 4 drug felonies. But even though it didn’t, that

  doesn’t alter the ordinary meaning of subsection (5)’s language.

  Sometimes the legislature uses different language to achieve similar

  results. See, e.g., Marquez, ¶ 15 (“[W]e find that the phrase ‘arising

  out of the same incident’ . . . was not intended to convey any

  meaning different from ‘arising from the same criminal episode.’”)

  (citations omitted).

¶ 69   To be clear, we hold that section 18-1.3-801(5), C.R.S. 2013

  precluded a noncustodial escape conviction from being used as a

                                    31
  current conviction for the purpose of adjudicating a person an

  habitual criminal under subsection (2) of that section. We conclude

  that the trial court erred in adjudicating Jompp an habitual

  criminal on his noncustodial escape conviction.

                            VII. Conclusion

¶ 70   We affirm the trial court’s judgment of conviction. We vacate

  the part of the sentence based on Jompp’s escape conviction and

  remand for resentencing on that conviction. We affirm the

  remainder of the sentence.

       JUDGE BERGER and JUDGE MILLER concur.




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