COLORADO COURT OF APPEALS                                         2017COA123


Court of Appeals No. 16CA0191
Montezuma County District Court No. 15CR87
Honorable Douglas S. Walker, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremiah Elijah Jim,

Defendant-Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division I
                       Opinion by JUDGE LICHTENSTEIN
                        Taubman and Nieto*, JJ., concur

                        Announced September 21, 2017


Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, 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, Jeremiah Elijah Jim, appeals the district court’s

 order denying his postconviction motion seeking presentence

 confinement credit (PSCC) for the time he spent in a residential

 community corrections program before he was resentenced to the

 custody of the Department of Corrections (DOC). We reverse and

 remand for correction of the mittimus.

                             I. Background

¶2    In July 2015, defendant pleaded guilty to one count of

 attempted aggravated motor vehicle theft, and the district court

 sentenced him to eighteen months in community corrections. Two

 months after reporting to community corrections, defendant

 escaped.

¶3    Following his arrest, the district court resentenced him to

 eighteen months in the custody of the DOC. At the resentencing

 hearing, although defendant requested 129 days of PSCC for the

 time he was held in jail waiting for his initial sentencing and the

 time he spent in the residential community corrections program,

 the district court only granted him 67 days of PSCC for the time he

 was confined in the county jail prior to his initial sentencing.




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¶4    The next day, defendant filed a postconviction motion, again

 requesting sixty-two days of credit for the time he was in

 community corrections and also an additional twenty-three days for

 the time he was in jail awaiting resentencing. The court, in a

 written order, granted defendant twenty-three days of PSCC for the

 time he spent in jail between his arrest and resentencing, but it

 denied the request for PSCC related to the time he spent in

 community corrections. The district court ruled that (1) under

 section 18-1.3-301(1)(k), C.R.S. 2016, defendant was not entitled to

 the credit for his community corrections time because he had

 escaped; and (2) the holding in People v. Hoecher, 822 P.2d 8 (Colo.

 1991), the case defendant relied on, was based on statutes that had

 since been repealed.

                             II. Analysis

¶5    On appeal, defendant contends, the People concede, and we

 agree that the court erred by not awarding him PSCC for the time

 he spent in the residential community corrections program.

¶6    We review whether a defendant is entitled to PSCC de novo.

 People v. Howe, 2012 COA 177, ¶ 12.




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¶7    When a person is confined for an offense prior to being

 sentenced for that offense, he or she “is entitled to credit against

 the term of his or her sentence for the entire period of such

 confinement,” and “[a]t the time of sentencing, the court shall make

 a finding of the amount of presentence confinement to which the

 offender is entitled and shall include such finding in the mittimus.”

 § 18-1.3-405, C.R.S. 2016. Time spent by a defendant in jail, in a

 DOC facility, or as a resident in a community corrections facility

 constitutes confinement under section 18-1.3-405, because those

 facilities limit an individual’s liberty. People v. Chavez, 122 P.3d

 1036, 1037-38 (Colo. App. 2005); see also Hoecher, 822 P.2d at 11-

 12. Thus, when a defendant is resentenced to DOC custody after

 revocation of a direct sentence to community corrections, he or she

 is entitled to credit for time served in a residential community

 corrections placement, but not for time served in a nonresidential

 placement. See §§ 17-27-104(9), 18-1.3-301(1)(j), C.R.S. 2016;

 Hoecher, 822 P.2d at 12; see also People v. McGraw, 30 P.3d 835,

 840 (Colo. App. 2001) (although Hoecher was decided prior to the

 enactment of section 17-27-104(9) and section 18-1.3-301(1)(j)’s




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  predecessor,1 which together provide that an offender sentenced to

  DOC custody after placement in a community corrections program

  is entitled to credit for the number of days of residential placement

  completed, the reasoning in that case is still applicable).

¶8     The record in this case reflects, and the parties do not dispute,

  that defendant spent sixty-two days in a residential community

  corrections facility, from August 10 to October 11, 2015, and thus

  is entitled to sixty-two days of PSCC for this time.

¶9     We note that the district court, in denying defendant’s motion,

  ruled that section 18-1.3-301(1)(k) barred defendant from receiving

  PSCC for his time in community corrections because he had

  escaped. We agree with both defendant and the People that the

  court erred in interpreting the statute that way.

¶ 10   “[W]hen a statute is clearly part of a comprehensive regulatory

  scheme, the scheme should be construed to give consistent,

  harmonious, and sensible effect to all its parts.” Shipley v. People,

  45 P.3d 1277, 1278 (Colo. 2002).



  1In 2002, section 17-27-105(1)(j) was relocated to section 18-1.3-
  301(1)(j). Ch. 318, sec. 2, § 18-1.3-301(1)(j), 2002 Colo. Sess. Laws
  1386-89.

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¶ 11   Section 18-1.3-301(1)(k) provides that “[a]ny offender who

  escapes from a residential community corrections program or who

  absconds from a nonresidential community corrections program

  shall forfeit any time credit deductions earned pursuant to

  paragraph (i) of this subsection (1) and shall not be credited with

  any time on escape or absconder status.” By the statute’s express

  terms, only credits earned pursuant to section 18-1.3-301(1)(i) are

  forfeited. Although not delineated as such, the time credits

  discussed in section 18-1.3-301(1)(i) refer to good time and earned

  time credits awarded by the community corrections program. See

  People v. McCreadie, 938 P.2d 528, 531 (Colo. 1997); see also

  People v. Pimble, 2015 COA 112, ¶¶ 11-12 (the time credits referred

  to in section 18-1.3-301(1)(j), formerly codified at section 17-27-

  105(1)(j), include “good time” and “earned time” credits). Therefore,

  we conclude that section 18-1.3-301(1)(k) does not apply to awards

  of PSCC.

¶ 12   Further, section 18-1.3-301(1)(k) refers only to time credit

  deductions that are earned. An offender does not earn PSCC but

  rather is entitled to it based upon his or her confinement before

  sentencing or any resentencing. See § 18-1.3-405 (an offender is


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  entitled to PSCC based solely upon the length of time he or she was

  confined before sentencing).

¶ 13   Consequently, defendant’s escape from community corrections

  did not negate his right to receive PSCC for the time he spent in

  residential community corrections. Accordingly, because the

  district court erred in denying defendant’s motion for sixty-two days

  of PSCC related to his time in a residential community corrections

  program, we remand the case for the court to amend the mittimus

  to include those additional days in the award of PSCC.

                             III. Conclusion

¶ 14   The order is reversed, and the case is remanded for the district

  court to correct the mittimus to reflect that defendant is entitled to

  a total of 152 days of PSCC.

       JUDGE TAUBMAN and JUDGE NIETO concur.




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