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                                                 ADVANCE SHEET HEADNOTE
                                                          November 18, 2019

                                    2019 CO 95

No. 18SC84, Walton v. People—Statutory Interpretation—Plain Language—
Probation—Medical Marijuana.

      In this opinion, the supreme court reviews a district court’s review of a

county court’s interpretation and application of section 18-1.3-204(2)(a)(VIII),

C.R.S. (2019). The supreme court holds that the statute’s plain language creates a

presumption that a defendant who is sentenced to a term of probation may use

medical marijuana unless one of the enumerated exceptions applies.                 The

prosecution bears the burden of overcoming the presumption.            The relevant

exception in this case requires the court to make particularized findings, based on

material evidence, that prohibiting this defendant’s otherwise-authorized medical

marijuana use is necessary and appropriate to promote statutory sentencing goals.

Because the county court made no such findings here, the supreme court

disapproves of the district court’s order affirming the county court’s decision.
                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203

                                   2019 CO 95

                        Supreme Court Case No. 18SC84
                          Certiorari to the District Court
               El Paso County District Court Case No. 17CV30785
                       Honorable G. David Miller, Judge

                                    Petitioner:

                                 Alysha Walton,

                                        v.

                                  Respondent:

                       The People of the State of Colorado.

                             Judgment Disapproved
                                   en banc
                               November 18, 2019


Attorneys for Petitioner:
Megan A. Ring, Public Defender
Cayce Duncan, Deputy Public Defender
      Colorado Springs, Colorado

Attorneys for Respondent:
Daniel H. May, District Attorney, Fourth Judicial District
Alexandra Staubach, Deputy District Attorney
Tanya A. Karimi, Deputy District Attorney
      Colorado Springs, Colorado


JUSTICE HOOD delivered the Opinion of the Court.
¶1    Alysha Walton pled guilty to driving under the influence (“DUI”), and

the county court sentenced her to twelve months of unsupervised probation.

Because Walton did not provide a medical professional to testify regarding

her authorization to use medical marijuana, the court, as a condition of

probation, prohibited Walton from using medical marijuana.               Walton

appealed, and the district court affirmed the county court’s decision.

¶2    We hold that the plain language of section 18-1.3-204(2)(a)(VIII), C.R.S.

(2019) (“the probation conditions statute”), creates a presumption that a

defendant may use medical marijuana while serving a sentence to probation

unless a statutory exception applies. The relevant exception here applies if

the sentencing court finds, based on material evidence, that prohibiting this

defendant’s otherwise-authorized medical marijuana use is necessary and

appropriate to promote statutory sentencing goals. Because the county court

made no such findings here, we disapprove of the district court’s judgment

affirming the county court’s decision. (Because the defendant has completed

her sentence, reversing and remanding would be pointless.)

                     I. Facts and Procedural History

¶3    Walton was pulled over one night for speeding and weaving. The

police officers who stopped her smelled alcohol and asked her to submit to

roadside sobriety testing. When she failed to perform the maneuvers to the


                                      2
officers’ satisfaction, the officers arrested her.   She told them she had

consumed two alcoholic beverages that night and no other intoxicants. There

is no evidence contradicting Walton’s assertion that the only intoxicant she

had consumed was alcohol. Indeed, the record reveals that the officers didn’t

even suspect that Walton was under the influence of anything other than

alcohol. The results of a chemical test revealed that Walton’s breath alcohol

content was above the legal limit for driving.

¶4    Walton was charged with DUI, DUI per se, and speeding. She pled

guilty to the DUI offense and agreed to a deferred judgment and sentence in

exchange for dismissal of the other charges. During the presentence alcohol

evaluation, Walton informed the probation officer that she had a medical

marijuana registry identification card. At the initial sentencing hearing, the

county court judge asked if Walton would be requesting permission to use

medical marijuana while on probation; if so, the court stated, a medical

professional would need to testify on her behalf. Apparently, this judge had

a standing policy requiring such testimony if a defendant sought to use

medical marijuana while on probation. Counsel indicated that she would

seek permission and requested a continuance to secure a medical

professional.




                                      3
¶5      At the subsequent sentencing hearing, counsel produced Walton’s

medical marijuana authorization card and several supporting documents to

establish its authenticity but did not produce a medical professional to

testify. The court entered Walton’s guilty plea and sentenced her to twelve

months of unsupervised probation. As a condition of probation, the court

prohibited Walton from using medical marijuana.

¶6      Walton appealed the prohibition condition.         The district court

concluded that the county court had not abused its discretion in imposing

the prohibition against medical marijuana use as a condition of probation.

Walton then petitioned this court to review the district court’s decision, and

we granted certiorari.1

                                  II. Analysis
¶7      After briefly discussing the standard of review, we interpret section

18-1.3-204(2)(a)(VIII).    We conclude that the statute’s plain language




1   We granted certiorari to review the following issue:
        1. Whether the district court erred in finding no abuse of
           discretion where the trial court imposed a prohibition
           against the use of medical marijuana on probation without
           basing that prohibition on any material evidence that the
           prohibition was necessary and appropriate to accomplish the
           goals of sentencing, thereby denying her rights under the
           Colorado Constitution.

                                        4
unambiguously creates a presumption that a defendant may use authorized

medical marijuana while serving a term of probation. It also creates two

exceptions to this presumption, only one of which is relevant here. We

address (1) who bears the burden of establishing that exception and (2) what

findings the court must make to invoke it.

                A. Mootness and Standard of Review

¶8    Walton completed her sentence on May 24, 2018. Thus, the issue on

certiorari is arguably moot. But we choose to address it “because it falls

within the exception to the mootness doctrine that allows review of

‘important issues capable of repetition yet potentially evading review.’”

People v. Brockelman, 933 P.2d 1315, 1318 (Colo. 1997) (quoting People v.

Quinonez, 735 P.2d 159, 161 n.1 (Colo. 1987)). Were we to wait for another

case like this one to find its way to us with a defendant still serving her

sentence, we might wait in vain. DUI sentences are often shorter than the

time necessary for appeal and certiorari review. Meanwhile, this important

issue regarding a defendant’s legislative permission to use medical

marijuana while on probation will persist in El Paso County and perhaps

elsewhere throughout the State of Colorado.

¶9    As for the standard of review, trial courts of course have broad

discretion to craft appropriate conditions of probation. Id. But we review de


                                     5
novo the county court’s interpretation of section 18-1.3-204. See People v.

Iannicelli, 2019 CO 80, ¶ 19, 449 P.3d 387, 391.

¶10   In so doing, our primary goal is to ascertain and give effect to the

legislature’s intent by looking first to the statute’s language, giving words

and phrases their plain and ordinary meanings. Id. If the legislative intent

is clear from the plain language, we need look no further. See Cowen v. People,

2018 CO 96, ¶ 12, 431 P.3d 215, 218.

                  B. The Probation Conditions Statute

¶11   The probation conditions statute provides that “[t]he conditions of

probation shall be such as the court in its discretion deems reasonably

necessary to ensure that the defendant will lead a law-abiding life and to

assist the defendant in doing so.” § 18-1.3-204(1)(a).

¶12   The statute further provides that as a condition of probation, the court

may

      require that the defendant . . . [r]efrain from . . . any unlawful
      use of controlled substances, as defined in section 18-18-102(5),
      or of any other dangerous or abusable drug without a
      prescription; except that the court shall not, as a condition of
      probation, prohibit the possession or use of medical marijuana, as
      authorized pursuant to section 14 of article XVIII of the state
      constitution, unless . . .
        (B) The court determines, based on any material evidence, that a
            prohibition against the possession or use of medical marijuana is
            necessary and appropriate to accomplish the goals of sentencing
            as stated in section 18-1-102.5.


                                        6
§ 18-1.3-204(2)(a)(VIII) (emphases added).2

¶13   The foregoing language presumes that authorized medical marijuana

use is permissible while a defendant is on probation. Critically, a court “shall

not” prohibit the authorized use of medical marijuana as a condition of




2Section 18-1-102.5(1), C.R.S. (2019), the statute referenced in subpart (B),
provides that the goals of sentencing are
      (a) To punish a convicted offender by assuring the imposition
      of a sentence he deserves in relation to the seriousness of his
      offense;
      (b) To assure the fair and consistent treatment of all convicted
      offenders by eliminating unjustified disparity in sentences,
      providing fair warning of the nature of the sentence to be
      imposed, and establishing fair procedures for the imposition of
      sentences;
      (c) To prevent crime and promote respect for the law by
      providing an effective deterrent to others likely to commit
      similar offenses;
      (d) To promote rehabilitation by encouraging correctional
      programs that elicit the voluntary cooperation and
      participation of convicted offenders;
      (e) To select a sentence, a sentence length, and a level of
      supervision that addresses the offender’s individual
      characteristics and reduces the potential that the offender will
      engage in criminal conduct after completing his or her
      sentence; and
      (f) To promote acceptance of responsibility and accountability
      by offenders and to provide restoration and healing for victims
      and the community while attempting to reduce recidivism and
      the costs to society by the use of restorative justice practices.

                                       7
probation. § 18-1.3-204(2)(a)(VIII). “Shall” is mandatory unless there is a

clear indication otherwise. Riley v. People, 104 P.3d 218, 221 (Colo. 2004).

¶14   The statute, however, also creates exceptions to this presumption by

use of the word “unless.” See, e.g., Greene v. State, 186 A.3d 207, 220 (Md. Ct.

Spec. App. 2018) (holding that use of “unless” in a statute creates an

exception); see also Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/unless [https://perma.cc/MS95-FAW3] (defining

“unless” as “except on the condition that : under any other circumstance

than”).

¶15   The relevant exception here requires the court to determine, based on

“material evidence,” that a prohibition against the use of authorized medical

marijuana while on probation is “necessary and appropriate to accomplish

the goals of sentencing.” § 18-1.3-204(2)(a)(VIII)(B).3

¶16   Generally, the party against whom a presumption is directed bears the

burden of going forward with evidence to rebut it.             CRE 301 (“[A]

presumption imposes upon the party against whom it is directed the burden




3The statute also creates an exception where the defendant is sentenced to
probation for a conviction under the Colorado Medical Marijuana Code;
however, that exception is not at issue here.

                                       8
of going forward with evidence to rebut or meet the presumption . . . .”);

People v. Juvenile Ct., 893 P.2d 81, 93 (Colo. 1995) (applying the premise of

CRE 301 in a criminal context).

¶17   Here, because the presumption favors defendants by allowing them to

use authorized medical marijuana while on probation, the burden of

rebutting it falls on the prosecution. It is therefore the prosecution’s burden

to point the court to material evidence showing why the court should

prohibit this particular defendant from using authorized medical marijuana

while on probation. In considering the evidence, the sentencing court need

not necessarily make explicit findings on each of the sentencing goals listed

in section 18-1-102.5, but it must make findings sufficient to show that it has

considered the sentencing goals and that a prohibition condition is necessary

and appropriate to accomplish those goals in the case before it.4




4 This is not to say that the prosecution necessarily has to produce evidence
beyond what is likely already before the court, such as the presentence
investigation report, the defendant’s criminal history, and any evaluation
that was conducted. See CRE 1101(d)(3) (rules of evidence do not apply to
sentencing proceedings). But the court must make the required findings,
based on material evidence, and considering this particular defendant and
his or her circumstances before imposing a prohibition condition. See People
v. Padilla, 907 P.2d 601, 609 (Colo. 1995) (“The discretionary sentencing
process is intended to allow individualized sentencing; the court tailors a
sentence consistent with the defendant’s prior behavior and other factors.”).
And, if the evidence before the court is insufficient to show that such
                                      9
¶18   That is not what happened here. At the sentencing hearing, the county

court asked defense counsel if she had a medical professional available to

testify for Walton. Defense counsel said no, though she had presented

Walton’s state-issued medical marijuana authorization card, the physician

certificate that described Walton’s medical conditions for which marijuana

had been authorized, and the doctor’s medical license information. After

counsel argued that Walton should be able to use authorized medical

marijuana while on probation, the court found that it had “no information

about her medical situation and so [it had] nothing on which to base any kind

of authority for medical marijuana.” The court continued, finding “that

without any kind of [countervailing] evidence presented by the Defense that

generally speaking it’s not appropriate for people in DUI classes to be under

the influence of either alcohol or drugs.”      The court then imposed the

prohibition condition.

¶19   In reviewing this decision, the district court first noted that the county

court seemed to have a standing policy requiring any defendant who wished

to use medical marijuana while on probation to present a medical




prohibition is necessary and appropriate for this defendant, then the
prosecution has failed to carry its burden to overcome the presumption.

                                      10
professional to testify that “there is appropriate authority for the use of

medical marijuana.” The district court found this policy reasonable in light

of the sentencing goal of “providing fair and consistent treatment of all

convicted offenders by eliminating unjustified disparity in sentencing,

providing fair warning of the nature of the sentence to be imposed, and

establishing fair procedures for the imposition of sentences.” The district

court also found the county court’s policy to be a reasonable way to verify a

defendant’s authorization to use medical marijuana and to reduce the risk of

recidivism. Accordingly, the district court concluded that the county court

had not abused its discretion by requiring Walton to prove “the basis and

existence of [her] medical marijuana registration” with testimony from a

medical professional and by then prohibiting medical marijuana use as a

condition of probation when Walton failed to produce such testimony.

¶20   For two reasons, we disagree. First, the authenticity of Walton’s

medical marijuana card was not at issue in this case—no one argued that

Walton had not lawfully obtained her card or that she lacked state-

sanctioned authority to use medical marijuana. Thus, the district court’s

focus on the county court’s desire to further probe the legitimacy of Walton’s

authorization was misplaced. To the extent that the county court sought

more than a valid card to establish that Walton was “authorized,” as that

                                     11
term is used in the probation conditions statute, it imposed a burden greater

than that created by the legislature.5

¶21   Second, the county court’s blanket policy contradicts the plain

language of the probation conditions statute, which requires the court to base

any decision to prohibit medical marijuana use on the particular defendant’s

circumstances, after considering the material evidence before it and the

statutory sentencing goals. Thus, the district court erred by affirming the

county court’s prohibition condition based on this blanket policy.

                              III. Conclusion

¶22   We disapprove of the district court’s judgment.




5 The court may require that a defendant produce a medical marijuana card
in the first instance to show authorization. But the court need not assume
that all cards are valid. The constitution requires the state health agency to
create and maintain a confidential registry of individuals “who have
applied for and are entitled to receive a registry identification card.” Colo.
Const. art. XVIII, § 14(3). To be placed on the registry, an individual must
submit certain documentation, including a physician’s diagnosis of the
individual’s debilitating medical condition and identification information
for that physician. Colo. Const. art. XVIII, § 14(3)(b). And although the
information within that registry is confidential and can only be accessed in
very limited circumstances, see Colo. Const. art. XVIII, § 14(3)(a), there is a
public website that lists whether a particular card has been voided, denied,
or revoked. See Law Enforcement – Medical Marijuana Registry, Colo. Dep’t of
Pub. Health & Env’t, https://www.colorado.gov/pacific/cdphe/law-
enforcement-medical-marijuana-registry [https://perma.cc/M2RP-W7ZN].
                                         12
