     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
                                                                 May 16, 2019

                                2019COA74

No. 16CA2176, People v. Trujillo — Crimes — Offenses
Involving Family Relations — Domestic Violence — Domestic
Violence Treatment Programs

     A division of the court of appeals addresses the issue whether

a defendant sentenced to jail can also be required to complete a

domestic violence treatment program under section 18-6-801(1)(a),

C.R.S. 2018. The division first concludes that section

18-6-801(1)(a) provides a general rule: a trial court must, in

addition to any sentence that it may impose, order a defendant who

has committed a crime of domestic violence to complete a domestic

violence treatment program. But, second, section 18-6-801(2)

provides an exception to the general rule: if the court sentences a
defendant to prison, it cannot order the defendant to complete a

domestic violence treatment program.

     The division concludes that, because the trial court in this

case sentenced defendant to jail, the exception in section

18-6-801(2) does not apply. As a result, the trial court properly

denied defendant’s Crim. P. 35(a) motion.
COLORADO COURT OF APPEALS                                          2019COA74


Court of Appeals No. 16CA2176
Pueblo County District Court No. 14CR2131
Honorable Larry C. Schwartz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mario Trujillo,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division V
                      Opinion by CHIEF JUDGE BERNARD
                       Pawar and Davidson*, JJ., concur

                           Announced May 16, 2019


Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Denver, Colorado, Alex San
Filippo-Rosser, Deputy State Public Defender, Pueblo, 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. 2018.
¶1    This appeal calls on us to decide whether an express exception

 to a general statutory rule applies to an arguably related

 circumstance that is not mentioned in the exception.

¶2    The general rule appears in section 18-6-801(1)(a), C.R.S.

 2018. This subsection (1)(a), which addresses crimes that include

 acts of domestic violence, requires a court to order a defendant who

 has committed such a crime to “complete a treatment program and

 a treatment evaluation that conform with the standards adopted by

 the domestic violence offender management board.”

¶3    The exception appears in section 18-6-801(2). This subsection

 (2) states that the requirements of subsection (1) “shall not apply to

 persons sentenced to the department of corrections.” In other

 words, a court that has sentenced a defendant to prison for a

 domestic violence crime cannot order him to complete a treatment

 program as described in subsection (1).

¶4    The question we must answer in this appeal is: Does the

 exception in subsection (2) prevent a court from ordering a

 defendant to complete a treatment program if the court has

 sentenced the defendant to jail? We answer that question “no.” We

 conclude, because of the reasons that we explain below, that


                                   1
 subsection (1)(a) applies to all sentences except for prison

 sentences.

¶5    In this case, the trial court imposed a two-year jail sentence on

 defendant, Mario Trujillo, for a misdemeanor involving domestic

 violence. The court also ordered him to complete a certified

 domestic violence treatment program. He appeals. We affirm.

                           I.   Background

¶6    The prosecution originally charged defendant with third degree

 assault, menacing, harassment, being a domestic violence habitual

 offender, and obstruction of telephone service. It also alleged that

 the facts of the case met the definition of domestic violence in

 section 18-6-800.3, C.R.S. 2018.

¶7    Defendant agreed to plead guilty to third degree assault.

 Under the plea agreement, he stipulated that the crime involved an

 act of domestic violence, that the court would sentence him to two

 years in jail, and that he would complete “a court certified domestic

 violence treatment and/or education program.”

¶8    The trial court accepted defendant’s plea. It then sentenced

 him to two years in jail, which was the maximum possible jail

 sentence; it ordered him to complete a domestic violence treatment


                                    2
  program; and it set a review hearing for a year later to determine

  whether he had complied with the treatment order.

¶9     Defendant then filed a Crim. P. 35(a) motion, which alleged

  that the treatment order was illegal and asked the trial court to

  vacate it. The court held a hearing on the motion. Relying, in part,

  on section 18-6-801(1)(a), the court decided that it had the

  authority to enter the treatment order because the order was “in

  addition to,” not part of, defendant’s sentence.

¶ 10   The court then offered to set a review hearing. Defendant

  objected, arguing that the court did not have the authority to set

  further review hearings because they would be “akin to some sort of

  probationary sentence.” He added that the prosecution could

  “initiate proceedings” for contempt, but the court did not have “the

  authority to order [him] to appear . . . when no contempt proceeding

  [was] ongoing.” The court agreed, and it set an internal review as a

  presumptive deadline for defendant to file some proof of his

  enrollment in a treatment program. The court then noted that it

  would be, at that point, “up to the [prosecution] to take any action”

  if he had not completed the program.




                                    3
   II.      Subsection (1)(a)’s Plain Language Requires the Trial Court to
                        Order Domestic Violence Treatment

¶ 11        Defendant contends that the legislature did not intend for the

  general rule in subsection (1)(a) to apply to jail sentences. We

  disagree.

       A.     Standard of Review and Statutory Interpretation Principles

¶ 12        This appeal requires us to interpret statutes. We review such

  issues de novo. People v. Ortiz, 2016 COA 58, ¶ 15.

¶ 13        When we interpret statutes, we must ascertain and give effect

  to the legislature’s intent. Colo. Dep’t of Revenue v. Creager

  Mercantile Co., 2017 CO 41M, ¶ 16. In doing so, “[w]e give effect to

  words and phrases according to their plain and ordinary

  meaning[s].” Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo.

  2011). And “we will not interpret a statute to mean that which it

  does not express.” Carruthers v. Carrier Access Corp., 251 P.3d

  1199, 1204 (Colo. App. 2010).

¶ 14        If a statute’s language is clear, we apply it as the legislature

  wrote it. Denver Post Corp., 255 P.3d at 1089. We “must read and

  consider the statutory scheme as a whole to give consistent,

  harmonious and sensible effect to all its parts.” Charnes v. Boom,



                                          4
  766 P.2d 665, 667 (Colo. 1988). “In interpreting a comprehensive

  legislative scheme, we must construe each provision to further the

  overall legislative intent behind the statutes.” Martin v. People, 27

  P.3d 846, 851-52 (Colo. 2001). And, “when interpreting more than

  one statute, we will favor a construction that avoids potential

  conflict between the relevant provisions.” People v. Smith, 971 P.2d

  1056, 1058 (Colo. 1999).

                B.    Crim. P. 35(a) versus Crim. P. 35(c)

¶ 15   The prosecution contends that defendant rode the wrong

  horse — Crim. P. 35(a) — to the courthouse; he should have relied

  on Crim. P. 35(c) instead. Crim. P. 35(a) provides that a “court may

  correct a sentence that was not authorized by law or that was

  imposed without jurisdiction at any time . . . .” Crim. P. 35(c) is

  “the proper postconviction route in which to challenge . . .

  sentences as unconstitutional.” People v. Collier, 151 P.3d 668, 670

  (Colo. App. 2006). And a defendant may assert that a court

  “rendering judgment was without jurisdiction over . . . the subject

  matter” in a Crim. P. 35(c) motion. Crim. P. 35(c)(2)(III).

¶ 16   The prosecution supports its contention by asserting that the

  treatment order was not part of defendant’s sentence. We agree.


                                     5
¶ 17   In subsection (1)(a), the legislature characterized a treatment

  order as something other than a sentence. Section 18-6-801(1)(a)

  states that, “[i]n addition to any sentence” imposed, the trial court

  “shall” order the defendant to “complete a treatment program.”

  (Emphasis added.)

¶ 18   Plus, domestic violence treatment, as contemplated by

  subsection (1)(a), “is not a form of punishment,” and subsection

  (1)(a) “does not mandate a ‘penalty.’” People v. Heisler, 2017 COA

  58, ¶ 45; see Allen v. People, 2013 CO 44, ¶ 7 (“Unlike a criminal

  sentence, the [sexually violent predator] designation is not

  punishment. . . . [A] trial court’s decision to designate an offender

  as [a sexually violent predator] is legally and practically distinct

  from its sentencing function.”).

¶ 19   We therefore conclude that the contentions defendant raises

  on appeal are cognizable under Crim. P. 35(c) instead of under

  Crim. P. 35(a). But, as the prosecution concedes, we must

  nonetheless address the merits of these contentions because

  defendant timely filed his motion.




                                       6
                               C.   Analysis

¶ 20   Section 18-6-801(1)(a) provides that, “[i]n addition to any

  sentence” imposed, the trial court “shall” order the defendant to

  “complete a treatment program.” Subsection (2) provides that the

  provisions of subsection (1)(a) do “not apply to persons sentenced to

  the department of corrections.” When we read these two

  subsections together, we conclude that they are clear and

  unambiguous.

¶ 21   The legislature’s use of the word “shall” requires the trial court

  to order a defendant convicted of a domestic violence crime to

  complete a treatment program. See People v. Dist. Court, 713 P.2d

  918, 921 (Colo. 1986)(“[T]he use of the word ‘shall’ in a statute is

  usually deemed to involve a mandatory connotation.”). The use of

  the word “any” means that the statute applies to all sentences. See

  Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007)(“When used as

  an adjective in a statute, the word ‘any’ means ‘all.’”).

¶ 22   The legislature provided a single, explicit exception in

  subsection (2): if the trial court sentences a defendant to prison, it

  cannot also order him to complete a treatment program. See

  Partners in Change, L.L.C. v. Philp, 197 P.3d 232, 235-36 (Colo.


                                      7
  App. 2008)(“[W]hen the General Assembly intended to exempt

  certain domestic violence offenders from treatment . . . it did so

  expressly” in subsection (2).); People v. Torres, 141 P.3d 931, 937

  (Colo. App. 2006)(noting that the trial court could not order

  treatment because it sentenced the defendant to prison). Generally,

  we interpret the legislature’s “inclusion of a single, specific, narrow

  exception to mean that the [legislature] intended that there be no

  other exceptions to the rule.” Cain v. People, 2014 CO 49, ¶ 13.

¶ 23   The trial court sentenced defendant to jail, not to prison. Jail

  and prison are decidedly different. Prison “has long been

  recognized as the proper place for the incarceration of those

  convicted of the graver offenses[,] . . . while county jails have been

  utilized for the confinement of those convicted of minor offenses.”

  Brooks v. People, 14 Colo. 413, 414, 24 P. 553, 553 (1890).

¶ 24   Because the court sentenced defendant to jail instead of

  prison, we reject his assertion that subsection (1)(a) did not require

  the court to order him to complete a treatment program. To agree

  with him would be to “create an exception to a statute that the plain

  meaning does not suggest or demand.” A.C. v. People, 16 P.3d 240,

  243 (Colo. 2001).


                                     8
¶ 25   When defendant pled guilty to third degree assault, he

  stipulated that (1) the offense involved domestic violence; (2) he

  would be incarcerated in a jail for two years; and (3) he would

  participate in a certified domestic violence treatment program. His

  plea and the three stipulations accompanying it triggered the

  requirements of subsection (1)(a). We therefore reject his assertion

  that subsection(1)(a) did not require the trial court to issue the

  treatment order.

¶ 26   We are not otherwise persuaded by defendant’s contention

  that section 16-11.8-103(4)(a)(II), C.R.S. 2018, modifies subsection

  (1)(a) to exclude jail sentences from the treatment requirement.

  This assertion begins by pointing to additional language in section

  18-6-801(1)(a), which declares that a defendant must complete a

  treatment program that “conform[s] with the standards adopted by

  the domestic violence offender management board as required by

  section 16-11.8-103(4).” Section 16-11.8-103(4)(a)(II), defendant

  continues, decrees that the domestic violence treatment board shall

  adopt treatment programs for “offenders . . . who are placed on

  probation, placed on parole, or placed in community corrections or

  who receive a deferred judgment and sentence.” This statute does


                                     9
  not, defendant wraps up, refer to offenders whom courts have

  sentenced to jail.

¶ 27   But “we must avoid statutory constructions that render

  statutory provisions a nullity,” People v. Morales, 2012 COA 2, ¶ 60,

  and constructions that would create “potential conflict between the

  relevant provisions” that does not necessarily exist, see Smith, 971

  P.2d at 1058. We conclude, for the following reasons, that

  defendant’s contention would render the general rule found in

  subsection (1)(a) a nullity and that it would create a conflict

  between subsection (1)(a) and section 16-11.8-103(4)(a)(II) that does

  not exist.

          1. The language of section 16-11.8-103(4)(a)(II) on which

               defendant relies only addresses a duty of the domestic

               violence offender management board; it does not address

               the authority of courts.

          2. Section 16-11.8-103(4)(a)(II) does not refer to the court’s

               obligation in section 18-6-801(1)(a) to order defendants to

               participate in treatment programs, and it does not

               incorporate or add to the exception to the general rule in

               section 18-6-801(2).


                                      10
3. Defendant’s contention omits additional language in

  section 16-11.8-103(4)(a)(II), which mandates that “the

  programs shall be developed in such a manner that, to

  the extent possible, [they] may be accessed by all

  offenders in the criminal justice system.” (Emphasis

  added.) An offender whom a court has sentenced to jail

  falls within the broad class of all the offenders in the

  criminal justice system.

4. Section 18-6-801(1)(c) states that “[n]othing in this

  subsection (1) shall preclude the court from ordering

  domestic violence treatment in any appropriate case.”

  (Emphasis added.) This language reinforces the general

  rule in subsection (1)(a).

5. Although section 16-11.8-103(4)(a)(II) requires the board

  to adopt guidelines and standards for use in treatment

  programs, it does not declare that such programs are

  only available to defendants whom courts have “placed

  on probation, placed on parole, or placed in community

  corrections or who receive a deferred judgment and

  sentence.” Rather, the guidelines and standards “shall”


                          11
              apply to those individuals, but they need not only apply

              to them.

                   III.   Defendant’s Other Contentions

¶ 28     Defendant raises three other attacks on the treatment order.

  We review these contentions de novo. See People v. Davis, 2012

  COA 14, ¶ 6.

                            A.   Court Probation

¶ 29     Defendant submits that the trial court placed him on

  something called “court probation” when it entered the treatment

  order because he would have to complete his treatment after his jail

  term. “Court probation” is a form of probation “in which the

  offender . . . reports only to the sentencing judge rather than [to] a

  probation officer.” Black’s Law Dictionary 1396 (10th ed. 2014).

  We conclude that this contention mischaracterizes what the court

  did.

¶ 30     Generally, a court cannot sentence a defendant to both jail

  and to probation because probation is considered an alternative to

  imprisonment. See Faulkner v. Dist. Court, 826 P.2d 1277, 1279

  (Colo. 1992). A court can order a defendant to serve jail time as a

  condition of probation, but, in such a case, a defendant convicted of


                                     12
  a misdemeanor can spend no more than sixty days in jail.

  § 18-1.3-202(1)(a), C.R.S. 2018.

¶ 31   Probation is a “form of sentence.” People v. Turner, 644 P.2d

  951, 953 (Colo. 1982); accord People v. Anderson, 2015 COA 12,

  ¶ 14 (“Probation is one of the sentencing alternatives available to a

  court when entering a judgment of conviction.”). But, as we have

  already concluded, an order requiring a defendant to complete

  domestic violence treatment is not a sentence because it is neither

  punishment nor penalty. § 18-6-801(1)(a) (a court orders domestic

  violence treatment “[i]n addition to” the sentence); Allen, ¶ 7;

  Heisler, ¶ 45.

¶ 32   And the trial court did not require defendant to “report” back

  to it after the Crim. P. 35(a) hearing. Recall that the court intended

  to set a review hearing after denying defendant’s motion. But, after

  defendant objected, the court decided that it would not set such a

  hearing, which meant that it did not have a supervisory role in

  ensuring that defendant completed domestic violence treatment.




                                     13
                            B.   Jurisdiction

¶ 33   Defendant next contends that the court could not enter the

  treatment order because it lost jurisdiction over him after he had

  finished his jail sentence. We disagree.

¶ 34   “A trial court loses jurisdiction upon imposition of a valid

  sentence except under the circumstances specified in Crim. P. 35.”

  People v. Wiedemer, 692 P.2d 327, 329 (Colo. App. 1984). But the

  court issued the order during the sentencing hearing, when it

  clearly had jurisdiction over defendant. The law clearly authorized

  this process.

                       C.   Contempt Proceeding

¶ 35   Defendant asserts that the trial court could not enforce the

  treatment order through a contempt proceeding because, by doing

  so, any additional jail time that the court might impose would result

  in a sentence exceeding the maximum penalty for third degree

  assault. The prosecution counters by maintaining that this issue is

  not ripe. We agree with the prosecution.

¶ 36   “Ripeness tests whether the issue is real, immediate, and fit

  for adjudication.” Bd. of Dirs., Metro Wastewater Reclamation Dist.

  v. Nat’l Union Fire Ins. Co., 105 P.3d 653, 656 (Colo. 2005). “Courts


                                    14
  should refuse to consider uncertain or contingent future matters

  that suppose speculative injury that may never occur.” Id.

¶ 37   The record does not contain any information indicating that

  defendant has refused to comply with the treatment order, that the

  prosecution has asked the trial court to issue a contempt citation,

  that the court has held a contempt hearing, or that the court

  punished defendant’s putative contempt by imposing a jail

  sentence. As a result, (1) the issue whether contempt is an

  appropriate enforcement mechanism has not been presented in this

  case in the context of an existing contempt proceeding; (2) the

  question whether the court will hold a contempt hearing is

  presently uncertain; (3) such a hearing would be contingent on an

  unknown, which is whether defendant has complied with the

  treatment order; and (4) the putative injury to which defendant

  points — incarceration for contempt — is, as of now, speculative

  and may never occur.

¶ 38   We therefore conclude that this issue is not ripe, see id., so we

  will not address it.

¶ 39   The order is affirmed.

       JUDGE PAWAR and JUDGE DAVIDSON concur.


                                   15
