COLORADO COURT OF APPEALS                                      2016COA136


Court of Appeals No. 14CA2254
El Paso County District Court No. 09CR4453
Honorable William B. Bain, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Aaron Michael Blackwell,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division VI
                         Opinion by JUDGE FURMAN
                        Miller and Navarro, JJ., concur

                        Announced September 22, 2016


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

Kimberly Penix, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    Aaron Michael Blackwell appeals the district court’s order

 revoking his deferred judgment for theft from an at-risk victim after

 he pleaded guilty to driving after revocation prohibited (DARP) in a

 later, unrelated deferred judgment agreement. Blackwell contends

 that his plea in the DARP case is not sufficient to prove that he

 violated a state criminal law — a condition of his deferred judgment

 in this case. Because we conclude that Blackwell’s later plea to

 DARP — a state criminal offense — constitutes a conviction within

 the meaning of the revocation hearing statute, § 16-11-206(3),

 C.R.S. 2016, we affirm the district court’s order.

                       I. The Deferred Judgment

¶2    Blackwell pleaded guilty to theft from an at-risk victim, and

 the district court deferred the judgment against him with the

 condition that he “violate no federal, state, or local criminal law.”

¶3    In a later case, Blackwell pleaded guilty to DARP, a class one

 misdemeanor. The district court also deferred the judgment against

 Blackwell in the DARP case.

¶4    The prosecution then filed a motion to revoke Blackwell’s

 deferred judgment in the theft case based on Blackwell being

 convicted of DARP.


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¶5    After a revocation hearing, the district court found that

 Blackwell’s guilty plea in the DARP case showed that he had

 committed DARP in violation of the terms of his deferred judgment

 in the theft case. The court subsequently revoked Blackwell’s

 deferred judgment.

              II. Applicable Law and Standard of Review

¶6    The revocation hearing statute provides that the prosecution

 normally has the burden to establish by a preponderance of

 evidence that a defendant violated a condition of a deferred

 judgment. See § 16-11-206(3). But, if the violation of the deferred

 judgment is a criminal offense, the violation “must be established

 beyond a reasonable doubt unless the [defendant] has been

 convicted thereof in a criminal proceeding.” Id.

¶7    We must determine whether a defendant who pleads guilty to

 a state criminal offense in the course of entering into a later

 deferred judgment agreement has been “convicted” within the

 meaning of the revocation hearing statute. To make this

 determination, we are guided by common rules of statutory

 interpretation.




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¶8    When interpreting a statute, our primary task is to determine

 and give effect to the intent of the legislature. Esquibel v. Bd. of

 Educ. Centennial Sch. Dist. R-1, 2016 COA 9, ¶ 7 (citing McKinley v.

 City of Glenwood Springs, 2015 COA 126, ¶ 5). To discern

 legislative intent, we look first to the statutory language, giving

 words and phrases their plain and ordinary meanings. Id. And, in

 construing the word “conviction,” the key factor to be considered is

 the legislative intent behind the use of the word in the statute

 involved. Hafelfinger v. Dist. Court, 674 P.2d 375, 376-77 (Colo.

 1984) (citing People v. Jacquez, 196 Colo. 569, 571 n.2, 588 P.2d

 871, 873 n.2 (1979)).

¶9    The current statute that authorizes the granting of a deferred

 judgment mandates that the court accept the defendant’s guilty

 plea before granting a deferred judgment and sentence. § 18-1.3-

 102(1)(a), C.R.S. 2016. And, section 16-7-206(3), C.R.S. 2016,

 provides that the court’s acceptance of such a plea “also acts as a

 conviction for the offense.” Thus, when the revocation hearing

 statute is read with the statutes governing deferred judgments and

 acceptance of guilty pleas, the only reasonable interpretation is that

 a defendant who pleads guilty to a state criminal offense in the


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  course of entering into a later deferred judgment agreement has

  been “convicted” within the meaning of the revocation hearing

  statute.

¶ 10   In Hafelfinger, our supreme court considered whether “a plea

  of guilty upon which a deferred sentence is granted constitutes a

  conviction.” 674 P.2d at 376-77. The court affirmed the trial

  court’s ruling that the defendant was ineligible for a personal

  recognizance bond because he had earlier pleaded guilty to

  dispensing a dangerous drug in the course of entering into a

  deferred judgment agreement. The court reasoned that when the

  statutes governing bail bonds, deferred sentences, and pleas of

  guilty are read together, that was “the only reasonable

  interpretation.” Id.; see Esquibel, ¶ 17 (determining the defendant

  was “convicted” after he pleaded guilty to felony drug possession

  under a deferred judgment agreement).

¶ 11   We review a trial court’s decision to revoke a deferred

  judgment for an abuse of discretion. See People v. Ickler, 877 P.2d

  863, 866 (Colo. 1994) (“[W]hether probation should be revoked,

  once a violation is found, is within the discretion of the trial

  court.”). A court abuses its discretion when its “decision is


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  manifestly arbitrary, unreasonable, or unfair.” People v. Salazar,

  2012 CO 20, ¶ 13.

                               III. Analysis

¶ 12   We conclude that the district court did not abuse its discretion

  in revoking Blackwell’s deferred judgment. Blackwell pleaded guilty

  to DARP, which resulted in a conviction and a violation of the terms

  of his deferred judgment in the theft case. § 16-11-206(3); see

  Hafelfinger, 674 P.2d at 378; Esquibel, ¶¶ 17-20.

¶ 13   Yet, Blackwell contends that a guilty plea resulting in a

  deferred judgment is not a conviction based on the supreme court’s

  statement in Kazadi v. People, 2012 CO 73, ¶ 19, that “[a] deferred

  judgment is not a judgment of conviction or a final, appealable

  judgment.” We disagree. The revocation hearing statute is based

  on a defendant’s being subsequently “convicted” of a crime, not

  receiving a “judgment of conviction.” § 16-11-206(3). The supreme

  court has made a distinction between these two terms. See

  Hafelfinger, 674 P.2d at 378 (“[A] ‘conviction’ occurs upon the

  acceptance by the trial court of the defendant’s plea of guilty;

  whereas, a ‘judgment of conviction’ occurs, if at all, when it is

  determined that the defendant has violated the conditions of the


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  deferred judgment and sentence . . . .” (citing People v. Widhalm,

  642 P.2d 498, 500 (Colo. 1982))).

¶ 14   Blackwell also contends that the district court did not find

  beyond a reasonable doubt that he violated the law. The district

  court, however, did not have to find beyond a reasonable doubt that

  Blackwell violated the law because the district court’s acceptance of

  Blackwell’s guilty plea to DARP amounted to a conviction. See § 16-

  11-206(3).

                            IV. Conclusion

¶ 15   The order is affirmed.

       JUDGE MILLER and JUDGE NAVARRO concur.




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