     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
                                                               March 8, 2018

                                2018COA30

     No. 16CA1524, Abu-Nantambu-El v. State of Colorado —

Criminal Law — Compensation for Certain Exonerated Persons

     A division of the court of appeals considers whether a

defendant whose felony convictions were vacated, but who remains

convicted of a misdemeanor in the same case, is eligible for

compensation under § 13-65-101 — 103, C.R.S. 2017 (Exoneration

Statute). The division concludes that, because the plain language

of the statute requires that “all” of a petitioner’s convictions in the

case be vacated, and because the defendant-petitioner remained

convicted of a misdemeanor in the case at issue, he was not entitled

to petition for compensation under the Exoneration Statute.
COLORADO COURT OF APPEALS                                     2018COA30


Court of Appeals No. 16CA1524
City and County of Denver District Court No. 15CV520
Honorable Morris B. Hoffman, Judge


Abdu-Latif Kazembe Abu-Nantambu-El,

Plaintiff-Appellant,

v.

State of Colorado,

Defendant-Appellee.


                           JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE FREYRE
                       Bernard and Berger, JJ., concur

                         Announced March 8, 2018


Abdu-Latif Kazembe Abu-Nantambu-El, Pro Se

Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee
¶1    Defendant-petitioner, Abdu-Latif Kazembe Abu-Nantambu-El,

 appeals the district court’s order granting the State of Colorado’s

 motion to dismiss his petition for compensation pursuant to the

 “Compensation for Certain Exonerated Persons” statute, sections

 13-65-101 to -103, C.R.S. 2017 (Exoneration Statute).1 As a matter

 of first impression, we consider whether a defendant-petitioner

 whose felony convictions were vacated, but who remains convicted

 of a misdemeanor in the same case, is eligible for compensation

 under the Exoneration Statute. We conclude he is not. We further

 conclude that, because he is not eligible to file a petition under the

 Exoneration Statute, we need not address whether the court

 deprived him of his right to a jury trial under the statute.

 Accordingly, we affirm the district court’s order granting the State’s

 motion to dismiss.




 1 Between the district court’s ruling and the appellate briefing, the
 United States Supreme Court held that the Exoneration Statute’s
 requirement that a defendant prove his or her innocence by clear
 and convincing evidence to obtain a refund of costs, fees, and
 restitution paid pursuant to an invalid conviction does not comport
 with the defendant’s right to due process under the Fourteenth
 Amendment to the United States Constitution. Nelson v. Colorado,
 581 U.S. ___, ___, 137 S. Ct. 1249, 1255-58 (2017).

                                    1
                           I.    Background

¶2    A jury convicted Abu-Nantambu-El (formerly known as Paul

 Delano McKnight, Jr.) of first degree sexual assault (a class 3

 felony), second degree kidnapping (a class 2 felony), and third

 degree assault (a class 1 misdemeanor) in the same case, all arising

 out of an incident in which the victim claimed that Abu-Nantambu-

 El had raped her. His convictions were affirmed on appeal. People

 v. McKnight, 813 P.2d 331 (Colo. 1991).

¶3    Abu-Nantambu-El then filed a pro se Crim. P. 35(c) motion

 claiming ineffective assistance of counsel. He presented evidence

 that scientific testing was available during his trial and that his

 attorney never requested it. During the postconviction proceedings,

 a scientific test was conducted and it ruled out Abu-Nantambu-El

 as the contributor of the semen sample found in the victim’s

 underwear.

¶4    The district court found that Abu-Nantambu-El’s counsel

 provided ineffective assistance and that, but for the ineffective

 assistance, Abu-Nantambu-El would probably not have been

 convicted of the kidnapping and sexual assault charges. The court

 vacated these two felony convictions.


                                    2
¶5    However, the court also found that counsel’s ineffective

 assistance had not affected Abu-Nantambu-El’s third degree assault

 conviction, and it denied his Crim. P. 35(c) motion as to that

 conviction. The court’s order was affirmed on appeal. See People v.

 McKnight, slip op. at 12 (Colo. App. No. 97CA1638, Jan. 14, 1999)

 (not published pursuant to C.A.R. 35(f)). The prosecution elected

 not to retry the felony counts, but Abu-Nantambu-El remains

 convicted of the misdemeanor in that case.

¶6    Based on the order vacating his felony convictions, Abu-

 Nantambu-El filed a petition for compensation pursuant to the

 Exoneration Statute. The State filed a C.R.C.P. 12(b)(5) motion to

 dismiss, contending that Abu-Nantambu-El was not eligible to seek

 relief because (1) the order vacating the kidnapping and sexual

 assault convictions was based on ineffective assistance of trial

 counsel, a ground “unrelated to the petitioner’s actual innocence”;

 and (2) Abu-Nantambu-El remained convicted of third degree

 assault, and therefore he did not satisfy the portion of the statute

 requiring that “all convictions in the case” be vacated or reversed.

 The district court rejected the State’s first argument, but agreed

 with its second argument and granted the motion to dismiss. The


                                   3
 State did not cross-appeal the court’s “actual innocence” finding, so

 the only issue we consider is the eligibility requirements for filing a

 petition for compensation under the Exoneration Statute.

                              II.   Analysis

¶7    Abu-Nantambu-El contends that the district court erred when

 it concluded that his misdemeanor conviction precluded him from

 filing a petition under section 13-65-102(2)(a), C.R.S. 2017, because

 it was never vacated or reversed and remains on his record. He also

 contends that the court erred by rejecting his request for a jury trial

 under section 13-65-102(6)(b). We reject his first contention and

 therefore do not consider his second contention.

             A.    Standard of Review and Applicable Law

¶8    We review de novo the district court’s grant of a motion to

 dismiss. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.

 2004). In reviewing a motion to dismiss, we accept all matters of

 material fact in the petition as true and view the allegations in the

 light most favorable to the plaintiff. See Bly v. Story, 241 P.3d 529,

 533 (Colo. 2010). Under this standard, “only a complaint that

 states a plausible claim for relief survives a motion to dismiss.”

 Warne v. Hall, 2016 CO 50, ¶ 9 (quoting Ashcroft v. Iqbal, 556 U.S.


                                    4
  662, 679 (2009)). That is, a party must plead sufficient facts that, if

  taken as true, suggest plausible grounds to support a claim for

  relief. Warne, ¶ 24.

¶9     Statutory interpretation presents a question of law, which we

  review de novo. People v. Garcia, 113 P.3d 775, 780 (Colo. 2005).

  When interpreting a statute, a court must ascertain and give effect

  to the General Assembly’s “purpose or intent in enacting the

  statute.” Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To

  determine legislative intent, we first look to the language of the

  statute, giving words and phrases their commonly accepted and

  understood meanings. Garcia, 113 P.3d at 780; Martin, 27 P.3d at

  851. If those words are clear and unambiguous, we apply the

  statute as written. See Martin, 27 P.3d at 851. We may discern the

  plain meaning of statutory language by referring to its common

  dictionary meaning. See People v. Hunter, 2013 CO 48, ¶ 10.

¶ 10   “The legislative choice of language may be concluded to be a

  deliberate one calculated to obtain the result dictated by the plain

  meaning of the words.” Hendricks v. People, 10 P.3d 1231, 1238

  (Colo. 2000) (quoting City & Cty. of Denver v. Gallegos, 916 P.2d

  509, 512 (Colo. 1996)); People v. Guenther, 740 P.2d 971, 976 (Colo.


                                     5
  1987) (same). Consequently, “[w]hen the General Assembly

  includes a provision in one section of a statute, but excludes the

  same provision from another section, we presume that the General

  Assembly did so purposefully.” Well Augmentation Subdistrict of

  Cent. Colo. Water Conservancy Dist. v. City of Aurora, 221 P.3d 399,

  419 (Colo. 2009); accord United States v. Pauler, 857 F.3d 1073,

  1076 (10th Cir. 2017) (Where the legislature “includes particular

  language in one section of a statute but omits it in another section

  of the same Act, it is generally presumed that [it] acts intentionally

  and purposely in the disparate inclusion or exclusion.” (quoting

  Russello v. United States, 464 U.S. 16, 23 (1983))).

¶ 11   Finally, a court must read and consider the statute as a whole,

  giving harmonious and sensible effect to all its parts. People v.

  Martinez, 70 P.3d 474, 477 (Colo. 2003). If the statute is

  unambiguous and does not conflict with other statutory provisions,

  the court need look no further in determining its meaning. People

  v. Luther, 58 P.3d 1013, 1015 (Colo. 2002). However, if the

  language of the statute is ambiguous, or in conflict with other

  provisions, the court may look to legislative history, prior law, the




                                     6
  consequences of a given construction, and the goal of the statutory

  scheme to determine its meaning. Id.

  B.   Eligibility Requirements for Filing a Petition for Compensation

¶ 12   We begin by agreeing with Abu-Nantambu-El that the

  Exoneration Statute is aimed at compensating persons wrongfully

  convicted of and incarcerated for felonies. Indeed, section 13-65-

  102(1)(a) provides:

            Notwithstanding the provisions of article 10 of
            title 24, C.R.S., a person who has been
            convicted of a felony in this state and
            sentenced to a term of incarceration as a result
            of that conviction and has served all or part of
            such sentence, or an immediate family
            member of such person, may be eligible for
            compensation as set forth in this article upon
            a finding that the person was actually innocent
            of the crime for which he or she was convicted.

  Thus, a person who is wrongfully convicted of a misdemeanor may

  not seek relief under section 13-65-102(1). However, it does not

  necessarily follow that when a person is convicted of both a felony

  and a misdemeanor, in the same case, the court should only

  consider the felony and disregard the misdemeanor.

¶ 13   Section 13-65-102(2) sets forth the prerequisites for filing a

  petition for compensation:



                                    7
         A petition may be filed pursuant to this section
         only:

         (a) When no further criminal prosecution of the
         petitioner for the crimes charged, or for crimes
         arising from the same criminal episode in the
         case that is the subject of the petition, has
         been initiated by the district attorney or the
         attorney general and subsequent to one of the
         following:

         (I) A court vacating or reversing all convictions
         in the case based on reasons other than legal
         insufficiency of evidence or legal error
         unrelated to the petitioner’s actual innocence
         and following an order of dismissal of all
         charges; or

         (II) A court vacating or reversing all convictions
         in the case based on reasons other than legal
         insufficiency of evidence or legal error
         unrelated to the petitioner’s actual innocence
         and following an acquittal of all charges after
         retrial; and

         (b) Either:

         (I) If the conditions described in paragraph (a)
         of this subsection (2) are met on or after June
         5, 2013, not more than two years after said
         conditions are met; or

         (II) If the conditions described in paragraph (a)
         of this subsection (2) are met before June 5,
         2013, not more than two years after June 5,
         2013.

(Emphasis added.)




                                 8
¶ 14    After satisfying these threshold eligibility requirements to file a

  petition, a petitioner must then satisfy additional requirements to

  be eligible for compensation. See § 13-65-102(4)(a)(I) (a person who

  does not meet the definition of actual innocence is ineligible for

  compensation); § 13-65-102(4)(a)(II) (A person is ineligible if “[h]e or

  she committed or suborned perjury during any proceedings related

  to the case that is the subject of the claim.”); § 13-65-102(4)(a)(III)

  (A person is ineligible if, “[t]o avoid prosecution in another case for

  which the petitioner has not been determined to be actually

  innocent, he or she pled guilty in the case that served as the basis

  for the conviction and incarceration that is the subject of the

  petition.”).

¶ 15    The petition constitutes a civil claim for relief, § 13-65-

  102(1)(b), subject to the Colorado rules of civil procedure. § 13-65-

  102(5)(g). Upon receipt of a petition, the State may contest either

  the petitioner’s actual innocence or the petitioner’s eligibility for

  compensation. § 13-65-102(5)(d)(II). If the petition is contested,

  “the district court shall set the matter for a trial to the district court

  or, at the written election of either party, to a trial to a jury of six.”

  § 13-65-102(6)(b).


                                       9
¶ 16   The only portion of the statute at issue here is the meaning of

  “all convictions” in section 13-65-102(2)(a)(I) and (II), because no

  one disputes that Abu-Nantambu-El remains convicted of third

  degree assault in the case at issue. Abu-Nantambu-El urges us to

  interpret “all convictions” to mean felony convictions. He reasons

  that because the Exoneration Statute addresses only wrongly

  convicted felons, the legislature could not have meant to include

  misdemeanor convictions within its parameters. His argument

  might have some force were we to consider this language in

  isolation, because he is correct that the Exoneration Statute was

  enacted to compensate wrongfully convicted felons. However, we

  must view the statute as a whole, and in doing so, we reject his

  interpretation for four reasons.

¶ 17   First, the legislature’s use of the word “felony” in section 13-

  65-102(1)(a) convinces us that its use of “all convictions” in section

  13-65-102(2)(a) is intended to be broader than merely felony

  convictions. See City of Grand Junction v. Ute Water Conservancy

  Dist., 900 P.2d 81, 91 (Colo. 1995) (“The word ‘all’ is an

  unambiguous term. The dictionary definition and common usage of

  the word ‘all’ do not provide for an exception or exclusion that is not


                                     10
  expressly specified.”) (citations omitted); Hudgeons v. Tenneco Oil

  Co., 796 P.2d 21, 23 (Colo. App. 1990) (“‘All’ is an unambiguous

  term and means the whole of, the whole number or sum of, or every

  member or individual component of, and is synonymous with ‘every’

  and ‘each.’”). If the legislature had intended a court to consider

  only the felonies vacated or reversed in a case, it could have said so,

  as it did in sections 13-65-102(1)(a) and 13-65-103(3)(a). Because

  it did not, we view the legislature’s choice of “all convictions” as a

  deliberate one intended to encompass all the convictions in a case.

  Well Augmentation Subdistrict of Cent. Colo. Water Conservancy

  Dist., 221 P.3d at 419. Moreover, we may not add words to a

  statute that do not exist. People v. Diaz, 2015 CO 28, ¶ 12 (“We do

  not add words to the statute or subtract words from it.” (quoting

  Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007))); People v.

  Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009) (“But, in

  interpreting a statute, we must accept the General Assembly’s

  choice of language and not add or imply words that simply are not

  there.”).

¶ 18    Second, a petition may only be filed, under section 13-65-

  102(2)(a), when no further prosecution of the petitioner for “the


                                     11
  crimes charged, or for crimes arising from the same criminal

  episode in the case that is the subject of the petition,” has occurred.

  Like the “all convictions” language, “crimes charged” and “crimes

  arising from the same criminal episode” plainly encompass more

  than simply the felonies charged. If the filing requirements were

  limited to felony charges, the legislature would have so stated. Its

  choice of broader language evidences its intent to restrict the

  eligibility requirements for filing petitions for compensation to those

  cases in which a petitioner has been exonerated of all charges, not

  just the felony charges. Turbyne, 151 P.3d at 568 (“[W]e cannot

  supply the missing language and must respect the legislature’s

  choice of language.”).

¶ 19   Third, we are not persuaded by Abu-Nantambu-El’s contention

  that the word “incarceration” in section 13-65-102(1)(a) restricts the

  language of subsection (2)(a) to felony convictions. This assertion is

  inconsistent with the definition of incarceration found in section 13-

  65-101(5), which provides:

             “Incarceration” means a person’s custody in a
             county jail or a correctional facility while he or
             she serves a sentence issued pursuant to a
             felony conviction in this state or pursuant to
             the person’s adjudication as a juvenile


                                     12
            delinquent for the commission of one or more
            offenses that would be felonies if committed by
            a person eighteen years of age or older. For
            the purposes of this section, “incarceration”
            includes placement as a juvenile to the
            custody of the state department of human
            services or a county department of social
            services pursuant to such an adjudication.

¶ 20   In our view, this definition recognizes that a person charged

  with a felony may remain incarcerated in a county jail pending a

  conviction and sentence. Our view is supported by the language of

  section 13-65-103(3)(a) entitling an exonerated person to receive

  compensation in the amount of “seventy thousand dollars for each

  year that he or she was incarcerated for the felony of which he or

  she has been exonerated.”

¶ 21   As Abu-Nantambu-El concedes, the purpose of the statute is

  to compensate those who are actually innocent for the time they

  spent wrongfully incarcerated. Abu-Nantambu-El’s interpretation

  of “incarceration” would lead to the absurd result of compensating a

  wrongfully convicted person for the time he or she spent in the

  custody of the Department of Corrections but not for the time he or

  she spent awaiting that wrongful conviction in a county jail.

  Indeed, a person sentenced to the custody of the Department of



                                   13
  Corrections is entitled, as a matter of law, to receive credit against

  the sentence for pretrial confinement in a county jail. See § 18-1.3-

  405, C.R.S. 2017 (“A person who is confined for an offense prior to

  the imposition of sentence for said offense is entitled to credit

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

  confinement.”). And we may not interpret a statute in a way that

  leads to absurd results. Pineda-Liberato v. People, 2017 CO 95,

  ¶ 22.

¶ 22      Fourth, Abu-Nantambu-El’s contention is further undermined

  by the specific language of section 13-65-103 pertaining to the

  amount of compensation a qualified person may be awarded. In

  particular, section 13-65-103(3)(a) specifies annual compensation

  amounts for “the felony of which he or she has been exonerated.”

  The legislature’s choice of the word “felony” in this provision

  supports our conclusion that its decision to use “all convictions” in

  the eligibility requirements provision encompasses more than felony

  convictions. Pineda-Liberato, ¶ 22 (“We also read the statutory

  scheme as a whole, giving consistent, harmonious, and sensible

  effect to all of its parts . . . .”).




                                          14
¶ 23   Reading the Exoneration Statute as a whole, we conclude that

  the General Assembly intended to require that “all convictions in

  the case” be vacated or reversed, including any misdemeanor

  convictions, in order for a petition for compensation to qualify for a

  district court’s further consideration. Because we find the language

  unambiguous, we necessarily reject Abu-Nantambu-El’s invitation

  to consider the statute’s legislative history. See Luther, 58 P.3d at

  1015.

¶ 24   Abu-Nantambu-El finally contends that he qualifies to file a

  petition under the Exoneration Statute because the misdemeanor

  conviction was factually unrelated to the felony conviction.2 We

  disagree for two reasons.

¶ 25   First, Abu-Nantambu-El did not provide the record from his

  postconviction hearing as part of this appeal, and the burden is on



  2Abu-Nantambu-El explains that he did not consider including the
  misdemeanor conviction and sentence in his Crim. P. 35(c) motion
  because the sentence “had been fully served and had no effect, and
  was not the reason nor basis, nor was it factually related to his
  wrongful incarceration.” However, neither party disputes that the
  district court’s postconviction ruling considered the misdemeanor
  conviction, concluded that sufficient evidence supported it — as
  evidenced by Abu-Nantambu-El’s concession of sufficiency — and
  denied the motion as to that count.

                                    15
  an appellant to provide a record justifying reversal. See § 13-65-

  102(5)(f)(I); C.A.R. 10. Absent this record, we must assume that the

  district court’s finding that all of the convictions arose out of the

  same incident is correct. See People v. Gallegos, 179 Colo. 211,

  213, 499 P.2d 315, 316 (1972) (“No transcript of the evidence

  considered by the lower court was made a part of the record by

  appellant, and in the absence of any showing to the contrary we

  must presume that the findings are supported by the evidence

  presented to and considered by the court.”).

¶ 26   Second, the plain language of the petition eligibility provision,

  § 13-65-102(2)(a), does not distinguish between convictions arising

  from factually related and unrelated counts. Instead, the statute

  requires that “all convictions in the case” must have been vacated or

  reversed, not just those convictions factually related to the felony.

  § 13-65-102(2)(a) (emphasis added).

¶ 27   Accordingly, we conclude that because Abu-Nantambu-El

  failed to satisfy the petition eligibility requirements set forth in

  section 13-65-102(2)(a), his petition did not state a plausible claim

  for relief. We therefore affirm the district court’s ruling granting the

  State’s motion to dismiss.


                                      16
           C.    Right to Trial Under Section 13-65-102(6)(b)

¶ 28   Because we have concluded that Abu-Nantambu-El’s petition

  did not meet the threshold requirements for a district court’s

  further consideration, we reject his contention that the court erred

  in denying him a trial on the petition under section 13-65-102(6)(b).

                            III.   Conclusion

¶ 29   The judgment is affirmed.

       JUDGE BERNARD and JUDGE BERGER concur.




                                    17
