     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
                                                          November 21, 2019

                               2019COA174

No. 19CA0976, People v. Scott — Crimes — Escape; Criminal
Law — Sentencing

     In this prosecution appeal, a division of the court of appeals

holds that the General Assembly did not legislatively overrule People

v. Andrews, 871 P.2d 1199 (Colo. 1994), concerning the mandatory

minimum sentence for the crime of escape, by its 1995 amendment

to section 18-8-208, C.R.S. 2019. Therefore, because the division

concludes that Andrews is still binding authority, it affirms the trial

court’s sentence.
COLORADO COURT OF APPEALS                                      2019COA174


Court of Appeals No. 19CA0976
Mesa County District Court No. 18CR1011
Honorable Brian J. Flynn, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Cody Jay Scott,

Defendant-Appellee.


                            SENTENCE AFFIRMED

                                 Division III
                          Opinion by JUDGE WEBB
                        Dunn and Lipinsky, JJ., concur

                        Announced November 21, 2019


Daniel P. Rubinstein, District Attorney, George Alan Holley II, Senior Deputy
District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1    This prosecution appeal requires us to decide whether the

 General Assembly has legislatively overruled People v. Andrews, 871

 P.2d 1199 (Colo. 1994), concerning the mandatory minimum

 sentence for the crime of escape (F3), by its 1995 amendment to

 section 18-8-208, C.R.S. 2019. Because we conclude that Andrews

 is still binding authority, we affirm the trial court’s sentence, which

 it imposed based on Andrews.

                             I. Background

¶2    Under section 16-12-102(1), C.R.S. 2019, the District Attorney

 for the 21st Judicial District appeals the four-year sentence (plus

 mandatory parole) imposed on defendant, Cody Jay Scott, following

 his guilty plea — without a sentencing concession — to escape, in

 violation of section 18-8-208(2). Specifically, the District Attorney

 contends the trial court erred as a matter of law in concluding

 based on Andrews that the mandatory minimum sentence was four

 years, under section 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2019, rather

 than eight years under section 18-1.3-401(8)(a)(IV). Scott concedes

 preservation.




                                    1
                         II. Standard of Review

¶3     The parties agree that we review interpretation of a sentencing

 statute de novo. See, e.g., People v. Wylie, 260 P.3d 57, 60 (Colo.

 App. 2010) (“To the extent defendant’s argument requires us to

 interpret statutory provisions, we do so de novo.”). That review is

 guided by several familiar principles.

      A court’s principal task when construing a statute is to give

       effect to the General Assembly’s intent, as determined

       primarily from the plain language of the statute. Romero v.

       People, 179 P.3d 984, 986 (Colo. 2007).

      The court construes the statute as a whole in an effort to give

       consistent, harmonious, and sensible effect to all its parts,

       and reads words and phrases in context and according to the

       rules of grammar and common usage. People v.

       Banuelos-Landa, 109 P.3d 1039, 1041 (Colo. App. 2004).

      If the statutory language is clear and unambiguous, the court

       does not engage in further statutory analysis, much less

       consider extrinsic information. Romero, 179 P.3d at 986.

      “The plainness or ambiguity of statutory language is

       determined by reference to the language itself, the specific

                                    2
       context in which that language is used, and the broader

       context of the statute as a whole.” Robinson v. Shell Oil Co.,

       519 U.S. 337, 340 (1997); see also Klinger v. Adams Cty. Sch.

       Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006).

      A statutory interpretation leading to an illogical or absurd

       result will not be adopted, and courts avoid constructions that

       are at odds with the overall legislative scheme. See People v.

       Tixier, 207 P.3d 844, 847 (Colo. App. 2008).

                                 III. Law

¶4     The sentencing range for a class 3 felony is four to twelve

 years. § 18-1.3-401(1)(a)(V)(A.1). But the presence of one or more

 “extraordinary aggravating circumstances” requires an enhanced

 minimum sentence of “at least the midpoint in the presumptive

 range” — which is eight years for a class 3 felony.

 § 18-1.3-401(8)(a). Relevant here, one such aggravating factor is

 that “[t]he defendant was under confinement . . . or in any

 correctional institution as a convicted felon, or an escapee . . . at

 the time of the commission of a felony.” § 18-1.3-401(8)(a)(IV). And

 at least on appeal, Scott does not dispute that he “was under




                                    3
 confinement or in any correctional institution” when he walked

 away from a halfway house.

¶5    The first Colorado case to address whether a defendant’s

 conviction for escape “triggered the operation of this enhanced

 sentencing provision” was People v. Russell, 703 P.2d 620, 622

 (Colo. App. 1985), abrogated on other grounds by People v. Sanchez,

 769 P.2d 1064 (Colo. 1989). Unsurprisingly, the Attorney General

 argued that this enhancement provision applied “because

 commission of felony escape is a felony committed while under

 confinement and continued while an escapee.” Id.

¶6    The division disagreed. It explained that under this

 construction, “conviction of the class 3 felony of escape would

 always require imposition of a sentence in excess of the

 presumptive range specified for such class of felonies.” Id. Instead,

 the division held that the enhancement provision “does not apply to

 the crime of escape, but rather it applies to other felonies

 committed while under confinement or to other felonies committed

 after escape from confinement.” Id.

¶7    Almost a decade later, and without any intervening legislation,

 our supreme court addressed application of the enhancement


                                    4
 provision to escape in Andrews. Again, the Attorney General

 argued that, “because the defendant was under confinement as a

 convicted felon at the time he committed the felony of attempted

 escape, the sentence enhancement provision applies.” 871 P.2d at

 1201. The supreme court disagreed.

¶8    Echoing Russell, the court explained that, under the Attorney

 General’s construction, the enhancement provision “would apply

 automatically to every individual convicted of class 3 felony escape.”

 Id. at 1202. And such a construction was unacceptable because it

 “would effectively render meaningless the classification of the felony

 as class 3, since in each and every case an enhanced sentence

 would be imposed upon the defendant.” Id.

¶9    The supreme court went on to hold that “the legislature did

 not intend to punish escape and attempted escape through

 application of the enhancement provision . . . .” Id. at 1203. In

 doing so, it noted “that since it was decided in 1985, this court has

 addressed the Russell decision on at least four occasions, and while

 limiting its application to crimes of escape we have not altered its

 force.” Id.; see also People v. Phillips, 885 P.2d 359, 360 (Colo. App.

 1994) (“According to Andrews . . . automatic aggravation of every


                                    5
  felony escape conviction would render meaningless the original

  statutory classification of that crime and that, therefore, it was

  contrary to the presumption that statutes are intended to be

  effective in their entirety.”).

¶ 10    Everyone would agree that the Colorado Court of Appeals

  must follow binding Colorado Supreme Court precedent. See, e.g.,

  In re Estate of Ramstetter, 2016 COA 81, ¶ 40. So, if the story

  stopped here, under Andrews its ending would be obvious.

¶ 11    But divisions have sometimes avoided this limitation by

  holding that because a supreme court decision has been

  legislatively overruled by the General Assembly, it is no longer

  binding. See, e.g., People v. Bondurant, 2012 COA 50, ¶ 75 (“We

  agree with other divisions of this court that the 1999 amendments

  legislatively overruled Cooper with respect to the intent element of

  burglary.”).

¶ 12    So, do we follow Andrews and affirm or conclude — as the

  District Attorney argues — that Andrews was overruled when the

  General Assembly added section 18-8-208(9) and reverse? We

  conclude that Andrews was not legislatively overruled.




                                     6
       IV. The Continuing Vitality of Andrews in Light of Section
                             18-8-208(9)

¶ 13   According to the District Attorney, section 18-1.3-401(8)(a)(IV)

  mandates an enhanced sentence for escape because the General

  Assembly “clearly annunciated that it intended for escapes to be

  aggravated” by adding subsection (9) to section 18-8-208 the year

  after Andrews was announced. We begin with the plain language of

  section 18-8-208(9) but discover that it is not so clear.

                  A. Section 18-8-208(9) is Ambiguous

¶ 14   When subsection (9) was added, it read: “The minimum

  sentences provided by sections 18-1-105, 18-1-106, and 18-1-107

  respectively, for the violation of the provisions of this section shall

  be mandatory, and the court shall not grant probation or a

  suspended sentence . . . .” Ch. 240, sec. 16, § 18-8-208, 1995 Colo.

  Sess. Law 1255 (emphasis added). At that time, section

  18-1-105(9)(a)(V), C.R.S. 1995, required — as section 18-1.3-

  401(8)(a)(IV) does now — an enhanced sentence if “[t]he defendant

  was under confinement . . . in any correctional institution as a




                                      7
  convicted felon, or an escapee . . . at the time of the commission of

  a felony.”1

¶ 15   The District Attorney argues that the plain language of section

  18-8-208(9) requires an enhanced sentence for escape. Scott

  responds that section 18-8-208(9) does not address whether an

  escapee is subject to an enhanced sentence, but “rather what

  sentencing options are available to the court — specifically, that

  probation or a suspended sentence are not possibilities because the

  minimum sentences outlined in the sentencing statutes . . . are

  mandatory.”

¶ 16   To be sure, differing possible interpretations of statutory

  language do not necessarily mean that the statute is ambiguous.

  Cf. Klun v. Klun, 2019 CO 46, ¶ 19 (“The mere fact that the parties

  may interpret the agreement differently, however, does not alone



                         ———————————————————————
  1 Section 18-1.3-401(8)(a)(IV), C.R.S. 2019, is substantially similar
  to former section 18-1-105(9)(a)(V), C.R.S. 1995, which was in effect
  when section 18-8-208(9), C.R.S. 2019, was enacted. See People v.
  Willcoxon, 80 P.3d 817, 821 (Colo. App. 2002) (recognizing that
  former section 18-1-105(9)(a)(V) is now codified at section
  18-1.3-401(8)(a)(IV)), overruled on other grounds by People v. Adams,
  2016 CO 74. The cross-reference in section 18-8-208(9) has since
  been amended to change, among others, section 18-1-105 to
  section 18-1.3-401.

                                    8
  establish an ambiguity.”). But as explained below, both

  interpretations are reasonable. And “[a] statute is ambiguous if it is

  susceptible to multiple reasonable interpretations.” Carrera v.

  People, 2019 CO 83, ¶ 18.

¶ 17   On the one hand, the General Assembly’s use of the phrase

  “shall be mandatory” in section 18-8-208(9) after referencing

  section 18-1-105 could mean that all of section 18-1-105 was

  mandatory for escape, including the enhanced sentencing provision

  of section 18-1-105(9)(a)(V). On the other hand, the General

  Assembly cross-referenced three sentencing statutes generally —

  those for felonies, misdemeanors, and petty offenses — followed by

  the language “shall be mandatory, and the court shall not grant

  probation or a suspended sentence.” § 18-8-208(9). So, subsection

  (9) could be read as requiring a sentence under whichever of those

  statutes applied, while removing any discretion for the court to

  grant probation or impose a suspended sentence.

¶ 18   Of course, the General Assembly could have avoided this

  ambiguity by expressly declaring its intent to overrule Andrews.

  See § 2-4-214, C.R.S. 2019 (“[T]he rule of statutory construction

  expressed in the Colorado supreme court decision entitled People v.


                                    9
  McPherson, 200 Colo. 249, 619 P.2d 38 (1980), . . . has not been

  adopted by the general assembly and does not create any

  presumption of statutory intent.”). But because it did not, at least

  expressly, we must look beyond the language of section 18-8-208(9)

  to determine the meaning. See In re Marriage of Garrett, 2018 COA

  154, ¶ 29 (“We must engage in [an] examination of legislative intent

  because the statute is ambiguous.”).

       B. The General Assembly Did Not Clearly Intend to Overrule
                              Andrews

¶ 19    “[W]hen the General Assembly amends a statute, we presume

  that it is aware of published judicial precedents construing the prior

  version of the statute.” Przekurat v. Torres, 2016 COA 177, ¶ 23.

  So, in weighing the District Attorney’s argument that the General

  Assembly overruled Andrews by adding section 18-8-208(9) after

  that opinion was announced, we recognize that the General

  Assembly could have intended to disavow that case without

  expressly mentioning it.

¶ 20    Passamano v. Travelers Indemnity Company, 882 P.2d 1312,

  1323 (Colo. 1994), is illustrative. There, the supreme court held

  that section 10-4-609(1), C.R.S. 1994, applied to automobile rental



                                   10
  companies. Then the General Assembly amended section

  10-4-609(1) as follows: “This subsection (1) shall not apply to motor

  vehicle rental agreements or motor vehicle rental companies.” See

  Ch. 51, sec. 4, § 10-4-609(1)(b), 1995 Colo. Sess. Laws 143. In a

  later case, the supreme court explained that “[t]his amendment was

  inconsistent with our holding in Passamano and clearly implied

  abrogation.” Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997).

¶ 21   But the language of section 18-8-208(9) does not similarly

  imply a legislative intent to overrule Andrews. See id. (explaining

  that “[e]ven if a connection could be imagined between Savio and

  the 1991 amendment to section 8-43-304(1),” the standard for

  abrogation “requires more than an imagined connection”). Consider

  that had the General Assembly intended to overrule Andrews —

  albeit without mentioning the case — it could have referenced

  section 18-1-105(9)(a)(V) rather than more broadly citing to section

  18-1-105.

¶ 22   Given the lack of textual support for the District Attorney’s

  position, you might wonder whether legislative history provides him

  with the necessary explanation. See Gallegos v. Phipps, 779 P.2d

  856, 861 (Colo. 1989) (“According to the legislators who sponsored


                                   11
  House Bill 1205, which later became section 13-21-115, the

  common-law categories were reestablished because the reasonable

  person standard created by Mile High Fence [v. Radovich, 175 Colo.

  537, 489 P.2d 308 (1971),] led to unpredictable and inequitable

  results.”); see also In re Marriage of Ciesluk, 113 P.3d 135, 141

  (Colo. 2005) (“[T]his reading of the statute is equally consistent with

  the legislative history of the statute, which indicates that legislators

  proposed the amendments in an effort to eliminate the Francis

  test.”). It does not.

¶ 23   The legislative history does not mention Andrews. Compare In

  re Marriage of Gallo, 752 P.2d 47, 50 (Colo. 1988) (“The legislative

  history of the Protection Act makes it clear that the principal

  purpose of the legislation was to legislatively overrule the McCarty

  decision.”), with People v. Carey, 198 P.3d 1223, 1230 (Colo. App.

  2008) (“The legislative history of the 1994 amendment includes no

  discussion of Bossert.”).

¶ 24   Rather, the legislative history paints a clear picture that the

  General Assembly’s focus was on correcting a disparity between

  escape, which allowed for probation or a suspended sentence, and

  attempted escape, which did not, although the latter offense is the


                                     12
  less serious. In a hearing before the Senate Judiciary Committee,

  Ray Slaughter — then the Director for the Colorado District

  Attorney’s Counsel — explained that the addition of section

  18-8-208(9)

             corrects an error between escape and
             attempted escape. Currently . . . if you are
             convicted of escape from a penitentiary or a jail
             facility . . . you can get probation. Which
             doesn’t make a lot of sense because you’ve just
             escaped from jail. But you are eligible for
             probation. On the other hand, if you are
             convicted of attempting to escape, but not
             getting away with it, you are not eligible for
             probation. We felt that you probably didn’t
             want these people eligible for probation in
             either case. And in fact, the practice, of
             course, is to take the plea to attempted escape
             to preclude any possibility of probation. That
             is the practice. So, [the amendment] remedies
             that by simply stating that with a conviction
             for escape you’re not eligible for probation.

  Hearings on H.B. 1070 before the S. Judiciary Comm., 60th Gen.

  Assemb., 1st Sess. (Apr. 5, 1995).

¶ 25   This reason was echoed by Senator Dorothy Wham during the

  second reading of the bill on the senate floor. The senator

  explained that the bill overall “deals with . . . problems that have

  come up in the substantive criminal law.” And regarding section

  18-8-208(9) specifically, she explained:


                                    13
              If a defendant is convicted of attempt to
              escape, the sentence is mandatory and the
              court shall not grant probation or a suspended
              sentence. This was not included in the greater
              offense of escape. And this section corrects
              that.

  Second Reading of H.B. 1070 before the Senate, 60th Gen. Assemb.,

  1st Sess. (Apr. 28, 1995).

¶ 26    These statements of purpose are particularly persuasive in

  resolving ambiguity. See § 2-4-203(1)(a), C.R.S. 2019 (“If a statute

  is ambiguous, the court, in determining the intention of the general

  assembly, may consider . . . [t]he object sought to be

  attained . . . .”).

¶ 27    Despite all of this, the District Attorney argues that the

  General Assembly’s intent to enhance the sentence for escape is

  shown by the lack of a comparable amendment to section

  18-8-208.1, C.R.S. 2019, sentencing for attempted escape. But

  when section 18-8-208(9) was added, the attempted escape statute

  already required that “the minimum sentences . . . of this section

  shall be mandatory, and the court shall not grant probation or a

  suspended sentence, in whole or in part . . . .” § 18-8-208.1(5),

  C.R.S. 1995. Because — as the legislative history explains — the



                                     14
  purpose of section 18-8-208(9) was to correct a disparity between

  escape and attempted escape, precise drafting would amend only

  the escape statute.

¶ 28   For these reasons, we discern no basis for holding that the

  General Assembly intended to overrule Andrews by adding section

  18-8-208(9). Therefore, we conclude that the trial court acted

  within its discretion in sentencing defendant to four years’

  imprisonment.

                             V. Conclusion

¶ 29   The sentence is affirmed

       JUDGE DUNN and JUDGE LIPINSKY concur.




                                    15
