COLORADO COURT OF APPEALS                                         2016COA124


Court of Appeals No. 15CA1324
City and County of Denver District Court Nos. 14CR10235 & 14CR10393
Honorable Brian R. Whitney, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Danny Gene Garcia,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division II
                          Opinion by JUDGE WEBB
                       Ashby and Márquez*, JJ., concur

                         Announced August 25, 2016


Cynthia H. Coffman, Attorney General, Melissa D. Allen, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Hardy and Juba, LLC, Michael S. Juba, Denver, 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. 2015.
¶1    Defendant, Danny Gene Garcia, appeals the district court’s

 refusal to award presentence confinement credit (PSCC) against the

 sentences it imposed in case numbers 14CR10235 and 14CR10393.

 He contends that we should interpret “may” in section

 18-1.3-407(2)(a)(I), C.R.S. 2015, as requiring a district or juvenile

 court to award PSCC whenever an offender is sentenced to the

 Youthful Offender System (YOS). Alternatively, he contends that

 even if “may” is permissive, the district court abused its discretion

 in refusing to award PSCC. We reject both contentions and affirm.

                             I. Background

¶2    The prosecution charged defendant as an adult with multiple

 felonies in each case, although he had committed the offenses when

 he was a juvenile. Under a global disposition, defendant pleaded

 guilty to one felony in each case. The parties stipulated to

 concurrent sentences in the custody of the Department of

 Corrections (DOC), with a controlling sentence of eighteen years in

 case number 14CR10235. They also agreed that each DOC

 sentence would be suspended if defendant successfully completed




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 six years in the YOS. The court sentenced defendant consistent

 with the agreement, but refused to award PSCC.

 II. Section 18-1.3-407(2)(a)(I) Does Not Mandate an Award of PSCC

¶3    The pertinent portion of section 18-1.3-407(2)(a)(I) provides:

 “The court may award an offender sentenced to the [YOS] credit for

 presentence confinement; except that such credit shall not reduce

 the offender’s actual time served in the [YOS] to fewer than two

 years.” (Emphasis added.)

¶4    Defendant first contends the district court misinterpreted

 section 18-1.3-407(2)(a)(I) as making a PSCC award discretionary.

 He argues that “may” in section 18-1.3-407(2)(a)(I) requires a court

 to award PSCC when it sentences a defendant to the YOS (unless

 the credit would reduce the sentence to less than two years). In

 effect, he asserts that “may” means “shall” because the YOS statute

 mandates that an offender be sentenced as an adult and be subject

 to the laws and DOC rules, regulations, and standards pertaining to

 adult inmates; DOC operates the YOS; and section 18-1.3-405,

 C.R.S. 2015, requires a court to award PSCC when a defendant is

 sentenced to the DOC.


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¶5    Defendant’s three assertions are correct. But considering the

 commonly understood permissive meaning of “may,” the structure

 of section 18-1.3-407(2)(a)(I), and the rehabilitative purpose of the

 YOS, we reject his conclusion that “may” means “shall.”

               A. Preservation and Standard of Review

¶6    Defendant made a similar statutory interpretation argument to

 the trial court. Statutory interpretation is a question of law subject

 to de novo review. See Dubois v. People, 211 P.3d 41, 43 (Colo.

 2009).

             B. Rules Governing Statutory Interpretation

¶7    Several incontrovertible rules inform the task of statutory

 interpretation.

¶8    To begin, a court endeavors to interpret a statute “in strict

 accordance with the General Assembly’s purpose and intent in

 enacting them.” In re 2000-2001 Dist. Grand Jury, 97 P.3d 921,

 924 (Colo. 2004). In determining that intent, the court first looks to

 the language chosen by the General Assembly, see Martin v. People,

 27 P.3d 846, 851 (Colo. 2001), giving words and phrases their




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  “plain and ordinary meaning,” People v. Dist. Court, 713 P.2d 918,

  921 (Colo. 1986).

¶9     Courts also read and consider the statute as a whole,

  construing it “to give consistent, harmonious, and sensible effect to

  all its parts.” Id. Courts presume that the General Assembly

  intended the entire statute to be effective. See § 2-4-201(1)(b),

  C.R.S. 2015; Martin, 27 P.3d at 851. And they avoid constructions

  that would lead to an illogical or absurd result, along with those

  which would be at odds with the overall legislative scheme. See

  People v. Blue, 253 P.3d 1273, 1277 (Colo. App. 2011).

¶ 10   “If the statutory language unambiguously sets forth the

  legislative purpose,” the court “need not apply additional rules of

  statutory construction to determine the statute’s meaning.” Martin,

  27 P.3d at 851. But if the language is ambiguous or appears to

  conflict with other statutory provisions, the court may consider the

  statute’s legislative history, the object sought to be attained, the

  consequences of a particular construction of the statute, and the

  legislative declaration or purpose. See § 2-4-203(1), C.R.S. 2015;

  Martin, 27 P.3d at 851.


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¶ 11   As particularly relevant here:

            If a general provision conflicts with a special or
            local provision, it shall be construed, if
            possible, so that effect is given to both. If the
            conflict between the provisions is
            irreconcilable, the special or local provision
            prevails as an exception to the general
            provision, unless the general provision is the
            later adoption and the manifest intent is that
            the general provision prevail.

  § 2-4-205, C.R.S. 2015. The preference in section 2-4-205 for the

  special or local and more recently enacted provision over the

  general provision applies even when the statutes appear in different

  sections. See, e.g., Carson v. Reiner, 2016 CO 38, ¶¶ 15-18 (giving

  preference to more specific and more recently enacted provision);

  People v. Fransua, 2016 COA 79, ¶¶ 21-22 (same).

                             C. Application

¶ 12   Defendant does not assert that the language of section

  18-1.3-407(2)(a)(I) — “The court may award an offender sentenced

  to the [YOS] credit for presentence confinement; except that such

  credit shall not reduce the offender’s actual time served in the [YOS]

  to fewer than two years” — is ambiguous. Nor is it.




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¶ 13      “[T]he legislature’s use of the term ‘may’ is generally indicative

  of a grant of discretion or choice among alternatives.” A.S. v.

  People, 2013 CO 63, ¶ 21. In contrast, “shall” is generally

  mandatory. See Dist. Court, 713 P.2d at 921. And “[w]here both

  mandatory and directory verbs are used in the same statute, . . . it

  is a fair inference that the legislature realized the difference in

  meaning, and intended that the verbs should carry with them their

  ordinary meanings.” A.S., ¶ 21 (quoting 3 Norman J. Singer & J.D.

  Shambie Singer, Sutherland Statutory Construction § 57:11 (7th ed.

  2015)). This inference strengthens where “shall” and “may” are

  “used in close juxtaposition.” Id. (quoting 3 Singer & Singer,

  Sutherland Statutory Construction § 57:11). Of course, “[w]e

  presume that the legislature does not use language idly.” Id. at

  ¶ 29.

¶ 14      Applying these interpretive guides to section

  18-1.3-407(2)(a)(I), the legislature’s use of the words “may” and

  “shall” in the same sentence indicates that it not only recognized

  their different meanings, but that it intended the words to carry

  their ordinary meaning. Thus, “may” in the first clause of the


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  sentence indicates a grant of discretion; “shall” in the second clause

  denotes a mandate.

¶ 15   The underlying purpose of the YOS statute — to provide a

  sentencing alternative for youthful offenders — supports this

  interpretation. The General Assembly declared that it intended to

  establish the YOS as a sentencing option with “a controlled and

  regimented environment that affirms dignity of self and others,

  promotes the value of work and self-discipline, and develops useful

  skills and abilities through enriched programming.”

  § 18-1.3-407(1)(a). Consistent with this intent, a YOS sentence

  should be more rehabilitative than punitive.

¶ 16   True enough, under the YOS statute, defendant was sentenced

  as an adult and “subject to all laws and [DOC] rules, regulations,

  and standards pertaining to adult inmates.” § 18-1.3-407(1)(d).

  But that overlay must yield to the extent it is at odds with the YOS

  statute’s broader objectives. § 18-1.3-407(1)(a).

¶ 17   Nor does the PSCC requirement in section 18-1.3-405 support

  a mandatory interpretation of section 18-1.3-407(2)(a)(I). First,

  although both sections address PSCC, section 18-1.3-407(2)(a)(I)


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  applies only when a defendant is sentenced to the YOS. Second,

  the legislature enacted the relevant portion of section 18-1.3-405

  (formerly section 16-11-306) in 1986. See Ch. 124, sec. 3,

  § 16-11-306, 1986 Colo. Sess. Laws 734. But the legislature did

  not add the provision concerning PSCC to section 18-1.3-407(2)(a)(I)

  (formerly section 16-11-311(2)(a)(I)) until 1996. See Ch. 229, sec. 1,

  § 16-11-311(2)(a)(I), 1996 Colo. Sess. Laws 1145. Thus, section

  18-1.3-407(2)(a)(I) applies here not only because it is more specific

  than section 18-1.3-405, but also because it was enacted more

  recently. See Martin, 27 P.3d at 852.

¶ 18   In sum, we conclude that the word “may” does not mandate

  that a court award PSCC when it sentences a defendant to the YOS.

  Instead, it gives the court discretion in determining whether to

  award PSCC based on the circumstances of each case.1




  1 We note that if defendant does not successfully complete his
  six-year YOS sentence and is then resentenced to the DOC, he will
  be entitled to an award of PSCC under section 18-1.3-405, C.R.S.
  2015.
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      III. The District Court Did Not Abuse Its Discretion in Declining to
                            Award Defendant PSCC

¶ 19      Alternatively, defendant contends the district court abused its

  discretion when it refused to award PSCC for the 358 days he spent

  in jail before he was sentenced in case number 14CR10235 and the

  418 days in case number 14CR10393.2 He argues that the district

  court’s refusal was not supported by the record because he would

  still serve just under five years in the YOS and he could be

  rehabilitated within two to three years. We discern no abuse of

  discretion.

            A. Sentencing Within the Range of the Plea Agreement

¶ 20      As a preliminary matter, we acknowledge but reject the

  Attorney General’s argument that because defendant was sentenced

  within the range agreed to by the parties in the plea agreement, his

  sentence is not subject to appellate review. See § 18-1-409(1),

  C.R.S. 2015 (A defendant does not have a right to appellate review

  of the propriety of the sentence “if the sentence is within a range

  agreed upon by the parties pursuant to a plea agreement.”). But



  2The Attorney General does not challenge defendant’s PSCC
  calculations.
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  the parties’ agreement is silent as to PSCC. Thus, although

  defendant was sentenced to six years in the YOS — just as provided

  in the plea agreement — we will consider his PSCC argument.

                  B. Preservation and Standard of Review

¶ 21     Before the district court, defendant advanced reasons why he

  should be awarded PSCC. An appellate court reviews a district

  court’s refusal to award PSCC for an abuse of discretion. See

  § 18-1.3-407(2)(a)(I). A court abuses its discretion when its decision

  is manifestly arbitrary, unreasonable, or unfair. See People v.

  Herrera, 2014 COA 20, ¶ 16.

                               C. Application

¶ 22     In refusing to award any PSCC against the YOS sentence, the

  district court made four findings:

        The purpose of the YOS was to rehabilitate.

        The longer YOS had “to effectuate its rehabilitative purpose,”

         the more likely it would be to succeed at rehabilitating

         defendant.




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        Defendant needed more time to rehabilitate than the

         codefendants based on his diagnoses, criminal history, and

         increasing propensity toward violence.

        The sentencing decision was intended to be remedial, not

         punitive.

¶ 23     The record supports these findings. For example, in one of the

  psychological evaluations, the doctor opined, “Given the likelihood

  of strong narcissistic personality tendencies, residual ADHD

  symptoms, and highly probable Conduct Disorder, [defendant] is

  not going to respond quickly or with any depth to any intervention

  modality.” In another psychological evaluation, a different doctor

  diagnosed defendant with attachment disorder. This doctor stated

  that the disorder was “difficult to treat but far from impossible”;

  treatment would require, in part, an environment that was

  well-structured, safe, and rational, along with therapeutic efforts

  that would require time and consistency; and defendant needed “to

  be in a contained environment for some time.”

¶ 24     During the sentencing hearing, the prosecutor argued that

  denying PSCC would be appropriate for defendant for the following

                                    11
  reasons. He was the most culpable of the codefendants and, with

  regard to his history, he was “most similar” to the codefendant who

  would not receive PSCC; based on the doctors’ diagnoses, treating

  defendant would take a long time; when defendant committed the

  offenses in one of the cases, he was on bond and was wearing an

  ankle monitor; defendant was the leader of a gang that had become

  focused on more dangerous crimes like robberies and assaults; at

  the transfer hearing, detectives testified that crime had dropped

  dramatically after defendant’s incarceration; defendant organized

  the crimes; the crimes had a significant impact on the victims; and

  a ten-day search warrant for defendant’s Facebook page showed

  daily references to criminal behavior, gang activity, and threats.

¶ 25   Defense counsel did not dispute these arguments and

  acknowledged that supporting information had been presented to

  the juvenile court during the transfer hearing. Still, counsel

  pointed out that at the transfer hearing one of the doctors had

  testified that treating defendant would take about three years.

¶ 26   But defendant has not made the transfer hearing transcript a

  part of the record on appeal. See People v. Campbell, 174 P.3d 860,


                                    12
  867 (Colo. App. 2007) (“[I]t is the appellant’s duty to provide those

  portions of the record necessary to substantiate the claims of error

  on appeal.”). And the psychological evaluations before the court

  during the sentencing hearing indicated that treating defendant’s

  disorders would be difficult as well as time consuming. Given that

  the district court also heard undisputed evidence about the extent

  of defendant’s criminal activity, its decision not to award PSCC was

  not manifestly arbitrary, unreasonable, or unfair. See Herrera,

  ¶ 16.

                               IV. Conclusion

¶ 27      The order is affirmed.

          JUDGE ASHBY and JUDGE MÁRQUEZ concur.




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