     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 21, 2020
                                2020COA80

No. 17CA1304, People v. Chavez — Criminal Procedure —

Postconviction Remedies — Reduction of Sentence; Criminal

Law — Sentencing — Punishment for Habitual Criminals —

Mandatory Sentences for Violent Crimes

     Defendant, Nehemiah Felipe Chavez, appeals the district

court’s order denying his Crim. P. 35(b) motion for sentence

reconsideration. He contends that the court should not have

imposed consecutive sentences under the crime of violence statute

because he was sentenced under the habitual criminal statute.

     Applying the principles of statutory construction set forth in

People v. Adams, 2016 CO 74, a division of the court of appeals

agrees with the trial court and concludes, like an earlier division —

see People v. Pena, 794 P.2d 1070 (Colo. App. 1990), overruled on

other grounds by Robles v. People, 811 P.2d 804 (Colo. 1991) — that
there is no conflict between the two provisions. Thus, the division

concludes that (1) both provisions applied to Chavez and (2) they

required the district court to impose Chavez’s two habitual offender

sentences to run consecutively.
COLORADO COURT OF APPEALS                                        2020COA80


Court of Appeals No. 17CA1304
Weld County District Court No. 11CR378
Honorable Shannon D. Lyons, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nehemiah Felipe Chavez,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division IV
                         Opinion by JUDGE FURMAN
                        Welling and Pawar, JJ., concur

                           Announced May 21, 2020


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

Megan A. Ring, Colorado State Public Defender, Heather Wong, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Nehemiah Felipe Chavez, appeals the district

 court’s order denying his Crim. P. 35(b) motion for sentence

 reconsideration. He contends that the court should not have

 imposed consecutive sentences under the crime of violence statute

 because he was sentenced under the habitual criminal statute. We

 disagree and, therefore, affirm the order.

                         I.   Chavez’s Sentence

¶2    A jury found Chavez guilty of two counts of attempted second

 degree murder and one count of attempted manslaughter. The jury

 also found that Chavez’s two convictions for attempted second

 degree murder were crimes of violence.

¶3    The district court found that Chavez had three prior felonies

 and adjudicated him a habitual criminal.

¶4    On each conviction for attempted second degree murder, the

 court sentenced Chavez to sixty-four years in the custody of the

 Department of Corrections (DOC) — the mandatory sentence under

 the habitual criminal statute. See § 18-1.3-801(2)(a)(I), (2)(a)(I)(A),

 C.R.S. 2019. Then, the court applied the crime of violence statute’s

 consecutive sentencing requirement, which provides that a “court

 shall sentence a person convicted of two or more separate crimes of


                                     1
 violence arising out of the same incident so that his or her

 sentences are served consecutively rather than concurrently.”

 § 18-1.3-406(1)(a), C.R.S. 2019. Because Chavez’s two convictions

 were crimes of violence arising out of the same incident, the court

 ordered Chavez’s two sentences to run consecutively. The court

 also imposed a concurrent twelve-year sentence on the attempted

 manslaughter conviction. All told, Chavez received an aggregate

 sentence of 128 years.

¶5    On direct appeal, a division of this court affirmed the

 judgment of conviction. See People v. Chavez, (Colo. App. No.

 12CA1774, Dec. 17, 2015) (not published pursuant to C.A.R. 35(f)).

¶6    Chavez then filed a Crim. P. 35(b) motion and a supplemental

 brief in which he contended that the court should impose all three

 of his sentences to run concurrently. He claimed that section

 18-1.3-406(1)(a)’s consecutive sentencing requirement should not

 apply where a defendant is sentenced under the habitual criminal

 statute, section 18-1.3-801.

¶7    The district court denied Chavez’s motion, concluding that the

 crime of violence statute required it to impose consecutive




                                   2
  sentences on his two convictions for attempted second degree

  murder.

                         II.   Standard of Review

¶8     We review a ruling on a Crim. P. 35(b) motion for an abuse of

  discretion. People v. Rodriguez, 914 P.2d 230, 288 (Colo. 1996). A

  court abuses its discretion if it misinterprets or misapplies the law.

  People v. Henson, 2013 COA 36, ¶ 9. The proper interpretation of a

  sentencing statute presents a question of law, which we review de

  novo. People v. Adams, 2016 CO 74, ¶ 12. So, here, we review de

  novo whether the district court misinterpreted or misapplied the

  sentencing statutes.

                               III.   Analysis

¶9     Chavez does not dispute that his two convictions for attempted

  second degree murder constituted “separate crimes of violence

  arising out of the same incident” under section 18-1.3-406(1)(a).

  Thus, the crime of violence statute required the district court to

  impose consecutive sentences on those two convictions.

¶ 10   But Chavez contends that the consecutive sentencing

  requirement in the crime of violence statute does not apply when a

  defendant is sentenced under the habitual criminal statute.


                                      3
¶ 11   A division of this court previously addressed the same issue

  we now face. See People v. Pena, 794 P.2d 1070, 1071-72 (Colo.

  App. 1990), overruled on other grounds by Robles v. People, 811

  P.2d 804, 806-07 (Colo. 1991). In Pena, the division recognized

  that the habitual criminal statute preempts one provision in the

  crime of violence statute. See id. The first sentence of section

  18-1.3-406(1)(a) requires that the length of a sentence for a crime of

  violence be “at least the midpoint in, but not more than twice the

  maximum of, the presumptive range provided for such offense in

  section 18-1.3-401(1)(a), [C.R.S. 2019].” That provision is

  incompatible with, for example, the habitual criminal statute

  requiring a sentence of either three times or four times the

  maximum of the presumptive range. See § 18-1.3-801(1.5), (2). So,

  the Pena division held that the habitual criminal statute preempts

  incompatible provisions of the crime of violence statute. 794 P.2d

  at 1071-72; see also People v. Hoefer, 961 P.2d 563, 568-69 (Colo.

  App. 1998) (same).

¶ 12   But Pena held that “the preemptive scope of the habitual

  criminal statute does not extend so far as to preclude the

  mandatory consecutive sentencing requirement for multiple crimes


                                    4
  of violence arising out of the same incident.” 794 P.2d at 1072. We

  agree with Pena.

¶ 13      The habitual criminal statute says nothing about whether

  multiple habitual criminal sentences should be imposed

  consecutively or concurrently. See generally § 18-1.3-801. And the

  provision in the habitual criminal statute under which Chavez was

  sentenced says nothing about the situation of triggering offenses

  being crimes of violence. See § 18-1.3-801(2). Because the crime of

  violence statute’s consecutive sentencing requirement does not

  conflict with the habitual criminal statute, we must give effect to

  both.

¶ 14      Adams is persuasive authority on the issue. There, the

  supreme court faced “the intersection of two sources of sentence

  enhancement”: section 18-1.3-401(8)(a)(IV), which requires an

  aggravated sentence range, and section 18-3-203(1)(f), C.R.S. 2019,

  which requires consecutive sentences. Adams, ¶¶ 2, 13-17. The

  court concluded there was no conflict between these provisions. Id.

  at ¶ 11. It explained,

               The plain language of these two statutes
               permits us to give effect to both provisions. A
               specific or local provision may apply to the


                                      5
            exclusion of a general provision, but that rule
            only applies where “the conflict between the
            provisions is irreconcilable.” § 2-4-205[,
            C.R.S. 2019] . . . . Here, there is no such
            conflict. A defendant can be sentenced to a
            greater number of years based on the general
            aggravator, and he can be made to serve that
            sentence [consecutively] following completion
            of his other sentences. We therefore apply
            both provisions.

  Id. at ¶ 16; see also People v. Opana, 2017 CO 56, ¶ 11 (“If a statute

  is clear and unambiguous, and is not in conflict with another

  statute, it must simply be applied as written.”).

¶ 15   Likewise, we conclude there is no conflict between the habitual

  criminal statute and the crime of violence statute’s consecutive

  sentencing requirement. So, we must give effect to both.

¶ 16   But wait, says Chavez. His interpretation of the statutory

  scheme avoids the unjust and unreasonable result that the

  habitual offender sentence enhancements could mandate a harsher

  sentence for an individual who commits multiple crimes of violence

  arising out of a single occasion than one who does so through

  separate and distinct criminal episodes. But we see nothing unjust

  or unreasonable about this result. The legislature has mandated a

  harsher, consecutive, sentence for crimes of violence arising out of a



                                    6
  single incident and has not done so for crimes of violence arising

  out of separate incidents.

¶ 17   Chavez also contends that we should construe the statutory

  scheme to preserve district courts’ sentencing discretion. See, e.g.,

  People v. Padilla, 907 P.2d 601, 609-10 (Colo. 1995) (“We decline to

  interpret [a particular statute and rule of criminal procedure] in a

  manner that compromises the effectiveness of discretionary

  sentencing.”). But the legislature has removed this discretion in

  cases such as the present one.

¶ 18   Chavez also asks us to consider the statutory construction

  aids enumerated in section 2-4-203, C.R.S. 2019, along with the

  rule of lenity. See People v. Thoro Prods. Co., 70 P.3d 1188, 1198

  (Colo. 2003) (“[A]mbiguity in the meaning of a criminal statute must

  be interpreted in favor of the defendant under the rule of lenity.”).

  But these principles apply only where a statutory scheme is

  ambiguous. § 2-4-203(1); Thoro Prods. Co., 70 P.3d at 1198. We

  discern no ambiguity in the fact that both section 18-1.3-801(2) and

  the last sentence of section 18-1.3-406(1)(a) apply. So, we need not

  rely on these principles.




                                     7
¶ 19   That this is an appeal of the district court’s order denying

  Chavez’s Crim. P. 35(b) motion does not change the analysis.

  “Under Crim. P. 35(b), the court’s discretion is constrained by

  applicable statutory limits.” People v. Dunlap, 36 P.3d 778, 781

  (Colo. 2001). “Crim. P. 35(b) cannot expand the trial court’s

  authority in resentencing beyond that which it had initially.” Id.

  “The same statutes that governed the original sentencing limit the

  trial court’s authority on resentencing.” Id.

¶ 20   At oral argument, Chavez argued for the first time that the

  district court had the discretion in a Crim. P. 35(b) proceeding to

  change consecutive sentences to concurrent sentences under the

  provision in section 18-1.3-406(1)(a) allowing a court to modify a

  sentence “in a case which it considers to be exceptional and to

  involve unusual and extenuating circumstances.” Because Chavez

  did not raise this argument in the district court to preserve it for

  appeal, we will not consider it. See People v. Huggins, 2019 COA

  116, ¶ 17 (“When a defendant does not raise an issue in a

  postconviction motion or during the hearing on that motion, and

  the postconviction court therefore does not have an opportunity to




                                     8
  rule on the issue, as a general rule, the issue is not properly

  preserved for appeal and we will not consider it.”).

¶ 21   We recognize that Chavez’s aggregate DOC sentence is lengthy.

  But reviewing the applicable sentencing statutes de novo, we

  conclude that they required the district court to impose consecutive

  sentences on Chavez’s two convictions for attempted second degree

  murder. Thus, the court did not abuse its discretion in denying

  Chavez’s Crim. P. 35(b) motion.

                             IV.   Conclusion

¶ 22   The order is affirmed.

       JUDGE WELLING and JUDGE PAWAR concur.




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