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analyzing claim of sentencing error under Crim. P. 35(c) and 35(c)
Summary of this case from People v. McGrawOpinion
No. 82SA243
Decided February 22, 1983. Rehearing denied March 14, 1983.
Appeal from the District Court of Arapahoe County Honorable Robert F. Kelley, Judge
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, Mary Ricketson, Assistant Attorney General, Nathan B. Coats, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, for defendant-appellant.
En Banc.
Defendants Harold Turman and Claude Cory appeal from a decision of the Arapahoe County District Court denying their motions to vacate and set aside their sentences pursuant to Crim. P. 35 and for an order to grant good-time allowances for pretrial commitment. We affirm.
These appeals were transferred from the court of appeals because of a constitutional challenge. Sections 13-4-102(1)(b) and 13-4-110(1)(a), C.R.S. 1973.
I.
On August 16, 1979, Cory was sentenced to a term of imprisonment of from 8 years 364 days to nine years at Canon City for aggravated robbery. On October 17, 1979, Turman was sentenced to a term of from ten to sixteen years at Canon City for first-degree assault. The crimes for which they were sentences were committed before July 1, 1979, and both were given credit for presentence confinement.
Cory was given credit for 147 days, and Turman was given credit for 153 days against the maximum sentence only.
They subsequently filed motions pursuant to Crim. P. 35. Turman denominated his request a "Motion to Vacate and Set Aside Sentence." and Cory entitled his a "Motion for an Order to Grant Good-Time Allowances for Pre-Trial Commitment." Turman's motion named the People as plaintiff. James Ricketts, Director of Corrections, and Lena Dice, Supervisor of Time Computation, were named respondents in Cory's motion. The People stipulated that both Turman and Cory were indigent at the time of their arrest and that their indigency prevented them from posting bail.
The thrust of their argument before the trial court was that they were entitled to good-time credit for the time they spent in presentence confinement. They argued that to deny them such credit would require them to spend a longer period incarcerated than a person who had received the same sentence but who had been able to post bail before being sentenced. They claimed that such a result deprived them of equal protection of the law.
Cory stated his case as follows: "Your Honor, the sentence you handed down was an 8 year 364 days to 9 year sentence, and the way they compute that is that on a 9 year sentence you do 4 years 5 months and 7 days with good time allowance. With the 147 days credit you gave me, the 147 days away from the 9 years leaves me with 8 years and 218 days. They compute the sentence from that point, so I going to end up doing 4 years 8 months and 12 days, or 3 months and 5 days longer than a person who was able to make bond, get sentenced, and then be transported to the prison with an exact same sentence. "Under the new sentencing law where a person does half his time and does an automatic one year of parole, say two people get 4 year sentences and one person is able to maintain himself on bail prior to being sentenced, the other person does say 6 months in the county jail prior to going to prison or being sentenced. Take the 6 months off that 4 years, he does a 3 1/2 year sentence as far as the prison is concerned and they divide that by 2 so he does 21 months there, plus the 6 months he did in the county, or a total of 27 months. "The person who was able to maintain himself on bail prior to being sentenced winds up doing exactly 24 months, and our premise for bringing this case is the denial of equal protection to those who are poor and unable to make bond."
The trial court, after finding that the Department of Corrections (Department) was not made a party (although it was advised of the Rule 35 proceeding brought by Cory), denied the defendants' motions on the ground that because it did not have jurisdiction over the Department or its employees, a Crim P. 35 proceeding was inappropriate.
II.
Crim P. 35(c)(2) affords every person convicted of a crime the opportunity for postconviction review on the grounds that the sentence was imposed in violation of the constitutions or laws of the United States or of Colorado; or that the sentence imposed exceeded the maximum authorized by law, or was not in accordance with the sentence authorized by law; or that the sentence imposed has been fully served.
Crim. P. 35(c)(3) allows an aggrieved person claiming a right to be released to request the court that imposed the sentence to vacate, set aside or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights. The rule further provides that if a person is entitled to postconviction relief the court shall vacate and set aside the judgment, impose a new sentence, discharge the prisoner, or make such orders as are appropriate to restore a right that was violated.
The rule affords a convicted person the remedies that are available through a writ of habeas corpus, and a proceeding under Crim. P. 35(c) is governed by equitable principles. People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976).
A Crim. P. 35 proceeding is but one phase of a criminal proceeding. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). Whether the court has jurisdiction to grant the relief requested must be determined by an analysis of the provisions of Crim. P. 35(c)(2) and (3). We have often looked to the American Bar Association Standards for Criminal Justice for guidance in the area of postconviction remedies. See People v. Hampton, 187 Colo. 131, 528 P.2d 1311 (1974); People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). The commentary to standard 22-2.1 indicates clearly that protection of constitutional rights requires that postconviction remedies be broad and flexible. ABA, Standards for Criminal Justice 22-2.1 (1980). Here the defendants have alleged that their constitutional rights to equal protection have been violated by the statute relating to good-time credit. Our reading of Rule 35(c)(2) leads us to the conclusion that the court had jurisdiction to consider whether the defendants' constitutional rights were being denied. Consequently, we believe that the trial court was in error in holding that it had no jurisdiction because the Department was not a party.
III.
Section 17-20-107, C.R.S. 1973 (1978 Repl. Vol. 8), effective at the time of the commission of the defendants' crimes provided:
This statute, as amended, remains in effect for those persons convicted of crimes committed prior to July 1, 1979. For persons convicted of crimes committed on or after July 1, 1979, see article 22.5 of title 17, C.R.S. 1973 (1982 Supp.).
"[E]very prisoner confined in the state penitentiary who has committed no infraction of the rules or regulations of the prison or the laws of the state and who performs in a faithful, diligent, industrious, orderly, and peaceable manner the work, duties, and tasks assigned to him to the satisfaction of the superintendent may be allowed time credit reductions. . . ."
The defendants contend that the failure of the Department to credit them with good time for the period spent in pretrial confinement denies them equal protection of the laws in violation of the fourteenth amendment to the United States Constitution and article II, section 25, of the Colorado Constitution. The basis of this claim is that section 17-20-107 requires them to serve more time in confinement than persons who received the same sentence, but who were not indigent and were therefore able to make bail.
A.
At the outset of our equal protection analysis, we must determine the level of scrutiny to be applied. If we find that a fundamental right or a suspect class is involved, we must apply a "strict scrutiny" analysis, under which the legislative provision, if it is to stand, must be supported by a "compelling state interest." Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Loving v. Virginia, 388 U.S. 1 (1967). Otherwise, we apply a "rational basis" test, under which the provision will be upheld if it is rationally related to a legitimate state interest. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
With respect to the "fundamental right" question, the United States Supreme Court has held that there is no constitutional right to good-time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Moreover, we have been unable to find any jurisdiction that holds that there is such a right. The United States Supreme Court has held that "[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a `retraction justified by the considerations underlying our penal system.'" Id. at 555 (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). If we were to view the withholding of good-time credits as the withholding of a fundamental liberty, we would be imposing an onerous burden on our corrections system. That is, before the state may deprive a citizen of a fundamental right, it must accord him a plethora of constitutional protections that may be incompatible with the efficient administration of a penal institution. Consequently, although the question of good-time credits does implicate a liberty interest, we are unwilling to conclude that it is a fundamental one. Therefore, we decline to employ a strict scrutiny analysis based upon the denial of a fundamental right.
The defendants urge more forcefully that section 17-20-107 is constitutionally infirm because it discriminates against a suspect class — the indigent. Contrary to the contentions of the defendants, however, the United States Supreme Court has never held that indigency is a suspect class. See G. Gunther, Constitutional Law 961 (10th ed. 1980); L. Tribe, American Constitutional Law 1098 (1979).
We note that the classification is not, strictly speaking, one based upon wealth; instead, it is one based upon whether the defendant was subjected to presentence confinement. As noted in Godbold v. District Court, 623 P.2d 862, 863 n. 9 (1981): "[I]n those cases where the facts warrant that bail be set in a high amount in order to insure the defendant's presence at trial, it cannot be said that indigency is the sole reason for presentence confinement. In those cases, the amount of bail may be such that even a `man of means' cannot or will not post the required bond." Moreover, in nonbailable offenses, the defendant's financial situation is unrelated to his presentence confinement. See section 16-4-101, C.R.S. 1973 (1982 Supp.).
The cases cited by defendants do not support the conclusion that wealth is a suspect class under the equal protection clause even in the context of the criminal justice system. For example, Gideon v. Wainwright, 372 U.S. 335 (1963), was not an equal protection case at all. It held that the right to counsel guaranteed by the sixth amendment was made applicable to the states by the fourteenth amendment and that as a matter of due process the state was required to furnish counsel to indigents. Douglas v. California, 372 U.S. 353 (1963), decided the same day as Gideon, relied on the equal protection clause in holding that indigents have a constitutional right to appointed counsel on appeal. The Douglas opinion did not, however, address the level of scrutiny involved, although if it used a strict scrutiny analysis, it was almost certainly on the basis of the existence of a "fundamental right," rather than on the basis that a "suspect class" was involved. The plurality opinion in Griffin v. Illinois, 351 U.S. 12 (1956), holding that indigents have a right to a free transcript on appeal, was based upon both the equal protection clause and the due process clause. Strict scrutiny analysis was apparently not used, the Court finding that the challenged procedure bore "no rational relationship to a defendant's guilt or innocence." Id. at 17-18. Likewise, the cases of Williams v. Illinois, 399 U.S. 235 (1970), and Tate v. Short, 401 U.S. 395 (1971), did not declare indigents a suspect class. Consider the following excerpt from Tate:
"Imprisonment in such a case is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose. . . ."
401 U.S. at 399. This is a classic "rational basis" analysis and will not support the conclusion that strict scrutiny was employed.
The defendants' reliance on the above cases is not well founded considering that the United States Supreme Court held, more recently than any of the cases discussed in the preceding paragraph, that a rational basis test should be used in determining whether a denial of good-time credit for presentence confinement is a violation of the equal protection clause. McGinnis v. Royster, 410 U.S. 263 (1973). With respect to the question of the level of scrutiny to be employed, there is no difference between the facts in McGinnis and those in the case at bar.
Justice Douglas, dissenting in McGinnis, did not quarrel with the majority's use of the rational basis test. His objection was that the statute did not meet the test.
McGinnis recognized the difficulties inherent in the administration of penal systems and observed that "`[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.'" Id. at 270 (quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913)). The defendants thus ignore clear United States Supreme Court precedent and instead choose to rely on tenuous analogies, thereby pretending that the Supreme Court has established the rules they invoke. It should also be noted that the majority of states that have considered this question have employed a rational basis test. See, e.g., Hampton v. Rowe, 88 Ill. App.3d 352, 410 N.E.2d 511 (1980) (struck down law); McCormick v. Hunt, 328 So.2d 140 (La. 1976) (upheld law). But see People v. Sage, 26 Cal.3d 498, 611 P.2d 874, 165 Cal.Rptr. 280 (1980) (struck down law under strict scrutiny analysis).
We thus conclude that this case is properly analyzed using the rational basis test.
B.
We now must examine the statutory scheme to determine whether it is supported by a rationale basis. The statute draws a line between those persons who remain in jail before conviction and those persons who make bail. The legislature has devised a system that encourages discipline and rehabilitation and rewards those who make an effort to conduct themselves in a constructive manner. See sections 17-20-104 (reduced time for good conduct), 17-20-105 (trusty prisoners), 17-20-113 (behavior certificate — restoration of citizenship), C.R.S. 1973 (1978 Repl. Vol. 8 and 1982 Supp.).
The defendants argue that because the state's interest in maintaining discipline in jails is the same as its interest in maintaining discipline in prisons, it is irrational to distinguish between time served in the two places with respect to the granting of good-time credit. Although it is true that the state has an interest in maintaining discipline in both places of incarceration, it does not necessarily follow that any difference in the means of maintaining it is irrational. The legislature might well have concluded that an added incentive for good behavior is necessary after conviction and sentencing, but that such an incentive is not necessary when the pretrial detainee has before him the prospect of a sentencing hearing in which the judge may consider his behavior while incarcerated.
It should be noted that People v. Sage, 26 Cal.3d 498, 611 P.2d 874, 165 Cal.Rptr. 280 (1980), which invalidated a California scheme that did not allow good-time credit for presentence confinement of accused felons, is distinguishable in this regard. The California plan provided good-time credit for presentence confinement of misdemeanants, but not felons. Consequently, the California court rejected the above justification.
See Godbold v. District Court, 623 P.2d 862 (Colo. 1981) (Quinn, J., dissenting) (misconduct during presentence confinement may be pertinent to sentencing decision, and sentencing judge may consider it in fixing term of sentence). See also section 18-1-105(9)(a)(V), C.R.S. 1973 (1982 Supp.); People v. Phillips, 652 P.2d 575 (Colo. 1982); People v. Scott, 630 P.2d 615 (Colo. 1981) (factors that may be considered by sentencing judge).
In McGinnis v. Royster, supra, the Court considered a New York statute that denied state prisoners good-time credit for presentence incarceration. It upheld the statute against an equal-protection challenge, finding that rehabilitation programs offered in a state correctional facility and a disciplinary purpose were both valid reasons to limit an award of good-time credit to prisoners in state facilities. In disposing of an argument that rehabilitation was not the primary purpose of the good-time credit classification, but rather that the legislature's primary aim was to foster and maintain discipline, the Court stated: "[Y]et, our decisions do not authorize courts to pick and choose among legitimate legislative aims to determine which is primary and which subordinate. . . . So long as the state purpose upholding a statutory class is legitimate and nonillusory, its lack of primacy is not disqualifying."
In Colorado, one of the purposes of sentencing is rehabilitation. See section 18-1-102.5(d), C.R.S. 1973 (1982 Supp.). The legislature has formulated a program whereby correctional officials are given an opportunity to evaluate a person's conduct and rehabilitative efforts before he is eligible for release and to reward those who observe the rules and regulations and faithfully perform assigned duties.
In a long line of cases we have held that there is no constitutional right to credit for presentence confinement. See e.g., Godbold v. District Court, 623 P.2d 862 (Colo. 1981); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Johnson, 185 Colo. 285, 523 P.2d 1403 (1974); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); People v. Coy, 181 Colo. 393, 509 P.2d 1239 (1973); People v. Scott, 176 Colo. 86, 489 P.2d 198 (1971); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971). We have consistently rejected the arguments of defendants that the decisions in Williams v. Illinois, supra, and Tate v. Short, supra, mandated our creation of such a right. These two cases held that it was unconstitutional to require an indigent defendant unable to pay a monetary fine to spend more time incarcerated than a defendant who could afford to pay. We have held that in order for us to accept the arguments of defendants that these cases are controlling we would have to conclude that presentence confinement is punishment and that an order fixing monetary bail is unconstitutional per se. People v. Jones, supra. We have been unwilling to reach such a conclusion.
Acceptance of the defendants' argument in this case would require us to do one of two things. First, we could overrule the entire line of cases from People v. Jones, supra, to Godbold v. District Court, supra. However, we believe the doctrine of stare decisis deserves more deference than would be accorded it by our overruling of over a decade of considered decisions. Second, we could distinguish those cases from the case at hand. We could conclude that, although there is no constitutional right to credit for presentence confinement, if the legislature chooses to extend any credit for presentence confinement, it must extend the full panoply of credit that may be earned in a facility under the control of the Department of Corrections. That is, there is a constitutional right to good-time credit for presentence confinement that arises only if credit is granted for time actually served in such confinement. We see no reason why the legislature may not constitutionally extend credit for time actually served in presentence confinement, while allowing good-time credit only for time spent in a correctional facility under the jurisdiction of the Department.
It should be noted that section 16-11-306, C.R.S. 1973 (1978 Repl. Vol. 8), at issue in our cases holding that there is no constitutional right to credit for presentence confinement, was amended effective July 1, 1979, to grant a statutory right to such credit. Colo. Sess. Laws 1979, ch. 157, 16-11-306 at 665.
We are not unmindful of the fact that there may be a certain amount of inequity inherent in the present system. It may not be equitable for a person who has spent time in pretrial confinement to spend more total time in confinement than one who was free on bail and who after conviction received an identical sentence. It is certainly not equitable that a person who is ultimately acquitted will spend time in confinement that another acquitted defendant who made bail would not spend. Not every inequity, however, is sufficient to render a system unconstitutional.
The legislature has made a policy decision. That we might believe the decision it reached was not the best, or that we might have reached a different decision, or even that we might believe the decision incorrect, does not entitle us to overrule the decision of a coordinate branch of government absent a firm conviction that the decision is irrational. In our opinion, the legislative scheme bears a rational relationship to the legitimate state interest in rehabilitation and discipline and does not deny the defendants equal protection of the laws.
The judgment of the district court as to both defendants is affirmed.
JUSTICE DUBOFSKY, JUSTICE QUINN and JUSTICE NEIGHBORS concur in part and dissent in part.