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People v. Henry

Court of Appeals of Colorado, Second Division

July 3, 2013

The People of the State of Colorado, Plaintiff-Appellee,
v.
Gesere Q. Henry, Defendant-Appellant

Editorial Note:

This Opinion is subject to revision upon final publication.

Mesa County District Court No. 11CR115. Honorable Brian J. Flynn, Judge.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

OPINION

LICHTENSTEIN, JUDGE

Page 1085

[¶1] Defendant, Gesere Q. Henry, appeals his sentence, arguing that the district court erred in denying him any presentence confinement credit (PSCC). Because we conclude that the court misapprehended its authority under the PSCC statute, we reverse that portion of defendant's sentence and remand for the court to amend the mittimus as directed in this opinion.

I. Background

[¶2] While on mandatory parole in another case, defendant was charged with numerous offenses in this case. He later pleaded guilty to an added count of attempted sexual assault on a child in exchange for the dismissal of the original charges against him and a maximum sentence of three years in the Department of Corrections (DOC), to be served concurrently with his sentence in the parole case.

[¶3] The district court sentenced defendant according to the agreement, but denied his request for 397 days of PSCC for the time he had spent in jail between the date of his arrest and the date of sentencing. The court concluded that, based on its understanding of the PSCC statute, defendant was " not entitled to any presentence confinement credit" because he was on parole when he committed his offense. The court further stated that, even if it granted defendant PSCC, " the [DOC] would be required to just apply that presentence confinement credit to [his parole case]." Consequently, the court did not include any PSCC on the mittimus. Defendant now appeals that ruling.

II. Standard of Review

[¶4] Because defendant's appeal raises an issue of statutory interpretation, we review de novo the court's ruling concerning PSCC. See People v. Carrillo, 2013 COA 3, ¶ 9, 297 P.3d 1028, 1030. Our primary purpose when interpreting a statute is to ascertain and ...


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