Mesa County District Court No. 13CR441. Honorable Thomas M. Deister, Judge.
John W. Suthers, Attorney General, Rebecca L. Williams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE MILLER. J. Jones and Berger, JJ., concur.
[¶1] Defendant, Cora E. Archuleta-Ferales, appeals the drug offender surcharge imposed as part of her sentence for conspiracy to distribute a schedule II controlled substance. Because we conclude that the district court misconstrued its authority under section 18-19-103(6), C.R.S. 2014, to waive any portion of the surcharge, we reverse that part of the sentence and remand for further proceedings.
[¶2] Defendant pleaded guilty to conspiracy to distribute a schedule II controlled substance, a class three felony, in exchange for the dismissal of other charges and an eight-year prison sentence. At the providency hearing, the district court advised defendant that, in addition to the eight-year sentence, there would be a mandatory $3000 drug offender surcharge, which could not be waived. Defense counsel asked for clarification regarding the surcharge, arguing that section 18-19-103(6)(a) permitted " at least some portion of [the surcharge], if not all of it," to be waived if the court found that defendant was financially unable to pay it. The court replied: " [That provision] says that I cannot waive any of [the surcharge] if I can find that she can pay any of it. ... So you have to show me that she can't pay any portion of it." Defense counsel disagreed with the court, pointing out that section 18-19-103(6)(c) " says the Court shall waive only that portion of the surcharge which the Court has found the Drug Offender is financially unable to pay," to which the court responded, " all I can tell you is that we are discouraged from waiving any portion of the moneys initially, based on the fact that you can have a means, some time [sic] in your life, to be able to pay portions of it, some or all of it." The court deferred any further discussion of the matter until sentencing.
[¶3] At sentencing, defense counsel asked the court to waive all but $480 of the drug offender surcharge, based on defendant's testimony that she would likely only earn $4.99 per month while in prison, " unless the Court finds that, even in the longer term, given the fact that she did testify her expenses are more than her income, that the entire amount could be waived." The court rejected counsel's request, explaining that, " because I cannot find that [defendant] is financially unable to pay any portion of [the] surcharge, therefore I cannot waive any portion of that surcharge, pursuant to [section 18-19-103(6)(a)]."
II. Statutory Construction
[¶4] Defendant contends that the district court misconstrued its authority under section 18-19-103(6) to waive any portion of the $3000 surcharge. We agree.
A. Standard of Review and Applicable Law
[¶5] Statutory interpretation is a question of law that we review de novo. People v. Steen, 318 P.3d 487, ...