County District Court No. 08CR34. Honorable Michael K.
H. Coffman, Attorney General, Carmen Moraleda, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Valadez, Pro se.
and Navarro, JJ., concur.
[¶1] This appeal presents an issue of first
impression: If a Colorado prison inmate commits a misdemeanor
offense in prison, and the district court imposes a
consecutive county jail sentence on the misdemeanor,
which sentence is served first, the jail sentence or
the remainder of the prison sentence? Applying section
18-1.3-501(1)(c), C.R.S. 2015, we hold that the prisoner must
be remanded to county jail to serve the jail sentence first
and then be transferred back to the Department of Corrections
(DOC) to serve the remainder of the prison sentence.
Therefore, we reverse the district court's order in this
case ruling that defendant, Edward Valadez, must serve the
remainder of his prison sentence before his jail sentence,
and we remand for further proceedings.
[¶2] While serving a prison sentence in the
custody of the DOC, Mr. Valadez committed an assault. He
pleaded guilty to third degree assault, a class 1
misdemeanor. In 2008, the district court sentenced him to
fifteen months in the county jail. It ordered the jail
sentence to be served consecutively to the prison sentence
Mr. Valadez was already serving.
[¶3] In 2014, Mr. Valadez filed the Crim. P.
35(a) motion at issue. According to the motion, after the
2008 sentencing hearing, he was returned to the DOC to serve
the remainder of his thirty-five-year prison sentence before
beginning to serve his fifteen-month jail sentence. This
pending county jail sentence created a detainer on Mr.
Valadez's prison sentence that affected his parole
eligibility date and his eligibility for transitional
placements in the community. He claimed that, under section
18-1.3-501(1)(c), he should have been allowed to serve his
jail sentence before serving the remainder of his prison
sentence. He asked the district court to amend the mittimus
to reflect time served on the jail sentence so that the
detainer would be removed from his prison sentence.
[¶4] Section 18-1.3-501(1)(c), a provision
within the statute governing sentencing for misdemeanor
A term of imprisonment in a county jail for a conviction of a
misdemeanor, petty, or traffic misdemeanor offense shall not
be ordered to be served consecutively to a sentence to be
served in a state correctional facility; except that if, at
the time of sentencing, the court determines, after
consideration of all the relevant facts and circumstances,
that a concurrent sentence is not warranted, the court may
order that the misdemeanor sentence be served prior to the
sentence to be served in the state correctional facility and
prior to the time the defendant is transported to the state
correctional facility to serve all or the remainder of the
defendant's state correctional facility sentence.
[¶5] The district court denied Mr.
Valadez's motion, concluding that section
18-1.3-501(1)(c) does not apply where a defendant has already
begun serving his prison sentence at the time he is sentenced
for the misdemeanor. The court reasoned:
Section 18-1.3-501(1)(c) . . . applies to felony sentences
imposed at the same time as misdemeanor sentences, or imposed
in such a way as to interrupt a misdemeanor sentence. . . .
[T]he plain language of the statute applies to misdemeanor
sentences being imposed consecutively to felony DOC sentences
" to be served," not sentences already being
[¶6] We consider two issues before
addressing the merits. First, there is a question whether Mr.
Valadez's Crim. P. 35(a) claim challenges an actual
aspect of the district court's original sentence. The
sentencing hearing transcript is not part of the record on
appeal, so the record does not explicitly show whether the
district court required Mr. Valadez to serve his prison
sentence before his jail sentence. The mittimus only reflects
the consecutive nature of the sentences.
[¶7] However, the People do not challenge
this issue and agree in their answer brief that this issue
was properly brought under Crim. P. 35(a). Accordingly, we
deem Mr. Valadez's Crim. P. ...