County District Court No. 13CR1769 Honorable Victor I. Reyes,
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Rachel K.
Mercer, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Michael Alan Fransua, appeals the order of the
district court sentencing him to five years in the custody of
the Department of Corrections (DOC), less 162 days of
presentence confinement credit (PSCC). We affirm in part and
reverse in part.
2 Because this case resolves issues concerning the
calculation of PSCC, we review the relevant dates in detail.
On October 25, 2013, Fransua was arrested after an
altercation with his former girlfriend in her home. He was
charged with first degree criminal trespass of a dwelling,
second degree burglary, third degree assault, and harassment
(the 2013 charges). Fransua was released on bond on December
5, 2013. Among other conditions, his bond prohibited him from
consuming alcohol and contacting his former girlfriend
pursuant to a protection order.
3 On March 1, 2014, a police officer was dispatched to the
former girlfriend's home. The former girlfriend reported
that Fransua was inside the home and would not leave. The
officer then spoke with Fransua and noted the odor of alcohol
on his breath. The officer arrested Fransua and charged him
with trespass and violating bail bond conditions and the
protection order (the 2014 charges).
4 Fransua ultimately pleaded guilty to attempted burglary
arising from the 2013 case in exchange for dismissal of all
the other 2013 and 2014 charges. On June 16, 2014, he was
sentenced to five years in community corrections. Fransua
served this sentence until September 23, 2014, when he walked
away from the community corrections facility. He was arrested
on October 19, 2014. On November 10, 2014, Fransua was
resentenced to five years in DOC custody.
5 At the resentencing hearing, the court stated that Fransua
"only is entitled to presentence confinement credit for
time served on the case that he is being sentenced on."
The court found that Fransua was in custody on the relevant
charges from October 25, 2013, to December 5, 2013; June 16,
2014, to September 23, 2014; and October 19, 2014, to
November 10, 2014, the date he was resentenced. Accordingly,
the court awarded Fransua 162 days of PSCC, but declined to
award him credit for the period from March 1, 2014, to June
16, 2014, which totals 108 days.
6 Fransua contends that the court erred by declining to award
him PSCC for his March 1, 2014, to June 16, 2014, period of
confinement and by miscalculating the number of days for
which he is otherwise entitled to PSCC.
7 We review whether a district court properly awarded PSCC de
novo. People v. Wentling, 2015 COA 172, ¶ 47. A
sentencing court does not have discretion to grant or deny
PSCC. Edwards v. People, 196 P.3d 1138, 1144 (Colo.
2008). Rather, "[a] person who is confined for an
offense prior to the imposition of sentence for said offense
is entitled to credit against the term of his or her sentence
for the entire period of such confinement." §
18-1.3-405, C.R.S. 2015. The defendant bears the burden of
establishing entitlement to PSCC. People v. Freeman,
735 P.2d 879, 881 (Colo. 1987). A. PSCC for March 1, 2014, to
June 16, 2014, Confinement
8 The original mandatory PSCC statute did not include an
explicit causation link between presentence confinement and
the sentence imposed:
A person who is confined prior to the imposition of sentence
is entitled to credit against the term of his sentence for
the entire period of such confinement. At the time of
sentencing, the court shall make a finding of the amount of
presentence confinement to which the offender is entitled and
shall include such finding in the mittimus. Such period of
confinement shall be deducted by the department of
Ch. 157, sec. 7, § 16-11-306, 1979 Colo. Sess. Laws
665-66. In Schubert v. People, 698 P.2d 788, 793
(Colo. 1985), the supreme court supplied this link by
construing the statute as "intended to create a
statutory entitlement to credit only with respect to the
presentence confinement served in connection with the
charge or conduct for which a particular sentence is
imposed." Id. (emphasis added). The court held
that "there must be a substantial nexus between
[the] charge ...