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People v. DeBorde

Court of Appeals of Colorado, Second Division

December 29, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Cody Lynn DeBorde, Defendant-Appellant.

         Mesa County District Court No. 13CR1242 Honorable Valerie Jo Robison, Judge.

         JUDGMENT AFFIRMED.

          Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Douglas K. Wilson, Colorado State Public Defender, Inga K. Nelson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

          OPINION

          HARRIS JUDGE.

         ¶ 1 Under Colorado's so-called "wobbler" statute, [1] the court must vacate the defendant's felony conviction and enter a misdemeanor conviction in its place if the defendant successfully completes his community corrections or probationary sentence. The primary issue raised in this appeal is whether the felony-level surcharge imposed as part of the original sentence must be reduced to a misdemeanor-level surcharge upon entry of the misdemeanor conviction.

         ¶ 2 Cody Lynn DeBorde pleaded guilty to one count of possession of a controlled substance, a level 4 drug felony. The court imposed a mandatory $1500 felony drug offender surcharge as part of his sentence. When DeBorde completed his community corrections sentence, the court vacated his felony conviction and entered a conviction for a class 1 misdemeanor. DeBorde contends that once his conviction was reduced to a misdemeanor, the court should have likewise reduced his drug offender surcharge to the misdemeanor amount of $1000.

         ¶ 3 We conclude that the statute contemplates the vacation only of the felony conviction, not of the sentence. Accordingly, we agree that the amount of the drug offender surcharge is properly determined by the initial conviction.

         ¶ 4 DeBorde, though, also argues that he has no ability to pay any surcharge, no matter the amount, and that the court should have waived it. We determine that DeBorde did not meet his burden of demonstrating his inability to pay the surcharge.

         I. Background

         ¶ 5 In 2013, as part of a plea deal, DeBorde pleaded guilty to one count of possession of a controlled substance and was sentenced to nine months in community corrections, with a stipulation that he was eligible for relief under the wobbler statute, section 18-1.3-103.5, C.R.S. 2016. Thus, if he successfully completed his community corrections sentence, his felony conviction would be converted to a misdemeanor conviction.

         ¶ 6 At the sentencing hearing, the district court also imposed various court costs and fees, including, in accordance with section 18-19-103, C.R.S. 2016, a drug offender surcharge. Defense counsel requested that the court waive the drug offender surcharge because DeBorde was unable to pay it. The court denied the request and imposed the full $1500 surcharge, noting that it did not have any evidence of DeBorde's inability to pay. But, as detailed in DeBorde's presentence report, at the time of his arrest, DeBorde was homeless and unemployed and had been for a significant period.

         ¶ 7 DeBorde also asked the district court to set a review hearing so that, upon confirmation by the community corrections placement of his successful completion of the sentence, the court could, without further request by DeBorde, simply vacate the felony conviction and enter a misdemeanor conviction in its place. The court denied this request as well, ruling that DeBorde had to file a motion and request relief under the wobbler statute.

         ¶ 8 Upon his successful completion of his sentence, DeBorde filed a motion seeking vacation of his felony conviction. The district court granted the motion, vacated the original conviction, and entered a conviction for a level 1 drug misdemeanor. Most of the $1500 surcharge remains outstanding.

         II. Under the Wobbler Statute, Entry of a Misdemeanor Conviction Does Not Affect the Court's Prior Imposition ...


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