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People v. Jim

Court of Appeals of Colorado, First Division

September 21, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jeremiah Elijah Jim, Defendant-Appellant.

         Montezuma County District Court No. 15CR87 Honorable Douglas S. Walker, Judge

          Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          LICHTENSTEIN JUDGE

         ¶ 1 Defendant, Jeremiah Elijah Jim, appeals the district court's order denying his postconviction motion seeking presentence confinement credit (PSCC) for the time he spent in a residential community corrections program before he was resentenced to the custody of the Department of Corrections (DOC). We reverse and remand for correction of the mittimus.

         I. Background

         ¶ 2 In July 2015, defendant pleaded guilty to one count of attempted aggravated motor vehicle theft, and the district court sentenced him to eighteen months in community corrections. Two months after reporting to community corrections, defendant escaped.

         ¶ 3 Following his arrest, the district court resentenced him to eighteen months in the custody of the DOC. At the resentencing hearing, although defendant requested 129 days of PSCC for the time he was held in jail waiting for his initial sentencing and the time he spent in the residential community corrections program, the district court only granted him 67 days of PSCC for the time he was confined in the county jail prior to his initial sentencing.

         ¶ 4 The next day, defendant filed a postconviction motion, again requesting sixty-two days of credit for the time he was in community corrections and also an additional twenty-three days for the time he was in jail awaiting resentencing. The court, in a written order, granted defendant twenty-three days of PSCC for the time he spent in jail between his arrest and resentencing, but it denied the request for PSCC related to the time he spent in community corrections. The district court ruled that (1) under section 18-1.3-301(1)(k), C.R.S. 2016, defendant was not entitled to the credit for his community corrections time because he had escaped; and (2) the holding in People v. Hoecher, 822 P.2d 8 (Colo. 1991), the case defendant relied on, was based on statutes that had since been repealed.

         II. Analysis

         ¶ 5 On appeal, defendant contends, the People concede, and we agree that the court erred by not awarding him PSCC for the time he spent in the residential community corrections program.

         ¶ 6 We review whether a defendant is entitled to PSCC de novo. People v. Howe, 2012 COA 177, ¶ 12.

          ¶ 7 When a person is confined for an offense prior to being sentenced for that offense, he or she "is entitled to credit against the term of his or her sentence for the entire period of such confinement, " and "[a]t 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." § 18-1.3-405, C.R.S. 2016. Time spent by a defendant in jail, in a DOC facility, or as a resident in a community corrections facility constitutes confinement under section 18-1.3-405, because those facilities limit an individual's liberty. People v. Chavez, 122 P.3d 1036, 1037-38 (Colo.App. 2005); see also Hoecher, 822 P.2d at 11-12. Thus, when a defendant is resentenced to DOC custody after revocation of a direct sentence to community corrections, he or she is entitled to credit for time served in a residential community corrections placement, but not for time served in a nonresidential placement. See §§ 17-27-104(9), 18-1.3-301(1)(j), C.R.S. 2016; Hoecher, 822 P.2d at 12; see also People v. McGraw, 30 P.3d 835, 840 (Colo.App. 2001) (although Hoecher was decided prior to the enactment of section 17-27-104(9) and section 18-1.3-301(1)(j)'s predecessor, [1] which together provide that an offender sentenced to DOC custody after placement in a community corrections program is entitled to credit for the number of days of residential placement completed, the reasoning in that case is still applicable).

         ¶ 8 The record in this case reflects, and the parties do not dispute, that defendant spent sixty-two days in a residential community corrections facility, from August 10 to October 11, 2015, ...


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