County District Court No. 15CR87 Honorable Douglas S. Walker,
Cynthia H. Coffman, Attorney General, Lisa K. Michaels,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Lisa
Weisz, Deputy State Public Defender, Denver, Colorado, for
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.
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that had since been repealed.
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
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,  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,