People v. Bice

542 P.3d 709

2023 COA 98

2023 COA 98

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Patrick Thomas BICE, Defendant-Appellant.

Court of Appeals No. 22CA0600

Colorado Court of Appeals, Div. VII.

Announced October 26, 2023

Larimer County District Court No. 18CR1868, Honorable Stephen J. Jouard, Judge

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lynn C. Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE SCHOCK

¶ 1 Section 18-18-405(1), C.R.S. 2023, makes it unlawful to, among other things, distribute or conspire to distribute a controlled substance. The level of that offense turns primarily on the quantity and nature of the controlled substance, with no distinction between distributing and conspiring to distribute. Under section 18-2-206(7)(a), C.R.S. 2023, however, conspiracy to commit a drug felony is generally one offense level lower than the drug felony itself.

¶ 2 In this case, we address the interplay between these statutes and conclude that when a defendant is convicted under section 18-18-405(1) for conspiring to sell or distribute a controlled substance (or to commit any of the other enumerated acts), that statute— not section 18-2-206(7)(a)—controls the classification of that offense.

¶ 3 In doing so, we affirm the district court’s denial of defendant Patrick Bice’s motion to correct an illegal sentence. Because Bice pleaded guilty to a level 1 drug felony under section 18-18-405, the district court correctly sentenced him based on that classification.

I. Background

¶ 4 Bice pleaded guilty to conspiring to sell or distribute more than 112 grams of methamphetamine, a level 1 drug felony under section 18-18-405(1) and (2)(a)(I)(B). He stipulated to a sentence of twenty years in the custody of the Department of Corrections, and the district court sentenced him accordingly.¹ The mittimus reflects the conviction under section 18-18-405(1) and the level 1 drug felony classification under section 18-18-405(2)(a)(I)(B).

¶ 5 Two years later, Bice filed a pro se motion to correct an illegal sentence under Crim. P. 35(a). He argued that his offense should have been classified as a level 2 drug felony, instead of a level 1 drug felony, under section 18-2-206(7)(a). That statute provides:

Except as otherwise provided by law, conspiracy to commit a level 1 drug felony is a level 2 drug felony; conspiracy to commit a level 2 drug felony is a level 3 drug felony; conspiracy to commit a level 3 drug felony is a level 4 drug felony; and conspiracy to commit a level 4 drug felony is a level 4 drug felony.

§ 18-2-206(7)(a).

¶ 6 The People, while maintaining that the sentence was appropriate under section 18-18-405(1), noted that the district court had previously accepted Bice’s argument in another case and therefore asked the court to "correct the putatively illegal sentence."

¶ 7 The district court appointed counsel, who filed a supplemental motion reiterating that, because Bice was convicted of conspiring to distribute methamphetamine, his offense should have been treated as a level 2 drug felony under section 18-2-206(7)(a). The People responded, this time opposing the motion on the ground that section 18-18-405 is an exception to section 18-2-206(7)(a).

¶ 8 The district court initially granted the motion. Although the court acknowledged that section 18-18-405(1) and (2)(a)(I)(B) could be read as creating an exception to section 18-2-206(7)(a), it concluded that such a construction would render the latter a nullity "because a conspiracy to commit a [level] 1 drug felony would never be sentenced as a [level] 2 drug felony under this interpretation."

¶ 9 Six months later, the court sua sponte reversed course, vacated its prior order, and denied Bice’s motion. The court explained that it had identified other level 1 drug felonies that, if charged as a conspiracy, would be reduced to level 2 drug felonies under section 18-2-206(7)(a). Thus, it concluded the two statutes could be read harmoniously and Bice’s sentence was legal.

II. Analysis

¶ 10 Bice concedes that his offense is designated as a level 1 drug felony under section 18-18-405(2)(a)(I)(B). But he contends that this designation conflicts with section 18-2-206(7)(a)’s directive that "[e]xcept as otherwise provided by law, conspiracy to commit a level 1 drug felony is a level 2 drug felony." His argument goes like this: (1) selling or distributing more than 112 grams of methamphetamine is a level 1 drug felony; so (2) under section 18-2-206(7)(a), conspiring to do so must be deemed a level 2 drug felony. He further argues that this conflict must be resolved in his favor, making his sentence for a level 1 drug felony illegal.

¶ 11 We disagree. Because conspiring to distribute a controlled substance is, under the circumstances of this case, itself a level 1 drug felony, section 18-2-206(7)(a) does not apply. Thus, seeing no conflict, we conclude that when a defendant is convicted of conspiring under section 18-18-405(1)(a), the offense classifications in section 18-18-405(2)—not section 18-2-206(7)(a)—control.

A. Standard of Review and Applicable Law

[1–3] ¶ 12 We review the legality of a sentence de novo. People v. Valadez, 2016 COA 62, ¶ 9, 374 P.3d 529. A sentence is illegal, or "not authorized by law," when it is "inconsistent with the sentencing scheme established by the legislature." People v. Jenkins, 2013 COA 76, ¶ 11, 305 P.3d 420. When the legality of a sentence turns on an issue of statutory interpretation, we review that issue de novo as well. Id. at ¶ 12.

[4, 5] ¶ 13 In interpreting statutes, "our primary purpose is to ascertain and give effect to the legislature’s intent." McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379. That quest begins with the language of the statute. Cowen v. People, 2018 CO 96, ¶ 12, 431 P.3d 215. And if the statutory language is clear and unambiguous, it ends there too. Id. We apply the statute as written and look no further. Id. Only if the statutory language is susceptible of more than one reasonable interpretation may we resort to additional tools to resolve the ambiguity. Id.

[6, 7] ¶ 14 When interpreting more than one statute, we will "favor a construction that avoids potential conflict." People v. Trujillo, 2019 COA 74, ¶ 14, 487 P.3d 1051 (citation omitted). If the statutes can be construed to avoid inconsistency, we must interpret them accordingly. People v. Market, 2020 COA 90, ¶ 18, 475 P.3d 607. Otherwise, we may look to other signals of legislative intent to determine which statute controls. Id.

B. No Conflict

¶ 15 Applying the plain language of the two statutes in question, we conclude they do not conflict.

¶ 16 Section 18-18-405(1)(a) defines the offense in question:

[I]t is unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.

(Emphasis added.)

[8] ¶ 17 This statute creates a single offense that can be violated by committing any one of the enumerated acts. People v. Valenzuela, 216 P.3d 588, 592 (Colo. 2009). Thus, conspiring to do the prohibited acts is a direct violation of the statute—no different than the prohibited acts themselves. Id. at 593 ("[R]egardless of which proscribed act a defendant commits, he will have violated the statute and may be charged under section 18-18-405."); see also People v. Abiodun, 111 P.3d 462, 466 (Colo. 2005) ("The acts chosen for specific inclusion are not themselves mutually exclusive but overlap in various ways and cover a continuum of conduct …. ").

¶ 18 Section 18-18-405(2) then sets forth the offense classifications for a violation of the statute. As relevant here,

(2) … any person who violates any of the provisions of subsection (1) of this section:

(a) Commits a level 1 drug felony and is subject to the mandatory sentencing provisions in section 18-1.3-401.5(7) if:

(I) The violation involves any material, compound, mixture, or preparation that weighs:

….

(B) More than one hundred twelve grams and contains methamphetamine ….

§ 18-18-405(2)(a)(I)(B) (emphasis added).

¶ 19 Importantly, the statute does not classify offenses differently based on which prohibited act the defendant committed. It instead applies the same designation to any violation of section 18-18-405(1). See Valenzuela, 216 P.3d at 595 ("By including attempt and conspiracy within the offense provision, but for the extraordinary risk provision [which is not at issue here], attempt and conspiracy would be punished to the same degree as the completed actions enumerated in the offense provision."); Abiodun, 111 P.3d at 466 ("[T]he defendant’s sentence required by the statute is in no way dependent upon the particular enumerated act or acts he is found to have committed."). Because Bice was convicted of violating section 18-18-405(1) in a way that satisfied the criteria of section 18-18-405(2)(a) (i.e., the violation involved more than 112 grams of methamphetamine), that offense was a level 1 drug felony.

¶ 20 For three reasons, section 18-2-206(7)(a) does not require a different result. First, by its own terms, section 18-2-206(7)(a) does not apply. That statute provides that "conspiracy to commit a level 1 drug felony is a level 2 drug felony." Id. But Bice was not convicted of conspiracy to commit a level 1 drug felony. His offense—conspiring to sell or distribute—was itself a level 1 drug felony. See People v. Thurman, 948 P.2d 69, 73 (Colo. App. 1997) ("[W]hile the General Assembly generally has provided that the punishment of conspiracy shall be...