Full Opinion (html_with_citations)

COLORADO COURT OF APPEALS
2016COA185


Court of Appeals No. 14CA0332
Mesa County District Court No. 13CR1242
Honorable Valerie Jo Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cody Lynn DeBorde,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division II
                         Opinion by JUDGE HARRIS
                        Dailey and Furman, JJ., concur

                        Announced December 29, 2016


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
¶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



 1 The term “wobbler” usually describes a “hybrid” offense that can
 be charged as either a felony or a misdemeanor. See, e.g., People v.
 Williams,
57 Cal. Rptr. 2d 448, n.2
 (Cal. Ct. App. 1996). Here, the
 term describes an offense that “wobbles” from a felony to a
 misdemeanor upon the defendant’s successful completion of the
 community-based portion of his sentence.

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 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.




                                   2
¶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


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  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 of the
                     Felony Drug Offender Surcharge

¶9      We first settle the question whether DeBorde’s surcharge had

  to be reduced when his conviction was converted from a felony to a

  misdemeanor. 2

¶ 10    The answer to that question turns on the interpretation of the

  surcharge and wobbler statutes, issues of statutory construction we

  review de novo. See People v. Steen,
2014 CO 9, ¶ 9
. We conclude

  that the court properly applied these statutes.

¶ 11    Our primary duty in interpreting statutes is to give full effect

  to the intent of the General Assembly. Ryan Ranch Cmty. Ass’n,

  Inc. v. Kelley,
2014 COA 37M, ¶ 39
. To determine legislative intent,

  we look first to the plain language of the statute. State v. Nieto, 993


  2 The People assert that DeBorde’s claim amounts to a time-barred
  request for a reduction of his sentence under Crim. P. 35(b). We
  reject this contention and, instead, construe DeBorde’s claim as a
  challenge to the propriety of a felony sentence pursuant to section
  18-1-409(1), C.R.S. 2016.
4 P.2d 493, 500
 (Colo. 2000). When the language of a statute is clear,

  we apply the statute as written.
Id.

¶ 12   Each drug offender who is convicted or receives a deferred

  sentence “shall be required to pay a surcharge” in an amount set

  forthby statute. § 18-19-103(1). After DeBorde pleaded guilty to a

  class 4 drug felony, the court imposed the mandatory $1500 drug

  offender surcharge that corresponded to his offense of conviction. §

  18-19-103(1)(d); see also People v. McQuarrie,
66 P.3d 181, 183

  (Colo. App. 2002) (drug offender surcharge is considered

  punishment and must be imposed with the initial sentence).

¶ 13   DeBorde does not dispute that, at the time of sentencing, the

  court properly imposed the felony drug offender surcharge. But he

  maintains that when his conviction was reduced from a felony to a

  misdemeanor, the court was required to adjust the surcharge

  accordingly.

¶ 14   The wobbler statute provides that, for certain felony drug

  offenders, “the court shall order, upon successful completion of any

  community-based sentence to probation or to a community

  corrections program, the drug felony conviction vacated and shall


                                    5
  enter a conviction for a level 1 drug misdemeanor offense of

  possession of a controlled substance pursuant to section 18-18-

  403.5.” § 18-1.3-103.5(2)(a).

¶ 15   The statute contains a single mandate: if the defendant

  successfully completes his sentence to probation or community

  corrections,3 the court must substitute a misdemeanor conviction

  for the original felony conviction. The statute, however, does not

  similarly authorize the court to vacate any part of the defendant’s

  original sentence and re-impose a new sentence.



  3 While the surcharge is part of a defendant’s sentence, see People
  v. Stead,
845 P.2d 1156, 1160
 (Colo. 1993), payment of the
  surcharge does not affect the defendant’s eligibility to have his
  felony conviction vacated. A defendant becomes eligible for relief
  under the statute “upon successful completion of any community-
  based sentence to probation or to a community corrections program.”
  (emphasis added). § 18-1.3-103.5(2)(a), C.R.S. 2016. Subsection
  2(b) instructs that the district court shall determine whether a
  sentence has been successfully completed, and notes that a
  “community-based sentence is not successfully completed if the
  defendant has not successfully completed the treatment as ordered
  by the court and determined appropriate to address the defendant’s
  treatment needs.” § 18-1.3-103.5(2)(b). Thus, successful
  completion of the “community-based sentence” means satisfactory
  completion of the supervision component of a defendant’s sentence.
  Cf. Martin v. People,
27 P.3d 846, 859
 (Colo. 2001) (statutory
  reference to “maximum sentence” only referred to the incarceration
  component of defendant’s sentence).

                                    6
¶ 16   The conviction and sentence together make up the judgment

  in a criminal case. People v. Turner,
644 P.2d 951, 953
 (Colo.

  1982). The wobbler statute, however, is directed only to the

  conviction portion of the judgment. If the legislature had intended

  to direct the court to also vacate any unfulfilled component of the

  defendant’s sentence, and enter a new conviction and sentence, we

  presume that the legislature would have said so. As a well-settled

  matter of statutory construction, we must accept the General

  Assembly’s choice of language and may not add or imply words that

  simply are not there. Williams v. Dep’t of Pub. Safety,
2015 COA 180
, ¶ 85; see also Tatum v. Basin Res., Inc.,
141 P.3d 863, 871

  (Colo. App. 2005) (“Courts may not interpolate into a statute words

  that it does not contain, or extract a meaning which is not

  expressed by it.”).

¶ 17   We find further support for our reading of the statute by

  observing that a surcharge must be imposed even when a defendant

  receives a deferred judgment and sentence. § 18-19-103(1). In

  those cases, no judgment of conviction is entered unless the

  defendant violates the terms of his deferred judgment. Under


                                    7
  DeBorde’s theory, the legislature intended to impose, and then

  rescind, the surcharge requirement in every case, except where the

  deferred judgment is revoked. We generally avoid a construction of

  a statute that renders the result illogical. M.T. v. People,
2012 CO 11, ¶ 14
.

¶ 18   Moreover, the statute contemplates that vacating the original

  felony conviction will occur only after successful completion of the

  defendant’s sentence to probation or community corrections and

  without a sentencing hearing. In our view, the sequence of these

  events emphasizes that the sentence will not be affected by the

  court’s later substitution of a misdemeanor conviction for the

  original felony conviction. § 18-1.3-103.5(2)(a) (felony conviction

  reduces to misdemeanor “upon successful completion” of a

  community-based sentence); see also § 18-1.3-103.5(2)(b) (district

  court determines “[w]hether a sentence is successfully completed”);

  § 18-1.3-103.5(1) (one purpose of wobbler statute is to incentivize

  offender to successfully complete sentences to probation and

  community corrections). The statute does not provide any

  procedural mechanism for re-sentencing; rather, the court


                                    8
  determines “without a jury” and with mere “notice to the district

  attorney and defendant” whether the defendant has successfully

  completed his community-based sentence, and then vacates the

  felony conviction. § 18-1.3-103.5(2)(b). Re-sentencing procedures,

  which would be required to impose a new drug offender surcharge,

  are simply not contemplated by the statute.

¶ 19   Our conclusion that the statute is intended to reduce the

  offense of conviction, not the sentence, also comports with the

  broader legislative scheme expressed in article 1.3 of title 18.

  Johnson v. People,
2016 CO 59, ¶ 18
 (“[W]e must interpret a statute

  so as to effectuate the purpose of the legislative scheme.”). The

  purpose of the wobbler statute is to allow offenders to “avoid a drug

  felony conviction” and its concomitant adverse collateral

  consequences if they successfully complete their community-based

  sentences. § 18-1.3-103.5(1). In our view, the drug offender

  surcharge is not an adverse collateral consequence of a drug felony

  conviction that the wobbler statute was designed to ameliorate;




                                     9
  instead, it is part of the defendant’s sentence. See McQuarrie,
66 P.3d at 183
.4

¶ 20   In sum, based on the language and purpose of the statutes,

  we conclude that the conversion of the defendant’s felony conviction

  to a misdemeanor conviction under section 18-1.3-103.5 does not

  affect the amount of the drug offender surcharge required to be

  imposed under section 18-19-103. Thus, the proper surcharge for

  a defendant, like DeBorde, who is originally convicted of a class 4

  drug felony, is $1500.




  4 Our view is supported by our examination of a related statute.
  See Sullivan v. Indus. Claim Appeals Office,
22 P.3d 535, 538
 (Colo.
  App. 2000) (“A court may . . . look outside the statute to related
  sources for the definition of an applicable term [and] must . . .
  attempt to harmonize other statutes relating to the same subject
  matter.”) (citation omitted). Under section 18-1.3-303(3), C.R.S.
  2016, the court may issue an order that relieves a defendant
  sentenced to a community corrections program of “any collateral
  consequences of the conviction . . . .” The statute defines a
  “collateral consequence” as a “collateral sanction,” which, in turn,
  means “a penalty, prohibition, bar, or disadvantage . . . imposed on
  an individual,” but does not include “imprisonment, probation,
  parole, supervised release, forfeiture, restitution, fine, assessment,
  [or] costs of prosecution . . . .” § 18-1.3-303(8)(a)-(b).

                                    10
       III.   Evidence of DeBorde’s Ability to Pay the Drug Offender
                                Surcharge

¶ 21    We next turn to whether the district court should have waived

  all or part of the felony drug offender surcharge based on a finding

  that DeBorde was unable to pay it. DeBorde contends that the trial

  court erred in failing to consider evidence in the record of his

  inability to pay the surcharge.

¶ 22    Although the surcharge is mandatory, the court may “waive

  any portion of the surcharge” if “the court first finds that the drug

  offender is financially unable to pay any portion of said surcharge.”

  § 18-19-103(6)(a). The drug offender has the burden of proving that

  he is financially unable to pay by clear and convincing evidence,

  and “[t]he court shall waive only that portion of the surcharge which

  the court has found the drug offender is financially unable to pay.”

  § 18-19-103(6)(b)-(c).

¶ 23    Whether a defendant has the financial ability to pay a

  statutorily mandated surcharge is a factual question we review for

  clear error. People v. Griffiths,
251 P.3d 462, 467
 (Colo. App. 2010).

  If the record supports the trial court’s findings, we should not

  disturb them on appeal.
Id.

                                     11
¶ 24   At the sentencing hearing, defense counsel requested that the

  court waive the drug offender surcharge. Counsel did not direct the

  court to any information in the presentence report. Instead, he

  relied on DeBorde’s public defender application. While counsel

  admitted that the application “contains virtually no information

  regarding his financial status,” he argued that the court could infer

  from the application and DeBorde’s inability to bond out of jail that

  he “has basically nothing to his name” and therefore could not

  afford the surcharge.

¶ 25   The court rejected the request, stating that it did not “have

  any evidence at all,” let alone clear and convincing evidence, of

  DeBorde’s inability to pay. Accordingly, the court imposed the full

  $1500 surcharge. However, the court did not foreclose the

  possibility of reexamining its ruling, and invited DeBorde to submit

  additional evidence or affidavits demonstrating his inability to pay.

¶ 26   In imposing the full surcharge, the court did not indicate that

  it had considered the presentence report, which contained

  information that DeBorde was homeless and unemployed and had

  been for a “significant period of time,” and that DeBorde “ha[d] not


                                    12
  earned a steady income in the past year and ha[d] no money or

  assets” and “no credit cards, bank accounts, or other income

  sources.” And the court expressly declined to consider DeBorde’s

  public defender application, which stated that he had no income or

  assets.

¶ 27   Even if we assume that the court should have considered

  information in the presentence report and the public defender

  application, we cannot conclude that the court clearly erred in

  finding that DeBorde had failed to carry his burden.

¶ 28   In determining whether a drug offender has the ability to pay

  the surcharge, courts consider both the offender’s present and

  future ability to pay. People v. Archuleta-Ferales,
2014 COA 178, ¶ 13
. In making this determination, courts evaluate the drug

  offender’s “historical expenses and income, as well as [his]

  reasonable prospects for future employment in light of [his]

  disabilities and any assets []he may have.” Id. at ¶ 14. In this

  inquiry, “the court should not speculate on future increases or

  decreases in income or expenses in the absence of a record basis for

  making such projections.” Id.


                                    13
¶ 29   While evidence in the presentence report may have supported

  a finding of DeBorde’s present inability to pay, there was no

  evidence in the record of DeBorde’s future inability to pay the

  surcharge. Nothing in the record indicated that DeBorde was

  unemployable; rather, he has a general education diploma (GED),

  requested work release, and indicated that he intended to find a job

  while serving his community corrections sentence. See People v.

  Fogarty,
126 P.3d 238, 241
 (Colo. App. 2005) (court acted within its

  discretion when determining that the defendant would be able to

  pay costs in the future where he was incarcerated and had only $85

  in his prison account but indicated that he would be able to work

  upon his release); see also Griffiths,
251 P.3d at 468
 (despite

  current indigence, unemployment, and incarceration, defendant did

  not meet burden of demonstrating that she could not pay the drug

  offender surcharge when defendant had a GED and did not assert

  that she could not earn an income while incarcerated).

¶ 30   Moreover, DeBorde had an opportunity to supplement the

  record with additional evidence of his inability to pay, but he

  declined the district court’s invitation to do so. Under these


                                    14
  circumstances, we will not disturb the court’s determination that

  the evidence presented at the sentencing hearing failed to establish

  DeBorde’s inability to pay the surcharge.

            IV.   Burden to Seek Benefit of Wobbler Statute

¶ 31   Finally, DeBorde contends that, under the wobbler statute, the

  district court erred by placing the burden on him to show his

  entitlement to the entry of a misdemeanor conviction in place of his

  felony conviction. We conclude that this claim is moot. DeBorde

  filed the necessary motion, and the trial court granted it.

¶ 32   An appeal is moot if granting relief would have no practical

  effect on an actual or existing controversy. See People v. Fritz,
2014 COA 108, ¶ 21
. Because DeBorde has already been granted relief

  on his motion to apply the wobbler statute, his claims on appeal on

  this issue are moot.

¶ 33   DeBorde concedes that the issue is moot, but argues that we

  should review it under the exception to the mootness doctrine that

  allows for review of a claim that is “capable of repetition, yet evading

  review.” People v. Back,
2013 COA 114
, ¶ 11. We acknowledge the




                                    15
  exception but disagree, as a factual matter, that this issue is likely

  to evade review.

¶ 34   As the People point out, this claim will be presented for review

  when a trial court rejects a defendant’s request to set a review

  hearing for his expected date of completing community corrections,

  and the defendant appeals, but does not later file the necessary

  motion. Accordingly, we need not decide the issue here, when it

  would have no practical effect on an actual controversy.

                             V.    Conclusion

¶ 35   The judgment is affirmed.

       JUDGE DAILEY and JUDGE FURMAN concur.




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