author: Judge ROTHENBERCG.

text:
    CANAL INSURANCE COMPANY, Plaintiff-Appellee, v. Randall S. NIX, Defendant-Appellant.
    No. 98CA2028.
    Colorado Court of Appeals, Div. IV.
    Nov. 12, 1999.
    Certiorari Denied Aug. 21, 2000.

      Wood, Ris & Hames, P.C., Mark R. Davis, Dennis A. Hanson, Denver, Colorado, for Plaintiff-Appellee.
    Dwyer, Huddleson & Ray, P.C., Stephen J. Jouard, Megan L. Hayes, Fort Collins, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERCG.

In this declaratory judgment action brought by plaintiff, Canal Insurance Company (Insurer), defendant Randall Scott Nix appeals a summary judgment determining that Insurer had no duty to defend or indemnify defendants, Nix Transport, Inc. (Nix Transport) or Terry Lynn Borth, against personal injury claims asserted by Nix. Because we agree with the trial court that the automobile liability insurance policy issued by Insurer to Nix Transport excludes coverage for bodily injury to employees such as Nix, that the exclusions are unambiguous, and that they are not contrary to the public policy of Colorado as expressed in the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.8.1999 (the No-Fault Act), we affirm.

Nix Transport is a trucking company owned by Nix's parents. Nix was injured as he was guiding a tractor trailer driven by Borth into a loading dock. Borth failed to stop in time and crushed Nix against the dock, causing massive injuries.

At the time of the accident, Nix and Borth were employed by Nix Transport, and both were acting within the seope of their employment. Nix Transport did not have workers' compensation insurance as required by the Workers' Compensation Act of Colorado, § 8-40-101, et seq., C.R.S8.1999, but it did have an automobile liability insurance policy issued by Insurer that covered the tractor trailer involved in the accident.

After the accident, Insurer filed this action seeking a declaratory judgment that it had no duty under its automobile liability insurance policy to defend or indemnify Nix Transport or Borth in any tort action filed by Nix for personal injuries sustained in the accident. The trial court agreed and entered summary judgment for Insurer.

L.

Nix first contends the employee exclusion provisions in Insurer's policy are ambiguous and should be construed against Insurer and in favor of coverage. We disagree.

An insurance policy is a contract, the interpretation of which is a matter of law that we review de novo. The policy will be enforced as written unless it is ambiguous. A policy provision is ambiguous if it is reasonably susceptible on its face to more than one interpretation. State Farm Mutual Automobile Insurance Co. v. Stein, 940 P.2d 384 (Colo.1997).

In determining whether there is an ambiguity in a policy provision, we evaluate the policy as a whole and construe the language in harmony with the plain meaning of the words employed. A disagreement between the parties regarding the meaning of a policy term does not create an ambiguity. State Farm Mutual Automobile Insurance Co. v. Stein, supra.

Here, the policy issued to Nix Transport contains certain exclusions that were intended to be compatible with the requirements of the Workers' Compensation Act, and to prevent the payment of double premiums and the need for unnecessary coverage by insurers. The policy specifically excludes:

any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law [and] ...
bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury ... {original emphasis).

The policy also excludes "any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment." (original emphasis).

The plain meaning of these exclusions is that an injury to an employee under these circumstances is not covered by the policy. We perceive no ambiguity and conclude that, absent a determination that the exclusions contained in Insurer's automobile liability policy are contrary to public policy, the policy must be given effect as written.

IL

Nix next contends the employee exclusions contained in Insurer's automobile liability policy are contrary to the public policy of Colorado as expressed in the No-Fault Act and are therefore void. We disagree.

The No-Fault Act authorizes conditions and exclusions if they are not inconsistent with the requirements of the Act. Section 10-4-712(1), C.R.S.1999. But, even an unambiguous policy provision may be void and unenforceable if it violates public policy by attempting to dilute, condition, or limit statutorily mandated coverage. See Farmers Insurance Exchange v. Dotson, 913 P.2d 27 (Colo.1996) (holding that a named insured exclusion in an automobile liability insurance contract was contrary to the public policy of the No-Fault Act); Newton v. Nationwide Mutual Fire Insurance Co., 197 Colo. 462, 594 P.2d 1042 (1979) (holding that set-off provisions in an insurance policy that allowed an uninsured motorist award to be reduced by personal injury protection (PIP) amounts violated public policy).

The General Assembly's intent in enacting the No-Fault Act was "to avoid inadequate compensation to victims of automobile accidents ... and ... also [to] provid[e] benefits to persons occupying [motor] vehicles and to persons injured in accidents involving such vehicles." Section 10-4-702, C.R.S. 1999. The Act should be liberally construed to further its remedial and beneficent purposes. Allstate Insurance Co. v. Smith, 902 P.2d 1386 (Colo.1995).

The standard of review for statutory construction is de novo. Watson v. Vouga Reservoir Ass'n, 969 P.2d 815 (Colo.App.1998).

A court's primary task in construing a statute is to give effect to the intent of the General Assembly. The plain language of the statute should be considered first. Kinder v. Industrial Claim Appeals Office, 976 P.2d 295 (Colo.App.1998). To the extent legislative intent is unclear, courts should construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts. Merchants Oil, Inc. v. Anderson, 897 P.2d 895 (Colo.App.1995).

In support of his argument that the employee exclusions contained in Insurer's automobile liability policy are contrary to public policy, Nix relies on $ 10-4-706(1)(a), C.R.S. 1999, which states in pertinent part that:

(1) Subject to the limitations and exclusions authorized by [the No-Fault Act], the minimum coverages required for compliance with [the No-Fault Act] are as follows:
(a) Legal liability coverage for bodily injury or death arising out of the use of the motor vehicle to a limit, exclusive of interest and costs, of twenty-five thousand dollars to any one person in any one accident and fifty thousand dollars to all persons in any one accident ... (emphasis added).

In Finizio v. American Hardware Mutual Insurance Co., 967 P.2d 188 (Colo.App.1998), a division of this court concluded that a policy provision was inconsistent with the requirements of the No-Fault Act because it improperly narrowed the class of insureds to whom the insurer was required to provide coverage. The division held that liability coverage required by § 10-4-706(1)(a) must include "any person using the described motor vehicle with the permission of the named insured." Finizio v. American Hardware Mutual Insurance Co., supra, 967 P.2d at 190.

However, the Finizio court did not have to consider, as we do, the interplay between the No-Fault Act and the Workers' Compensation Act. As noted earlier, the policy issued to Nix Transport contained specific exclusions intended to be compatible with the requirements of the Workers' Compensation Act. Under the Workers' Compensation Act, an employer that has obtained workers' compensation insurance is immune from suit, and the remedies allowed under the provisions of the Act are the injured employee's exclusive remedies. Section 8-41-102, C.R.S.1999.

Even if an employer has failed to obtain workers' compensation insurance, as occurred here, the injured employee still has a remedy. The employee may elect to bring a common law tort action or may seek workers' compensation benefits. See §§ 8-41-102 and 8-48-408, C.R.S.1999; Cook v. McLister, 820 P.2d 1167 (Colo.App.1991). The employee who elects workers' compensation benefits is entitled to full compensation plus a fifty percent penalty from the non-complying employer. Section 8-48-408(1), C.R.S8.1999.

Thus, contrary to Nix's contention, he was entitled to adequate compensation from his employer under the Workers' Compensation Act. As the trial court observed:

Nix is entitled to adequate compensation under Colorado law. [His] choice to seek a civil suit against Nix Transport and Terry Borth rather than seek the benefits available to him under this statutory scheme cannot control the validity of [Insurer's] exclusionary provisions.

Nor do we agree with Nix that the existence of an employee exclusion in § 42-7-418(8), C.R.S.1999, of the Motor Vehicle Financial Responsibility Act suggests that the General Assembly intended no such exclusion in the No-Fault Act.

The No-Fault Act and the Motor Vehicle Financial Responsibility Act, § 42-7-101, et seq., C.R.8.1999, should be construed together because they both concern automobile insurance. See Kinder v. Industrial Claim Appeals Office, supra (when two or more statutes address the same subject matter, the statutes should be construed together).

However, we view the employee exclusion in § 42-7-413(8) as a specific indication of the General Assembly's intent that employee injuries be covered by the Workers' Compensation Act where it is applicable.

In summary, Nix was an employee who was injured in the course of his employment. His employer did not have workers' compensation insurance at the time of the accident, but Nix was entitled to receive from his employer, at his election, full benefits under the Workers' Compensation Act plus a fifty percent penalty based on the employer's noncompliance with the Act. See § 8-48-408. Because Nix was entitled to receive adequate compensation, the exclusions in the policy do not conflict with the General Assembly's stated goal in the No-Fault Act of avoiding inadequate compensation to victims of automobile accidents.

We therefore conclude, as did the trial court, that the employee exclusions in Insurer's policy are authorized by § 10-4-712(1), that they are not inconsistent with the requirements of the No-Fault Act, and that they do not violate public policy.

IIL

Nix's final contention is that the employee exclusions in the policy are invalid under 49 U.S.C. § 13906 (1998), which requires interstate carriers to post security for bodily injury to "an individual." We are not persuaded.

The Federal Highway Administration has promulgated a regulation interpreting 49 U.S.C. § 18906 that specifically allows for employee exclusions. 49 C.F.R. § 387.15 (1999). Nix maintains, however, that 49 C.F.R. § 387.15 is inconsistent with the language in 49 U.S.C. $ 13906 requiring coverage for any individual. See Ashton v. Pierce, 716 F.2d 56 (D.C.Cir.1983) (for regulations to be valid, they must be consistent with the statute under which they were promulgated).

Considerable weight should be accorded to an executive department's construction of a statutory scheme that it is entrusted to administer, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Nix has not provided us with any authority suggesting that 49 C.F.R. § 387.15 is invalid.

Accordingly, we reject Nix's contention that the employee exclusions in the policy are invalid under 49 U.S.C. § 18906, and his related argument that the Federal Highway Administration exceeded its discretion by issuing this regulation. See Hand v. Connecticut Indemmity Co., 124 N.C.App. 774, 478 S.E.2d 661 (1996) (holding that 49 U.S.C. § 10927, the precursor of 49 U.S.C. § 13906, did not invalidate or limit the employee exclusion clauses in the insurance policies at issue).

Judgment affirmed.

Judge JONES and Judge BRIGGS concur.


source: Caselaw Access Project

author: Judge RULAND.

license: Public Domain

text:
    DENVER LOCAL 2-477, OIL, CHEMICAL & ATOMIC WORKERS' INTERNATIONAL UNION, Plaintiff-Appellant and Cross-Appellee, v. METRO WASTEWATER RECLAMATION DISTRICT, a political subdivision of the State of Colorado, Defendant-Appellee and Cross-Appellant, and Colorado Division of Labor, Defendant-Appellee.
    No. 98CA1645.
    Colorado Court of Appeals, Div. II.
    Nov. 12, 1999.
    Certiorari Denied Sept. 5, 2000.

      Thomas A. Feldman, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee.
    Inman Flynn & Biesterfeld, P.C., Joel A. Moritz, Robert J. Thomas, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.
    Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John D. Baird, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee.

       Chief Justice MULLARKEY would grant as to the following issues:
      Whether the duty to engage in collective bargaining under the Colorado Labor Peace Act (CLPA) impedes a public employer's statutory authority to set the compensation of its employees.
      Whether the Metro Wastewater Reclamation District ("Metro") is required to engage in collective bargaining regarding fringe benefits, pursuant to the CLPA, once it determines prevailing rates of compensation pursuant to its enabling statute, the Metropolitan Sewage Disposal District Act (MSDDA).

   Opinion by

Judge RULAND.

Plaintiff, Denver Local 2477 of the Oil, Chemical & Atomic Workers' International Union, appeals from the judgment of the district court determining that defendant, Metro Wastewater Reclamation District (Metro), was not guilty of an unfair labor practice in refusing to negotiate the use of sick leave. The Union also challenges the dismissal of its petition for judicial review of a ruling by defendant, Colorado Division of Labor, that Metro was not required to negotiate 26 other benefits.

Metro cross-appeals from the district court's ruling that the Division had jurisdiction over this dispute. The Division seeks to uphold the district court's ruling. We affirm in part, reverse in part, and remand the case for further proceedings.

Metro was established under the Metropolitan Sewage Disposal ©Districts Act (MSDDA), § 32-4-501 et seq., C.R.8.1999. The Union represents Metro's laboratory personnel.

In an earlier case involving a different union, a division of this court concluded that Metro was not required under the MSDDA to negotiate or engage in collective bargaining in fixing its employees' compensation. See International Union of Operating Engineers v. Metro Wastewater Reclamation District, 876 P.2d 82 (Colo.App.1994) (Metro I ).

Based upon this ruling, Metro refused to negotiate with the Union regarding 28 benefits it characterized as "compensation." The Union then filed a claim with the Division alleging that Metro's failure to negotiate with respect to these benefits was an unfair labor practice and thus violated the Labor Peace Act, § 8-8-101, et seq., C.R.8.1999.

Following a hearing, an administrative law judge (ALJ) determined that the Division had jurisdiction to interpret the MSDDA in order to resolve this dispute. The ALJ then determined that Metro was not required to negotiate 26 of the benefits because those benefits fit within the definition of compensation. However, the ALJ found that the remaining two benefits, use of paid sick leave and use of shower facilities, were not items of compensation. Accordingly, the ALJ ruled that Metro committed an unfair labor practice by refusing to negotiate on those issues.

Thereafter, the Union filed a motion to modify the ALJ's findings. In response, Metro filed a motion for enlargement of time to answer the Union's objections and to file its own motion to modify the ALJ's findings. This motion was granted but the order was not mailed to any of the parties.

Metro ultimately filed its response to the Union's motion and its motion to modify the ALJ's findings within the time limit authorized by the Division. However, based upon the belief that the ALJ's findings became the final order of the Division by operation of law, the Union filed a petition for judicial review in the district court.

Thereafter the Division entered a final order approving the findings and ruling of the ALJ. Metro filed an answer to the Union's district court petition and a cross-petition for judicial review in that court seeking review of the rulings on sick leave and use of showers. In the alternative, Metro alleged that the Division lacked jurisdiction to decide the dispute in the first instance.

Later, the district court granted the Division's motion to dismiss the Union's petition for judicial review as premature because it was filed before the Division entered its final order. Relative to Metro's cross-petition, the court ruled that the Division had jurisdiction over this dispute. However, the court determined that the Division erred in concluding that the use of sick leave was not a form of compensation. The ALJ's resolution of the shower facilities issue was affirmed, and is not an issue on appeal.

I.

In its appeal, the Union first contends that the district court erred by dismissing its petition for judicial review with prejudice on the grounds that it was premature. Metro and the Division gssert that the court's ruling was correct. We agree with the Union.

If, within 830 days after receipt of the ALJ's decision, the director of the Division has taken no action, then the ruling of the ALJ is deemed to be that of the Division. Department of Labor & Employment Rule 7.2.D., Code Colo. Reg. 1101-1. An aggrieved party may then seek judicial review of the Division's decision by filing a petition in the district court within 380 days pursuant to § 24-4-106, C.R.8.1999, of the Administrative Procedure Act. See § 8-8-110(8), C.R.S. 1999.

Here, as noted, the ALJ issued an order granting Metro's motion for enlargement of time to respond to the Union's objection. See § 24-4-105(14)(a)(I1), C.R.8.1999. However, the order was not properly mailed to the parties. See Northern Colorado Consortium, Inc. v. Office of Rural Job Training, 728 P.2d 744 (Colo.App.1986) (if notice of a decision is not mailed with proper postage, an agency's decision is effective upon receipt of actual notice of the decision).

Nevertheless, even if we assume that the Union's petition was prematurely filed, absent a showing of prejudice to the other party, we conclude that dismissal of the petition was error. In our view, a premature petition for judicial review in the district court should be treated no differently than a premature notice of appeal to this court. See Kidwell v. K-Mart Corp., 942 P.2d 1280 (Colo.App.1996). This is particularly so when the problem is created by the failure of a state agency to mail its order. Hence, we conclude that the district court acquired jurisdiction to rule upon the Union's petition for judicial review once the Division's order became final. See In re Marriage of Ross, 670 P.2d 26 (Colo.App.1983).

IL

In its cross-appeal, Metro contends that the district court erred in ruling that the Division had jurisdiction over this dispute. According to Metro, the Division lacked statutory authority to interpret the terms of the MSDDA in order to address the dispute between the Union and Metro. We disagree.

Our review of the district court's decision is governed by the same standard that is applicable to the district court's review of the Division's decision. See § 24-4-106(11)(e), C.R.S.1999. As pertinent here, this court may reverse the Division's decision only if it erroneously interpreted the law or exceeded its constitutional or statutory authority. See § 24-4-106(7), C.R.S.1999; Ohlson v. Weil, 953 P.2d 939 (Colo.App.1997).

The duties and powers of an administrative agency are determined and limited by the statutes under which it is created, and actions of an administrative ageney that exceed the scope of those delegated duties and powers are void. Colorado Division of Employment & Training v. Industrial Commission, 665 P.2d 681 (Colo.App.1988). However, powers not expressly granted to a state regulatory agency are implied if such are necessary to carry out the ageney's function and if the implied power is exercised in a reasonable manner. See State Farm Mutual Automobile Insurance Co. v. Barnes, 41 Colo.App. 380, 585 P.2d 929 (1978).

Here, the Labor Peace Act is a comprehensive statute regulating the conduct of the parties to a labor dispute. See City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960). A "labor dispute" is defined as "any controversy ... concerning the rights or process or details of collective bargaining." See § 8-3-104(13)(a), C.R.S.1999. Further, any controversy concerning unfair labor practices may be submitted to the Division. See § 8-3-110(1), C.R.98.1999. And, when such a dispute arises, the Division is authorized to hold hearings and to make decisions determining the rights of the parties. See § 8-8-110(7), C.R.8.1999. In our view, this obligation nee-essarily and implicitly includes the authority to interpret statutes pertinent to the dispute. Accordingly, we agree with the district court that if the resolution of what constitutes an unfair labor practice requires the Division to interpret a statute, this action is simply a determination of the rights of the parties that the Division is authorized to make under § 8-8-110(7).

IIL

The Union next contends that the district court erred in concluding that the use of sick leave is "compensation" under the MSDDA. We disagree.

The MSDDA grants Metro the authority to prescribe the duties of employees and "fix their compensation ... at prevailing rates of pay for equivalent work." See § 32-4-510(1)(aa), C.R.S8.1999. However, the MSDDA does not define the term "compensation."

In construing § 32-4-510(1)(aa), we must ascertain and give effect to the intent of the General Assembly. In order to do so, we first review the language of the statute itself, and give the statutory terms the accepted and generally understood meanings. People v. Guenther, 740 P.2d 971 (Colo.1987). If the meaning and application of the statute is apparent based upon the plain meaning of the words used, we need not resort to other aids in statutory construction.

Turning then to the plain meaning rule, "compensation" is defined as "[rlemuneration and other benefits received in return for services rendered." Black's Law Dictionary 277 (Ith ed.1999) (emphasis supplied) We perceive no basis in the statute for not applying this general definition of the term. This definition would include paid sick leave as a benefit received in addition to remuneration.

In the alternative, the Union contends that even if the use of paid sick leave is "compensation," Metro is still required to negotiate on this issue. According to the Union, the opinion in Metro I exempts Metro from negotiating the overall rates of the compensation package, but does not exempt it from negotiating the composition of the individual benefits within the package. Again, we disagree.

The Metro I court held that fixing compensation according to prescribed standards under the MSDDA is incompatible with negotiation, and thus the General Assembly did not intend the Labor Peace Act to limit or impede Metro's authority to establish compensation. In the view of that division, this power was "central to the purpose of the MSDDA." See International Union of Operating Engineers v. Metro Wastewater Reclamation District, supra, 376 P.2d at 85.

In our view, requiring negotiation over the use of paid sick leave, even as a component of the overall wage rate, would impede Metro's authority to establish the compensation of its employees under the MSDDA.

In reaching this conclusion, we recognize that cases decided under the National Labor Relations Act have held that policies on the use of sick leave are a subject of mandatory bargaining. See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 LEd.2d 280 (1962). However, contrary to the Union's argument, that analysis is of no assistance here in determining the statutory authority of Metro under the MSDDA.

And, unlike in NLRB v. Parents and Friends of the Specialized Living Center, 819 F.2d 1442 (7th Cir.1989) and NLRB v. St. Louis Comprehensive Neighborhood Health Center, Inc., 633 F.2d 1268 (8th Cir.1980), the issue here is mot whether the NLRB had jurisdiction over a not-for-profit health care facility funded by a federal or state agency. Instead, this case involves an express power conferred by the General Assembly upon a political subdivision to set compensation for its employees.

Accordingly, those parts of the district court's judgment are affirmed determining that the Division had jurisdiction to decide this dispute, and that paid sick leave is included as compensation. That part of the judgment dismissing the Union's petition for review of the other provisions of the Division's order is reversed, and the cause is remanded to the district court for further proceedings on the petition. _-

Judge CRISWELL and Judge MARQUEZ concur.


author: Judge DAVIDSON.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony M. CHAVEZ, Defendant-Appellant.
    No. 98CA1431.
    Colorado Court of Appeals, Div. A.
    Nov. 26, 1999.
    Certiorari Denied Aug. 21, 2000.

      Ken Salazar, Attorney General, Christine Cates Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Justice COATS does not participate.

   Opinion by

Judge DAVIDSON.

Defendant, Anthony M. Chavez, appeals from the trial court's order denying his motion for post-conviction relief pursuant to Crim. P. 85(c). We affirm.

Pursuant to a plea agreement, defendant pled guilty to one count of possession of a controlled substance, a class four felony, while the People dismissed the remaining charges against him. The written plea agreement indicated that the parties had stipulated that defendant would be sentenced to eight years in a community corrections facility, or, if he was not accepted by community corrections, would receive a four-year sentence to the Department of Corrections (DOC).

In addition to the written plea agreement, defendant signed a form entitled "Request to Plead Guilty (Rule 11 Advisement)" By placing his initials next to each paragraph of the written advisement, defendant acknowledged that he understood its contents, including the fact that he "could be required to serve up to five years on parole after serving a sentence" (emphasis added). Defendant further confirmed that "[alny proposed plea agreement is fully set forth in the written plea agreement of the parties" and that he understood that the court would not be bound by any representations made to him regarding sentencing that were not contained in the written plea agreement.

After accepting defendant's guilty plea as knowingly, voluntarily, and intelligently entered, the trial court held a sentencing hearing at which counsel indicated that defendant had been rejected by community corrections. The court then sentenced defendant to a four-year term in the DOC "plus three years of parole."

Defendant, acting pro se, thereafter filed his Crim. P. 85(c) motion. As pertinent here, defendant claimed that his plea agreement provided for a stipulated four-year sentence, and that his attorney told him that any parole period would be served as part of, not in addition to, the four-year sentence. He claimed that, because the four-year prison sentence plus the three-year mandatory parole period resulted in an aggregate sentence of seven years, the sentence imposed exceeded the four-year stipulated sentence provided for under the plea agreement. Relying on People v. Sandoval, 809 P.2d 1058 (Colo.App.1990), defendant claimed that he was entitled to specific performance of the plea agreement as he understood it, and requested that his prison sentence be reduced to one year so that his total sentence, including the parole period, would be four years.

The trial court denied the motion, conelud-ing that defendant had been advised, both in writing and by the providency court, regarding the mandatory parole period.

Defendant contends that the trial court erred by denying his motion without holding a hearing. We disagree.

The supreme court recently decided Craig v. People, 986 P.2d 951 (Colo.1999), in which it overruled People v. Sandoval, supra. In Craig, the supreme court held that cases involving post-conviction challenges to the imposition of a mandatory parole period require a two-part inquiry.

First, the court must determine whether the defendant was explicitly promised a sentence that alters or eliminates the statutorily required mandatory parole period. Absent an express promise regarding mandatory parole, the agreement will not be interpreted as providing for a sentence related to mandatory parole that is statutorily prohibited. However, if such an express promise was made and was a material part of the plea agreement, the defendant's plea is rendered invalid unless the error is determined to be harmless. Because such an agreement calls for an illegal sentence, the defendant would not be entitled to specific enforcement of the plea agreement. Craig v. People, supra.

Second, the court must determine whether the defendant was adequately advised regarding the mandatory parole period. If the defendant received an inadequate advisement and the error was not harmless, the remedy is to reduce the defendant's sentence, provided such a modification would not result in an illegal sentence. If the defendant's sentence cannot be reduced, the only remedy for the improper advisement is to permit the defendant to withdraw his plea. Craig v. People, supra.

Applying the principles announced in Craig and its companion case, Benavides v. People, 986 P.2d 943 (Colo.1999), we now turn to an analysis of defendant's claims.

A.

Defendant claims that his plea agreement called for a stipulated four-year sentence comprised of a one-year prison term (a sentence below the minimum presumptive-range sentence) and a three-year mandatory parole period; thus, he contends that the sentence imposed violates the terms of his plea agreement. He claims that he is entitled to specific enforcement of the agreement as he understood it, and that his sentence must therefore be reduced. We disagree.

Initially, we note that the determination of the meaning of a plea agreement is a question of law. Accordingly, we review the trial court's determination of the meaning of a plea agreement and its interpretation of a party's obligation under the agreement de movo. Craig v. People, supra.

In interpreting a plea agreement, we determine "the meaning a reasonable person would have attached" under the cireum-stances. Craig v. People, supra. This is an objective test, and is thus not based on the subjective understanding of the defendant.

Here, the parties' agreement regarding sentencing as described in the written plea agreement provides that if defendant could not be sentenced to a community corrections facility, he would receive a four-year "DOC" sentence.

In Craig, the supreme court, interpreting nearly identical language in the defendant's plea agreement, rejected the claim that the parties intended the stipulated "DOC" sentence to limit the defendant's total sentence, including the mandatory parole term, to the period specified. The court concluded that a reasonable person would understand a stipulated DOC sentence as referring to the imprisonment component of the sentence only, not the defendant's "overall exposure." Craig v. People, supra.

Thus, contrary to defendant's assertion, the parties' sentencing agreement was limited to the amount of time he would serve in prison, and did not speak to the issue of mandatory parole.

We reject defendant's claim that counsel's alleged assurance that the stipulated four-year DOC sentence would include the mandatory parole period requires that we reach a different result.

We recognize that, in addition to the written documents, a court may consider extrinsic evidence, including oral statements made to the defendant, in interpreting the parties' plea agreement. However, consideration of such evidence "takes on special significance only where the plea agreement is itself ambiguous," or oral statements made to the defendant "add a term inconsistent with the plea agreement." Craig v. People, supra; see also People v. Romero, 745 P.2d 1003 (Colo.1987), cert. denied, 485 U.S. 990, 108 S.Ct. 1296, 99 L.Ed.2d 506 (1988).

Thus, when a written plea agreement is unambiguous, an inaccurate advisement by the providency court does not alter the clear terms of the parties' bargain, unless the court adds an entirely new term to the bargain. See Craig v. People, supra; Benavides v. People, supra. Similarly, we conclude that an inaccurate oral advisement by counsel does not alter the terms of a plea agreement.

Here, the written documents unambiguously provided that defendant would receive a four-year DOC sentence followed by a mandatory parole period of up to five years. By signing the Rule 11 Advisement form, defendant acknowledged that "[alny proposed plea agreement is fully set forth in the written plea agreement of the parties." That counsel allegedly told defendant that the parole term would be subsumed within the four-year DOC sentence does not change the fact that the terms of the parties' plea agreement clearly provided otherwise.

Accordingly, our de novo review of the parties' plea agreement convinces us that it did not purport either to alter or to eliminate the statutorily required mandatory parole period or to provide for an illegal prison sentence, and is not invalid under the first prong of the Craig test.

B.

We also reject defendant's contention that he was not advised that he would be required to serve a three-year mandatory parole period after completing his prison sentence, and that the Crim. P. 35(c) court erred by denying his motion on that basis.

We review the record as a whole to determine whether the defendant was adequately advised regarding the parole consequences of his guilty plea. Craig v. People, supra; People v. District Court, 868 P.2d 400 (Colo.1994).

At the outset, we note that under the first prong of the Craig analysis, our task is to determine what the actual terms of the parties' plea agreement were, whereas under the second prong of the Craig test, we must evaluate the adequacy of the advisement defendant received regarding the terms of the plea agreement and whether the plea was knowingly and voluntarily entered. Thus, while inaccurate advice by the providency court or counsel does not affect our analysis of the terms of the parties' agreement under the first prong of the Craig test if the written documents are clear, such inaccurate advice may nevertheless affect the determination whether the defendant was adequately advised regarding the parole consequences of his plea. See Craig v. People, supra.

A proper advisement must inform the defendant of the maximum possible length of the mandatory parole period, and must indicate that the parole term "occurs after, in addition to, or distinct from" the period of imprisonment imposed. Craig v. People, supra. If a defendant receives advice, either from counsel or the providency court, that is different from the information contained in the written plea documents, he or she must request clarification from the court when given an opportunity to do so, rather than asserting that he or she was confused at the providency hearing as the basis for post-conviction relief,. See Craig v. People, supra (noting that defendant confirmed at the providency hearing that he understood the written plea documents and did not express confusion or request clarification from the court regarding the application of the mandatory parole period to his sentence).

We note that through no fault of defendant's, the transcript of the providency hearing is not part of the record on appeal. The absence of the transcript does not af-feet our analysis of the advisement defendant received, however, because defendant did not allege in his motion that the provi-dency court's advisement was deficient or inaccurate. Rather, he alleged only that the written documents and counsel did not adequately advise him regarding the parole consequences of his plea.

In Craig, the supreme court, reviewing a written advisement regarding parole identical to that contained in the written documents that memorialize the terms of defendant's plea agreement in this case, concluded that the advisement was sufficient to inform the defendant of the length of the mandatory parole period and the fact that it was a sentencing consequence distinct from the period of imprisonment imposed. For the reasons expressed in that opinion, we also conclude that defendant's written advisement was sufficient to inform him of the parole consequences of his guilty plea.

Moreover, at the sentencing hearing the court specifically indicated in defendant's presence that his sentence was "to the [DOC] for a period of four years, plus three years of parole." Defendant did not request clarification from the court or suggest that he believed that under his plea agreement the mandatory parole period should be included in the four-year DOC sentence.

Accordingly, viewing the record as a whole, we agree with the Crim. P. 85(c) court's conclusion that, even if counsel had provided inaccurate advice regarding the parole period, defendant was not entitled to a reduction in his sentence on the basis of the alleged defect in his providency advisement and his subjective, albeit erroneous, understanding of the terms of the plea agreement.

Finally, because the record establishes as a matter of law that defendant was not entitled to the relief requested, the trial court did not err by denying his motion without holding a hearing. See People v. Rodrigues, 914 P.2d 230 (Colo.1996).

The order is affirmed.

Judge RULAND and Judge TAUBMAN concur.


author: Judge KAPELKE,

text:
    AEC INDUSTRIES, LLC, Plaintiff-Appellee, v. SURVIVOR OIL, INC.; Conrad Ratliff; and Gary Tibbits, Defendants-Appellants.
    No. 98CA1251.
    Colorado Court of Appeals, Div. V.
    Nov. 26, 1999.
    Certiorari Denied Aug. 21, 2000.

      Burns, Wall, Smith and Mueller, P.C., Peter J. Wall, Robert T. Cosgrove, Denver, Colorado, for Plaintiff-Appellee.
    RH. Peck, P.C., RH. Peck, Craig, Colorado; Richard H. Bate, Denver, Colorado, for Defendant-Appellant Survivor Oil, Inc.
    Baker & Hostetler, LLP, Timothy R. Beyer, Peter J. Korneffel, Jr., Denver, Colorado; W. Dan Nelson, Edmond, Oklahoma, for Defendants-Appellants Conrad Ratliff and Gary Tibbits,
   Opinion by

Judge KAPELKE,

In this action for foreclosure of mechanic's liens relating to an oil and gas lease, defendant, Survivor Oil, Inc. (Survivor), appeals from the summary judgment entered by the trial court determining that Survivor either had no interest in the properties that are the subject of the foreclosure (the subject properties) or that any interest that it had was junior to the mechanies' liens held by plaintiff, AEC Industries, LLC (AEC). Also, defendants Conrad Ratliff and Gary Tibbits separately appeal from the summary judgment determining that any interest they had in the subject properties was junior to the mechanic's liens held by AEC. We affirm.

As pertinent to this appeal, the claims in this action relate to a federal oil and gas lease in Rio Blanco County, Colorado, and a well on that leasehold. In January 1992, Survivor received an assignment of the lease but only insofar as it related to the geologic formations from the surface of the earth down to the top of the Frontier formation (Shallow Formations). In addition, Survivor received an assignment of "wellbore," which was defined as all of the assignor's interest in the specific well, "together with all oil, gas and other hydrocarbons that may be produced from said wellbore, together with all downhole equipment therein."

In April 1998, Survivor assigned all of its rights in the Shallow Formations of the lease and in the wellbore to another company. The assignment contained the following provision, which forms the basis of Survivor's claimed interest:

In the event that Assignee recovers 100% of its Data and Completion Costs of [the welll ... Assignor [Survivor] reserves an overriding royalty interest equal to five percent (5%), in and to the oil, gas, minerals and other hydrocarbons which may be produced and saved from the herein de-seribed wellbore, or lands pooled, commu-nitized or unitized therewith, free and clear of any costs and expenses of development and operations thereof excepting taxes applicable to said interest and the production therefrom. '

Work was performed on the well by various oil field contractors in an attempt to complete it in the formations below the Shallow Formations. Ratliff and Tibbits entered into arrangements with the contractors to perform the work and apparently provided certain consulting services Many of the contractors were not paid for their services and therefore filed mechanic's lien claims on the property pursuant to § 38-24-101, et seq., C.R.98.1999. The suits brought by the lien claimants were consolidated into this action, and AEC later obtained assignments of the lien claims and was substituted as plaintiff,

The trial court appointed a special master who made recommendations to the court as to rulings on motions. By separate motions for summary judgment, AEC sought a determination that the liens it held were senior and superior to any claimed interest of Survivor as well as to any claimed interest of Ratliff and Tibbits.

Pursuant to recommendations of the special master, the trial court entered summary judgments in favor of AEC and against Survivor, and also against Ratliff and Tibbits.

The court ruled that Survivor has no overriding royalty in the subject properties as to the formations below the Shallow Formations and that any interest it does have either will: "(a) never become effective, or (b) is in the nature of a carried working interest and therefore subject to the liens of AEC and this foreclosure."

By separate order, the court concluded that the liens of AEC were also prior and superior to the claims and interests of Ratliff and Tibbits,

On August 3, 1998, the trial court entered a final judgment and decree authorizing foreclosure by ABC of its liens. This appeal followed.

I.

Survivor contends that the trial court erred in concluding that its interest in the subject properties was junior to AEC's mechanic's liens and would be extinguished upon foreclosure of such liens. We disagree.

A.

First, it is undisputed that, at the time it made its wellbore assignment and assignment of operating rights, Survivor had rights in the lease only as to the Shallow Formations. Accordingly, as the trial court ruled, the rights reserved by Survivor pursuant to those assignments were limited to those formations.

Second, we reject Survivor's contention that the trial court erred in ruling that any interest Survivor reserved was in the nature of a carried working interest, rather than an overriding royalty interest, and was therefore junior to, and subject to foreclosure of, AEC's mechanic's liens.

An overriding interest is an interest in oil and gas produced at the surface, free of expenses of production. Garman v. Conoco, Inc., 886 P.2d 652 (Colo.1994); Hagood v. Heckers, 182 Colo. 337, 513 P.2d 208 (1973); see also 2 H. Williams and C. Meyers, Oil and Gas Law 748 (1998). It is an interest that is carved out of the working interest created by an oil and gas lease, and is limited in duration to the life of the leasehold interest. Grynberg v. Waltman, 946 P.2d 473 (Colo.App.1996).

Because it is a nonoperating interest carved out of the lease, an overriding royalty interest has been regarded as an encumbrance on the working interest "and is therefore free from liens thereafter imposed on the working interest." 5 E. Kuntz, A Treatise on the Law of Oil and Gas § 68.2, p. 222 (1991), citing Roberts v. Tice, 198 Ark. 397, 129 S.W.2d 258 (1939); DaMac Drilling, Inc. v. Shoemake, 11 Kan.App.2d 38, 713 P.2d 480 (1986); and Cities Service Oil Co. v. Pubco Petroleum Corp., 497 P.2d 1368 (Wyo.1972).

Indeed, AEC acknowledges in its brief that if Survivor held an overriding royalty interest, such interest would not be subject to the costs of the kind represented by AEC's liens. It asserts, however, that the interest reserved by Survivor is in the nature of a carried working interest and, as such, is subject to such liens.

A carried interest is "[al fractional interest in oil and gas property, usually a lease, the holder of which has no personal obligation for operating costs, which are to be paid by the owner or owners of the remaining fraction, who reimburse themselves therefor out of production, if any. The person advancing the costs is the carrying party and the other is the carried party." 2 H. Williams and C. Meyers, supra, at 183.

Unlike an overriding royalty interest, a carried interest has been found to be subject to the rights of mechanic's lien claims such as those of AEC here. See Dufford and Hel-mick, Mechanic's Liens Relative to Oil and Gas Operations-Part II, 34 Dicta 373, 380-381 (1957); see also Ball v. Red Square Oil & Gas Co., 113 Kan. 763, 216 P. 422 (1923).

Overriding royalty interests are distinguishable from carried interests in that overriding royalty interests are usually shares of gross production free of costs. 2 H. Williams and C. Meyers, supra, § 424 at 488.

One type of carried interest involves the carried party having a future interest in a portion of the working interest which is so limited as to become possessory after the carrying party has recovered certain specified costs during the payout period. 2 H. Williams and C. Meyers, supra, § 424 at 441. The arrangement can also entail an assignment and a reassignment when the carrying party has recovered its costs. See E. Kuntz, supra, § 68.4.

Here, it is evident that Survivor did not reserve an overriding royalty interest, as such. Nor can its reserved interest be considered to be an interest in gross production free of costs, which is generally the hallmark of a true overriding royalty. Rather, the purported reservation is effective only "[in the event" that Survivor's assignee "recovers 100% of its Data and Completion costs of the well."

Because the interest purported to be reserved by Survivor was contingent upon the assignee first recovering its costs, we conclude that such interest is in the nature of a carried interest, with Survivor as the carried party and its assignee as the carrying party. We thus agree with the trial court's conclusion that Survivor does not hold an overriding royalty interest and that any future or contingent interest it did hold pursuant to the purported reservation was subject to AEC's liens and would be extinguished upon foreclosure of the liens.

In urging that its interest, even if characterized as a carried working interest rather than a royalty, should be declared senior to AEC's liens, Survivor relies on North Finn v. Cook, 825 F.Supp. 278 (D.Wyo.1993). We find that case distinguishable. The court based its ruling there on the fact that the holder of the "back-in" working interest had not contracted to pay for the drilling costs that gave rise to the liens. As discussed below, under the facts here, Survivor's interest is subject to the liens under the Colorado lien statute.

B.

Survivor next contends that, regardless of how it is characterized, its interest is not subject to AEC's Hens because Survivor did not contract with the lien claimants. Again, we disagree.

Section 88-24-101, C.R.S.1999, provides that the party performing labor or furnishing labor by virtue of a contract, "express or implied," with any owner or lessee of any interest in real estate shall have a lien on the interest of the properties belonging to the party contracting with the lien claimants.

If the holder of a carried working interest expressly or impliedly consents to the development or improvement of the leasehold and commits its interest to the program, that interest is subject to the liens. See Dufford and Helmick, supra.

By the terms of the assignment instrument, Survivor's reserved interest will arise only upon the assignee's recovery of all data and completion costs. The incurring of such costs was thus obviously contemplated by the parties. Under the cireumstances, the record supports a determination that Survivor at least impliedly consented to the development and to the incurring of the costs associated with such development. Therefore, the interest could be subject to the mechanic's liens held by AEC and could be extinguished upon their foreclosure.

C.

Finally, Survivor argues that the trial court's ruling violated Survivor's equal protection rights. Because this argument was not raised in the trial court, we decline to address it here. See Committee for Better Health Care v. Meyer, 830 P.2d 884 (Colo.1992); Anderson Boneless Beef, Inc. v. Sunshine Health Care Center, Inc., 878 P.2d 98 (Colo.App.1994).

In light of our determination, we need not address the correctness of the trial court's ruling that Survivor received no valid interest pursuant to the reservation in the well-bore assignment.

IL.

Ratliff and Tibbits contend that the trial court erred in holding that they did not have mechanic's liens or valid carried working interests that were superior to AEC's liens. We disagree.

As noted, Ratliff and Tibbits claimed to have performed certain management and consulting services in connection with the subject properties.

Under $ 38-24-101, a person "who performs labor upon or furnishes machinery, material, fuel, explosives, power, or supplies for sinking, repairing, altering, or operating" any oil or gas well by virtue of a contract is entitled to a lien.

It is undisputed that Ratliff and Tibbits did not actually perform labor or deliver any supplies with respect to the subject properties. They argue, nevertheless, that because their services benefited the property, they had a valid lien pursuant to the lien statements they filed.

In Lindemann v. Belden Consolidated Mining and Mill. Co., 16 Colo.App. 342, 65 P. 403 (1901), the court determined that the actions of a geologist in exploring and evaluating mineral prospects did not constitute labor that would support a lien on the property.

Consistent with the decision in Linde-mann, it has been generally recognized that services such as those of geologists, surveyors, and engineers are excluded under the oil and gas mechanic's lien statutes, unless such services are specifically referred to in the statute. See Meyer and Dufford, Oil and Gas Mechanic's Liens Revisited, 15 Colo. Law, 1822, 1926 (1986) ("[to fall within Colorado's statute, those who provide professional services should at a minimum provide evidence of a 'labor' or 'materials' component"); see also Drew, Current Developments on the Law of Materialmen's Liens on Oil and Gas Leases, 21 Rocky Mtn. Min. L. Inst. 307 (1975). Colorado's statute does not contain such a specific reference.

Accordingly, we agree with the trial court that Ratliff and Tibbits do not have any mechanic's lien claims superior to the liens of AEC as a result of their consulting or engineering services.

In addition, Ratliff and Tibbits argue that they had a valid carried working interest in the properties pursuant to an agreement they claim to have entered into with the unit operator. However, they have not pointed to any document in the record that would constitute an actual transfer or conveyance to them of any such interest. Accordingly, we reject their contention.

Finally, they assert that they are entitled to the imposition of a constructive trust in their favor in order to prevent an unjust enrichment. The trial court concluded, however, that they had not demonstrated a basis for equitable relief or shown that any claim for such relief would entitle them to an interest in the property that would be superior to AEC's mechanic's liens.

The record does not evidence any fraud, duress, or wrongful conduct by any party that might support such relief. See Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429 (Colo.App.1988).

In addition, a constructive trust cannot be imposed to defeat intervening property rights, such as those of AEC here. See United States v. Eaton Shale Co., 433 F.Supp. 1256 (D.Colo.1977).

We thus conclude that the trial court properly held that Ratliff and Tibbits have no interest in the subject properties that is senior to the liens of AEC.

The judgment is affirmed.

Judge DAVIDSON and Judge TAUBMAN concur.


author: Judge BRIGGS.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brand PATTON, Defendant-Appellant.
    No. 98CA0892.
    Colorado Court of Appeals, Div. IV.
    Dec. 9, 1999.
    Certiorari Granted Sept. 5, 2000.

      Ken Salazar, Attorney General, Paul Koceh-ler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Office of Jane Hazen, Jane Hazen, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge BRIGGS.

Defendant, Brand Patton, appeals the judgment of conviction and sentences entered upon his guilty pleas to one count of unlawful possession of a controlled substance and one count of unlawfal manufacture/distribution of a controlled substance. We affirm.

Defendant was charged with multiple counts in two successive cases. In case 97CR26, a multi-defendant information was filed. Defendant was charged with unlawfully manufacturing methamphetamine/amphetamine (count 17), unlawfully possessing methamphetamine/amphetamine {count 18), unlawfully possessing ephedrine (count 19), conspiring to manufacture or distribute methamphetamine/amphetamine (count 20), and conspiring to manufacture or distribute ephedrine (count 21). In addition, defendant was charged with a petty offense and a sentence enhancement provision for possession of a deadly weapon. The information alleged that all of the offenses were committed between October 1, 1996, and February 4, 1997.

After the prosecutor dismissed count 19 of the information, the county court conducted a preliminary hearing on the remaining felony charges. The court found probable cause for each offense and bound defendant over to district court. °

Defendant was later charged with three additional offenses in case 9TCR125: two counts of unlawful distribution, manufacturing, dispensing, sale, and possession of methamphetamine and one count of conspiracy to commit unlawful distribution, manufacturing, dispensing, sale, and possession of methamphetamine. The information alleged that these offenses were committed between February 5, 1997, and July 17, 1997. Defendant was bound over to district court on these charges as well.

In the district court, the prosecutor filed a motion seeking to consolidate the two cases and asking the court to combine the "similar" charges "with an offense date of October 1, 1996, to July 17, 1997." The record does not indicate that the trial court granted the motion, but it did order that the two cases be "joined for further disposition."

Soon thereafter, the parties entered into a plea agreement. Pursuant to that agreement, the People amended count 17 in case 97CR26 (the methamphetamine/amphetamine manufacturing count) so that the dates charged were from October 1, 1996, to July 17, 1997. Defendant agreed to plead guilty to that amended charge, together with count 18 in the same case (unlawfully possessing methamphetamine/amphetamine between October 1, 1996, and February 4, 1997). In exchange, the People agreed to dismiss all remaining charges pending against defendant.

At the providency hearing, the factual basis for the two charges to which defendant had agreed to plead guilty was established by means of police affidavits prepared in support of the arrest and search warrants. The trial court accepted the pleas and imposed concurrent sentences to the Department of Corrections (DOC) of twelve years on the manufacturing count and six years on the possession count. This appeal followed.

I.

Defendant contends that double jeopardy principles require that his conviction for possession of a controlled substance be merged into his conviction for unlawful manufacture of a controlled substance because manufacturing necessarily includes possession. The argument is premised on his assertion that the record establishes that the two convictions were based on identical conduct. Because we disagree with the premise of the argument, we find no constitutional violation.

Although a voluntary guilty plea waives all non-jurisdictional defenses, it does not necessarily preclude a challenge based on double jeopardy grounds. However, such a challenge can succeed only if it is evident from the face of the charging instrument and the record existing at the time the guilty plea was entered that the charge was one which the state could not constitutionally prosecute. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); People v. Higgins, 920 P.2d 898 (Colo.App.1996).

Initially, we note defendant's contention that the manufacture of a controlled substance necessarily includes its possession. We also note his contention that, if his challenge succeeds, he is entitled to retain the benefit of his plea bargain and, at the same time, obtain the dismissal of one of his two agreed convictions. Even assuming without deciding that defendant is correct as to both contentions, we conclude that his constitutional claim must fail.

Here, while there is some overlap in the two time periods charged in the two counts in the amended information, they are not identical. Further, it appears from the procedural history reflected in the record and the facts alleged in the arrest and search warrant affidavits that defendant had manufactured methamphetamine; had been arrested, charged, and released; and had again manufactured methamphetamine.

It therefore appears that defendant had engaged in the manufacture of at least one separate "batch" of methamphetamine in each relevant time period. At the least, it is not evident from the face of the information and the record existing at the time defendant entered his guilty pleas that the convictions were based on identical conduct or even one continuing course of conduct. As a result, he is not entitled to dismissal of either conviection based on double jeopardy principles. See United States v. Broce, supra; Taylor v. Whitley, 933 F.2d 325 (bth Cir. 1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1678, 118 L.Ed.2d 395 (1992); see also § 18-1-408, C.R.S.1999.

IL

Defendant next argues that the trial court abused its discretion by imposing concurrent twelve-year and six-year sentences to the DOC. Specifically, he contends the trial court unduly emphasized his criminal history, underestimated his rehabilitative potential, relied on a biased presentence report which contained numerous inaccuracies, and imposed a sentence which was unfairly longer than those received by the co-defendants. We are not persuaded.

The trial court has wide latitude at sentencing. Absent an abuse of discretion, its decision will not be reversed on appeal. People v. Lowery, 642 P.2d 515 (Colo.1982).

In order for a sentence to constitute an abuse of discretion, it must be manifestly arbitrary, unreasonable, or unfair. People v. Hughes, 946 P.2d 509 (Colo.App.1997), cert. denied, 523 U.S. 1050, 118 S.Ct. 1369, 140 L.Ed.2d 517 (1998), overruled on other grounds, Valdez v. People, 966 P.2d 587 (Colo.1998).

Because sentencing is by its nature individualized, there is no rule that confederates in crime must receive equal sentences. People v. Walford, 716 P.2d 137 (Colo.App.1985).

Unlawful manufacture of a schedule II controlled substance is a class three felony with a presumptive sentencing range of four to twelve years imprisonment. Unlawful possession of a schedule II controlled substance is a class four felony with a presumptive sentencing range of two to six years imprisonment. Sections 18-1-105(1)(a)(V)(A) and 18-18-405(2)(a)(I), C.R.8.1999.

Here, defense counsel asserted that the pre-sentence report contained inaccurate statements and was prepared by a probation officer who was biased against defendant. The trial court rejected defendant's claim of bias, but it continued the sentencing hearing so that defense counsel could further investigate the allegations contained in the pre-sentence report.

When the sentencing hearing reconvened the next month, defense counsel was able to correct the misstatements contained within the presentence report. Thus, we initially conclude the trial court did not abuse its discretion in the manner in which it afforded defendant an opportunity to rebut the information in the pre-sentence report. See People v. Wright, 672 P.2d 518 (Colo.1983) (trial court abused its discretion in failing to continue sentencing hearing to some future date to give defense counsel adequate opportunity to review and challenge pre-sentence report).

The record further reflects that the trial court properly considered defendant's criminal history, his previous unsuccessful attempt at drug rehabilitation, and the degree to which he participated in a wide-ranging conspiracy to manufacture and distribute methamphetamine. In these circumstances we cannot say that the court abused its discretion in imposing concurrent twelve-year and six-year sentences to the DOC.

The judgment and sentence are affirmed.

Judge JONES and Judge ROTHENBERG concur.


author: Judge CRISWELL.

text:
    Jack J. GRYNBERG, individually and d/b/a Jack Grynberg and Associates; Grynberg Petroleum Company; and Celeste C. Grynberg, an individual, Plaintiffs-Appellants, v. COLORADO OIL AND GAS CONSERVATION COMMISSION; Marilyn B. Bateman, f/k/a M.B. Tate; and R.K. Cramer, a/k/a Richard K. Cramer, Defendants-Appellees.
    No. 98CA1928.
    Colorado Court of Appeals, Div. II.
    Dec. 23, 1999.
    Certiorari Denied Aug. 21, 2000.

      Phillip D. Barber, P.C., Phillip D. Barber, Denver, Colorado; Dufford & Brown, P.C., Lisa A. Lee, Denver, Colorado, for Plaintiffs, Appellants.

       Justice KOURLIS does not participate.

   Opinion by

Judge CRISWELL.

In this action to review a decision of the Colorado Oil and Gas Commission (Commission), plaintiffs, Jack J. Grynberg, individually and d/b/a Jack Grynberg and Associates, Celeste C. Girynberg, and Grynberg Petroleum Company, seek reversal of the district court judgment that affirmed the Commission's conclusion that the Commission lacked jurisdiction to interpret the terms of an oil and gas lease between plaintiffs and defendants, Marilyn B. Bateman and Richard K. Cramer. We affirm.

Plaintiffs are the operators and defendants are the royalty owners of an interest in an oil and gas property. A dispute arose between them with respect to whether plaintiffs were entitled under the terms of the lease to deduct certain post-production expenses in computing the royalties due to defendants.

Defendants initially commenced an action at law to recover royalties from plaintiffs. Later, however, they filed an application with the Commission pursuant to $ 34-60-118.5, as it existed prior to recent amendments, see Colo. Sess. Laws 1998, ch. 186 at 636, to have the Commission determine the amount of royalties owed by plaintiffs, and the district court stayed its proceedings, pending final action by the Commission.

The Commission, however, concluded that, while the pertinent statute authorized it to ensure timely payments to those legally entitled to such payments, it lacked jurisdiction to adjudicate private disputes related to the legality of specific deductions, which disputes would require "an interpretation of the instruments creating the [royalty] interests." Hence, it dismissed defendants' application without prejudice to defendants' right to reapply for relief from it once the dispute over the propriety of such deductions had been resolved either by the stipulation of the parties or by decision of a court of competent jurisdiction.

Plaintiffs sought judicial review of this order, asserting that the Commission erred in declining to assert jurisdiction over this dispute. The district court affirmed the Commission's action, and plaintiffs now appeal from that judgment.

I.

Plaintiffs contend that § 84-60-118.5(5) granted to the Commission exclusive jurisdiction to resolve their dispute with defendants and that the district court erred by concluding otherwise. We disagree.

Section 34-60-118.5(2), C.R.S.1999, requires that payments of proceeds derived from the sale of oil, gas, or associated products be made in a timely fashion. Section 34-60-118.5(5), then, provided that the Commission "shall have exclusive jurisdiction" to determine the following:

(a) The date on which payment of proceeds is due a payee under subsection (2) of this section;
(b) The existence or nonexistence of an cecurrence pursuant to subsection (8) of this section which would justifiably cause a delay in payment; and
(c) The amount of the proceeds plus interest, if any, due a payee by a payor.

Section 34-60-118.5 imposed an obligation on the part of "payors" to make timely payments of proceeds to "payees," and it granted the Commission exclusive jurisdiction to enforce compliance with that requirement. A "payee," as that term is used in § 34-60-118.5, is "any person or persons legally entitled to payment from proceeds derived from the sale of oil, gas, or associated products from a well in Colorado...." Section 34-60-118.5(1)(a), C.R.S.1999 (emphasis added).

Hence, while this statute makes clear that the Commission can order a payment be made only to one who is "legally entitled" to that payment, it does not make clear which tribunal, either the court or the Commission, determines whether there is legal entitlement to payment in any specific instance. To this extent, therefore, the statute may be said to be ambiguous.

Under such cireumstances, the interpretation placed upon a statute by the agency vested with authority to administer or to enforce that statute is entitled to deference, provided the interpretation adopted is a reasonable one. See Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo.1998).

Here, not only was the Commission's interpretation of the statute reasonable; we conclude that it was the proper interpretation.

Section 34-60-118.5 does not create an entitlement to proceeds; it presumes the existence of such an entitlement and imposes deadlines for the payment to those legally entitled to receive payment. The statute demonstrates the General Assembly's intent to grant to the Commission jurisdiction only over actions for the timely payment of proceeds and not over disputes with respect to the legal entitlement to proceeds under the terms of a specific royalty agreement.

Moreover, the General Assembly clarified its intent to exelude contractual disputes from the Commission's jurisdiction when it amended § 34-60-118.5 in 1998. See Colo. Sess. Laws 1998, ch. 186 at 636. The amended provisions now provide that the Commission shall have jurisdiction, but not exclusive jurisdiction, only "[albsent a bona fide dispute over the interpretation of a contract for payment," § 34-60-118.5(5), C.R.8.1999, and that:

Before hearing the merits of any proceeding regarding payment of proceeds pursuant to this section, the oil and gas conservation commission shall determine whether a bona fide dispute exists regarding the interpretation of a contract defining the rights and obligations of the payor and payee. If the commission finds that such a dispute exists, the commission shall decline jurisdiction over the dispute and the parties may seek resolution of the matter in district court.

Section 84-60-118.5(5.5), C.R.8.1999.

Under this amendment, therefore, the Commission does not have jurisdiction to interpret any royalty agreement to determine the propriety of disputed post-production deductions.

If the Generally Assembly amends a statute, an intent to change the law is generally presumed. That presumption may be rebutted by a showing that the General Assembly amended the statute simply to clarify an ambiguity. Whether an amendment was intended as a change or as a clarification is a question of statutory interpretation subject to judicial determination. In making that determination, we may refer to the language of the statute and to the legislative history of the amendment. United Guaranty Residential Insurance Co. v. Dimmick, 916 P.2d 638 (Colo.App.1996) (court may consider legislative history, prior enactments of the statute, and subsequent amendments to determine legislative intent); see Southwest Capital Investments, Inc. v. Pioneer General Insurance Co., 924 P.2d 1205 (Colo.App.1996) (presumption that General Assembly intends to change law by amending statute not applicable if amendment was meant to clarify ambiguity).

The language of the amendment demonstrates the General Assembly's intent merely to clarify any ambiguity that may have existed in the former version of the statute. Indeed, the statute as originally enacted and the amendment both provide evidence of the General Assembly's intent to exclude the resolution of contractual disputes from the jurisdiction of the Commission.

The parties' real dispute here is not with respect to the timeliness of any payments under § 34-60-118.5. It relates, rather, to plaintiffs' liability for payments that would have been made, but for plaintiffs' deduction of certain post-production costs. Consequently, it is the extent of defendants' legal entitlement to further payments under the royalty agreement that is at issue. The Commission properly concluded that § 34-60-118.5 gave it no jurisdiction over that question.

Similarly, the district court properly affirmed the Commission's determination of the extent of its authority.

IL.

Plaintiffs further contend that, if § 34-60-118.5 is interpreted in this manner, it violates the constitutional provisions guaranteeing equal protection of the laws, because it will improperly distinguish between those payors who assert their right to take deductions prior to calculating royalties owed to payees and other payors who do not assert that right, even though the two classes of payors are similarly situated. We are not persuaded.

In an equal protection analysis, the level of judicial serutiny varies according to the type of classification involved and the nature of the right affected. If a classification does not infringe on a fundamental right and is not based on either a suspect classification or a classification requiring intermediate scrutiny, the rational basis standard of review is used. Culver v. Ace Electric, 971 P.2d 641 (Colo.1999).

Under this rational basis standard, the person challenging a statute must show that the classification arbitrarily singles out a group of persons for disparate treatment in comparison to other persons who are similarly situated. In such a review, a statute is presumed to be constitutional, and the party challenging its validity bears the burden of convincing the court beyond a reasonable doubt that the classification does not bear a rational relationship to a legitimate legislative purpose. If any conceivable set of facts would lead to the conclusion that a classification serves a legitimate purpose, a court must assume the existence of those facts. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo.1997); Colorado Society of Community & Institutional Psychologists, Inc. v. Lamm, 741 P.2d 707 (Colo.1987) (statute relating to economic or social subjects will be struck down only if no reasonably conceivable set of facts could establish a rational relationship between the act and a legitimate end of government).

Here, the rational basis standard of review is appropriate because § 34-60-118.5 does not infringe upon a fundamental right, does not involve a suspect class, and does not draw a distinction that would require an intermediate level of serutiny.

As a threshold matter, we disagree with plaintiffs' characterization of the distinction drawn by the statute. Section 34-60-118.5 distinguishes between broader classes than those described by plaintiffs. The statute does not simply classify payors based on whether or not they assert the right to deduct post-production costs. Rather, it distinguishes between parties based on the existence or non-existence of a dispute over the rights arising under a contract. Thus, while the statute may distinguish between the two classes of payors described by plaintiffs, those two classes comprise only subcategories of larger groups classified by the statute.

Moreover, although we will assume that payors in the two groups are similarly situated, we conclude that there is a rational relationship between the statutory classification and a legitimate state purpose.

Section 34-60-118.5 confers jurisdiction upon the Commission to calculate the amount of proceeds due a payee and to enforce the timely payment of those proceeds, but it leaves to the courts the authority to decide contractual disputes, such as a determination of a potential payee's legal entitlement to proceeds. These types of disputes may involve not only contractual interpretation, but the application of complex legal principles if, for example, a payor is claiming the right to deduct post-production costs. See Garman v. Conoco, Inc., 886 P.2d 652 (Colo.1994); Rogers v. Westerman Farm Co., 986 P.2d 967 (Colo.App.1998). Thus, by reserving the determination of contractual disputes for the courts, § 34-60-118.5 promotes the state's legitimate interest in ensuring the proper and consistent resolution of complex legal questions.

We conclude, therefore, that the classification made by § 34-60-118.5 is rationally related to a legitimate state purpose, and it does not violate any equal protection guarantees.

IIL

Finally, there is no merit in plaintiffs' contentions that the statute is unconstitutionally vague, impermissibly subjects different classes of payors to different statutes of limitations, and denies certain classes of payors access to particular forums.

Contrary to plaintiffs' assertion, the statute does not create a vague classification based on the class of payor involved. Rather, the statute clearly distinguishes between two different classes of disputes, one of which involves actions under § 34-60-118.5 for the timely payment of proceeds and the other concerning disputes over the parties' rights under a royalty contract. The fact that each of these types of actions may be subject to a different statute of limitations and must be brought in a particular forum does not violate any guarantee of equal protection.

The judgment of the district court is affirmed.

Judge RULAND and Judge ROTHENBERG concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James E. MONTAINE, Defendant-Appellant.
    No. 98CA1948.
    Colorado Court of Appeals, Div. II.
    Dec. 23, 1999.
    Rehearing Denied Jan. 20, 2000.
    Certiorari Denied Sept. 11, 2000.

      Ken Salazar, Attorney General, Peter J.. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge RULAND.

Defendant, James E. Montaine, appeals from the trial court order denying his motions for post-conviction relief pursuant to Crim. P. 85(a) and Crim. P. 85(c). We affirm.

Pursuant to a plea agreement, defendant pled no contest to two counts of second degree sexual assault in 1994. In exchange for his pleas, the prosecution agreed to dismiss the remaining charges against defendant. There were no sentencing concessions.

Shortly thereafter, defendant was sentenced to 15 years probation. However, in 1996, defendant violated the terms of his probation. As a result, defendant's probation was revoked and he was resentenced to eight years imprisonment for each offense, to be served concurrently. Defendant was also required to serve one five-year term of mandatory parole pursuant to §§ 18-1-105(1)(a)(V)(A), (B), (C), and (D), C.R.S.1999. See People v. Barth, 981 P.2d 1102 (Colo.App.1999); see also People v. Black, 915 P.2d 1257 (Colo.1996) (under the governing sentence rule, the longest of an inmate's concurrent sentences and its parole provisions controls).

Thereafter, acting pro se, defendant filed two Crim. P. 35(a) and two Crim. P. 85(c) motions. The Crim. P. 35(a) motions alleged that, by adding a five-year term of mandatory parole to defendant's prison sentence, the Department of Corrections had violated both the terms of the plea agreement and the constitutional prohibition against double jeopardy. As pertinent here, the Crim. P. 35(c) motions alleged that defendant's pleas were involuntary because he had been advised only that he would be required to serve three years of mandatory parole, and that he had not been advised that he would be required to register as a sex offender if he pled guilty.

The trial court denied defendant's motions after a hearing. This appeal followed.

I.

Defendant contends that his guilty pleas were invalid because the trial court failed to advise him that: (1) he would be required to serve five years of mandatory parole after serving a prison sentence; and, (2) that he would be required to register as a sex offender pursuant to § 18-83-4125, C.R.S.1999. We disagree.

To satisfy due process concerns that a guilty plea be made knowingly and with a full understanding of the consequences, the trial court must advise defendant of the direct consequences of the plea. However, the court need not advise defendant of any collateral consequences. See People v. Birdsong, 958 P.2d 1124 (Colo.1998); People v. Pozo, 746 P.2d 523 (Colo.1987).

A direct consequence is one that has "a definite, immediate, and largely automatic effect on the range of possible punishment." People v. Moore, 841 P.2d 820, 824 (Colo.App.1992); see also People v. Ruiz, 935 P.2d 68 (Colo.App.1996).

A.

Mandatory parole is a direct consequence of a guilty plea because it imposes a significant limitation on defendant's freedom. Therefore, defendant should be advised of this requirement. See Craig v. People, 986 P.2d 951 (Colo.1999).

However, when the sentence imposed, including parole, is less than the maximum defendant was advised he or she could receive, the failure to advise of mandatory parole does not invalidate the plea. See Craig v. People, supra; see also People v. Tyus, 776 P.2d 1143 (Colo.App.1989).

Here, the record reveals that defendant was advised both in his petition to plead guilty and at the providency hearing that the presumptive range for each of his offenses was 2 to 8 years in the Department of Corrections, and that he could receive up to 16 years for each offense if the court found extreme aggravating circumstances. In addition to a possible 82-year sentence, defendant was also advised that he could be required to serve three years of mandatory parole following any Department of Corrections sentence. Thus, defendant was advised regarding a total of 85 years of incarceration and supervision.

Because defendant's total sentence, including mandatory parole, was less than the 35-year maximum he was advised he could receive, we conclude that the trial court's failure to advise defendant correctly of the mandatory parole term does not invalidate his pleas.

B.

Whether the statutory duty to register as a sex offender is a direct consequence of a guilty plea such that an advisement is required constitutes an issue of first impression in Colorado. A majority of other state courts that have considered this issue, however, have overwhelmingly rejected the argument that the duty to register as a sex offender is a direct consequence requiring an advisement. See State v. Young, 112 Ariz. 361, 542 P.2d 20 (1975); Ray v. State, 133 Idaho 96, 982 P.2d 931 (1999); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995); State v. Burr, 598 N.W.2d 147 (N.D.1999); State v. Timperley, 599 N.W.2d 866 (S.D.1999); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994); Johnson v. State, 922 P.2d 1384 (Wyo.1996); Robinson v. State, 730 So.2d 252 (Ala.Cr.App.1998); Collie v. State, 710 So.2d 1000 (Fla.App.1998); State v. Bollig, 224 Wis.2d 621, 593 N.W.2d 67 (Wis.App.1999) review granted, 599 N.W.2d 408 (Wis.1999). But see In re Birch, 10 Cal.3d 314, 515 P.2d 12, 110 Cal.Rptr. 212 (1978); Peterson v. State, 988 P.2d 109 (Alaska App.1999); Ruffin v. State, 3 S.W.3d 140 (Tex.App.1999). We agree with the majority view.

Although the duty to register flows directly from defendant's conviction as a sex offender, it does not enhance defendant's punishment for the offense. Rather, the General Assembly's stated intent is to afford the public with "limited access to information concerning persons convicted of offenses involving sexual behavior" as a public safety measure. Indeed, the General Assembly has also stated that it does not intend the information to be used "to inflict retribution or additional punishment." See § 18-8-412.5(6.5)(@), C.R.8.1999.

Further, to be subject to any penalty provided for in the sex offender statute, defendant must fail to comply with the registration requirements. See § 18-8-412.5, C.R.S.1999; People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979); People v. Moore, supra.

Thus, we conclude that the statutory duty to register as a sex offender in Colorado is only a collateral consequence of a defendant's guilty plea. Hence, the trial court's failure here to advise defendant of that requirement does not invalidate his guilty pleas.

The order is affirmed.

Judge MARQUEZ and Justice ERICKSON concur.