source: Caselaw Access Project

author: JUSTICE SAMOUR delivered the Opinion of the Court. JUSTICE BOATRIGHT, dissenting.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Christopher Anthon MAZZARELLI, Respondent.
    Supreme Court Case No. 16SC546
    Supreme Court of Colorado.
    July 1, 2019
    Attorneys for Petitioner: Daniel H. May, District Attorney, Fourth Judicial District, Doyle J. Baker, Senior Deputy District Attorney, Jennifer L. Darby, Deputy District Attorney, Colorado Springs, Colorado
    Attorneys for Respondent: Megan A. Ring, Public Defender, Britta Kruse, Lead Deputy Public Defender, Denver, Colorado
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 "[C]riminal justice today is for the most part a system of pleas, not a system of trials." Lafler v. Cooper , 566 U.S. 156, 170, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Nowhere is this more apparent than in the U.S. Supreme Court's recent estimation that "[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." Missouri v. Frye , 566 U.S. 134, 143, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Against this backdrop, we must determine whether the People are entitled to withdraw from a plea agreement where, following the defendant's guilty plea, the trial court determines that a more lenient sentence than the one the parties set forth in the agreement is appropriate. Because the statute and the rules governing plea agreements in Colorado, section 16-7-302(2) - (3), C.R.S. (2018), Crim. P. 11(f)(5), and Crim. P. 32(d) ("the statute and rules"), allow the defendant, but not the People, to withdraw from a plea agreement when the trial court rejects a sentence concession after accepting the guilty plea, we answer the question in the negative.

¶2 The statute and rules require the trial court to exercise its independent judgment in deciding whether to adopt or reject sentence concessions. Consistent with this authority, we reiterate what we made clear more than four decades ago: Regardless of what label the parties may attach to sentence concessions in a plea agreement-be it "sentence stipulations," "sentence agreements," or something else-they are nothing more than sentence recommendations that the trial court, in the exercise of its independent judgment, may adopt or reject. And if the court rejects a sentence concession after a defendant pleads guilty, the statute and rules allow the defendant-and only the defendant-to withdraw from the plea agreement.

¶3 We recognize that we have sometimes applied general principles of contract law in analyzing plea agreements in the past. But here, we do not address a situation in which a party has allegedly breached a plea agreement. Instead, the question we confront is whether the People may withdraw from a plea agreement when the trial court, in the exercise of its discretion, rejects a sentence concession in the agreement after accepting the defendant's guilty plea. Based on the statute and rules, we hold that the People may not do so.

¶4 We are not persuaded by the People's argument that a trial court violates the separation-of-powers doctrine when it accepts a guilty plea to an uncharged offense pursuant to a plea agreement but then rejects the parties' stipulated sentence without allowing the People to withdraw from the agreement. The People, not trial courts, provide the opportunity for a defendant to plead guilty to an uncharged offense as part of a plea agreement. And when defendants take advantage of such an opportunity, the trial courts, not the People, determine the appropriate sentence. The separation-of-powers doctrine requires nothing more.

¶5 The Achilles' heel of the People's separation-of-powers contention is that it assumes that a trial court's acceptance of a guilty plea pursuant to a plea agreement is contingent on the trial court's subsequent adoption of the sentence concessions in the agreement. The statute and rules belie such an assumption. Under the statute and rules, when the People create an opportunity for a defendant to plead guilty to an uncharged offense as part of a plea agreement, any sentence concessions in the agreement are mere recommendations that the trial court may accept or reject, and if the trial court rejects a sentence concession after the defendant pleads guilty, only the defendant may withdraw from the plea agreement. Because the statute and rules allowed only Mazzarelli to withdraw from the plea agreement after he pled guilty and the court rejected the sentence concession in the agreement, and because the People do not question the constitutionality of the statute and rules, we reject the separation-of-powers claim.

¶6 The court of appeals in this case upheld the trial court's refusal to allow the People to withdraw from the plea agreement after Mazzarelli pled guilty. We affirm its judgment. But we do so for markedly different reasons-our holding takes root in the statute and rules. Given this determination, we decline to address the merits of the conclusions reached by the court of appeals with respect to the two remaining issues on which we granted certiorari review. Instead, we vacate its opinion in its entirety.

I. Facts and Procedural History

¶7 The People charged Christopher Anthon Mazzarelli with knowing or reckless child abuse resulting in serious bodily injury to his infant son, a class 3 felony. See § 18-6-401(1)(a), (7)(a)(III), C.R.S. (2018). The underlying factual allegations involved shaken-baby syndrome.

¶8 Mazzarelli and the People executed a plea agreement, which indicated that he wished to plead guilty to an added charge of criminally negligent child abuse resulting in serious bodily injury, a class 4 felony. See § 18-6-401(1)(a), (7)(a)(IV). In exchange for Mazzarelli's guilty plea, the prosecution agreed to dismiss the original charge. The parties further agreed as follows with respect to the sentence:

The sentence will be a Department of Corrections Sentence within the Extraordinary Risk Crime Range of 2 to 8 years. Both sides are free to argue as to [the] actual amount of incarceration the Court should impose.

The plea agreement also included a clause that permitted Mazzarelli to withdraw from the agreement:

I understand that any sentence imposed by the judge must conform to [the] agreement. If, after I plead guilty, the judge decides not to accept the sentence recommendation or limitation, I will have the right to withdraw my guilty plea and have a trial.

¶9 During a hearing, Mazzarelli's counsel informed the court that the parties had reached a plea agreement. She explained the terms of the agreement, including the "stipulation for prison ... between two and eight years." Following an advisement of his rights pursuant to Crim. P. 11(b), Mazzarelli pled guilty to the added charge and the court accepted his plea and granted the People's motion to dismiss the original charge. The court then postponed sentencing pending completion of a presentence report by the probation department.

¶10 At the sentencing hearing, the prosecutor acknowledged that Mazzarelli's son did not have any permanent injuries, but nevertheless urged the court to impose a sentence consistent with the plea agreement. The court expressed reluctance to punish Mazzarelli with imprisonment for "what might have happened." It also articulated concerns about sending Mazzarelli to prison based on its knowledge of the "great strides and progress" he had made in a related dependency and neglect proceeding and the substantial impact that such a sentence would have on his fifteen-month-old son. At the end of its comments, the court announced that it was "not going to accept the plea agreement" because it was "not willing to send [Mazzarelli] to prison." The court noted, however, that it would accept a plea agreement with "an open sentence" with potential placement in community corrections. Given this decision, the court asked the prosecutor if she wished to withdraw from the plea agreement. The prosecutor asked for a week to consider how to proceed, and the court granted her request and scheduled a new hearing on the next available date.

¶11 The day before the new hearing took place, Mazzarelli filed a motion requesting the appointment of a special prosecutor, arguing that the prosecutor had made "blatantly false" statements during the previous hearing about the child-abuse incident. At the hearing held the following day, the prosecutor admitted she had misspoken and attempted to clarify the alleged misstatements.

She apologized, opposed Mazzarelli's motion for a special prosecutor, and asked to withdraw from the plea agreement. The trial court found that the prosecutor's misstatements amounted to prosecutorial misconduct and denied her request to withdraw from the plea agreement as a sanction. Accordingly, the court moved forward with the sentencing hearing and sentenced Mazzarelli to supervised probation for a period of three years, instead of the agreed-upon prison sentence.

¶12 The People appealed. A division of the court of appeals ruled that, "regardless of the trial court's sanction, the People were not entitled to withdraw from the plea agreement" and the trial court "had discretion to sentence Mazzarelli outside the terms of the stipulated sentencing range." People v. Mazzarelli , 2016 COA 35, ¶¶ 9, 33, 446 P.3d 821. The division gave four reasons for its ruling. First, it found that the trial court had accepted Mazzarelli's guilty plea, but had never agreed to be bound by the sentence recommendation in the plea agreement. Id. at ¶ 25. Second, the division noted that when the trial court accepted Mazzarelli's guilty plea, it had not yet received, much less reviewed, the presentence report. Id. at ¶ 26. The division reasoned that a trial court can only be bound by sentencing concessions in a plea agreement if they are supported by the presentence report. Id. Third, it pointed out that the People had not alleged that Mazzarelli "materially and substantially breached the plea agreement." Id. at ¶ 33 (quoting Keller v. People , 29 P.3d 290, 297 (Colo. 2000) ). According to the division, the People may not withdraw from a plea agreement after "acceptance of the entirety of the ... agreement," unless there is a sentence reduction that amounts to " 'a material and substantial breach of the plea agreement.' " Id. at ¶ 31 (quoting Keller , 29 P.3d at 297 ). Finally, the division explained that the prosecutor's misconduct led to the denial of her request to withdraw from the plea agreement. Id. at ¶ 28. Thus, the division affirmed the trial court's order.

II. Analysis

¶13 Like the division, we conclude that the trial court correctly refused to allow the People to withdraw from the plea agreement. But we do so for different reasons-our decision rests on the statute and rules.

¶14 We first examine the statute and rules in detail. We then discuss our caselaw in this area. And we end by rejecting the People's separation-of-powers claim.

A. The Statute and Rules Do Not Support the People's Position

¶15 Section 16-7-302(3) provides that, "[n]otwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant ... sentence concessions." Crim. P. 11(f)(5) contains an identical mandate. Therefore, under section 16-7-302(3) and Rule 11(f)(5), the trial court is always required to exercise its independent judgment in determining whether to go along with or diverge from the "sentence concessions" in a plea agreement. This is not surprising given what is at stake. Allowing the parties in a criminal case to require the judge to impose a particular sentence, regardless of whether she believes it is appropriate, justified, or fair, would bode ill for our criminal justice system. It is imperative that the trial court exercise its independent judgment in determining whether to adopt the sentence concessions in a plea agreement.

¶16 The question then is what options, if any, are available to the parties if, in the exercise of its independent judgment, the court rejects a sentence concession in a plea agreement after a defendant pleads guilty? Crim. P. 32(d) requires the court to "advise the defendant and the district attorney" that it is rejecting the sentence concession "and then call upon the defendant to either affirm or withdraw the plea of guilty." (Emphasis added.) Section 16-7-302(2) substantially mirrors Crim. P. 32(d). Significantly, neither section 16-7-302(2) nor Rule 32(d) contains a similar provision allowing the People to affirm the plea agreement or withdraw from it. This omission is telling because the statute and the rule expressly refer to the People elsewhere. Of particular relevance here, they both direct the trial court to advise the defendant and the People whenever it decides to reject a sentence concession after the defendant has pled guilty. Yet, in the very next part of that sentence, the statute and the rule provide that the defendant may then withdraw from the plea agreement.

¶17 Subsection (2) of section 16-7-302 confirms that the legislature did not intend to permit the People to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pled guilty. That subsection delineates the course of action the People may take in the event they are concerned that the court will disagree with a sentence concession in a plea agreement after the defendant pleads guilty:

If a tentative plea agreement has been reached which contemplates entry of a plea of guilty ... in the expectation that ... sentence concessions will be granted, the trial judge may, upon request of the parties, permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the district attorney and defense counsel or defendant whether he will concur in the proposed disposition if the information in the presentence report is consistent with representations made to him.

§ 16-7-302(2).

¶18 The People mistakenly view sentence concessions in a plea agreement as becoming binding on the trial court after the defendant pleads guilty. It is true that subsections (2) and (3) of section 16-7-302, as well as Crim. P. 11(f)(5) and Crim. P. 32(d), refer to "sentence concessions" in plea agreements. But, in the context of plea agreements, we have equated that term with "sentence recommendations" that have no binding effect on the trial court:

[F]ailure to equate sentence concessions with sentence recommendations[ ] renders reference to sentence concessions in [ Crim. P. 32(d) ] meaningless. ... [A] district attorney, as part of a plea bargain, can only agree to make favorable recommendations concerning the sentence. The reference in [ Rule 32(d) ] to "sentence concessions ..." is, therefore, a reference to sentence recommendations by the district attorney.

People v. Wright , 194 Colo. 448, 573 P.2d 551, 552-53 (1978) (citation omitted).

¶19 In Wright , we declined the People's invitation to draw a distinction "between a prosecutorial recommendation of a particular sentence[ ] and a prosecutorial agreement" to require the court to impose a particular sentence. Id. at 552 (emphases added). Instead, we equated a sentence concession with a sentence recommendation because the drafters of Rule 32(d) and Rule 11(f)(2)(I) did the same. Id. at 552-53. And even after we equated "sentence concessions" with "sentence recommendations" in Wright , the legislature has continued to use "sentence concessions" in section 16-7-302. See § 16-7-302(2) - (3).

¶20 We now reiterate that, in the context of plea agreements, "sentence stipulations," "sentence agreements," "sentence concessions," and other similar terms are nothing more than sentence recommendations that the trial court is free to accept or reject, including after the defendant's guilty plea. This conclusion at once (1) honors the intent of the drafters of the statute and the rules and (2) recognizes the trial court's obligation to exercise independent judgment in imposing a sentence pursuant to a plea agreement.

¶21 Relying on Crim. P. 11(b)(5), though, the People assert that when the trial court accepted Mazzarelli's guilty plea, it agreed to be bound by the plea agreement's terms, including the stipulated sentence, so long as the presentence report supported the imposition of that sentence. The People misread Rule 11(b)(5).

¶22 Rule 11(b)(5) requires a trial court to determine, before accepting a guilty plea , that the defendant understands that the court is not "bound by any representations made to [him] by anyone concerning the penalty to be imposed ..., unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report." The thrust of Rule 11(b)(5) is to ensure that the defendant is aware that any representations made to him regarding the potential sentence will have no effect during the sentencing hearing unless they are included in the plea agreement. In other words, a sentencing representation that is not mentioned in the plea agreement is of no consequence. Contrary to the People's assertion, this does not mean that, following a guilty plea , a trial court is required either to adopt every sentence concession included in the plea agreement or to afford both parties an opportunity to withdraw from the agreement.

¶23 The People's construction of Rule 11(b)(5) clashes with the plain meaning of Rule 11(f)(5) and section 16-7-302(3), both of which require the trial court to "exercise an independent judgment" in deciding whether to adopt or reject a sentence concession in a plea agreement. It is also incompatible with the plain meaning of Rule 32(d) and section 16-7-302(2), both of which mention only the defendant as a party that may withdraw from a plea agreement following his guilty plea. Rather than embrace the People's discordant construction of Rule 11(b)(5), we consider the statute and rules together, and "give consistent, harmonious, and sensible effect to all of [their] parts," UMB Bank, N.A. v. Landmark Towers Ass'n, Inc ., 2017 CO 107, ¶ 22, 408 P.3d 836, 840, avoiding any interpretation that "render[s] certain words or provisions superfluous or ineffective," Kinder Morgan CO2 Co. v. Montezuma Cty. Bd. of Comm'rs , 2017 CO 72, ¶ 24, 396 P.3d 657, 664. See also Indus. Claim Appeals Office v. Zarlingo , 57 P.3d 736, 737 (Colo. 2002) ("As with statutes, specific and general rules of court should be construed harmoniously where possible.").

¶24 To recap, we conclude that the statute and rules (1) require the trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in a plea agreement, and (2) allow the defendant, but not the People, to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pled guilty. Therefore, we hold that the trial court did not err in precluding the People from withdrawing from the plea agreement after Mazzarelli pled guilty.

B. Our Caselaw Does Not Alter Our Conclusion

¶25 We recognize that we said in Keller v. People that there are limited "bases for allowing the prosecution to withdraw from an accepted plea agreement," such as "where the defendant has materially and substantially breached the plea agreement by her action or inaction." 29 P.3d at 296. But Keller is factually distinguishable. There, we determined "whether the prosecution may withdraw from a plea agreement in response to a defendant's successful motion for a reduction" of the sentence imposed in accordance with the parties' plea agreement. Id. at 291. Here, there is no allegation that Mazzarelli breached the plea agreement by his actions or inactions. Rather, the trial court, on its own, rejected the sentence concession in the plea agreement after Mazzarelli pled guilty.

¶26 That we have adhered to general principles of contract law in analyzing plea agreements in some cases in the past, see id. at 297-98, does not affect our analysis either. Like Keller , those cases involved a party's alleged breach of a plea agreement. See, e.g. , People v. McCormick , 859 P.2d 846, 856-57 (Colo. 1993). Today we simply conclude that when the trial court rejects a sentence concession in a plea agreement after accepting the defendant's guilty plea, the statute and rules do not permit the People to withdraw from the agreement. Our court has never applied general principles of contract law under these circumstances to allow the People to withdraw from the plea agreement-i.e., to force the defendant to withdraw his guilty plea.

¶27 Because we do not resolve this appeal based on contract law, our decision does not hinge on the specific terms of Mazzarelli's plea agreement or the wording used to express those terms. Rather, it is tethered to the statute and rules. Consequently, we reject Mazzarelli's assertion that the People can always add a provision in a plea agreement that expressly allows them to withdraw from it after entry of the guilty plea in the event the court disagrees with the parties' sentence concessions. There is simply no authority that permits the People to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has entered a guilty plea. And the parties cannot negotiate or bargain for that which is not permitted by the statute and rules.

C. The People's Separation-of-Powers Argument Is Untenable

¶28 The People acknowledge the statute and rules. But they nevertheless posit that when a trial court rejects a stipulated sentence in a plea agreement after the defendant has pled guilty, they must be allowed to withdraw from the agreement based on separation-of-powers principles. The separation-of-powers doctrine, assert the People, affords them sole discretion to make charging decisions, including to offer a defendant the opportunity to plead guilty to an uncharged offense in exchange for a stipulated sentence. Thus, they maintain that when a trial court accepts a defendant's guilty plea to an uncharged offense pursuant to a plea agreement but then rejects the stipulated sentence without allowing them to withdraw from the agreement, it usurps their charging province and offends fundamental separation-of-powers precepts. We are unpersuaded.

¶29 Article III of the Colorado Constitution provides that the powers of the state government are divided into three different branches-the legislative, executive, and judicial branches-and that "no person ... charged with the exercise of powers properly belonging to one ... shall exercise any power properly belonging to either of the others," unless expressly directed or permitted by the Colorado Constitution. Put simply, one branch of government may not invade another's role. Article III proves problematic here, according to the People, because the trial court accepted Mazzarelli's guilty plea to an uncharged offense pursuant to the plea agreement but then rejected the stipulated sentence without allowing them to withdraw from the agreement.

¶30 We conclude that no violation of the separation-of-powers doctrine occurred. Mazzarelli pled guilty to an uncharged offense pursuant to the People's plea offer. At the sentencing hearing, the trial court exercised its independent judgment and decided to reject the sentence concession in the plea agreement. Because Mazzarelli, through his counsel, affirmed the guilty plea, the trial court moved forward with sentencing. In accordance with Article III, the People made the charging decision to allow Mazzarelli to plead guilty to an added offense, and the trial court then made the sentencing decision.

¶31 We acknowledge that the People, not the court, may add an uncharged offense, and that the People, not the court, may offer the defendant the opportunity to plead guilty to it as part of a plea agreement. See § 16-7-301(1) - (2), C.R.S. (2018); Crim. P. 11(f)(1)-(2). But when the People do so, any sentence concessions, agreements, or stipulations in the plea agreement are mere recommendations that the trial court is free to reject. Hence, when the People entered into the plea agreement with Mazzarelli, their decision to allow him to plead guilty to an uncharged offense did not bind the court to impose a particular sentence, including after accepting the defendant's guilty plea.

¶32 We are aware of no authority supporting the proposition that the failure to allow the People to withdraw from the plea agreement after Mazzarelli pled guilty and the court rejected the sentence concession in the agreement ran afoul of the separation-of-powers doctrine. Because the statute and rules allowed only Mazzarelli to withdraw from the plea agreement after he pled guilty and the court rejected the sentence concession in the agreement, and because the People do not question the constitutionality of the statute and rules, we reject the separation-of-powers contention.

III. Conclusion

¶33 The practical effect today's decision is likely to have on our trial courts is not lost on us. After all, we are keenly aware that the general practice in many courtrooms is inconsistent with this opinion. While we are confident our opinion will not be the death knell of plea agreements, it will no doubt change the landscape in which plea agreements occur. Even so, we are duty-bound to apply the law as written. If the statute and rules are amended in the future, we will apply them as amended. But enforcing the statute and rules as they exist requires the conclusion we reach today.

¶34 We conclude that the court of appeals correctly held that, following Mazzarelli's guilty plea, the People were not allowed to withdraw from the plea agreement simply because the trial court rejected the sentence concession in the agreement. Therefore, we affirm the court of appeals' judgment, albeit on different grounds. Since we do so, and since we do not reach the merits of the conclusions that court reached with respect to the prosecutorial misconduct and double jeopardy issues, we vacate its opinion in its entirety.

JUSTICE BOATRIGHT dissents, and JUSTICE MÁRQUEZ joins in the dissent.

JUSTICE BOATRIGHT, dissenting.

¶35 Today we learned that a stipulation is only binding on one party that enters into an agreement even though this is not what "stipulation" means. Many judicial districts in Colorado rely on the practice of stipulations to help forge agreements for pleas to some degree. The practice has functioned well for decades because at the core of these agreements is predictability. I fear that today's holding by the majority will unnecessarily have a negative impact on the orderly resolution of cases by injecting uncertainty into the process. As the majority correctly points out, ninety-four percent of state convictions are the result of plea agreements. Maj. op. ¶ 1.

¶36 In reaching their holding, the majority interprets a rule that, in my view, is ambiguous, and applies it in a way that causes words to lose their common meaning. Conversely, Crim. P. 32(d) can reasonably be read in a way that does not prohibit the prosecution from withdrawing from the plea agreement in this case. In so doing, words would retain their everyday meaning. Hence, I respectfully dissent.

¶37 To be clear, I do not disagree with how the case is being resolved for Mr. Mazzarelli. Apparently, the trial judge's work on Mr. Mazzarelli's dependency and neglect case allowed the judge to gain insights that helped him fashion a probationary sentence that was appropriate and just. The record before us indicates that Mr. Mazzarelli has completed that sentence. Under any definition of double jeopardy, his involvement in this case is over. In fact, this case should be resolved based on a finding of mootness. But it is not decided on mootness. Hence, my disagreement is about how the unique circumstances of this case will unnecessarily impact how business is done in Colorado's criminal justice system.

¶38 As a preliminary matter, I agree with the majority that it is essential that judges exercise independent judgment when imposing a sentence. Further, a judge cannot lose that independent judgment because of an agreement between the parties. Where I part ways with the majority is the conclusion that a prosecutor can be bound by a plea agreement that she did not agree to. In my view, just like when any attempt to have an agreement fails to come to fruition, both parties should have an opportunity to be restored to their original position. This is simply common sense.

I. Facts

¶39 The majority conveys most of the relevant facts of the case, so a detailed recitation is unnecessary. Some additional facts, however, are important because they demonstrate that Mazzarelli, the prosecution, and the trial judge all believed that the parties were bound by the terms of the plea agreement if the agreement was accepted by the trial court.

¶40 Mazzarelli and the prosecution entered into a plea agreement whereby the prosecution would dismiss the original class 3 felony charge for child abuse in exchange for Mazzarelli pleading guilty to an added class 4 felony charge for child abuse. The parties also stipulated that Mazzarelli would be sentenced in the range of two to eight years in the Department of Corrections. The plea agreement informs Mazzarelli of this in bold font. Consistent with the stipulation, the trial judge did not even mention the possibility of probation during Mazzarelli's verbal advisement of rights. Furthermore, during the sentencing hearing the prosecution made it clear that the possibility of probation was not part of the plea agreement, which Mazzarelli never refuted. And at the sentencing hearing when the trial judge expressed his independent judgment and indicated that he would not sentence Mazzarelli to prison, he gave the prosecution the opportunity to withdraw from the plea agreement. Mazzarelli did not object to the trial judge's offer to the prosecution to withdraw from the plea agreement. Everyone understood what was happening. No one was treated unfairly when the parties entered into the plea agreement, nor was anyone treated unfairly when the trial judge exercised his independent judgment. The process worked until the prosecution was prevented from withdrawing from the plea agreement.

II. Analysis

¶41 I first explain why I disagree with the majority's conclusion that Crim. P. 32(d) only permits a defendant to withdraw from a plea agreement. I instead view Crim. P. 32(d) as ambiguous. Second, I explain how Crim. P. 32(d) can be reasonably read in a way that does not prohibit the prosecution from withdrawing from a plea agreement. Finally, because the issue is not before the court, I disagree with the majority's choice to address the issue of possible provisions in plea agreements that expressly allow the prosecution to withdraw from it if the court disagrees with the parties' concessions.

A. Crim. P. 32(d) Is Ambiguous

¶42 The majority concludes that because Crim. P. 32(d) does not contain a "provision allowing the People to ... withdraw from [a plea agreement]," the prosecution has no right to withdraw from a plea agreement. Maj. op. ¶ 16. There is logic to that conclusion, but it misses a crucial point. Crim. P. 32(d) only addresses the court's failure to accept a "concession." Both charge concessions and sentence concessions are what constitute the benefit of the bargain for defendants. Since the rejection of the concession eliminates only the defendant's incentive to enter into the plea, the rule only speaks of the defendant's right to withdraw from the plea agreement. Outside of the duty and desire to do justice, the prosecution does not benefit from concessions. Their tangible benefit from a plea agreement is that the disposition of the case provides a just resolution that avoids years of appeals which provides certainty for the victim and the community. Because Crim. P. 32(d) does not mention the court not accepting "the agreement," the prosecution's right to withdraw from the agreement is not implicated by the rule. In my view, it is significant that "concession" and "agreement" are not interchangeable terms. Neither party says that they are. The majority, however, effectively equates the terms.

¶43 At the heart of the reason that Crim. P. 32(d) only talks about the defendant's ability to withdraw from the agreement is that when a concession is rejected by the court, it is the defendant's voluntariness in entering into the plea that becomes an issue. See Chae v. People , 780 P.2d 481, 486 (Colo. 1989). In the simplest of terms, the prosecution's incentives for entering into a plea agreement do not suffer by the court's rejection of a concession ; therefore, they cannot withdraw from an agreement for that reason, which explains the silence in Crim. P. 32(d). In other words, Crim. P. 32(d) is there to protect defendants, not to bind the prosecution.

¶44 I therefore disagree with the majority's conclusion that the failure of Crim. P. 32(d) to mention the prosecution's ability to withdraw from a plea agreement is dispositive of the issue. Not only is there a reasonable alternative reading of the rule, but the majority's interpretation of the rule causes a contortion of the ordinary meaning of words. This case is a good example of that. To satisfy the majority's perceived meaning of the rule, the majority is forced to conclude that " 'sentence stipulations,' 'sentence agreements,' 'sentence concessions,' and other similar terms are nothing more than sentence recommendations." Maj. op. ¶ 20. These phrases are not equivalent. They mean different things. For example, the plea agreement in this case was a stipulation, which is "a material condition or requirement in an agreement." Stipulation , Black's Law Dictionary (11th ed. 2019). Stipulations are binding on the parties to an agreement. A "recommendation," on the other hand, is "a specific piece of advice about what to do." Recommendation , Black's Law Dictionary (11th ed. 2019). A recommendation is advisory. Hence, a stipulation is not the same thing as a recommendation. When an interpretation of a rule causes words to lose their everyday meaning, that interpretation must be questioned and is an indication that the rule is ambiguous. On the other hand, if you give words their ordinary meaning, then the silence in Crim. P. 32(d) about the prosecution's ability to withdraw from a plea agreement makes sense.

B. The Majority's Conclusion Does Not Conform with How Plea Bargaining Has Been Conducted in This Jurisdiction for Decades

¶45 The majority attempts to distinguish case law that has provided a core principle of plea agreements in Colorado for over forty years.

¶46 In 1978 in People ex. rel. VanMeveren v. District Court , we held that a prosecutor has a right to withdraw from a plea agreement if the trial court intends to modify the terms of the agreement. 195 Colo. 34, 575 P.2d 4, 7 (1978). We revisited and narrowed Van Meveren in Keller v. People , 29 P.3d 290 (Colo. 2000). In Keller , we explained that plea agreements are contractual in nature and, thus, a prosecutor can only withdraw from a court's modification of a plea agreement when that modification amounts to a material and substantial breach of the plea agreement. Id. at 295.

¶47 The majority concludes that Keller is factually distinguishable because it involved a breach of a plea agreement by the defendant, whereas Mazzarelli did not affirmatively act in breaching the plea agreement here. Maj. op. ¶¶ 25-26. While there is that factual difference, I do not believe that difference makes the rule announced in Keller inapplicable here.

¶48 First, the rule in Keller is not limited to situations where the defendant's actions cause the breach of a plea agreement. Keller held that "the prosecution will be permitted to withdraw from a plea agreement ... if it shows that a reduction in sentence amounts to a material and substantial breach of the plea agreement." Keller , 29 P.3d at 291. Thus, the rule in Keller is triggered when the plea agreement is modified in a material and substantial way and is not limited to situations where only a defendant breaches the plea agreement. Clearly, the plea agreement here was modified in a material and substantial way.

¶49 Significantly, the trial court here indicated by its conduct that it had agreed to be bound by the terms of the plea agreement. The trial court was advised by the parties that the plea agreement was a stipulation and that the defendant was to be sentenced to the Department of Corrections. The written Rule 11 advisement titled "Plea Agreement" states in bold print that "the sentence will be a Department of Corrections Sentence within the Extraordinary Risk Crime Range of 2 to 8 years." At no point during the colloquy between the trial judge and the defendant was probation ever mentioned. Furthermore, the trial judge at no point advised the parties that it would not be bound by the agreement. That colloquy evinces that the trial judge was accepting the plea agreement and agreeing to be bound by it. The trial judge's later conduct confirms that he believed that he was bound by the agreement. When the trial judge concluded that prison was not the appropriate sentence, he offered the prosecution the opportunity to withdraw from the plea agreement. When the prosecution indicated that it was going to withdraw, the judge then imposed a sanction against the prosecution as a basis to deny the withdrawal. The judge knew that he had agreed to be bound by the plea agreement. If he didn't, he would have just imposed the probation sentence, making the imposition of a sanction unnecessary.

¶50 Hence, while I agree that the facts in Keller are different than the facts of this case, the core principle in both cases remains the same. When a clearly defined plea agreement that everyone has voluntarily entered is modified in a material way, the party who is negatively impacted by the modification has a right to withdraw from the agreement and be restored to her original position. Importantly, application of this principle retains the trial court's ability to exercise its independent judgment.

¶51 I agree with the majority that the trial judge here could have rejected the plea agreement even after agreeing to be bound by it. I only disagree about the consequences of that decision. It does not make sense that one party can be bound to an agreement that is materially changed without some type of indication that doing so was a possibility. Therefore, I believe that the remedy should have been to allow the prosecution to withdraw from the plea agreement. After all, there cannot be an agreement without everyone being in agreement.

C. The Majority Decides an Issue That Is Not Before the Court

¶52 I also disagree with the majority's choice to address the issue of possible provisions in a plea agreement that expressly allow the prosecution to withdraw from it if the court disagrees with the parties' concessions. Maj. op. ¶ 27. I disagree for two reasons.

¶53 First, such a conclusion exceeds the issues in this case. See PDK Labs. Inc. v. U.S. Drug Enf't Admin. , 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) ("[T]he cardinal principle of judicial restraint [is] if it is not necessary to decide more, it is necessary not to decide more.").

¶54 Second, this conclusion contradicts Keller , where we said that "[b]ecause the plea agreement did not foreclose the future possibility of a reduction in sentence, the ordered sentence reduction could not amount to a material and substantial breach of the plea agreement between the parties." 29 P.3d at 298. In other words, a plea agreement can be tailored to include specific conditions. In fact, the more specific the agreement is the less likely there will be disagreements like the one here.

III. Conclusion

¶55 I believe that Crim. P. 32(d) does not forbid a prosecutor from withdrawing from a plea agreement that is modified by a trial court. But I acknowledge that the rule is ambiguous as to that point. To resolve any ambiguity, I would recommend that this court amend Crim. P. 32(d) to reflect the realities of how Colorado's criminal justice system actually functions. After all, rules should assist and reflect everyday practice, not inhibit it. In amending Crim. P. 32(d), I would focus on drafting a rule that gives words their plain, everyday meaning. A stipulation would be binding on both parties, whereas a recommendation would be advisory only. Any amendment should confirm the practice that a court, after exercising its independent judgment, may decide not to be bound by the agreement; and at that point either side can withdraw from the agreement resulting in both sides being restored to their original position. This would accomplish three things: (1) it would protect a defendant's right to enter into any agreement voluntarily; (2) it would preserve the ability of the trial court to exercise its independent judgment; and (3) it would restore predictability to the process.

¶56 For the forgoing reasons, I respectfully dissent.

I am authorized to state that JUSTICE MÁRQUEZ joins in this dissent.

      Our holding is limited to situations in which the trial court (1) rejects a sentence concession (2) after accepting the defendant's guilty plea.

      Nothing in this opinion should be viewed as passing judgment on the appropriate remedy, if any, when a party breaches a plea agreement after the defendant has pled guilty. That issue is not before us.

      We granted certiorari to review the following three issues:
      1. Whether the court of appeals erred in upholding the trial court's actions as a matter of law and finding that it could sentence the defendant outside the stipulated sentencing range contained in a plea agreement and accepted by all parties.
      2. Whether the court of appeals erred in failing to answer the question about prosecutorial misconduct when the trial court specifically used the prosecutorial misconduct as a rationale for the sentence.
      3. Whether the court of appeals erred in barring remand by holding that double jeopardy bars reversal of sentence and remand for resentencing since the defendant started serving his sentence.

      We view the reference to "sentence concessions" as including both sentence concessions by the defendant benefitting the People and sentence concessions by the People benefitting the defendant. There is no reasonable basis to construe the term otherwise.

      If the defendant were deprived of an opportunity to withdraw from the plea agreement after the trial court rejects a sentence concession, it would "remove[ ] the basis upon which [the] guilty plea was entered and draw[ ] into question the voluntariness of the plea." People v. Walker , 46 P.3d 495, 497 (Colo. App. 2002). As the U.S. Supreme Court has observed, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York , 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). This constitutional concern is not present when the People are precluded from withdrawing from a plea agreement after the defendant pleads guilty.

      We do not understand this provision to require that a presentence report be available before the defendant enters a guilty plea. Rather, we read it to mean that the trial court judge may communicate her tentative approval of a proposed disposition contingent on any presentence report subsequently prepared being consistent with the parties' representations. If no presentence report is ordered, the trial court may simply indicate to the parties whether she will go along with the proposed disposition. Of course, the judge must avoid participating in plea discussions. § 16-7-302(1) ; Crim. P. 11(f)(4).

      Rule 32(d) refers to "sentence concessions contemplated by a plea agreement, as provided in Rule 11(f)." (Emphasis added.) Rule 11(f)(2)(I), in turn, provides in pertinent part that the People may "make or not ... oppose favorable recommendations concerning the sentence to be imposed ." (Emphasis added.) It follows that the reference in Rule 32(d) to sentence concessions (as provided in Rule 11(f) ) must be understood to be a reference to sentence recommendations . Wright , 573 P.2d at 552-53.

      Mazzarelli advanced this contention both in his answer brief and during oral argument.

      Without any analysis, the majority pronounces that sentence concessions benefit the prosecution. I disagree. Only the defendant serves the sentence. Therefore, only the defendant benefits from a sentence concession.

      The majority also relies on section 16-7-302(2), C.R.S. (2018), to support their conclusion that the prosecution cannot withdraw from a plea agreement. Maj. op. ¶ 16. I agree with the majority that section 16-7-302(2) and Crim. P. 32(d) are functionally equivalent. Id. Hence, my arguments that Crim. P. 32(d) does not prohibit the prosecution from withdrawing from a plea agreement apply equally to section 16-7-302(2).

      The Keller court acknowledged that Van Meveren had the analytical underpinnings of a contractual analysis, but comments that VanMeveren 's rationale was nonetheless not fully explained. Keller , 29 P.3d at 295.

      I would encourage the General Assembly to amend section 16-7-302(2) for the same reason.


text:
    Scott Edward DIEHL, Petitioner-Appellee, v. Philip J. WEISER, Colorado Attorney General ; Jason Lengerich, Warden of Buena Vista Correctional Facility; and Dean Williams, Executive Director of the Colorado Department of Corrections, Respondents-Appellants.
    Supreme Court Case No. 17SA285
    Supreme Court of Colorado.
    July 1, 2019
    Attorneys for Petitioner-Appellee: The Law Office of April M. Elliott, P.C., April M. Elliott, Denver, Colorado, Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado
    Attorneys for Respondents-Appellants: Philip J. Weiser, Attorney General, Nicole Suzanne Gellar, First Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE HART delivered the Opinion of the Court.

¶1 This habeas corpus appeal requires us to determine how the Department of Corrections ("DOC") should apply the "one-continuous-sentence" statute, section 17-22.5-101, C.R.S. (2018), to an offender who was eligible for and released to parole, committed additional crimes while on parole, and was sentenced for those subsequent crimes concurrent with his initial sentence. The central question is whether the offender's original prison sentences should be included in the newly calculated continuous sentence for purposes of determining a new parole eligibility date. We conclude today that they should not.

I. Facts and Procedural History

¶2 Petitioner-Appellee, Scott Edward Diehl, pleaded guilty to three drug offenses in 2005. For each offense, he received a sentence that required him to serve a designated number of years in prison as well as a period of mandatory parole. He began serving his term of imprisonment for those sentences, which ran concurrently, on September 6, 2005.

¶3 Diehl was released from prison at the discretion of the state board of parole on August 16, 2011, and he immediately began serving a five-year period of mandatory parole. Diehl absconded from parole from February 14 to March 28, 2013. He was arrested and returned to prison to serve the remainder of his mandatory parole term incarcerated. During this period of reincarceration, Diehl pleaded guilty in three additional cases arising from the time when he was on parole. He received new sentences that were to run concurrently with his outstanding sentences.

¶4 On December 8, 2016, Diehl filed a petition for writ of habeas corpus with the district court, arguing that he was being unlawfully denied consideration for discretionary parole. He contended that the DOC erred in using August 6, 2011, the date on which he was first released to mandatory parole, rather than September 6, 2005, the date on which he was first sentenced to prison, to calculate his parole eligibility date.

¶5 The district court agreed with Diehl. In doing so, the court rejected the DOC's argument that Diehl's "sentence to imprisonment" on his original convictions had been discharged when he began serving his mandatory period of parole and was thus no longer relevant to his new parole eligibility date. The district court concluded that a sentence, for purposes of Colorado's "one-continuous-sentence" rule, see § 17-22.5-101, is comprised of two components-a period of incarceration and a period of mandatory parole. Although the imprisonment component of the sentence was statutorily discharged when Diehl began serving his period of mandatory parole, see § 18-1.3-401(1)(a)(V)(D), C.R.S. (2018), the district court noted that the statutory scheme provides that Diehl's overall sentence was not "deemed to have [been] fully discharged" until Diehl "either completed or [had] been discharged by the state board of parole from the mandatory period of parole imposed pursuant to" section 18-1.3-401(1)(a)(V). Therefore, the district court concluded that the DOC was required to calculate Diehl's parole eligibility date using his first date of incarceration, September 6, 2005.

¶6 The DOC appealed the district court's order.

II. Analysis

¶7 We begin by addressing our jurisdiction to resolve this appeal. We then set out the appropriate standard of review, noting that we give considerable deference to the DOC's interpretation of the statutory scheme for inmate and parole time computations. Finally, we explain why the DOC's interpretation of the relevant statutes is reasonable and the new parole eligibility date for an inmate who was reincarcerated for a parole violation and is then sentenced for additional offenses should be calculated using the beginning of the period of mandatory parole as the start of the inmate's one continuous sentence.

A. Jurisdiction

¶8 This case comes to us on appeal from a habeas corpus proceeding. Habeas corpus is available to review claims that a petitioner is being denied the opportunity to be considered for parole. Naranjo v. Johnson , 770 P.2d 784, 787 (Colo. 1989). Diehl filed a writ of habeas corpus challenging the DOC's calculation of his projected parole eligibility date and arguing that he had effectively been denied at least six opportunities for discretionary parole consideration. The district court agreed that Diehl was eligible for parole consideration, and the DOC appealed. We have jurisdiction over appeals from habeas corpus proceedings. Nowak v. Suthers , 2014 CO 14, ¶ 11, 320 P.3d 340, 343 ; see also Colo. Const. art. VI, § 2 (providing that the supreme court shall have appellate jurisdiction and a "general superintending control over all inferior courts"); § 13-4-102(1)(e), C.R.S. (2018) (prohibiting the Colorado Court of Appeals from having initial jurisdiction over appeals from final judgments of writs of habeas corpus).

¶9 While awaiting the resolution of this appeal, Diehl was released on parole. The DOC asks us to remand this case to the district court to consider whether this case is now moot. We need not remand to make this determination. Mootness is a jurisdictional prerequisite that can be addressed at any stage during the proceedings. See People v. Shank , 2018 CO 51, ¶ 9, 420 P.3d 240, 243 ("[J]urisdictional prerequisite[s] ... can be raised at any time during the proceedings."); see also Nowak , ¶ 12, 320 P.3d at 343 (electing to address mootness, despite not being raised by the parties, because it could affect the existence of a justiciable controversy).

¶10 A case is moot when a judgment would have no practical legal effect on the existing controversy. Van Schaack Holdings, Ltd. v. Fulenwider , 798 P.2d 424, 426 (Colo. 1990). When issues become moot because of subsequent events, as here where Diehl no longer has a claim that he is being unlawfully denied parole consideration, appellate courts will generally decline to render an opinion on the merits. Id. at 426-27. However, when the moot issue is one that is capable of repetition, yet evading review, we may address the merits of the appeal. Nowak , ¶ 13, 320 P.3d at 343-44 ; see also State Bd. of Chiropractic Exam'rs v. Stjernholm, 935 P.2d 959, 971 (Colo. 1997).

¶11 This is one of those instances. During the DOC's 2018 budget hearing, then DOC Executive Director Rick Raemisch explained that there are "roughly 2,700 offenders that could potentially be affected by" our decision in Executive Director of Colorado Department of Corrections v. Fetzer , 2017 CO 77, 396 P.3d 1108, as well as our ruling in the present case. Colo. Dep't of Corr., Budget Hearing 11-12 (2018), http://leg.colorado.gov/sites/default/files/fy2018-19_corhrg.pdf[http://perma.cc/EX3A-RSUQ] ("[T]he [department] is ... awaiting clarification on the court's opinion on the Deihl [sic] case which could impact these same recalculations."). Due to the vast number of potentially impacted offenders, this issue is capable of repetition. Additionally, because habeas petitions are generally subject to short statutory time periods, this issue may continue to evade review. See Nowak , ¶¶ 15-16, 320 P.3d at 344 (addressing habeas petition even though the inmate reached his parole eligibility date and was paroled at the time of appeal); see also Colo. Dep't of Corr., Parole Div. v. Madison , 85 P.3d 542, 544 n.2 (Colo. 2004) (noting that the relatively short statutory time periods associated with habeas proceedings make otherwise moot issues capable of repetition, yet likely to evade review). Therefore, we will address the arguments presented here.

B. Standard of Review

¶12 Because the parties do not contest Diehl's underlying sentences or time credits, the sole issue we must address is the application of sections 17-22.5-101 and 18-1.3-401 to the calculation of Diehl's parole eligibility date. We review issues of statutory interpretation de novo, giving deference to the DOC's interpretation of statutes pertaining to its responsibilities and authority when that interpretation is reasonable. See Fetzer , ¶ 17, 396 P.3d at 1113 ("[T]he department's interpretation of its responsibilities to administer relevant statutory mandates is entitled to great weight ....").

¶13 Our primary responsibility when interpreting statutes is to give effect to the General Assembly's intent. Bostelman v. People , 162 P.3d 686, 689 (Colo. 2007). We do so by first looking to the plain language of the statute, reading words and phrases in context, and construing them according to their common usage. Id. at 690. If the statutory language is clear and unambiguous, it is unnecessary to resort to rules of statutory construction, and our inquiry ends. "When statutory language conflicts with other provisions, we may rely on other factors such as legislative history, the consequences of a given construction and the goal of the statutory scheme to determine a statute's meaning." Frazier v. People , 90 P.3d 807, 811 (Colo. 2004).

C. Parole Eligibility Calculations

¶14 As pertinent here, a defendant who receives a sentence for a class 2, 3, 4, 5, or 6 felony is eligible for parole when that person has served "fifty percent of the sentence imposed ... less any time authorized for earned time granted pursuant to section 17-22.5-405." § 17-22.5-403(1), C.R.S. (2018). This seemingly clear command is often complicated when a defendant has multiple convictions and therefore multiple sentences. Indeed, this is the third time in just five years that we have confronted a question of how the DOC should calculate an inmate's parole eligibility date when he is subject to several sentences. See Nowak , ¶ 40, 320 P.3d at 348 (concluding that the DOC must aggregate consecutive sentences when computing an inmate's parole eligibility date, even when doing so would result in the inmate becoming parole eligible before serving at least fifty percent of the second sentence); see also Fetzer , ¶¶ 16-17, 396 P.3d at 1112-13 (determining that calculating an inmate's parole eligibility date solely on the basis of an inmate's longest sentence, in place of a composite continuous sentence accounting for all the inmate's separate sentences, violates the one-continuous-sentence rule).

¶15 We start with section 17-22.5-101, which requires that "when any inmate has been committed under several convictions with separate sentences, the department shall construe all sentences as one continuous sentence." This "one-continuous-sentence" rule requires the DOC, among other things, to combine the inmate's sentences into one composite continuous sentence, and then determine when that continuous sentence begins to run. See Fetzer , ¶¶ 14, 16, 20, 396 P.3d at 1112-13 ;

Nowak , ¶¶ 33-35, 40, 320 P.3d at 347-48. We have explained that section 17-22.5-101 and section 17-22.5-403 must be read together and that they require the DOC to determine parole eligibility based on this one continuous sentence. Nowak , ¶ 35, 320 P.3d at 347.

¶16 The question here is how the DOC should calculate a new parole eligibility date when an offender who is on parole violates conditions of parole and is both reincarcerated to serve the remainder of his parole period and also convicted of additional offenses for conduct that occurred while he was paroled. Diehl and the DOC urge very different answers to that question.

¶17 Diehl argues that calculation of his new parole eligibility date must include both his period of mandatory parole and his sentence to imprisonment on the earliest offense for which he is still serving either component. He argues that our prior cases make clear that a "sentence" as that word is used in section 17-22.5-101 includes both a prison component and a period of mandatory parole. See Fetzer , ¶ 13, 396 P.3d at 1111 (identifying incarceration and parole as "component parts of a sentence"); People v. Norton , 63 P.3d 339, 344 (Colo. 2003) (explaining that there is "no persuasive reason to believe that mandatory parole was intended to be excluded from the scope of an offender's 'sentence' " as "sentence" is used in the presentence confinement provision of the sentencing statute); People v. Luther , 58 P.3d 1013, 1015 (Colo. 2002) ("The penalties for felony offenders under [the General Assembly's 1993 scheme] include both an incarceration component and a mandatory parole component."). Therefore, he argues, when he was reincarcerated to serve the remainder of his mandatory parole in prison, he was still serving a sentence that included both a prison component and a mandatory parole component and the entirety of that sentence should be included in the calculation of his parole eligibility date.

¶18 The district court accepted Diehl's argument and further relied on section 18-1.3-401(1)(a)(VI), which provides that an inmate "shall not be deemed to have fully discharged his or her sentence until said person has either completed or been discharged by the state board of parole from the mandatory period of parole imposed pursuant to [ section 18-1.3-401(1)(a)(V) ]." (Emphasis added.)

¶19 The DOC argues that section 18-1.3-401(1)(a)(V)(D) and our decision in Luther , 58 P.3d 1013, compel a different answer. Section 18-1.3-401(1)(a)(V)(D) provides that if the parole board grants an inmate early release from prison "the offender shall be deemed to have discharged the offender's sentence to imprisonment ... in the same manner as if such sentence were discharged pursuant to law ...." The DOC interprets this provision to mean that, on release to mandatory parole, the imprisonment component of a sentence is extinguished and is therefore no longer part of any continuous sentence.

¶20 The DOC points out that its interpretation is supported by our decision in Luther , in which we stated that a prison sentence was "no longer operable in any sense" after an inmate was released to serve mandatory parole. 58 P.3d at 1016. In Luther , the inmate, like Diehl, was serving a mandatory period of parole when he committed the crime of escape. Id. at 1014. He was reincarcerated, and the district court imposed a sentence of three years imprisonment plus a three-year period of mandatory parole for his new conviction, to begin after the completion of the revoked parole incarceration period. Id. at 1015. Luther argued that this sentence violated the prohibition on imposing two periods of mandatory parole. Id. at 1014 ; see § 18-1.3-401(1)(a)(V)(E) ("If an offender is sentenced consecutively for the commission of two or more felony offenses ... the mandatory period of parole for such offender shall be the mandatory period of parole established for the highest class felony of which such offender has been convicted."). As Luther saw it, he was already serving the mandatory parole portion of his original sentence and the court was now sentencing him to a new period of imprisonment with a second term of mandatory parole.

¶21 In rejecting Luther's argument, we considered whether "the General Assembly intended that the period of reincarceration be classified as 'mandatory parole' " and concluded that it did not, and instead that "reincarceration for violation of parole is not itself 'parole' ...."

Luther, 58 P.3d at 1016-17. Because Luther could no longer be considered as serving a period of "mandatory parole" in connection with the original sentence, his consecutive sentences did not violate the prohibition against multiple mandatory parole periods. Id. Having reached that conclusion, we explained that "Luther's parole revocation reincarceration period and his new sentence for attempted escape are one continuous sentence, with one period of mandatory parole following." Id. at 1017.

¶22 Similarly, here, the DOC argues, when Diehl was reincarcerated for violating his parole, he was no longer serving a period of mandatory parole on the earlier sentences. Instead, his parole revocation reincarceration period is a separate and independent time period that must be incorporated with his newly imposed sentences into the "one continuous sentence" required by section 17-22.5-101.

¶23 The parties' disagreement reflects the reality that the relevant statutes are less than entirely clear. In some instances, the word "sentence" is used to mean both the combination of time in prison and time on mandatory parole. See Edwards v. People , 196 P.3d 1138, 1139 (Colo. 2008) (holding that "sentence" in the presentence confinement credit statute means both the incarceration portion and the parole portion of an offender's sentence); Norton , 63 P.3d at 343 (holding that the sentence, or penalty, imposed on felony offenders consists of "both an incarceration component and a parole component"). But elsewhere the word "sentence" is used to mean only time in prison. See Martin v. People , 27 P.3d 846, 856 (Colo. 2001) (construing "maximum sentence imposed" in the parole board statute "as the sentence of incarceration ordered by the trial court"); People v. Johnson , 13 P.3d 309, 314 (Colo. 2000) (concluding that "sentence" in community corrections sentencing statute "refers to the period of confinement, imprisonment, or term of custody over which a court may exercise discretion when imposing a sentence, exclusive of any reference to mandatory parole"); Craig v. People , 986 P.2d 951, 963 (Colo. 1999) ("[M]andatory parole is imposed in addition to the imprisonment component of a sentence."). Similarly, section 18-1.3-401 refers to the "discharge" of the prison sentence on release to parole and also to the "full[ ] discharge" of the sentence only after parole has been served.

¶24 Given this lack of absolute statutory clarity, we will defer to the DOC's interpretation unless it is unreasonable. We have emphasized that "in light of the practicalities inherent in administering the complex of sentencing and parole mandates imposed by statute, the department's administrative interpretations are entitled to great weight." Fetzer , ¶ 20, 396 P.3d at 1113. Here, we conclude that the DOC's approach to calculating parole eligibility when an inmate is reincarcerated for a parole violation and sentenced on additional convictions for conduct that occurred while he was on parole is entirely reasonable. Indeed, in light of our decision in Luther , it is the better reading.

¶25 In Luther , we treated the parole revocation reincarceration period and the newly imposed sentence as two parts of one continuous sentence. The General Assembly amended the penalties statute the year after Luther was decided but did nothing to disavow that decision's interpretation of the one-continuous-sentence rule. That is notable because, when a legislative body amends a statute, it is presumed that the legislature is aware of, and approves of, case law interpreting that statute. See Semendinger v. Brittain , 770 P.2d 1270, 1272 (Colo. 1989). Because the General Assembly did not amend the penalties statute in a way that would override our holding in Luther , we presume that the General Assembly approves of that holding. The DOC was therefore reasonable in adopting the approach it did to calculate Diehl's new parole eligibility date.

III. Conclusion

¶26 The DOC's interpretation of sections 17-22.5-101 and 18-1.3-401 is reasonable. The new parole eligibility date for an inmate who was reincarcerated for a parole violation and is sentenced for additional offenses should be calculated using the beginning of the period of mandatory parole as the start of the inmate's one continuous sentence. Accordingly, we reverse the judgment of the district court.

      The issues on appeal are:
      1. Whether the Department is required to include statutorily discharged prison components as part of an offender's one continuous sentence for purposes of time computation?
      2. Whether the Department is required to calculate Diehl's sentence "consistent with" a time computation example stated in the Final Order?


text:
    Lee Ki BOYD, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee
    NO. CAAP-18-0000056
    Intermediate Court of Appeals of Hawai'i.
    July 15, 2019
    On the briefs:
    Jonathan Burge, for Petitioner-Appellant.
    Stephen K. Tsushima, Deputy Prosecuting Attorney, City & County of Honolulu, for Respondent-Appellee.
    (By: Fujise, Presiding Judge, and Leonard and Reifurth, JJ.)
   SUMMARY DISPOSITION ORDER

Petitioner-Appellant Lee Ki Boyd appeals from the January 3, 2018 Findings of Fact, Conclusions of Law, and Order Denying Rule 40 Petition for Post Conviction Relief ("Order") entered by the District Court of the First Circuit ("District Court"). The Order denied Boyd's Hawai'i Rules of Penal Procedure ("HRPP") Rule 40 Petition for Post Conviction Relief ("Petition"), in which Boyd challenged his conviction for Operating a Vehicle Under the Influence of an Intoxicant ("OVUII"), in violation of Hawaii Revised Statutes ("HRS") 291E-61(a)(1) (Supp. 2014), and sought to have the case dismissed or set for a new trial.

On May 29 and June 23, 2015, the trial court conducted a bench trial in the underlying case, in which Honolulu Police Department Officer James Yee testified with regard to Boyd's performance on the horizontal gaze nystagmus test, the "walk-and-turn" test, and the "one-leg stand" test. The trial court found Boyd guilty as charged, and convicted him of OVUII.

On July 16, 2015, Boyd filed a notice of appeal to this court. In State v. Boyd, No. CAAP-15-0000528, 2016 WL 3369242 (Haw. Ct. App. June 15, 2016), this court vacated Boyd's conviction for OVUII under HRS section 291E-61(a)(3), and affirmed Boyd's conviction under HRS section 291E-61(a)(1). We held that Officer Yee's testimony represented substantial evidence to establish that Boyd "operated or assumed actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair a person's normal mental faculties or ability to care for the person and guard against casualty in violation of HRS § 291E61(a)(1)."

Boyd filed an Application for Writ of Certiorari, which the Hawai'i Supreme Court rejected on September 19, 2016. See State v. Boyd, No. SCWC-15-0000528, 2016 WL 4990250 (Haw. Sept. 19, 2016).

On June 19, 2017, Boyd filed his Petition with the District Court. Boyd alleged in relevant part that, prior to his trial, Officer Yee was "prosecuted by the Honolulu Prosecuting Attorney for Shoplifting"; that the State failed to disclose Officer Yee's prosecution in violation of Boyd's rights under Brady v. Maryland, 373 U.S. 83 (1963), "as this information would have been favorable to [Boyd], giving [him] the opportunity to cross examine [Officer] Yee on the favorable materials pursuant to Hawaii Rules of Evidence Rule 608(b) [regarding specific instances of conduct going to witness credibility] and other statutory provisions"; and that, therefore, Boyd's state and federal due process rights were violated, and his conviction should be reversed, and the case dismissed and/or set for a new trial.

On July 12, 2017, the State filed its answer to Boyd's Petition. The State denied Boyd's allegation in the Petition that prior to trial in the underlying case, "[Officer] Yee was prosecuted by the Honolulu Prosecuting Attorney for Shoplifting," but acknowledged that

According to records in JIMS, James Yee was charged with one count of Theft in the Fourth Degree under Case No. 1P21000004 63 with HPD Report No. 10437532 in the District court of [ ] the First Circuit, Wahiawa Division.
a. A&P was January 4, 2011
b. On May 19, 2011 James Yee was represented by Guy Matsunaga and entered a plea of no contest. He was granted a deferred acceptance of no contest plea of six months.
c. On October 11, 2011, his case was dismissed[.]

On August 28, 2017, the District Court granted Boyd a continuance of the hearing on the Petition to subpoena both the criminal and administrative investigations by HPD against Officer Yee. A Stipulated Protective Order was filed on September 12, 2017 along with a Filing of Police Documents Under Seal with the subpoenaed documents. The documents provided, in relevant part, that on May 19, 2011, Officer Yee received a twenty-day suspension for "Theft (Felony)" and a three-day suspension for "Commission of a Criminal Act (Other) - Conviction for Theft," that the incident took place on December 7, 2010, and that the incident involved Officer Yee walking into a supermarket, concealing poi, honey, and meat in his pants, and exiting the store without paying for the concealed items.

On November 6, 2017, the continued-hearing on the Petition took place. On January 3, 2018, the District Court entered the Order denying the Petition. In the Order, the District Court made the following conclusion of law, which Boyd now challenges: "5. The Court finds that [Boyd] failed to show that the shoplifting offense by Officer Yee carries probative value on the issue of the truth and veracity of [Officer] Yee as a witness against [Boyd] in [Boyd's] OVUII trial."

On appeal, Boyd asserts that: (1) The State's wilful withholding of the information surrounding Officer Yee's shoplifting prosecution constituted a Brady violation; and (2) had the State disclosed Officer Yee's prosecution, the discovery that records had been purged would have led to the exclusion of Officer Yee as a witness.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments they advance and the issues they raise, as well as the relevant statutory and case law, we affirm.

(1) Boyd argues that the State's wilful withholding of the information surrounding Officer Yee's shoplifting prosecution constituted a Brady violation because, had it been brought to Boyd's attention prior to trial, he could have used such information to impeach Officer Yee.

In extending Brady to impeachment evidence, the Hawai'i Supreme Court has articulated that "[t]he duty to disclose evidence that is favorable to the accused includes evidence that may be used to impeach the government's witnesses by showing bias, self-interest, or other factors that might undermine the reliability of the witness's testimony." Birano v. State, 143 Hawai'i 163, 182, 426 P.3d 387, 406 (2018) (citing Giglio v. United States, 405 U.S. 150, 154 (1972) ). "The duty to disclose material impeachment evidence is compelled not only by due process, but also the constitutional right to confrontation." Birano, 143 Hawai'i at 183, 426 P.3d at 407.

"Violation of the constitutional right to confront adverse witnesses is subject to the harmless beyond a reasonable doubt standard." Additionally, the failure of the prosecution to disclose impeachment evidence warrants a new trial if the evidence is "material ." When the "reliability of a given witness may well be determinative of guilt or innocence," the nondisclosure of evidence affecting that witness's credibility is material. Put another way, evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Thus, the nondisclosure of impeachment evidence bearing on [a witness'] credibility warrants granting [a defendant] a new trial if [the witness'] testimony was material in the obtainment of [the defendant's] convictions.

Birano, 143 Hawai'i at 190-91, 426 P.3d at 414-15 (emphasis added) (citations omitted).

Relying on State v. Pacheco, 96 Hawai'i 83, 26 P.3d 572 (2001), the District Court concluded that because of the nature of Officer Yee's offense, there was no reasonable probability that, had the information been disclosed, the result of the proceeding could have been any different:

CONCLUSIONS OF LAW
1. [Boyd] comes before this court seeking relief pursuant to HRPP Rule 40, essentially alleging that the State failed to notify counsel of the prosecution of [Officer] Yee and as such violated Brady, and in turn violated his State and Federal Rights to Due Process.
2. Specifically, [Boyd] claims that had the State provided information regarding Officer Yee's prosecution of shoplifting, he would have used that information to impeach Officer Yee, State's witness in his OVUII trial, relating to truthfulness or credibility.
3. A petty theft conviction is not, per se, a "crime of dishonesty," such that it is admissible for impeachment purposes. State v. Pacheco, 96 Hawaii 83, 98, 26 P.3d 572, 587 (2001).
....
5. The Court finds that [Boyd] failed to show that the shoplifting offense by Officer Yee carries probative value on the issue of the truth and veracity of [Officer] Yee as a witness against [Boyd] in [Boyd's] OVUII trial.

(Emphasis added.)

In Pacheco, the Hawai'i Supreme Court held that the trial court erred in allowing the prosecution to introduce the defendant's prior theft conviction for impeachment purposes under Hawaii Rules of Evidence ("HRE") Rule 609(a). 96 Hawai'i at 99, 26 P.3d at 588. The court noted that "[i]n every instance where a witness is sought to be impeached, the only issue that arises is whether the witness is telling the truth," and that as a preliminary matter, "if a party proffers evidence of a prior conviction to impeach the credibility of a witness, the trial court must first expressly determine whether the proffering party has 'shown that the conviction ... rationally carries probative value on the issue of the truth and veracity of the witness .' " Id. (emphasis added) (ellipses in original) (quoting Asato v. Furtado, 52 Haw. 284, 292, 293, 474 P.2d 288, 294, 295 (1970) ). The supreme court held that "a theft offense is not, per se, a 'crime of dishonesty' such that it is admissible to impeach a criminal defendant's credibility. Rather, to be admissible impeachment evidence pursuant to HRE Rule 609(a), the defendant must have committed the prior theft offense under circumstances that, by their very nature, render his or her prior conviction of the offense relevant to and probative of his or her veracity as a witness ." Id. at 100, 26 P.3d at 589 (emphasis added) (citations omitted).

Taken together, the dispositive issue is whether the information surrounding Officer Yee's shoplifting prosecution constituted evidence that could be used to impeach Officer Yee by showing bias, self-interest, or other factors-in this case, that would be his credibility due to untruthfulness-that might undermine the reliability of Officer Yee's testimony in Boyd's OVUII trial.

Boyd argues that based on the circumstances surrounding Officer Yee's shoplifting prosecution and the fact that "although he was off duty at the time, Officer Yee was a sworn police officer at the time that he stole the items[,]" Officer Yee displayed non-verbal acts that were "deceptive," and therefore, created a reasonable possibility that Officer Yee's testimony "would have been put in a different light." Boyd provides no legal authority in support, and more importantly, fails to explain why Officer Yee's actions were deceptive as to affect his credibility as a witness or how the information would undermine the reliability of Officer Yee's testimony in any way. Rather, Boyd simply reiterates the facts underlying Officer Yee's shoplifting prosecution.

The record also does not support Boyd's argument. The subpoenaed documents submitted with the September 12, 2017 Filing of Police Documents Under Seal chronicle exactly what Boyd describes. They do not, however, reflect that Officer Yee's four-year-old shoplifting incident had any probative value on the truth and veracity of Officer Yee as a witness in Boyd's unrelated OVUII trial. See Pacheco, 96 Hawai'i at 100, 26 P.3d at 589 (concluding that the prosecution failed to establish that defendant's prior theft conviction, which it determined from the record, at most, "involved 'shoplifting' from a 'church[,]' " was conduct relevant to or probative of defendant's veracity as a witness); see also id. (noting an example where "trial court properly determined that nine-year-old theft conviction was not a crime of dishonesty and, thus, was too 'collateral' and 'remote' to be admissible to impeach prosecution's witness" (citing State v. Pudiquet, 82 Hawai'i 419, 427, 922 P.2d 1032, 1040 (App.), cert. denied, 82 Hawai'i 360, 922 P.2d 973 (1996) )).

Moreover, the subpoenaed documents do not reflect bias, self-interest, or any other factor that would undermine the reliability of Officer Yee's testimony against Boyd. The documents do not reflect that Officer Yee had any personal stake in Boyd's OVUII trial, or that Officer Yee's shoplifting prosecution, which occurred more than four years prior to Boyd's OVUII offense, undermined Officer Yee's credibility as a witness such that it affected the reliability of Officer Yee's testimony. Cf. Birano, 143 Hawai'i at 181-89, 426 P.3d at 405-13 (holding that the trial court erred in concluding that there was no impeachment evidence that required disclosure because the evidence was relevant to witnesses' credibility as it showed that he was "motivated by the possibility of a reward from the State," in the form of a sentencing recommendation, in exchange for testifying against defendant). Put another way, there is no reasonable probability that had Officer Yee's shoplifting prosecution been disclosed to Boyd, the result of Boyd's OVUII trial would have been different. See Birano, 143 Hawai'i at 191, 426 P.3d at 415 (noting that impeachment evidence is material, thereby requiring disclosure by the prosecution, " 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different' " (quoting State v. Moriwaki, 71 Haw. 347, 356, 791 P.2d 392, 397 (1990) )).

Therefore, the District Court correctly concluded that "[Boyd] failed to show that the shoplifting offense by Officer Yee carries probative value on the issue of the truth and veracity of [Officer] Yee as a witness against [Boyd] in [Boyd's] OVUII trial." See State v. Ramos, 93 Hawai'i 502, 507, 6 P.3d 374, 379 (App. 2000) (stating that conclusions of law are reviewed under the right/wrong standard (quoting State v. Balberdi, 90 Hawai'i 16, 20-21, 975 P.2d 773, 777-78 (App. 1999) )). Accordingly, the State did not violate Brady in failing at the time of Boyd's trial to disclose the subpoenaed documents regarding Officer Yee's shoplifting prosecution. Boyd's first point is thus without merit.

(2) Boyd also argues that the State's disclosure of "the information on [Officer Yee], which would have led to the information that HPD had purged the administrative discipline against [Officer Yee] which resulted in a 3 day suspension for theft, and a 20 day suspension for felony theft," would have led to the exclusion of Officer Yee as a witness.

In State v. Matafeo, 71 Haw. 183, 787 P.2d 671 (1990), the Hawai'i Supreme Court evaluated whether the loss or destruction of potentially exculpatory evidence, consisting of clothing in an alleged sexual assault, violated due process under the Hawai'i Constitution and under Brady. In holding that the HPD's destruction of the evidence and the State's subsequent failure to preserve the evidence did not violate defendant's due process rights, the court adopted the rule that dismissal is appropriate in certain circumstances, regardless of good or bad faith, where the State loses or destroys material which is "so critical to the defense as to make a criminal trial fundamentally unfair without it." Id . at 187, 787 P.2d at 673 (internal quotation marks omitted) (quoting Arizona v. Youngblood, 488 U.S. 51, 61 (1988) (Stevens, J., concurring)). Justice Wakatsuki, concurring specially, agreed that the destruction of the evidence did not demand dismissal of the charge. Matafeo, 71 Haw. at 188-189, 787 P.2d at 674 (Wakatsuki, J., concurring). However, Justice Wakatsuki opined that, in order to adequately protect defendant's due process rights and encourage the police to improve their procedures and practices in preserving evidence, he would have remanded the case to the trial court with orders to instruct the jury that "it may infer that the destroyed evidence which was in the custody and control of the State would be favorable to the defense against the State." Id . at 189, 787 P.2d at 674 (Wakatsuki, J., concurring).

Citing generally to the concurrence in Matafeo, Boyd asserts that "[t]his court should make an inference that the purged investigations would have been favorable to the defense, since the defendant had absolutely no control over either the destruction, or notification of the existence of the documents that were purged." Boyd further asserts that "by not disclosing the prosecution of [Officer] Yee, the State suppressed favorable information since it is likely to have excluded [Officer] Yee from testifying as a result of the presumptively prejudicial information that was purged by HPD."

Boyd's arguments, and the facts and procedural history underlying this case, do not advance the policy considerations articulated in the concurrence in Matafeo. Boyd's arguments are conclusory and expressly speculative, as he asks this court to make the inference that simply because the State purged investigation files related to shoplifting/theft, the documents connected to that investigation are "presumptively prejudicial." Boyd does not explain how these documents are prejudicial in relation to the specific facts of his case.

Here, there is no reasonable possibility that the administrative investigation files would have aided in Boyd's defense in the OVUII trial beyond any benefit that might have arisen from the fact of the subsequently-dismissed conviction itself. As explained above, the subpoenaed documents in connection with Officer Yee's shoplifting prosecution do not suggest that any related information was material to Boyd's guilt or punishment. As such, this is not a circumstance in which the purged records were "so critical to the defense as to make [Boyd's] criminal trial fundamentally unfair without it." See Matafeo, 71 Haw. at 186-87, 787 P.2d at 673 (holding that evidence was not so crucial to the defense as to make defendant's trial fundamentally unfair without it); State v. Steger, 114 Hawai'i 162, 169-71, 158 P.3d 280, 287-89 (App. 2006) (ruling that lost photographs were not critical to the defense to make defendant's trial fundamentally unfair without them, because the photographs could not have provided a complete defense, did not preclude defendant from pursuing his defense, and because defendant's argument was too speculative).

Accordingly, the State's failure to disclose Officer Yee's shoplifting prosecution, and failure to preserve the purged records regarding the related administrative investigation files do not amount to a Brady violation. Absent a Brady violation and any further explanation from Boyd connecting the information to his own conviction, there is no reason upon which we can conclude that the purged records would have led to the exclusion of Officer Yee as a witness. Boyd's second point is thus without merit.

Therefore, the January 3, 2018 Findings of Fact, Conclusions of Law, and Order Denying Rule 40 Petition for Post Conviction Relief entered by the District Court of the First Circuit is affirmed.

      The Honorable Darolyn H. Lendio Heim presided in the Rule 40 post conviction proceedings.

      The Honorable David W. Lo presided in the underlying OVUII proceedings. For clarity, the proceedings associated with Judge Lo are referred to as the "trial court," while the proceedings associated with Judge Lendio Heim as the "District Court."

      The statute provides: "A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle: (1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty[.]" Haw. Rev. Stat. § 291E-61(a)(1).

      Boyd requests that this court take judicial notice of the records and files in that case. The Hawai'i Supreme Court has "validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same." State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (citing State v. Wong, 50 Haw. 42, 43, 430 P.2d 330, 332 (1967) ). Accordingly, we take judicial notice of the records and files in Case No. 1DTA-15-01335.

      Both the Respondent-Appellee State of Hawai'i ("State") and Boyd request that this court take judicial notice of the records and files in that case. For reasons explained above, we take judicial notice of the records and files in appellate case No. CAAP-15-0000528.

      Boyd requests that this court take judicial notice of the records and files in that case. For reasons explained above, we take judicial notice of the records and files in appellate case No. SCWC-15-0000528.

      The State provides no argument on the subject of whether, because the Prosecutor's Office did not prosecute Officer Yee, it was unaware of the prosecution so as to excuse its responsibility to produce information under Brady. Therefore, we do not consider the matter further.

      The District Court indicated during the November 6, 2017 hearing on the Petition that it considered the analysis under HRE Rule 608(b), and COLs 2 and 5 reflect the same. As HRE Rule 609(a) and HRE Rule 608(b) both concern the employment of impeachment evidence to attack a witness's credibility on the basis of acts/crimes of untruthfulness/dishonesty, Pacheco is applicable to this case.