author: Justice BENDER

text:
    Alexander WHIDDEN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 02SC481.
    Supreme Court of Colorado, EN BANC.
    Oct. 27, 2003.
    As Modified on Denial of Rehearing Nov. 17, 2003.
    Philip A. Cherner, Denver, Colorado, Attorney for Petitioner.
    Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.
   Justice BENDER

delivered the Opinion of the Court.

Introduction

In this parole revocation appeal, we consider whether the Colorado Board of Parole has the authority to revoke parole and return a parolee to the Department of Corrections based on a single positive drug test. To answer this question we construe four complex and conflicting statutes: § 17-2-201(5.5), 6 C.R.S. (2002); § 17-2-102(8.5), 6 C.R.S. (2002); § 17-2-103, 6 C.R.S. (2002); and §§ 16-11.5-101 to 107, 6 C.R.S. (2002). The first two statutes can reasonably be interpreted to prohibit the board from revoking parole based on a single positive drug test, and the latter two statutes appear unambiguously to allow the board to revoke parole and return the parolee to the Department of Corrections after only one positive test. We resolve this conflict by holding that the board is authorized, but not required, to revoke parole based on any positive drug test that occurs after the baseline test.

In reaching this holding, we conclude that the only statutes relevant to this case are §§ 16-11.5-101 to 107 (the "Substance Abuse Act") and § 17-2-103 ("section 108"). Sections 17-2-102(8.5) ("section 102(8.5)") and 17-2-201(5.5) ("section 201(5.5)") do not apply to this case because at the time the Substance Abuse Act was enacted, the General Assembly expressly exempted application of these sections to parolees who are subject to the Substance Abuse Act.

The court of appeals, which did not consider whether the Substance Abuse Act applies to this case, construed both sections 201(5.5) and 102(8.5) to prohibit revocation only when a baseline test is positive and to allow revocation when any test other than the baseline is positive. People v. Whidden, 56 P.3d 1201 (Colo.App.2002). While this construction does harmonize sections 201(5.5) and 102(8.5) with section 108 by preserving the board's authority to revoke parole whenever it finds that a condition of parole has been violated, it does not account for the exemption provisions found in sections 201(5.5) and 102(8.5). As we explain below, when the exemption provisions are applied, it becomes clear that the Substance Abuse Act and section 108 are the appropriate statutes to apply to this case. Under these provisions, the board possesses the authority to revoke parole and return a parolee to the Department of Corrections after a single positive drug test. Thus, we affirm the result reached by the court of appeals but employ different reasoning, and return this ease to that court with directions to remand the case to the trial court to dismiss Whidden's 35(c) motion.

I. Facts and Proceedings Below

The petitioner, Alexander Whidden, was released on parole, and as a condition of his parole he was required to submit to random drug testing. Whidden was tested three times before his parole revocation hearing. The first two tests were negative, but the third test was positive for cocaine. Based on this third positive test, Whidden's parole officer filed a complaint with the board alleging Whidden violated condition eight of his parole agreement, which provided, "Parolee shall not abuse and/or use illegal drugs."

In response, Whidden argued that the board lacked authority to revoke his parole based upon a single positive drug test, or, alternatively, if the board could revoke his parole, it did not possess the authority to return Whidden to the Department of Corrections. Whidden relied on subsection 201(5.5)(d), which he construed to provide a limited range of sanctions from which the board may choose when a parolee first tests positive for use of controlled substances. Under this provision, Whidden argued, the only sanctions the board is authorized to impose after a first positive test are mandatory participation in a drug or mental health program, placement in a community correctional non-residential program, or one of the other "intermediate sanctions" listed in subsection 201(5.5)(d)(ID). The administrative hearing officer disagreed, finding that section 201(5.5) did not apply because it governs only the baseline test, which a parolee is required to give immediately upon release. Because Whidden's positive test occurred later in his parole period, after the baseline test, the hearing officer found that the division of adult parole possessed authority under seetion 102(8.5)(b)(II) to seek revocation based on a single positive test, and that she possessed the authority under section 108 to order revocation. She then found that Whid-den had violated a condition of his parole, and, based on that finding and other factors unique to Whidden's case, she revoked Whid-den's parole and returned him to the Department of Corrections to serve the remainder of his sentence.

Whidden appealed. In the district court, the assistant district attorney argued that section 102(8.5) controls and that limited sanctions are only required if a parolee's baseline test is positive. If any test after the baseline test is positive, the board then has authority to revoke parole. Whidden again argued section 201(5.5)(d) controls his case and limits the authority of the board to revoke parole after a single positive drug test. The district court applied section 201(5.5)(d), reasoning that the language of that provision is permissive and does not limit the board's traditional authority to revoke parole based on any violation of a parole agreement. The district court construed the statute to add to the board's authority to revoke parole by allowing it to take measures short of revocation should it find mitigating cireumstances in a particular case. In other words, the district court found that subsection 201(5.5)(d) expands rather than limits the board's traditional power to impose punitive sanctions, including revocation and imprisonment for parolees who violate the terms of their parole agreements.

In an attempt to avoid conflicts between sections 102(8.5), 201(5.5), and 108, the court of appeals affirmed the trial court, holding that sections 201(5.5) and 102(8.5) "prohibit revocation upon initial testing even if the result is positive, but ... allow revocation upon any subsequent positive test for drugs even if the initial test was not positive." Whidden, 56 P.3d at 1204. That court interpreted both subsections 201(5.5)(d)(D) and 102(8.5)(a) to restrict the board's authority to impose sanctions only if the baseline test is positive. See id. at 1204-05. On the other hand, the court reasoned, neither provision states "that there must be at least two positive tests before revocation may occur or that revocation of parole may occur only upon a second positive test." Id. at 1205 (emphasis in original).

The court determined that this interpretation harmonizes sections 102(8.5) and 201(5.5) with section 103, which permits the board to modify or revoke parole whenever it determines that a condition of parole has been violated. It also held that this construction comports with the plain meaning of the statutes.

Whidden now appeals to us, arguing the court of appeals' construction of sections 102(8.5) and 201(5.5) is incorrect.

II. Analysis

Whidden contends that sections 102(8.5) and 201(5.5) limit the board's power to revoke parole and imprison a parolee based on a single positive drug test. On the other hand, the People argue that the court of appeals' construction of these statutes is correct, and sections 102(8.5) and 201(5.5) should be interpreted to authorize the board to revoke parole if any test other than the baseline reflects the presence of controlled substances. We do not reach either of these arguments because the plain language of both of these provisions prohibits application of either section 201(5.5) or 102(8.5) to any parolee to whom the Substance Abuse Act applies.

When the General Assembly enacted the Substance Abuse Act in 1991 it added two exemption provisions to sections 201(5.5) and 102(8.5), each of which states, "[tlhis subsection ... shall not apply to any parolee to whom [the Substance Abuse Act] applies." See § 17-2-201(5.5)(g), 6 CRS. (2002); § 17-2-102(8.5)(c), 6 C.R.S. (2002). If these exemption provisions apply, then the directives of sections 201(5.5) and 102(8.5) cannot be applied to a particular case, and therefore there is no need to interpret or address them.

The Substance Abuse Act is comprehensive legislation that applies to offenders at all stages of the criminal justice system, including those under the supervision of the Department of Corrections and the State Board of Parole. See §§ 16-11.5-102, 108, 104, and 105, 6 C.R.S. (2002). In addition, the Substance Abuse Act governs the same activities regulated by sections 201(5.5) and 102(8.5)-namely drug testing and punishment of parolees who abuse controlled substances.

As an initial matter, we conclude that the exemption provisions preclude application of sections 201(5.5) and 102(8.5) to this case. Neither of the parties dispute that Whidden was under the board's supervision at all times relevant to this appeal. Thus, according to the terms of the Substance Abuse Act, Whidden's case falls within its purview.

The only issue remaining, then, is whether the board possesses the authority under the Substance Abuse Act to revoke parole and return a parolee to the Department of Corrections based on a single positive drug test. To address this issue, we now turn the Substance Abuse Act.

The Substance Abuse Act

The Substance Abuse Act-the most recently enacted parole statute-was codified in 1991. The purpose of the legislation was to standardize testing, treatment, and punishment of offenders throughout the criminal justice system who abuse controlled substances. The individual sections of this act are intentionally broad and designed to regulate all activities related to assessment, treatment, and punishment. The two most comprehensive sections are 102 and 105, both of which encompass all offenders under the supervision of the Judicial Department, the Department of Corrections, and the State Board of Parole See § 16-11.5-102(1) 6 C.R.S. (2002); § 16-11.5-105(1), 6 C.R.S. (2002).

Each section focuses on a different aspect of assessment, treatment, and punishment of offenders. Section 102 directs the various agencies covered by the Act to develop and implement standardized assessment procedures, treatment programs, and punitive sanctions for all offenders. Sections 103 and 104 concern assessment and testing of parolees. Section 105 requires the agencies covered by the Act to impose punitive sanctions on any offender who tests positive for controlled substances, and to "develop and make public guidelines for the revocation of parole due to the abuse of ... controlled substances." § 16-11.5-105(4), 6 C.R.S. (2002). And section 106 authorizes parole officers to collect samples from parolees for drug testing.

Under the testing procedures and punitive sanctions regime set forth in the Substance Abuse Act, the board is authorized, but not required, to revoke parole based on a single positive test. Before a parolee is released on parole, he is given an "initial," or baseline, test for assessment purposes. See § 16-11.5-104(2), 6 C.R.S. (2002); Colorado Department of Corrections, Administrative Regulation number 250-24: Parole Drug Sereening (Dee. 15, 2002) http;//www.doe.state.co.us/admin-reg/admin-reg.html." According to the administrative regulations of the Department of Corrections, this baseline test is collected "(immediately (within 72 hours) upon the parolee's release from incarceration." Colorado Department of Corrections, Administrative Regulation number 250-12: Offender Drug Screening (March 15, 2008), at http://www.doe.state.co.us/admin-reg/index-99a.htm. This test is. used for assessment purposes to establish a testing schedule once the parolee is released. Colorado Department of Corrections, Administrative Regulation number 250-24 Parolee Drug Screening (Dec. 15, 2002), at http://www.doe.state.co.us/admin-reg/admin-reg.html. Because this test is given for assessment purposes, it is treated differently than tests administered as part of a monitoring program and cannot give rise to punitive sanctions, even if it is positive for controlled substances. See §§ 16-11.5-102(1)(a), 10402), and 105(2), 6 C.R.S. (2002).

If any test given after the baseline test is positive for controlled substances, however, the parolee "shall be subjected to a punitive sanction." § 16-11.5-105(2), 6 C.R.S. (2002). The board is authorized to implement any sanction that is appropriate to offenders under its jurisdiction. Authorized sanctions include, but are not limited to, "referral of the offender to the ... state board of parole for . revocation of ... parole." Id. If the board decides to take this action and revoke parole based on its finding that the parolee has violated a condition of parole, it may then return the parolee to the Department of Corrections. See § 17-2-108(11)(b)(ID)(A), 6 C.R.S. (2002).

We note in passing that the Substance Abuse Act is entirely consistent with section 103. This section, which was enacted in 1977, authorizes a parole officer to initiate revocation proceedings whenever he "has reasonable grounds to believe that a condition of parole has been violated by any parolee." § 17-2-108(8)(a), 6 C.R.S. (2002). Once revocation proceedings have been initiated, the parole board has the authority under subsection 108(11)(a) to modify or revoke parole "[i}f the board determines that a violation of a condition or conditions of parole has been committed."

When read together, we conclude that the Substance Abuse Act and section 103 authorize, but do not require, the board to revoke parole and return a parolee to the Department of Corrections based upon a single positive drug test. We now turn to the facts of this case to determine whether the administrative hearing officer acted within her statutory authority when she revoked Whidden's parole.

III. Application

In this case, the administrative hearing officer found that Whidden violated a condition of his parole when the third test administered during his parole period showed the presence of controlled substances. The hearing officer then revoked Whidden's parole and returned him to the Department of Corrections in accordance with both our statutory mandates and the regulations promulgated by the Department of Corrections.

Hearing officers have the same authority as the board to conduct revocation proceedings and impose sanctions pursuant to § 17-2-108. See § 17-2-201(4)(b), 6 C.R.S. (2002). In addition, hearing officers must adhere to the rules and regulations promulgated by the Department of Corrections. See § 17-2-201(8)(c)(IH).

In this case, the complaint alleging that Whidden violated a condition of his parole by testing positive for controlled substances was filed pursuant to section 108(8)(a). As we discuss above, this section authorizes a parole officer to initiate revocation proceedings whenever she suspects that a condition of parole has been violated. Where, as here, a parolee violates a condition of his parole agreement, rather than committing a separate eriminal offense, the complaint is considered discretionary and is decided on a case by case basis. See Colorado Department of Corrections, Administrative Regulation number 1250-39: Parole Revocation/Violetion Process (Dec. 15, 2002), at http://www.doe.state.co.us/admin-reg/admin-reg.html.

Our review of the record reveals that the hearing officer revoked Whidden's parole based both on her finding that he had violated a condition of his parole by testing positive for using controlled substances and upon other factors unique to Whidden's case that were within her discretion to consider. Her findings and subsequent decision to revoke are consistent with the Department of Corrections' regulations, which authorize case-by-case determination of complaints such as that filed against Whidden. Thus, we conclude that the hearing officer acted in accordance with our statutory mandates and within her discretion under the regulations promulgated by the Department of Corree-tions.

We affirm the court of appeals and remand to that court with instructions to return the case to the trial court for dismissal of Whid-den's 35(c) motion.

      . Although Whidden's counsel mentioned §§ 16-11.5-101 to 107 in a footnote in his brief to the court of appeals, the parties did not argue that §§ 16-11.5-101 to 107 were controlling in any of the proceedings below. However, after the Attorney General brought these sections to our attention in supplemental authority, both parties discussed them at oral argument.

      . By the term "single positive drug test," we refer to any positive test that occurs after the initial, or baseline, test. According to the administrative regulations of the Department of Corrections in effect at the time of Whidden's parole revocation hearing, this baseline test was to be collected "within twenty-four ... hours prior to the time the offender is released to parole." Colorado Department of Corrections, Administrative Regulation number 250-12 (June 1, 2000). (This regulation has been superceded by Colorado Department of Corrections, Administrative Regulation number 250-12: Offender Drug Screening (March 15, 2003), at htip:www.doc.state. co.us/admin_reg/index_99a.htm. The current regulation states that the baseline test should be taken "[immediately (within 72 hours) upon the parolee's release from incarceration.") The baseline test is used for assessment purposes to establish a schedule of testing once the parolee is released. See Colorado Department of Corrections, Administrative Regulation number 1250-04: Parolee Drug Screening (Dec. 15, 2000) ("After an initial assessment pursuant to CRS 16-11.5-102 the drugs to be tested for and the frequency of testing is established."). A positive baseline test does not subject a parolee to punitive sanctions. See § 16-11.5-105(2), 6 C.R.S. (2002). See also infra Part IL.

      . Two months after commencing his parole, Whidden was placed in the Intensive Supervision Program. Parolees in that program undergo intensive drug testing, providing as many as four or five samples for testing per month.

      . The parole officer acted pursuant to § 17-2-103(3)(a), which provides in relevant part:
      Whenever a parole officer has reasonable grounds to believe that a condition of parole has been violated by any parolee, he may issue a summons requiring the parolee to appear before the board at a specified time and place to answer charges of violation of one or more conditions of parole.

      . Parolees are required to agree to this condition y statute. See § 17-2-201(5)(0)(D(H), 6 C.R.S. (2002) ("[The parolee shall not abuse alcoholic beverages or use illegal drugs while on parole[.]").

      . Section 17-2-201(5.5)(d)(I) and (II) provide in relevant part:
      (d)(I) If a chemical test ... reflects the presence of drugs or alcohol, the parolee may be required to participate at his own expense in an appropriate drug or alcohol program, community correctional non-residential program, mental health program, or other fee based or nonfee based treatment program....
      (IID)(A) Any subsequent chemical testing reflecting the presence of alcohol may be grounds for arrest of the parolee and the initiation of revocation proceedings at the discretion of the parole officer pursuant to section 17-2-103.

      . Revocation proceedings may be presided over by administrative hearing officers pursuant to §§ 17-2-201(3)(c)(I) and (II). Hearing officers have the same authority as the board to conduct revocation proceedings and impose sanctions pursuant to § 17-2-103. See § 17-2-201(4)(b), 6 C.R.S. (2002). In addition, hearing officers must adhere to the rules and regulations promulgated by the Department of Corrections. See § 17-2-201(3)(c)(II).

      . Section 17-2-102(8.5) also deals with drug testing and states in relevant part:
      (a) Any parolee, on parole as a result of a conviction of any felony, who is under the supervision of the division of adult parole ... and who is initially tested for the illegal or unauthorized use of a controlled substance and the result of such test is positive shall be subject to any or all of the following actions:
      (I) An immediate warrantless arrest;
      (II) An immediate increase in the level of supervision ...;
      (II) Random screenings ..., which use may serve as the basis for any other community placement;
      (IV) Referral to a substance abuse treatment program.
      (b) If any parolee described in paragraph (a) of this subsection (8.5) is subjected to a second or subsequent test for the illegal or unauthorized use of a controlled substance and the result of such test is positive, the parole officer shall take one or more of the following actions:
      (I) Make an immediate warrantless arrest;
      (II) Seek a parole revocation in accordance with section 17-2-103[.]

      . A baseline test is required under § 17-2-201(5.5)(a)(I), and the board must obtain a sample for testing from a parolee "(immediately upon the parolee's release from incarceration in order to establish a baseline sample[.]"

      . The question we granted certiorari on is: ''Whether the court of appeals erred in upholding revocation of the defendant's parole based on a single positive drug test."

      . Throughout this section, we refer to administrative regulations promulgated by the Department of Corrections. These regulations can be found on the Department of Corrections website, which is cited where appropriate. To find the regulation we cite, refer either to the index of all regulations or use the website's search engine using the keyword "parole."

      . The legislative declaration that appears in this section expresses the General Assembly's intent to make the Substance Abuse Act comprehensive legislation:
      [The general assembly hereby resolves to curtail the disastrous effects of substance abuse in the criminal justice system by providing for consistency in the response to substance abuse throughout the criminal justice system and to improve and standardize substance abuse treatment for offenders at each stage of the criminal justice system and to provide punitive measures for offenders who refuse to cooperate with and respond to substance abuse treatment[.]
      § 16-11.5-101, 6 C.R.S. (2002).

      . In accordance with subsection 105(4) of the Substance Abuse Act, in December of 2000 the Department of Corrections promulgated regulations specifying which sanctions can be imposed on a parolee who abuses controlled substances. See Colorado Department of Corrections, Administrative Regulation number 1250-04: Parolee Drug Screening (Dec. 15, 2000). This regulation has been superceded by Colorado Department of Corrections, Administrative Regulation number 250-24: Parolee Drug Screening (December 15, 2002) at http://www.doo.state.co.us/admin_reg/admin-reg.html, which contains an identical schedule of sanctions to the 2000 regulation.

      . At the time of Whidden's parole revocation hearing, the regulation in effect was administrative regulation (AR) 1250-04, which contains identical language to the current regulation defining the initial test. See Colorado Department of Corrections, Administrative Regulation number 1250-04: Parolee Drug Screening (December 15, 2000).

      . Under both the current regulation and the regulation in effect at the time of Whidden's parole revocation hearing, the only parole violations that give rise to mandatory complaints are crimes of violence, felony charges, possession or use of a firearm or deadly weapon, refusal to submit to urinalysis, and alcohol or drug-related traffic offenses. See Colorado Department of Corrections, Administrative Regulation number 1250-39: Parolee Drug Screening (May 15, 2002), at http://woww.doe.state.co.us/admin-reg/admin-reg.html; Colorado Department of Corrections, Administrative Regulation number 1250-39: Mandatory Arrest/Detention and Initiation of Revocation Proceedings (February 1, 2000). When a parolee violates any other condition of parole, the complaint is considered discretionary, which means the parole officer may exercise her discretion in determining whether to file a complaint. Seeid.

      . Under the regulation in effect at the time of Whidden's parole revocation hearing, a complaint based on a violation of a condition of parole was also considered discretionary and was decided on a case by case basis. See Colorado Department of Corrections, Administrative Regulation number 1250-39: Mandatory Arrest/Detention and Initiation of Revocation Proceedings (February 1, 2000).

      . At oral argument, counsel for Whidden argued that because the hearing officer did not rely on the Substance Abuse Act in Whidden's revocation hearing, the case should be remanded. Our review of the record in this case reveals that the hearing officer acted within her statutory discretion when she revoked Whidden's parole. Thus, we find no basis to remand this case for rehearing.


source: Caselaw Access Project

author: Justice HOBBS

license: Public Domain

text:
    THE UNIVERSITY OF COLORADO, an institution of the State of Colorado, Petitioner, v. Deborah Eileen BOOTH, Respondent.
    No. 02SC738.
    Supreme Court of Colorado, En Banc.
    Nov. 3, 2003.

      Joanne M. McDevitt, Michael W. Schreiner, David P. Temple, Denver, Colorado, Attorneys for Petitioner.
    Andrew Rosen, Boulder, Colorado, Attorney for Respondent.
    Friedrick C. Haines, Christine K. Wilkinson, Denver, Colorado, Attorneys for Amicus Curiae, State of Colorado.
   Justice HOBBS

delivered the opinion of the court.

We granted certiorari in this case to review the court of appeals decision in Booth v. University of Colorado, 64 P.3d 926 (Colo.App.2002). We affirm. 'We hold that timely filing of a notice of claim upon the Board of Regents of the University of Colorado ("University") complies with the Colorado Governmental Immunity Act's ("GIA") notice provisions set forth in section 24-10-1098), 7B C.R.S. (2002).

I.

In October of 1998, a dry erase board-not properly secured to a classroom wall at the University of Colorado-collapsed and struck Deborah Eileen Booth, a student at the University, in the head while she was sitting at her desk. Booth suffered serious injury. Well within the required 180-day period specified by section 24-10-109(1), 7B C.R.S. (2002), she filed her notice of claim with the University's Board of Regents, which transmitted the notice to its Office of University Counsel the next day.

Moving to dismiss the personal injury lawsuit Booth subsequently filed, the University alleged that section 24-10-1098) required Booth to file the notice of claim with the Colorado Attorney General instead of the Board of Regents.

The University's argument relied-as it does here-on Schmidt v. Harken, 42 P.3d 34 (Colo.App.2001), holding that a claimant against the University must file the GIA notice of claim with the Attorney General. The court of appeals decided Schmidt after Booth filed her notice with the University's Board of Regents.

The trial court found Booth's notice of claim proper for three reasons: (1) the decision in Schmidt v. Harken should be applied prospectively only; (2) the Office of University Counsel received the notice of claim within the 180-day limitation established by section 24-10-109(1); and (8) the Colorado Attorney General had appointed the Office of University Counsel attorneys as special assistant Attorneys General and, therefore, notice to the Office of University Counsel was notice to the Attorney General for Schmidt purposes. Booth, 64 P.3d at 927.

In affirming the trial court, the court of appeals relied upon a Memorandum of Understanding ("MOU") executed February 1983 between the Board of Regents and the Attorney General. The MOU transferred from the Attorney General to the Office of University Counsel all responsibility for court proceedings involving the University. The MOU states that the Office of University Counsel will "represent the Board of Regents and the University in court proceedings, ... [and] serve in the capacity of special assistant Attorney General." The MOU identifies the Office of University Counsel as "structurally part of the Central Administration of the University of Colorado."

Under the MOU, if the Attorney General received a notice of claim against the University it would provide a letter to the claimant stating, "this office does not represent the University of Colorado, ... Your future contact concerning your claim should be with their representatives." The Attorney General would also send a letter to the Office of University Counsel that provided:

Pursuant to the agreement between our offices, I am forwarding a copy of the notice of claim to you for such action as you deem appropriate. Unless we are advised to the contrary, it is our understanding that either your office or the University's insurance counsel will handle the representation of the interests of the University of Colorado, the Board of Regents or University Hospital in this case.

Booth, 64 P.3d at 928. The Office of University Counsel would then send a letter to the claimant, informing the claimant that the Office of University Counsel served as a special assistant Attorney General and asking the claimant to direct all future correspondence to their office. Id.

Pointing to the record and the trial court's finding that the Office of University Counsel received Booth's notice of claim within the required 180-day period, the court of appeals applied estoppel against the University's argument that Booth had failed to file her notice of claim with the Attorney General. Id. at 929. We affirm the judgment of the court of appeals, on different grounds.

II.

We hold that the GIA allows a claimant against the University of Colorado to file her notice of claim with the Board of Regents as the University's governing body, or the Attorney General as the Board's statutory attorney, pursuant to section 24-10-109(8). Booth complied with the statute by filing her timely notice of claim with the Board of Regents.

A.

GIA Notice of Claim Under Section 24-10-109(8)

When construing a statute, our fundamental responsibility is to give effect to the General Assembly's intent. Mortgage Inv. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1183 (Colo.2003). In applying the GIA, we strictly construe legislative grants of immunity and broadly construe legislative immunity waivers. Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.2000).

The purpose of the GIA timely notice provision, section 24-10-109(8), is to "recognize and insure that the 'governing body' or its 'attorney' be directly involved, advised, and notified of potential litigation." Brock v. Nyland, 955 P.2d 1037, 1041 (Colo.1998). Timely notice to the appropriate governing body or attorney provides the opportunity for correction of a dangerous condition, investigation and settlement of the claim before the litigation ensues, or preparation of a lawsuit defense in the event of litigation. Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 68 (Colo.1990).

Failure to meet the 180-day window for filing the notice of claim set forth in section 24-10-109(1) is jurisdictional. Brock, 955 P.2d at 1043. In contrast, failure to file the notice of claim with the appropriate officer or entity under section 24-10-109(8) gives rise to an affirmative defense. Id.

In Brock, the injured person filed notice of claim with the claims department of the Regional Transportation District ("RTD"), but there was no factual demonstration in the case that: (1) the claims department was "the agent for the RTD governing board or attorney" to receive the notice of claim; or (2) the RTD Board or its attorney had "actual notice of the claims within the 180-day period for notification under section 24-10-109(1)." Id. at 1044.

In the case before us, the facts are that: (1) the Board of Regents is the governing body of the University of Colorado; (2) Booth filed her notice of claim with the Board of Regents within the required 180-day period; (3) the Office of University Counsel received the notice within the 180-day period; and (4) the MOU between the Regents and the Attorney General makes the Office of University Counsel the responsible agent for dealing with GIA notices of claim against the University.

Nevertheless, the University argues that its injured student may not maintain her personal injury lawsuit, because she did not file her notice of claim with the Attorney General. Citing that portion of Brock which requires injured persons to direct their notice of claim to the appropriate person, Brock, 955 P.2d at 1043, the University argues that it is the "state," and the notice of claim must go to the Attorney General under section 24-10-109(8). In pertinent part, this provision states:

If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity.

§ 24-10-109(8), 7B C.R.S. (2002) (emphasis added).

In seeking to characterize itself as the "state" and not a "public entity other than the state," the University overlooks the fact that the GIA makes a distinction between the "state" and an "instrumentality" of the state organized by law, which is treated as a "public entity other than the state" for GIA notice of claim purposes. Viewing the statute as a whole and the evident legislative purposes, we determine that a claimant against the University of Colorado may file her notice of claim, pursuant to section 24-10-109(8), with the Board of Regents as the governing body of the University or the Attorney General, who is statutory counsel to the Board of Regents.

B.

"State" versus "Public Entity Other than the State"

When construing a statute we look to the statutory design as a whole, giving effect to the language of each provision and section, harmonizing apparent conflicts, if possible. Board of County Comm'rs v. Park County Sportsmen's Ranch, LLP, 45 P.3d 693, 711 (Colo.2002).

Section 24-10-108(5) of the GIA defines a "public entity" as the "state ... and every other kind of district, ageney, instrumentality, or political subdivision thereof organized pursuant to law." Thus, section 24-10-108(5) recognizes that the term "public entity" consists of a variety of public bodies in addition to the state, including an "instrumentality" of the state organized pursuant to law.

Section 24-10-112(1)(a)(I) repeats the reference to "instrumentality" in referring to a "... university, or other instrumentality" of the state, requiring in the instance before us that the Attorney General obtain the concurrence of the head of the University in order to compromise or settle a case. Section 24-10-112(2) provides that "[cllaims against public entities, other than the state, may be compromised or settled by the governing body of the public entity or in such manner as the governing body may designate." The University of Colorado has its own governing body, the Board of Regents, and is a "public entity" within the meaning of the GIA. Uberoi v. University of Colorado, 713 P.2d 894, 898 (Colo.1986). As we pointed out in Uberoi, the University of Colorado's "body politic" is the Board of Regents, established by the constitution. Id. at 898. See also Colo. Const. art. IX, § 12.

Construing all of these sections together, we conclude that the General Assembly anticipated that a claimant, such as Booth, can file her notice of claim with the governing body of an instrumentality of the state or with its attorney. The University is an instrumentality of the state for GIA purposes.

Section 23-20-110 designates the Attorney General as the legal advisor to the president and the Board of Regents. Thus, under section 24-10-112(2), Booth could also have filed her notice of claim against the University with the Attorney General, attorney to the Board of Regents.

Other sections of the GIA also treat the University of Colorado as if it were a public entity other than the state. Section 24-30-1517(2) exempts the University of Colorado from all of part 15 of article 80, the state's insurance fund. GIA section 24-10-115 provides the authority for public entities other than the state to obtain insurance. Having been exempted from the state's insurance fund, the University of Colorado may obtain its own insurance, consistent with being an entity other than the state.

The General Assembly has recognized that the University makes its own choices in obtaining insurance, settling claims, and defending lawsuits seeking payment under the GIA. The MOU between the Regents and the Attorney General demonstrates this very understanding. As we have pointed out, seetion 24-10-112(2) allows the governing body of an instrumentality of the state to compromise or settle a claim in such manner as it sees fit.

Under the MOU, when the Attorney General receives a notice of claim against the University of Colorado, he or she transmits it to the Office of University Counsel and sends instructions to the claimant that all future correspondence should be with the Office of University Counsel. Likewise, as demonstrated by the record in the case before us, when the Board of Regents receives notices of claim it transmits them to the Office of University Counsel. By virtue of the MOU, the Office of University Counsel is the designated agent of the Regents and the Attorney General, its statutory counsel, for action on GIA claims.

In Brock, we recognized that actual notice of the notice of claim to the attorney for the public entity within the 180-day period satisfies the section 24-10-1098) filing requirement. Brock, 955 P.2d at 1045. We must give effect to the legislative purposes of the GIA. See Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63 (Colo.1990). An essential purpose of the notice requirement is to "permit a public entity to conduct a prompt investigation of the claim and thereby remedy a dangerous condition, to make adequate fiscal arrangements to meet any potential Hability, and to prepare a defense to the claim." Id. at 68. We reiterated this purpose in Brock. See Brock, 955 P.2d at 1041.

Booth filed her timely notice of claim with the governing body of the University, the Board of Regents, which promptly transmitted it to the Office of University Counsel, designated agent for acting on GIA claims against the University. The University had the opportunity to conduct a prompt investigation of the claim and remedy the alleged dangerous condition, make adequate fiscal arrangements to meet any potential liability, and/or prepare a defense to the claim, as section 24-10-109(8) contemplates.

IIL

We hold that a claimant may file her GIA notice of claim against the University of Colorado, in compliance with section 24-10-109(8), with the Board of Regents as the University's governing body, or with the Attorney General, its statutory counsel. We affirm the judgment of the court of appeals.

      . We granted certiorari on the following issues:
      1. Whether the court of appeals erred when it held that a notice of claim against the University met the notice requirements of section 24-10-109(3), 7B C.R.S. (2002).
      2. Whether the court of appeals erred in concluding that the University was estopped from objecting to the sufficiency of notice required by section 24-10-109(3), 7B C.R.S. (2002).
      Because the notice complied with statutory requirements, we do not address the second issue.

      . Section 24-10-109(3) reads:
      If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered mail or upon personal service.
      § 24-10-109(3), 7B C.R.S. (2002).

      . Section 24-10-109(1) states in pertinent part: "[alny person claiming to have suffered an injury by a public entity ... shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury." § 24-10-109(1), 7B C.R.S. (2002).

      . The GIA governs tort actions against a public entity. See generally § 24-10-101 to -120, 7B C.R.S. (2002). The University of Colorado is a public entity within the GIA's scope. Uberoi v. Univ. of Colorado, 713 P.2d 894 (Colo.1986).

      . Colo. Const. art. IX, § 12; § 23-20-102(1), 7A C.R.S. (2002). Article 20 of title 23 addresses the University of Colorado. Section 23-20-102(1) provides: "[the University shall be governed by a board of nine regents ..."

      . § 23-20-110, 7A C.R.S. (2002) provides: "[the attorney general of the state shall be the legal advisor of the president and board of regents of the university, and he shall institute and prosecute or defend all suits in behalf of the same."

      . The full definition provided in section 24-10-103(5) states:
      'Public entity" means the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law and any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.
      § 24-10-103(5), 7B C.R.S. (2002).

      . The full text of section 24-10-112 reads:
      (1)(a)(I) A claim against the state may be compromised or settled for and on behalf of the state by the attorney general, with the concurrence of the head of the affected department, agency, board, commission, institution, hospital, college, university, or other instrumentality thereof, except as provided in part 15 of article 30 of this title.
      (2) Claims against public entities, other than the state, may be compromised or settled by the governing body of the public entity or in such manner as the governing body may designate.
      § 24-10-112, 7B C.R.S. (2002).

      . Section 24-30-1517(2) provides: "[njothing in this part 15 shall apply to the university of Colorado at Boulder, Denver, and Colorado Springs and the university of Colorado health sciences center."

      . Section 24-10-116 of the GIA requires the state to obtain insurance. The section cross-references to part 15 of article 30 which sets up the Division of Risk Management, the state's insurance fund. In contrast, section 24-10-115 of the GIA provides the authority for public entities other than the state to obtain insurance. It follows that any entity not covered by the state's insurance fund falls within the provisions of section 24-10-115, insurance for entities other than the state.

      . On the Senate's second reading of H.B. 85-1001, the bill's sponsor, Senator Wells, recognized that the University of Colorado was exempted from the state's Division of Risk Management. The Division of Risk Management was created in response to the state's insurance carrier canceling its policy in the mid 1980s. At the time, the University of Colorado maintained its own insurance policy separate from the state; thus, the University's policy was not cancelled along with the state's policy.
      Senator Donley expressed concern that should the University cancel its insurance it would be left without coverage, and introduced an amendment that would allow the University to again purchase its own coverage, or to opt for coverage under the state's policy. In doing so, Senator Donley still recognized the University's autonomy, stating: "[this amendment respects the autonomy of the Regents, provides them the opportunity that in the event of cancellation they may go into the private market and purchase a substitute general liability or automobile liability policy, or ... they [can] become part of our risk management pool."
      In response, Senator Wells stated: "I think that's probably fine, because I think the Regents probably would prefer to be maintaining their own insurance." Accordingly, Senator Wells, the sponsor of the bill, recognized the autonomy of the University as well. Concerning the Liability of Public Entities, Officials, and Employees, and Making an Appropriation in Connection Therewith: Hearing on H.B. 1001 before the Senate on Second Reading, 55th Gen. Assem., list Ex.Sess. (Colo.1985).

      . To the extent our opinion diverges from Schmidt v. Harken, 42 P.3d 34 (Colo.App.2001), we overrule that case.


author: Justice RICE

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Roderick A. GOODALE, Defendant-Appellee.
    No. 02SA345.
    Supreme Court of Colorado, En Banc.
    Nov. 3, 2003.

      Edward J. Rodgers, District Attorney Eleventh Judicial District, Norman C. Cool ing, Deputy District Attorney, Canon City, Colorado, Attorney for Plaintiff-Appellant.
    David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender Denver, Colorado, Attorney for Defendant-Appellee.
   Justice RICE

delivered the Opinion of the Court.

The People appeal an order of the Chaffee County District Court dismissing the prosecution of Roderick Allen Goodale. The People charged Goodale, a Department of Corrections inmate, with unlawful use of marihuana in a detention facility in violation of section 18-18-406.5, 6 CRS. (2008). Goodale asserted that the statute violated equal protection of the laws and moved to dismiss the charge. The trial court agreed with Goodale, finding the statute unconstitutional because it imposed higher punishment on marihuana users than it did on users of more serious drugs.

We reverse. We hold that the statute presents a classification that is neither arbitrary nor irrational, and thus does not violate equal protection of the laws.

I. Facts and Procedural History

On February 8, 2002, the State charged Goodale, an inmate of the Buena Vista Correctional Facility, with one count of unlawful use of marihuana in a detention facility, a class 6 felony. § 18-18-406.5. Goodale moved to dismiss the charge, asserting that the statute violated the Equal Protection Clause of both the Colorado and United States Constitutions. In support of this assertion, Goo-dale noted that an individual convicted of unlawful use of a schedule I or II controlled substance pursuant to § 18-18-404(1)(a), 6 C.R.S. (2002), a class 5 felony, could request treatment for addiction. If the court granted this request, the criminal proceedings would be suspended while the individual received treatment. If the individual successfully completed treatment, the charges would be dismissed. Because there is no similar treatment provision in the statute under which Goodale was charged, he argues that this disparity rendered the statute under which he was charged unconstitutional, because he faced greater punishment for a less serious offense.

The trial court agreed with Goodale and granted the motion to dismiss. The court noted that Goodale did not receive the same opportunities for treatment and suspension of proceedings as someone charged under the more serious crime of possession of a schedule I or II controlled substance. The court therefore held that the statute under which Goodale was charged violated the equal protection clause.

II Analysis

A. Background Principles

We begin our analysis by noting that "it is not the role of this court to act as overseer of all legislative action and declare statutes unconstitutional merely because we believe they could be drafted better or more fairly applied." People v. District Court, 185 Colo. 78, 81, 521 P.2d 1254, 1255 (1974); see also People v. Brown, 632 P.2d 1025, 1027 (Colo.1981) ("[TJhe defendant's burden is not to persuade this Court that the [law] is unwise, but that it is totally lacking in reason."). Thus, statutes are presumed to be constitutional, and a party challenging the statute bears the burden of demonstrating its unconstitutionality. People v. District Court, 185 Colo. at 81, 521 P.2d at 1255. With these background principles in mind, we now turn to the question of whether the statute under which Goodale was charged violates the Equal Protection Clauses of the United States and Colorado Constitutions. U.S. Const. amend. XIV; Colo. Const. art. II, § 25.

Equal protection of the laws requires that similarly situated people be treated similarly. People v. Cagle, 751 P.2d 614, 619 (Colo.1988). When two statutes provide different penalties for identical conduct, equal protection is violated if a defendant is convicted and sentenced under the harsher statute. Id. Equal protection may also be violated where two statutes proscribe different conduct yet offer no intelligible standard for distinguishing the conduct. People v. Marcy, 628 P.2d 69, 75 (Colo.1981). Thus, a statute may be unconstitutional if it imposes a harsher penalty on less serious criminal conduct. People v. Nguyen, 900 P.2d 37, 39-40 (Colo.1995) (declaring unconstitutional an attempted second degree assault statute which imposed greater punishment than attempted first degree assault). Nevertheless, the legislature may establish different penalties for different conduct, and "[hJarsher penalties for crimes committed under different cireumstances than those which accompany the commission of other crimes do not violate equal protection guarantees if the classification is rationally based upon differences in the acts or the conduct which is proscribed." People v. Roy, 723 P.2d 1345, 1349 (Colo.1986). In other words, "statutory classifications of crimes must be based on differences that are both real in fact and also reasonably related to the general purposes of the criminal legislation." People v. Stewart, 55 P.3d 107, 114 (Colo.2002).

B. Legislative Scheme

Section 18-18-404(1)(a) provides that any person who uses a controlled substance commits a class 5 felony if the substance is listed on schedule I or II. This section applies equally to all users of controlled substances, whether in a detention facility or not. If the court finds that a defendant charged under this statute is in need of treatment for substance abuse, it may suspend the proceedings and order the defendant into a treatment program. § 18-18-404(8). If the defendant successfully completes treatment and any other conditions imposed by the court, the court "shall discharge such person and dismiss any further proceedings against him." Id.

Section 18-18-404, however, explicitly excludes marihuana offenses. It proscribes the unlawful use of a controlled substance "[except as is otherwise provided for offenses concerning marihuana and marihuana concentrate in sections 18-18-406 and 18-18-406.5." These marihuana offenses impose different punishment than is imposed under section 18-18-404. For example, an individual convicted under section 18-18-406.5, unlawful use of marihuana in a detention facility, is guilty of only a class 6 felony. Although punishment for this offense is less severe than it would be were the individual convicted of a class 5 felony under section 18-18-404(1)(a), section 18-18-406.5 does not provide a treatment option. Thus, a defendant convicted under section 18-18-406.5 does not receive the opportunity to request treatment and have proceedings suspended-and possibly dismissed-if the court approves the request.

C. Section 18-18-406.5 Is Not Arbitrary or Irrational

Goodale argues that the disparate treatment under sections 18-18-404 and 18-18-406.5 does not withstand constitutional seru-tiny because it is not reasonably related to the general purposes of the legislation. He claims that the Colorado legislature enacted section 18-18-406.5 precisely to encourage inmates to enter treatment programs. He relies on legislative history of the statute to support this assertion, and maintains that the statute as enacted fails constitutional scrutiny because it lacks the treatment option. He further argues that use of a schedule I or II controlled substance under section 18-18-404 is a more serious crime than use of marihuana in a detention facility under section 18-18-406.5, and therefore punishing individuals more harshly for the less serious offense is irrational and violates equal protection. We disagree.

When construing a statute, a court's essential task is to determine and give effect to the intent of the legislature. People v. Zapotocky, 869 P.2d 1234, 1238 (Colo.1994). In order to achieve this task, we first examine the plain language of the statute itself. Id. If the statute is "clear and unambiguous," we must interpret it as written. Id. Only when the statute is unclear or ambiguous may we look beyond the words of the statute to legislative history or rules of statutory construction. Id.

As written, section 18-18-404 is clear and unambiguous in exempting section 18-18-406.5 from its provisions, including the treatment option. Thus, to ascertain the intent of the legislature in enacting 18-18-406.5, we need look no further than the text of both 18-18-406.5 and 18-18-404. In other words, the legislature explicitly intended that marihuana users not be given the treatment option provided for in section 18-18-404. As such, section 18-18-406.5 is directly related to the legislature's purpose of punishing those who use marihuana in a detention facility. See People v. Stewart, 55 P.3d 107, 118 (Colo.2002) (finding that the legislature's enactment of a vehicular assault statute, which covered conduct that might also be covered under the second degree assault statute, was "reasonably related to the legislature's purpose of punishing those who use weapons to cause injury"). Accordingly, the only issue for this court to consider is whether section 18-18-406.5 violates equal protection because it fails to provide a treatment option, thus creating an irrational scheme that results in a harsher sentence for someone convicted of a less serious crime.

Goodale bears the burden of demonstrating that the statute under which he was convicted relies on an arbitrary distinction not based upon real in fact differences. Stewart, 55 P.3d at 114; see also Chopman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). As such, he must show that no rational basis exists for the legislature to treat the use of marihuana differently than other controlled substances. Furthermore, "if any state of facts can reasonably be conceived that will justify the classification, the existence of these facts will be assumed by the courts in order to uphold the legislation." People v. McKenzie, 169 Colo. 521, 526, 458 P.2d 232, 234 (1969). Goodale fails to meet his burden.

Goodale's argument rests on the simple yet misleading presumption that because use of a schedule I or II controlled substance is a more serious crime than use of marihuana in a detention facility, any opportunity given to those charged with the more serious erime must also be given to those charged with the less serious crime. Such symmetry of punishment, however, is not required by our precedent. Indeed, we have said precisely the opposite: "The constitution does not demand symmetry of punishment where valid classifications, based on varieties of evils, exist." People v. Czajkowski, 193 Colo. 352, 356, 568 P.2d 23, 26 (1977).

By intentionally omitting marihuana from the treatment option available under section 18-18-404, the legislature explicitly chose to offer the treatment option only to those addicted to other substances. A review of our precedent demonstrates that such a classification has a rational basis based upon real in fact differences between the substances. In People v. Stark, 157 Colo. 59, 66, 400 P.2d 923, 927 (1965), we noted that differences between marihuana and other more dangerous drugs did not demand that the legislature treat marthuana differently. However, we later held that while the legislature was not obligated to treat marihuana differently, it was certainly within its power to do so. McKenzie, 169 Colo. at 526, 458 P.2d at 284. Thus, in McKenzie we upheld a statutory classification that resulted in harsher punishment for possession of marihuana than possession of drugs that were allegedly more dangerous to society. Similarly, in People v. Summit, 183 Colo. 421, 425-26, 517 P.2d 850, 852-53 (1974), we onee again upheld a classification that punished marihuana possession more harshly than possession of other, allegedly more dangerous, drugs. Lastly, in People v. Finnessey, 747 P.2d 673, 675 (Colo.1987), we found that "it was within the legislature's digeretion to punish marihuana conspiracies more severely than other conspira-cles."

As we declared in McKenzie, "if any state of facts can reasonably be conceived that will justify the classification, the existence of these facts will be assumed by the courts in order to uphold the legislation." 169 Colo. at 526, 458 P.2d at 284. Here, the legislature made the determination that those charged with possession of a controlled substance who suffer from addiction ought to receive the opportunity to receive treatment for that addiction in place of the criminal proceedings. It also determined that the treatment option should not be available to those charged with unlawful use of marihuana in a detention facility. Applying the rule of McKenzie as well as the precedent of Stark, Summit, and Finnessey, we cannot say that the action of the legislature regarding the availability of the treatment option was completely arbitrary or irrational.

Accordingly, we reverse the ruling of the trial court and remand the case for further proceedings not inconsistent with this opinion.

      . We have jurisdiction to consider this appeal pursuant to section 13-4-102(1)(b), 5 C.R.S. (2003) and section 16-12-102(1), 6 CRS. (2003).

      . A 2003 amendment to this statute now provides that such use is a class 6 felony. 18-18-404(1)(a)(I), 6 C.R.S. (2003).

      . The trial court did not differentiate between the Colorado and United States Constitutions in its ruling.

      . Such drugs include heroin and cocaine, among others. See, eg., § 6 C.R.S. (2003); § 18-18-204(2)(a)(IV), 6 C.R.S. (2003). If the substance is listed on schedule III, IV, or V, it is a class one misdemeanor. § 18-18-404(1)(b).

      . Section 18-18-406 enumerates "[olffenses relating to marihuana and marihuana concentrate" while 18-18-406.5 proscribes the "[ullawful use of marihuana in a detention facility."

      . Goodale notes that during legislative hearings, the Adams County District Attorney stated the legislation was intended to encourage inmates using marihuana to enter treatment by threatening conviction of a new felony offense. Goodale fails, however, to cite any similar statements made by legislators. Furthermore, Goodale fails to provide an explanation for why the statute as enacted does not include a treatment option.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerry Dale ROADCAP, Defendant-Appellant.
    No. 01CA0205.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.
    Rehearing Denied April 24, 2003.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

      David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Gerry Dale Roadcap, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder committed in the heat of passion and a crime of violence. He also appeals his sentence. We affirm.

Evidence was presented at trial that on the morning of August 29, 1999, defendant strangled his wife as she lay on the lawn of their rural trailer home. As the assault proceeded, neighbors called the police.

Subsequently, defendant carried his wife's body to her car and placed it in the driver's seat. Defendant eased himself on top of his wife's body and drove away. One of the neighbors followed defendant as he drove away and related the details of the trip to police. When defendant was apprehended, he exited the car from the passenger side, took a garden tool with him, and sereamed at the deputy sheriff to get help for his wife.

A forensic pathologist testified at trial that the wife's cause of death was asphyxia due to manual strangulation. He also testified that there was evidence of a variety of drugs in her system, including alcohol, cocaine, and marijuana.

The police investigation revealed that the wife had been involved in a romantic relationship with an inmate at a nearby federal penitentiary and was planning to visit him, accompanied by her infant daughter, on the day of her death. In the trailer, police found love letters from the inmate and answering machine tapes of two brief conversations between the wife and the inmate only minutes before the wife's death.

At trial, defendant testified that his wife was a substance abuser and had a volatile personality. According to defendant, she threatened to kill him and their baby that morning. He testified that as he picked up the baby and headed to the bedroom, his wife attacked him with an object, striking him on the right side of his head and knocking him to the floor. According to defendant, his wife hit him as he lay on the floor. At some point, defendant heard his infant daughter scream and thought his wife had turned her anger on the baby. Defendant, fearing for his safety, got up and forced his wife outside.

Defendant did not clearly recall what transpired after they exited the trailer. He testified that his wife was attempting to reach for a nearby garden tool and threatened to kill him and the child.

At trial, defendant asserted the affirmative defense of self-defense and defense of others. The jury found him guilty of second degree murder committed in the heat of passion and separately found that defendant had committed a crime of violence. The trial court sentenced defendant to twenty-seven years imprisonment in the Department of Corrections plus a period of mandatory parole. This appeal followed.

I. Mental Condition Statute

Defendant contends the trial court deprived him of his rights to present a defense and to effective assistance of counsel when it ruled that proposed expert testimony concerning the organic roots of his post-incident behavior triggered § 16-8-107(8)(b), which requires notice and compulsory examination when criminal defendants seek to introduce expert testimony relating to their mental conditions. We disagree.

Appellate courts review interpretations of statutes de novo. When construing statutes, a court's primary purpose is to ascertain and give effect to the intent of the General Assembly. People v. Robertson, 56 P.3d 121, 123 (Colo.App.2002).

"If courts can give effect to the ordinary meaning of words used by the legislature, the statute should be construed as written, giving full effect to the words chosen, as it is presumed that the General Assembly meant what it clearly said." State v. Nieto, 993 P.2d 493, 500 (Colo.2000). Courts should avoid statutory constructions that defeat the clear intent of the General Assembly. People v. District Court, 713 P.2d 918, 921 (Colo.1986).

The statute requiring notice and compulsory examination provides in pertinent part:

Regardless of whether a defendant enters a plea of not guilty by reason of insanity pursuant to section 16-8-103, the defendant shall not be permitted to introduce evidence in the nature of expert opinion concerning his or her mental condition without having first given notice to the court and the prosecution of his or her intent to introduce such evidence and without having undergone a court-ordered examination pursuant to section 16-8-106.

Section 16-8-107(8)(b).

Under a plain language analysis, the statute applies where a defendant seeks to "introduce evidence in the nature of expert opinion concerning his or her mental condition." The statute prohibits introduction of such evidence unless the defendant gives notice to the prosecution and undergoes a court-ordered evaluation. Section 16-8-107(8)(b).

Before trial, defendant gave the prosecution a witness list that included two experts. At a hearing on the prosecution's motion to strike, defendant argued that the proposed expert testimony related to an "organic disorder," rather than any mental condition, and would be presented only to explain his behavior after his wife was killed. Both proposed experts would testify that defendant was suffering from a "dissociative fugue." One expert also would testify that "(defendant's actions were a response of the limbic system, which is defined as a group of related nervous system structures within the mid-brain that are associated with various emotions and feelings such as anger, fear, sexual arousal, pleasure and sadness."

While defense counsel was careful to refer to the proposed testimony as relating to an organic condition, she agreed that defendant's alleged organic condition affected his mental state and his actions. Further, the condition, dissociative fugue, is listed as a mental fliness in the Diagnostic and Statistical Manual of Mental Disorders 523 (4th ed.2000).

The trial court thus properly ruled that the expert testimony related to defendant's mental condition and that defendant would have to comply with the provisions of § 16-8-1078)(b) if he wished to have the experts testify.

Defendant argues the trial court's ruling forced him to forgo calling his expert witnesses. We disagree. The court did not preclude this line of defense, but only required defendant to comply with the statute if he chose to pursue it.

In addition, defendant contends the mental condition statute does not apply to the expert testimony concerning his post-incident behavior submitted only to rebut unfavorable inferences drawn from res ges-tae evidence by the prosecution. Again, we disagree.

By its plain language, § 16-8-107(8)(b) is not limited to evidence of a defendant's condition during the offense, and it contains no exception for evidence of a post-incident condition. Had the General Assembly intended to include such an exception for expert testimony concerning a defendant's post-incident mental condition, it could have easily done so. The statute contains no language that limits its application to evidence of a defendant's mental condition during the commission of the offense.

Thus, we apply the statute as written and conclude it requires notice and compulsory examination when a defendant seeks to introduce evidence of a post-incident mental condition. See State v. Nieto, supra, 993 P.2d at 500.

Moreover, the events surrounding his wife's death and defendant's actions afterward were so intertwined that it would not have been feasible for the experts to limit their consideration to only defendant's post-incident behavior. In fact, contrary to his contention, one of his experts specifically indicated that defendant's dissociative fugue likely manifested itself during the early stages of the incident.

Defendant also contends that the trial court's ruling placed him in the constitutionally intolerable position of having to choose between his privilege against self-incrimination and his fundamental right to present a defense. We are not persuaded.

First, the trial court's ruling had at most a limited effect on defendant's ability to present his primary defense of self-defense and defense of others. The expert testimony was proposed only to refute the prosecution's anticipated showing that his post-incident conduct demonstrated his guilty knowledge.

Second, as the trial court pointed out, defendant could comply with the statute without waiving his privilege against self-incrimination by invoking the privilege during the court-ordered examination. See § 16-8-106(2)(a), C.R.S.2002.

Accordingly, the trial court did not err in ruling that the mental condition statute applied to defendant.

IIL. Jury Instruction

Defendant next contends the trial court deprived him of his due process right to a fair trial when it improperly instructed the jury on the initial aggressor exception to the defense of self-defense. More specifically, he asserts there was no evidence he was the initial aggressor. Again, we disagree.

It is the duty of the trial court to instruct the jury on all matters of law. When, as here, a defendant does not object to a jury instruction, a plain error standard applies. "[Rleversal under a plain error standard requires a defendant to 'demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to [the] conviction.'" People v. Garcia, 28 P.3d 340, 344 (Colo.2001)(quoting Bogdanov v. People, 941 P.2d 247, 255-56 (Colo.1997)).

Self-defense is an affirmative defense under which a defendant admits doing the act charged, but seeks to justify, excuse, or mitigate his or her conduct. See People v. Huckleberry, 768 P.2d 1235, 1238 (Colo.1989); People v. Whatley, 10 P.3d 668, 670 (Colo.App.2000). Generally, an initial aggressor is not entitled to assert self-defense. Idrogo v. People, 818 P.2d 752, 756 (Colo.1991); cf. § 18-1-704(8)(b), C.R.S.2002 (self-defense applicable where initial aggressor withdraws from the encounter and communicates his or her intent to do so and the other person continues to use force).

A defendant must initiate the physical conflict to be the initial aggressor. See People v. Beasley, 778 P.2d 304, 306 (Colo.App.1989). The trial court determines whether there is sufficient evidence to give an instruction concerning an exception to the asserted affirmative defense. People v. Silva, 987 P.2d 909, 915 (Colo.App.1999). A trial court should instruct the jury on a principle of law when there is some evidence to support the instruction. People v. Montoya, 928 P.2d 781, 783-84 (Colo.App.1996).

Here, in addition to instructing the jury on the use of deadly force in self-defense or defense of others, the trial court instructed the jury on the initial aggressor exception to self-defense; the instruction closely tracked the language of § 18-1-107(2)(a) and (8)(b), C.R.8.2002.

Contrary to defendant's contention, some evidence indicated that he was the initial aggressor. One of the neighbors who witnessed the incident testified that defendant came out of the house, walked toward the back of the house, and "maybe not a minute later" went back inside the house. "A couple of minutes later," the witness saw the victim running out of the house with defendant "running after her and he grabbed her." This evidence would indicate that defendant initiated the fight and that when he briefly went outside he could have grabbed a garden implement used to injure his wife.

Accordingly, we conclude it was not plain error to instruct the jury on the initial aggressor exception to self-defense.

III. Prosecutorial Misconduct

Defendant contends the prosecution's improper remarks during rebuttal argument were so unfairly prejudicial as to deprive him of his due process right to a fair trial. Defendant alleges five instances of improper rebuttal argument that suggested either he was lying or his defense was not asserted in good faith. We find no reversible error.

A prosecutor may argue the facts in evidence and reasonable inferences from those facts. People v. Williams, 996 P.2d 237, 243-44 (Colo.App.1999). Courts evaluate allegations of improper argument by a prosecutor in the context of the argument as a whole and in the light of the evidence presented. People v. Davalos, 30 P.3d 841, 844 (Colo.App.2001). A prosecutor has wide latitude to respond to a defendant's "opening salvos" in closing argument. People v. Vialpando, 804 P.2d 219, 225 (Colo.App.1990).

Statements by the prosecutor that denigrate defense counsel are improper and constitute professional misconduct. See People v. Jones, 832 P.2d 1036, 1038 (Colo.App.1991). It is also improper for a prosecutor to remark that defense counsel knows that the defendant's case is not meritorious. People v. Ramirez, 997 P.2d 1200, 1211 (Colo.App.1999), aff'd, 43 P.3d 611 (Colo.2001).

Defendant objects to two statements by the prosecutor that defendant and defense counsel were using a smoke sereen to divert the jury's attention from the garden tool. Although the reference to defense counsel was arguably inappropriate, see People v. Jones, supro, as a whole, the prosecutor's statements were fair comment on the evidence and responded to defense counsel's closing remarks about "red herrings." See People v. Vialpando, supra.

Defendant, for the first time on appeal, also objects to three other comments made by the prosecutor. First, defendant alleges the prosecutor improperly referred to going into defendant's "fantasy world." See-ond, defendant asserts the prosecutor improperly cast doubt on defendant's explanation about carrying his wife's purse to the car. Third, defendant maintains the prosecutor improperly used the word "pathetic" to describe defendant's explanation of how the garden tool was used. These statements were fair comment on the evidence, specifically, defendant's testimony about the events, and did not constitute error. See People v. Williams, supra.

Accordingly, we conclude that although one statement was arguably inappropriate, taken together, the statements did not deprive defendant of his right to a fair trial.

IV. Sentence

Defendant also contends the trial court erred in stating that it had considered the factors set forth in the probation statute before imposing sentence. We do not agree.

Sentencing is by nature discretionary. A trial court has broad discretion in sentencing because of its familiarity with the defendant and the facts of the case. A trial court's decision will not be reversed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234, 239 (Colo.1984). To constitute an abuse of discretion, a trial court's ruling must be manifestly arbitrary, unreasonable, or unfair. People v. Harris, 43 P.3d 221, 225 (Colo.2002).

"All relevant factors may be considered to determine which alternative is most appropriate to meet the sentencing goals and policies of deterrence, punishment, rehabilitation, and protection of the public." Adair v. People, 651 P.2d 389, 392 (Colo.1982); see § 18-1-102.5(1), C.R.S.2002. An appellate court must uphold a sentence that "is within the range required by law, is based on appropriate considerations as reflected in the record, and is factually supported by the cireumstances of the case." People v. Fuller, 791 P.2d 702, 708 (Colo.1990).

The statute delineating the criteria for granting probation allows the court to sentence a defendant to probation after considering the nature and cireumstances of the offense and the history and character of the defendant, unless the court determines that imprisonment would be a more appropriate sentence because of considerations such as the defendant's risk to commit another crime while on probation and his or her need for correctional treatment. Section 18-1.3-208(1)(a)-(e), C.R.S$.2002 (formerly § 16-11-208).

The probation statute thus requires the court to consider factors similar to those allowed under the sentencing statute. Compare § 18-1.3-208, C.R.9.2002 (criteria for granting probation), with § 18-1-102.5 (purpose of criminal code with respect to sentencing).

In imposing sentence, the trial court considered defendant's lack of prior eriminal history or history of violence and his stellar military career. However, the court also found defendant acted out of anger and jealousy and his actions had irreversible consequences. Defendant faced an aggravated sentencing range of ten to thirty-two years, see § 18-1.3-406, C.R.S.2002, and the trial court sentenced him to twenty-seven years plus a period of mandatory parole. Therefore, the trial court did not abuse its discretion in sentencing. See People v. Fuller, supra.

V. Crime of Violence

Finally, defendant contends the trial court erroneously permitted the jury to consider the crime of violence count after it found him guilty of second degree murder committed in the heat of passion and further erred in sentencing him pursuant to § 18-1.3-406. Once again, we disagree.

In People v. Martinez, 32 P.3d 582, 584 (Colo.App.2001), a division of this court held that "second degree murder is a per se crime of violence, even if committed in the heat of passion." See also People v. Darbe, 62 P.3d 1006, 2002 WL 927237 (Colo.App. No. 99CA2521, May 9, 2002)(same).

We find Martinez persuasive and follow it here. Defendant was convicted of second degree murder committed in the heat of passion. Thus, he was subject to crime of violence sentencing. Accordingly, we perceive no error.

The judgment and sentence are affirmed.

Judge CASEBOLT and Judge NIETO concur.


author: Judge GRAHAM.

text:
    Sam O. COLT and Richard Winternitz, as shareholders of Mt. Princeton Trout Club, Inc., Plaintiffs-Appellees, v. MT. PRINCETON TROUT CLUB, INC., a Colorado corporation; Lisa Riegel; Robert F. Delaney; and Forest L. Geisinger, Defendants-Appellants.
    No. 01CA2287.
    Colorado Court of Appeals, Div. I.
    Feb. 27, 2003.
    Certiorari Denied Nov. 3, 2003.

      John M. Cogswell Law Office, John M. Cogswell, Buena Vista, Colorado, for Plaintiffs-Appellees.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, for Defendant-Appellant Mt. Princeton Trout Club, Inc.
    James C. Duve, P.C., James C. Duve, Colorado Springs, Colorado, for Defendants-Appellants Lisa Riegel, Robert F. Delaney, and Forest L. Geisinger.

       Chief Justice MULLARKEY would grant as to the following issue:
      Whether the court of appeals erred in ruling that corporate conduct that affects all shareholders in a similar manner is an "oppressive" act that justifies dissolution of the corporation.

   Opinion by

Judge GRAHAM.

Defendants, Mt. Princeton Trout Club, Inc. (MPTC), Lisa Riegel, Robert F. Delaney, and Forest L. Geisinger, appeal the entry of judgment in favor of plaintiffs, Sam O. Colt and Richard Winternitz, after a bench trial on their derivative claim seeking dissolution of MPTC and a receivership. We affirm.

MPTC, a closely held corporation, was formed in 1965 to own land and water rights in Chaffee County and to provide fishing and other recreational benefits to its shareholders. MPTC's articles of incorporation provide for a panoply of other purposes, including future sale of the corporation's land.

MPTC's authorized capital consists of eight shares of a single class of common stock of $100 par value with full voting rights. Shares issued are nonassessable and subject to such reasonable transfer restrictions as may be imposed by the board of directors, although none have been imposed. There are no preemptive rights, and cumulative voting is prohibited. There are no bylaws.

Colt and Robert A. Green were original shareholders, and Winternitz bought his share in 1977. The current eight shareholders of MPTC are Delaney, Colt, Geisinger, Winternitz, James B. Isaac, Rosalie Bittner, Riegel (Green's daughter), and Gordon & Gordon. Defendants Delaney and Geisinger are MPTC's president and secretary, in addition to serving as directors and officers of another company owned by Green.

Under the articles of incorporation, the shareholders are the directors of MPTC. However, a recent biennial report filed with the secretary of state was signed by Green, purportedly as the president of MPTC, and lists Green, Delaney, and Geisinger as directors.

Although Green ceased owning shares in 1996, he acquired five proxies by purchasing shares and then reselling them under written agreements that allowed him to retain voting rights to those shares. Green, who sold his own share but retained the voting rights, votes the shares of Riegel, Bittner, Delaney, Winternitz, and Isaac. Colt, Geisinger, and Gordon & Gordon vote their own shares.

In 1998, a resolution of the corporation was adopted that assessed each share an annual amount of $1,300 to pay 12.5% of the total for property taxes, physical maintenance of the property, and the cost of restocking the lake with fish. Some of the shareholders paid their assessments on time; others did not. When there was insufficient money in MPTC's account, property taxes were not timely paid, and the resultant penalties were assessed equally among the shareholders.

Also in 1998, Green mistakenly informed the shareholders that his company accidentally had taken water rights away from MPTC. According to plaintiffs, this information prompted them to investigate and ultimately assert their claims.

'and damages. In 2000, plaintiffs brought a derivative claim against, as relevant here, (1) the corporation for dissolution and receivership under § 7-114-301(2)(b), C.R.98.2002, for illegal, oppressive, and fraudulent activities and corporate waste; and (2) Green for an accounting Plaintiffs alleged that Green violated his duties to the corporation by failing to account to the shareholders for the assets and finances of MPTC and that he made distributions to himself in violation of § 7-108-408, C.R.S.2002, for the amount of which he was personally liable to the corporation.

The trial court found: (1) the officers of MPTC failed to file federal tax returns; (2) the officers and directors failed to collect, in a timely fashion, shareholder assessments to the detriment of MPTC; (8) leases and contracts were entered into without notice to the shareholders and without a formal meeting of the officers, directors, or shareholders; (4) funds of the corporation were not properly accounted for; (5) minutes of corporate meetings inexplicably were missing or withheld from shareholders; (6) an officer of the corporation entered into agreements listing corporate property for sale without authorization or resolution of the corporation; and (7) there existed a "consistent undercurrent of dealing corporate interests without notice to the shareholders and all directors."

The trial court concluded that MPTC had breached its fiduciary duty to all its shareholders and had acted in an oppressive manner. The trial court thus ordered dissolution of the corporation and appointed a receiver. The court did not enter judgment against Green, and plaintiffs do not appeal that decision.

I.

MPTC first contends that, although plaintiffs did not assert a claim for breach of fiduciary duty, the trial court nevertheless erroneously concluded that a breach of fidu-clary duty amounted to per se oppression and justified dissolution under § 7-114-301(2)(b). We agree with the trial court that conduct constituting breach of fiduciary duty can also amount to oppression.

A corporation may be dissolved judicially in a proceeding brought by a shareholder if "Itlhe directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, or fraudulent." Section 7-114-301(2)(b).

The definition of oppressive conduct is intended to be broad and flexible. "In the context of a close corporation, oppressive conduct of those in control is closely related to breach of the fiduciary duty owed to minority shareholders." Polk v. Hergert Land & Cattle Co., 5 P.3d 402, 404-05 (Colo.App.2000). Breach of fiduciary duty may be evidence of oppressive conduct that could justify the judicial dissolution of a corporation. Polk v. Hergert Land & Cattle Co., supra.

Although the General Assembly has not defined the term "oppressive" for the purposes of § 7-114-301(2)(b), the division in Polk held that, for the purposes of this statute, oppressive conduct is generally defined as:

[Blurdensome, harsh and wrongful conduct; a lack of probity and fair dealing in the affairs of the company to the prejudice of some of its members; or a ... departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely.

Polk v. Hergert Land & Cattle Co., supra, 5 P.3d at 404 (quoting Jorgensen v. Water Works, Inc., 218 Wis.2d 761, 582 N.W.2d 98, 107 (Wis.Ct.App.1998)). Here, in support of its dissolution order, the court specifically found that "MPTC ... breached its fiduciary duty to all of its shareholders. It has acted in an oppressive manner."

Contrary to MPTC's contention, the court did not state that the breach of fiduciary duty was the exclusive basis for finding oppression. The judgment reflects the holding announced in Polk that, in a closely held corporation, oppressive conduct is often related to a breach of fiduciary duty, and evidence of a breach of fiduciary duty may be considered as evidence of oppressive conduct.

The court did not necessarily limit its finding of oppression to breaches of fiduciary duty because it also determined as a general matter that "there has been a consistent undercurrent of dealing corporate interests without notice to the shareholders and all directors." Self-dealing and failure to comply with rules of corporate governance include, of necessity, elements of unlawful conduct that are not exclusively proscribed by duties of loyalty and good faith.

Here, the record amply supports the trial court's finding, which we will not disturb on appeal absent an abuse of discretion. See E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18 (Colo.2000).

The record establishes that Green opened the corporate checking account in his own name rather than in the corporation's name and was the sole signatory. Green failed to advise the shareholders about offers from potential purchasers and did not actively pursue these offers. Green reserved an option in one sales contract to buy back five acres for $1000 and did not disclose this self-dealing because, "Iilf the group got 3.5 million . anything I did, took after that with the buyer, was between me and the buyer." Furthermore, Green frequently claimed he had the right to vote the majority of the shares even though he owned no shares. Although the record is not particularly clear regarding the status or validity of proxies held by Green, it appears that the shareholders acknowledged Green's voting power.

These acts and those described in part II of this opinion, might be properly characterized as illegal, oppressive, or fraudulent. That they also amount to breaches of fiduciary duty does not undermine the justification for dissolution.

We therefore conclude that for reasons enunciated by the trial court and clearly established in the record, the court did not adopt a per se rule that breach of fiduciary duty constitutes oppression. As discussed in part II, the facts on which it relied established the showing necessary to warrant dissolution under § 7-114-8301(2)(b).

IL.

MPTC next contends that the evidence was insufficient as a matter of law to support the trial court's findings that it acted in an oppressive manner so as to justify dissolution of the corporation. We disagree.

Findings of fact are generally reviewed under a clear error or abuse of discretion standard, and conclusions of law are generally reviewed de novo. E-470 Pub. Highway Auth. v. 455 Co., supra. Whether a breach of a fiduciary duty has occurred is a question of fact and, thus, is a matter for the trial court to resolve. Rupert v. Clayton Brokerage Co. of St. Louis, Inc., 737 P.2d 1106 (Colo.1987).

We review the trial court's resolution of conflicting evidence under a highly deferential standard. Determinations of the eredi-bility of witnesses and the weight to be afforded the evidence are issues within the sound discretion of the trial court as the trier of fact. We must accept its findings on review unless they are so clearly erroneous as not to find support in the record. Bainbridge, Inc. v. Bd. of County Comm'rs, 53 P.3d 646 (Colo.App.2001).

Assessing whether shareholder oppression exists requires consideration of the reasonable expectations of minority shareholders, and as previously mentioned, particularly in the case of closely held corporations, we may look at breaches of fiduciary duty to measure the type and degree of oppressive conduct. See Polk v. Hergert Land & Cattle Co., supra.

The officers, directors, and controlling shareholders of a corporation have a fiduciary duty to act in good faith and in a manner they reasonably believe to be in the best interests of the corporation and all its shareholders. Michaelson v. Michaelson, 939 P.2d 835 (Colo.1997).

In a closely held corporation, the relationship between directors and shareholders is akin to a relationship among partners. Directors owe the highest degree of loyalty and trust to the other shareholders, are required to exercise good faith, and may not use their power to harm the other shareholders. Pueblo Bancorp. v. Lindos, Inc., 37 P.3d 492 (Colo.App.2001), aff'd, 63 P.3d 353 (Colo.2003).

Reasonable expectations obviously include the expectation that management will follow the law and promote the purpose of the corporation. Other jurisdictions have held that a shareholder who reasonably expects that ownership in the corporation would entitle him or her to a job, a share of corporate earnings, a place in corporate management, or some other form of security, would be oppressed if the majority defeats those expectations and there exists no effective means of salvaging the investment. In re Kemp & Beatley, Inc., 64 N.Y.2d 63, 484 N.Y.S.2d 799, 473 N.E.2d 1173 (1984); see also Landstrom v. Shaver, 561 N.W.2d 1 (S.D.1997).

"[Olppression should be deemed to arise only when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the cireumstances and were central to the [plaintiff's] decision to join the venture." In re Kemp & Beatley, Inc., supra, 64 N.Y.2d at 73, 484 N.Y.S.2d 799, 473 N.E.2d at 1179 (quoted in Polk v. Hergert Land & Cattle Co., supra, 5 P.3d at 404).

Evidence presented at trial established that implicit in the formation of MPTC was the idea that the shareholders could pursue their fishing hobby with reasonable and unfettered access to the land and reap the rewards of appreciation when the land was ultimately sold. The shareholders also reasonably could expect that the corporation would be managed in a proper manner for their mutual benefit.

The record includes ample evidence to support the finding that MPTC defeated the reasonable expectations of the shareholders and therefore acted in an oppressive manner.

The evidence is clear that, when shareholder assessments were not collected on time, MPTC was not able to pay its property taxes. Over the past ten years; delinquent interest on property taxes aggregated as high as $10,000.

Leases and contracts also were entered into without notice and without a formal meeting of the officers, directors, or shareholders. The articles of incorporation state that MPTC may not sell, lease, mortgage, or otherwise dispose of "any of the property and assets of the corporation" without a majority vote of the whole board of directors.

In 1974, the then president of MPTC wrote to the shareholders advising them that Geisinger had proposed to lease the lodge on MPTC's property. Although at least two of the shareholders strongly objected to the proposal, Green approved a lease with Geis-inger for $100 per month. Geisinger's attorney drafted the lease, which was never reviewed by MPTC's attorney. The renewal of Geisinger's lease from 1994 to 2004 was never approved by the shareholders. It appears that Geisinger continues to lease the lodge for $100 per month, although he actually pays less.

The result of the Geisinger lease is that no shareholder can use the lodge without Geis-inger's permission. Winternitz and Delaney learned about the lease when they tried to use the lodge and were told it was leased. Winternitz testified that he was forced to pay Geisinger $40 per month to sublease the lodge in which he had an interest.

It is also undisputed that, although Colt and Geisinger pay MPTC monthly lease payments, MPTC has never filed income tax returns. This rental income obligated the corporation to file income tax returns, and failure to do so could result in civil and criminal penalties.

In accordance with the Colorado Business Corporations Act, the shareholders reasonably could presume, whether or not they were entitled to vote, that they would receive fair value for their shares if there were a sale of all or substantially all of the corporation's property and that they would be informed of the sale. Section 7-113-102, C.R.S.2002. It logically follows that the shareholders reasonably can expect to be informed of all listings and have a right to expect that offers to purchase will be pursued and negotiated in good faith.

It is doubtful that any shareholder reasonably expected MPTC would be controlled by a nonshareholder, who had misrepresented that he was a director, had acquired several irrevocable proxies, and, in the absence of formal bylaws, had the self-declared right to control, directly or indirectly, every aspect of corporate finance and governance.

Here, the primary reason for corporate existence has disappeared. MPTC no longer serves the interests of all the shareholders, and under this and other cireumstances enumerated in the record, a sufficient showing was made to justify dissolution.

The judgment is affirmed.

Judge JONES and Judge VOGT concur.