author: Judge PLANK.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason T. NORTON, Defendant-Appellant.
    No. 00CA0352.
    Colorado Court of Appeals, Div. II.
    Dec. 20, 2001.
    Rehearing Denied Jan. 17, 2002.
    Certiorari Granted June 24, 2002.
    Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Christopher H. Gehring, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge PLANK.

Defendant, Jason T. Norton, appeals the judgment denying presentence confinement credit on the sentence imposed following his plea of guilty to attempted escape. We reverse in part, vacate in part, and remand for correction of the mittimus and an award of presentence confinement eredit.

Following 1997 convictions for criminal trespass and vehicular eluding, defendant was sentenced to two consecutive two-year prison terms. In July 1998, defendant was placed on mandatory parole. In early September 1999, defendant left his area of confinement without notifying his parole officer. Consequently, defendant was charged with escape. Bond in the amount of $10,000 was set, and a parole hold was placed on defendant. In January 2000, defendant agreed to plead guilty to attempted escape in exchange for a stipulated sentence of eighteen months in the Department of Corrections, to be served consecutively to the previous sentences for which he had been on parole. The trial court accepted the plea. Defendant's parole on the previous charges was not revoked during this time.

In mid-November 1999, defendant made his first appearance on the escape charge and remained incarcerated from that time until January 24, 2000, when the court imposed the eighteen-month sentence (approximately sixty-nine days). Defendant requested presentence confinement credit against the sighteen-month attempted escape sentence. The prosecution opposed the request. After a sentencing hearing, the trial court sentenced defendant to eighteen months and refused to award him any presentence confinement credit.

e

Defendant contends that the trial court erred in refusing to apply presentence confinement credit to his sentence for attempted escape. We agree.

Where possible, a court must construe statutes harmoniously and avoid interpretations that result in inconsistency. Riley v. People, 828 P.2d 254 (Colo.1992). Any doubt regarding the construction of a penal statute must be resolved in the defendant's favor. People v. Hale, 654 P.2d 849 (Colo.1982).

Credit for presentence confinement is governed by § 16-11-3806, C.R.S.2001, which provides in pertinent part:

A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his sentence for the entire period of such confinement.... If a defendant is serving a sentence or is on parole for a previous offense when he commits a new offense and he continues to serve the sentence for the previous offense while charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense.

Once paroled, a mandatory parolee has discharged his prison sentence as a matter of law. Section 18-1-105(1)(a)(V)(D), CRS. 2001. However, the mandatory parole period is a component of an offender's sentence. Craig v. People, 986 P.2d 951 (Colo.1999).

When a parolee is returned to custody, the time between his or her release and return to custody is not considered part of the term of the sentence. Section 17-22.5-208(1), C.R.S.2001. "Return to custody" means the time at which parole is revoked, not the time at which the defendant is rein-carcerated. Wiedemer v. People, 784 P.2d 739 (Colo.1989).

For a defendant to be given credit for presentence confinement, that confinement must be a result of the same transaction for which he or she is to be sentenced. People v. Saiz, 660 P.2d 2 (Colo.App.1982). Time spent incarcerated prior to parole revocation should be credited to the new offense, and not the sentence for which the defendant was on parole. See Wiedemer v. People, supra.

In Wiedemer, the defendant was convicted of charges that occurred while he was on parole. The defendant was incarcerated while the new charges were pending, but his parole was not revoked for more than one month. The supreme court relied on § 17-22.5-208(1), C.R.S.2001, and the Department of Corrections' interpretation that "return to custody" occurs when parole is revoked, to conclude that the time spent incarcerated prior to parole revocation should be credited to the new offense. Wiedemer v. People, supra.

Here, defendant was incarcerated pursuant to an arrest warrant on the escape charge. Defendant remained incarcerated from the date of his first appearance until he was sentenced on the new offense. Defendant's parole was not revoked at any time prior to the January 24, 2000 sentencing on the attempted escape charge. Thus, defendant was not "returned to custody" for the previous offenses for which he was on parole. Until such time as defendant's parole was revoked and he resumed service on the previous offenses, the pending attempted escape charge was the substantial cause of defendant's incarceration. Hence, defendant's confinement was a direct result of the same transaction from which the eighteen-month attempted escape sentence flowed.

Additionally, by operation of statute, any time defendant spent incarcerated prior to actual revocation of his parole is not considered part of the term of his sentences on his previous offenses. See § 17-22.5-208(1). Accordingly, prior to parole revocation, defendant could not, for purposes of § 16-11-306, be deemed to have been serving his sentences on the previous offenses during the time he was incarcerated.

We are aware that another division of this court reached an opposite result on this issue in People v. Hays, 817 P.2d 546 (Colo.App.1991). However, review of that decision reveals that the division did not consider Wiedemer v. People, supra, or the interplay between §§ 16-11-3806 and 17-22.5-208(2).

When construed together, §§ 16-11-8306 and 17-22.5-208 create ambiguity as to where the required presentence confinement credit should attach. By statute, defendant is entitled to credit for the time spent in confinement. See Section 16-11-8306. Notwithstanding the § 16-11-806 requirement that such eredit be applied toward previous sentences that the defendant continues to serve, § 17-22.5-203 bars credit from being applied for time spent incarcerated prior to parole revocation.

We are mindful of the principles of statutory construction that require us to attempt to harmonize the two statutes and resolve any ambiguity in defendant's favor. Therefore, we conclude that because § 17-22.5-203 excludes confinement time between release and revocation from a parolee's sentence, defendant cannot be considered to have been continuing to serve his sentence for the previous offenses. Accordingly, presentence confinement credit must attach to the attempted escape sentence for the time defendant was incarcerated.

IL

Defendant also contends that the mittimus erroneously reflects that he pled guilty to escape, a class three felony, rather than attempt to commit escape, a class five felony. We agree, and the People concede the point.

The judgment denying presentence confinement credit against the attempted escape conviction is reversed, and the case is remanded with instructions to calculate presen-tence confinement eredit in accordance with this opinion. The judgment of conviction for the crime of escape reflected on the mittimus is vacated, and the case is remanded with directions to enter judgment and sentence on a conviction for attempted escape and to issue a corrected mittimus.

Chief Judge HUME and Judge CASEBOLT concur.


source: Caselaw Access Project

author: Judge METZGER. -

license: Public Domain

text:
    Dora F. CORNFORTH, Plaintiff-Appellee, v. Pete LARSEN and Larsen Surveying, Defendants-Appellants.
    No. 01CA0554.
    Colorado Court of Appeals, Div. I.
    Jan. 17, 2002.
    Certiorari Denied July 1, 2002.

      Margaret L. Carey, Montrose, CO, for Plaintiff-Appellee.
    Woodrow & Roushar, Victor T. Roushar, Montrose, CO, for Defendants-Appellants.
   Opinion by

Judge METZGER. -

Defendants, Pete Larsen and Larsen Surveying, appeal the judgment entered after trial to the court in favor of plaintiff, Dora F. Cornforth. We affirm.

Plaintiff engaged defendants to survey a 600-acre tract of land in San Miguel County and to prepare a subdivision plat for lots of approximately 85 acres each. Relying on monuments from a 1974 survey and using a 1981 survey based to some extent on the 1974 survey, Larsen, a licensed Colorado surveyor, completed the survey in October 1983.

In 1985, the 1974 survey on which Larsen had relied was corrected by the original surveyor. The trial court found plaintiff was aware of this correction, but also found no evidence had been presented to show she had any reason to question it or to know it would impact her later sale of the subdivision.

Between October 1988 and February 1992, plaintiff sold a few individual lots, and then in February 1992, she sold the remaining subdivision property to a partnership. In the fall of 1995, plaintiff, the partnership, and Larsen learned the 1988 survey was defective. Plaintiff and the partnership engaged in litigation as a result, but settled their dispute in September 1997.

In April 1998, plaintiff filed this action against defendants, alleging claims for breach of contract and negligence. Defendants moved for summary judgment, asserting plaintiff's claims were barred by the ten-year statute of repose in § 18-80-105(1), C.R.8.2001. Concluding that the statute did not apply to the facts here, the trial court denied the motion. After trial to the court, plaintiff was awarded damages of $27,888.67, plus interest and costs.

Defendants contend a civil action seeking damages filed in 1998 as a result of a defective survey completed in 1983 is barred by the ten-year statute of repose in § 18-80-105(1). Therefore, they argue, plaintiff's claims were barred as a matter of law, and the trial court erred in ruling to the contrary. We disagree.

Section 13-80-105, C.R.S.2001, limits actions against land surveyors and provides, as relevant here:

(1) Notwithstanding any statutory provision to the contrary, all actions against any land surveyor brought to recover damages resulting from any alleged negligent or defective land survey shall be brought within the time provided in section 13-80-101 after the person bringing the action ' either discovered or in the exercise of reasonable diligence and concern should have discovered the negligence or defect which gave rise to such action, and not thereafter, but in no case shall such an action be brought more than ten years after the completion of the survey upon which such action is based.
(3)(a) The limitations set forth in sub- ' section (1) ... of this section shall not apply to any survey unless the documentary evidence of such land survey contains, clearly depicted thereon, the following © statement:
"NOTICE: According to Colorado law, you must commence any legal action based upon any defect in this survey within three years after you first discover such defect. In no event may any action based upon any defect in this survey be commenced more than ten years from the date of the certification shown hereon." (emphasis in original)

This statute was originally enacted in 1979, Colo. Sess. Laws 1979, ch. 145, § 18-80-127.8 at 688-34, and, for purposes of the issues raised here, the current version is substantially the same as the version in effect in 1983 when defendants completed the survey.

The interpretation of a statute is a question of law, which we review de novo. See Watson v. Vouga Reservoir Ass'n, 969 P.2d 815 (Colo.App.1998).

When construing a statute, we must determine and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain language of a statute. If we can give full effect to the ordinary meaning of the words used, we construe the statute as written, because we presume the General Assembly meant what it clearly said. See State v. Nieto, 993 P.2d 493 (Colo.2000). We also presume the General Assembly intends a just and reasonable result. A statutory construction that leads to absurd results will not be followed. See City of Ouray v. Olin, 761 P.2d 784 (Colo.1988).

Statutes of repose set a date after which a claim may be barred whether or not an injury has been discovered previously. Such statutes begin to run on the date of the act or omission giving rise to the injury. In contrast, statutes of limitation run from the date the injury was discovered or should have been discovered. The purpose of a statute of repose is to prevent the assertion of stale claims and to reduce the so-called "long tail" of liability created by the discovery rule. See Comstock v. Collier, 737 P.2d 845 (Colo.1987).

Larsen performed his survey in 19883. It is undisputed the survey was defective. It is also undisputed the survey did not contain the statutory notice provided for in § 18-80-105(8)(a), C.R.S.2001.

In denying defendants' motion for summary judgment, the trial court determined § 13-80-105(8)(a) controlled over § 18-80-105(1), reasoning:

[ UInder the plain language of the statute, in order for the ten-year statute of repose to apply, the survey has to contain the notice. Since it is undisputed that the survey did not contain the notice, the ten-year statute of repose has no application. Without express direction from the legislature, the Court is unwilling to read into the statute an automatic ten-year period of repose....

We agree with the trial court's interpretation.

Because defendants' remaining contentions were raised for the first time in their reply brief, we may not address them. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

The judgment is affirmed.

Judge NEY and Judge TAUBMAN concur.


author: Judge RULAND.

text:
    Byron C. FIELDER, Plaintiff-Appellee, v. ACADEMY RIDING STABLES, Defendant-Appellant.
    No. 00CA2168.
    Colorado Court of Appeals, Div. IV.
    Feb. 28, 2002.
    Certiorari Denied June 24, 2002.

    Warren & Mundt, P.C., Robert B. Warren, Colorado Springs, Colorado, for Plaintiff-Ap-pellee.

      Retherford, Mullen, Johnson & Bruce, LLC, Anthony A. Johnson, Colorado Springs, Colorado, for Defendant-Appellant.
    The Johnson Law Firm, Peter M. Johnson, Andrew R. Johnson, Denver, Colorado, for Amicus Curiae Colorado Horse Council, Inc.

       Justice KOURLIS and Justice RICE would grant as to the following issues:
      Did the Court of Appeals exceed its Junsdlctlon and err in judicially creating an exception to the exemption from liability conferred upon by the express provision of C.R.S. § 13-21-119?
      Did the Court of Appeals err in holding that the injuries to Respondent were not caused by "in- « herent risks" of equine activity and thereby holding contrary to the specific factual findings of the District Court, which findings were supported by the record?

   Opinion by

Judge RULAND.

In this action to recover damages for personal injuries, defendant, Academy Riding Stables, appeals from the judgment entered in favor of plaintiff, Byron C. Fielder, We affirm.

The relevant facts are not in dispute. Plaintiff was one of eighteen persons who rented horses from defendant to ride horseback on a guided tour. An eleven-year-old girl was among those participating in the tour.

Before the ride began, all the participants reviewed a form that included the rules and regulations governing the guided tour. On the form, the participants also indicated their level of experience with horses. In the young girl's case, her father completed the form and indicated that she had no experience riding horseback. Defendant's employees properly matched the young girl to a horsé that had been ridden on numerous occasions by inexperienced young children.

About one-third of the way through the two-hour ride, the young girl began to seream. Eventually, the screaming spooked her horse, and the horse bolted forward into plaintiffs horse. Plaintiff's horse reared, throwing plaintiff to the ground and injuring him.

, Trial was to the court. Defendant argued that it was immune from liability because plaintiff's injury resulted from an inherent risk of equine activity as defined in § 18-21-119(2)(f), C.R.S.2001. In response, plaintiff asserted that defendant's negligence fit within an exception to the statutory immunity because defendant failed properly to supervise the girl when she began screaming.

Initially, the trial court found that plaintiff's injuries were a direct result of the "inherent risks of equine activities" within the meaning of $ 18-21-119(@2)(F). However, it also determined that defendant's negli-genee fit within the exeeption to the statute. Specifically, the court found that while defendant had properly matched the girl to a horse initially based on her father's representations, defendant owed a continuing duty under the statute to remove the child from the horse if cireumstances changed and the match between horse and rider was no longer suitable.

On appeal, defendant contends that the trial court erred in its interpretation of the statute. However, we reach the same conclusion as did the trial court, but for somewhat different reasons.

Interpretation of a statute presents a question of law. Therefore, the trial court's determination is subject to independent review by the appellate court. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). The primary goal in determining the meaning of a statute is to ascertain and give effect to the legislative intent by construing the words of the statute according to their plain and ordinary meaning. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo.1995).

Here, because the state and its citizens derive economic and personal benefits from "equine activities," the General Assembly adopted § 18-21-119(1), C.R.S.2001, to grant immunity to persons and entities involved in "equine activities" from liability for injuries that result from certain "inherent risks of equine activities." Section 13-21-119(8), C.R.S8.2001; see also Culver v. Samuels, 37 P.3d 535 (Colo.App.2001). However, the immunity statute is inconsistent with the former duties of an equine professional under the common law. Shandy v. Sombrero Ranches, Inc., 525 P2d 487 (Colo.App.1974)(not selected for official publication)(discussing duties of a wrangler when a rider is unable to control a horse). Hence, we must apply a strict construction to that grant of immunity. See Walton v. State, 968 P.2d 636 (Colo.1998).

Included within the inherent risks of equine activities are "[the unpredictability of the animal's reaction to ... sounds," "[ejolli-sions with other animals," and "[the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal." Section 13-21-119(2)(F)(IT), (IV), (V), C.R.8.2001.

There are, however, statutory exeeptions to the general grant of immunity. One such exception applies if the equine professional fails to make reasonable efforts to determine the ability of the participant to safely manage the particular animal based on the participant's representations of his or her ability. Section 18-21-119(4)(b)(I)(B), C.R.98.2001.

In this case, the trial court found with record support that defendant fulfilled its obligation under the statute initially by matching the young girl with a horse that had been used successfully with inexperienced riders. However, the court also found:

It's uncontradicted that by immediately or shortly after the ride started, [the young girl] began screaming intermittently, if not constantly in terror. And that's important to the ruling because she was not screaming for any one of a number of other reasons which might not have alerted a reasonable and prudent person to the conclusion that she should be taken off that horse.
Notwithstanding the fact that there were two or three wranglers on the ride, none of them recognized what a reasonable and prudent person in the same or similar cireuwmstances should have, and that is that [the young girl] was terrified of riding any horse, the entire experience of riding a horse. She was allowed to continue riding to a point where her screaming spooked [the horse] ... causing [the horse] to bolt into the rear of the Plaintiff's horse causing that horse to rear and to throw him. But for the negligence of the Defendant's agents on the ride, negligence which was within the seope of that continuing duty which is set out by the statute, the Plaintiff's injury would not have been incurred. (emphasis supplied)

~ Even if we assume, as defendant argues, that the trial court erred in imposing a continuing duty after the rider and horse were properly matched, we must still determine whether defendant is granted immunity under the statute for the negligent failure of the wranglers to remove the child from the horse despite an obvious danger.

After defining the inherent risk of equine activity, the statute, in § 18-21-119(8) provides in relevant part: ~

Except as provided in subsection (4) of this section, . an equine professional ... shall not be liable for an injury to ... a participant resulting from the inherent risks of equine activities .... (emphasis supplied) _

Thus, the immunity granted in the statute is limited to injuries resulting from the inherent risks of equine activities. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo.1998)(noting that liability under the Act is not limited if injury to the participant results from "non-inherent" or other risks). Here, the accident was not directly caused by such an inherent risk. Instead, the direct cause was the negligence of the wranglers in failing to remove the child from the horse before it bolted.

We find further support for this interpretation based upon the analysis in Graven v. Vail Assocs., Inc., 909 P.2d 514 (Colo.1995), and apply it here.

In Graven, the plaintiff was injured in an accident on the ski slope. The court was required to interpret certain 1990 amendments to the Ski Safety Act adopting exceptions from liability of ski operators for the "inherent dangers and risks of skiing." "Inherent dangers and risks of skiing" are defined in the Act as including "those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change[; and] surface or subsurface conditions." Section 38-44-108(8.5), C.R.S. 2001.

In addressing this section of the statute, the court stated, among other things:

[ Wlhen interpreting a statute, we must read and interpret the language "so as to give consistent, harmonious and sensible effect to all of its parts." The dangers and risks detailed in section 88-44-108(8.5) are intended to describe those "which are an integral part of the sport of skiing." The detailed listing of dangers and risks must be read with that intent and Emitation in mind.

Graven v. Vail Assocs., Inc., supra, 909 P.2d at 519 (second emphasis supplied; citation omitted).

Here, as discussed, there is no provision granting immunity for the negligence of defendant's wranglers in failing to protect the participants from an obvious danger of which they have ample notice.

Accordingly, applying the analysis in Graven, we read "inherent risks of equine activity" as a limitation on the types of activity for which immunity is granted. We conclude that the negligence of the wranglers here is not among such "inherent risks." We further conclude that this interpretation represents a strict construction of the grant of immunity, as is required.

As a result, we determine that the trial court reached the correct result.

The judgment is affirmed.

Judge DAVIDSON and Judge DAILEY concur.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.$.2001.