author: Opinion by JUDGE HAWTHORNE

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher Allen JOMPP, Defendant-Appellant.
    Court of Appeals No. 15CA0868
    Colorado Court of Appeals, Division V.
    Announced September 6, 2018
    Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Megan A. Ring, Colorado State Public Defender, Sean J. Lacefield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by JUDGE HAWTHORNE

¶ 1 Defendant, Christopher Allen Jompp, appeals the judgment of conviction entered on jury verdicts finding him guilty of third degree assault, robbery, and escape. He also appeals his sentence. We affirm the judgment, but we vacate his sentence on the escape conviction and remand the case for resentencing on that conviction. We affirm the remainder of the sentence.

I. Factual Background and Procedural History

¶ 2 Jompp, the victim, and an acquaintance, B.B., were driving around one evening in a stolen car while high on methamphetamine. During the night they stopped at two apartments to use more methamphetamine. Another acquaintance, C.P., who was also high, left with the group from the second apartment. The four continued to drive around town, with the victim driving, Jompp in the passenger seat, and B.B. and C.P. sitting in the back. Tension arose between the victim and Jompp. The victim had propositioned B.B. and C.P. numerous times for sex in return for money and drugs, and Jompp asked him to stop.

¶ 3 Eventually the victim parked the car near one of the apartments they had visited earlier. What happened next isn't clear, but by all accounts a fight broke out between Jompp and the victim. When the fight ended, the victim fell out of the driver's side door unconscious.

¶ 4 C.P. recalled that B.B. then got out of the car and hit and kicked the victim while he was on the ground. B.B. said, however, that she remained in the car and saw C.P. go over to the victim. C.P. admitted that at some point after the victim was unconscious on the ground, at Jompp's direction, she went through the victim's pockets, took money from him, and gave it to Jompp. B.B. also took the victim's cell phone from the backseat.

¶ 5 Jompp, B.B., and C.P. left the victim on the ground and dropped the car off in an alley. Around four o'clock that morning a security guard noticed the victim still on the ground and called the police. An ambulance took him to the emergency room where he was diagnosed with multiple serious head injuries.

¶ 6 The police traced the victim's cell phone to B.B., who identified Jompp as the victim's assailant. Days after the victim was injured, the police found Jompp and C.P. The police ordered Jompp to the ground, handcuffed him, and searched him. One officer led Jompp to a police car to take him to jail. As the officer was about to place Jompp in the police car's back seat, Jompp took off running. After a short chase, the police caught Jompp and he was taken to jail.

¶ 7 The victim died approximately one month later from the injuries he sustained in the fight.

¶ 8 The People charged Jompp with second degree murder, second degree assault, robbery, escape, and several habitual criminal counts. At trial, Jompp's defense theories were that B.B. killed the victim and that the prosecution otherwise failed to prove the charges. The jury convicted Jompp of third degree assault, robbery, and escape. The trial court adjudicated Jompp an habitual criminal and sentenced him to forty-eight years in prison.

II. Speedy Trial

¶ 9 Jompp contends the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and thirteen months after he was arrested. We disagree.

A. Preservation

¶ 10 The People agree that Jompp preserved his statutory speedy trial claim, but argue that he didn't preserve his constitutional speedy trial claim.

¶ 11 At the hearing to continue the trial, defense counsel objected "to the continuance of Mr. Jompp's speedy trial rights under the Federal and State Constitutions, as well as, his statutory right." But for the rest of the hearing, the parties and the court only discussed and considered the statutory speedy trial elements required to continue the trial.

¶ 12 On the morning of trial, defense counsel again objected:

Judge, at this time, I wanted to reiterate a previous objection we made for the record. It is the Defense's position that [the] Prosecution's previous request to continue the trial that was in the context of their unavailability of some witnesses. It is the Defense's position that there was not good cause for that at that time. And as such, it is our position that this trial is outside of speedy trial. So we are objecting to being outside of speedy trial. We'd ask the Court to note that objection.

¶ 13 So at both the hearing and trial, defense counsel "provided no analysis of the constitutional issues and never sought a ruling from the trial court." People v. Roberts , 2013 COA 50, ¶ 48, 321 P.3d 581. Nor did he "ask the court to determine whether, under the applicable four-part balancing test of Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and People v. Small , 631 P.2d 148 (Colo. 1981), the delay in this case violated the state and federal constitutions." People v. Scialabba , 55 P.3d 207, 209-10 (Colo. App. 2002) ; see People v. McMurtry , 122 P.3d 237, 243 (Colo. 2005) ("[H]e did not argue any of the elements of this constitutional right in either his motion or at the hearing on the motion."). So Jompp didn't preserve his constitutional speedy trial claims.

¶ 14 But, unpreserved constitutional errors may be reviewed for the first time on appeal. Reyna-Abarca v. People , 2017 CO 15, ¶ 37, 390 P.3d 816. And we "do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver." People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984) ). So we review Jompp's constitutional speedy trial claims for plain error. See id. at ¶ 47.

B. Standard of Review

¶ 15 We review a trial court's decision to apply the statutory speedy trial exclusion in section 18-1-405(6)(g)(I), C.R.S. 2017, for an abuse of discretion. Scialabba , 55 P.3d at 209. "We will not disturb the trial court's findings granting a continuance if the record supports these findings." People v. Trujillo , 2014 COA 72, ¶ 18, 338 P.3d 1039. An error is plain if it is obvious and substantial and so undermines the trial's fundamental fairness as to cast serious doubt on the judgment of conviction's reliability. Rediger , ¶ 48.

C. Additional Facts

¶ 16 Jompp was arrested on October 31, 2013. On March 14, 2014, he entered a not guilty plea and jury trial was set for August 25, 2014.

¶ 17 Over the following months, the prosecution sought to secure B.B.'s attendance at trial. The prosecution knew B.B. lived in Utah and in April 2014 asked the trial court to issue a certificate to summon her from outside the state under section 16-9-203, C.R.S. 2017, which the court granted. After trying unsuccessfully to serve B.B. the summons, the prosecution learned that she may have been living at a different address in Utah, and in June the court issued a second certificate to summon. In August the prosecution requested a third certificate to summon, and the court issued it with a recommendation that B.B. be taken into custody to assure her presence at trial.

¶ 18 On August 18, 2014, the prosecution filed a motion to continue the trial if B.B. was still unavailable. At the motion hearing, the prosecutor provided additional information on his efforts to locate and serve B.B. Specifically, the prosecutor explained that he had three people from the police department working with local Utah agencies. And, investigators had contacted B.B. via Facebook and believed they could trace her cell phone, which they guessed would probably take two to three weeks. The investigators had also been following her on another Facebook account she used under a different name. The prosecutor also said that B.B.'s biological son and the son's adoptive parents were cooperating and were still in touch with B.B. The investigators were also tracking B.B.'s husband who had just been released from jail and was thought to be with B.B.

¶ 19 The prosecutor also said there was a $25,000 outstanding warrant in Utah, they were "close to getting her," and that "leads ... on her address in the past two weeks looked very promising," but that she was "something of a couch surfer." It concluded that "there's reasonable grounds to believe that we will have her in the not too distant future." The court granted the motion and set Jompp's trial date for December 1, 2014.

¶ 20 Not long after, B.B. was arrested in Utah based on the certificate to summon and appeared in court in Colorado on September 11, 2014. She testified at trial.

D. Statutory Speedy Trial

¶ 21 Section 18-1-405(1) provides a defendant a statutory right to be brought to trial within six months from the date he or she enters a not guilty plea. If a trial is not brought within this time frame, generally the charges against the defendant must be dismissed. § 18-1-405(1) ; see also People v. Roberts , 146 P.3d 589, 592 (Colo. 2006).

¶ 22 But section 18-1-405(6)(g)(I) allows an additional delay of up to six months at the prosecution's request, without the defendant's consent, if the prosecution demonstrates that (1) evidence material to the state's case is unavailable; (2) the prosecution has exercised due diligence to obtain the evidence; and (3) there exist reasonable grounds to believe the evidence will be available at a later date. The prosecution must make a sufficient record that these three elements have been met. People v. Trujillo , 2014 COA 72, ¶ 17, 338 P.3d 1039. The trial court may rely on the prosecution's uncontested offers of proof. Id.

¶ 23 Jompp contends that the court erred in continuing the trial because the People's evidence of " '[p]romising leads' to merely contact a witness" wasn't sufficient under the statute to show "reasonable grounds to believe the evidence will be available at the later date." See § 18-1-405(6)(g)(I). We disagree.

¶ 24 We reject Jompp's contention that this means the prosecution must show that it's "known or proved to be true" or "incapable of failing." To support this proposition, Jompp relies on a case from another division of this court that said "[t]he prosecution must prove with some certainty that the unavailable evidence will become available at a later date," but the Supreme Court has vacated that opinion. People v. Valles , 2013 COA 84, ¶ 41, 412 P.3d 537, cert. granted, judgment vacated, and case remanded , No. 13SC551, 2015 WL 4999239 (Colo. Aug. 24, 2015) (unpublished order). And the statute simply requires that "there are reasonable grounds to believe that this evidence will be available at the later date." § 18-1-405(6)(g)(I).

¶ 25 We also reject Jompp's argument that prior case law effectively requires the prosecution to provide evidence of a "cooperative witness, known facts about later availability, or circumstances within the State's control." In Trujillo , a division of this court found that reasonable grounds existed that a witness's testimony would be available at a later date based on the prosecution's statement that "it believed a plea agreement with [the witness] would soon be reached." ¶ 23 (emphasis added); see also People v. Koolbeck , 703 P.2d 673, 677 (Colo. App. 1985) ("The court was entitled to believe that if either the accomplice was acquitted or if he was convicted but did not appeal, then his testimony would be available for trial at the later date.").

¶ 26 And, Jompp didn't challenge the prosecution's evidence or otherwise show that its belief that it would secure the witness for trial wasn't reasonable. "Accordingly, the trial court acted within its discretion by relying on the prosecution's offer of proof and by finding that there was a reasonable possibility [the witness] would be available to testify." Valles , ¶ 42.

¶ 27 We conclude that sufficient record evidence supported the court's granting of the prosecution's request for a continuance. See Marquez v. Dist. Court , 200 Colo. 55, 57-58, 613 P.2d 1302, 1304 (1980) ("The burden [of compliance with the speedy trial statute] includes making a record sufficient for an appellate court to determine statutory compliance.").

E. Constitutional Speedy Trial

¶ 28 A defendant has a constitutional speedy trial right under the United States Constitution's Sixth Amendment and article II, section 16 of the Colorado Constitution. Small , 631 P.2d at 154. "The analysis of whether the constitutional right was violated differs from the analysis of whether the statutory right was violated." People v. Nelson , 2014 COA 165, ¶ 21, 360 P.3d 175. Under both the Federal and State Constitutions, "the right to a speedy trial attaches with the filing of a formal charge or with a defendant's arrest." People v. Glaser , 250 P.3d 632, 635 (Colo. App. 2010) (citing United States v. Marion , 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and People v. Chavez , 779 P.2d 375, 376 (Colo. 1989) ). Under both provisions, compliance is determined by considering four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. Barker , 407 U.S. at 530, 92 S.Ct. 2182 ; Chavez , 779 P.2d at 376. A defendant bears the burden of showing that his constitutional right to a speedy trial was violated. Valles , ¶ 45.

¶ 29 Under the four Barker factors, we conclude that the trial court didn't plainly err by granting the prosecution's requested continuance.

¶ 30 First, the length of the delay was thirteen months. A delay over a year is presumptively prejudicial. See Doggett v. United States , 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). "This delay, however, was by no means extreme."

Nelson , ¶ 33 (discussing delay just short of fourteen months); see also People v. Fears , 962 P.2d 272, 279 (Colo. App. 1997) (the defendant's constitutional right wasn't violated by three-year delay between charge and trial). Still, Jompp was incarcerated during this time. So this factor weighs in his favor.

¶ 31 Second, while the delay is attributable to the prosecution, the delay was justified. See Barker , 407 U.S. at 531, 92 S.Ct. 2182 ("Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay."). So this factor favors the prosecution.

¶ 32 Third, while Jompp asserted his right to a speedy trial, he "did not expand upon that argument" at any time. Valles , ¶ 49. This factor may slightly favor Jompp because he generally asserted his right.

¶ 33 Fourth, Jompp asserts he was prejudiced by "oppressive pretrial incarceration" because he was incarcerated from arrest until trial. The Supreme Court in Barker identified three interests of a defendant to consider in assessing prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused's anxiety and concern; and (3) limiting the possibility the defense will be impaired. 407 U.S. at 532, 92 S.Ct. 2182. "Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. Jompp doesn't describe how his incarceration was oppressive or unjustified and doesn't establish any prejudice to his defense from his incarceration. See Nelson , ¶ 41 ("[H]e presented no evidence or offer of proof to establish any such anxiety or concern beyond that normally to be expected from the fact of a criminal prosecution. And he did not allege, much less establish, any prejudice to the defense resulting from the delay."); People v. Fennell , 32 P.3d 1092, 1095 (Colo. App. 2000) ("[S]ignificantly, defendant has not asserted any specific prejudice resulting from the delays. In this context, the fact that defendant was incarcerated is given slight weight absent a showing that his ability to present a defense was impaired."). So this factor favors the People.

¶ 34 Having reviewed the four factors, we conclude the trial court didn't plainly err because Jompp's constitutional right to a speedy trial wasn't obviously violated.

III. Sufficient Evidence Supported the Robbery Conviction

¶ 35 Jompp contends that the prosecution "presented insufficient evidence" that he committed robbery, as either a principal or accomplice, because it (1) failed to show that he "applied physical violence against [the victim] during the course of an unlawful taking of property from his person or presence"; and (2) "presented nothing more than speculation ... that [the theft] was even conceived, much less started, until after the assault." We disagree.

A. Standard of Review and Governing Law

¶ 36 We review the evidence's sufficiency de novo. Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005). We must determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a rational fact finder that the defendant is guilty beyond a reasonable doubt. Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010). We give the prosecution the benefit of every reasonable inference that can fairly be drawn from the evidence, so long as any inference is supported by a convincing logical connection between the facts established and the conclusion inferred. People v. Perez , 2016 CO 12, ¶ 25, 367 P.3d 695 ; People v. Villalobos , 159 P.3d 624, 627 (Colo. App. 2006) ("[W]here reasonable minds could differ, the evidence is sufficient to sustain a conviction.").

¶ 37 A person commits robbery if he "knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation." § 18-4-301(1), C.R.S. 2017. "The gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim's person or presence." People v. Bartowsheski , 661 P.2d 235, 244 (Colo. 1983).

"There is no requirement that the application of force or intimidation must be virtually contemporaneous with the taking." Id. at 244-45.

¶ 38 In Bartowsheski , the supreme court held that the evidence was sufficient to support a conviction for robbery where the defendant entered a house to steal guns; killed a child who was awakened and had gotten into his path; and, at some point after the attack, took guns from the house. Id. at 243-45.

B. Analysis

¶ 39 The record contains sufficient evidence to support the jury's conclusion beyond a reasonable doubt that Jompp robbed the victim.

¶ 40 B.B. said that while the group was parked in the car, Jompp suddenly attacked the victim. After Jompp and the victim exchanged blows, the victim fell out of the car and onto the ground. B.B. said she then saw C.P. get out of the car, go over to the victim, and start digging through his pockets. C.P. then got back in the car and the group left the scene. And C.P. admitted that she went through the victim's pockets to get money at Jompp's direction and she gave him the money she found. But she was unsure whether she took the money after the fight or later when she went back to check on the victim.

¶ 41 We acknowledge that other evidence may support the contrary conclusion that the assault resulted solely from the argument between Jompp and the victim and wasn't part of "the course of a transaction culminating in the taking of property from the victim." But as to such factual determinations, "[w]e do not sit as a thirteenth juror to determine the weight of the evidence presented to the jury." Clark , 232 P.3d at 1293.

¶ 42 We also reject Jompp's argument that the prosecution had to show that the force he used against the victim was "calculated to take [the victim's] money." Robbery isn't a specific intent crime, so it doesn't require proof of intent to permanently deprive another person of the use or benefit of a thing of value. People v. Moseley , 193 Colo. 256, 262, 566 P.2d 331, 335 (1977). And under Bartowsheski 's "course of the transaction" doctrine, Jompp's use of force against the victim during the course of a transaction in which C.P., as his accomplice, took the victim's money was sufficient to constitute a robbery. See Bartowsheski , 661 P.2d at 244 ; People v. Buell , 2017 COA 148, ¶ 26, 442 P.3d 961 (evidence necessarily sufficient to support aggravated and attempted aggravated robbery convictions where the defendant committed theft and used a knife to avoid apprehension) (cert. granted Apr. 23, 2018). Whether Jompp told C.P. to take the money before, after, or contemporaneous with the assault, his use of force against the victim made it possible for C.P. to take the money without resistance. See People v. Davis , 935 P.2d 79, 85 (Colo. App. 1996) ("Thus, the [ Bartowsheski ] court essentially set out a 'but for' test-but for the force, the victim would have kept the property, irrespective of how the force was used.").

IV. The Court Didn't Err by Refusing to Give the Resisting Arrest Instruction

¶ 43 Jompp contends that the court erred by failing to instruct the jury that it could convict him of the lesser nonincluded offense of resisting arrest. We disagree.

A. Standard of Review

¶ 44 "Colorado cases have not conclusively established the standard of appellate review applicable to denials of lesser nonincluded offense instructions." People v. Wartena , 2012 COA 12, ¶ 29, 296 P.3d 136. But whether "the record contains sufficient evidence to support instruction on a lesser offense is a factual inquiry reviewed for an abuse of discretion." Id. at ¶ 30 ; People v. Nozolino , 2014 COA 95, ¶ 43, 350 P.3d 940 ("Because the district court denied [the] instruction on a factual basis, we review for an abuse of discretion."); cf. People v. Montante , 2015 COA 40, ¶ 32, 351 P.3d 530 ("We review de novo the trial court's refusal to give the lesser nonincluded offense instruction because the court's determination that the medical marijuana registry fraud statute is inapplicable to defendant's conduct is a question of law."). A court abuses its discretion when its decision is "manifestly arbitrary, unreasonable, or unfair." People v. Ibarra , 849 P.2d 33, 38 (Colo. 1993).

¶ 45 A defendant is entitled to a lesser nonincluded offense instruction as part of his defense theory if the evidence provides a rational basis to support a "verdict acquitting [the defendant] of a greater offense ... and convicting [the defendant] of the lesser offense." People v. Trujillo , 83 P.3d 642, 645 (Colo. 2004) (quoting Bartowsheski , 661 P.2d at 242 ).

B. Additional Facts

¶ 46 Two police officers spotted Jompp outside an apartment complex while interviewing a witness. One officer drew his handgun and ordered him to the ground. Jompp lay face down with his arms extended outward. Minutes later, other officers arrived and handcuffed Jompp behind his back. An officer searched him. One officer then led Jompp by the arm to the officer's patrol car to transport him to jail. While the officer was checking the patrol car's backseat before placing Jompp into it, he briefly let go of Jompp, who ran off while still handcuffed. He was caught shortly after and transported to jail.

¶ 47 At trial, defense counsel tendered a resisting arrest instruction as a lesser nonincluded offense of escape. Defense counsel argued that whether Jompp was under arrest or was in the process of being arrested when he ran away was a factual question for the jury to decide. The court rejected the instruction because it found that the arrest had already been effectuated and it didn't think the instruction would be appropriate based on the evidence.

C. The Evidence Didn't Support Giving the Tendered Instruction

¶ 48 Jompp asserts that "there was a rational basis to acquit [him] of escape while convicting [him] of resisting arrest because the distinguishing element between the two offenses was the disputed point ... whether police established physical control sufficient to provide reasonable assurance that Jompp would not leave."

¶ 49 A person commits escape if "while being in custody or confinement and held for or charged with but not convicted of a felony, he knowingly escapes from said custody or confinement." § 18-8-208(3), C.R.S. 2017. "[E]ffecting an arrest, in the sense of establishing physical control over the arrestee, is required before a person is 'in custody' for the purposes of the escape statute." People v. Thornton , 929 P.2d 729, 733 (Colo. 1996). "In custody" is defined as the "physical control of the person by physical restraint or by the person's submission to control, which is sufficient to provide reasonable assurance that he or she will not leave." People v. Padilla , 113 P.3d 1260, 1261 (Colo. App. 2005) ; see Thornton , 929 P.2d at 733.

¶ 50 A defendant commits resisting arrest "if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor, by ... [u]sing any other means which creates a substantial risk of causing bodily injury to the peace officer or another." § 18-8-103(1)(b), C.R.S. 2017.

¶ 51 The undisputed record evidence shows that Jompp was in custody. He had already submitted to the police officer's instructions, was handcuffed, searched, and led by the arm to a patrol car for transport to jail. By the time he ran from the officer, he was already under the officer's sufficient "physical control ... by physical restraint" and by his "submission to control" such that there was a "reasonable assurance that he ... [would] not leave." Padilla , 113 P.3d at 1261 ; see also People v. Stanley , 56 P.3d 1241, 1245 (Colo. App. 2002) ("The People do not contest that leg shackles bound defendant when he allegedly resisted arrest. Defendant argues that he was already in custody, and therefore the People could not establish that he attempted to prevent a police officer from effecting his arrest. We agree."). That the officer removed his hand from Jompp for an instant to prepare the patrol car's back seat doesn't create a disputed factual issue, and "the mere chance that a jury may reject uncontroverted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge." People v. Carey , 198 P.3d 1223, 1234 (Colo. App. 2008) (quoting People v. Hall , 59 P.3d 298, 300 (Colo. App. 2002) ).

¶ 52 We conclude the court didn't abuse its discretion by declining to instruct the jury on the crime of resisting arrest.

V. Habitual Criminal Sentencing

¶ 53 Jompp contends the court convicted him in violation of his Sixth Amendment right to a jury trial when, at sentencing, it, not the jury, found that he had prior convictions and increased his sentence under the habitual criminal sentencing statute. We reject this contention.

¶ 54 We review a sentence's constitutionality de novo. Lopez v. People , 113 P.3d 713, 720 (Colo. 2005). But because Jompp failed to preserve this issue at trial, reversal is required only if the court plainly erred. People v. Miller , 113 P.3d 743, 750 (Colo. 2005) ; see Reyna-Abarca , ¶ 47.

¶ 55 In a nutshell, Jompp's argument is a criticism of Almendarez-Torres v. United States , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), where the United States Supreme Court originally recognized a jury trial exception for determining prior convictions for sentencing enhancement purposes. This argument is based on a more recent Supreme Court opinion in Alleyne v. United States , 570 U.S. 99, 111, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which some have construed as criticizing Almendarez and its progeny.

¶ 56 But the prior conviction exception remains well-settled law. See Lopez , 113 P.3d at 723 ; People v. Parks , 2015 COA 158, ¶ 29, 370 P.3d 346 ; People v. Poindexter , 2013 COA 93, ¶ 72, 338 P.3d 352. So the court didn't err.

VI. Noncustodial Escape as an Habitual Criminal Current Offense

¶ 57 Jompp contends that his sentence is illegal because his noncustodial escape conviction can't be deemed a current offense under the habitual criminal statute. The People disagree and respond that noncustodial escape convictions are precluded only from being used as prior convictions. We agree with Jompp.

A. Standard of Review

¶ 58 A sentence that is beyond the court's statutory authority is illegal. People v. Anaya , 894 P.2d 28, 31 (Colo. App. 1994). A sentence's legality is a question of law that we review de novo. People v. Bassford , 2014 COA 15, ¶ 20, 343 P.3d 1003. We review a court's statutory construction de novo. People v. Hernandez , 250 P.3d 568, 570-71 (Colo. 2011).

¶ 59 "Our primary purpose in statutory construction is to ascertain and give effect to the intent of the General Assembly." Doubleday v. People , 2016 CO 3, ¶ 19, 364 P.3d 193. We look first to the statute's language, giving words and phrases their plain and ordinary meanings. Id. We read statutory words and phrases in context and construe them according to the rules of grammar and common usage. Id. ; Marquez v. People , 2013 CO 58, ¶ 8, 311 P.3d 265 ("It is widely accepted that where the legislature has not expressly defined a statutory term or otherwise limited its meaning, that term must be given its ordinary meaning."). If the statute is unambiguous, we needn't conduct any further statutory analysis. Doubleday , ¶ 20.

B. Additional Facts

¶ 60 The jury convicted Jompp of escape, a class 4 felony. The conviction had a presumptive sentencing range of two to six years. At sentencing, the trial court found that the prosecution had proved six habitual criminal counts and sentenced Jompp to twenty-four years for the escape conviction under section 18-1.3-801(2)(a), C.R.S. 2017.

¶ 61 After Jompp appealed his conviction, he filed a motion for limited remand with this court to allow the trial court to rule on his pending Crim. P. 35(a) motion to correct an illegal sentence. A division of this court granted the motion and, on limited remand, Jompp challenged the escape sentence as illegal because section 18-1.3-801(5) C.R.S. 2013, precluded the court from imposing an habitual criminal sentence on his escape conviction. The trial court denied Jompp's motion, and his appeal was recertified to this court.

C. Analysis

¶ 62 The trial court sentenced Jompp as an habitual criminal on his escape conviction under section 18-1.3-801(2)(a)(I), C.R.S. 2017, which states in relevant part as follows:

Except as otherwise provided ... in subsection (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony ... shall be adjudged an habitual criminal and shall be punished: ... For the felony offense of which such person is convicted ... for a term of four times the maximum of the presumptive range.

So, to be "adjudged an habitual criminal" requires: (1) a current conviction "of any felony" in Colorado and (2) three prior felony convictions on charges separately brought and tried and arising out of separate and distinct criminal episodes. Id. ; see People v. Hampton , 876 P.2d 1236, 1242 (Colo. 1994) ("An adjudication of habitual criminality-a component of sentencing-is an integral part of a conviction, not a separate conviction.").

¶ 63 Subsection (5) precludes certain escape convictions from being used in habitual criminal adjudications, and the statute in effect at the time of Jompp's adjudication stated in relevant part as follows:

A conviction for escape ... shall not be used for the purpose of adjudicating a person an habitual criminal as described in ... subsection (2) of this section unless the conviction is based on the offender's escape or attempt to escape from a correctional facility ... or from physical custody within a county jail.

§ 18-1.3-801(5), C.R.S. 2013. Because Jompp didn't escape from a correctional facility or from within a county jail, for our purposes here, subsection (5) can be boiled down as follows: "A conviction for escape ... shall not be used for the purpose of adjudicating a person an habitual criminal as described in ... subsection (2) of this section." Id.

¶ 64 We conclude that the statute's plain language precluding noncustodial escape convictions from being "used for the purpose of adjudicating a person an habitual criminal," id. , applies to both prior and current noncustodial convictions.

¶ 65 The word "purpose" is generally defined as "[a]n objective, goal, or end." Black's Law Dictionary 1431 (10th ed. 2014). "The purpose of the Habitual Criminal Act is to punish more severely those individuals who show a propensity toward repeated criminal conduct." People v. Dist. Court , 711 P.2d 666, 670 (Colo. 1985). To effectuate this purpose, that is to adjudicate a defendant as an habitual criminal, requires that a defendant be convicted of a qualifying current offense and of qualifying prior offenses. See § 18-1.3-801(2)(a)(I), C.R.S. 2017; § 18-1.3-801(2)(b) (exempting certain level 4 drug felonies as current offenses from habitual adjudication); § 18-1.3-801(3) (exempting certain "drug law conviction[s]" as prior offenses for habitual adjudication). So under the statute's plain language, by definition, a conviction is "used for the purpose" of adjudicating a person an habitual criminal whether it is used as the current conviction or as a prior conviction. After all, both types of convictions are necessarily used to achieve the statute's purpose-habitual criminal adjudication.

¶ 66 To construe subsection (5)'s language as exempting only prior noncustodial escape convictions from the habitual adjudication process would be contrary to its common meaning. And "unless [the language has] acquired a technical meaning by legislative definition," we must read "words and phrases in context and construe them literally according to common usage." People v. Yascavage , 101 P.3d 1090, 1093 (Colo. 2004) ; see also Dep't of Transp. v. Stapleton , 97 P.3d 938, 943 (Colo. 2004) ("[W]e presume that in using the phrase 'state highway purposes ,' the General Assembly intended that CDOT have a condemnation authority which was broader than that needed simply for constructing 'state highways.' To read the grant of authority as restricted to the list of structures included in the definition of 'highway' under section 43-1-203, as urged by the Respondent, would render the word 'purposes' in section 43-1-208(3) superfluous.") (emphasis added).

¶ 67 The statute's other subsections support our reading of subsection (5)'s broad language. Where the General Assembly intends to exempt only certain convictions from being prior offenses for habitual adjudication purposes, it has specifically done so. See § 18-1.3-801(3) ("No drug law conviction shall be counted as a prior felony conviction under this section unless such prior offense would be a felony if committed in this state at the time of the commission of the new offense.") (emphasis added). And the General Assembly has exempted certain convictions as current offenses using specific language. § 18-1.3-801(2)(b) ("The provisions of paragraph (a) of this subsection (2) shall not apply to a conviction for a level 4 drug felony ... even if the person has been previously convicted of three or more qualifying felony convictions.").

¶ 68 The People argue that if the General Assembly meant to exempt noncustodial escape convictions as current convictions, it could have used language similar to that in subsection (2)(b) exempting level 4 drug felonies. But even though it didn't, that doesn't alter the ordinary meaning of subsection (5)'s language. Sometimes the legislature uses different language to achieve similar results. See, e.g. , Marquez , ¶ 15 ("[W]e find that the phrase 'arising out of the same incident' ... was not intended to convey any meaning different from 'arising from the same criminal episode.' ") (citations omitted).

¶ 69 To be clear, we hold that section 18-1.3-801(5), C.R.S. 2013 precluded a noncustodial escape conviction from being used as a current conviction for the purpose of adjudicating a person an habitual criminal under subsection (2) of that section. We conclude that the trial court erred in adjudicating Jompp an habitual criminal on his noncustodial escape conviction.

VII. Conclusion

¶ 70 We affirm the trial court's judgment of conviction. We vacate the part of the sentence based on Jompp's escape conviction and remand for resentencing on that conviction. We affirm the remainder of the sentence.

JUDGE BERGER and JUDGE MILLER concur.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      While we prefer "[a] habitual criminal," we use the statute's language. See The Chicago Manual of Style § 5.72 (17th ed. 2017).

      Section 16-9-203, C.R.S. 2017, adopted the uniform act to secure the attendance of witnesses from without a state in criminal proceedings, which had also been adopted by Utah.

      Jompp doesn't contest the other two statutory elements.

      The court instructed the jury on accomplice liability.

      Jompp was also adjudicated an habitual criminal on his robbery conviction and sentenced to twenty-four years on that conviction.

      We cite to this statute's subsection that was in effect at the time of Jompp's sentencing as the language relevant to this appeal has been subsequently amended.

      We also note that the General Assembly has since amended subsection (5) to read: "A current or prior conviction for escape ... may not be used for the purpose of adjudicating a person an habitual criminal as described in ... subsection (2) of this section." Ch. 374, sec. 1, § 18-1.3-801, 2017 Colo. Sess. Laws 1937 (emphasis added). Neither party contends that this should make a difference in our analysis. We don't think it should.


source: Caselaw Access Project

author: JUDGE BERNARD, specially concurring.

license: Public Domain

text:
    Michael CUMMINGS, Plaintiff-Appellee, v. ARAPAHOE COUNTY SHERIFF'S DEPARTMENT and David C. Walcher, individually and in his capacity as Arapahoe County Sheriff, Defendants-Appellants.
    Court of Appeals No. 18CA0499
    Colorado Court of Appeals, Division A.
    Announced September 6, 2018
    I. Introduction and Summary
    ¶ 1 This lawsuit pits the Arapahoe County Sheriff (the Sheriff) against one of his former deputies, Michael Cummings, whose employment was terminated by the Sheriff. Cummings contends that the written employment policies promulgated by the Sheriff contained in the Sheriff's employee manual (the Manual) constitute an implied contract of employment that the Sheriff breached when he fired Cummings. In denying the Sheriff's summary judgment motion, the district court agreed with Cummings. The Sheriff brings this interlocutory appeal under C.A.R. 4.2, challenging the district court's denial of summary judgment.
    ¶ 2 Resolution of this appeal requires us to construe section 30-10-506, C.R.S. 2017, which governs the employment relationship between Colorado's elected sheriffs and the deputies they appoint. It provides in relevant part as follows:
    Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments. Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the proposed revocation and shall give the deputy an opportunity to be heard by the sheriff.
   § 30-10-506.

¶ 3 In Seeley v. Board of County Commissioners , the Colorado Supreme Court authoritatively construed a prior version of this statute, holding that sheriffs' deputies were employees at will and that a sheriff "did not possess the statutory authority to limit his power to discharge [his deputies] 'at his pleasure.' " 791 P.2d 696, 700 (Colo. 1990).

¶ 4 As was its right, the General Assembly legislatively overruled the supreme court's decision by amending the statute in 2006. Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006); cf. Gallegos v. Phipps , 779 P.2d 856, 861 (Colo. 1989) (noting General Assembly's enactment of another statute "for the explicit purpose of" overruling the particular case).

¶ 5 We conclude that the General Assembly legislatively partly overruled Seeley because, contrary to Seeley , the General Assembly decided to grant certain employment rights to the deputies that are, at least in part, inconsistent with the concept of at-will employment as it is known in Colorado law. Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006). But we also know from the plain language of the amended statute that in other respects, the General Assembly intended to preserve the doctrine of at-will employment.

¶ 6 Considering the plain language of the 2006 amendments, the legislative history, and commonly recognized rules of statutory construction, we conclude that section 30-10-506 does the following:

• It grants two unwaivable rights to the deputies: the right of notification "of the reason for the proposed revocation" of their employment, and "an opportunity to be heard by the sheriff" before their employment is terminated.
• It requires each sheriff to "adopt personnel policies, including policies for the review of revocation of appointments," but except for the two statutory rights noted above, these policies need not be binding and sheriffs may reserve their right to depart from such policies in any particular case or matter. To that extent, the doctrine of at-will employment is preserved.
• It permits a sheriff to promulgate binding employment policies, and if the sheriff elects to do so, those policies are enforceable in accordance with their terms.

¶ 7 Applying this construction of section 30-10-506 to the facts presented in the Sheriff's summary judgment motion, but also considering the dispositive legal effect of clear and conspicuous disclaimers of any contractual relationship, we affirm the district court's denial of summary judgment with respect to the specific rights granted by section 30-10-506, but otherwise reverse the court's denial of summary judgment on Cummings' implied contract claim.

II. Relevant Facts and Procedural History

¶ 8 Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings' employment, asserting that he violated several of the Manual's policies and was dishonest in the course of the investigation of the original charges against him.

¶ 9 After exhausting his remedies within the Sheriff's department, Cummings sued, asserting two claims for relief: wrongful discharge in violation of public policy and breach of an implied contract of employment based on the employment policies contained in the Manual.

¶ 10 Cummings contends that while the Sheriff informed him of the reasons for the initial investigation into his conduct, the Sheriff did not provide him with notice of the charges that eventually led to his termination. He also contends that the Sheriff denied him an adequate opportunity to defend himself by not following the procedural policies of the Manual during the disciplinary process.

¶ 11 The Sheriff moved to dismiss the wrongful termination claim under C.R.C.P. 12(b)(1) based on governmental immunity. The district court held a Trinity hearing on the wrongful discharge in violation of public policy claim and dismissed that claim with prejudice. See Trinity Broad. of Denver v. City of Westminster , 848 P.2d 916 (Colo. 1993).

¶ 12 After the district court denied the Sheriff's motion to dismiss the implied contract claim for failure to state a claim, the Sheriff moved for summary judgment. He contended that the at-will language in section 30-10-506 prevented him from promulgating binding personnel policies; that the disclaimers contained both in the Manual itself and in separate, yearly disclaimers signed by Cummings precluded as a matter of law any implied contract claim; and that, in any event, he had not violated any of the Manual's policies.

¶ 13 The district court denied the Sheriff's motion, holding that there was an implied contract of employment. The district court reasoned that it was illogical to conclude that the General Assembly would at once require sheriffs to promulgate employment policies, but then authorize sheriffs to wholly ignore them. Thus, the court held that all provisions in an employment manual promulgated by a sheriff pursuant to section 30-10-506 were binding and formed an implied employment contract. As to the disclaimers, the court ruled that they were ineffective because they could not countermand the statutory requirement that the policies be binding. And, as to the Sheriff's argument that he did not violate any of the policies, the court concluded that disputed issues of material fact precluded summary judgment.

¶ 14 Although ordinarily an order denying summary judgment is not a final appealable order, the Sheriff petitioned for an interlocutory review of the order. Recognizing the internal conflicts within the statute, the district court certified its summary judgment order for interlocutory appeal under C.A.R. 4.2. Agreeing with the district court that the Sheriff met the requirements for an interlocutory appeal, and that this is a matter of substantial public concern, we granted the petition.

III. The District Court Correctly Denied The Sheriff's Motion for Summary Judgment With Respect To The Specific Rights Granted by Section 30-10-506

¶ 15 For the same three reasons that he sought summary judgment in the district court, the Sheriff contends that the court erred in denying his motion for summary judgment.

A. Standard of Review

¶ 16 We review a grant (or, when authorized by law, a denial) of summary judgment de novo. Geiger v. Am. Standard Ins. Co. of Wisc. , 192 P.3d 480, 482 (Colo. App. 2008) (holding that we review a denial of summary judgment de novo). "Under C.R.C.P. 56(c), summary judgment may be granted if there is no genuine contested issue of material fact and the moving party is entitled to judgment as a matter of law." Georg v. Metro Fixtures Contractors, Inc. , 178 P.3d 1209, 1212 (Colo. 2008). We grant the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts and resolve all doubts against the moving party. Bebo Constr. Co. v. Mattox & O'Brien, P.C. , 990 P.2d 78, 83 (Colo. 1999).

B. Rules of Statutory Interpretation

¶ 17 Resolution of this appeal requires us to determine the meaning of section 30-10-506, which is a question of law that we review de novo. Wolf Ranch, LLC v. City of Colorado Springs , 220 P.3d 559, 563 (Colo. 2009).

¶ 18 In interpreting a statute, we first give the words and phrases of the statute their plain and ordinary meanings according to the rules of grammar and common usage. § 2-4-101, C.R.S. 2017; Jefferson Cty. Bd. of Equalization v. Gerganoff , 241 P.3d 932, 935 (Colo. 2010). We consider the words and phrases of the statute both in the context of the statute itself and in the context of any comprehensive statutory scheme of which the statute is a part. Jefferson Cty. Bd. of Equalization , 241 P.3d at 935. By applying these principles, we attempt to determine the General Assembly's intended meaning of the words and phrases, and harmonize that meaning with the comprehensive statutory scheme. Id.

¶ 19 If the statutory language is susceptible to only one reasonable meaning, we enforce it as written and do not resort to other rules of statutory construction. Vaughan v. McMinn , 945 P.2d 404, 408 (Colo. 1997). However, if a statute is susceptible to more than one reasonable meaning, we employ other tools of statutory interpretation, including legislative history, to ascertain the General Assembly's intent. People v. Luther , 58 P.3d 1013,1015 (Colo. 2002).

C. The Implied Contract Exception to At-Will Employment

¶ 20 In Colorado, an employee who is hired for an indefinite period is presumed to be an at-will employee, but this presumption may be rebutted. Cont'l Air Lines, Inc. v. Keenan , 731 P.2d 708, 711-12 (Colo. 1987).

¶ 21 Policies contained in an employee manual addressing discipline or the termination of employment may, under some circumstances, serve as the basis for claims of either a breach of implied contract or promissory estoppel. Id. These claims may be asserted by both private and public employees. Adams Cty. Sch. Dist. No. 50 v. Dickey , 791 P.2d 688, 694 (Colo. 1990).

¶ 22 Employees claiming a breach of an implied contract of employment based on an employee manual bear the burden of rebutting the presumption of at-will employment. Keenan , 731 P.2d at 711. To do so, they must demonstrate:

first, that in promulgating the termination procedures the employer was making an offer to the employee-that is, the employer manifested his willingness to enter into a bargain in such a way as to justify the employee in understanding that his assent to the bargain was invited by the employer and that the employee's assent would conclude the bargain, Restatement (Second) of Contracts § 24 (1981) -and second, that his initial or continued employment constituted acceptance of and consideration for those procedures.

Id.

D. Analysis

1. Binding Personnel Policies May Be Promulgated by the Sheriff Under Section 30-10-506

¶ 23 Relying on Seeley , the Sheriff contends (and the special concurrence apparently agrees) that the retention of the at-will employment concept in the statute requires us to hold that all policies promulgated by a sheriff relating to the termination of deputy sheriffs' employment are only precatory. To conclude otherwise, according to the Sheriff, would write out of the statute the Sheriff's statutory power to terminate at will the employment of a deputy.

¶ 24 For two reasons, we reject the Sheriff's interpretation of section 30-10-506. First, it is inconsistent with the statute's conferral on the deputies of at least two due process rights. Second, based on the amended statutory language, we have no doubt that the General Assembly legislatively partly overruled Seeley . See Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006).

¶ 25 When it amended section 30-10-506, the General Assembly combined two contradictory concepts-at-will employment for deputies, on the one hand, and the requirement that sheriffs provide at least some binding employment rights to their deputies, on the other. These inherent contradictions render the statute susceptible to at least two reasonable understandings; thus, it is ambiguous. People v. Jones , 2015 CO 20, ¶ 10, 346 P.3d 44.

¶ 26 Our job is to rationally construe the statute to give effect to all, not just some, of the words of the statute and to recognize the legislative intent to overrule Seeley in part. Luther , 58 P.3d at 1015.

¶ 27 The statute unambiguously confers two due process rights on the deputies: "Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the proposed revocation and shall give the deputy an opportunity to be heard by the sheriff." § 30-10-506.

¶ 28 But the statute does more. It also requires sheriffs to "adopt personnel policies, including policies for the review of revocation of appointments." Id. The statute says nothing about whether any employment policies promulgated by sheriffs, beyond notice and a right to be heard, must be binding on the sheriff. We agree with the Sheriff that a construction of the statute that all such policies are binding ignores and essentially writes out the at-will employment language. This is what the district court's construction of the statute did, but neither the district court nor this court has that authority. Jefferson Cty. Bd. of Equalization , 241 P.3d at 935.

¶ 29 But, if all of the policies, save the two due process rights identified above, were precatory, then the at-will employment relationship, though modified somewhat, would be preserved.

¶ 30 In Seeley , the supreme court held that the prior version of the statute simply did not authorize a sheriff to limit his right to fire his deputies at will. 791 P.2d at 700. But the amendments to the statute overruled that holding, at least in part. Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006). While the statute does confer on the deputies two binding due process rights, nothing in the statute expressly requires that all policies adopted by the sheriff are binding.

¶ 31 We reject the district court's reasoning that it is illogical for the General Assembly to require the promulgation of employment policies and then permit the sheriff to ignore at least some of those policies. As a division of this court observed in Jaynes v. Centura Health Corp. , precatory employment policies are not useless; they may serve as "guidelines" for the employer, managers, and his employees. 148 P.3d 241, 249 (Colo. App. 2006). We thus reject the district court's conclusion that only binding employment policies are meaningful and that all employment policies promulgated by the Sheriff must be binding.

¶ 32 But that does not mean that the Sheriff is prohibited by section 30-10-506 from promulgating binding employment policies.

¶ 33 To summarize, the amended statute requires a sheriff to promulgate written employment policies. The sheriff must give his deputies the rights of notice and opportunity to be heard. Other employment policies promulgated by the sheriff may be, but are not required to be, binding. And if the sheriff elects to confer binding employment rights on his deputies, those rights are enforceable in accordance with their terms.

¶ 34 In this way, "we give effect to every word and render none superfluous because we 'do not presume that the legislature used language idly and with no intent that meaning should be given to its language.' " Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 187 P.3d 565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v.Upper Gunnison River Water Conservancy Dist. , 109 P.3d 585, 597 (Colo. 2005) ).

¶ 35 Our construction of section 30-10-506 finds support in the United States District Court for the District of Colorado's decision in Tonjes v. Park County Sheriff's Office , the only published case that has addressed the 2006 version of section 30-10-506. 300 F.Supp.3d 1308 (D. Colo. 2018).

¶ 36 In Tonjes , as here, a sheriff's deputy contended that the sheriff was bound by the employee manual's policies, while the sheriff argued that section 30-10-506 and the manual's disclaimer precluded the formation of an implied contract of employment. Id. at 1319-20. Consistent with our holding, the federal court held that because of the 2006 amendments to section 30-10-506, sheriffs have "the ability to adopt policies that limit [their] power to terminate (demote, discipline, etc.) employees at will." Id. at 1319.

2. The Written Disclaimers Preclude an Implied Contract Claim as a Matter of Law, Except as to the Due Process Rights Conferred by Statute and by Those Terms in the Manual

¶ 37 The Sheriff next argues that, even if section 30-10-506 permits sheriffs to promulgate binding personnel policies, the disclaimers in both the Manual and the separate yearly disclaimers signed by Cummings preclude, as a matter of law, the formation of an implied contract of employment.

¶ 38 The Manual included the following disclaimer:

These guidelines do not alter the at-will status of employees of the Sheriff. The Sheriff may terminate members or revoke deputy appointments at will, with or without cause. No portion of these guidelines or policies shall constitute a contract of employment, either express or implied, between the Sheriff and the member, or the County and the member, nor is it a guarantee of employment for a specific term or duration.

Additionally, once a year, Cummings signed a form that reiterated the terms of this disclaimer and stated:

THE SHERIFF'S OFFICE DETENTION DIVISION MANUAL IS NOT INTENDED TO BE, NOR DOES IT CONSTITUTE A CONTRACT BETWEEN THE ARAPAHOE COUNTY SHERIFF AND ANY OF HIS EMPLOYEES. ALL ARAPAHOE SHERIFF EMPLOYEES ARE AT-WILL EMPLOYEES. All Arapahoe County Sheriff employees have the right to end their work relationship with organization with or without advance notice or cause. The Arapahoe County Sheriff has the same right to end the relationship.

¶ 39 Whether a contract disclaimer is clear and conspicuous is a question of law for the court. Jaynes , 148 P.3d at 248. The disclaimers in most of the yearly forms signed by Cummings were written in capitalized letters, bolded, and underlined. We need not determine whether the disclaimer in the Manual is clear and conspicuous, because the disclaimers in the yearly forms undoubtedly are clear and conspicuous under Colorado law. Id.

¶ 40 We next must determine whether these clear and conspicuous disclaimers preclude, as a matter of law, Cummings' implied contract claims. Except with respect to the rights expressly granted to the deputy sheriffs by statute, we hold that they do.

a. The Manual's Notice of Charges and Opportunity to be Heard Employment Policies

¶ 41 In his response to the Sheriff's summary judgment motion, Cummings specifically contended that the Sheriff violated the Manual's policy (and the statutory mandate) requiring that deputies receive timely notice of the reason for their proposed termination. While Cummings appears to concede that he received timely notice of the initial charges against him, he contends that he did not receive proper, timely notice of the additional charges that actually led to his termination.

¶ 42 As we held above, a deputy's right to notice and an opportunity to be heard are explicitly protected by section 30-10-506. To the extent the Manual enforces these statutory rights, the Manual may form the basis of an implied contract claim.

¶ 43 Parties may not contract to abrogate statutory requirements and thereby contravene the public policy of this state. Peterman v. State Farm Mut. Auto. Ins. Co. , 961 P.2d 487, 492 (Colo. 1998). "A contract provision that violates public policy by diluting, conditioning or unduly limiting statutory coverage may be declared void and unenforceable." Id. Thus, to the extent the disclaimers purport to waive, as a condition of public employment, the deputies' rights to notice and the opportunity to be heard, they contravene the express terms of section 30-10-506 and are void as against public policy. See id.

¶ 44 Cummings claims that he did not receive the required notice of the charges that led to his dismissal, and the Sheriff disputes that interpretation of the record. Because the material facts on this question are disputed, a trier of fact (in this case a jury) must determine whether the Sheriff violated the Manual's policies regarding notice of the charges against Cummings.

b. Other Policies in the Manual and the Disclaimers

¶ 45 Many of the policies contained in the Manual are worded in mandatory terms. We now address the purported conflict between the disclaimers and the mandatory language used in some of the policies, other than those that effectuate the due process rights conferred by section 30-10-506.

¶ 46 Several reported Colorado Court of Appeals cases have addressed this conflict, but the Colorado Supreme Court has not.

¶ 47 In Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming , 824 P.2d 1, 3 (Colo. App. 1991), although the employee handbook contained a disclaimer of any contractual rights, other documents provided to Allabashi contained termination procedures and policies requiring just cause for termination. Allabashi testified that she relied on those policies and procedures. Id. Relying on Cronk v. Intermountain Rural Electric Ass'n , 765 P.2d 619 (Colo. App. 1988), and distinguishing Ferrera v. Nielsen , 799 P.2d 458 (Colo. App. 1990), the division held that the trial court did not err in submitting the implied contract claim to the jury. Allabashi , 824 P.2d at 3.

¶ 48 In Cronk , the manual set "forth certain express events which might cause the employee to be terminated. In addition, the manual state[d] that other reasons, not so expressed, could be grounds for termination, 'as long as such legitimate reasons constitute just cause.' " 765 P.2d at 623. Noting that "[t]he disclaimer upon which the trial court relied was added after the plaintiffs commenced their employment with IREA," and that in their summary judgment affidavits, the "plaintiffs asserted that they had relied on the employee manual provisions concerning termination," the division held that the trial court erred in granting summary judgment to the employer. Id.

¶ 49 In Ferrera , 799 P.2d at 461, the division appears to have reached a conclusion contrary to that reached in Allabashi . Ferrera brought an action alleging wrongful discharge and both implied contract and promissory estoppel claims based on the employee handbook. Id. at 459. The district court granted summary judgment to the employer on the implied contract claim, based on a disclaimer contained in the handbook.

¶ 50 The division affirmed on two bases. Id. at 459-61. First, the division concluded that the handbook did not either expressly require just cause for dismissal or prescribe a progressive discipline process. Id. at 461. Rather, the handbook expressly reserved the right to discharge an employee whose conduct "in the opinion of the Company" warrants it. Id.

¶ 51 Second, the division held that "[s]ummary judgment denying claims based on a handbook is appropriate if the employer has clearly and conspicuously disclaimed intent to enter a contract limiting the right to discharge employees." Id. Concluding that the disclaimer was both "sufficiently clear" and "sufficiently conspicuous," the division affirmed the summary judgment. Id.

¶ 52 More recently, a division addressed this question in Evenson v. Colorado Farm Bureau Mutual Insurance Co. , 879 P.2d 402 (Colo. App. 1993). Citing Ferrera , the division stated "[s]uch a manifestation of willingness to be bound can be inferred if there is no disclaimer in the manual stating that it does not constitute a contract or if such disclaimer, though present, is not clear and conspicuous." Id. at 409. But then, the division proceeded to say that "[f]urthermore, even if there is a disclaimer in the manual, an employer may nevertheless be found to have manifested an intent to be bound by its terms if the manual contains mandatory termination procedures or requires 'just cause' for termination." Id.

¶ 53 If employees could not reasonably construe anything in the manual as a promise of either procedural or substantive employment rights, an implied contract claim fails irrespective of whether there was a clear and conspicuous disclaimer. Jaynes , 148 P.3d at 248 ; George v. Ute Water Conservancy Dist. , 950 P.2d 1195, 1198 (Colo. App. 1997). This is so because a fundamental requirement of all contracts is that the terms of a contract "must be sufficiently definite to enable the court to determine whether the contract has been performed or not." Stice v. Peterson , 144 Colo. 219, 224, 355 P.2d 948, 952 (1960) (quoting Newton Oil Co. v. Bockhold , 115 Colo. 510, 518, 176 P.2d 904, 908 (1946) ); see also Sheridan Redevelopment Agency v. Knightsbridge Land Co. , 166 P.3d 259, 262 (Colo. App. 2007). If the disclaimer is not clear and conspicuous, it is wholly ineffective to displace promises contained in the handbook that are relied on by the employees. See Ferrera , 799 P.2d at 461.

¶ 54 To the extent that some divisions of this court have held that even when the disclaimer is clear and conspicuous, the case nevertheless goes to the jury, we cannot subscribe to that result because it gives insufficient weight to a clear and conspicuous disclaimer. See People v. Smoots , 2013 COA 152, ¶ 20, 396 P.3d 53 (holding that we are not bound by the decisions of other divisions of this court). That result also is not faithful to supreme court cases that have repeatedly reaffirmed the doctrine of at-will employment in Colorado (subject to several enumerated exceptions). See, e.g. , Keenan , 731 P.2d 708.

¶ 55 The purpose of a disclaimer is to inform the employee that the employer is not making contractual promises and that the employee remains an employee at will. It is difficult to understand how a reasonable employee could believe that the employer has made contractual promises in the face of a clear and conspicuous disclaimer that says exactly the opposite.

¶ 56 Thus, we hold that when a clear and conspicuous disclaimer informs an employee that he or she cannot reasonably rely on termination procedures or substantive restrictions on termination contained in an employee manual, a claim based on an implied contract claim ordinarily fails as a matter of law.

¶ 57 We acknowledge that courts in other states have reached widely varying results on this question. See Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers , 13 Indus. Rel. L.J. 326 (1991-92) (collecting cases).

¶ 58 We perceive that the rule we apply here is the majority rule. See Fed. Exp. Corp. v. Dutschmann , 846 S.W.2d 282, 283 (Tex. 1993) ("A disclaimer in an employee handbook, such as the one included by Federal Express, negates any implication that a personnel procedures manual places a restriction on the employment at will relationship."); see also Davis v. Liberty Mut. Ins. Co. , 218 F.Supp.2d 256 (D. Conn. 2002) ; Anderson v. Douglas & Lomason Co. , 540 N.W.2d 277 (Iowa 1995) ;

Byrd v. Imperial Palace of Miss. , 807 So.2d 433 (Miss. 2001) ; Woolley v. Hoffmann-La Roche, Inc. , 99 N.J. 284, 491 A.2d 1257 (1985), modified , 101 N.J. 10, 499 A.2d 515 (1985) ; Ruzicki v. Catholic Cemeteries Ass'n of Diocese of Pittsburgh , 416 Pa.Super. 37, 610 A.2d 495 (1992) ; Bine v. Owens , 208 W.Va. 679, 542 S.E.2d 842 (2000) ; Bear v. Volunteers of Am., Wyo., Inc. , 964 P.2d 1245 (Wyo. 1998).

¶ 59 Other states hold that the existence of a disclaimer, even one that is clear and conspicuous, is but one factor in determining whether an employee manual forms an implied contract. See, e.g. , Brace v. Int'l Bus. Machs. Corp. , 953 F.Supp. 561, 567 (D. Vt. 1997) ; Gonsalves v. Nissan Motor Corp. in Haw., Ltd. , 58 P.3d 1196 (Haw. 2002) ; Lee v. Canuteson , 214 Ill.App.3d 137, 157 Ill.Dec. 900, 573 N.E.2d 318 (1991) ; Hunt v. Banner Health Sys. , 720 N.W.2d 49 (N.D. 2006) ; Hodgson v. Bunzl Utah, Inc. , 844 P.2d 331 (Utah 1992).

¶ 60 In view of the indisputable presence of clear and conspicuous disclaimers, we need not determine whether the Manual, in fact, creates sufficiently definite promises or rights capable of enforcement under contract law. As a matter of law, these disclaimers preclude a successful implied contract claim based on any rights other than those that effectuate the specific due process rights granted by section 30-10-506.

IV. Conclusion

¶ 61 That part of the district court's summary judgment order permitting Cummings to pursue an implied contract claim based on rights conferred in the Manual that effectuate the due process rights granted by section 30-10-506 is affirmed. In all other respects, the district court's summary judgment order is reversed, and on remand the court is directed to grant the Sheriff's motion for summary judgment to that extent.

JUDGE FREYRE concurs.

JUDGE BERNARD specially concurs.

JUDGE BERNARD, specially concurring.

¶ 62 I agree with the result that the majority reaches: although the district court properly denied the sheriff's motion for summary judgment concerning two statutory rights created by section 30-10-506, C.R.S. 2017, it erred when it denied the rest of the sheriff's motion. But, as I explain below, I employ a different rationale to reach the same result.

I. Introduction

¶ 63 When interpreting a statute, a court focuses on its plain language, "construing words and phrases according to the rules of grammar and common use." Roberts v. Bruce , 2018 CO 58, ¶ 8, 420 P.3d 284. The court's "central task is to give effect to the General Assembly's intent." Id. "To this end, [the court will] read the statute as a whole and seek to give consistent, harmonious, and sensible effect to all its parts." Id. "The plain language of the statute is the best indication of legislative intent, and clear and unambiguous language eliminates the need to resort to other principles of statutory construction such as legislative history...." People v. J.J.H. , 17 P.3d 159, 162 (Colo. 2001).

¶ 64 "If a statute is clear and unambiguous on its face, then [the court] need not look beyond the plain language and must apply the statute as written." McIntire v. Trammell Crow, Inc. , 172 P.3d 977, 979 (Colo. App. 2007). To put it another way, if a court can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written "since it may be presumed that the General Assembly meant what it clearly said." Griffin v. S.W. Devanney & Co. , 775 P.2d 555, 559 (Colo. 1989). If a statute is unambiguous, a court does not "resort to legislative history or further rules of statutory construction." Smith v. Exec. Custom Homes, Inc. , 230 P.3d 1186, 1189 (Colo. 2010).

¶ 65 My analysis in this case would begin and end with the language of section 30-10-506, which I will refer to as "section 506." As I explain below, I think that this language clearly and unambiguously describes a legislatively mandated rule that has been in effect in Colorado since 1877: sheriffs have the authority to fire their deputies at will.

¶ 66 Although the legislature amended section 506 in 2006, I do not believe that the amendments altered this rule. I recognize that the legislature may have intended to eliminate the rule and to completely overrule Seeley v. Board of County Commissioners , 791 P.2d 696, 699 (Colo. 1990). But it is my respectful view that the plain language that the legislature employed in section 506 achieved those purposes only to the extent that section 506 created two specific statutory rights, while it otherwise preserved the authority of sheriffs to fire deputies at will. For the purposes of this case, this means that the rules in the sheriff's personnel manual did not, and could not, override the sheriff's explicit statutory authority to fire the former deputy.

II. Comparison of the 1877 Statute and Section 506

¶ 67 As is pertinent to my analysis, the 1877 statute stated: "Each sheriff may appoint such and so many deputies as he may think proper ... and may revoke such appointments at his pleasure." G.L. 1877, § 493.

¶ 68 The language that the legislature adopted in 1877, with a few minor changes, remained in effect for 129 years. See Ch. 43, sec. 1, § 30-10-506, 2006 Colo. Sess. Laws 133 (showing that, before the 2006 amendment, the statute read, "Each sheriff may appoint as many deputies as he may think proper ... and may revoke such appointments at his pleasure.").

¶ 69 As a result of the legislature's 2006 amendments, section 506 now says:

Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments. Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the proposed revocation and shall give the deputy an opportunity to be heard by the sheriff.

¶ 70 Comparing judicial descriptions of employees who serve at the pleasure of an employer and of at-will employees, I conclude that there is no significant difference between them. "An employee who serves 'at the pleasure' of his employer generally may be discharged at any time without cause or formal procedure." Johnson v. Jefferson Cty. Bd. of Health , 662 P.2d 463, 471 (Colo. 1983). An at-will employee "may be terminated by either [the employee or the employer] without cause and without notice." Crawford Rehab. Servs., Inc. v. Weissman , 938 P.2d 540, 546 (Colo. 1997) (quoting Cont'l Air Lines, Inc. v. Keenan , 731 P.2d 708, 711 (Colo. 1987) ).

¶ 71 Our supreme court has carefully analyzed the language of the 1877 statute in a series of cases. I explain those opinions next.

III. Cases Analyzing the 1877 Statute

¶ 72 Because counties are political subdivisions of the State of Colorado, they only have "such powers as are expressly conferred ... by the constitution and statutes, and such incidental implied powers as are reasonably necessary to carry out such express powers." Bd. of Cty. Comm'rs v. Love , 172 Colo. 121, 125, 470 P.2d 861, 862 (1970), superseded by statute on other grounds , Ch. 213, 1979 Colo. Sess. Laws 843. In other words, a county department, "as a political subdivision of the state, may not by rule or regulation abdicate the authority and responsibility delegated to it by the legislature." Johnson , 662 P.2d at 471.

¶ 73 As a result, "a local government may not forbid that which the state has explicitly authorized." Id. This means that, if the legislature has given a county official the authority to terminate employees at will, then a county's personnel rules "do not override the explicit statutory authority of the [official] to discharge [an employee]." Id.

¶ 74 Seeley , 791 P.2d at 699, applied these principles when considering the language of the 1877 statute. The supreme court concluded that this plain language meant that a sheriff could not, via the sheriff's personnel policies collected in a personnel manual, "limit his power to terminate deputy sheriffs." Id. at 700. Those policies, the supreme court thought, contravened the 1877 statute, and, by doing so, the policies sought to "forbid that which the state has explicitly authorized." Id. (quoting Adams Cty. Sch. Dist. No. 50 v. Dickey , 791 P.2d 688, 690 (Colo. 1990) ).

To put it another way, the 1877 statute "did not authorize [the sheriff] to limit his statutory power to discharge deputy sheriffs at his pleasure." Id.

¶ 75 Seeley held that a local government entity, such as a sheriff's office, "may limit its power to terminate employees if it possesses the requisite statutory authority to do so." Id. at 699. Only the legislature can provide the "requisite statutory authority."

¶ 76 So what does such "statutory authority" look like? Dickey provides one example. In that case, a statute "authorize[d] school boards to adopt written policies, rules and regulations." Dickey , 791 P.2d at 692. The subjects of the rules and regulations were "inherently related to practices affecting the employment, promotion, and dismissal of personnel." Id. The statute did not require school boards "to adopt employment termination procedures," but "if they cho[ ]se to do so the promulgation of such procedures constitute[d] an authorized exercise of the powers granted to school boards" by the statute. Id.

¶ 77 The supreme court was careful to point out that the statutory language in Dickey "differ[ed] significantly from statutory provisions which have been held to override employment termination procedures established by local governments." Id. The court listed three cases to support this distinction.

¶ 78 In Johnson , the statute stated that a county public health officer "shall be appointed by the board [of health] to serve at the pleasure of the board." 662 P.2d at 471 (quoting § 25-1-505(1), C.R.S. 1973 ). The supreme court thought that this language "expressed the legislature's judgment that county boards of health should have the authority to discharge county public health officers 'at any time without cause or formal procedure.' " Dickey , 791 P.2d at 692 (quoting Johnson , 662 P.2d at 471 ).

¶ 79 In Kennedy v. Board of County Commissioners , 776 P.2d 1159, 1160 (Colo. App. 1989), a statute read that "[a]ny persons appointed to such offices shall serve at the pleasure of the board of county commissioners." A division of the court of appeals noted that this language "define[d] the employee as terminable at will and [it] supersede[d] any county declaration to the contrary." Id.

¶ 80 And, in Seeley , the supreme court considered the language in the predecessor statute to section 506 that we have quoted above: "Each sheriff may appoint as many deputies as he may think proper ... and may revoke such appointments at his pleasure." 791 P.2d at 699 (quoting § 30-10-506, C.R.S. 1986 ). The court in Dickey decided that this language made "deputy sheriffs employees at will," and, as a result, sheriffs had "no power to alter the employment status of deputy sheriffs through the promulgation of employee manuals." 791 P.2d at 692.

IV. Interpretation of Section 506

¶ 81 Applying the principles of statutory construction that I described in the Introduction, I conclude that the language in section 506 is plain and clear. I think that it continues the legislatively mandated rule that appeared in the 1877 statute: a sheriff may terminate a deputy's appointment "at will." This means that a sheriff may fire a deputy "without cause and without notice," Crawford Rehab. Servs., Inc. , 938 P.2d at 546, and that such a decision "does not give rise to a cause of action," Dickey , 791 P.2d at 691.

¶ 82 Next, the legislature also has the authority to "create[ ] exceptions to the employer's general right to terminate an employee at-will." Crawford Rehab. Servs., Inc , 938 P.2d at 546. I find two of those exceptions in section 506: a sheriff must give a deputy (1) notice of the reason why he or she is firing the deputy; and (2) an opportunity "to be heard by the sheriff." In other words, section 506 limits a sheriff's at-will authority to fire a deputy in these two ways. See Crawford Rehab. Servs., Inc. , 938 P.2d at 546.

¶ 83 But what is the effect of the language in section 506 that requires sheriffs to adopt policies "for the review of revocation of appointments"? Does it set out additional exceptions to "the employer's general right to terminate an employee at-will"? Crawford Rehab. Servs., Inc. , 938 P.2d at 546. I would answer the second question "no."

¶ 84 The requirement that a sheriff must adopt policies for reviewing the decision to fire a deputy is not accompanied by language stating that a sheriff is bound by those policies, or that the sheriff must "follow" or "comply with" them, or that they "control," "modify," or "limit" the sheriff's discretion to fire deputies at will. And I cannot add such language to section 506 in the course of interpreting it. Williams v. Dep't of Pub. Safety , 2015 COA 180, ¶ 85, 369 P.3d 760 ("[W]hen interpreting a statute, 'we must accept the General Assembly's choice of language and not add or imply words that simply are not there.' " (quoting People v. Benavidez , 222 P.3d 391, 393-94 (Colo. App. 2009) ) ); Carruthers v. Carrier Access Corp. , 251 P.3d 1199, 1204 (Colo. App. 2010) ("[W]e will not interpret a statute to mean that which it does not express.").

¶ 85 So what purpose does the requirement in section 506 that sheriffs adopt policies "for the review of revocation of appointments" serve? I conclude that the policies are "discretionary rather than mandatory termination procedures," Jaynes v. Centura Health Corp. , 148 P.3d 241, 249 (Colo. App. 2006), because the requirement is not accompanied by statutory language requiring sheriffs to follow the policies. Cf. Kreimeyer v. Hercules, Inc. , 892 F.Supp. 1374, 1378 (D.C. Utah 1994) (discretionary personnel policies were guidelines or a management tool and did not create an implied employment contract).

¶ 86 Because I conclude that the legislatively mandated at-will employment rule survived the 2006 amendments, I think the supreme court cases that interpreted the 1877 statute still apply to this case. I would therefore additionally conclude that, although the legislature amended the 1877 statute in 2006, the continued presence of the legislatively mandated at-will employment rule in section 506 means that the resolution of this case is controlled by Seeley instead of Dickey . As the supreme court pointed out in Seeley , the 1877 statute "explicitly authorize[d] ... sheriffs to discharge deput[ies] ... at their pleasure." 791 P.2d at 699. Section 506 does the same thing. So section 506 "did not authorize [the sheriff] to limit his statutory power to discharge deput[ies] ... at his pleasure." Seeley , 791 P.2d at 699-700 ; see Johnson , 662 P.2d at 471 ("We conclude ... that the ... personnel rules, even though adopted by the board of health, do not override the explicit statutory authority of the board to discharge a public health officer appointed by the board.").

¶ 87 Turning to the statute in Dickey , it did not make an explicit reference to school boards having the power to terminate employment at will, and it did not state that employees served at the pleasure of the school boards. Rather, it gave the school boards discretionary powers "[t]o discharge or otherwise terminate the employment of any personnel." Dickey , 791 P.2d at 691. Section 506 is different: it expressly gives sheriffs the authority to terminate deputies' employment at will by clearly stating that sheriffs "may revoke" the appointments of deputies "at will."

¶ 88 The supreme court observed in Kennedy , 776 P.2d at 1160, that statutory provisions such as section 506 "have been construed to bar claims for breach of contract based on assurances in an employee handbook under the rationale that such a statute defines the employee as terminable at will and the statute supersedes any county declaration to the contrary." Accord Johnson , 662 P.2d at 471 (A county's personnel rules "do not override the explicit statutory authority of the [official] to discharge [an employee]."). Relying on Seeley , Kennedy , and Johnson , I would therefore conclude that section 506 bars the deputy's claim in this case that the sheriff's employment policies, as embodied in the policy manual, created an implied employment contract that the Sheriff breached when he fired the deputy.

¶ 89 To summarize, reading the three components of section 506 together leads me to conclude that (1) the legislature preserved the rule that it first adopted in 1877 that sheriffs have the authority to terminate deputies' appointments at will; (2) this authority is now subject to two exceptions and to two exceptions only; and, therefore, (3) the legislature made clear that sheriffs have "no [additional] power to alter the employment status of deputy sheriffs through the promulgation of employee manuals." Dickey , 791 P.2d at 692.

¶ 90 I would therefore, like the majority, (1) affirm the district court's order denying the sheriff's motion for summary judgment with respect to two specific statutory rights created by section 506; but (2) otherwise reverse the court's order denying the motion.

      Under Colorado law, an "at will employee" is one whose "employment may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action." Cont'l Air Lines, Inc. v. Keenan , 731 P.2d 708, 711 (Colo. 1987).

      That claim is not before us on this interlocutory appeal.

      Later in the opinion, the division suggests another basis for its decision: "[W]hile the disclaimer provisions[ ] are clear, they were not emphasized. Indeed, they contain nothing to make them conspicuous." Evenson v. Colo. Farm Bureau Mut. Ins. Co. , 879 P.2d 402, 409 (Colo. App. 1993).

      In both Jaynes v. Centura Health Corp. , 148 P.3d 241, 248 (Colo. App. 2006), and George v. Ute Water Conservancy Dist. , 950 P.2d 1195, 1198 (Colo. App. 1997), divisions of this court were able to avoid either reconciling or disagreeing with the cases cited above. In both of those cases, the divisions concluded that the plaintiffs failed to cite policies in the employers' manuals that could be construed as a promise of either procedural or substantive rights and thus failed to show that the manuals created an implied contract or were binding on promissory estoppel principles. Jaynes , 148 P.3d at 248 ; George , 950 P.2d at 1198.

      We do not eliminate the possibility that evidence other than the employee manual and the disclaimer could result in a factual question of whether an implied contract has been formed. Indeed, these facts seem to be in play in Evenson , 879 P.2d at 409, where the division referred to testimony by the company's managers to the effect that they regarded the disciplinary procedures as mandatory and treated them as mandatory. Whether viewed as an amendment to or an implied revocation of the disclaimer, facts such as those may well preclude summary judgment and require the fact finder to ultimately determine whether an implied contract was created. See I.M.A., Inc. v. Rocky Mountain Airways, Inc. , 713 P.2d 882, 887 (Colo. 1986) ("[I]t is for the jury to determine whether the parties have entered into a contract."). But Cummings neither pleaded such circumstances nor supported his summary judgment opposition with such evidence.

      Because no promissory estoppel claim was pleaded in this case, we do not address the legal effects of clear and conspicuous disclaimers on such claims.