Background
Dale S. Stone was convicted of second degree burglary, first degree criminal trespass, and third degree sexual assault. The district court merged the burglary and trespass convictions, imposed a 24-year Department of Corrections sentence, and imposed a consecutive two-year county-jail sentence for the misdemeanor.
Nearly 30 years later, Stone sought to have the misdemeanor sentence made concurrent with the prison sentence. The district court declined to alter the consecutive sentence but concluded that Stone should have served the jail sentence before beginning her prison sentence. It ordered her returned to the Adams County Detention Center to serve it.
The Court’s Holding
The Colorado Court of Appeals vacated the portion of the order requiring Stone’s immediate remand to county jail and otherwise affirmed. Stone’s challenge was cognizable under Crim. P. 35(a) because a claim that a sentence conflicts with the governing statutory scheme may be raised at any time.
But the statute the district court relied on, section 18-1.3-501(1)(c), was enacted in 2007 and did not govern Stone’s earlier sentence. The statute in effect when she was sentenced permitted a consecutive misdemeanor jail sentence to be served after the prison term. The court declined to consider Stone’s new appellate argument that the sentence had expired because its service was interrupted, as she had not raised that claim below.
Key Takeaways
- The legality of a sentence is determined under the statute in effect when the sentence was imposed.
- A later-enacted rule requiring a consecutive misdemeanor jail term to precede a DOC sentence did not apply to Stone.
- A claim raised for the first time on appeal will not be considered when it was not presented in the postconviction motion.
Why It Matters
The decision underscores that later sentencing reforms do not retroactively invalidate sentences that were authorized when imposed. It also confirms that, absent a governing statutory requirement, a consecutive misdemeanor jail sentence may remain to be served after a defendant completes a prison term.