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Date: 12-18-2017

Case Style:

Ervin Isom v. The People of the State of Colorado

Supreme Court of the State of Colorado

Case Number: 2017 CO 110

Judge: Brian D. Boatright

Court: Supreme Court of the State of Colorado

Plaintiff's Attorney: Cynthia H. Coffman, Attorney General
Wendy J. Ritz, First Assistant Attorney General

Defendant's Attorney: Antony Noble 20

Description: A jury found Isom guilty of sexual assault on a child, which carries a maximum
presumptive sentence of six years. After an evidentiary hearing, the trial court found
that Isom was a habitual sex offender against children and sentenced him under the
habitual sex offender statute. Concluding that the bottom end of the enhanced sentence
did not have a maximum, the trial court sentenced Isom to an indeterminate term of
forty years to life on that charge.
¶3 Isom filed a direct appeal, raising a number of arguments unrelated to the issues
now before us. The court of appeals rejected those arguments and affirmed his
conviction and sentence. People v. Isom, 140 P.3d 100 (Colo. App. 2005).
¶4 Isom later filed a Crim. P. 35(a) motion, arguing that the forty-years-to-life
sentence was illegal because the maximum permissible sentence for his offense was
eighteen years to life. The court of appeals agreed with Isom that his sentence was
illegal, but it concluded that thirty-six years to life was the maximum permissible
sentence for his offense. People v. Isom, 2015 COA 89, ¶ 34, ___ P.3d ___. The court of
appeals noted that the statute governing aggravated sentences for habitual sex
offenders against children does not appear to impose a maximum for the bottom end of
2 The steps for calculating the maximum permissible bottom end of a habitual offender’s indeterminate sentence can be expressed by the following equation: presumptive maximum (6 years) multiplied by the habitual offender multiplier (3) times the maximum aggravating circumstances factor (2) equals 36.


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an enhanced, indeterminate sentence. Id. at ¶ 14. But it applied this court’s holding in
Vensor v. People, 151 P.3d 1274 (Colo. 2007), to conclude that the felony sentencing
statutory scheme as a whole limited Isom’s sentence to thirty-six years to life. Isom,
¶¶ 20–29. We granted certiorari and now affirm.
II. Standard of Review
¶5 Statutory interpretation is a question of law that this court reviews de novo.
Hunsaker v. People, 2015 CO 46, ¶ 11, 351 P.3d 388, 391.
III. Analysis
¶6 Indeterminate sentencing for sex offenders in Colorado is governed by section
18-1.3-1004, C.R.S. (2017). The general sex offender sentencing provision in section
1004(1)(a) (“the general sex offender statute”) provides for a sentence of at least the
minimum of the presumptive range in the sentencing statute in section 18-1.3-401 (“the
general sentencing statute”) and for a maximum of life. For sex offenders whose
offense constitutes a crime of violence, section 1004(1)(b) provides for a sentence of at
least the midpoint in the presumptive range for the level of offense committed and a
maximum of life. And for offenders eligible for sentencing as habitual sex offenders as
defined by section 18-3-412, C.R.S. (2017), the habitual sex offender provision in section
1004(1)(c) (“the habitual sex offender statute”) provides for a sentence of “at least” three
times the presumptive maximum and a maximum of life. In this case, we must
determine the limits for the lower end of a sentence imposed under the habitual sex
offender statute in section 1004(1)(c).


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¶7 The parties agree that because the conviction at issue here is a sex offense, the
trial court properly sentenced Isom to an indeterminate sentence with a maximum
sentence of life. But they dispute whether the trial court properly set the minimum end
of Isom’s indeterminate sentence at forty years.
¶8 The People argue that Isom’s sentence is proper because the statutory scheme
allows a trial court to impose any minimum end equal to or greater than eighteen years.
They assert that the habitual sex offender statute, section 1004(1)(c), requires only that
the minimum sentence be “at least” triple the presumptive maximum—in this case six
years—and does not impose an upper limit. The People’s rationale is that the habitual
sex offender statute is an entirely different sentencing scheme, not subject to limitations
or conditions in the broader sentencing framework.
¶9 Isom, on the other hand, argues that his sentence is illegal because the statutory
scheme requires the trial court to set the minimum value of his sentence at eighteen
years. He notes that the habitual sex offender statute sets the enhanced lower limit at
three times the presumptive maximum, but the general felony sentencing statute,
section 18-1.3-401, sets the enhanced lower limit at two times the presumptive
maximum. Rather than sextupling the presumptive maximum, Isom argues that the
habitual sex offender statute trumps the general sentencing statute’s limit and controls
alone. In other words, since the habitual sex offender statute triples the minimum
sentence, the general sentencing statute—which only allows a court to at most double
the minimum sentence—is inapplicable. Therefore, Isom would have us set the lower


6
bound of the indeterminate sentence precisely at three times the presumptive maximum
and set the upper bound at life.
¶10 To determine Isom’s range, we first look to the range for the underlying sexual
assault-on-a-child offense: two to six years. §§ 18-3-405(2), 18-1.3-401(1)(a)(V)(A), C.R.S.
(2017). We then apply the habitual sex offender sentencing statute, which directs the
trial court to sentence the defendant to at least three times the maximum of the
presumptive range. In this case, that is six years multiplied by three; therefore, the
sentence is “at least” eighteen years to life. The statute, however, does not specify a
maximum bottom end to the indeterminate sentence. Hence, we must now determine
whether there is a maximum permissible bottom end of the indeterminate sentence for
the charge. Simply stated, what does “at least” mean in this context?
¶11 Our analysis of this issue is guided by our prior decision in Vensor, where we
examined a similar question regarding the general sex offender sentencing statute. That
section of the sentencing statute, 1004(1)(a), is structured much the same way as the
habitual sex offender statute, section 1004(1)(c), as it requires an indeterminate sentence
with an upper bound of life. Specifically, section 1004(1)(a) modifies and enhances the
presumptive minimum and maximum limits applicable to non-violent, non-habitual
cases by providing for “an indeterminate term of at least the minimum of the
presumptive range specified in section 18-1.3-401 for the level of offense committed and
a maximum of the sex offender’s natural life.” § 18-1.3-1004(1)(a) (emphasis added). In
Vensor, we deemed this language ambiguous because it raised the same question we
face today: Is the lower bound of a sex offender’s indeterminate sentence upwardly


7
variable, and if so, to what extent? See Vensor, 151 P.3d at 1277 (“[T]he language of the
statute itself is far from clear about the precise limitations intended for the lower term of
an indeterminate sex offender’s sentence.”).
¶12 The court of appeals in Vensor found as the People would have us find here:
That there is no upper limit on the minimum sentence. See People v. Vensor, 116 P.3d
1240, 1242 (Colo. App. 2005). We rejected that argument in Vensor, concluding that
“[s]uch a cramped reading would effectively render the imposition of an indeterminate
sentence discretionary with the sentencing court. Simply by imposing a sentence with
an extremely long lower term, the sentencing court could collapse an ostensibly
indeterminate sentence into a determinate one of life imprisonment . . . .” Vensor, 151
P.3d at 1278. We determined that such a construction was not only logically
inconsistent, but that it was also contrary to the legislative intent “to provide for
treatment and extended supervision, rather than to punish sex offenders with terms of
incarceration longer than those of other felons of the same class.” Id.
¶13 In Vensor, we also considered whether the enhanced minimum had to be
imposed as the bottom end of the range without any judicial discretion—the argument
that Isom makes in the present case. We concluded that was also contrary to legislative
intent because it would deprive the sentencing courts of any discretion whatsoever. Id.
We rejected such a reading because it would “transfer all discretion in sentencing from
the courts to the parole board.” Id. If the lower limit can be neither boundless nor
fixed, the Vensor court reasoned, there must be a limiting principle. See id. at 1279.


8
¶14 To find an upper limit for the minimum end of the sentence, we reasoned that
the enhanced sentencing range was still subject to the broader statutory framework
governing sentencing. Id. at 1279 (“[I]t would be extraordinary . . . to understand
words limiting the court’s discretion at the lower end of the sentencing range to
implicitly eliminate all other sentencing constraints, [and] there is particular reason to
believe this was not intended of sex offender sentencing.”). Those particular reasons
were that the relevant legislative history strongly indicated that the General Assembly
did not intend to more fundamentally alter the sentencing landscape for sex offenses.
Id. (“Testifying before the House Judiciary Committee, Representative Norma
Anderson, the Act’s sponsor, emphasized three separate times that the Act was not
intended to change the sentencing guidelines already in place under Colorado
law.”(citation omitted)). Having determined that the enhanced penalties were subject
to other sentencing limits and procedures, we then examined these other provisions.
¶15 We looked to the “fundamental mechanism for felony sentencing,” section
18-1.3-401. Vensor, 151 P.3d at 1279; see also id. at 1280 (“[T]he lower term of a sex
offender’s indeterminate sentence must be fixed according to the provisions of the
determinate sentencing scheme of section 18-1.3-401.”). Section 401(6) states that even
when the court finds extraordinary aggravating circumstances, “in no case shall the
term of sentence be greater than twice the maximum . . . authorized in the presumptive
range for the punishment of the offense.” The Vensor court concluded that the
minimum end of an enhanced sentence for a general sex offense was subject to a hard
cap of twice the enhanced sentence. Id.


9
¶16 In this case, we follow Vensor and read the habitual sex offender statute, section
1004(1)(c), similarly. Section 18-1.3-1004(1)(c) is structured much the same as (1)(a), the
general sex offender statute at issue in Vensor. It enhances the presumptive sentence to
“an indeterminate term of at least three times the upper limit of the presumptive range
for the level of offense committed and a maximum of the sex offender’s natural life.”
We read the first phrase—“at least three times the upper limit of the presumptive
range”—as referring to the minimum length of time in a habitual offender’s
indeterminate sentence. We read the second phrase—“and a maximum of the sex
offender’s natural life”—as setting the maximum length of time in the indeterminate
sentence.
¶17 The People’s position here would lead to incongruous results because, as the
Vensor court noted, a sentencing court could set the minimum to any length of time up
to the defendant’s natural life—a sentence of “life to life” which operates as a
determinate sentence. See 151 P.3d at 1278. That would be contrary to the legislative
scheme. It would punish sex offenders more harshly than other felons who have
committed the same class of felony, and it would eliminate the role of the parole board.
Similarly, Isom’s position, where the court would have no discretion regarding the
sentence, would be contrary to the legislative scheme allowing sentencing courts to
consider particular aggravating or mitigating circumstances. Therefore, as in Vensor,
we deem ambiguous the minimum sentence under the habitual sex offender statute,
section 1004(1)(c), and we look to the broader sentencing framework for guidance.


10
¶18 As we did in Vensor, we focus on the generally applicable sentencing scheme in
subsection 401 for guidance. Specifically, we focus on section 18-1.3-401(6), which gives
a court the authority to enhance a sentence if it finds extraordinary aggravating
circumstances:
If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.

18-1.3-401(6), C.R.S. (2017) (emphases added). We conclude that this provision limits
the minimum end of a sex offender’s indeterminate sentence to twice the presumptive
maximum as already enhanced by the habitual sex offender statute, section 1004(1)(c).
Because the enhanced minimum sentence of a habitual offender’s indeterminate
sentencing range is three times the presumptive maximum, twice that is six times the
presumptive maximum. Therefore, upon a finding of extraordinary aggravating
circumstances, a sentencing court may set the minimum end of a habitual sex offender’s
indeterminate sentence at any point between three and six times the presumptive
maximum. Without a finding of extraordinary aggravating circumstances, the trial
court must set the lower end of the sentence at triple the presumptive maximum only.
¶19 In conclusion, we hold that to calculate the maximum permissible term for the
bottom end of an indeterminate sentence for a habitual sex offender, a trial court must
triple the maximum of the presumptive range for the offense, pursuant to section
18-1.3-1004(1)(c), and then may double the resulting figure pursuant to section
18-3-401(6) if the court finds extraordinary aggravating circumstances. In that instance,


11
the trial court retains discretion to impose a minimum sentence between the minimum
tripling and the maximum sextupling of the presumptive maximum. In so doing, we
give meaning to the phrase “at least” in section 18-1.3-1004(1)(c).
¶20 The sentencing statutes for sex offenders have been repeatedly amended over the
years. Our decision today is an attempt to give effect to the legislative scheme while
remaining consistent with general principles of statutory construction and sentencing.
IV. Application
¶21 Isom was convicted of sexual assault on a child, a class four felony with a
presumptive range of two to six years, and was adjudicated a habitual sex offender
against children. Section 18-1.3-1004(1)(c) requires trial courts to sentence habitual sex
offenders against children to at least three times the maximum of the presumptive
range; in this case, three times six is eighteen years. Applying section 18-1.3-401(6)’s
language limiting aggravated sentences to twice the maximum of the authorized
presumptive range, the maximum of the bottom end of a habitual-offender-enhanced
indeterminate sentence shall not be greater than two times triple the presumptive
maximum found in section 401; in this case, two times three times six equals thirty-six
years. Therefore, the bottom end of Isom’s indeterminate sentence is eighteen years.
Upon resentencing, if the court makes a finding of extraordinary aggravating
circumstances, the bottom end may be enhanced up to thirty-six years.

Outcome: We affirm the judgment of the court of appeals, and we remand this case to that
court with instructions to return the case to the trial court for resentencing consistent with this opinion.

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