SUMMARY May 21, 2020 **2020COA80**
**No. 17CA1304,**  **People v. Chavez**
**— Criminal Procedure** 
**— Postconvic**  **tion Remedies**
**— Reduction of Sentence; Criminal** 
**Law**
**— Sentencing** 
**— Punishment for Habitual Criminals** 
**— Mandatory Sentences for Violent Crimes**  Defendant, Nehemiah Felipe Chavez, appeals the district court’s order denying his Crim. P. 35(b) motion for sente nce reconsideration. He contends that the court should not have imposed consecutive sentences under the crime of violence statute because he was sentenced under the habitual criminal statute. Applying the principles of statutory construction set forth in People v. Adams , 2016 CO 74 , a division of the court of appeals agrees with the trial court and concludes, like an earlier division

— see People v. Pena , 794 P.2d 1070 (Colo. App. 1990), overruled on other grounds by Robles v. People , 811 P.2d 804 (Colo. 1991)

— that The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.there is no conflict between the two provisions. Thus, the division concludes that (1) both provisions applied to Chavez and (2) they required the district court to impose Chavez’s two habitual offender
sentences to run consecutively.COLORADO COURT OF APPEALS **2020COA80**
Court of Appeals No. 17CA1304 Weld County District Court No. 11CR378 Honorable Shannon D. Lyons , Judge
The People of the State of Colorado, Plaintiff

- Appell ee ,

v. Nehemiah Felipe Chavez , Defendant

- Appell ant

.

ORDER AFFIRMED
Division IV Opinion by JUDGE FURMAN Welling and Pawar , JJ., concur Announced May 21 , 2020
Philip J. Weiser , Attorney General, Brock J. Swanson , Senior Assistant Attorney General, Denver, Colorado, for Plaintiff

- Appell ee Megan A. Ring , Colorado State Public Defender, Heather Wong , Deputy State Public Defender, Denver, Colorado, for Defendant

- Appell ant1 ¶ 1 Defendant, Nehemiah Felipe Chavez, appeals the district court’s order denying his Crim. P. 35(b) motion for sentence reconsideration. He contends that the court should not have imposed consecutive sentences under the crime of violence statute because h e w as sentenced under the habitual criminal statute. We disagree and , therefore , affirm the order.
I. Chavez’s Sentence ¶ 2 A jury found Chavez guilty of two counts of attempted second degree murder and one count of attempted manslaughter. The jury also found that Chavez’s two convictions for attempted second degree murder were crimes of violence. ¶ 3 The district court found that Chavez had three prior felonies and adjudicated him a habitual criminal. ¶ 4 On each conviction for attempted second degree murder, the court sentenced Chavez to sixty

- four years in the custody of the Department of C orrections (DOC)

— the mandatory sentence u nder the habitual criminal statute

. See § 18

- 1.3

- 801 (2)(a)(I), (2)(a)(I)(A) , C.R.S. 2019. Then, the court applied the crime of violence statute’s consecutive sentencing requirement, which provides that a “court shall sentence a person convicted of two or more separate crimes of2 violence arising out of the same incident so that his or her sentences are served consecutively rather than concurrently.” § 18

- 1.3

- 406(1) (a) , C.R.S. 2019. Because Chavez ’s two convictions were crimes of viole nce arising out of the same incident, t he court ordered Chavez’s two sentences to run consecutively

. The court also imposed a concurrent twelve

- year sentence on the attempted manslaughter conviction. All told, Chavez received an aggregate sentence of 128 years. ¶ 5 On direct a ppeal, a division of this court affirmed the judgment of conviction. See People v. Chavez , (Colo. App. No. 12CA1774, Dec. 17, 2015) (not published pursuant to C.A.R. 35(f)). ¶ 6 Chavez then filed a Crim. P. 35(b) motion and a supplemental brief in which he contended that the court should impose all th ree of his sentences to run concurrently

. He claimed that section
18

- 1.3

- 406(1)(a) ’s consecutive sentencing requirement should not apply where a defendant is sentenced under the habitual criminal

s tatut e, section 18

- 1.3

- 801

. ¶ 7 The district court denied Chavez’s motion , concluding that the crime of violence statute required it to impose consecutive3 sentences on his two convictions for attempted second degree murder

. II. Standard of Review ¶ 8 We review a ruling on a Crim. P. 35(b) motion for an abuse of discretion. People v. Rodriguez , 914 P.2d 230, 288 (Colo. 1996). A court abuses its discretion if it misinterprets or misapplies the law. People v. Henson , 201 3 COA 36 , ¶ 9

. The proper interpretation of a sentencing statute presents a question of law, which we review de

novo. People v. Adams , 2016 CO 74, ¶ 12 . So , here, we review de

novo whether the district court misinterpreted or misapplied the sentencing statutes

. III. Analysis ¶ 9 Chavez does not dispute that his two convictions for attempted second degree murder constituted “separate crimes of violence arising out of the same incident ” under section 18

- 1.3

- 406(1)(a). Thus, the crime of violence statute required the district court to impose consecutive sentences on those two convictions. ¶ 10 But Chavez contends that th e consecutive sentencing requirement in the crime of violence statute does not apply whe n a defendant is sentenced under the habitual criminal statute.4 ¶ 11 A division of this court previously addressed the same issue we now face. See People v. Pena , 794 P.2d 1070 , 1071

- 72 (Colo. App. 1990), overruled on other grounds by Robles v. People , 811 P.2d 804 , 806

- 07 (Colo. 1991). In Pena , the division recognized that the habitual criminal statute preempts one provision in the crime of violence statute

. See id. The first sentence of section
18

- 1.3

- 406(1)(a) requires that the length of a sentence for a crime of violence be “at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense in
section 18

- 1.3

- 401(1)(a), [C.R.S. 2019] .” That provision is incompatible with , for example, the habitual criminal statute requiring a sentence of either three times or four times the maximum of the presumptive range. See § 18

- 1.3

- 801( 1.5), (2). So , the Pena division h eld that the habitual criminal statute preempts incompatible provision s of the crime of violence statute. 794 P.2d
at 1071

- 72; see also People v. Hoefer , 961 P.2d 563, 568

- 69 (Colo. App. 1998) (same). ¶ 12 But Pena held that “the preemptive scope of the habitual criminal statute does not extend so far as to preclude the mandatory consecutive sentencing requirement for multiple crimes5 of violence arising out of the same incident.” 794 P.2d at 1072. We agree with Pena

. ¶ 13 The ha bitual criminal statute says nothing about whether multiple habitual criminal sentences should be imposed
consecutive ly or concurrent ly

. See generally § 18

- 1.3

- 801. And the provision in the habitual criminal statute under which Chavez was sentenced says nothing about the situation of triggering offenses being crimes of violence. See § 18

- 1.3

- 801(2)

. Because the crime of violence statute’s consecutive sentencing requirement does not conflict with the habitual crimin al statute , we must give effect to both

. ¶ 14 Adams is persuasive authority on the issue. There, the supreme court faced “the intersection of two sources of sentence enhancement ” : s ection 18

- 1.3

- 401(8)(a)(IV) , which require s a n aggravated sentence range , and section 18

- 3

- 203(1)(f), C.R.S. 2019, which require s consecutive sentenc es . Adams , ¶¶ 2, 13

- 17. The
court conclude d there was no conflict between these provisions. Id. at ¶ 11. It explained, The plain language of these two statutes permits us to give effect to both provisions. A specific or local provision may apply to the6 exclusion of a general provision, but that rule only applies where “the conflict between the provisions is irreconcilable.” § 2

- 4

- 205 [, C.R.S. 2019]

. . . . Her e, there is no such conflict. A defendant can be sentenced to a greater number of years based on the general aggravator, and he can be made to serve that sentence [consecutively] following completion of his other sentences. We therefore apply both provis ions. Id. at ¶ 16; see also People v. Opana , 2017 CO 56, ¶ 11 (“If a statute is clear and unambiguous, and is not in conflict with another statute, it must simply be applied as written.”)

. ¶ 15 Likewise, we conclude there is no conflict between the habitual criminal statute and the crime of violence statute’s consecutive sentencing requirement. So, we must give effect to both

. ¶ 16 But wait, say s Chavez . His interpretation of the statutory scheme avoid s the unjust and unreasonable result that the habitu al offender sentence enhancements could mandate a harsher sentence for an individual who commits multiple crimes of violence arising out of a single occasion than one who does so through separate and distinct criminal episodes. But we see nothing unjust

o r unreasonable about this result . The legislature has mandated a harsher, consecutive , sentence for crimes of violence arising out of a7 single incident and has not done so for crimes of violence arising out of separate incidents

. ¶ 17 Chavez also contends that we should construe the statutory scheme to preserve district courts’ sentencing discretion. See, e.g. , People v. Padilla , 907 P.2d 601, 609

- 10 (Colo. 1995) (“ We decline to interpret [a particular statute and rule of criminal procedure] in a

manner that compromises the effectiveness of discretionary sentencing.”)

. But the legislature has removed this discretion in cases such as the present one. ¶ 18 Chavez also asks us to c onsider the statutory construction aids enumerated in section 2

- 4

- 203, C.R.S. 201 9 , along with the rule of lenity. See People v. Thoro Prod s . Co. , 70 P.3d 1188, 1198 (Colo. 2003) (“[A] mbiguity in the meaning of a criminal statute must be interpreted in favor of the defendant under the rule of lenity. ”).
But t h e se principles apply only where a statut ory scheme is ambiguous. § 2

- 4

- 203(1); Thoro Prods. Co. , 70 P.3d at 1198. We discern no ambigu ity in the fact that both section 18

- 1.3

- 801(2) and the last sentence of section 18

- 1.3

- 406(1)(a) apply

. So, we need not rely on these principles

.8 ¶ 19 That this is an appeal of the district court’s order denying Chavez’s Crim. P. 35(b) motion does not change the analysis.

“ Under Crim. P. 35(b), the court ’ s discretion is constrained by applicable statutory limits. ” People v. Dunlap , 36 P.3d 778, 781 (Colo. 2001). “ Crim. P. 35(b) cannot expand the trial court ’ s authority in resentencing beyond that which it had initially. ” Id.

“ The same statutes that governed the original sentencing limit the trial court ’ s authority on resentencing. ” Id. ¶ 20 At oral argument, Cha vez argued for the first time that the district court had the discretion in a Crim. P. 35(b) proceeding to change consecutive sentences to concurrent sentences under the provision in section 18

- 1.3

- 406(1)(a) allowing a court to modify a sentence “in a case which it considers to be exceptional and to involve unusual and extenuating circumstances.” Because Chavez did not raise this argument in the district court to preserve it for appeal , we will not consider it. See People v. Huggins , 2019 COA 116, ¶ 17 (“ When a defendant does not raise an issue in a postconviction motion or during the hearing on that motion, and the postconviction court therefore does not have an opportunity to9 rule on the issue, as a general rule, the issue is not properly preserved for a ppeal and we will not consider it.”). ¶ 21 We recognize that Chavez’s aggregate DOC sentence is lengthy

. But r eviewing the applicable sentencing statutes de novo, we conclude that the y required the district court to impose consecutive sentences on Chavez’s two convictions for attempted second degree murder. Thus, t he court did not abuse its discretion in denying Chavez’s Crim. P. 35(b) motion.
IV. Conclusion ¶ 22 The order is affirmed. JUDGE WELLING and JUDGE PAWAR concur.