SUMMARY October 6 , 20 22 2022COA115
No. 19CA1007 , People v. Dennel
— Children’s Code
— Juvenile Court
— Delinquency
— Transfers In this appeal, a division of the court of appeals interprets a provision of the juvenile transfer statute contained in the Children’s Code. The defendant was charged in juvenile court with committing a delinquent act that if committed by an adult would constitute a class 2 felony. On the date of the alleged offense, the defendant was fifteen years old and had no prior felony adjudications or convictions. On the People’s motion and after a contested hearing, the juvenile court waived its jurisdict ion and transferred the defendant’s case to district court for adult criminal proceedings. Once the case was transferred to district court, the defendant pleaded guilty to a class 4 felony and was sentenced as an adult. 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.On appeal, the defendant contends t hat he wasn’t statutorily

eligible to have his case transferred from juvenile court to district court because he didn’t have a prior felony adjudication. Relying on People v. Nelson , 2015 COA 123, ¶ 12, the defendant contends that, under section 19

- 2.5

- 80 2(1)(a)(I)(B), C.R.S. 2022, a child his age charged with a felony must have a previous delinquency adjudication for a felony before the juvenile court can transfer his case to district court. He argues that because he didn’t have a prior felony adjudicati on, the juvenile court erred by transferring his case and the district court never acquired jurisdiction over him under the transfer statute. Parting ways with the division in Nelson , this division of the court of appeals concludes that the plain meaning of the transfer statute doesn’t condition transfer eligibility on a previous delinquency adjudication. Because the defendant was eligible for transfer and he doesn’t otherwise challenge his transfer from juvenile court to district court, the division aff irms the defendant’s conviction and sentence.COLORADO COURT OF APPEALS 2022COA115

Court of Appeals No. 19CA1007 Pueblo County District Court No s . 17JD220 & 18CR2025 Honorable Deborah R. Eyler , Judge
The People of the State of Colorado, Plaintiff

- Appell ee ,

v. Johnny Joseph Dennel, Jr. , Defendant

- Appell ant

.

JUDGMENT AFFIRMED
Division III Opinion by JUDGE WELLING J. Jones and Schutz , JJ., concur Announced October 6 , 2022
Philip J. Weiser , Attorney General, Marixa Frias , Assistant Attorney General, Denver, Colorado, for Plaintiff

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

- Appell ant1

¶ 1 Defendant, Johnny Joseph Dennel, Jr., a juvenile, appeals the judgm ent of conviction entered by the district court after he pleaded guilty to manslaughter. ¶ 2 Dennel was charged in juvenile court with committing a delinquent act that if committed by an adult would constitute

seco nd degree murder, a class 2 felony. On the da te of the alleged offense, Dennel was fifteen years old and had no prior felony adjudications or convictions

. On the People’s motion and after a contested hearing, the juvenile court waived its jurisdiction and transferred Dennel ’s case to district court for adult criminal proceedings . Once the case was transferred to district court,
Denne l pleaded guilty to manslaughter, a class 4 felony, and was sentenced as an adult

. ¶ 3 On appeal , Dennel contends that he wasn’t statutorily eligible to have his case transfer red from juvenile court to district court because he didn’t have a prior felony adjudication

. Relying on People v. Nelson , 2015 COA 123, ¶ 12, Dennel contends that, under
section 19

- 2.5

- 802(1)(a )(I)(B), C.R.S. 2022 , a child his age charged with a felony must have a previous delinquency adjudication for a felony before the juvenile court can transfer his case to district2

court. He argues that because he d id n’t have a prior felony adjudication, th e juvenile court erred by transferring his case and the district court never acquired jurisdiction over him under the transfer statute

. ¶ 4 Parting ways with the division in Nelson , w e conclude that the plain meaning of the transfer statute doesn’t condition transfer eligibility on a previous delinquency adjudication. Because Dennel was eligible for transfer and he doe s n’t otherwise challenge his transfer from juvenile court to district court, we affirm the judgment

. I. Background ¶ 5 This case began when t he People filed a petition in juvenile
court alleging that Dennel had committed a delinquent act that constituted second degree murder, a class 2 felony , and that , at the
time of the alleged delinquent act, Dennel was fifteen years old. It ’ s

u ndisputed that when this case was filed , Denn el had no prior felony adjudication s or convictions

. ¶ 6 Seeking to charge Dennel as an adult, the People filed a motion requesting that the juvenile court waive its jurisdiction and transfer the case to district court pursuant to section 19

- 2.5

-3

802(1)(a)(I)(B). After a four

- day transfer hearing , t he juvenile court found probable caus e that Dennel had committed the alleged delinquent act and that it was in the best interest s of the community for the juvenile court to waive jurisdiction over Dennel. Thus, over Dennel’s objection, the juvenile court transferred the case to district cour t

. ¶ 7 Rather than standing trial on the second degree murder charge, Dennel agreed to plead guilty to manslaughter, a class 4 felony. The district court accepted Dennel’s guilty plea and sentenced him to a suspended ten

- year term in the custody of the Depa rtment of Corrections on the condition th at he complete a five

year term in the Youthful Offender System.
II. Dennel’s Transfer Eligibility Under Section 19

- 2.5

- 802(1)(a)(I)(B) ¶ 8 On appeal, Dennel contends that , under the transfer statute, a juvenile court can ’t transfer a case against a fifteen

- year
- old unless the child has a t least one prior felony adjudication or conviction

. Because he hadn’t previously been adjudicat ed or convicted o f a felony , Dennel asserts that the district court didn’t acquire4

jurisdiction to accept his plea, enter a felony conviction against him, and impose sentence. We disagree. ¶ 9 W e conclude that the transfer statute doesn’t require that a juvenile have a prior felony adjudicat ion before the court may transfer the juvenile’s case to district court and , based on this interpretation , Dennel was eligible to have his case transferred to district court.
A. Standard of Review ¶ 10 This case presents an issue of statutory interpretation, which

we review de novo. Bostelman v. People , 162 P.3d 686, 689 (Colo. 2007). Our primary task when construing a statute is to give effect to the General Assembly’s intent. Id. (citing Klinger v. Adams Cnty. Sch. Dist. No. 50 , 130 P.3d 1027, 1031 (Colo. 2006)). In determining the legislature’s intent, we look first to the plain language of the statute. Id. at 690 (citing C.S. v. People in Interest of
I.S. , 83 P.3d 627, 634 (Colo. 2004)) . When re viewing a statute’s
p lain language, we read words and phrases in context and construe them according to their common usage , i d. (citing Klinger , 130 P.3d at 1031) , and in a ma nner that is harmonious with other provisions, People v. Ross , 2021 CO 9, ¶ 34 ( “ [W]e are duty

- bound5

to interpret .

. . statutory provisions harmoniously

— that is, in a manner that gives consistent and sensible effect to all their parts and avoids rendering any words or phrases meaningless. ”)

. ¶ 11 If the statutory language is clear and un ambiguous, we won’t engage in further statutory analysis. Bostelman , 162 P.3d at 689. Indeed, it is only when a statute is ambiguous that we may employ other tools of statutory construction, such as considering the consequences of a given construction, the end to be achieved by the statute, and legislative history. Id.

B. Statutory Interpretation ¶ 12 The Children ’s Code creates “a system of juvenile justice that will appropriately sanction juveniles who violate the l aw.” § 19

- 2.5

- 101 (1)(a) , C.R.S. 2022

. Subject to certain exceptions, the juvenile
court has “exclusive original jurisdiction” over cases involving juveniles. § 19

- 2.5

- 103 (1) , C.R.S. 2022

. ¶ 13 T he transfer statute is one such exception. The transfer
statu te permits the People to request that a juvenile court waive its jurisdiction and transfer a case to district court when

— and only when

— a petition contains certain allegations. Specifically , t he transfer statute provides , in pertinent part , as follows :6 (1)(a) The juvenile court may enter an order certifying a juvenile to be held for criminal proceedings in the district court if: (I) A petition filed in juvenile court alleges the juvenile is : (A) Twelve or thirteen years of age at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a class 1 or class 2 felony or a crime of violence, as defined in section 18

- 1.3

- 406; or (B) Fourteen y ears of age or older at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony ; and (II) After investigation and a hearing, the juvenile court finds it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction. § 19

- 2.5

- 802(1)(a)(I)

- (II) (emphasis added)

. ¶ 14 The parties disagree about the proper interpretation of subsection (1)(a)(I)(B). Dennel argues that a juvenile fourteen years of age or older accused of committing a felony is only eligible to have his case transferred to district court if he ha s also previously been adjudicated delinquent for an act that constitutes a felony. See Nelson , ¶ 12

. In contrast, the People argue that nothing in the statute requires a prior juvenile delinquency adjudication.7

¶ 15 We agree with the People. Our conclusion rests on the plain language of the statute , which is where we turn first.
1. Plain Language ¶ 16 The statute spells out what must be “alleged” in a delinquency petition for a case to be eligible for transfer to district court. Specifically, the statute requires the delinquency petition to allege that the juvenile is at least a certain age and that the juvenile is accused of committing an offen s e of at least a certain seriousness.
F or a child aged twelve or thirteen to be eligible for transfer , the petition must allege that the juvenile committed a delinquent act that constitutes a class 1 or 2 felony or a crime of violence, § 19

- 2.5

- 802(1)(a)(I) (A); for a juvenile fourteen years or older to be eligible for transfer , the petition must allege that the juvenile committed a delinquent act that constitutes a felony , § 19

- 2.5

- 802(1)(a)(I)(B). ¶ 17 Dennel contends, however, that while the age requirements in the statute refer to the juvenile ’s age at the time of the charged offense, the references to the level of offense contained in subsections (1)(a)(I)(A) and (1)(a)(I) (B) describe what the petition must allege with respect to the juvenile’s adjudicatory history. In other words, Dennel contends that for a child of twelve or thirteen8

to have his case transferred to district court, he must have been previously adjudicated for a delinq uent act that constitutes a class 1 or 2 felony or a crime of violence ; and for a juvenile fourteen year s old or older, he must have been previously adjudicated for a delinquent act that constitutes a felony. ¶ 18 We reject Dennel’s urged interpretation because it doesn’t comport with the plain language of the statute

. W e begin our pla i n language analysis by highlighting the significance of the word “allege s ” in the transfer statute

— particularly the first use of this word ( in subsection (1)(a)(I) ) and its impact on subsequent language

. See § 19

- 2.5

- 802(1)(a)(I) (“A petition filed in juvenile court alleges the juvenile is

. . . .”) (emphasis added)

. ¶ 19 Sub

- subparagraphs (A) and (B) are part of , and follow the initial language of, s ubsection (1)(a)(I). Theref ore, they simply describe the requisite

— as yet, unproven

— allegations that the People must include in the petition to demonstrate transfer eligibility. See Webster’s Third New International Dictionary 55 (2002) (defining “allege” as “to assert, affirm, state without proof or before proving ”) (emphasis added). Both sub

- subparagr a phs
contain two elements linked by the conjunction “and” ; they specify9

(1) the juvenile’s age at the time of the offense , and (2) the offense classification. See § 19

- 2.5

- 802(1)(a)(I) (A), (B). ¶ 20 Thus, reading sub

- subparagraph (B) in conjunction with the prefatory language in subsection (1) (a)(I) , the People must allege that the juvenile (1) is fourteen years of age or older at the time of the offense , and (2) has committed a delinquent act that constitutes

a felony. As for the first required allegation , it’s undisputed that the statute refers to the juvenile’s age at the time of the offense alleged in the petition

. Mindful of the unproven quality of an allegation

— and the fact that the word “allege s ” applies equally to both elements of sub

- subparagraph (B)

— we conclude that the second element also refers to the present alleged offense rather than a prior felony adjudication. ¶ 21 Reading this sub

- subparagraph in context confirms our conclusion. Under section 19

- 2.5

- 802(1)(a)(I) (A) , (B), the petition must simply “allege” that the juvenile is a “juvenile delinquent by virtue of having committed a delinquent act .” That is , a juvenile ’s delinquen cy status is tied only to an unproven assertion of delinquent conduct , not a juvenile’s already proven adjudicatory history

.10

¶ 22 Moreover, t he statute ’s focus on the allegations in the “petition ” (as opposed to the motion to transfer) further underscores tha t the statute’s reference to the allegations of delinquent conduct
is to the conduct giving rise to the filing of the petition , not the juvenile’s adjudicatory history

. Indeed, t he purpose of the petition is to put the juvenile on notice of the facts surrounding the alleged offense that brings him within the juvenile court’s jurisdiction. See § 19

- 2.5

- 502 (3), (4) , C.R.S. 2022 (setting forth the form and content of a delinquency p etition ). The motion to transfer, not the petition, is the logical place to include collateral information such as adjudicatory history. ¶ 23 Our interpretation is further bolstered by the way that the legislature differentiate s between allegations of delinque ncy and
proven prior delinquency e lsewhere in the transfer statute

. For example, when listing the factors a juvenile court must consider when deciding whether to transfer a case, the legislature conspicuously differentiat es between the present “alleged offense” and crimes for which the juvenile was “previously adjudicated.” Compare § 19

- 2.5

- 8 02 (4)(b)(II) , (III) ( listing factors concerning the “alleged offense”) , w ith § 19

- 2.5

- 802(4)(b)(IX) , (X), (XIII) ( listing11

factors that focus on whether the juvenile was “previously adjudicated” for certain delinquent acts ) , and § 19

- 2.5

- 802(4)(b)(XI) (dealing with previous commitment to the department of human services “

following an adjudication”) (emphasis added)

. The contrast is particularly stark in section 19

- 2.5

- 802(4)(b)(XIII), which includes a refe re nce to both the current and prior offense s : “Whether the juvenile is sixteen years of age or older at the time of th e offense and has been twice previously adjudicated a juvenile delinquent

. . . .” ( E mphasis added

. ) C f. § 19

- 2.5

- 801 (1) (c)(II),
C.R.S. 2022 ( using the language “[i]s found to have a prior adjudicated felony offense” when imposing a prior adjudication requirement for direct filing a case against a juvenile in district court). ¶ 24 To put a finer point on it, for the statute to mean what Den n el contends it means , it would need to be wri tten differently. Instead of providing that the petition must allege that the juvenile is

“ [f] ourteen years of age or older at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony ,” it w ould use the phrase “has been previously adjudicated ” in place of “is , ”12

leavin g a statute reading as follows (with deleted existing language shown in strike

- through and added hypothetical language underli ned ) :

(1)(a) The juvenile court may enter an order certifying a juvenile to be held for criminal proceedings in the district court if: (I) A petition filed in juvenile court alleges the juvenile is :

. . . . (B) Fourteen years of age or older at the time of the commission of the alleged offense and is has b een previously adjudicated a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony

. Indeed, as discussed above, “ has been previously adjudicated ” is the phrase that the legislature has used when describing adjudicatory history. See also, e.g. , § 19

- 2.5

- 1125 (2) , C.R.S. 2022 (“ A juvenile is a repeat juvenile offender if t he juvenile has been previously adjudicated a juvenile delinquent and is adjudicated a juvenile delinquent for a delinquent act that constitutes a felony

. . . . ”) (emphasis added). But that’s not the statute the legislature adopted. S ee , e.g. , Dep ’ t of Revenue v. Agilent Techs.,
Inc. , 2019 CO 41, ¶ 16 (“[W]e must respect the legislature’s choice13

of language, and we will not add words to a statute or subtract words from it.”). ¶ 25 And Nelson doesn’t persuade us otherwise, which is where we
turn next

. 2. Addressing Nelson Dennel relies on the division’s opinion in Nelson to argue that for a fifteen

- year
- old’s juvenile case to be eligible for transfer, he must have a prior adjudication. Nelson , ¶ 1 2

. ¶ 26 The question presented in Nelson was whether the district court had jurisdiction over Nelso n, a juvenile , following a change in the direct file statute

— a change that was adopted after Nelson had been charged but before he pleaded guilty

. Id. at ¶ 2. Nelson argued that because the felony to which he pleaded guilty was no longer eligible for direct filing in district court, the district court lacked jurisdiction over him and his case. Id. at ¶ 10

. In rejecting Nelson’s contention, t he division held that the district court had jurisdiction to accept Nelson’s plea and impose a sentence if Nelson’s case was eligible for either direct file or transfer. Id. at ¶ 12. And in determining that Nelson ’s case was eligible for transfer, the division observed ,14 According to the presentence investigation report, Nelson had pleaded guilty to at least three prior felony charges and was therefore a juvenile delinquent at the time of the subject offense. Therefore, although Nelson ’ s offenses are not eligible for direct filing under the current version of the [direct file s] tatute, they are eligible for district court jurisdiction under [the transfer statute ]

. Id. (citations omitted). ¶ 27 To be sure, in reaching its conclusion that Nelson ’s case was eligible for transfer to district court, the division in Nelson interpreted the transfer statute to require a prior felony adjudication

— the very interpretation that Dennel is urging us to adopt. Id. For two reasons , however, we aren’t persuaded that the divisio n in Nelson got the interpretation of this part of the transfer
statu t e correct. See People v. Daley , 2021 COA 85, ¶ 89 (we aren’t bound by decisions of prior divisions)

. ¶ 28 First, t he division in Nelson didn’t have to parse the statu t e to the extent that we must here. In Nelson , it was undisputed that the juvenile both pleaded guil ty to a felony in the case at issue and had prior felony adjudications. Nelson , ¶ 12 (noting that Nelson had “pleaded guilty to at least three prior felony charges” )

. Th us , regardless of whether the phrase “ is a juvenile delinquent by virtue15

of having committed a delinquent act that constitutes a felony , ” § 19

- 2.5

- 802(1)(a)(I)(B), referred to the charged offense or the juvenile’s adjudicatory history, the result would have been the same for Nelson: his case was eligible for transfer. Accordingly, the Nelson division wasn’t required to grapple with the precise issue we have before us: whether a juvenile is transfer

- eligible without a previous delinquency adjudication for a felony. ¶ 29 Second, for the reasons previously articulated, our reading of the stat ut e’s plain language leads us to a different conclusion. Accordingly, g iven that the outcome in Nelson didn’t turn on this
issue an d the division only addressed it in passing , we aren’t persuaded by Nelson to depart from our plain language statu tory analysis laid out in Part II. B.1 above

. 3. The Purpose of the Children’s Code and Policy Considerations

Don’t Require a Different Interpre tation ¶ 30 Finally, we aren’t persuaded by Den n el’s contention that the “overall theme ” of the Children’s Cod e “demands that a prior felony adjudication is necessary to transfer a fourteen

- or fifteen

- year
- old to adult court.”16

¶ 31 While section 19

- 2.5

- 802(1)(a)(I) set s for th the minimum requirements for transfer eligibility , a juvenile whose case satisfies those minimum requirements isn’t automatically transferred to district court upon the request of a prosecutor . Far from it. Instead, a fter investigation and a hearing , the juvenile court is required to determine whether “it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction.” § 19

- 2.5

- 802(1) (a) (II)

. A mong the factors the juvenile court mus t consider in this inquiry are the juvenile’s previous adjudicatory history , s ee § 19

- 2.5

- 802(4)(b) (V), ( IX ) , (X), (XI), (XIII) , and the seriousness of the charged offense, see § 19

- 2.5

- 802(4)(b)(I) , (II), (III) , (VII), (VIII)

. ¶ 32 Thus, the legislature determined that both the seriousness of the charged offense and the juvenile’s adjudicatory history (or lack thereof) must be taken into account when a juvenile court decides whether to transfer a case to district court. But when drawing a bright line with respect to who is eligible for transfer , the statute the legislature crafted focuse s only on the juvenile’s age and the seriousness of the presently charged offense. We are n’ t at libe rty to second

- guess that policy judgment or add requirements to it. See Agilent Techs

. , ¶ 16.17 C. Application ¶ 33 The petition charging Dennel allege d that he is a juvenile delinquent “ by virtue of having committed a delinquent act that constitutes a felony ”

— namely, second degree murder, a class 2 felony

— and that he was “[f] ourteen years of age or older at the time of the commission of the alleged offense .” This satisfied the requirements of section 19

- 2.5

- 802(1)(a)(I)(B) , notwithstanding the fact that Denn el had no prior felony adjudications. Dennel doesn’t challenge any other aspect of the transfer proceedings on appeal.
Because t he juvenile court complied with the transfer statute in certifying Dennel to be held for criminal proceedings in district

cour t , the transfer was proper. And because the transfer was proper, the district court had jurisdiction to accept Dennel ’s plea to manslaughter, a class 4 felony , and sentence him as it did. See § 19

- 2.5

- 802 (1) ( d) (I), (II)

.

III. Attorney General’s Waiver Contention ¶ 34 On appeal, the Attorney General argues, in the alternative , that even if we were to interpret the transfer statute as Dennel urges, Dennel’s plea to the class 4 felony of manslaughter waived any challenge he may have to the district court’s aut hority to take18

his plea and impose a sentence. See, e.g. , Patton v. People , 35 P.3d 124, 128 (Colo. 2001) ( a guilty plea generally waives all nonjurisdictional challenges to a conviction ) ; Wood v. People , 255 P.3d 1136, 1140 (Colo. 2011) (distinguishing b etween a court’s subject matter jurisdiction and its authority to act). Dennel responds that this isn’t so because his challenge is to the district court’s subject matter jurisdiction over his case , and this jurisdictional challenge isn’t waivable. See , e.g. , § 19

- 2.5

- 103(1) (vesting “exclusive original jurisdiction” over juveniles in the juvenile court “[e]xcept as otherwise provided by law ”); People v.
Wetter , 985 P.2d 79, 80 (Colo. App. 1999) ( a challenge to a court’s subject matter jurisdiction survives a plea and may be raised at any time, including for the first time on appeal). ¶ 35 At the core of this dispute is whether failure to satisfy the statutory prerequisites for transfer is jurisdictional or not. This, in turn, implicates whether the General Assembly may constitutionally limit the general jurisdiction of district courts. See Colo. Const.
art. VI, § 9(1) ( “The district courts .

. . shall have original jurisdiction in all civil, probate, and criminal case s, except as otherwise provided herein

. . . .” ) ; cf. People ex rel. Terrell v. Dist. C t

. ,19

164 Colo. 437, 44 1 , 435 P.2d 763, 76 5 (1967) (recognizing that the General Assembly could , without offending the constitution, remove the Denver District Court ’ s jurisdiction over criminal cases involving children under the age of sixteen charged with felonies by exercising its “power to create and define crimes” and “within reasonable limits [to] fix the age below which there ca n be no criminal responsibility” ) ; People v. Sandoval , 2016 COA 57, ¶¶ 20

- 22 (framing issues related to the direct file statute as implicating the General Assembly’s authority to limit the Denver District Court’s constitutional jurisdiction ). ¶ 36 Because we co nclude that , based on his age and the charge contained in the petition , Dennel was eligible for transfer, we leave for another day the question of whether a juvenile who is statutorily ineligible for transfer to district court waives a challenge to the dis trict court’s authority over him by entering a guilty plea in district court or if that defect is jurisdictional such that it survives the plea and can be raised for the first time on appeal

. See People v. Timoshchuk , 2018 COA 153, ¶ 14 (recognizing that courts should avoid constitutional issues that need not be resolved in order to decide a case ) ; see also C n ty. Ct

. v. Allen , 442 U.S. 140, 154 (1979)20

(Courts “have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.”)

. IV. Conclusion ¶ 37 For the foregoing reasons, we affirm the district court’s judgment.
JUDGE J. JONES and JUDGE SCHUTZ concur.