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People v. Bice.

2023 COA 98. No. 22CA0600. Level 1 Drug Felony—Conspiring to Sell or Distribute a Controlled Substance—Penalties for Criminal Conspiracy—Exceptions for Offense Levels Otherwise Provided by Law.

October 26, 2023

Bice pleaded guilty to conspiring to sell or distribute more than 112 grams of methamphetamine, a level 1 drug felony under CRS § 18-18-405(1) and (2)(a)(I)(B). He stipulated to a sentence of 20 years in the custody of the Department of Corrections, and the district court sentenced him accordingly. Bice subsequently filed a pro se motion to correct an illegal sentence under Crim. P. 35(a), arguing that his offense should have been classified as a level 2 drug felony under CRS § 18-2-206(7)(a). The district court ultimately denied the motion, concluding that the two statutes could be read harmoniously and Bice’s sentence was legal.

On appeal, Bice argued that the district court erred by denying his motion to correct an illegal sentence. Bice conceded that his offense is designated as a level 1 drug felony under CRS § 18-18-405(2)(a)(I)(B) but asserted that this designation conflicts with CRS § 18-2-206(7)(a). CRS § 18-18-405(1) makes it unlawful to distribute or conspire to distribute a controlled substance, while CRS § 18-2-206(7)(a) provides that except as otherwise provided by law, conspiracy to commit a drug felony is generally one offense level lower than the drug felony itself. However, when a defendant is convicted under CRS § 18-18-405(1) for conspiring to sell or distribute a controlled substance, that statute controls the offense classification. Accordingly, CRS § 18-2-206(7)(a) does not apply. Further, based on their plain language, the two statutes at issue are not ambiguous and can be read consistently and harmoniously, so the court of appeals’ construction of them does not render CRS § 18-2-206(7)(a) a nullity nor produce absurd results. Therefore, Bice was properly sentenced for a level 1 drug felony, and the district court correctly denied his Crim. P. 35(a) motion.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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