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People v. Pennington.

2021 COA 9. No. 20CA1116. Prison Population Reduction and Management Act—Retroactive Application—Separation of Powers.

January 28, 2021

Pennington was serving time in Larimer County Community Corrections for two drug felonies. She left the facility in February 2020 and never returned. Pennington was later arrested and charged with escape, a class 3 felony. In the interim, the Prison Population Reduction and Management Act (PPRMA) became law. The PPRMA redefined felony escape so that the act of leaving and failing to return to a community corrections facility is no longer an escape and instead constitutes the new misdemeanor offense of unauthorized absence. After her arrest, Pennington moved to dismiss the felony escape charge and argued that she could only be charged with unauthorized absence. The district court denied the motion but ruled that the PPRMA applies retroactively and amended the escape charge to a charge of unauthorized absence.

On appeal, the prosecution argued that the district court erred by applying the PPRMA retroactively. However, the PPRMA does not state that it only applies prospectively, and its changes are ameliorative in nature. Accordingly, the PPRMA applies retroactively, and the district court did not err.

The prosecution also argued that the district court erred by amending Pennington’s charge because it violated the separation of powers between governmental entities. The district court infringed on the separation of powers when it sua sponte amended Pennington’s criminal charge, and it therefore erred.

The dismissal of the escape charge was affirmed. The amendment of the felony escape charge to one of unauthorized absence was reversed and the case was remanded for dismissal of the amended charge.

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

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