People v. Plotner.
2024 COA 77. No. 21CA1450. Assault in the Second Degree While Lawfully Confined or in Custody—Sentencing—Multiple Consecutive Sentences.
August 1, 2024
Plotner was in a correctional facility serving two consecutive sentences from a single case when he was involved in an altercation with two correctional officers. He was convicted of one count of second degree assault while lawfully confined or in custody under CRS § 18-3-203(1)(f). The trial court determined that § 18-3-203(1)(f) required it to impose an assault sentence that was consecutive to both sentences that Plotner was serving. Plotner moved for sentence reconsideration under Crim. P. 35(b), contending that the trial court erred by determining that § 18-3-203(1)(f) required it to impose an assault sentence that was consecutive to both sentences he was serving, as opposed to consecutive to one of them and concurrent with the other. The district court denied the motion.
On appeal, Plotner argued that, because he can only serve one consecutive sentence at a time, the inclusion of the words “being served” in § 18-3-203(1)(f) required the trial court to impose the assault sentence consecutively to one, but not both, of his consecutive sentences. Section 18-3-203(1)(f) provides that a sentence for second degree assault while lawfully confined or in custody “shall run consecutively with any sentences being served by the offender.” CRS Title 17, article 22.5 governs inmate time computation. Section 17-22.5-101 provides that when an inmate has been committed under several convictions with separate sentences, all sentences are construed as one continuous sentence. The court of appeals concluded that when a defendant is serving multiple consecutive sentences, those sentences must be treated as one single sentence, such that they are both “being served” for the purposes of a later sentence imposed under § 18-3-203(1)(f). Thus, when Plotner was sentenced, § 18-3-203(1)(f) unambiguously required the trial court to impose his assault sentence to run consecutively to all components of that controlling sentence. Further, even if the statute were ambiguous, general principles of statutory construction support the court’s conclusion; and contrary to Plotner’s contention, the rule of lenity does not apply.
The order denying Plotner’s Crim. P. 35(b) motion for sentence reconsideration was affirmed.