Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 21CA137

         Judgment Affirmed

          Attorneys for Petitioner: Henson Law, LLC Andrew Gargano Patrick R. Henson Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General Brock J. Swanson, First Assistant Attorney General Denver, Colorado

          Chief Justice Márquez delivered the Opinion of the Court, in which Justice Boatright, Justice Hood, Justice Gabriel, Justice Hart, Justice Samour, and Justice Berkenkotter joined.

          OPINION

          MÁRQUEZ, CHIEF JUSTICE

         ¶1 Under section 18-1.3-405, C.R.S. (2024), an offender is entitled to presentence confinement credit ("PSCC") for the period the offender was "confined" for an offense before sentencing. In People v. Hoecher, 822 P.2d 8, 13 (Colo. 1991), we addressed whether an offender in a community corrections program who is resentenced to the Colorado Department of Corrections ("CDOC") is entitled to PSCC for the nonresidential component of the community corrections sentence. We reasoned that a community corrections offender on nonresidential status is not "confined" for purposes of PSCC credit under section 18-1.3-405, but rather, is "free to function in the community in a manner unencumbered by most of the constraints associated with confinement." Hoecher, 822 P.2d at 13. Accordingly, we held that such an offender is not entitled to PSCC upon resentencing to the CDOC. Id.

         ¶2 We are asked in this case to revisit our decision in Hoecher,^[1] not because the legislature has amended the PSCC statute, but because part of Hoecher's reasoning

has been undermined by subsequent amendments to the parole statutes. We decline to do so.

         ¶3 Our reasoning in Hoecher was ultimately grounded in the plain language of section 18-1.3-405, which entitles an offender to PSCC for the period the offender has been "confined." As we emphasized in that case, individuals serving a nonresidential component of a community corrections sentence enjoy a wide range of freedoms that are inconsistent with the notion of confinement. Hoecher, 822 P.2d at 12-13. Since our decision in that case, nothing has altered the notion of confinement underpinning the PSCC statute or the nature of the freedoms associated with nonresidential status in a community corrections program. We therefore decline to disturb our holding in Hoecher that offenders are not entitled to PSCC for time served during nonresidential community corrections sentences. Id. at 13.

         ¶4 Because Petitioner Ryan Wallace Bonde is not entitled to PSCC for the nonresidential component of his community corrections sentence under Hoecher, we affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶5 As part of a plea agreement to resolve two cases, the court sentenced Bonde, to two concurrent, four-year community corrections sentences. He successfully completed the residential portion of these sentences and was transferred to

nonresidential status. However, after Bonde was arrested and charged with new offenses, his nonresidential status was terminated, and the People requested that Bonde be resentenced to the CDOC.

         ¶6 In response, Bonde asked for PSCC for the 355 days he served during the nonresidential portion of his community corrections sentences. The district court, relying on our decision in Hoecher, denied his request. It ultimately ruled that Bonde was not entitled to PSCC for the time he served on nonresidential status but that he could qualify for good time and earned time credit under sections 17-22.5-301 and -405, C.R.S. (2024). The court then resentenced Bonde to two concurrent, four-year sentences in the CDOC. The amended mittimus in each of Bonde's cases notes that he received PSCC for his time served in jail and during the residential portion of his community corrections sentences. He also received 153 days of earned time credit.

         ¶7 Bonde appealed, arguing that, although the holding in Hoecher expressly denies offenders PSCC for time served during nonresidential community corrections sentences, the reasoning of that decision has been undermined and now supports the opposite conclusion. Bonde pointed out that, in Hoecher, we reasoned in part that the freedoms enjoyed by a nonresidential community corrections offender were comparable to those of a parolee:

Because an offender serving out a community correctional sentence on nonresidential status is free to function in the community in a

manner unencumbered by most of the constraints associated with confinement, we believe that a community correctional offender's entitlement to credit for time served on nonresidential status should be resolved in the same manner as a parolee's claim for credit for the time served on parole.

Hoecher, 822 P.2d at 13.

         ¶8 At the time Hoecher was decided, a resentenced parolee was not entitled to PSCC for "the time [served on parole] between his release and his return to [CDOC] custody." Id. (quoting § 17-22.5-203(1), 8A C.R.S. (1986)). But, as Bonde noted, under subsequent legislative amendments, nonviolent offenders are now entitled to PSCC for time served during parole. See § 17-22.5-303(7), C.R.S. (2024). Bonde thus contended that, given Hoecher's reasoning that a nonresidential community corrections offender should be treated like a parolee, nonviolent offenders like him should now also receive PSCC for time served on nonresidential status in a community corrections program.

         ¶9 A division of the court of appeals disagreed. In a published opinion, the division held that it was bound by this court's express holding in Hoecher. People v. Bonde, 2023 COA 75M, ¶ 12, 539 P.3d 164, 166-67. The division noted that "Bonde [did] not point to any liberty restraints faced by nonresidential offenders that show that they are 'confined' within the meaning of the PSCC statute." Id. at ¶ 14, 539 P.3d at 167. Although the division acknowledged that Hoecher's reasoning had been undermined by the subsequent legislative amendments to the parole and

PSCC statutory schemes, it ultimately affirmed the district court's order denying Bonde PSCC for his time served in nonresidential community corrections. Id. at ¶¶ 15, 25, 539 P.3d at 167, 169.

         II. Analysis

         ¶10 Because we perceive no basis to depart from stare decisis in this matter, we reaffirm our holding in Hoecher and conclude that nonresidential community corrections sentences do not qualify for PSCC.

         A. Mootness

         ¶11 As a preliminary matter, we reject the People's argument that Bonde's case is moot. At oral argument, the People suggested that Bonde had already served his CDOC sentences in this case. While Bonde's counsel could not confirm this, the record suggests that Bonde has completed his sentences. The People thus ask us to dismiss this case as moot because any ruling would have no practical effect on a prevailing party. See DePriest v. People, 2021 CO 40, ¶ 8, 487 P.3d 658, 662.

         ¶12 However, we conclude that this case is justiciable. There is an "exception to the mootness doctrine that allows review of 'important issues capable of repetition yet potentially evading review.'" Walton v. People, 2019 CO 95, ¶ 8, 451 P.3d 1212, 1215 (quoting People v. Brockelman, 933 P.2d 1315, 1318 (Colo. 1997)). Community corrections sentences are given for less serious offenses, which means that offenders who have their nonresidential community corrections sentences

revoked are unlikely to have long sentences remaining. By contrast, the appellate process can take years. Bonde's notice of appeal in this case was filed in the court of appeals on January 28, 2021, and we did not grant certiorari review until June 10, 2024, over three years later. Accordingly, "[w]ere we to wait for another case like this one to find its way to us with a defendant still serving [their] sentence, we might wait in vain." Id.

         B. Standard of Review and Applicable Law

         ¶13 "We review de novo whether a defendant is entitled to PSCC." Fransua v. People, 2019 CO 96, ¶ 11, 451 P.3d 1208, 1210 (quoting People v. Houston, 2014 COA 56, ¶ 4, 411 P.3d 808, 810).

         ¶14 We also review issues of statutory interpretation de novo. Id., 451 P.3d at 1210-11. This court's fundamental responsibility in construing a statute is to ascertain and give effect to the legislature's intent and purpose in enacting it. See People v. Steen, 2014 CO 9, ¶ 9, 318 P.3d 487, 490. "In so doing, we look to the plain and ordinary meaning of the statutory language, and we construe the statute to further the legislative intent represented by the statutory scheme." Id. (quoting People v. Manzo, 144 P.3d 551, 554 (Colo. 2006)). Further, "[u]nder an established rule of statutory construction, the legislature is presumed, by virtue of its action in amending a previously construed statute without changing the portion that was

construed, to have accepted and ratified the prior judicial construction." People v. Swain, 959 P.2d 426, 430-31 (Colo. 1998).

         ¶15 The doctrine of stare decisis means that this court will follow the rule of law established in earlier cases. Rios-Vargas v. People, 2023 CO 35, ¶ 34, 532 P.3d 1206, 1214. "We will depart from our existing law only if we are clearly convinced that (1) the rule was originally erroneous or is no longer sound because of changing conditions and (2) more good than harm will come from departing from precedent." Id. (quoting Love v. Klosky, 2018 CO 20, ¶ 15, 413 P.3d 1267, 1270).

         C. PSCC and Nonresidential Community Corrections Sentences

         ¶16 Confinement credit for community corrections sentences is governed by several different statutes. Section 18-1.3-301(1)(j), C.R.S. (2024), requires that "any offender sentenced to the [CDOC] subsequent to placement in a community corrections program is entitled to credit against the term of confinement as described in section 17-27-104(9), C.R.S. [(2024)]." In turn, section 17-27-104(9) requires community corrections programs to document an offender's residential and nonresidential time completed for purposes of determining good time and earned time credits under section 18-1.3-301(1)(i)(I) and sections 17-22.5-301, -302, and -405, C.R.S. (2024). Good time and earned time credits are, respectively, time credits awarded for an offender's compliance with facility rules and completion of educational, employment, or other requirements.

People v. McCreadie, 938 P.2d 528, 531 (Colo. 1997). Earned time and good time credits are distinct from PSCC for time served.

         ¶17 Section 18-1.3-405 governs PSCC for time served. The overarching principle of that provision is to give an offender credit for time spent "confined": "A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement." Id. (emphases added). Thus, as in Hoecher, we must decide whether nonresidential community corrections sentences constitute "confinement" for PSCC purposes.

         ¶18 In Hoecher, we reasoned that those sentenced to a nonresidential community corrections program enjoy several freedoms not traditionally associated with the notion of confinement. 822 P.2d at 12. The objective of community corrections sentences is "to limit confinement to the extent necessary to assure reasonable supervision while permitting a gradual reintegration of the offender into the society to which the offender would eventually return." Id. at 11 (emphasis added) (quoting Wilson v. People, 747 P.2d 638, 640 (Colo. 1987), abrogated on other grounds by Benz v. People, 5 P.3d 311, 314 (Colo. 2000)). Accordingly, "an offender serving out a community correctional sentence on nonresidential status is free to function in the community in a manner unencumbered by most of the constraints associated with confinement." Id. at 13.

         ¶19 This remains true today. Offenders serving nonresidential community corrections sentences do not reside in the CDOC or residential community corrections facilities; rather, they live "independently in the community under program supervision." Colo. Div. of Crim. Just., Dep't of Pub. Safety, 2022 Colorado Community Corrections Standards, at 56 (Oct. 2022) ("2022 Colorado Community Corrections Standards"), https://drive.google.com/file/d/ 1Ap9bGHw5cdUtaSshR94RAK4Gx9rqAneZ/view [https://perma.cc/KB9N- 35U6].^[2] Compared to their residential counterparts, offenders serving nonresidential community corrections sentences are allowed to pursue regular employment, enroll in academic courses, participate in vocational training programs, and meet with family members. § 17-27-102(3), C.R.S. (2024). They are also subjected to less stringent drug and alcohol testing requirements and are required to undergo fewer rehabilitation programming hours (some of which can occur over the phone). 2022 Colorado Community Corrections Standards, at 14, 39-40. The freedoms and limited supervision associated with nonresidential community corrections sentences are thus inconsistent with the notion of confinement under section 18-1.3-405.

         ¶20 Admittedly, in Hoecher, we compared nonresidential community corrections sentences and parole in reaching this conclusion. 822 P.2d at 13. There, we reasoned that, when considering the entire statutory scheme, it made sense to treat parole and nonresidential community corrections sentences the same because they involved similar levels of constraint. Id. But post-Hoecher legislative amendments to the statutory schemes governing parole, PSCC, and community corrections sentences have undermined the comparison drawn in that opinion.

         ¶21 For example, since we decided Hoecher in 1991, the legislature has affirmatively granted PSCC in multiple parole-related situations. In 1995, the General Assembly amended the parole eligibility statute to allow PSCC for nonviolent offenders who were resentenced after their parole was revoked. Ch. 190, sec. 13, § 17-22.5-403(6), 1995 Colo. Sess. Laws 870, 878. And in 2009, the legislature amended the PSCC statute to grant PSCC for offenders who are confined while awaiting a parole revocation hearing. Ch. 105, sec. 3, § 18-1.3-405, 2009 Colo. Sess. Laws 382, 383.

         ¶22 Notably, however, the legislature has not granted PSCC for nonresidential community corrections sentences-despite having had ample opportunity to do so. The legislature has amended the statutory scheme governing community corrections sentences several times. In 2002, the General Assembly relocated and amended section 18-1.3-301(1)(j), which contemplates that offenders are entitled to

credit when their community corrections status is revoked and they are resentenced to the CDOC. Ch. 318, sec. 2, § 18-1.3-301(1)(j), 2002 Colo. Sess. Laws 1365, 1389. And in 2011, the legislature amended section 17-27-104(9), allowing offenders to receive good time and earned time credits for nonresidential community corrections sentences. Ch. 274, sec. 2, § 17-27-104(9), 2011 Colo. Sess. Laws 1236, 1237. Other amendments to the community corrections statutory scheme have removed percentage-based limits on the amount of time credits offenders can earn and have eliminated the ability of offenders to get time credits when they have escaped or absconded. Ch. 274, sec. 1, § 18-1.3-301, 2011 Colo. Sess. Laws 1236, 1236-37. And, perhaps most importantly, the legislature amended section 18-1.3-405 without any mention of PSCC for nonresidential community corrections sentences. 2009 Colo. Sess. Laws at 383.

         ¶23 These amendments make it clear that, while the legislature has decided to grant PSCC for an offender's time served during parole, it has not decided to do so for nonresidential community corrections sentences. We presume the legislature is aware of existing case law when it legislates. LaFond v. Sweeney, 2015 CO 3, ¶ 12, 343 P.3d 939, 943 ("Courts presume the legislature is aware of its own enactments and existing case law precedent."). The General Assembly's inaction to date with respect to PSCC for nonresidential community corrections offenders does not undermine Hoecher's holding. In sum, any policy-based request to grant

comparable PSCC for nonresidential community corrections sentences is better directed to the legislature. See Swain, 959 P.2d at 430-31.

         III. Conclusion

         ¶24 We decline to depart from our holding in Hoecher, which was properly grounded in the text of section 18-1.3-405. Offenders serving nonresidential community corrections sentences today still enjoy freedoms inconsistent with the notion of confinement in that statute. The legislature's numerous amendments of the statutory scheme governing parole, PSCC, and community corrections sentences-without disturbing Hoecher's holding-further support this conclusion.

         ¶25 We therefore affirm the judgment of the court of appeals.

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Notes:

^[1] We granted certiorari to review the following issue:

1. Whether an offender who is being resentenced from a community corrections program to the department of corrections is entitled to presentence confinement credit for time served in a nonresidential community corrections program, overruling People v. Hoecher, 822 P.2d 8 (Colo. 1991).

^[2] The Colorado Department of Public Safety published its most recent Colorado Community Corrections Standards in 2022.

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