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Docket Number

No. 75-293

Attorney(S)

J.D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, Janet Lee Miller, Assistant Attorney General, for plaintiff-appellee. Davies Saint-Veltri, Stuart A. Kritzer, for defendant-appellant.

Judges

Opinion by JUDGE KELLY.

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Smart Summary

People of the State of Colorado v. Christine Yvonne Sandoval, No. 75-293 (Colo. Ct. App. Sept. 16, 1975)

Factual and Procedural Background

Defendant pleaded nolo contendere to a charge of violating § 18-5-205(3)(b), C.R.S. 1973 (fraud by check), a class 5 felony punishable by a minimum of one year and a maximum of five years' imprisonment under § 18-1-105, C.R.S. 1973. The trial court first sentenced defendant to an indeterminate period "not to exceed one year" at the Reformatory Section of the Women's Colorado State Penitentiary. Three days later the court placed defendant on probation for four years. In January 1975, after probation was revoked, the trial court sentenced defendant to "not less than two nor more than four years" at the State Penitentiary for Women at Canon City. Defendant filed a postconviction motion under Crim. P. 35 alleging, among other things, that the original sentence was legal and that the trial court lacked jurisdiction to alter it; she sought vacation of the 1975 sentence and reinstatement of the original sentence. The trial court denied the motion. Defendant appealed. The court of appeals affirmed in part and reversed in part.

Legal Issues Presented

Whether the original sentence (an indeterminate sentence "not to exceed one year") complied with the statutory requirements for class 5 felonies under § 16-11-304(2)(a), C.R.S. 1973.
Whether, upon revocation of probation, the trial court's resentencing (a sentence fixing a minimum term of "not less than two nor more than four years") complied with § 16-11-304(2)(a) or otherwise was authorized by statute, including § 16-11-206(5), C.R.S. 1973.
Whether the original sentence may be reinstated or whether the subsequent resentencing must be set aside and the cause remanded for resentencing in accordance with law.

Arguments of the Parties

Defendant-Appellant's Arguments

Defendant argued that the original sentence was legal.
Defendant asserted the trial court was without jurisdiction to alter or amend the original sentence after it was imposed.
Defendant sought vacation of the 1975 sentence and reinstatement of the original sentence.

The opinion does not contain a detailed account of the plaintiff-appellee's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Emig, 177 Colo. 174, 493 P.2d 368	Cited in the context that there is no statute which automatically corrects erroneous sentences.	Used as authority in support of remanding the case to the trial court for vacation of the erroneous subsequent sentence and for resentencing in accordance with law.

Court's Reasoning and Analysis

The court identified § 16-11-304(2)(a), C.R.S. 1973, as dispositive. That statute provides that when a person has been convicted of a class 4 or class 5 felony, "the court shall not fix a minimum time of confinement to be served by the convict, but shall fix a maximum period of time beyond which he shall not be imprisoned," and specifies limits on that maximum (no more than the statutory maximum penalty and not less than one-third of the maximum penalty provided by law for the offense).

Applying § 16-11-304(2)(a), the court concluded the original sentence (an indeterminate period "not to exceed one year" imposed for a class 5 felony) was erroneous because it did not comply with the statute's requirements as applied to class 5 felonies. The court nevertheless observed that the order granting probation three days later was properly entered under §§ 16-11-101(1)(a) and 16-11-202, C.R.S. 1973, and that upon revocation of probation the trial court was authorized by § 16-11-206(5), C.R.S. 1973, to "impose any sentence . . . which might originally have been imposed."

However, the subsequent sentence imposed after revocation fixed a minimum term ("not less than two nor more than four years"), which the court found directly contrary to § 16-11-304(2)(a)'s prohibition on fixing a minimum time for class 4 and 5 felonies; therefore that sentence was also erroneous.

The court noted there is no statute that automatically corrects such erroneous sentences (referencing §§ 16-11-303 and 16-11-305, C.R.S. 1973, and citing People v. Emig) and, accordingly, determined that the later sentence must be set aside and the case remanded for lawful resentencing.

Holding and Implications

Core Ruling: The appellate court affirmed in part and reversed in part. The court held that the original sentence could not be reinstated and that the subsequent resentencing (the sentence fixing a minimum term) was erroneous and must be vacated and the cause remanded for resentencing in accordance with law.

Implications:

The direct effect is that the trial court's later sentence (the "not less than two nor more than four years" term) must be vacated and the defendant must be resentenced in compliance with § 16-11-304(2)(a) and related statutory requirements.
The opinion does not reinstate the original sentence; it directs remand for lawful resentencing rather than reinstatement of the initial sentence.
The decision does not purport to create a new legal precedent beyond applying existing statutory requirements and citing People v. Emig; it directs the trial court to correct the sentencing error consistent with the law cited in the opinion.

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The People of the State of Colorado v. Christine Y

1. CRIMINAL LAW — Sentencing — Two Sentences — Both Erroneous — Matter Remanded — Resentencing. Initial sentence imposed on criminal defendant was erroneous in that it did not comply with the statutory requirements as to maximum sentence for the crime charged, and subsequent resentencing of defendant, after revocation of probation, was also erroneous because, contrary to statutory requirements, the trial court fixed a minimum term; thus, the original sentence may not be reinstated and the subsequent resentencing of defendant must be set aside and the cause remanded to the trial court with directions to resentence the defendant in accordance with the law.

Opinion by JUDGE KELLY.

Defendant pleaded nolo contendere to a charge of violating § 18-5-205(3)(b), C.R.S. 1973, fraud by check, a class 5 felony, which is punishable by a minimum of one year and a maximum of five years' imprisonment. Section 18-1-105, C.R.S. 1973. She was initially sentenced for an indeterminate period, not to exceed one year, at the "Reformatory Section of the Women's Colorado State Penitentiary." Three days later, the trial court placed defendant on probation for a period of four years.

In January 1975, probation was revoked and defendant was sentenced to a term of not less than two nor more than four years at the "State Penitentiary for Women at Canon City." A month later, defendant filed a motion for postconviction relief under Crim. P. 35, alleging the foregoing facts, among others, and asserting that the original sentence was legal, and that the trial court was, therefore, without jurisdiction to alter or amend that sentence. Defendant sought vacation of the 1975 sentence and reinstatement of the original sentence. Her motion was denied, and she appeals. We affirm in part and reverse in part.

The provisions of § 16-11-304(2)(a), C.R.S. 1973, govern both of the sentences imposed by the trial court, and are dispositive of this appeal. The statute provides:

"When a person has been convicted of a class 4 or a class 5 felony, the court shall not fix a minimum time of confinement to be served by the convict, but shall fix a maximum period of time beyond which he shall not be imprisoned, which maximum sentence shall be no more than the maximum penalty provided by law for the offense of which he was convicted, nor no less than one-third of the maximum penalty provided by law for the offense of which he was convicted."

[1] Under this statute, the original sentence imposed by the trial court was erroneous. However, the order granting probation was properly entered, see §§ 16-11-101(1)(a) and 16-11-202, C.R.S. 1973, and, upon revocation of probation, the trial court was authorized to "impose any sentence . . . which might originally have been imposed . . . . " Section 16-11-206(5), C.R.S. 1973.

The sentence thereafter imposed by the trial court, however, fixed a minimum term, contrary to the requirements of § 16-11-304(2)(a). Hence, this sentence was also erroneous.

Since there is no statute which automatically corrects the erroneous sentences of the trial court, see, e.g., §§ 16-11-303, 16-11-305, C.R.S. 1973, we affirm that part of the order of the trial court denying defendant's motion to vacate the subsequent sentence of imprisonment and remand the case to the trial court with directions to vacate that sentence and to resentence the defendant in accordance with law. See People v. Emig, 177 Colo. 174, 493 P.2d 368.

JUDGE ENOCH and JUDGE PIERCE concur.

PEOPLE v. SANDOVAL