DeBose v. People, 24592

Citation488 P.2d 69, 175 Colo. 356
Case DateAugust 09, 1971
CourtSupreme Court of Colorado

Page 69

488 P.2d 69
175 Colo. 356
Ollie D. DeBOSE, Plaintiff in Error,
The PEOPLE of the State of Colorado, Defendant in Error.
No. 24592.
Supreme Court of Colorado, En Banc.
Aug. 9, 1971.
Rehearing Denied Sept. 13, 1971.

[175 Colo. 357] Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Truman E. Coles, Asst. State Public Defender, Michael L. Bender, T. Michael Dutton, Deputy State Public Defenders, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Richard G. McManus, Jr., Asst. Attys. Gen., Denver, for defendant in error.

ERICKSON, Justice.

This writ of error was prosecuted from an order of the district court denying the defendant's Crim.P. 35(b) motion to vacate and set aside the consecutive sentences which were imposed by the trial court after the defendant,[175 Colo. 358] Ollie D. DeBose, plead guilty to both the crime of robbery and the crime of conspiracy to commit robbery. Defense counsel relies on Maynes v. People, 169 Colo. 186, 454 P.2d 797 (1969), as a basis for compelling a trial judge to impose concurrent sentences when the crimes of robbery and conspiracy to commit robbery arise out of the same transaction. Contrary to the situation herein, the Maynes case involved the crimes of burglary and larceny, and its holding must be limited to those facts. The issue with which we are faced is whether a trial judge should be limited to the imposition of one sentence when the defendant is convicted of both the substantive offense and conspiracy to commit the substantive offense.

We will not permit our courts to be so narrowly circumscribed in their discretion to mete out punishment to fit the crime. It is too plain for cavil that society

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suffers more when two or more persons act together with Machiavellian intent to plan, engineer, perfect, and carry out a vicious crime than when one person undertakes to commit a crime by himself. To say that a merger occurs which requires that sentences be imposed on a concurrent basis is to overlook the plain legislative intent behind the creation of the statute which makes conspiracy a separate crime. The conspiracy statute does not single out robbery as the crime which is to be punished. The gravamen of the crime of conspiracy is the illicit agreement to commit a felony. C.R.S.1963, 40--7--35.

Here, the defendant, Ollie D. DeBose, and Robert Eugene Carter conspired to rob and did rob Stanley Sperlak. Initially, both men were charged with aggravated robbery (C.R.S.1963, 40--5--1) and conspiracy to commit robbery (C.R.S.1963, 40--7--35). The defendant authorized his counsel to negotiate for a reduced plea, and the district attorney agreed to reduce the charge of aggravated robbery to simple robbery if the defendant would plead guilty to simple robbery and conspiracy. [175 Colo. 359] Before these pleas were entered, the possible penalties, including the possibility of consecutive sentences, were fully explained to the defendant by the trial judge in the presence of defense counsel and several members of the defendant's family.

In examining the record, we have found that the defendant was represented by counsel at each stage of the proceedings, and that he entered a plea of guilty to both offenses after having been fully advised of the possible consequences of his guilty plea.

The trial court caused a presentence investigation to be completed and obtained a report from the Colorado Psychiatric Hospital before sentence was imposed. From the record and from the pleadings, it is clear that no issue exists as to the propriety of the procedures that were followed by the trial court and by counsel prior to the time that sentence was imposed.

The test as to whether the same act or transaction constitutes two distinct crimes or offenses, or only one, was set forth by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as follows:

'(T)he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.'

The test used in Blockburger v. United States, Supra, is the same test utilized by the Colorado courts. See People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). See also, Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

As early as 1895, it was recognized in Colorado that the commission of a substantive offense and a conspiracy to commit the same crime were separate and distinct offenses, since the proof of the substantive offense rests on separate facts and does not hinge upon the proof of the conspiracy. Marshall, Jr. v. People, 160 Colo. 323, 417 P.2d 491 (1966); Roll v. People, 132 Colo. 1, 284 P.2d 665 (1955); Short v. People, 27 Colo. [175 Colo. 360] 175, 60 P. 350 (1900); Davis v. People, 22 Colo. 1, 43 P. 122 (1895). Since the substantive offense and the conspiracy are separate and distinct crimes, the doctrine of merger does not apply. Davis v. People, Supra. Therefore, the crimes are separately punishable. Roll v. People, Supra; Short v. People, Supra. This rule is uniformly followed by the majority of state and federal courts. 1

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The attack which the defendant makes in this case was made in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), and was answered by the Court in this strong language:

'It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power...

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16 cases
  • Edmond v. State, 71--596
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1973
    ...55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700; DeBose v. People, Colo.1971, 488 P.2d 69; People ex rel. Maurer v. Jackson, 1957, 2 N.Y.2d 259, 140 N.E.2d 282; Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805......
  • State v. Yarbough
    • United States
    • United States State Supreme Court (New Jersey)
    • October 7, 1985 a ceiling on the aggregate of consecutive terms which is related to the severity of the offenses involved * * * * [DeBose v. People, 175 Colo. 356, 361, 488 P.2d 69, 71 (1971) (en banc) (citing § 3.4(b)(i) of the ABA Standards). In the analogous context of multiple offenses within a sing......
  • People v. Steele, 26974
    • United States
    • Colorado Supreme Court of Colorado
    • April 18, 1977
    ...each offense rests on the establishment of separate elements. See, e.g., People v. Shannon, Colo., 539 P.2d 480 (1975); DeBose v. People, 175 Colo. 356, 488 P.2d 69 (1971); Marshall v. People, 160 Colo. 323, 417 P.2d 491 (1966). In the present case, evidence of a conspiracy resulted in a co......
  • People v. Madonna, 79SA550
    • United States
    • Colorado Supreme Court of Colorado
    • August 9, 1982 such may be punishable by a consecutive sentence." People v. Morgan, 189 Colo. 256, 258, 539 P.2d 130, 131 (1975); DeBose v. People, 175 Colo. 356, 488 P.2d 69 (1971); compare, People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978); section 18-1-402(3), C.R.S.1973 (1978 Repl.Vol. 8). Under......
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