Downing v. People
| Decision Date | 15 May 1995 |
| Docket Number | No. 94SC119,94SC119 |
| Parties | Yale DOWNING, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, Colorado State Public Defender, and Karen M. Gerash, Deputy State Public Defender, Denver, for petitioner.
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., and Paul Koehler, Asst. Atty. Gen., Denver, for respondent.
The petitioner, Yale Downing, filed a motion pursuant to Crim.P. 35(a), challenging the validity of a seven-year sentence to the Department of Corrections imposed upon him by the trial court as a result of the court's determination that Downing should be transferred from a community corrections facility. Downing alleged that the trial court exceeded its jurisdiction in imposing a seven-year sentence because such sentence was in excess of a six-year sentence earlier imposed on Downing. The trial court denied the motion, and in People v. Downing, No. 92CA1228 (Colo.App. Dec. 23, 1993) (), the court of appeals affirmed. Having granted certiorari to review the propriety of the court of appeals' decision, we reverse and remand with directions.
On January 2, 1991, Downing was sentenced by the trial court to a term of six years in the custody of the Department of Corrections as the result of his plea of guilty to the offense of sexual assault on a child. 1 Downing subsequently filed a motion for reconsideration of sentence pursuant to Crim.P. 35(b), requesting transfer to a community corrections facility. After conducting a hearing, the trial court granted the motion, vacated the prior sentence, and on July 8, 1991, entered a judgment of conviction and mittimus sentencing Downing to a community corrections facility for a term of eight years, nunc pro tunc to January 2, 1991.
On April 8, 1992, the People filed a motion with the trial court pursuant to section 17-27-114(1), 8A C.R.S. (1986), 2 to terminate Downing's sentence to a community corrections facility and to transfer him to the custody of the Department of Corrections. The motion alleged generally that Downing had violated the terms and conditions of his sentence by conduct including unauthorized absence, menacing, and escape. A hearing on the motion was conducted on May 21, 1992, at the conclusion of which the trial court granted the motion and resentenced Downing to the custody of the Department of Corrections for a term of seven years. Downing was awarded a credit of 368 days against the sentence for time served.
Downing subsequently filed a motion for reconsideration of illegal sentence pursuant to Crim.P. 35(a). He alleged that the trial court lacked authority to impose a sentence in excess of the six-year sentence imposed on January 2, 1991. The trial court denied the motion, and on appeal the court of appeals affirmed the trial court's ruling.
The trial court sentenced Downing to a community corrections facility on July 8, 1991, pursuant to section 17-27-114(1), 8A C.R.S. (1986). That statute provides, inter alia, that an offender sentenced to a community corrections facility must comply with the rules and regulations of the facility. Id. It also provides that an offender who violates any of those rules or regulations may be transferred to the Department of Corrections following a transfer hearing. § 17-27-114(1), (2), 8A C.R.S. (1986). However, in resentencing such an offender the trial court is prohibited from "increasing the length of the original sentence." § 17-27-114(2), 8A C.R.S. (1986).
Downing asserts that the six-year sentence imposed January 2, 1991, was the original sentence for purposes of section 17-27-114(2), 8A C.R.S. (1986), and that the trial court therefore exceeded its jurisdiction in imposing a seven-year sentence on May 21, 1992. The People contend that because Downing's initial six-year sentence was subsequently vacated, the eight-year sentence imposed on July 8, 1991, must be deemed Downing's original sentence for purposes of the statute. We agree with Downing's argument.
Crim.P. 35(b) contains the following pertinent provisions:
The court may reduce the sentence provided that a motion for reduction of sentence is filed (1) within 120 days after the sentence is imposed, or (2) within 120 days after receipt by the court of a remittitur issued upon affirmance of the judgment of sentence or dismissal of the appeal, or (3) within 120 days after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing. The court may reduce a sentence on its own initiative within any of the above periods of time.
Crim.P. 35(b). This rule authorizes a trial court to reduce an offender's original sentence. It does not authorize a trial court to increase such sentence unless the original sentence was erroneously imposed or is void. Smith v. Johns, 187 Colo. 388, 532 P.2d 49 (1975); People v. Nix, 44 Colo.App. 195, 610 P.2d 1088 (1980). A sentence imposed by a court that is not authorized by statute is illegal and void. People v. District Court, 673 P.2d 991, 995 (Colo.1984). The trial court's July 8, 1991, judgment of conviction increasing the length of Downing's original sentence from six years to eight years was not authorized by statute or by rule and was therefore void.
The People argue that a sentence to a community corrections facility is less harsh than a sentence to the Department of Corrections and that therefore the eight-year sentence imposed on June 27, 1991, should be deemed a reduction rather than an increase in Downing's sentence. However accurate the predicate for this argument might be, the conclusion is not warranted.
The conditions of confinement at a community corrections facility admittedly are in many respects less severe than the conditions of confinement in a penal institution. The rehabilitative programs of community corrections facilities afford opportunities to offenders for participation in activities away from the facility. Nonetheless, as we observed in People v. Hoecher, 822 P.2d 8, 12 (Colo.1991), "[a]n offender sentenced to a community correctional facility is confined in a very real sense during the period of time in which the offender remains on residential status." Offenders transferred from a community corrections facility to the Department of Corrections are entitled to credit for time served as residents in the community corrections facility. Id. at 12. Furthermore, time served as a resident of a community corrections facility is considered equivalent to time served at the Department of Corrections for the purposes of sentencing. Id.; People v. Saucedo, 796 P.2d 11,...
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