People ex rel. Gallagher v. District Court In and For Eighteenth Judicial Dist., Arapahoe County, 81SA235

• Decision Date: 24 August 1981
• Docket Number: No. 81SA235,81SA235
• Citation: 632 P.2d 1009
• Parties: PEOPLE of the State of Colorado ex rel. Robert R. GALLAGHER, Jr., District Attorney For the Eighteenth Judicial District, State of Colorado, Petitioner, v. DISTRICT COURT In and For the EIGHTEENTH JUDICIAL DISTRICT, COUNTY OF ARAPAHOE, State of Colorado and the Honorable Robert R. Kelley, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 1009

632 P.2d 1009

PEOPLE of the State of Colorado ex rel. Robert R. GALLAGHER Jr., District Attorney For the Eighteenth Judicial District, State of Colorado, Petitioner, v. DISTRICT COURT In and For the EIGHTEENTH JUDICIAL DISTRICT COUNTY OF ARAPAHOE, State of Colorado and the Honorable Robert R. Kelley, One of the Judges Thereof, Respondents.

No. 81SA235.

Supreme Court of Colorado, En Banc.

Aug. 24, 1981.

Robert R. Gallagher, Jr., Dist. Atty., John C. Jordan, Chief Deputy Dist. Atty., Littleton, for petitioner.

J. Gregory Walta, Colo. State Public Defender, Nicholas R. Massaro, Jr., Deputy State Public Defender, Littleton, for respondents.

LOHR, Justice.

In this original proceeding pursuant to C.A.R. 21, we issued a rule directing the Arapahoe County District Court and one of its judges to show cause why that court and judge should not be prohibited from delaying the sentencing of James Robert Hyde on his felony conviction for third-degree burglary until he has served his sentence for misdemeanor theft. Both convictions are based upon the same incident. We conclude that the delay in imposition of sentence for the felony conviction is contrary to law and therefore make the rule absolute.

Hyde was charged by information in district court with the offenses of third-degree burglary, section 18-4-204, C.R.S. 1973 (1978 Repl. Vol. 8), and theft of property having a value less than fifty dollars, section 18-4-401(2) (a), C.R.S. 1973 (1978 Repl. Vol. 8), based on removal of coins from a vending machine located in a store in Aurora, Colorado. Hyde has five prior felony convictions and so is ineligible for probation if again convicted. Section 16-11-201(2), C.R.S. 1973 (1978 Repl. Vol 8). ¹ Hyde decided not to attempt to avoid conviction. Instead, he sought a means of serving his sentence in the county jail rather than in the correctional facilities at Canon City or Buena Vista. A description of the relevant sentencing statutes will provide a background for an understanding of the strategy which Hyde adopted to achieve his goal.

Third-degree burglary is a class five felony, section 18-4-204(2), C.R.S. 1973 (1978 Repl. Vol. 8), for which the prescribed sentence, absent extraordinary mitigating or aggravating circumstances, is a definite term in the range from one to two years plus one year of parole, section 18-1-105, C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.). A defendant sentenced for a felony must be committed to the custody of the executive director of the department of corrections, section 16-11-301(1), C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.), and could be required to serve his sentence in the correctional facility at Canon City, section 18-1-105(1)(c), C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.); see sections 17-40-101 to 103, C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.). Theft of property having a value less than fifty dollars is a class three misdemeanor; if the property has a value of fifty dollars or more but less than two hundred dollars the offense is a class two misdemeanor. Section 18-4-401(2)(a) and (b), C.R.S. 1973 (1978 Repl. Vol. 8). No term of imprisonment for conviction of a misdemeanor is to be served in the correctional facilities at Canon City unless served concurrently with a term for conviction of a felony. Section 18-1-106, C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.).

In order to prevent confinement, of Hyde in the custody of the department of corrections, his counsel devised an imaginative plan. First, the theft charge would be amended upward to allege the taking of property having a value of fifty dollars or more but less than two hundred dollars, a class two misdemeanor. Hyde would then plead guilty to the burglary and amended theft charges. The maximum sentence of imprisonment for conviction of a class two misdemeanor is twelve months. Section 18-1-106, C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.). Hyde would suggest that the court sentence him to twelve months imprisonment in the county jail, with work release, on the theft conviction and would ask that sentence not be imposed for the burglary until he had served the twelve month sentence for theft. On completion of the theft sentence Hyde would be sentenced on the burglary conviction to one year, plus one year of parole, and the one year served in the county jail for theft would be credited against that burglary sentence. ² See section 16-11-306, C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.). As a result, Hyde would serve no imprisonment time in the custody of the department of corrections.

As a product of plea bargaining, the district attorney agreed to amend the theft charge as proposed and not to file habitual criminal charges, see section 16-13-101, C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.). The theft charge was so amended, and Hyde pled guilty to the burglary and amended theft charges. Later, at the sentencing hearing, Hyde's counsel proposed his sentencing plan to the court. The district attorney opposed the plan. ³ The court then sentenced Hyde to one year in county jail, with work release, ⁴ on the theft conviction and, over the district attorney's objection, ruled that sentencing on the felony would be held in abeyance until the twelve months sentence on the theft charge had been served. The respondents concede that the purpose of deferral of the burglary sentencing is to implement defense counsel's proposed sentencing plan. We conclude that deferral of the burglary sentence for such a purpose is legally impermissible.

The judge apparently adopted the sentencing plan as best calculated to promote the defendant's rehabilitation. In imposing sentence one factor which a judge must consider is the rehabilitation needs of the individual defendant. Section 18-1-102.5(1)(d), C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.); e. g., People v. Watkins, Colo., 613 P.2d 633 (1980). Although a judge has broad discretion in tailoring a sentence to meet those needs, e. g., People v. Martinez, Colo., 628 P.2d 608 (1981); People v. Cohen, Colo., 617 P.2d 1205 (1980), the sentence must be consistent with legislatively imposed limits and constraints, People v....