People ex rel. Van Meveren v. District Court In and For Larimer County, 27855

• Decision Date: 21 February 1978
• Docket Number: No. 27855,27855
• Parties: The PEOPLE of the State of Colorado ex rel. Stuart A. VanMEVEREN, District Attorney, Eighth Judicial District of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF LARIMER, State of Colorado, and the Honorable John A. Price, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 4

575 P.2d 4

195 Colo. 34

The PEOPLE of the State of Colorado ex rel. Stuart A.

VanMEVEREN, District Attorney, Eighth Judicial

District of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF LARIMER, State

of Colorado, and the Honorable John A. Price, one

of the Judges thereof, Respondents.

No. 27855.

Supreme Court of Colorado, En Banc.

Feb. 21, 1978.

Stuart A. Van Meveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Terence A. Gilmore, Deputy Dist. Atty., Fort Collins, for petitioner.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Denver, Thomas H. Moore, Deputy State Public Defender, Fort Collins, for respondents.

ERICKSON, Justice.

The district attorney for the Eighth Judicial District filed a petition for a writ in the nature of prohibition and mandamus. We issued a rule to show cause and now discharge the rule in part and make the rule absolute in part.

Gary Robert Beyer was charged with second-degree burglary of a dwelling (class 3 felony), theft (class 2 misdemeanor), and possession of a weapon by a previous offender (class 5 felony). Beyer had a criminal record which included more than two felony convictions.

Pursuant to a plea agreement, Beyer entered a plea of guilty to possession of a weapon by a previous offender and to two misdemeanor charges. As a condition to the dismissal of the remaining charges, the district attorney and Beyer, with the advice of counsel, entered into an agreement that a sentence of eighteen months to five years in the state penitentiary would be imposed by the court. The court approved the agreement, and Beyer was sentenced to serve eighteen months to five years in the state penitentiary. Thereafter, within 120 days, Beyer petitioned for a reduction of his sentence, pursuant to Crim.P. 35(a). After a full hearing, the court granted a reduction of sentence, based upon recommendations from the penal authorities and additional information which showed a change in circumstances, and sentenced Beyer to three years within the community corrections program in Fort Collins.

The district attorney asserts that the district court exceeded its jurisdiction in modifying the sentence. The issues before us are: (1) Is a person who has been convicted of two prior felonies eligible for sentencing under the community corrections project statute, section 27-27-101, et seq., C.R.S. 1973 (1976 Supp.)? (2) Can the district attorney prevent the trial judge from modifying a sentence pursuant to Crim.P. 35(a) when the original sentence was imposed pursuant to a plea agreement? And, if not (3) can a district attorney cause the original charges to be reinstated and proceed to trial?

I.

Section 16-11-201(2), C.R.S. 1973, provides:

"A person who has been twice convicted of a felony in this state or another state prior to the conviction on which his application is based shall not be eligible for probation."

We construed this statutory language in Herrmann v. District Court, 186 Colo. 350, 527 P.2d 1168 (1974). Nothing in that case, however, involved interpretation of the community corrections facilities and program statute. Sections 27-27-101 to 112, C.R.S. 1973 (1976 Supp.). Since the operation of section 16-11-201(2), C.R.S. 1973, is limited to the granting of probation, its provisions cannot be read to exclude persons convicted of two prior felonies from community correctional programs, since such programs are not purely probationary.

By enacting the community corrections statute, the General Assembly provided the sentencing judge with a broader range of alternatives and with a sentencing medium that is more severe than probation, but not as harsh as incarceration. The legislature thereby took full cognizance of the ends of advocated by sections 2.1(b) and 2.2 of the American Bar Association Standards Relating to Sentencing Alternatives and Procedures. ¹

The hybrid statutory sentence created by the legislature, however, is limited to those persons described as offenders in section 27-27-102(6), C.R.S. 1973. ² The statute does not exclude persons who have been convicted of two prior felonies from community correctional programs. An expansive reading of the statutory language, as advocated by the petitioner, to exclude such persons would require us to engage in judicial legislation which would be in violation of our Constitution. Colo. Const., Art. III. Whether persons who have been convicted of two prior felonies should be eligible to participate in community corrections programs is a matter properly within the legislative domain.

II.

The district attorney's contention that a sentence imposed by reason of a plea agreement is set in concrete and cannot be changed is totally without merit. The case law authorities which permit a plea agreement to be enforced by a defendant may not be interpreted to foreclose the discretion of the trial judge or the obligations of the Executive or Legislative Branches of government to carry out a correction program. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30...