People v. Anderson
| Decision Date | 16 December 1974 |
| Docket Number | No. 26146,26146 |
| Citation | 529 P.2d 310,187 Colo. 171 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Nathaniel ANDERSON, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Gregory L. Williams, Thomas J. Tomazin, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Natalie S. Ellwood, Denver, for defendant-appellant.
Appellant was convicted on November 14, 1971, of two counts of assault with intent to murder (C.R.S.1963, 40--2--34) and conspiracy to sell narcotic drugs (C.R.S.1963, 48--5--20). He was sentenced to the state penitentiary on January 13, 1972, to two consecutive terms of twelve to thirteen years on the assault counts, and to a concurrent term of twelve to thirteen years on the conspiracy count.
Appellant's conviction was affirmed on appeal by this court on January 21, 1974, in People v. Anderson, Colo., 518 P.2d 828.
During the pendency of the appeal, appellant, on June 19, 1973, filed his motion for reconsideration of the sentences, pursuant to the Colorado Criminal Code, 1971 Perm.Supp., C.R.S.1963, 40--1--509 and 40--1--510. This motion was denied and it is from this ruling that appellant prosecutes the present appeal. We affirm the ruling.
The basis of appellant's motion for relief from his sentences is found in section 40--1--508 of the Code, which deals with the prosecution of multiple counts for the same act, and which became effective after appellant's conviction but before affirmance of that conviction on appeal. He contends that this section requires the court to impose concurrent sentences rather than consecutive sentences, as was done in his case.
Our decision in People v. Thomas, Colo., 525 P.2d 1136, had not been announced at the time of the trial court's consideration of appellant's motion for relief. In People v. Thomas, this Court held that section 40--1--510(1)(f) provides for the application of changed legal standards where there is a change in law mitigating penalties for crimes, and that the application of the changed legal standards is mandatory.
The changed legal standard relied on by appellant in this case is not a change in the law, reducing punishment for the crime of which he was convicted, but rather the mandatory provision in sections 40--1--508(2) and 40--1--508(3), requiring the imposition of concurrent sentences. 1 These sections provide:
The People's evidence as developed at trial, a summary of which is recited in People v. Anderson, Supra, showed that two shootings occurred during the illicit drug transaction, in which two victims were injured. Appellant, upon discovering that the potential buyers with whom he was negotiating were federal agents, shot Agent Lochridge first and then turned and shot Agent Wilson. It is clear that the two shootings occurred during the same criminal episode as part of a continuous course of conduct closely related in time and circumstance. Two separate criminal acts were committed against two different persons, thus supporting the conviction of appellant on two separate counts...
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...4 This statute makes clear that the court is vested with discretion to either grant or deny the motion to elect. People v. Anderson, 187 Colo. 171, 529 P.2d 310 (1974) (construing § 40-1-508(3), 1963 C.R.S. (1971 Perm Supp.), now contained in § 18-1-408(3), 8B C.R.S. (1986)). Careful consid......
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