People v. Bassford

• Decision Date: 27 February 2014
• Docket Number: Court of Appeals No. 12CA1005
• Citation: 2014 COA 15,343 P.3d 1003
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Adelbert BASSFORD, Defendant–Appellant.
• Court: Colorado Court of Appeals

343 P.3d 1003

2014 COA 15

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Adelbert BASSFORD, Defendant–Appellant.

Court of Appeals No. 12CA1005

Colorado Court of Appeals, Div. IV.

Announced February 27, 2014

Rehearing Denied April 24, 2014

John W. Suthers, Attorney General, Michael D. McMaster, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Thomas K. Carberry, Denver, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE ROMÁN

¶ 1 Defendant, Adelbert Bassford, appeals the district court's order vacating his original sentence and imposing a new sentence. We vacate the new sentence and remand for resentencing.

I. Factual Background

¶ 2 Defendant was charged with one count of violating the Colorado Organized Crime Control Act (COCCA), and with multiple counts of securities fraud and felony theft in Denver District Court in case number 02CR5403. He was later charged with one count each of felony theft, defrauding a secured creditor, and forgery in Denver DistrictCourt in case number 03CR4422. The cases were consolidated for trial.

¶ 3 A jury found defendant guilty of all counts ultimately tried, namely: one count of a COCCA violation, multiple counts of securities fraud and felony theft, and one count each of defrauding a secured creditor and forgery.

¶ 4 The district court sentenced defendant to concurrent terms in the custody of the Department of Corrections (DOC) on the convictions in case number 03CR4422, with the sentence for the felony theft conviction controlling—four years in the custody of the DOC plus mandatory parole. The district court sentenced defendant to concurrent terms of incarceration in the custody of the DOC on the convictions in case number 02CR5403, with the sentence for the felony COCCA violation controlling. On that count, the court sentenced defendant to eighteen years in the custody of the DOC plus mandatory parole; however, the court suspended ten years of the prison sentence on the condition that, upon his release from DOC custody, defendant successfully complete twelve years of probation with the economic crime unit. The prison sentences on the concurrent counts were each less than the unsuspended eight years on the COCCA count.

¶ 5 The court imposed the sentence for the 02CR5403 convictions consecutively to the sentence for the 03CR4422 convictions.¹ In aggregate, defendant was to serve twelve years in DOC custody, then twelve years on probation.

¶ 6 On appeal, the forgery conviction was vacated, but the judgment and sentence were affirmed as to all other counts. People v. Bassford, (Colo.App. No. 08CA0221, 2011 WL 3717081, Aug. 25, 2011) (not published pursuant to C.A.R. 35(f) ). In that appeal, defendant did not challenge the probation component of the sentence.

¶ 7 Then, after serving approximately five years in prison, defendant was transferred to community corrections. While there, he filed a motion seeking to prohibit probation supervision until he completed his parole. In response to that motion, the People asserted that defendant's sentence was illegal and asked the court to modify the sentence by removing the suspension, resulting in an aggregate sentence of twenty-two years in the custody of the DOC plus mandatory parole.

¶ 8 Defendant, too, claimed the sentence was illegal. But he contended in a Crim. P. 35(a) motion that the appropriate remedy was for the court to remove the probation requirement only, leaving the suspension of ten years in DOC custody intact.

¶ 9 To summarize, the People wanted the sentence declared illegal and modified to impose the entire twenty-two-year sentence in DOC custody. Defendant wanted the sentence declared illegal, but the ten-year suspension retained without the need for probation.

¶ 10 However, the district court did not explicitly rule on whether the original sentence was illegal. Instead, the court relied on Crim. P. 35(b) to vacate the original sentence and then resentenced defendant. Taking the sentences in the aggregate, the court sentenced defendant to twenty-two years in DOC custody plus mandatory parole. The court then suspended the entire DOC sentence (giving defendant credit for just over twelve years of time served) and imposed twelve years of probation with the economic crime unit.

¶ 11 On appeal, defendant contends that his original sentence was illegal and that the district court erred by resentencing him rather than simply removing the probation requirement.

¶ 12 We conclude the district court erred in resentencing defendant pursuant to Crim. P. 35(b). We further conclude that the original sentence was illegal. However, we disagree with defendant's proposed remedy and conclude instead that the case must be remanded for resentencing.

II. Crim. P. 35(b)

¶ 13 The district court erred in relying on Crim. P. 35(b) to modify defendant's sentence because the court did not reduce his sentence.

¶ 14 Crim. P. 35(b) authorizes a district court to reduce a sentence. Crim. P. 35(b) ; Downing v. People, 895 P.2d 1046, 1049 (Colo.1995). Specifically, the rule, entitled “Reduction of Sentence,” provides:

The court may reduce the sentence provided that a motion for reduction of sentence is filed [within a certain time frame].... The court may reduce a sentence on its own initiative within any of the above periods of time.

Crim. P. 35(b) (emphasis added); see also People v. Arnold, 907 P.2d 686, 687 (Colo.App.1995) (A Crim. P. 35(b) motion is “essentially a plea for leniency” and the rule “is intended to give every convicted offender a second round before the sentencing court and to give the court the opportunity to reconsider the sentence in light of further information about the defendant or the case which is presented after the initial sentence.”).

¶ 15 Here, rather than granting a more lenient sentence, the district court acted under Crim. P. 35(b) to impose a sentence which attempted to give effect to the intent of the trial court's original sentence. According to the district court, Crim. P. 35(b) “permits the Court on its own motion to modify a sentence and ... the Court is going to exercise its discretion in this case and I am going to modify the sentence.... [and] order [the] exact same sentences be imposed.” The court then suspended the prison sentences, placed defendant on probation, and credited him with 4,426 days of presentence confinement credit (which the court stated was based on defendant serving twelve years in DOC custody, plus forty-six days prior to that).²

¶ 16 Notably, neither party contends that the district court reduced defendant's sentence. The People contend defendant was resentenced to the same sentence; defendant contends the district court increased his sentence. We agree that the district court did not reduce defendant's sentence.

¶ 17 Because Crim. P. 35(b) provides a mechanism for the reduction of a sentence, rather than for the correction of an illegal sentence, the court erred in attempting to correct an illegal sentence by modifying rather than reducing it under Crim. P. 35(b). See Downing, 895 P.2d at 1049 (court's order sentencing the defendant to eight years in community corrections pursuant to Crim. P. 35(b) increased, rather than reduced, original sentence of six years in DOC custody, and thus was not authorized by statute or by rule and was void).³

¶ 18 We turn next to defendant's original sentence.

III. Original Sentence

¶ 19 Defendant contends that the court imposed an illegal sentence by ordering him to complete probation after his release from DOC custody. We agree.

¶ 20 The legality of a sentence is a question of law that we review de novo. People v. Jenkins, 2013 COA 76, ¶ 11, 305 P.3d 420. “[I]t is the prerogative of the legislature to define crimes and prescribe punishments.” Fierro v. People, 206 P.3d 460, 461 (Colo.2009). Accordingly, a court “may not impose a sentence that is inconsistent with the terms specified by statutes.” People v. Dist. Court, 673 P.2d 991, 995 (Colo.1983). A court may not depart from the statutory sentencing scheme to impose what it considers to be a more appropriate sentence. People v. White, 679 P.2d 602, 603–04 (Colo.1984).

¶ 21 On the COCCA violation, the trial court suspended ten years of an eighteen-year DOC sentence on the condition that defendant complete probation after serving the first eight years in DOC custody. This is similar to the situation considered in People v. District Court, 197 Colo. 481, 593 P.2d 1372 (1979). There, the defendant was initially sentenced to a controlling term of ten to fifteen years in prison, which the district court reconsidered on the defendant's motion after he had served seven months. Id. at 482, 593 P.2d at 1373. The district court then ordered the defendant to serve the balance of the first year in the state penitentiary, but suspended nine years of the ten year sentence, and placed the defendant on ten years of probation commencing at the conclusion of the one-year confinement. Id.

¶ 22 The supreme court concluded that the district court exceeded its statutory authority by suspending nine years of the ten-year sentence and placing the defendant on probation. Id. The supreme court stated that “while the policy of granting probation with a period of penal confinement as a condition may be beneficial in some instances, it [is] for the legislature to declare such a policy and not the court.” Id. at 483, 593 P.2d at 1374.

¶ 23 The General Assembly had provided for the possibility of incarceration as a condition of probation, but had established limits thereon. Id. (citing § 16–11–202, C.R.S.1973 (1978 Repl.Vol. 8)). As it does today, the probation statute allowed that:

In addition to imposing other conditions, the court has the power to commit the defendant to any jail operated by the county or city and county in which the offense was committed during such time or for such intervals within the period of probation as the court determines. The aggregate length of any such commitment whether continuous or at designated

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