People v. Beyer, 89CA1546
| Decision Date | 26 April 1990 |
| Docket Number | No. 89CA1546,89CA1546 |
| Citation | 793 P.2d 644 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Martin BEYER, Defendant-Appellee. . I |
| Court | Colorado Court of Appeals |
John W. Suthers, Dist. Atty., Robert M. Brown, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
David F. Vela, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, for defendant-appellee.
Opinion by Judge MARQUEZ.
The People appeal from the trial court's reduction of the sentences imposed upon defendant, David Martin Beyer. We vacate a portion of the modified sentences and remand with instructions.
Following a trial to the court, defendant was found guilty of attempted first degree murder, conspiracy to commit first degree murder, two counts of second degree kidnapping, second degree assault, menacing, and four counts of crime of violence. Colo.Sess.Laws 1985, ch. 145, § 16-11-309 at 647, as then in effect, mandated that for each conviction of a crime of violence, the defendant was to be sentenced to a term of incarceration greater than the maximum in the presumptive range. Based upon this statute, by imposing consecutive sentences for each count of crime of violence, the trial court initially sentenced the defendant to 64 years and 4 days, the minimum possible aggravated range sentence. The pertinent facts surrounding defendant's convictions are set forth in People v. Beyer, 768 P.2d 746 (Colo.App.1988) wherein we previously affirmed the sentences imposed.
Following our decision, the trial court held a hearing on defendant's motion to reconsider the sentences pursuant to Crim.P. 35. The court thereupon reduced defendant's sentences to 5 years on each count to be served concurrently.
Under Crim.P. 35(b), the court may upon either a timely motion or its own initiative, reduce the sentence imposed on a defendant. The rule allows the court to reconsider, in the interests of justice, the sentence previously imposed, in light of all relevant and material factors which may or may not have been initially considered by the court and, in its sound discretion, resentence the defendant to a lesser term "within the statutory limits." People v. Smith, 189 Colo. 50, 536 P.2d 820 (1975).
The People argue that the trial court's modified sentences for each conviction to a five-year concurrent term are below the statutory minimum of 64 years and 4 days and are therefore not within statutory limits. Except for the concurrent term provisions of the modified sentences, we disagree.
Defendant admits that "the court was required to impose a term of at least 64 years and 4 days" and also that the reduction of his sentence must be "within statutory limits." He argues, however, that the trial court is empowered under § 16-11-309 to modify a crime of violence sentence, even to the point of probation, upon a finding of unusual and extenuating circumstances. Therefore, he asserts that a five-year concurrent sentence is statutorily permissible.
Colo.Sess.Laws 1985, ch. 145, § 16-11-309(1)(a) at 647 then provided:
This statute allows the trial court, under certain circumstances appearing on review of a mandatory sentence for violent crime, to reduce the sentence previously imposed below the maximum of the presumptive range. See People v. Wells, 775 P.2d 563 (Colo.1989); People v. Byrum, 784 P.2d 817 (Colo.App.1989). Accordingly, the modified sentences are, except for the concurrent term provisions, within the statutory limits of § 16-11-309, even though they are below the maximum presumptive terms.
At the hearing on the motion to modify the sentences, the defendant argued for reduction under the statute, not Crim.P. 35. Inasmuch as the modified sentences are "within the statutory limits" of § 16-11-309, the court had jurisdiction to proceed under Crim.P. 35. We therefore reject the People's contention that the trial court exceeded its jurisdiction.
We also cannot accept the People's argument that § 18-1-105(9)(a)(I), C.R.S. (1986 Repl.Vol. 8B) mandates that any modified sentence be within the aggravated range.
A sentence within the aggravated range, i.e., a term greater than the maximum in the presumptive range, must be imposed whenever any of the extraordinary aggravating circumstances specifically enumerated in § 18-1-105(9)(a), C.R.S. (1986 Repl.Vol. 8B) are present, regardless of whether any mitigating factors are also present. People v. District Court, 713 P.2d 918 (Colo.1986). Here, defendant was convicted of four counts of crime of violence, which were extraordinary aggravating circumstances listed in § 18-1-105(9)(a).
However, we conclude that only the initial sentences must be within the aggravated range, and the trial court here complied with this statutory mandate by imposing the 64 year and 4 day combined sentences. To hold that a modification of those sentences below the maximum presumptive terms could not be effectuated renders meaningless the express provision in § 16-11-309 permitting modification to include probation. Thus, the sentences could be modified below the maximum presumptive terms, even though the initial sentences were required to be within the aggravated range. See People v. Byrum, supra.
For similar reasons, we also reject the People's contention that the trial court could not reduce the attempted first degree murder count to a period below the minimum in the presumptive range. Section 16-11-309 allowed such modification.
Next, the People challenge the modified sentences on the basis of procedural defects. We find no reversible error.
The trial court's delay in reporting the modification to the state court administrator as required by § 16-11-309(1)(a) does not affect the validity of the modified sentences. See People v. Byrum, supra (). And, contrary to the People's assertion, the record, as supplemented, indicates that the trial court did receive and review the required report from the Department of Corrections prior to...
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