People v. Black, 93CA0808

Decision Date08 September 1994
Docket NumberNo. 93CA0808,93CA0808
Citation894 P.2d 767
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Earl S. BLACK, Defendant-Appellant. . II
CourtColorado Court of Appeals

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge TURSI *.

Defendant, Earl S. Black, appeals from the denial of his motion for post-conviction relief pursuant to Crim.P. 35(c). We remand with directions.

Defendant was convicted in 1984 of one count of first degree sexual assault and one count of crime of violence. He was sentenced to a term of fourteen years in the Department of Corrections plus one year of parole. Based on the interpretation of the law in effect at the time he was sentenced, defendant was entitled to be released on mandatory parole upon the completion of his sentence less those periods credited for good time and earned time. See § 16-11-310, C.R.S. (1986 Repl.Vol. 8A); Thiret v. Kautzky, 792 P.2d 801 (Colo.1990). However, before his parole eligibility date arrived, the attorney general's office issued an opinion that those defendants convicted of sexual offenses were subject to discretionary rather than mandatory parole.

In August of 1989, defendant filed, pro se, a Crim.P. 35(c) motion alleging that he had served his entire sentence and was entitled to immediate release. He argued that the opinion from the attorney general's office was incorrect and that his parole should be mandatory. The court denied the motion, and defendant appealed. Citing Thiret v. Kautzky, supra, a division of this court affirmed the trial court order. See People v. Black, (Colo.App. No. 89CA1840, August 16, 1990) (not selected for official publication).

In February of 1993, defendant filed, through counsel, another Crim.P. 35(c) motion which raised three separate grounds in support of his request for immediate release. He maintained that his sentence violated both equal protection and due process and argued that it was illegal because a period of parole was included in the original sentence. This motion was also denied, and it is from this second denial that the defendant appeals.

I.

In support of the trial court's ruling, the People first assert that denial of the motion was proper because it was a successive petition for relief. We disagree.

As a general rule, a defendant must raise all of his claims for post-conviction relief in one motion. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Moreover, contrary to the People's claim, the issues raised in defendant's second post-conviction motion had not been previously raised. Accordingly, we will consider defendant's claims.

Nor do we find any merit in the People's further contention that this court is without jurisdiction to consider defendant's arguments because they involve issues with respect to the constitutionality of a statute. Under the present statute governing the jurisdiction of this court, questions involving the constitutionality of a statute are now within the ambit of our authority, unless that statute has been previously declared unconstitutional. Section 13-4-102, C.R.S. (1993 Cum.Supp.).

II.

Defendant first contends that his sentence violates equal protection guarantees. He argues that the sentencing scheme which allows for both mandatory and discretionary parole, depending upon the crime committed, unfairly treats a person who has committed a sexual assault more harshly than a person who has committed a sexual assault and another offense. Defendant claims that, in view of the supreme court ruling in Vaughn v. Gunter, 820 P.2d 659 (Colo.1991), it is possible for an offender who has been convicted of both attempted first degree murder and sexual assault to be released on parole at an earlier date than an offender who has committed only sexual assault. It appears that defendant is arguing both that the statute is facially unconstitutional and that it is unconstitutional as applied to him. Therefore, we will address both arguments.

Equal protection guarantees under both the United States and Colorado constitutions provide that the government must treat similarly situated individuals in a similar manner. To establish a violation of equal protection, a person must show that the allegedly offensive categorization unlawfully discriminates against the category to which the party belongs. People v. Garberding, 787 P.2d 154 (Colo.1990).

There is no prohibition against different penalties for different criminal acts, provided the classification is rationally based. The classification of crimes and punishment must reflect substantial differences having a reasonable relationship to the persons involved and the public purpose to be achieved. People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978).

A.

The defendant's facial challenge to the statute appears to be that it creates two groups of individuals who are being treated differently. The first group is comprised of those individuals who have committed a sexual assault offense only, while the second group includes those individuals who have committed a sexual assault offense and another offense.

We disagree that the individuals in the two groups are treated differently. To the contrary, the statute impacts those individuals in the same way. The offenders in both groups are subject to discretionary rather than mandatory parole for the sexual assault offense. And, the statute does not affect the parole eligibility date of those individuals. Each offender in both groups is still eligible for parole within the periods outlined by the sentencing statutes for the offenses committed. Hence, because the statute does not create a classification that would result in unequal treatment of some of the offenders who have committed a sexual assault offense, we conclude that it is not facially unconstitutional based on equal protection grounds.

B.

Defendant also argues that the statute is violative of equal protection as applied to him. Defendant premises this argument on the holdings in Vaughn v. Gunter, supra, and Thiret v. Kautzky, supra, which establish the principle that, when an offender is sentenced for two offenses, the governing sentence is the longer sentence for which he was sentenced, and the relevant parole provisions of that sentence apply to the entire composite sentence. Defendant argues that, as a result of these rulings, a sex offender with a single sentence for a sex offense is treated more harshly than a sex offender with a similar sentence for a sex offense and a longer sentence for another type of offense. He maintains that, as applied to him, this is a violation of equal protection. We conclude that remand is necessary for resolution of this argument.

In his second Crim.P. 35(c) motion defendant alleged that he was aware of several instances within the Department of Corrections in which disparate treatment of offenders had occurred. Specifically, defendant claimed that several individuals who had been convicted of both sexual assault and burglary offenses after July 1, 1979, and before July 1, 1985, received the benefits of mandatory parole because the sentence imposed for the burglary charge was longer than that imposed for the sexual assault charge. The discharge occurred even though these inmates had served less than the entire term of their sentences for the sexual assault offenses. Similarly, defendant alleged that an inmate convicted of second degree kidnapping involving sexual assault is subject to mandatory parole because the statute governing kidnapping is not considered a statute involving sexual assault.

These allegations raise material questions of fact which, if true, could provide a basis for relief on equal protection grounds. White v. Denver District Court, 766 P.2d 632 (Colo.1988). Because these questions of fact cannot be resolved by resort to the record, a hearing is required to address defendant's equal protection claims. People v. Rael, 681 P.2d 530 (Colo.App.1984). Thus, the matter must be remanded so that the trial court can determine whether the statute at issue, as applied to this defendant, creates disparate treatment without a rational basis for such disparity.

Although we conclude that a hearing is necessary, we note that the cases cited by defendant in support of his claim that he is potentially treated more harshly than a person who has committed multiple offenses are not dispositive here. Both Smith v. People, 852 P.2d 420 (Colo.1993), and People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978), involved situations in which a harsher penalty was imposed for similar criminal conduct committed under different circumstances. In those cases, the courts concluded that because...

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1 cases
  • People v. Black
    • United States
    • Colorado Supreme Court
    • 12 Febrero 1996
    ...persons convicted of sex offenses occurring between July 1, 1979, and July 1, 1985, violates the equal protection clause. People v. Black, 894 P.2d 767 (Colo.App.1994). We find no violation of the equal protection clause and therefore reverse the judgment of the court of Defendant Earl S. B......

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