People v. Bridges, 82SA105

• Decision Date: 18 April 1983
• Docket Number: No. 82SA105,82SA105
• Citation: 662 P.2d 161
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Walter T. BRIDGES, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 161

662 P.2d 161

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Walter T. BRIDGES, Defendant-Appellee.

No. 82SA105.

Supreme Court of Colorado,

En Banc.

April 18, 1983.

Rehearing Denied May 9, 1983.

Robert L. Russel, Dist. Atty., David H. Zook, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellee.

LOHR, Justice.

In this appeal the People challenge a ruling of the district court reducing the defendant's sentence for first degree sexual assault pursuant to a motion under Crim.P. 35(b). ¹ We conclude that the sentence reduction was within the trial court's discretion and affirm the amended judgment reflecting the reduced sentence.

A summary of the proceedings leading up to the defendant's resentencing is necessary to an understanding of the issues in this case. As the result of a jury trial in El Paso County District Court, the defendant, Walter Tyler Bridges, was convicted of first degree kidnapping, ² first degree sexual assault, ³ and robbery. ⁴ The charges were based on events that took place on the evening of October 1, 1976, in Colorado Springs. The victim, a schoolteacher, left work at her school and was attacked by Bridges as she approached her car. The defendant knocked the victim down, dragged her back to the schoolyard, took her wallet, repeatedly hit her head against a retaining wall, and sexually assaulted her. The police then arrived, and Bridges ran. The victim suffered multiple bruises and abrasions and was hospitalized for four days for a possible concussion.

The presentence report contained information that the defendant had a number of earlier encounters with the police. That report also reflected the opinions of police and probation officers that the defendant was incorrigible. The trial court sentenced Bridges to life imprisonment for kidnapping, thirty-four to thirty-eight years imprisonment for sexual assault, and nine to ten years for robbery, the sentences to run concurrently. Bridges appealed his convictions to this court but did not challenge the sentences in that appeal. We reversed the first degree kidnapping conviction and affirmed the first degree sexual assault and robbery convictions. People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980).

Thereafter, within the time allowed by Crim.P. 35(b), Bridges filed a motion for reconsideration of his sentence. One year later, before that motion was heard, the defendant filed a "Supplemental Motion for Reduction of Sentence Pursuant to Crim.P. 35(b) and (c)." In the latter motion, the defendant noted that his conviction for the class four felony of engaging in a riot, arising out of an incident in 1976 preceding the assault on the schoolteacher, had been reversed by this court after his sentencing in the present case. See People v. Bridges, 620 P.2d 1 (Colo.1980). That reversal left intact Bridges' conviction for menacing, a class five felony, ⁵ based on the same occurrence. The supplemental motion also called to the trial court's attention that a new and less severe legislative sentencing scheme had taken effect after Bridges' conviction and that, although Bridges "might not be entitled to the benefit of this change in the law as a matter of law," he should be accorded relief reflecting the legislative changes "as a matter of fairness and good conscience." The supplemental motion further characterized the presentence report as "an entirely one-sided document," emphasized the defendant's youth, ⁶ background, and difficulties experienced in prison, and requested that the minimum term of Bridges' sentence be reduced, suggesting a twelve to sixteen year minimum as appropriate.

The motion and supplemental motion were considered by a different judge than the one who presided at trial. After obtaining a supplemental presentence report and conducting a hearing, the trial court reduced Bridges' sentence for first degree sexual assault to not less than sixteen nor more than eighteen years and entered an amended judgment accordingly. The People appeal the amended judgment, contending that in reducing the sentence the trial court "abused its discretion by acting arbitrarily, capriciously, and without authority, rendering its sentence illegal and void." The People set forth the grounds for appeal more specifically in their brief. They urge first that the resentencing was an unlawful reduction of sentence under Crim.P. 35(c) and second that the trial court abused its discretion in three respects: (1) by using the new sentencing legislation as a guideline, (2) by considering the defendant's progress in prison, and (3) by failing to take into account other relevant factors in granting the motion for sentence reduction. The prosecution also contends that the trial court's findings in support of the sentence reduction were inadequate, and seeks a remand to the trial court for appropriate findings. In his brief in this court, the defendant counters by arguing that the district attorney is not authorized to appeal an order reducing a sentence under Crim.P. 35(b), that the court did not act under Crim.P. 35(c) in reducing the sentence, and that the trial court acted properly in resentencing Bridges.

We first address whether the resentencing determination is appealable and then review the appropriateness of the trial court's reduction of the defendant's sentence under Crim.P. 35(b) and the adequacy of its findings in support of that relief.

I.

The People bring this appeal under section 16-12-102, C.R.S. 1973 (1978 Repl.Vol. 8), which provides, in pertinent part:

The prosecution may appeal any decision of the trial court in a criminal case upon any question of law.

In support of its position that the reduction of the defendant's sentence involves questions of law, the prosecution advances alternative arguments based principally on the trial court's reliance on section 18-1-105, C.R.S. 1973 (1978 Repl.Vol. 8) (1982 Supp.) (the "presumptive sentencing law") which became effective on July 1, 1979, after the defendant committed the crimes in this case. We consider these arguments in turn.

A.

The People contend first that the trial court "did not have jurisdiction" to reduce the defendant's sentence under Crim.P. 35(c)(1) ⁷ because that provision allows retroactive application of subsequently enacted laws only when the defendant has filed his Crim.P. 35 motion before the judgment of conviction is affirmed on appeal. This argument assumes that the trial court gave retroactive effect to the presumptive sentencing law. The record discloses, however, that the trial court did not expressly or impliedly resentence the defendant under the new law, so the prosecution's argument lacks a factual basis.

Under the laws in effect at the time the defendant originally was sentenced, the court was required to set a maximum term of no more than forty years and a minimum term of no less than five years for first degree sexual assault, a class three felony as charged here. Sections 18-3-402, 18-1-105, C.R.S. 1973 (1978 Repl.Vol. 8). Under the presumptive sentencing law, maximum and minimum terms are no longer to be employed. Instead, a determinate sentence is prescribed within statutorily authorized ranges. For a class three felony the presumptive range is four years to eight years, plus one year of parole. Section 18-1-105, C.R.S. 1973 (1978 Repl.Vol. 8) (1982 Supp.). If extraordinary aggravating circumstances are present the maximum sentence is sixteen years, plus one year of parole. Section 18-1-105(6), C.R.S. 1973 (1978 Repl.Vol. 8) (1982 Supp.). Here, the reduced sentence imposed by the trial court was "not less than 16 nor more than 18 years." The setting of a maximum and a minimum term, and the fixing of the maximum in excess of the limit that could be imposed under the presumptive sentencing law, reflect that the court did not purport to apply the new law retroactively. The trial judge expressly recognized that he was not bound by law to resentence the defendant under the presumptive sentencing law and stated that he would use it only as a guideline, along with other considerations, in the interest of fairness. Accordingly, the record provides no factual support for the prosecution's contention that the trial court committed legal error by applying the presumptive sentencing law retroactively.

B.

Alternatively, the district attorney claims that the trial court improperly considered the presumptive sentencing law and the defendant's conduct in prison as factors in evaluating the Crim.P. 35(b) motion for reduction of sentence, and that the trial court gave no consideration to the aggravated nature of the crimes for which the defendant was convicted. On their face, these claims are questions of law implicating the propriety of the proceeding itself and we proceed to resolve them on their merits. Cf. Mikkleson v. People, 199 Colo. 319, 321, 618 P.2d 1101, 1102 (Colo.1980) (while a defendant cannot obtain appellate review of the trial court's exercise of discretion in denying resentencing...