People v. Broga, s. 86SA84

• Citation: 750 P.2d 59
• Decision Date: 08 February 1988
• Docket Number: 87SA11,Nos. 86SA84,s. 86SA84
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Herbert C. BROGA, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Herbert C. BROGA, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 59

750 P.2d 59

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Herbert C. BROGA, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Herbert C. BROGA, Defendant-Appellant.

Nos. 86SA84, 87SA11.

Supreme Court of Colorado En Banc.

Feb. 8, 1988.

Rehearing Denied Feb. 22, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Terrance A. Gillespie, David R. Little, Asst. Attys. Gen., Denver, for the people.

David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Chief Deputy State Public Defender, Denver, for Herbert C. Broga.

MULLARKEY, Justice.

The defendant pled guilty in 1976 to sexual assault, burglary, and felony menacing. In 1982, the defendant escaped from the correctional facility where he was incarcerated for these charges. He was apprehended in 1983 and pled guilty to escape, a class 3 felony. The district court sentenced the defendant to twelve years incarceration, a term in the aggravated range for a class 3 felony, to be served consecutive to the 1976 sentence.

In 1986, the defendant filed motions for correction of illegal sentence and for postconviction relief pursuant to Crim.P. 35. The motion for correction of illegal sentence was denied by the district court. The motion for postconviction relief was denied in part and granted in part. The defendant appealed part of the district court's order, claiming that the court's characterization of confinement as a per se aggravating factor for sentencing on an escape was error and that, therefore, his sentence in the aggravated range should be reduced. We affirm this portion of the order of the district court, holding that the district court entered sufficient findings to justify an aggravated sentence.

In the same order, the district court also ruled that the Department of Corrections incorrectly calculated good time in regard to the defendant's sentences. We conclude that the Department of Corrections' method of calculating good time credits was proper and, therefore, reverse that portion of the district court's order.

I.

On May 20, 1976, judgment was entered against the defendant upon his pleas of guilty to three counts of first-degree sexual assault, one count of second-degree burglary and two counts of felony menacing. The defendant was sentenced to concurrent terms, the maximum being not less than fourteen years nor more than twenty years incarceration. On June 8, 1982, the defendant was reported missing from the Rifle Correctional Center in Garfield County. The defendant was apprehended in Connecticut on January 1, 1983, returned to Colorado, and pled guilty to escape, a class 3 felony in violation of section 18-8-208(2), 8B C.R.S. (1986). ¹

The presentence report prepared on the defendant indicated that, in return for his plea of guilty to a charge of escape, no habitual offender charges would be filed against him. On June 13, 1983, the defendant appeared in the District Court for the County of Garfield for sentencing. After hearing arguments of counsel, the court stated: "Upon your plea of guilty to the crime of escape, a class 3 felony, the court finds that your prior criminal history is extremely aggravating, and that without incarceration, there is an undue risk of your re-offending." The court then noted that the defendant was being granted "very significant mitigation" by avoiding habitual offender sentencing and that the court was "presented with a tremendous aggravating circumstance per se, your having committed an offense while incarcerated under conviction of a felony, and the minimum the court can sentence you to is eight years and a day."

The court was relying upon section 18-1-105(9)(a), 8B C.R.S. (1986), which provides that the presence of certain "extraordinary aggravating circumstances" requires the sentencing court, if it sentences the defendant to incarceration, to sentence the defendant to a term greater than the maximum in the presumptive range but not more than twice such maximum term. One of the extraordinary aggravating circumstances listed is "confinement, in prison, or in any correctional institution within the state as a convicted felon ... at the time of the commission of a felony." § 18-1-105(9)(a)(V), 8B C.R.S. (1986). The court went on to state that "[i]n light of the [defendant's] aggravated criminal history, ... the sentence recommended by the probation department [the minimum aggravated sentence] is not appropriate." The district court then sentenced the defendant to twelve years incarceration, a sentence in the aggravated range for a class 3 felony. ²

On September 21, 1983, the defendant filed a motion for reduction of sentence pursuant to Crim.P. 35, arguing that he should have received the minimum aggravated sentence. In denying this motion, the court stated that when it had sentenced the defendant it had "not[ed] the defendant's prior criminal history." In June of 1985 the defendant filed motions to correct illegal sentence and for postconviction relief pursuant to Crim.P. 35. At the hearing on these motions, the defendant argued that People v. Russell, 703 P.2d 620 (Colo.App.1985), which held that confinement could not be an aggravating factor in sentencing on an escape conviction, required a reduction in the defendant's sentence. In denying this portion of the defendant's motions, the court, on January 15, 1986, ruled: "At the sentencing hearing, the court found that the defendant had escaped while in custody as the result of a conviction of a felony and that as such that was an extraordinary aggravating circumstance. The court further found that defendant's criminal history was in itself an extraordinarily aggravating circumstance." The court concluded that the defendant's sentence should not be reduced or set aside because the defendant's prior criminal history supported the sentence imposed.

The defendant further alleged in his motion for postconviction relief that the Department of Corrections (the department) was applying incorrectly the good time provisions of the Colorado statutes. "Good time credit" is a sentence reduction available to inmates who, generally, abide by the rules and regulations of the department. § 17-22.5-201, 8A C.R.S. (1986). Section 17-22.5-201, 8A C.R.S. (1986) (section 201), governs the award of good time credit to reduce the time served by inmates sentenced for crimes committed prior to July 1, 1979. Section 17-22.5-301, 8A C.R.S. (1986) (section 301), governs the calculation of good time credit for inmates sentenced for crimes committed on or after July 1, 1979. The department aggregated the defendant's 1976 and 1983 sentences into one term and calculated good time for that composite term pursuant to section 201. In its order of January 15, 1986, the district court ruled that the department was calculating incorrectly the defendant's good time credit, that section 201 should be applied to the defendant's 1976 sentence, and that section 301 should be applied to the defendant's 1983 sentence.

II.

The court of appeals held in Russell, 703 P.2d 620, 622, that, because lawful confinement is an element of the substantive crime of felony escape, the commission of this element by itself could not logically constitute an extraordinary aggravating factor for purposes of sentencing on an escape conviction. We need not reach this issue, however, because the district court's finding that the defendant's prior criminal history was an extraordinary aggravating circumstance amply supports the defendant's sentence.

The district court's sentencing decision will not be modified absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984); People v. Hotopp, 632 P.2d 600 (Colo.1981); Triggs v. People, 197 Colo. 229, 591 P.2d 1024 (1979); People v. Strong, 190 Colo. 189, 544 P.2d 966 (1976). Where the record establishes a clear justification for the sentence imposed, this court will not disturb the sentence. Watkins, 684 P.2d at 239; People v. Warren, 200 Colo. 110, 612 P.2d 1124 (1980). Where the sentencing court finds several factors justifying a sentence in the aggravated range, only one of those factors need be legitimate to support the sentencing court's decision. See People v. Walker, 724 P.2d 666 (Colo.1986).

We therefore uphold the sentencing decision of the district court.

III.

We now turn to that portion of the district court's order holding that the department was calculating incorrectly the defendant's good time credits. We decided a similar issue in Price v. Mills, 728 P.2d 715 (Colo.1986), and we find the reasoning of that case persuasive in the controversy now before us. Price involved a challenge to the department's good time credit calculations by inmates serving concurrent sentences for pre-1979 and post-1979 offenses. The department, at that time, applied any credits established by section 201 to an inmate's aggregate sentence if a sentence for any pre-July 1, 1979, offense produced the longest incarceration term for the inmate. Section 301 was applied to the aggregate sentence if the incarceration term of any or all sentences for pre-July 1, 1979 offenses was shorter than the incarceration term of a sentence for an offense committed on or after July 1, 1979. As applied to the petitioners in Price, this meant that section 201 was used for their entire sentences. We held that, although other systems for calculating good time credits and applying them to a composite sentence might also be acceptable, there was no basis to require the department to alter its system. Although the defendant's sentences were imposed consecutively, while Price was concerned with concurrent sentences, we do not believe this distinction mandates a different result.

The department's aggregation of the defendant's sentences is authorized by section 17-22.5-101, 8A C.R.S. (1986), which states: "For the purposes of this article, when any inmate has been...