People v. District Court of City and County of Denver

• Decision Date: 05 December 1983
• Docket Number: 83SA266,Nos. 83SA284,s. 83SA284
• Citation: 673 P.2d 991
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF the CITY AND COUNTY OF DENVER, State of Colorado, and Alvin D. Lichtenstein, one of the Judges thereof, Respondents. Clarence BURNS, Petitioner, v. DISTRICT COURT In and For the SECOND JUDICIAL DISTRICT and Alvin D. Lichtenstein, one of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 991

673 P.2d 991

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF the CITY AND COUNTY OF DENVER, State

of Colorado, and Alvin D. Lichtenstein, one of the

Judges thereof, Respondents.

Clarence BURNS, Petitioner, v. DISTRICT COURT In and For the SECOND JUDICIAL DISTRICT and Alvin D. Lichtenstein, one of the Judges Thereof,

Respondents.

Nos. 83SA284, 83SA266.

Supreme Court of Colorado En Banc.

Dec. 5, 1983.

Rehearing Denied Jan. 9, 1984.

Norman S. Early, Jr., Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Nathan B. Coats, Deputy Atty. Gen., John Daniel Dailey, First Asst. Atty. Gen., Denver, for amicus curiae, Atty. Gen.

Donnell, Davis & Salomon, Cathlin Donnell, Pfaff & St. Joan, Jacqueline St. Joan, Denver, for amicus curiae, Colo. Coalition for Justice for Abused Women.

Colo. Women's Bar Ass'n, Suzanne Saunders, President, Mary T. Hoagland, Pamela A. Ray, Denver, for amicus curiae, Colo. Women's Bar Ass'n.

Haddon, Morgan & Foreman, P.C., Bryan Morgan, Mitch Geller, Denver, for respondent Alvin D. Lichtenstein.

David F. Vela, State Public Defender, David D. Wymore, Chief Deputy State Public Defender, John A. Sadwith, Michael J. Heher, Deputy State Public Defenders, Denver, for Clarence Burns.

ROVIRA, Justice.

In People v. District Court, No. 83SA284, we issued a rule to show cause why respondent district court should not be directed to vacate the sentences imposed on Clarence Burns on June 22 and June 29, 1983. In Burns v. District Court, No. 83SA266, we issued a rule to show cause why respondent district court should not be directed to vacate the sentence imposed on defendant on June 29, 1983. We consolidated these original proceedings and now make the rule absolute in both proceedings.

I.

Patti Burns and Clarence Burns (defendant) were married in 1967. One son, Darren, was born of this marriage. In late June or July 1982, Mrs. Burns met with an attorney, Terre Rushton, to discuss obtaining a divorce from her husband. On August 4, 1982, she left the marital home and took her son, Darren, and some of their belongings with her. She left no explanation and no indication of their whereabouts.

When defendant came home from work, he did not realize that his wife had left him until later that evening when he was served with divorce papers and a Temporary Restraining Order which prohibited him from having any contact with his wife, her parents, or Darren. On August 5, Ms. Rushton spoke with Mr. Burns and set up a meeting to be held on August 17 in her office. She told him that he could meet with his wife at that time to discuss visitation with Darren and to determine if counseling would be appropriate. That meeting never occurred.

On August 13, defendant redeemed his .38 caliber revolver from the Mile Hi Pawn Shop. Two days later, he saw his wife's car near her parents' house. He climbed into the trunk and hid there until Mrs. Burns and Darren drove to their apartment. Defendant then got out of the trunk and followed them inside. Mr. and Mrs. Burns went into the bedroom to discuss the situation. At one point, Darren saw the defendant with a gun at his head threatening to commit suicide if Mrs. Burns would not come back to him. Darren ran outside. Exactly what happened next is not clear. But the defendant's subsequent statements and his plea of guilty to second-degree murder established that the defendant shot his wife five times at close range in her head and upper body with the revolver that he had recently redeemed. She died as a result of these wounds. The defendant was then charged with first-degree murder and mandatory sentence for a crime of violence.

Subsequently, the People and the defendant entered into a plea bargain, and the respondent court conducted a Crim.P. 11 hearing. Under the plea-bargaining agreement set forth in the record, the district attorney agreed to dismiss the first-degree murder charge and mandatory sentence for crime of violence, and to ask for a sentence of no more than ten years in exchange for defendant's plea of guilty to second-degree murder. Before accepting his guilty plea, respondent warned defendant that the court would not be bound by the People's recommendation as to an appropriate sentence. In response to questions from the respondent, defendant acknowledged that he was knowingly and voluntarily entering a plea of guilty and that nothing presently affected his ability to understand the proceedings and to think clearly. The respondent then advised the defendant of his constitutional rights and asked a series of questions concerning defendant's mental state at the time of the shooting. Defendant admitted that on August 15 he was mentally aware that he was shooting his wife and that her death was a practical certainty as a result of his acts. ¹ Respondent also explained the elements of second-degree murder, ² and defendant answered in the affirmative when asked if he was freely, voluntarily, and intentionally entering his plea of guilty to that crime, without undue influence, coercion, or threats from anyone. In addition, the prosecutor offered a factual basis for the charge. Defendant again admitted that he shot his wife five times and did not dispute the prosecutor's version of the essential facts. The defendant's plea of guilty to second-degree murder was accepted, he was granted leave to apply for probation, and his bond was continued.

The first sentencing hearing occurred on June 22. After considering the presentence report prepared by the probation department, and hearing testimony and arguments, respondent ruled that extraordinary mitigating circumstances justified a sentence below the presumptive range for second-degree murder. Respondent sentenced defendant to four years in prison and one year of parole, which is one-half of the lowest sentence within the presumptive range. ³ Then, respondent suspended defendant's sentence upon the following conditions: he must participate in a work-release program for two years at the Denver County Jail, must continue therapy with Michael Lindsay for two years or until Mr. Lindsay discharged him, and must not possess or carry any weapon for two years. Respondent discharged defendant's bond and placed him in the sheriff's custody. The mittimus was signed and issued. Defendant began serving his sentence.

On June 28, sua sponte and without notice to the parties of the reason, respondent notified the parties to be in court on June 29. At that time, the respondent stated that his decision to suspend defendant's sentence had been based "solely" on concerns about defendant's son, Darren. He said that on June 27 he was informed for the first time by a member of the media that Mrs. Burns had left a legacy of approximately $100,000 to Darren. ⁴ He took judicial notice of the exact amount of the legacy ($82,571.18) from Probate Court Case No. 82PR1451. Respondent then said that this financial support "eliminates the very foundation upon which the sentence was imposed and the suspension of sentence was based." Respondent, believing that the double jeopardy clauses of the United States and Colorado Constitutions prevented an alteration of the sentence itself, then revoked the suspension of defendant's sentence and placed him in the custody of the Department of Corrections for four years, plus one year of parole.

The defendant objected to the revocation of the suspended sentence on the grounds that he had done nothing to warrant revocation, and was being denied the opportunity for a hearing on the issue. The district attorney then asked the respondent if he would consider resentencing if double jeopardy did not apply, and respondent stated that he would be inclined to impose a stiffer sentence within the mitigating range if he was not precluded from doing so by the double jeopardy clauses of the United States and Colorado Constitutions.

The People, in 83SA284, seek relief in the nature of a writ of mandamus under C.A.R. 21 from the rulings of the trial court. They argue that the respondent acted in excess of his jurisdiction, grossly abused his discretion, and imposed void sentences because extraordinary mitigating circumstances did not exist as a matter of law. They ask this court to vacate the sentences, to find extraordinary aggravating circumstances, and to impose a sentence within the aggravated range; or, at least, to impose a sentence within the presumptive range for second-degree murder.

Defendant argues that an original petition for relief in the nature of a writ of mandamus is an inappropriate mode of appeal of a defendant's sentence by the People. He asserts that since no statute or rule of criminal procedure allows the People to appeal a sentence, a writ in the nature of mandamus should not be available. In addition, defendant argues that the evidence supports a sentence within the extraordinary mitigating range. The defendant also claims that any enhancement of his sentence by this court or the respondent would violate his constitutional right to be free from being twice put in jeopardy.

The respondent claims that both a legal foundation and evidence sustained his finding of extraordinary mitigating circumstances and the sentences were legally imposed. The respondent did not address the issues raised by the defendant, but adopted the arguments and positions offered by him.

II.

The exercise of jurisdiction in an original proceeding in the nature of mandamus is discretionary and governed by the circumstances of the case. If an issue of sufficient public importance is involved, we have often exercised original jurisdiction. Colo. Const. art. VI, sec. 3; Sanchez v. District Court, 624 P.2d 1314 (Colo.1981); Stull v. District Court, 135 Colo. 86, 308 P.2d 1006 (1957); Shore v. District Court, 127 Colo. 487, 258...