People v. Duran
| Decision Date | 14 April 1975 |
| Docket Number | No. 25978,25978 |
| Citation | 533 P.2d 1116,188 Colo. 207 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald E. DURAN, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Kenneth J. Russell, Carol L. Gerstl, Deputy State Public Defenders, Denver, for defendant-appellant.
Ronald E. Duran, the defendant herein, was convicted by a jury of aggravated robbery (1971 Perm.Supp., C.R.S.1963, 40--4--302) 1 and conspiracy to commit aggravated robbery (1971 Perm.Supp., C.R.S.1963, 40--2--201). 2 Two issues have been raised on appeal. The defendant first asserts that the Colorado statute relating to aggravated robbery is unconstitutional. As a second basis for his appeal, he asks appellate review of the sentence which the trial judge imposed. We affirm.
After the jury returned its verdict, the trial judge remanded the defendant to the county jail pending the completion of a presentence investigation. See Crim.P. 32; section 16--11--102, C.R.S.1973. The defendant, at the time the robbery was committed, had been released on parole for only one month from the penitentiary. Defense counsel filed a motion for a new trial and was provided with a copy of the presentence investigation.
The presentence investigation reflects the defendant's history and his participation in numerous crimes of violence. He declined to make any statement regarding his background, other than to say that his lawyer would file a motion for a new trial and appeal his conviction and that he would not serve any sentence that the court imposed.
The trial court heard and denied the defendant's motion for a new trial. Thereafter, the trial judge granted the defendant and his counsel the right of allocution. The defendant elected to remain silent and left the presentation of mitigating circumstances to defense counsel. Defense counsel thoroughly investigated the presentence report and acknowledged at the sentencing hearing that the report was accurate in all material parts. In attempting to assist the defendant, defense counsel acknowledged that the defendant had not benefitted from his previous incarceration in various penal institutions and that the defendant had a serious narcotics problem which the court should consider in attempting to achieve rehabilitation.
The investigation by defense counsel ascertained that the treatment which the defendant received when confined in the California Rehabilitation Center for treatment of narcotics problems was not of any great value. Therefore, defense counsel suggested that the court consider a more positive narcotics rehabilitation program in imposing sentence upon the defendant. The probation report reflects that the defendant is not a narcotics addict, but has used narcotics from time to time. The trial judge had the benefit of a complete presentence investigation which reflects that the defendant was in excellent health and suffering from no physical disability.
After considering the remarks of defense counsel and weighing the material contained in the presentence investigation and the evidence presented at the time of trial, the trial judge sentenced the defendant to not less than 34 1/2 years nor more than 39 1/2 years for robbery and imposed the same sentence for conspiracy, with the sentences to be served concurrently.
The criminal episode which brought the defendant before the court on this occasion involved the robbery of the Gaylord Drug Store. The evidence irrefutably points to the fact that an aggravated robbery was committed by the defendant and William Shearer. Shearer was a convicted murderer who was serving a life sentence at the time he escaped from the Colorado State Penitentiary and teamed up with the defendant to commit two robberies to obtain money and drugs.
The defendant and Shearer was driven to the Gaylord Drug Store by Cindy Pena, the common-law wife of the defendant's brother. When they arrived at the drug store, the defendant entered, bought some cigarettes to determine who was present and departed. Thereafter, he and Shearer entered the drug store, threatened the owner and his wife with pistols, and obtained both money and narcotic drugs. The defendant and Shearer were arrested after Cindy Pena, who had driven the get-away went to the police. Cindy Pena reported the defendant to the police because he struck and abused one of her children.
Cindy Pena was the key prosecution witness. She was threatened before she testified and only testified after she was granted transactional immunity. She tied the defendant to both the robbery and the conspiracy which was entered into to rob both the Gaylord Drug Store and another drug store. At the close of the prosecution's case, the defense rested.
In People v. Small, 177 Colo. 118, 493 P.2d 15 (1972), we upheld the constitutionality of the Colorado aggravated robbery statute. After reviewing the arguments urged by the defendant relating to the substantive elements of the crimes of aggravated and simple robbery, we again sustain the constitutionality of the statute.
In this case, we are called upon to set forth criteria for the appellate review of sentences. Our power to review a sentence is contained in 1971 Perm.Supp., C.R.S.1963, 40--1--509(1), (2), 3 which provides:
'(2) No appellate court shall review any sentence which was imposed within the minimum and maximum punishment authorized for the offense involved if the minimum sentence imposed is not more than three years greater than the minimum sentence provided for the offense, and unless within thirty days after sentence is imposed a written notice is filed in the trial court to the effect that review of the sentence will be sought and said notice must state the grounds upon which it is based.'
The ABA Standards Relating to Appellate Review of Sentences provide guidance to us in the effectuation of the purposes and goals of sentence review:
'1.2 Purposes of review.
'The general objectives of sentence review are:
'(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;
'(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;
'(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and
'(iv) to promote the development and application of criteria for sentencing which are both rational and just.'
See State v. Chaney, 477 P.2d 441 (Alaska 1970); Frankel, Criminal Sentences: Law
Without Order (1973); Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 Vand.L.Rev. 671 (1962). See also Note, appellate Review of Sentencing Procedure, 74 Yale L.J. 355 (1964); Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453 (1969); Mattina, Sentencing: A Judge's Inherent Responsibility, 51 Judicature 105 (October 1973).
Sentencing is by its very nature a discretionary decision and is an art, not a science. Hogarth, Sentencing as a Human Process (Univ. of Toronto Press 1971).
The sentence imposed does not only concern the defendant, but is also of paramount importance to society, the corrections authority, and law enforcement. A sentence that is too long, or improperly conceived, tends to reenforce the criminal tendencies of a convicted defendant. On the other hand, a sentence which is too short deprives the law of its effectiveness and may release a dangerous defendant too soon.
Rehabilitation is the best method for preventing crime. However, when rehabilitation fails, the sentence must serve as a deterrent to others and a means of protecting society. In short, the trial judge must balance a number of factors to determine what deprivation of liberty a particular fact situation requires. When an extended sentence, or a sentence of long duration, is imposed, there must be a clear justification, based upon fact, for the trial judge's action. The trial judge must balance the many facets which enter into a sentencing decision to achieve a result which protects the rights of society and the defendant. The sentencing decision requires that each factor before the court be weighed, without maximizing the value of any one facet of the case.
In reviewing the record, we cannot modify the sentence imposed by the trial court unless it appears that the trial judge clearly abused his discretion in imposing the sanction in question. See People v. Campbell, Colo., 532 P.2d 945 (announced March 17, 1975); People v. Euresti, Colo., 529 P.2d 1319 (1975); People v. Weihs, Colo., 529 P.2d 317 (1974); People v. Carter, Colo., 527 P.2d 875 (1974); ABA Standards Relating to Appellate Review of Sentences § 3.1.
In our view, the appellate court is always at a disadvantage because of the fact that it does not...
To continue reading
Request your trial
-
People v. Mattas
...P.2d 1205 (1980); People v. Scott, Colo., 615 P.2d 35 (1980); Triggs v. People, 197 Colo. 229, 591 P.2d 1024 (1979); People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975). See 4 A.B.A. Standards for Criminal Justice, Appellate Review of Sentences, 20-1.2 (2d ed. 1980). Sentencing involves an......
-
People v. Horne
...selecting the appropriate disposition. E. g., People v. Cohen, supra; People v. Warren, Colo., 612 P.2d 1124 (1980); People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975). That discretion must be exercised to achieve an appropriate balance among various sentencing objectives, including rehab......
-
People v. Garcia
...unless there has been a clear abuse of discretion." People v. Strong, 190 Colo. 189, 191, 544 P.2d 966, 967 (1976). In People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975), we adopted the following approach: In fixing punishment, matters and things other than a defendant's guilt of the part......
-
People v. Madonna
...of the public. See section 18-1-102(1)(b), C.R.S.1973 (1978 Repl.Vol. 8); see also People v. Edwards, supra; People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975). The pre-sentencing report revealed that the defendant had been arrested on numerous occasions for drug-related offenses prior to......
-
Colorado Felony Sentencing
...___, 606 P.2d 1300 (1980). See C.A.R. 4(c) and (d). 55. C.A.R. 4(c); C.R.S. 1973, § 18-1-409(1). 56. See, for example, People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975) (34 1/2-39 1/2 years for aggravated robbery upheld); People v. Alvarez, 187 Colo. 290, 530 P.2d 506(1975) (17-25 years ......