People v. Lacey, No. 84SA527

Docket NºNo. 84SA527
Citation723 P.2d 111
Case DateJune 23, 1986
CourtSupreme Court of Colorado

Page 111

723 P.2d 111
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
James L. LACEY, Defendant-Appellant.
No. 84SA527.
Supreme Court of Colorado,
En Banc.
June 23, 1986.
Rehearing Denied Aug. 25, 1986.

Page 112

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter J. Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colo. State Public Defender, Michael J. Heher, Peggy O'Leary, Deputy State Public Defenders, Denver, for defendant-appellant.

ROVIRA, Justice.

The defendant, James Lacey, appeals the trial court's denial of his Crim.P. 35(a) and (b) motions to correct an illegal sentence and for reduction of sentence. 1 We affirm.

On October 19, 1982, the defendant pleaded guilty to the charge of conspiracy to commit aggravated motor vehicle theft, a class four felony. 2 At the defendant's arraignment, the court told the defendant that if it were "to find aggravation in the case, then instead of imposing a maximum sentence of four years, the court could impose a maximum sentence of eight years." Defense counsel then informed the trial court: "I have advised Mr. Lacey that since he was on probation at the time of the commission of the offense, in all likelihood, if the court were to impose a sentence, it would have to be in the aggravated range." The trial court then incorrectly advised the defendant that if he was on probation at the time of the underlying felony, and the court imposed a sentence, the sentence would be from two to eight years. 3

Three months later, at sentencing, defense counsel again told the trial court that the defendant was on probation at the time he committed the offense. The presentence report also informed the trial court that the defendant had been on probation for a prior felony at the time he conspired to commit aggravated motor vehicle theft. Pursuant to section 18-1-105(9)(a)(III), 8 C.R.S. (1985 Supp.), the court then imposed a sentence in the aggravated range of four years and one day plus one year of probation. Subsequently, the defendant moved for correction of illegal sentence and for reduction of sentence. Both motions were denied. On appeal, the defendant alleges that section 18-1-105(9)(a)(III), 8 C.R.S. (1985 Supp.), is unconstitutional and, accordingly, seeks reconsideration and reduction of his sentence.

I.

Defendant first argues that section 18-1-105(9)(a)(III) is facially unconstitutional because it denies him due process of law as required by the fifth and fourteenth amendments of the United States Constitution and article II, section 25, of the Colorado Constitution. Section 18-1-105(9)(a)(III) provides:

(9)(a) The presence of any one or more of the following extraordinary aggravating circumstances shall require the 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

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the maximum term authorized in the presumptive range for the punishment of a felony:

....

(III) The defendant was on probation for another felony at the time of the commission of the felony.

The defendant maintains that the statute violates due process because it does not require: (1) notice in the information that the defendant is subject to enhanced sentencing; and (2) proof beyond a reasonable doubt that the defendant was on probation for a felony when he committed the substantive felony.

As a threshold matter, we agree with the defendant that section 18-1-105(9)(a)(III) is a sentence enhancement statute. In People v. Smith, 195 Colo. 404, 406, 579 P.2d 1129, 1130 (1978), this court stated that a punishment enhancer is a statute which enhances the minimum sentence that the substantive offense would ordinarily carry. See also People v. Haymaker, 716 P.2d 110, 117 n. 10 (Colo.1986). Here, because the defendant was on probation, section 18-1-105(9)(a)(III) operated to enhance the minimum sentence for the class four felony from two years to beyond four years. We conclude, therefore, that section 18-1-105(9)(a)(III) is a sentence enhancer.

We also agree with the defendant that certain procedural safeguards must attach to sentence enhancement statutes. See, e.g., People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). However, we do not believe that the statute itself must contain provisions relating to notice and proof of prior probationary status. While we agree that a defendant subject to section 18-1-105(9)(a)(III) is entitled to notice that he is subject to enhanced punishment, and that, where the defendant contests his probationary status, the prosecution has the burden of proving the defendant's probationary status, we do not believe that the statute itself is invalid for failing to set forth such provisions.

In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the Supreme Court construed the West Virginia habitual criminal statute and held that "a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense." 368 U.S. at 452, 82 S.Ct. at 504 (emphasis added); see also Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967). The defendant has not cited any convincing authority for the proposition that procedural due process requires that the sentence enhancing statute itself contain a notice provision, and we refuse to adopt such a requirement. Rather, we hold that the defendant is entitled to reasonable notice that he is subject to enhanced sentencing under section 18-1-105(9)(a)(III).

Here, the defendant had reasonable notice that he was subject to enhanced punishment under the statute. The record reflects that the defendant was present at arraignment when defense counsel informed the court that the defendant was on probation at the time he committed the felony and, in all likelihood, would be subject to enhanced sentencing. Prior to sentencing, the defendant was again told by the court that he was subject to incarceration for a term of up to eight years. In short, under the circumstances presented here, we conclude that the defendant was adequately apprised that he was subject to an enhanced sentence.

Similarly, we reject the defendant's argument that the statute is constitutionally defective because it does not expressly provide that the prosecutor must prove the probationary status beyond a reasonable doubt. The prosecution's burden of proving probationary status arises only when the defendant contests his alleged probationary status. Here, allegations of the defendant's probationary status were made in the pretrial release service report, at arraignment, in the presentence report, and at the sentencing hearing; yet, at no point in the proceedings has the defendant contested

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his alleged status as a probationer. Nor can it be said that the defendant stood silent when confronted with the likelihood of receiving a sentence in the aggravated range. Defendant's attorney, with defendant at his side, twice admitted to the trial court that the defendant was on probation at the time of the substantive offense. Under these circumstances, we refuse to require the prosecutor to prove the defendant's status as a probationer. However, where the defendant does contest his alleged status as a probationer, the applicable burden on the People of proving that the defendant was on probation for a felony conviction is by a preponderance of the evidence. Cf. § 16-11-206(3), 8 C.R.S. (1985 Supp.) (At probation revocation hearing, prosecution has burden of showing violation of a condition of probation by a preponderance of the evidence); § 16-7-403(2), 8 C.R.S. (1985 Supp.) (At deferred sentence...

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25 practice notes
  • People v. Gwinn, Court of Appeals No. 16CA1884
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2018
    ...a statute does not establish a burden of proof, preponderance of the evidence determined by a judge is proper); see also People v. Lacey , 723 P.2d 111, 124 (Colo. 1986) (prosecution required to prove the defendant was on probation by a preponderance of the evidence standard at revocation h......
  • People v. Garcia, No. 86SA143
    • United States
    • Colorado Supreme Court of Colorado
    • March 14, 1988
    ...into Colorado. 696 P.2d at 805. The defendant's equal protection argument is also without merit, based on our analysis in People v. Lacey, 723 P.2d 111 (Colo.1986). "The right to equal protection of the law guarantees only that all parties who are similarly situated receive like treatment b......
  • People v. Wilson, Court of Appeals No. 11CA0009
    • United States
    • Colorado Court of Appeals of Colorado
    • May 23, 2013
    ...226 P.3d 1221, 1224 (Colo.App.2009). Cases that were decided before Apprendi and Blakely reached the same conclusion. People v. Lacey, 723 P.2d 111, 114 (Colo.1986); People v. Whitley, 998 P.2d 31, 34 (Colo.App.1999). ¶ 44 Defendant argues that, because the enhancement of his conviction fro......
  • Vega v. People, No. 93SC670
    • United States
    • Colorado Supreme Court of Colorado
    • April 3, 1995
    ...of the sentence enhancer," we held that the sentence enhancing element is not an element of an offense. Id.; see also, People v. Lacey, 723 P.2d 111, 113 (Colo.1986) (statute requiring court to sentence defendant to term "greater than the maximum in the presumptive range, but not more than ......
  • Request a trial to view additional results
25 cases
  • People v. Gwinn, Court of Appeals No. 16CA1884
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2018
    ...a statute does not establish a burden of proof, preponderance of the evidence determined by a judge is proper); see also People v. Lacey , 723 P.2d 111, 124 (Colo. 1986) (prosecution required to prove the defendant was on probation by a preponderance of the evidence standard at revocation h......
  • People v. Garcia, No. 86SA143
    • United States
    • Colorado Supreme Court of Colorado
    • March 14, 1988
    ...into Colorado. 696 P.2d at 805. The defendant's equal protection argument is also without merit, based on our analysis in People v. Lacey, 723 P.2d 111 (Colo.1986). "The right to equal protection of the law guarantees only that all parties who are similarly situated receive like treatment b......
  • People v. Wilson, Court of Appeals No. 11CA0009
    • United States
    • Colorado Court of Appeals of Colorado
    • May 23, 2013
    ...226 P.3d 1221, 1224 (Colo.App.2009). Cases that were decided before Apprendi and Blakely reached the same conclusion. People v. Lacey, 723 P.2d 111, 114 (Colo.1986); People v. Whitley, 998 P.2d 31, 34 (Colo.App.1999). ¶ 44 Defendant argues that, because the enhancement of his conviction fro......
  • Vega v. People, No. 93SC670
    • United States
    • Colorado Supreme Court of Colorado
    • April 3, 1995
    ...of the sentence enhancer," we held that the sentence enhancing element is not an element of an offense. Id.; see also, People v. Lacey, 723 P.2d 111, 113 (Colo.1986) (statute requiring court to sentence defendant to term "greater than the maximum in the presumptive range, but not more than ......
  • Request a trial to view additional results

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