People v. Lassek

• Citation: 122 P.3d 1029
• Decision Date: 08 September 2005
• Docket Number: No. 02CA2142.,02CA2142.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hilary LASSEK, Defendant-Appellant.
• Court: Colorado Supreme Court

122 P.3d 1029

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hilary LASSEK, Defendant-Appellant.

No. 02CA2142.

Colorado Court of Appeals, Div. IV.

April 21, 2005.

Rehearing Denied September 8, 2005.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

WEBB, J.

Defendant, Hilary Lassek, appeals the sentence imposed and restitution order entered following his guilty plea to leaving the scene of an accident involving death, § 42-4-1601(1), C.R.S.2004; leaving the scene of an accident involving serious bodily injury, § 42-4-1601(1); tampering with physical evidence, § 18-8-610(1)(a), C.R.S.2004; and two counts of careless driving, § 42-4-1402(1), C.R.S.2004. We affirm.

The charges arose from an accident in which the car defendant was driving struck two Air Force Academy cadets, killing one and injuring the other.

The plea agreement provided for a sentencing cap of twelve years in the Department of Corrections. The trial court sentenced defendant to consecutive terms of six years imprisonment for leaving the scene of an accident resulting in death and three years imprisonment for leaving the scene of an accident resulting in serious bodily injury, plus concurrent terms for the other offenses. The court also ordered defendant to pay $10,784.80 in restitution.

I.

Defendant contends that when imposing sentence, the trial court improperly relied on evidence regarding the background and character of the deceased victim, consisting primarily of his accomplishments at the Air Force Academy. We disagree.

Section 18-1-409(1), C.R.S.2004, permits appellate review of "the propriety of the sentence," except when the sentence imposed is "within a range agreed upon by the parties pursuant to a plea agreement."

Several divisions of this court have treated the plea agreement proviso as a complete bar to appellate review where the sentence does not exceed the agreed cap. See People v. Scofield, 74 P.3d 385 (Colo.App.2002); People v. Garcia, 55 P.3d 243 (Colo.App.2002)(defendant's claim that court emphasized punishment and refused to consider community corrections barred because his sentence did not exceed the agreed cap); People v. Prophet, 42 P.3d 61 (Colo.App.2001)(defendant's claim that trial court abused its discretion by sentencing him to the maximum term under his plea agreement barred).

However, in People v. Misenhelter, 121 P.3d 230, 2004 WL 3246112 (Colo.App. No. 02CA2090, Dec. 30, 2004), the division held that § 18-1-409(1) does not bar appeals contesting "the propriety of the sentencing proceeding." The Misenhelter division quoted extensively from People v. Malacara, 199 Colo. 243, 247 n. 4, 606 P.2d 1300, 1303 (1980), including the statement that a limitation on appellate review of sentencing proceedings which implicated due process "would likely be unconstitutional." Misenhelter, supra, 121 P.3d at 233. The division also referred to a statement in the legislative history of the plea agreement proviso that "the proviso's limitation did not go beyond precluding an appeal to review the propriety of the sentence." Misenhelter, supra, 121 P.3d at 233.

The division then vacated the defendant's aggravated range sentence, which had not exceeded the cap in his plea agreement, as a violation of his Sixth Amendment rights. The division concluded that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the sentence "could not have been imposed by the court without a jury determination of the existence of aggravating circumstances." Misenhelter, supra, 121 P.3d at 234.

Here, in contrast, defendant was sentenced below the sentencing cap in his plea agreement and within the presumptive range for each conviction. See § 18-1.3-401(1)(a)(V)(A), C.R.S.2004. Although the proviso cannot preclude review of a constitutional flaw in a sentencing proceeding, People v. Malacara, supra, we perceive no constitutional violation here.

Defendant first asserts a violation of his Sixth Amendment confrontation right because the court considered letters about the deceased victim. We disagree.

Defendant cites no Colorado or United States Supreme Court authority, and we have found none, recognizing the constitutional right of confrontation in sentencing proceedings.

The federal circuit courts do not apply the Confrontation Clause to noncapital sentencing proceedings. See United States v Beaulieu, 893 F.2d 1177, 1180 (10th Cir.1990)(constitutional requirements mandated in a criminal trial as to confrontation and cross-examination do not apply at noncapital sentencing proceedings); see also United States v. Francis, 39 F.3d 803 (7th Cir.1994); United States v. Petty, 982 F.2d 1365, amended, 992 F.2d 1015 (9th Cir.1993); United States v. Silverman, 976 F.2d 1502 (6th Cir.1992); United States v. Tardiff, 969 F.2d 1283 (1st Cir.1992); United States v. Wise, 976 F.2d 393 (8th Cir.1992); United States v. Johnson, 935 F.2d 47 (4th Cir.1991); United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990); United States v. Carmona, 873 F.2d 569 (2d Cir.1989); United States v. Giltner, 889 F.2d 1004 (11th Cir.1989).

We find these cases persuasive and therefore conclude that the sentencing proceedings did not violate defendant's Confrontation Clause rights.

Defendant next asserts that consideration of the victim character evidence rendered the proceedings fundamentally unfair, in violation of his due process rights under U.S. Const. amend. XIV and Colo. Const. art. II, § 25. We are not persuaded.

Defendant does not dispute the accuracy of the information concerning the deceased victim's character. Cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)(disapproving of reliance on assumptions about other convictions that turn out to be materially untrue). Nor does he dispute having been given adequate notice of and an opportunity to explain or rebut this information. See United States v. Pelliere, 57 F.3d 936 (10th Cir.1995)(due process requires that a defendant be given adequate notice of and an opportunity to rebut or explain information used against him in sentencing).

Defendant does not cite, nor have we found, either Colorado or United States Supreme Court authority treating receipt of victim character evidence in a sentencing proceeding as a due process violation.

Defendant's reliance on People v. Frye, 18 Cal.4th 894, 77 Cal.Rptr.2d 25, 959 P.2d 183 (1998), to support his due process argument is misplaced. There, the court rejected the defendant's due process argument. It discussed victim impact evidence in the context of the guilt phase, not at sentencing.

Moreover, defendant's characterization of the sentencing proceeding as fundamentally unfair is belied by the fact that the trial court allowed each side approximately two hours and heard fourteen witnesses on behalf of defendant.

Therefore, we discern no constitutional infirmity in consideration of the victim character evidence at sentencing.

Defendant raises three statutory challenges to the sentencing proceeding: (1) the trial court heard from persons who are not defined as victims under § 24-4.1-302(5), C.R.S.2004; (2) § 16-11-102(1.5), C.R.S.2004, does not provide for inclusion of victim character evidence in the victim impact statement portion of the presentence investigation report; and (3) victim character evidence is not listed as a factor relevant to sentencing in § 18-1.3-401(1)(b)(I). However, because defendant's sentence did not exceed the cap in his plea bargain, we interpret the plea agreement proviso as precluding review of these nonconstitutional challenges. See People v. Scofield, supra; People v. Garcia, supra. Although People v. Misenhelter, supra, could be read to the contrary, we note that it dealt only with a constitutional infirmity in the sentencing proceeding.

In construing a statute, our primary task is to determine and give effect to the intent of the General Assembly. People v. Terry, 791 P.2d 374 (Colo.1990). To ascertain that intent, we first look to the statutory language and give the statutory terms their plain and ordinary meaning. Bertrand v. Bd. of County Comm'rs, 872 P.2d 223 (Colo.1994).

If the statutory language is clear and unambiguous, we interpret the statute as written because the General Assembly is presumed to have meant what it plainly said. McCall v. Meyers, 94 P.3d 1271 (Colo.App.2004). We also construe the various statutory provisions as a whole, giving consistent, harmonious, and sensible effect to each part whenever possible. People v. Banks, 9 P.3d 1125 (Colo.2000).

When the supreme court decided People v. Malacara, supra, § 18-1-409(1) provided, in pertinent part:

[T]he person convicted shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.

Colo. Sess. Laws 1991, ch. 4 at 14 (2d Extraordinary Sess.)(emphasis added). The emphasized language also appears in ABA Standards for Criminal Justice § 20-3.2.

In Malacara, the supreme court recognized that review of a sentence can include "two fundamental and distinct issues," first, the intrinsic "appropriateness of the sentence itself," and second, "the extrinsic factors and procedures which affect the determination of the sentence." Malacara, supra, 199 Colo. at 247, 606 P.2d at 1302-03. However, Malacara dealt with alleged harshness of the sentence, not a flaw in the sentencing procedure.

The cases cited by the Malacara court concerning extrinsic factors and procedures all involve constitutional issues. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, ...