People v. Luu

• Decision Date: 28 May 1998
• Docket Number: No. 96CA0950.,96CA0950.
• Citation: 983 P.2d 15
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Minh LUU, Defendant-Appellant.
• Court: Colorado Court of Appeals

983 P.2d 15

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Minh LUU, Defendant-Appellant.

No. 96CA0950.

Colorado Court of Appeals, Division II.

May 28, 1998.

As Modified on Denial of Rehearing September 24, 1998¹.

Certiorari Denied September 13, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender,, Chief Appellate Deputy State Public Defender, Denver, for Defendant-Appellant. Opinion by Judge CRISWELL.

Defendant, Minh Luu, appeals the sentence imposed by the trial court on remand. We affirm.

In December 1987, defendant was convicted of eight counts of criminal activity, including second degree kidnapping, aggravated robbery, first and second degree burglary, theft, conspiracy to commit aggravated robbery, and first degree burglary. Under the pertinent sentencing statutes, defendant's five convictions of kidnapping, robbery, and first degree burglary were subject to mandatory aggravated sentences as crimes of violence.

In February 1988, the trial court imposed aggravated sentences for each of the five crimes of violence and ordered that all five be served consecutively. The remaining sentences were ordered to be served concurrently, for a cumulative total sentence of 120 years.

On appeal, a division of this court affirmed defendant's conviction, but set aside his sentence and remanded the matter to the trial court to exercise its discretion, pursuant to Robles v. People, 811 P.2d 804 (Colo.1991), in regard to making more than two of the sentences consecutive. See People v. Luu, 813 P.2d 826 (Colo.App.1991)

. The effect of the remand was to subject defendant to a possible minimum sentence of 32 years and 2 days.

Following the supreme court's affirmance of defendant's conviction in Luu v. People, 841 P.2d 271 (Colo.1992), this court's mandate was issued in December 1992.

Following that remand, a new sentencing hearing was held in May 1993, at the end of which the court took the question of resentencing under advisement, but assured the parties that a new sentence would be imposed within the next day or so. For reasons not revealed by this record, however, the court took no action within the time promised. On the contrary, it was not until October 1995, almost 2 1/2 years after the hearing, that the court, by written order, finally imposed a new sentence upon defendant.

In the meantime, between the date that the hearing was held in May 1993 and the date of the written order in October 1995, defendant filed some four written requests for the trial court to act in accordance with this court's mandate, but the court made no response to any of these requests until it issued its written order. In addition, based upon the assertion that so much time had passed since the 1993 hearing that recollections had faded, in March 1994 defendant requested and was supplied the reporter's transcript of that hearing.

In its written order, the trial court resentenced defendant to the Department of Corrections for a cumulative term of 60 years, with 288 days presentence confinement credit, nunc pro tunc to February 18, 1988. The court reimposed the same respective terms of years as had originally been imposed on each of the eight counts, ordered that the sentences of 30 years for each of the two kidnapping counts be served consecutively, and ordered that sentences imposed for the remaining six counts, totaling 92 years, be served concurrently with the kidnapping sentences. Hence, the effect of this resentencing was to reduce by about 50% the time that defendant will be required to serve.

However, again for reasons not revealed by the record, defendant did not receive notification of the entry of the October 1995 order until May 1996, when his counsel reviewed the court's minute orders to ascertain the status of his case. Shortly thereafter, defendant filed a notice of appeal, which was accepted as timely by this court.

I.

Relying upon Grundel v. People, 33 Colo. 191, 79 P. 1022 (1905) and People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo.1981), as well as numerous cases from other jurisdictions, defendant contends that the trial court lost jurisdiction to resentence him because of the inordinate delay between the resentencing hearing and the imposition of sentence by the court. We disagree.

Crim. P. 32(b) provides that a sentence must be imposed without unreasonable delay after conviction. However, the General Assembly has not established any specific period within which a sentence must be imposed. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993).

The cases cited by defendant also adopt no specific time table to be observed as reasonable; rather, in each instance the court determined the permissibility of the delay based upon the circumstances in the case before it, including those suggesting possible prejudice to the defendant. Moreover, each case involved a delay in the original imposition of sentence following conviction and, thus, is distinguishable from the situation here. See Taylor v. State, 233 Ind. 398, 120 N.E.2d 165 (1954)

; State v. Davis, 542 So.2d 856 (La.App.1989); State v. Milson, 458 So.2d 1037 (La.App.1984); People v. Drake, 61 N.Y.2d 359, 474 N.Y.S.2d 276, 462 N.E.2d 376 (1984); State v. Degree, 110 N.C.App. 638, 430 S.E.2d 491 (1993).

Persuasive upon this issue is People v. Wortham, 928 P.2d 771 (Colo.App.1996) in which it was held that a six-year delay before resentencing on remand did not result in loss of jurisdiction. Although the Wortham court relied upon the defendant's action that contributed to the delay, it also emphasized that the defendant's original sentence had been imposed in a timely manner and that the original sentence was ultimately reimposed, with the result that no prejudice resulted to defendant from any delay.

The record here provides no reason for the delay in re-sentencing defendant in this case. Nevertheless, given all of the circumstances, including the timely imposition of defendant's original sentence, the substantial reduction of the original sentence upon resentencing, the consequent lack of prejudice resulting from the sentence imposed on remand, and the fact that all of the period of delay will be credited against the present sentence, a conclusion that the delay was so unreasonable as to deprive the court of jurisdiction would not be justified.

II.

Defendant next contends that the trial court's delay in resentencing him deprived him of his constitutional right to speedy trial. We reject this contention.

In Moody v. Corsentino, supra,

the supreme court determined that a criminal defendant's right to speedy trial under the federal and state constitutions extends though the sentencing phase of a prosecution. There, the defendant had suffered an eight-year delay between entry of his guilty plea and imposition of sentence.

In determining whether the defendant's constitutional right to a speedy trial had been violated, the Moody court balanced four factors: length of the delay, reasons for the delay, assertion of the right, and prejudice to the defendant.

We have previously noted that there was no apparent reason for the lengthy delay here, particularly in light of the numerous requests defendant made for court action. However, the absence of any showing that the delay was intentionally caused by the prosecution or that defendant was prejudiced thereby leads us to conclude that there was no violation of defendant's speedy trial right.

See Moody v. Corsentino, supra

(lack of evidence that prosecution contributed to delay in imposition of sentence relevant to determination of speedy trial violation); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (right to speedy trial protects interests in: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired).

Defendant was not, at the time of the delay, suffering pretrial incarceration nor was he in danger of impairment of his defense at trial. And, because defendant could expect to serve a minimum of 32 years upon resentencing, his anxiety level could not have been exacerbated by the delay.

The trial court acted within the limited order of remand and the applicable sentencing guidelines by resentencing defendant to a term that was approximately one-half of his original sentence and which gave him credit for all time previously served. Defendant's right to appeal the sentence imposed upon remand remained intact, as do his opportunities to seek postconviction relief.

We do not address defendant's argument, raised for the first time in his reply brief, that he has been prejudiced by later changes in federal law. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990)

.

III.

In the alternative, defendant contends that he was deprived of his right to be present at sentencing and is, thus, entitled to resentencing. We agree that the trial court deprived defendant of the right granted to him. We are convinced beyond a reasonable doubt, however, that, under the circumstances here, the trial court's action in making its resentencing decision that subject of a written order, rather than reconvening a hearing to announce that decision, was harmless.

Sentencing is a critical stage of a criminal proceeding. However, the constitutional right of a criminal defendant to be present at all critical stages of the prosecution is not absolute. Due process does not require the defendant's presence when his presence would be useless, or the benefit nebulous. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972).

Subject to certain exceptions not applicable here, Crim. P. 43 mandates defendant's presence at the imposition of sentence. Further, we agree with defendant that adherence to this rule...