People v. Olivas, 94CA0484
| Decision Date | 24 August 1995 |
| Docket Number | No. 94CA0484,94CA0484 |
| Citation | 911 P.2d 675 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Abel Tom OLIVAS, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Janet F. Youtz, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge PLANK.
Defendant, Abel Tom Olivas, appeals from the denial of his motion for reduction of sentence pursuant to Crim.P. 35(b). We affirm.
Defendant entered guilty pleas to one count of second degree murder, one count of first degree assault, and one count of menacing. He was sentenced to a total of 40 years in the Department of Corrections. Defendant's 24-year sentence for the second degree murder conviction and the 16-year sentence for the first degree assault conviction were ordered to run consecutively pursuant to § 16-11-309, C.R.S. (1986 Repl. Vol. 8A), while the four year sentence for menacing was ordered to run concurrently with the other sentences.
Defendant subsequently filed a timely Crim.P. 35(b) motion for reduction of sentence. In that motion he listed several programs he had completed as an inmate, including an alcohol recovery program, an anger management program, and a G.E.D. program. Defendant also argued in his motion that the presentence report prepared before sentencing contained erroneous information about a prior felony and failed to note that the felony had been dismissed.
Finally, defendant reminded the court that he had only one prior felony conviction from sixteen years earlier and that his prior employment history had been stable, noted that he was remorseful and had returned to Catholicism while in prison, and stated that he had not been a disciplinary problem while incarcerated. Defendant requested that a hearing be held in order for the court to consider more fully his request for modification of sentence.
Defendant's motion was denied without a hearing. The judge who ruled on the motion was not the same judge who had imposed the sentence in this case. Nonetheless, noting that he had reviewed the motion and the court files, including the presentence report, the judge concluded that defendant had failed to present any extraordinary circumstances justifying a reduction in his sentence.
Defendant contends the court erred in denying the motion in a summary manner and without conducting a hearing to consider his claims. He argues that this case presents special and unique circumstances and that the record does not indicate that the judge who ruled on the Crim.P. 35(b) motion considered all relevant and material facts and conducted a meaningful review of the sentence. We disagree.
The People initially assert that the issues raised by the defendant are not properly before us for review because the defendant failed to provide us with a sufficient record of the proceedings below. Specifically, the People maintain that because the record does not contain the Crim.P. 35(b) motion filed in the trial court and the attachments to that motion, the propriety of the denial of that motion cannot be reviewed. We reject this contention.
The Designation of Record filed in this case includes all motions filed in the trial court. It appears that defendant's Crim.P. 35(b) motion was inadvertently not included with the remainder of the record transmitted to this court. It further appears that although a second request for transmittal of the motion was made in the trial court following a motion in this court to supplement the record, the original Crim.P. 35(b) motion still has not been sent to this court. Because the omission of the motion from the appellate record is not the fault of the defendant, and because a copy of the motion is attached to the opening brief for our review, we conclude that the issue raised on appeal may appropriately be reviewed.
Nor are we persuaded by the People's second contention that the appeal must be dismissed because it concerns the propriety of the sentence imposed in this case. There is a difference between a challenge to the propriety of a sentencing proceeding and a challenge to the intrinsic fairness of the sentence imposed. There is no right to appeal the trial court's denial of a motion for reduction of sentence pursuant to Crim.P. 35(b) when the only issue presented to and resolved by the court is the propriety of the sentence itself. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980).
Here, the majority of the contentions raised in the appeal cover issues involving the propriety of the sentencing proceeding and the propriety of the Crim.P. 35(b) ruling. Hence, we conclude that the issues raised in the appeal concerning the propriety of the sentencing proceeding are properly before us for review. To the extent that any of the issues pertain to the propriety of the initial 40-year sentence, we decline to address them.
The purpose of Crim.P. 35(b) is to allow the trial court one opportunity to reconsider the sentence previously imposed. People v. Fuqua, 764 P.2d 56 (Colo.1988). In ruling on a motion for reduction of sentence the trial court has a duty to exercise its judicial discretion. This requires the court to consider all relevant and material facts, including both new evidence and evidence known at the time the sentence was imposed. However, only if the trial court has refused to consider any information in mitigation and fails to make findings in support of its decision is there a failure by the court to exercise its judicial discretion. People v. Busch, 835 P.2d 582 (Colo.App.1992).
Crim.P. 35(b) does not contain a specific provision requiring the trial court to make findings of fact when ruling on a motion for reduction of sentence. However, the supreme court has determined that the trial court should provide a statement of the basic reasons in support of its ruling. People v. Bridges, 662 P.2d 161 (Colo.1983).
Here, the trial court noted the matters it considered prior to the denial of the defendant's motion. We conclude that the trial court's statement for denial was adequately detailed. In addition, a hearing is not required in connection with a motion for reduction of sentence pursuant to Crim.P 35(b). People v. Carey, 701 P.2d 89 (Colo.App.1984).
Defendant first argues that the court could not properly consider the motion because it had no previous familiarity with the case and because the judge who initially imposed the sentence failed to make findings regarding the disputed facts in the...
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People v. Misenhelter, No. 02CA2090.
...between a review of the propriety of the sentence itself and a review of the propriety of the sentencing proceeding. People v. Olivas, 911 P.2d 675 (Colo.App.1995). Given these prior decisions and the presumption that, in later enacting the proviso, the General Assembly acted with knowledge......
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People v. Brosh
...is to permit a court to reconsider a previously imposed sentence. See People v. Fuqua, 764 P.2d 56, 60 (Colo.1988); People v. Olivas, 911 P.2d 675, 677 (Colo.App.1995). ¶ 9 All sex offenders in Colorado are required to register pursuant to the Colorado Sex Offender Registration Act. §§ 16–2......
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People v. Roy
...in failing to make specific findings, detailing its reasons for varying from the presumptive range, is without merit. See People v. Olivas, 911 P.2d 675 (Colo.App.1995). The trial court did not abuse its discretion in sentencing The judgment and sentence are affirmed. METZGER and MARQUEZ, J......
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People v. Bloom, 09CA0515.
...is to the district court's “failure to apply the correct criteria in selecting the sentence.” Defendant's reliance on People v. Olivas, 911 P.2d 675 (Colo.App.1995), to support his argument is misplaced. There, the division considered whether it could review the trial court's determination ......