People v. Penrod

• Decision Date: 11 August 1994
• Docket Number: No. 91CA2084,91CA2084
• Citation: 892 P.2d 383
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald PENROD, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 383

892 P.2d 383

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald PENROD, Defendant-Appellant.

No. 91CA2084.

Colorado Court of Appeals Div. V.

Aug. 11, 1994.

Rehearing Denied Sept. 15, 1994.

Certiorari Denied March 20, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Cherner and Blackman, Barbara S. Blackman, Denver, for defendant-appellant.

Opinion by Judge RULAND.

Defendant, Donald Penrod, appeals the judgment entered upon jury verdicts finding him guilty of violating a bail bond condition and of being an habitual criminal. He also appeals the life sentence imposed by the trial court. We affirm the judgment, vacate the sentence, and remand for further consideration of issues relative to the sentence imposed.

While on bail for felony charges, defendant failed to appear for a hearing. The prosecution dismissed the felony charges and charged defendant with violating a bail bond condition--a class 6 felony.

Defendant was also charged with being an habitual offender based upon five prior convictions. The first count alleged a 1980 conviction for second degree burglary and theft of over $300. Another count alleged a 1980 conviction for robbery. A third count pertained to a 1980 conviction for aggravated motor vehicle theft. The fourth referred to a 1980 conviction for first degree assault, attempt to commit aggravated robbery, and attempt to commit second degree murder. The final count alleged a 1977 conviction for first degree criminal trespass.

I

Over defendant's objection, the prosecution was permitted in the first phase of the bifurcated proceeding to introduce evidence that defendant was released on bail after having been charged with three felony offenses consisting of illegal possession of a weapon, possession of burglary tools, and attempted aggravated robbery. Defendant contends that the trial court abused its discretion in admitting this evidence, asserting that the evidence was unfairly prejudicial in violation of CRE 403. We disagree.

As pertinent here, a defendant commits a bail bond violation if he is:

accused by complaint, information, [or] indictment ... of any felony arising from the conduct for which he was arrested ... [and] knowingly fails to appear for trial or other proceedings in the case in which the bail bond was filed....

Section 18-8-212(1), C.R.S. (1993 Cum.Supp.).

The prosecution must, of course, prove all of the elements of the charged offense. As pertinent here, evidence that is relevant to any element may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. See People v. Lowe, 660 P.2d 1261 (Colo.1983); see also Merritt v. People, 842 P.2d 162 (Colo.1992). We may not overturn the trial court's decision on the issue of unfair prejudice unless the record demonstrates an abuse of discretion. People v. Lowe, supra.

Here, the evidence was relevant to establish that defendant was charged with committing felony offenses at the time he failed to appear. The evidence was also relevant to establish his motive for failing to appear. Further, the trial court excised the irrelevant and most prejudicial information prior to admitting the evidence consisting of defendant's status as a previous offender. Hence, we conclude that defendant has failed to establish an abuse of discretion.

II

Defendant next contends that the trial court committed reversible error in admitting certain documents during the habitual criminal phase of the trial. Again, we disagree.

The evidence that defendant challenges as extraneous and prejudicial includes fingerprint cards that noted parole violations, aliases, FBI case numbers, tattoos, and parole dates. He also challenges the admission of copies of court registers of action that noted revocation of probation proceedings, plea bargaining, a transfer from one county jail to another, and a sentence imposed in the first county that was consecutive to one in the second.

The reason for excluding evidence of prior criminality and bad character in a criminal proceeding is that the jury may believe the accused deserves punishment for the present charge because of his bad character rather than any specific finding of guilt. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980). However, if a defendant does not suffer prejudice as a result of the admitted evidence, its admission is not reversible error. People v. Montoya, 640 P.2d 234 (Colo.App.1981).

Here, the evidence was admitted in the bifurcated proceedings related to defendant's status as an habitual criminal rather than in the trial of the predicate offense. The jury was properly instructed as to the particulars of the habitual criminal charges and as to the prosecution's burden of proof concerning those charges. And, while the challenged evidence was not favorable to defendant, because the various other documents were properly admitted to show his prior and numerous felony convictions, we are unable to conclude that the trial court committed reversible error in admitting the challenged evidence. See Crim.P. 52(a).

III

Defendant next contends that the trial court erred in concluding that he was precluded by § 16-5-402, C.R.S. (1986 Repl.Vol. 8A) from attacking any of the prior felony convictions because he failed to show excusable neglect or justifiable excuse. He asserts that excusable neglect or justifiable excuse has been shown because he had no present need to challenge the convictions before the habitual criminal charge was filed and because his previous attorneys failed to advise him that he needed to attack those convictions. We reject those contentions.

In People v. Wiedemer, 852 P.2d 424 (Colo.1993), our supreme court expressly approved People v. Stephens, 837 P.2d 231 (Colo.App.1992). The Stephens court held that enactment of § 16-5-402 and the establishment of a five-year grace period by our supreme court in People v. Fagerholm, 768 P.2d 689 (Colo.1989) for any collateral attack on convictions entered prior to July 1, 1984, created a present need to challenge those convictions by July 1, 1989. Therefore, a defendant who fails to assert such challenges during the appropriate three-year period, as modified for pre-1984 convictions by Fagerholm, must show excusable neglect or justifiable excuse.

Further, a division of this court has rejected the theory that a defendant's prior counsel has an affirmative duty to challenge prior convictions before applicable time limitations expire and that a failure to do so constitutes excusable neglect or justifiable excuse. People v. Boehmer, 872 P.2d 1320 (Colo.App.1993). Finally, our supreme court has rejected the contention that no present need exists to attack the prior felony convictions until the habitual criminal charges are filed. People v. Mershon, 874 P.2d 1025 (Colo.1994).

Accordingly, under these circumstances, we conclude that the trial court did not err in ruling that § 16-5-402 precluded defendant from collaterally attacking his prior convictions in these proceedings.

IV

Lastly, defendant contends that his adjudication as an habitual criminal and the ensuing sentence to life imprisonment for committing a class 6 felony constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments as well as Colo. Const. art. II, § 20. Under the unique circumstances of this case, we conclude that a remand to the trial court is required for reconsideration of this issue.

Prior to sentencing, defendant's request for an extended proportionality review was granted. An investigator for defendant evaluated the 1990-1991 case filings in Boulder, Weld, Larimer, Denver, Adams, and Arapahoe counties. This review disclosed that a violation of bail bond conditions had only been charged nine times, that the longest sentence imposed was a three-year term of incarceration, and that none of the filings included habitual criminal proceedings.

In addition, defendant presented information on criminal statutes in other states which revealed that an habitual criminal sentence enhancement predicated on a bail bond violation can occur only in 29 states. According to defendant's research, a bail bond...