People v. Rockwell
| Decision Date | 15 November 2005 |
| Docket Number | No. 04SC584.,04SC584. |
| Citation | 125 P.3d 410 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Mark E. ROCKWELL, Respondent. |
| Court | Colorado Supreme Court |
John W. Suthers, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, for Petitioner.
E. Scott Baroway, Englewood, for Respondent.
In this opinion, we address Mark Rockwell's claim that his sentence was illegal because it included mandatory parole. Ultimately, we reject Rockwell's argument that he could not be sentenced to mandatory parole because the "factual basis" for his conviction met the statutory requirement of section 17-2-201(5)(a), C.R.S. (2005), in that it "involved an offense involving unlawful sexual behavior."
Rockwell pled guilty to second-degree burglary with the intent to harass stemming from an incident that occurred in 1993. The trial court accepted Rockwell's guilty plea in 1994 and deferred his judgment of conviction and sentence. After Rockwell failed to comply with the required terms and conditions, the trial court revoked Rockwell's deferred judgment and sentence in 1996. Rockwell then failed to comply with the conditions of his probation and the trial court sentenced him to six years in the Department of Corrections and three years of mandatory parole in 2000.
In response, Rockwell brought a Motion to Correct an Illegal Sentence under Criminal Procedure Rule 35(a) alleging he was illegally sentenced to mandatory parole and instead is subject to the discretionary parole provision of section 17-2-201(5)(a). The legislature established two separate parole systems for individuals convicted of felonies occurring between 1993 and 1996. Martin v. People, 27 P.3d 846, 863 (Colo.2001). Most felonious offenders receive a sentence to incarceration and a period of mandatory parole. § 18-1-105, C.R.S. (1999). However, individuals convicted of (1) a sexual offense or (2) a crime with a "factual basis" of unlawful sexual behavior receive a sentence to a period of incarceration during which the parole board may grant discretionary parole. § 17-2-201(5)(a); People v. Norton, 63 P.3d 339, 347 (Colo.2003). Second-degree burglary with the intent to harass is not a sexual offense. Rockwell claims that the factual basis for his plea to second-degree burglary with the intent to harass "involved an offense involving unlawful sexual behavior" and, therefore, the trial court unlawfully sentenced him to mandatory parole. The trial court summarily denied Rockwell's motion.
The court of appeals reversed the judgment of the trial court and remanded for further factual findings. People v. Rockwell, 104 P.3d 900, 903 (Colo.App.2003) (). The court of appeals directed the trial court to determine whether an unlawful sexual behavior factual basis for Rockwell's conviction existed based on statements made by the defendant, statements by the prosecutor, and the presentence report. Id. The trial court was directed to vacate Rockwell's mandatory parole sentence if a factual basis for unlawful sexual behavior could be found from those sources. Id. The People petitioned for certiorari to review the court of appeals' holding.
We reverse the court of appeals and remand with directions to affirm the order of the trial court denying Rockwell's motion.
On September 9, 1993, Rockwell broke into the victim's home. While the victim slept, Rockwell entered her basement bedroom. Rockwell gave two versions of what occurred in the victim's bedroom. Rockwell originally alleged he merely pushed the victim's shoulder to wake her up. After his conviction, he admitted to lying down beside her and touching her vaginal area. In both versions, Rockwell said he exited the house when the victim woke up. Rockwell was charged with second-degree burglary and third-degree sexual assault. The burglary charge specified that Rockwell entered the home with the intent to commit a third-degree sexual assault.
In April of 1994, Rockwell pled guilty to second-degree burglary with the intent to harass. Pursuant to the plea agreement, the trial court dismissed the third-degree sexual assault charge. The burglary charge was amended to remove any allegation that Rockwell had entered the victim's home to commit a third-degree sexual assault and instead stated that he had entered with the intent to commit harassment.
The elements in the amended information lacked any mention of illegal sexual contact. Instead, the elements related exclusively to the second-degree burglary with the intent to harass charge. During the providency hearing, the prosecution read the amended information to Rockwell with an explanation of the elements:
On or about September the 9th of 1993; that this happened here in Douglas County in the state of Colorado; that you Mark Edward Rockwell were the person that committed the act; and that you did unlawfully, feloniously, and knowingly break an entrance into and enter and remain unlawfully in the dwelling of [the victim] and that you did when you broke an entrance into and entered and remained unlawfully in the dwelling you had the intent to commit therein the crime of harassment ... it was your intent to harass and annoy or alarm another person by striking, shoving, kicking, or otherwise touching.
Rockwell pled guilty to this statement of the elements of second-degree burglary with the intent to harass.
At no time during the providency hearing did Rockwell admit to any type of unlawful sexual conduct, nor did the trial court ask either the prosecution or Rockwell to address the underlying factual basis for the burglary charge. Although the trial court stated in a written order that a "factual basis exist[ed] for the entry of the plea," the court did not specifically find particular facts to support that conclusion.
The trial court accepted Rockwell's guilty plea to second-degree burglary with the intent to harass and deferred his judgment and sentence for a two-year period. The deferred judgment was contingent on Rockwell's compliance with specific terms and conditions agreed to by the parties in the plea agreement. The trial court imposed conditions requiring that Rockwell pay court costs1; abstain from drugs and excessive alcohol consumption; and avoid contact with the victim. Of greater interest to the issue at hand, the trial court also ordered Rockwell to obtain "offense specific treatment" as required by the Probation Department. Subsequently, the Probation Department recommended that Rockwell participate in a sex offender treatment program.
In 1996, the trial court revoked Rockwell's deferred judgment and entered a conviction against him for failure to complete "offense specific treatment" as ordered by the Probation Department. The court imposed a four-year period of probation with conditions essentially identical to the terms of his deferred judgment. Thereafter, Rockwell repeatedly violated the conditions of his probation by failing to complete treatment. In April of 2000, the trial court revoked his probation and resentenced him to a period of six years in the Department of Corrections. The trial court also imposed three years of mandatory parole.
On July 12, 2002, Rockwell filed a Motion to Correct an Illegal Sentence under Colorado Rule of Criminal Procedure 35(a). He alleged that because his crime involved an underlying factual basis of unlawful sexual behavior, he was entitled to a period of imprisonment that included the possibility of discretionary parole instead of a period of imprisonment plus three years of mandatory parole. The trial court summarily denied Rockwell's motion because "[t]he defendant did not plead guilty to a sexual offense; likewise, his sentence was for the second-degree burglary charge, as amended."
The court of appeals observed that some "evidence" in the presentence report supported a factual basis for an offense involving unlawful sexual behavior, but vacated the trial court's order and remanded the case for more factual findings. Rockwell, 104 P.3d at 903. The court of appeals directed the trial court to determine whether a factual basis for unlawful sexual behavior existed in Rockwell's case after reviewing the record as a whole. Id. Specifically, the court of appeals directed the trial court to review statements made by the defendant, statements made by the prosecution, and findings in the presentence report. Id. If such a factual basis existed, the trial court was instructed to sentence Rockwell to a period of incarceration from which the parole board would have the sole authority to grant or withhold discretionary parole pursuant to section 17-2-201(5)(a). Id.; see Norton, 63 P.3d at 347.
We granted certiorari and now reverse the judgment of the court of appeals and remand for proceedings consistent with this opinion.2
As a preliminary matter, we consider the People's argument that Rockwell makes a Crim.P. 35(c) motion challenging the underlying factual basis for his guilty plea, which would be time barred. The People claim that Rockwell's motion challenges the validity of his guilty plea due to a lack of a supporting factual basis for the charge. Rockwell instead characterizes his motion as a Crim.P. 35(a) motion for relief from an illegal sentence. Rockwell alleges his mandatory parole sentence was illegal because he was convicted of a crime with an underlying factual basis of unlawful sexual behavior. As such, he should have been sentenced to discretionary parole pursuant to section 17-2-201(5)(a), C.R.S. (2005).3 We hold that Rockwell's claim is properly brought under Crim.P. 35(a).
A defendant may challenge the imposition of an illegal sentence under Crim.P. 35(a). Sentences that are inconsistent with the statutory scheme outlined by the legislature are illegal. People v. Dist....
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