People v. Smith

• Decision Date: 03 April 2008
• Docket Number: No. 05CA2503.,05CA2503.
• Citation: 183 P.3d 726
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald V. SMITH, Defendant-Appellant.
• Court: Colorado Court of Appeals

183 P.3d 726

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald V. SMITH, Defendant-Appellant.

No. 05CA2503.

Colorado Court of Appeals, Div. II.

April 3, 2008.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by Judge ROTHENBERG.

Defendant, Ronald V. Smith, appeals the order revoking his probation and the sixteen-year prison sentence imposed on him. We affirm in part, reverse in part, and remand with directions.

I.

Defendant was charged with several counts of sexually related offenses involving his two stepdaughters. In December 1992, he pled guilty to one count of sexual assault on a child, a class four felony, and received a stipulated sentence of eight years of probation with certain conditions, including two years of jail with work release and offense-specific treatment. In August 1998, the court granted him permission to transfer his probation to Montana.

In June 1999, child pornography was discovered on a laptop computer defendant had been using at work and was also found on his home computer. Defendant was arrested on July 1, and on July 28, his Montana probation officer filed a motion to revoke his probation there.

On August 4, a similar motion to revoke probation was filed in Arapahoe County District Court. The motion filed in Colorado alleged, as relevant here, that defendant had violated the terms of his probation by committing a new offense, by failing to complete sex offender treatment, and by living in a household that included a four-year-old child.

Defendant was arrested, and on August 26, he appeared in Colorado before the district court. He denied the charges and was released on a personal recognizance bond. The court set the probation revocation hearing for December 16, and later continued it until April 20, 2000. However, on April 20, defendant was unable to appear because he was in federal custody on the child pornography charges arising in Montana. The parties agreed to reset the case, and on May 16, at the People's request, the district court issued a bench warrant that placed a hold on defendant.

In December 2001, defendant filed a request under the Interstate Agreement on Detainers (IAD) seeking a prompt disposition of the probation violation complaint filed in Colorado. The People took the position that he was not entitled to such relief, and that his case would be resolved when he completed his federal sentence. Defendant also filed several other documents with the court requesting, among other things, dismissal of the probation revocation complaint and vacation of the bench warrant.

The Arapahoe County District Court took no action until January 2004, when the prosecutor requested a writ requiring defendant to appear in court on February 13, 2004. The record does not disclose whether a hearing was held on that date, but it shows that on April 7, 2005, one day before defendant was scheduled to be released on his federal sentence, he was arrested pursuant to the district court's May 16, 2000 bench warrant.

The court conducted defendant's probation revocation hearing on June 23, 2005, it revoked his probation, and in September 2005, it sentenced him to sixteen years in prison and three years of mandatory parole. This was the maximum aggravated sentence for a class four felony.

Defendant contends that (1) the sixteen-year sentence imposed upon revocation of his probation violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and section 16-11-206, C.R.S.2007, and also constituted an abuse of the court's discretion; (2) his constitutional right to speedy trial was violated; (3) his statutory right to speedy trial was violated; (4) he is entitled to a hearing on the amount of presentence confinement he should receive; and (5) the three-year term of mandatory parole is illegal. The People concede defendant is entitled to discretionary parole, and we agree. Thus, we only address the first four arguments.

II.

Defendant contends that because the original sentencing court did not find extraordinary aggravation, his later aggravated sentence is not one that "might originally have been imposed." According to defendant, the sentence violates section 16-11-206, offends the principles established in Blakely, and also constitutes an abuse of discretion. We disagree.

Section 16-11-206(5), C.R.S.2007, states, as relevant here, that "[i]f probation is revoked, the court may then impose any sentence or grant any probation ... which might originally have been imposed or granted." See Crim. P. 32(f)(5); People v. McDaniels, 844 P.2d 1257, 1258 (Colo.App.1992).

Hence, the trial court may impose a sentence greater than the applicable presumptive range if, based upon the evidence in the record of the sentencing hearing and the presentence report, the court concludes extraordinary aggravating circumstances are present. See § 18-1.3-401(6), C.R.S.2007; People v. Walker, 724 P.2d 666, 670 (Colo. 1986). The trial court must make specific findings detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentencing range. § 18-1.3-401(7), C.R.S.2007; Walker, 724 P.2d at 670.

The presumptive sentencing range for the offense to which defendant pled guilty is two to eight years. § 18-1.3-401(1)(a)(IV), C.R.S.2007. A violation of the terms of probation may constitute an extraordinary aggravating circumstance under section 18-1.3-401(6). Montoya v. People, 864 P.2d 1093, 1096 (Colo.1993). Thus, if the sentencing court can identify events that occur after the time of the original penalty and justify a more severe penalty, on revocation of probation it can impose a sentence that is longer than the original sentence. Id. at 1095.

Defendant maintains that Montoya was wrongly decided by the supreme court, but we are bound by that precedent. See People v. Close, 22 P.3d 933, 936 (Colo.App.2000) (Colorado Supreme Court decisions are binding on the Colorado Court of Appeals), aff'd, 48 P.3d 528 (Colo.2002).

There are four factors on which the trial court may rely to impose a constitutionally valid aggravated sentence: (1) facts the defendant admits; (2) facts found by a jury as reflected in its verdict; (3) facts found by the court after the defendant has stipulated to judicial fact-finding for sentencing purposes; and (4) facts relating to prior convictions. The first three factors are considered "Blakely-compliant." The fourth is "Blakely-exempt." Lopez v. People, 113 P.3d 713, 723 (Colo.2005).

At the September 8, 2005, hearing, the district court observed that defendant had three felony convictions and "that at the time he was on probation in this case for sex assault on a child, he picked up this federal case which also involved children." The court stated "that these prior criminal histories alone justify [the] sentence," and "that treatment has been of questionable benefit to the defendant and as such, he remains a risk to the community."

Thus, the court imposed the sentence based, in part, on defendant's prior convictions, a Blakely-exempt factor. See People v. Huber, 139 P.3d 628, 630 (Colo.2006) (sentencing court did not err in aggravating the defendant's sentence for attempted sexual assault on a child and indecent exposure after revocation of a deferred sentence, based on the Blakely-exempt fact that defendant committed an offense while on sex offender status); see also Lopez, 113 P.3d at 731 ("One Blakely-compliant or Blakely-exempt factor is sufficient to support an aggravated sentence.").

We also reject defendant's contention that the district court abused its discretion in imposing an aggravated sentence. It is true the prosecutor recommended a twelve-year sentence "because of the age of the case, because [defendant] has served some time in the federal prison, and because he's done some period of probation and treatment." But the court was not bound by that recommendation and was justified in finding that a sixteen-year sentence was warranted based on the questionable benefit of treatment and defendant's risk to the community.

III.

Defendant next contends the delay by the court in sentencing him for violating his probation contravened his constitutional right to a speedy trial. We disagree.

Although a defendant has a constitutional right to a speedy trial, Moody v. Corsentino, 843 P.2d 1355, 1363 (Colo.1993), "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see People v. Heimann, ___ P.3d ___, ___, 2007 WL 4198386 (Colo.App. No. 06CA0662, Nov. 29, 2007) (a defendant facing probation revocation is entitled to the minimum requirements of due process, including notice of the alleged probation violations and an opportunity to be heard).

In People v. Newman, 867 P.2d 94, 95 (Colo.App.1993), a probation revocation case, a division of this court rejected the defendant's contention that his constitutional right to speedy trial was violated because there was a two-month delay before a hearing was held on the probation revocation complaint, and that dismissal of the complaint was required on due process grounds:

In assessing whether a defendant's constitutional right to a speedy trial has been violated, we look to the impact of the delay upon the defendant's defense to the charge, the expense caused by the delay, the loss of evidence, or any other significant prejudice the defendant has suffered. We conclude that a similar analysis should be applied in assessing defendant's contention in this case.

Here, much of the delay following the filing of the complaint was...