People v. Smith, 95CA1601

• Docket Nº: No. 95CA1601
• Citation: 946 P.2d 570
• Case Date: April 03, 1997
• Court: Court of Appeals of Colorado

Page 570

946 P.2d 570 21 Colorado Journal 472 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kimberly SMITH, Defendant-Appellant. No. 95CA1601. Colorado Court of Appeals, Div. I. April 3, 1997.
Rehearing Denied May 1, 1997.
Certiorari Granted Nov. 17, 1997.

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Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, Kimberly Smith, appeals the denial of her motion for modification of sentence pursuant to Crim. P. 35(b). We reverse and remand.

In 1991, defendant was convicted by jury of child abuse resulting in death, a class two felony. Defendant was sentenced to serve sixteen years in the custody of the Department of Corrections. Defendant appealed her conviction and a division of this court affirmed. People v. Smith, (Colo.App. No. 92CA0138, Dec. 23, 1993) (not selected for official publication).

After remand, defendant filed a motion for sentence reduction pursuant to Crim. P. 35(b). At a hearing on defendant's motion, the sentencing court explained that, if it had the legal authority to do so, it would reduce the original sentence to a four-year term of incarceration and suspend the balance of the mandatory minimum sentence. But, believing that it had no such authority under the relevant sentencing statutes, the court maintained the original sentence.

On appeal, a division of this court affirmed, concluding that the relevant sentencing provision, § 18-1-105(9)(d)(I & II), C.R.S. (1986 Repl.Vol. 8B), mandated a sentence of at least sixteen years (the mid-point in the presumptive range for a class two felony child abuse conviction). The court explained that no portion of the mandatory sentence could be suspended. People v. Smith, 932 P.2d 830 (Colo.App.1996) (Smith II).

While defendant's appeal from the denial of her Crim. P. 35(b) motion was pending in this court, defendant completed the Regimented Inmate Training Program (RITP), § 17-27.7-101, C.R.S. (1996 Cum.Supp.). Pursuant to § 17-27.7-104, C.R.S. (1996 Cum.Supp.), defendant filed a timely motion for sentence modification.

The trial court conducted a hearing on defendant's motion and again expressed the opinion that a sixteen-year prison sentence in the custody of the Department of Corrections was an inappropriately harsh sentence based on defendant's conduct and character. Notwithstanding its inclination to modify defendant's sentence, the trial court ruled that it lacked the statutory power to do so. Defendant appeals from that order.

Defendant was sentenced to sixteen years in the custody of the Department of Corrections pursuant to the following provisions:

(I) If the defendant is convicted of the class 2 or class 3 felony of child abuse under section 18-6-401(7)(a)(I) or (7)(a)(III), the court shall be required to

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sentence defendant to a term greater than the maximum in the presumptive range, but not more than twice the maximum term authorized in the presumptive range for the punishment of that class felony.

(II) In no case shall any defendant sentenced pursuant to subparagraph (I) of this paragraph (d) be eligible for suspension of sentence or for probation or deferred prosecution.

Section 18-1-105(9)(d), C.R.S. (1986 Repl.Vol. 8B).

The statutory provisions governing sentence modification upon successful...