People v. Strong

• Decision Date: 19 January 1976
• Docket Number: 25992,Nos. 26035,s. 26035
• Citation: 190 Colo. 189,544 P.2d 966
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald STRONG, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 966

544 P.2d 966

190 Colo. 189

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

Nos. 26035, 25992.

Supreme Court of Colorado, En Banc.

Jan. 19, 1976.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

LEE, Justice.

Appellant, Donald Strong, pleaded guilty to the crime of burglary in the first degree, in violation of 1965 Perm.Supp., C.R.S.1963, 40--3--5, ¹ and was sentenced to the state penitentiary to a term of eighteen to twenty years. Pursuant to section 18--1--409, C.R.S.1973, he now appeals his sentence. We have concluded that the sentence is excessive and should be reduced. Accordingly, we reverse and remand to the district court for the imposition of a new sentence.

I.

The burglary occurred on January 15, 1972. A Denver resident reported that her home had been broken into and a television set and other household items stolen. Police investigation led to the arrest of appellant. Appellant's plea of guilty in this case resulted in the dismissal of two other burglary charges then pending against him and dismissal of a further charge of attempted burglary. In these other burglaries he was alleged to have stolen a stereo set, a .25-caliber automatic weapon, two diamond rings, some tools, and some automobile accessories.

Following his guilty plea, the trial judge repeatedly delayed sentencing while appellant was put on probation and placed in a drug program and, later, in a Denver County jail work release program. Though apparently maintaining a cooperative attitude, appellant failed to abide by the rules of the work release program. The court's patience was eventually exhausted and a sentencing hearing held, at which the challenged sentence was imposed, no credit being given for the time appellant had already spent in jail.

II.

The process of appellate review of the propriety of a sentence was examined in much detail by this court in People v. Duran, Colo., 533 P.2d 1116, wherein the criteria set forth in section 18--1--409, C.R.S.1973, and in the ABA Standards Relating to Appellate Review of Sentences, were discussed and considered. The legislative act not only permits but also directs us to mandate the correction of a sentence excessive in length, having due regard for the protection of the public interest, the nature of the offense, and the character of the offender as it relates to the probability of his rehabilitation.

In Duran, supra, we acknowledged that sentencing is a difficult process and, as numerous studies have indicated, at best an imperfect one, involving the exercise cise of the sound discretion of the sentencing judge. ² In deciding what sentence is most appropriate, the trial judge must attempt to work out a fair accommodation between the need to protect society at large and to deter potential offenders, to punish the convicted offender, and to rehabilitate him. Of necessity, therefore, the trial judge has wide latitude in imposing sentence, Rochon v. People, 134 Colo. 448, 306 P.2d 1080, and a sentence will not be modified unless there has been a clear abuse of discretion. People v. Duran, supra; People v. Campbell, Colo., 532 P.2d 945; People v. Euresti, Colo., 529 P.2d 1319; People v. Carter, 186 Colo. 391, 527 P.2d 875.

A long sentence may sometimes by justified on the basis of the depravity of the crime for which the defendant has been convicted. Thus, in People v. Euresti, supra, we upheld the fifteen- to forty-year sentence of a defendant who had no prior criminal convictions, where he had brutally raped and assaulted his victim. A long or even maximum sentence may also be justified where the defendant's past record reveals repeated convictions and where the public safety can only be assured if the offender is confined, See, e.g., People v. Campbell, supra; People v. Pauldino, Colo., 528 P.2d 384. And, of course, where a vicious or serious crime is committed by a hardened criminal, the need for a maximum or near-maximum sentence may be clearer still. Such was the case in Duran, supra, involving a criminal whose propensities had been amply demonstrated since age ten and whose conviction arose out of an armed robbery. See also People v. Alvarez, Colo., 530 P.2d 506.

Any imposition of the maximum or close to the maximum penalty must be supported by sound reasons in the record for, as pointed out in Duran, supra, '(a) sentence that is too long * * * tends to reenforce the criminal tendencies of the convicted defendant.'

The statute of which appellant was convicted provides for...