People v. Watkins

• Decision Date: 23 June 1980
• Docket Number: No. 79SA496,79SA496
• Citation: 613 P.2d 633,200 Colo. 163
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Donald WATKINS, a/k/a Samuel James Patner, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 633

613 P.2d 633

200 Colo. 163

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Donald WATKINS, a/k/a Samuel James Patner Defendant-Appellant.

No. 79SA496.

Supreme Court of Colorado, En Banc.

June 23, 1980.

Rehearing Denied July 7, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

The appellant, Richard Donald Watkins, pled guilty to two felonies and a misdemeanor and received concurrent sentences to the Colorado State Penitentiary of six to ten years, two to five years, and six months respectively. He appeals the sentences as excessive, and also claims entitlement to re-sentencing under the 1977 version of the presumptive sentencing provisions of House Bill 1589. ¹ We affirm the sentence and set forth certain procedures to be followed in felony sentencings subsequent to the date of this decision.

Initially, the defendant was charged under the name of Samuel James Patner in a three-count information with second-degree burglary, ² third-degree burglary ³ and misdemeanor theft. ⁴ He applied for a deferred judgment and sentence. ⁵ The probation department investigated the defendant's application and determined that his true name was Richard Donald Watkins, and that he was an escapee from the Georgia State Penitentiary with a long criminal record. The trial court denied the defendant's application for a deferred judgment and sentence, and permitted the district attorney to file additional counts under the habitual criminal statute, ⁶ based on Georgia convictions for burglary in 1975 and for possession of heroin in 1977. Plea negotiations ensued and the defendant pled guilty to the counts of second-degree burglary of a building, a class four felony, ⁷ third-degree burglary, a class five felony, ⁸ and theft of property under $50 in value, a class three misdemeanor. ⁹ Prior to the sentencing hearing, a pre-sentence investigation was conducted by the probation department and a pre-sentence report was filed with the sentencing judge. After hearing testimony from the defendant and another witness at the sentencing hearing, the judge sentenced the defendant concurrently to the Colorado State Penitentiary for terms of six to ten years for second-degree burglary, two to five years for third-degree burglary, and six months for misdemeanor theft, and credited against the sentence 189 days spent in pre-sentence confinement. ¹⁰ The sentencing judge did not explain the reasons for his sentence, but merely stated that he was sentencing the defendant because of "the offense here in Colorado in view of your background."

The defendant contests the propriety of the sentence, i. e., the intrinsic fairness or appropriateness of the sentence. See People v. Malacara, Colo., 606 P.2d 1300 (1980); section 18-1-409(1), C.R.S. 1973 (1978 Repl. Vol. 8); C.A.R. 4(c) (amended November 13, 1979). The defendant's claim of excessiveness centers on his willingness to lead a productive life and to rehabilitate himself by ending his long dependence on drugs. Before considering the issue of excessiveness, we find it necessary to address a recurrent problem in cases involving appellate review of sentences.

I. THE REQUIREMENT OF A SENTENCING EXPLANATION

Sentencing by its very nature is a discretionary decision which requires the weighing of various factors and striking a fair accommodation between the defendant's need for rehabilitation or corrective treatment and society's interest in safety and deterrence. E. g., Triggs v. People, 197 Colo. 229, 591 P.2d 1024 (1979); People v. Strong, 190 Colo. 189, 544 P.2d 966 (1976); People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975); People v. Campbell, 188 Colo. 79, 532 P.2d 945 (1975); People v. Euresti, 187 Colo. 266, 529 P.2d 1319 (1975). However, the discretion implicit in the sentencing decision is not an unrestricted discretion devoid of reason or principle. On the contrary, the sentencing decision should reflect a rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process. The United States Supreme Court in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), alluded to the prevailing principle of modern penology that "the punishment should fit the offender and not merely the crime." 337 U.S. at 247, 69 S.Ct. at 1083, 93 L.Ed. at 1342. Modern penology, to a great extent, has rejected the notion that "every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender." Id.

The Colorado Criminal Code, section 18-1-102.5(1), C.R.S. 1973 (1979 Supp.) acknowledges the manifold purposes of sentencing:

"(a) To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense;

"(b) To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences;

"(c) To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses; and

"(d) To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders."

In recognition of the troublesome problems of sentencing disparity and the need for rationality and fairness in the sentencing process, section 18-1-409, C.R.S. 1973 (1978 Repl. Vol. 8 & 1979 Supp.), grants a defendant convicted of a felony the right to one appellate review of the propriety of the sentence, "having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based." ¹¹

The failure of a sentencing judge to state on the record the basic reasons for the selection of a particular sentence creates a burdensome obstacle to effective and meaningful appellate review of sentences. ¹² E. g., United States v. Brown, 479 F.2d 1170 (2d Cir. 1973); McGee v. United States, 462 F.2d 243 (2d Cir. 1972); ABA Standards Relating to Appellate Review of Sentences § 2.3, Commentary at 45 (1968); Labbe, Appellate Review of Sentences: Penology on the Judicial Doorstep, 68 J.Crim.Law Criminology 122 (1977); Kutlak and Gottschalk, In Search of a Rational Sentence: A Return to the Concept of Appellate Review, 53 Neb.L.Rev. 463 (1974); Coburn, Disparity in Sentences and Appellate Review of Sentencing, 25 Rutgers L.Rev. 207 (1971); Doub, Recent Trends in the Criminal Law, 46 ABA Journal 139 (1960). If appellate review of felony sentences is to satisfy its stated objectives, it requires that the sentencing judge state on the record the basic reasons for imposing the sentence. ABA Standards Relating to Appellate Review of Sentences § 2.3, Commentary at 47 (1968). This requirement is particularly essential in those cases where the sentence involves a very restrictive form of deprivation, such as a term of confinement to a correctional facility. ¹³

The requirement of a sentencing explanation for felony sentences serves as an invaluable aid to the appellate court, ABA Standards Relating to Appellate Review of Sentences § 2.3, Commentary at 47 (1968), and produces other benefits of comparable significance to the criminal justice system. Such explanation will serve as " 'a powerful safeguard against rash and arbitrary decisions' at this crucial stage of the criminal process when the defendant's liberty is at stake." United States v. Brown, supra at 1172. It will foster consistency and fairness by minimizing the risk that the sentencing judge might have acted on inaccurate or unreliable information. Id. It will assist the defendant in making an informed decision on whether to seek an appellate review of his sentence, and thereby afford him an opportunity to assert grievances he may have regarding his sentence. ABA Standards Relating to Appellate Review of Sentences § 1.2(ii). Additionally, a sentencing explanation in many cases can have therapeutic value for the defendant. See Robinson, The Defendant Needs to Know, Fed. Probation, December 1962 at 3; ABA Standards Relating to Appellate Review of Sentences § 2.3, Commentary at 46 (1968). And also, it may prove beneficial to correctional authorities in determining the place and type of institutional confinement suited to the defendant's correctional needs. United States v. Brown, supra at 1173; ABA Standards Relating to Appellate Review of Sentences § 2.3, Commentary at 46 (1968).

Therefore, we require that hereafter in felony convictions involving the imposition of a sentence to a correctional facility the sentencing judge state on the record the basic reasons for the imposition of sentence. The statement of reasons need not be lengthy, but should include the primary factual considerations bearing on the judge's sentencing decision. ¹⁴

II. THE ISSUE OF EXCESSIVENESS

In this case, the trial judge did not state the reasons for his sentencing decision. Therefore, we must search the record and determine whether that record establishes a clear justification for the imposition of concurrent sentences with a maximum of six to ten years. E. g., People v. Strong, supra ; People v. Duran, supra.

The charges in this case arose out of a burglary by the defendant and two others of a business establishment in Greeley, Colorado in the early morning hours of January 18, 1978. Prior to the burglary the defendant and his two companions had been drinking in a nearby tavern. The defendant...