People v. Wiseman

• Citation: 413 P.3d 233
• Decision Date: 20 April 2017
• Docket Number: Court of Appeals No. 14CA0339
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David William WISEMAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

413 P.3d 233

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.David William WISEMAN, Defendant-Appellant.

Court of Appeals No. 14CA0339

Colorado Court of Appeals, Div. II.

Announced April 20, 2017

As Amended on Denial of Rehearing May 18, 2017

Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE DAILEY

¶ 1 Defendant, David William Wiseman, appeals the district court's order vacating his original sentence and imposing a new sentence. We vacate the new sentence and remand for resentencing.

I. Background

¶ 2 As pertinent here, Wiseman was charged with acts committed between August 31, 1999, and July 31, 2000, constituting sexual assault on a child under the age of fifteen by one in a position of trust. After a trial to a jury held in 2001, he was convicted of two counts of sexual assault on a child under the age of fifteen by one in a position of trust (counts one and three), sexual assault on a child under the age of fifteen by one in a position of trust—pattern of abuse (count seven), and sexual assault on a child under the age of fifteen—pattern of abuse (count eight). Count one concerned a "lotion incident," and count three concerned a "condom incident." Those same two incidents were found by the jury to be the same two predicate acts constituting the patterns of abuse found in connection with counts seven and eight.¹

¶ 3 At the 2002 sentencing hearing, the district court sentenced Wiseman to the custody of the Department of Corrections (DOC) on

• count one, for six years;

• count three, for eight years, consecutive to count one;

• count seven, for fifteen years, concurrent to the sentences imposed on counts one and three; and

• count eight, for fifteen years, consecutive to counts one and three.

¶ 4 The sentence reflected in a minute order and the mittimus initialed by the court, however, differed from that which was orally pronounced, in the following respects:

• for count one, the sentence was eight (not six) years; and

• there was no indication whether the sentences imposed in connection with counts seven and eight would be served concurrently or consecutively to one another or to the other sentences in the case.

¶ 5 A division of this court affirmed Wiseman's convictions on direct appeal. People v. Wiseman , (Colo. App. No. 02CA0496, 2004 WL 692923, Apr. 1, 2004) (not published pursuant to C.A.R. 35(f) ). In 2013, while Wiseman was incarcerated in the DOC, the district court, at the DOC's request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences:

The sentence imposed for count seven should have been ordered consecutive to the sentences imposed for counts one and three (count one was ordered consecutive to count three) and the sentence imposed for count eight should have been ordered consecutive to the sentences imposed for counts, one, three, and seven.

Accordingly, it is ORDERED that an Amended Mittimus be issued consistent with this Order.

¶ 6 The effect of the court's order was to increase Wiseman's sentence to forty-six years imprisonment.

¶ 7 The district court denied Wiseman's motion to reconsider and vacate its order and the corresponding amended mittimus.

II. Analysis

¶ 8 Wiseman contends that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. We agree with both contentions, but, with respect to the first one, for reasons somewhat different from those argued by Wiseman.

A. The Number of Convictions and Sentences

¶ 9 The district court could not impose four consecutive sentences because it could not impose four sentences; it could impose only two.

¶ 10 As we see it, the number of sentences that could be entered in the case turns on whether the pattern of abuse counts (seven and eight)

• were simply sentence enhancers, People v. Simon , 266 P.3d 1099, 1107-08 (Colo. 2011) (holding that the pattern of abuse statutory provisions, sections 18-3-405(2)(d) and 18-3-405.3(2)(b), C.R.S. 2016,² "do not establish separate, overall course of conduct ‘pattern’ offenses," but "authorize greater punishment" (or sentence enhancement) "for each incident of sexual assault on a child, or sexual assault on a child by one in a position of trust, where ‘[t]he actor commits the offense as a part of a pattern of sexual abuse.’ ") (alteration in original) (citations omitted); or

• were meant to encompass additional substantive offenses as well, see, e.g. , People v. Melillo , 25 P.3d 769, 777 (Colo. 2001).

¶ 11 If the former was the case, then only the two convictions for counts one and three, with enhanced sentences for each, could be entered; if the latter was the case, then four convictions and sentences could be entered. See People v. Torrez , 2013 COA 37, ¶ 23, 316 P.3d 25 ("Trial courts may not enter a separate conviction or sentence on a count that is only a sentence enhancer. ... But ‘a single count may charge both a crime and a sentence enhancer.’ " (quoting Melillo , 25 P.3d at 777 )).

¶ 12 Although counts seven and eight were charged in language similar to that in Melillo , nothing in the charging document indicates that those counts were intended to include one or more substantive offenses in addition to those charged in counts one and three. Further, the special interrogatory given in connection with the pattern of abuse verdict forms identified only the lotion and condom incidents as the predicate acts establishing the patterns.

¶ 13 Notably, identical acts supported the verdicts for each pattern of abuse count. There was, then, but one pattern of abuse, and the court should have applied only the applicable one (i.e., sexual assault on a child by one in a position of trust—pattern of abuse). That enhancer, in turn, could apply, under the law in effect at the time, only to the sentence for the latter of the two offenses (i.e., the condom incident, count three), elevating it from a class 4 felony to class 3 felony. See § 18-3-405.3(2)(b), C.R.S. 1999 ("[T]he acts constituting the pattern of sexual abuse must have been committed within ten years prior to the offense charged in the information or indictment." (emphasis added)); see also People v. Brown , 70 P.3d 489, 492-93 (Colo. App. 2002) (Where the jury found the defendant guilty of only two incidents, the sentence enhancer could only be applied to the second incident.).³

¶ 14 Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred.

B. Consecutive Sentencing

¶ 15 The district court also erred in concluding that it was statutorily required to impose consecutive sentences.

¶ 16 Generally, a trial court has discretion to impose either consecutive or concurrent sentences, except when the offenses charged are supported by "identical evidence," in which case concurrent sentencing is required under section 18-1-408(3), C.R.S. 2016. Juhl v. People , 172 P.3d 896, 899 (Colo. 2007).

¶ 17 In some instances, however, consecutive sentencing is required by statute. See § 16-11-309(1)(a), C.R.S. 1999 (providing, as pertinent here, that "[a] person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently") (emphasis added);⁴ § 16-13-804(5)(a), C.R.S. 1999 (requiring that any sentence for a sex offense be served consecutively to the sentences for any "additional crimes arising out of the same incident as the sex offense") (emphasis added).⁵

¶ 18 Here, Wiseman's convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court's discretion.

C. Remedy

¶ 19 Wiseman requests that the case be remanded for reinstatement of the original judgment of conviction and sentences entered in the case. In addition to the fact that separate sentences could not be imposed on counts seven and eight (i.e., the pattern of abuse sentence enhancement counts), however, it has come to our attention that re-imposing determinate sentences⁶ here would be "illegal."

¶ 20 Citing People v. Gallegos , 764 P.2d 76 (Colo. 1988), Wiseman asserts that we should not address the issue because the People never objected to the determinate nature of either the original or revised sentences and never filed a Crim. P. 35(a) motion attacking the legality of a determinate sentence. In Gallegos , the People challenged on appeal whether the trial court was required by statute to sentence the defendant beyond the presumptive range when the defendant was convicted of possession of contraband while in a correctional institution. The supreme court declined to consider the merits of the People's appeal because they had failed to preserve the issue either by contemporaneously objecting at the sentencing hearing or by requesting the trial court, pursuant to Crim. P. 35(a), to correct an illegal sentence.

¶ 21 Subsequently, however, the supreme court recognized that "[a]llegations that a particular sentence is void or illegal require inquiry into the subject matter jurisdiction of the sentencing court and may not be waived." Downing v. People , 895 P.2d 1046, 1050 (Colo. 1995). To be sure, it was the defendant, not the People, who was asserting the illegality of a sentence for the first time on appeal in Downing . Id. But that does not matter. The prosecution too can request a correction of an illegal sentence, People v. White , 179 P.3d 58, 61 (Colo. App. 2007), even (because the issue involves a kind of jurisdictional defect) for the first time on appeal. See People v. Anaya , 894 P.2d 28, 31 (Colo. App. 1994) (People may...