Ray v. People

• Decision Date: 13 June 1966
• Docket Number: No. 21677,21677
• Citation: 415 P.2d 328,160 Colo. 173
• Parties: Kenneth Melvin RAY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 328

415 P.2d 328

160 Colo. 173

Kenneth Melvin RAY, Plaintiff in Error, v.The PEOPLE of the State of Colorado, Defendant in Error.

No. 21677.

Supreme Court of Colorado, En Banc.

June 13, 1966.

H. D. Reed, John A. Kintzele, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.

DAY, Justice.

This writ of error is directed to the order of the district court denying a motion filed pursuant to Rule 35(b), Colo.R.Crim.P. by plaintiff in error, hereinafter called the defendant.In his motion defendant attacks the validity of a sentence of one year to life imposed by the court under C.R.S. '53, 39--19--1 et seq.(prior to a 1963amendment) commonly known as the 'Sex Offenders Act.'He would have us order the trial court to vacate and set aside the sentence and to sentence him according to the penalty provided by statute for the crime to which he entered a plea of guilty.For reasons which we will hereinafter enumerate, we hold that the trial court was correct and that the sentence was valid.

Defendant was originally charged by information with statutory rape and conspiracy to commit statutory rape.Later the information was amended by addition of other counts of forcible rape and conspiracy to commit forcible rape.Defendant first entered pleas of not guilty to all of these counts.Subsequently, by leave of court, he changed his plea to guilty with reference to the offense of statutory rape.He then made application for probation.

At the hearing on the probation application, it was determined, on the recommendation of the Probation Department, that probation should not be granted.Thereafter, in colloquy between the court and counsel, it became apparent that the court was disposed to sentence the defendant to the penitentiary.Whereupon counsel requested that the 'defendant be sent to the hospital for a period of observation before the Court pronounces final sentence.'The court responded, 'All right.Before sentence is passed, then, we will remand him to the Sheriff and we will order him committed to the Colorado Psychopathic Hospital for examination, for observation, examination, and report, before sentence is passed.'

In due time, after the conclusion of the examination requested by the court, a psychiatrist made a report which, Inter alia, made findings as to the nature of the defendant's psychological condition and expressed the view that he suffered from 'severe character disorder, with strong tendencies toward impulsive, sadistic acting out.'The psychiatrist then concluded:

'It is extremely unlikely that Mr. Ray could benefit from psychotherapy unless it was conducted over a prolonged period of time in an institutional setting where he would have no opportunity for acting out.We consider him an extreme potential danger to society.In our opinion, either long-term imprisonment or institutionalization at the State Hospital would seem to be indicated.Psychotherapy should ideally be made available to him during such time.'

With this report in hand, the court conducted another hearing, at which another count was added to the information charging the defendant with 'assault to commit rape.'The defendant then was permitted to withdraw his plea of guilty to the count charging him with statutory rape and to enter a plea of guilty to the new count.This was agreed to between defendant's counsel, the district attorney, the Probation Department, and the court for the purpose of enabling the defendant to be sentenced under the Sex Offenders Act.The 'assault to commit rape' charged was one of the offenses under which the court could utilize the provisions of the act.The charge to which he had previously entered a plea of guilty was not one so enumerated in the statute until the Colo.Sess.Laws 1963, ch. 96, at page 282, added such offense to the others enumerated therein.

After being carefully advised as to the consequences of the plea of guilty to the added count; upon being advised that he could be and probably would be sentenced for from one year to life as provided in the Sex Offenders Act; and with the further detailed explanation by the court as to the psychiatric treatment that was indicated in his case, the defendant persisted in his plea of guilty.He then was ordered remanded to the hospital for further examination.

Five days later the defendant was brought before the court to be sentenced.At this proceeding there was a letter over the signature of a 'Psychiatric Resident' who had participated...