Specht v. Patterson

Decision Date23 March 1966
Docket NumberNo. 8433.,8433.
Citation357 F.2d 325
PartiesFrancis Eddie SPECHT, Appellant, v. Wayne K. PATTERSON, Warden, Colorado State Penitentiary, Dr. Charles E. Meredith, Supt., Colorado State Hospital, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Michael A. Williams, Denver, Colo. (Gary L. Greer, Denver, Colo., with him on brief), for appellant.

John E. Bush, Denver, Colo. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Denver, Colo., with him on brief), for appellees.

Before MURRAH, Chief Judge, and PICKETT and SETH, Circuit Judges.

MURRAH, Chief Judge.

In this habeas corpus proceedings originating in the Colorado Court the petitioner challenges the constitutionality of his state imposed indeterminate sentence as a sex offender in accordance with Colorado Revised Statutes, 1963, § 39-19-1 et seq. The trial court sustained the constitutionality on the basis of prior adjudications of the Colorado Supreme Court and this court in Trueblood v. Tinsley, 316 F.2d 783.

The state readily concedes that petitioner's state remedies have been exhausted and the asserted due process and equal protection issues are open for consideration here if a decision in petitioner's favor would result in his immediate release. See McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; McGann v. Taylor, 10 Cir., 289 F.2d 820. It is suggested, however, that even if his sentence imposed under the Colorado Sex Offender Act be adjudged invalid, he is yet subject to sentence by the Colorado court on his conviction of indecent liberties under § 40-2-32 for a term not to exceed ten years; that he has not served this term and would not therefore be entitled to his immediate release upon a favorable decision.

The conclusive answer is that his sentence was imposed in lieu of the authorized sentence of not more than ten years. While failure of the sentence he is now serving might subject him to resentence under 40-2-32, no such sentence has been imposed and a favorable decision on the asserted issue would result in his immediate release on the only sentence he is now serving.

The Colorado Sex Offender Act, 39-19-2, provides in substance that no person convicted of a crime punishable in the discretion of the court under the Act shall be sentenced until a psychiatric examination has been made and a report submitted to the court of all the facts and findings together with recommendations as to whether the convicted person is treatable under the provisions of the Act and whether he should be committed or could be adequately supervised on probation. The statute does not provide or contemplate any hearing on the exercise of the discretion of the court to impose sentence under the Act in lieu of sentence authorized under 40-2-32.

On the constitutional issue the contention is to the effect that one convicted of a 40-2-32 offense is entitled to a due process hearing on the exercise of the discretion committed to the sentencing court. The constitutionality of the Act as applied to this petitioner has been twice sustained in the Colorado Supreme Court, see Specht v. People, 396 P.2d 838; Specht v. Tinsley, 153 Colo. 235, 385 P.2d 423. As applied to others similarly situated, it has been sustained in Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655; Vanderhoof v. People, 152 Colo. 147, 380 P.2d 903; Sutton v. People, 397 P.2d 746. The same contention was also before this court and decided against the petitioner in Trueblood v. Tinsley, 10 Cir., 316 F.2d 783. Similar statutes applied under similar circumstances have also been sustained by other state courts, i. e. by the Oregon Supreme Court in State v. Dixon, 238 Or. 121, 393 P.2d 204; by the Wisconsin Supreme Court in State ex rel. Volden v. Haas, 264 Wis. 127, 58 N.W.2d 577. The classification of this type of offender for specialized treatment has been authoritatively sustained in State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744. Our case is quite different from People v. Frontczak, 286 Mich. 51, 281 N.W. 534,...

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4 cases
  • People v. Leisen
    • United States
    • New York Supreme Court — Appellate Division
    • 12 d3 Julho d3 1967
    ...The Tenth Circuit relied on its earlier decision in Trueblood, and on Williams, when it upheld the Colorado statute (Specht v. Patterson, 10 Cir., 357 F.2d 325 (1966)). The Supreme Court, as noted, thereafter reversed, holding Williams inapplicable. Similarly, the Pennsylvania courts did no......
  • Bolton v. Harris
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 16 d5 Fevereiro d5 1968
    ...as was done in the fairly analogous situations which obtained in * * * Lally * * *." 280 N.Y.S.2d at 307. 42 Supra note 41. 43 357 F.2d 325, 326 (1966). 44 386 U.S. at 608, 87 S.Ct. at 45 It could be argued that there is a reasonable presumption that a person acquitted by reason of insanity......
  • Specht v. Patterson
    • United States
    • U.S. Supreme Court
    • 11 d2 Abril d2 1967
    ...156 Colo. 12, 396 P.2d 838. This federal habeas corpus proceeding resulted, the Court of Appeals affirming dismissal of the writ, 10 Cir., 357 F.2d 325. The case is here on a petition for certiorari, 385 U.S. 968, 87 S.Ct. 516, 17 L.Ed.2d The Sex Offenders Act may be brought into play if th......
  • Com. v. Dooley
    • United States
    • Pennsylvania Superior Court
    • 16 d5 Junho d5 1967
    ...which also denied relief, and that judgment was affirmed by the United States Court of Appeals for the Tenth Circuit, Specht v. Patterson et al., 357 F.2d 325 (1966), holding that the fact that the Colorado act did not provide for a hearing prior to the exercise of discretion by the court i......

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