and 20CA1488 Peo v. Sikorsky

Opinion

20CA1487 & 20CA1488 Peo v Sikorsky 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals Nos. 20CA1487 & 20CA1488

Summit County District Court Nos. 19CR189 & 20CR53

Honorable Mark D. Thompson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Craig R. Sikorsky,

Defendant-Appellant.

SENTENCES AFFIRMED

Division VII

Opinion by JUDGE BERGER

Brown and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Ellen Michaels, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Albani Law LLC, Peter B. Albani, Denver, Colorado; Richard L. Ott P.C.,

Richard L. Ott, Denver, Colorado, for Defendant-Appellant

1

¶ 1 In this consolidated sentencing appeal, defendant, Craig R.

Sikorsky, appeals his consecutive sentences of twelve and six years

in the custody of the Department of Corrections (DOC). We affirm

the sentences.

I. Background

¶ 2 Sikorsky was a neighbor to twelve-year-old C.B. C.B. reported

that Sikorsky had approached him and asked if he would like a job

walking Sikorsky’s dogs. C.B. agreed. Each of the approximately

seven times C.B. walked Sikorsky’s dogs, Sikorsky “smacked [his]

rear” as he left with the dogs. After the final walk, Sikorsky invited

C.B. into his home and put his mouth on C.B.’s penis for four or

five minutes. C.B. immediately told his father about the incident,

and a sexual assault examination revealed Sikorsky’s DNA on C.B.’s

penis.

¶ 3 The prosecution charged Sikorsky with one count of sexual

assault on a child by one in a position of trust, one count of sexual

assault on a child, one count of enticement of a child, and one

count of unlawful sexual contact. Sikorsky admitted to sexually

assaulting C.B., and he pleaded guilty to an added count of sexual

exploitation of a child, a class 4 felony punishable by one to twelve

2

years in the DOC, in exchange for dismissal of the original four

counts.

1

See § 18-6-403(3)(b), (5), C.R.S. 2021; see also § 18-1.3-

401(1)(a)(V)(A.1), (6), C.R.S. 2021. The district court ordered a

presentence investigation report (PSI), and it agreed to accept the

defense’s private sex offense specific evaluation (SOSE).

¶ 4 Before sentencing, two other victims surfaced after reading a

news article about the case. R.C. alleged that on multiple occasions

in 1995, his neighbor Sikorsky joined him and another boy, C.J., on

his trampoline and purposely grabbed and touched the boys’

genitals over their clothes when they were jumping. The boys were

about eleven years old at the time. C.J. confirmed this account,

and he added that the assaults had “had adverse effects on [his]

life.” According to C.J., Sikorsky moved away after R.C.’s father

confronted him about this conduct.

¶ 5 The prosecution charged Sikorsky with two counts of sexual

assault on a child as a pattern of abuse — one count each for R.C.

and C.J. Sikorsky admitted the crimes reported by R.C. and C.J.

1

This was the range available to the court with mitigating and

aggravating factors present. § 18-1.3-401(1)(a)(V)(A.1), (6), C.R.S.

2021. In the absence of such factors, the presumptive range was

two to six years. § 18-1.3-401(1)(a)(V)(A.1).

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(although he claimed that the year was 1998), and he pleaded guilty

to one count of attempted sexual assault on a child, a class 5 felony

punishable by a term of imprisonment between six months and six

years, in exchange for dismissal of the pattern charges.

2

See

§ 18-3-405(1), C.R.S. 2021; § 18-2-101(4), C.R.S. 2021; see also

§ 18-1.3-401(1)(a)(V)(A.1), (6).

¶ 6 The district court ordered an updated PSI and SOSE. The

updated PSI, following the updated SOSE, assessed Sikorsky to be

a low risk for recidivism. Nevertheless, in light of the lasting

impacts on Sikorsky’s multiple victims, his repeated offenses, and

the danger he posed to the community, the PSI recommended

concurrent DOC sentences of six years for the crime against C.B.

and three years for the crime against R.C. and C.J. — the top of the

range for each offense in the absence of any aggravating factors.

¶ 7 At a joint sentencing hearing for the two cases, the district

court sentenced Sikorsky to consecutive, aggravated range prison

2

As with the charges stemming from the incident with C.B., this

was the range with mitigating and aggravating factors present.

§ 18-1.3-401(1)(a)(V)(A.1), (6). In the absence of such factors, the

presumptive range was one to three years.

§ 18-1.3-401(1)(a)(V)(A.1).

4

terms of twelve and six years — the maximum terms of

imprisonment for each crime. On appeal, Sikorsky contends that

(1) there was insufficient information in the record and inadequate

findings by the court to support his consecutive, aggravated range

sentences and (2) the district court abused its discretion by

“disregarding” the expert opinions in the updated PSI and SOSE.

We disagree.

II. Aggravated Sentencing Was Proper

A. Standard of Review and Relevant Law

¶ 8 A district court has broad discretion over sentencing decisions,

including whether to impose concurrent or consecutive sentences

when a defendant is convicted of multiple offenses; a sentence will

not be overturned absent a clear abuse of that discretion. Lopez v.

People, 113 P.3d 713, 720 (Colo. 2005); see Juhl v. People, 172 P.3d

896, 899 (Colo. 2007). A sentence must be manifestly arbitrary,

unreasonable, unfair, or contrary to law to constitute an abuse of

discretion. People v. Koehler, 30 P.3d 694, 697-98 (Colo. App.

2000).

¶ 9 Section 18-1.3-401(6) authorizes a district court to impose

sentences within the aggravated range if it concludes that

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extraordinary aggravating circumstances are present, are based on

evidence in the record of the sentencing hearing and the PSI, and

support a different sentence. Before sentencing outside the

presumptive range, “the court shall make specific findings on the

record of the case, detailing the specific extraordinary

circumstances which constitute the reasons for varying from the

presumptive sentence.” § 18-1.3-401(7); see Lopez, 113 P.3d at

725.

¶ 10 As relevant here, an aggravated range sentence may be based

on facts admitted by the defendant. Lopez, 113 P.3d at 719; see

Blakely v. Washington, 542 U.S. 296 (2004). Only one legitimate

factor is required to justify a sentence in the aggravated range.

Lopez, 113 P.3d at 731.

3

B. Sentencing Hearing

¶ 11 At sentencing, C.B.’s parents testified that C.B. had difficulty

sleeping and continued to have fears of adult males that negatively

3

Sikorsky does not contend on appeal that the aggravated sentence

violates Blakely v. Washington, 542 U.S. 296 (2004), or Apprendi v.

New Jersey, 530 U.S. 466 (2000).

6

impacted many aspects of his life. R.C. and C.J. also testified; R.C.

requested the maximum sentence.

¶ 12 The prosecution argued that the updated SOSE was unreliable

and asked for the maximum allowable sentences of twelve and six

years — a cumulative term of eighteen years in the DOC. Defense

counsel asked the court to sentence Sikorsky to concurrent DOC

terms of three years and eighteen months.

¶ 13 In sentencing Sikorsky to the maximum term of

imprisonment, the district court considered the entire record,

including the parties’ arguments, the victims’ statements, both

PSIs, and Sikorsky’s allocution. It found the following

extraordinarily aggravating circumstances:

• Sikorsky’s conduct had a “lifelong adverse impact” on his

victims.

• The conduct underlying the original charges was

substantially more serious than the offenses to which

Sikorsky pleaded guilty.

• The conduct was not an isolated incident. Rather, it was

part of a pattern of behavior with three prepubescent

male victims.

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• Sikorsky’s conduct preyed upon his neighbors and was a

troubling violation of the public trust.

¶ 14 The court emphasized that sentencing in the aggravated range

was appropriate based on the extraordinary seriousness of the

admitted behavior underlying the charges — behavior which could

have supported indeterminate sentencing. For these reasons, and

“to ensure community safety,” the court sentenced Sikorsky to

consecutive terms.

C. Discussion

¶ 15 Sikorsky fails to explain why the district court’s findings are

insufficient to support consecutive, aggravated range sentences.

We conclude that these findings are sufficient.

¶ 16 First, consecutive sentencing was well within the district

court’s discretion because Sikorsky was convicted of separate

offenses, with separate victims, decades apart. See Juhl, 172 P.3d

at 899.

¶ 17 Second, the district court properly considered multiple

aggravating factors, including Sikorsky’s admission to conduct that

supported more serious charges and demonstrated a pattern of

sexual misconduct. And because Sikorsky perpetrated this

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misconduct on his neighbors’ children, the court viewed him as a

threat to the community. We conclude that these factors justify

aggravated sentences. See § 18-1.3-401(8)(c) (allowing the court to

consider discretionary aggravating factors for sentencing); People v.

Torrez, 2013 COA 37, ¶ 74 (“[T]he circumstances of the crime alone

might justify the imposition of a particularly harsh sentence.”); see

also Lopez, 113 P.3d at 719, 731.

¶ 18 We find no merit in Sikorsky’s contention that the district

court abused its discretion by “disregarding” the expert opinions in

the PSI and SOSE. The record demonstrates that the court

considered the updated PSI and SOSE but disagreed, at least in

part, with them. The updated SOSE, which is cited in the updated

PSI, asserted that the original assessments of a low risk of

recidivism had not changed with the inclusion of two additional

victims. The reports characterized the three victims as one “cluster”

of criminal activity because the 1995 crimes had not been

prosecuted before the 2019 crime occurred. At sentencing, the

court explained that it disagreed that conduct separated by decades

of time should be characterized as a cluster, simply because

Sikorsky had not been previously charged.

9

¶ 19 To the extent Sikorsky claims the district court must follow

the recommendations of the PSI and SOSE, he is wrong. Sikorsky

cites no authority, and we are not aware of any, that requires a

court to agree with the PSI or to follow the recommendations of

these reports. Similarly, Sikorsky cites no authority, and we are

unaware of any, that elevates the SOSE above the PSI. To the

contrary, “[t]he sentencing judge must make an independent

decision regarding an appropriate sentence and is not bound by a

presentence recommendation of the probation department.” People

v. Tijerina, 632 P.2d 570, 571 (Colo. 1981).

¶ 20 Moreover, our review of the updated SOSE reveals troubling

omissions. In updating the SOSE, the evaluators relied only on

case reports and two phone interviews with Sikorsky, noting “we

need to review more collateral and other interview.” The evaluators

did not collect a statement from Sikorsky regarding his impact on

the two additional victims. And most importantly, the Sexual

Evaluation section was not properly updated. The first SOSE

reported that “except for the contact with the victim [Sikorsky]

maintained that he has not had any other same sex contact as an

adult . . . [and] denied additional sexual behaviors indicative of . . .

10

pedophilia.” The updated SOSE did not acknowledge that Sikorsky

had given false statements in connection with the first SOSE but

instead merely adjusted the number of victims.

¶ 21 For these reasons, we discern no abuse of discretion and

affirm the sentences.

III. Disposition

¶ 22 The sentences are affirmed.

JUDGE BROWN and JUDGE JOHNSON concur.