People v. Cole

648 P.2d 687, 1982 Colo. App. LEXIS 772

• Court: Colorado Court of Appeals
• Decided: June 24, 1982
• Docket: No. 82CA0106
• Status: Published

Opinion

KELLY, Judge.

This is a non-adversary review under C.A.R. 4(d)(3) and (4) pursuant to § 18-1-409.5, C.R.S.1973 (1980 Cum.Supp.) which was remanded to the trial court for supplementation of the record. People v. Cole, (Colo.App. No. 82CA0106, May 6,1982) (not selected for official publication). The trial court was directed to make specific findings concerning the nature of the defendant’s prior felonies and the circumstances of the current offense, and to supplement the record with the materials supporting such findings.

The record recertified to this court by the trial court indicates that the sentence was imposed pursuant to a stipulation. Although the defendant may not complain of the severity of a sentence to which he has agreed, the non-adversary review statute requires this court to determine whether the record supports imposition of a sentence beyond the presumptive range whether or not it is stipulated. See § 18-1-409.5(1), C.R.S.1973 (1980 Cum. Supp.). Our remand for supplementation of the record was framed with this requirement in mind.

The trial court provided a transcript of the providency hearing which contained testimony concerning the current offense. However, in its written “Findings of Extraordinary Aggravation,” the trial court did not identify any facts which constituted extraordinary aggravation, nor did it provide any information concerning the existence or nature of the defendant’s prior felonies.

Since the trial court did not comply with our directions on remand, the cause is remanded for sentencing within the presumptive range.

SMITH and KIRSHBAUM, JJ., concur.