People v. Hunsaker

411 P.3d 36
CourtColorado Court of Appeals
DecidedJanuary 17, 2013
DocketNo. 11CA2184.
StatusPublished

This text of 411 P.3d 36 (People v. Hunsaker) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hunsaker, 411 P.3d 36 (Colo. Ct. App. 2013).

Opinion

Opinion by Judge BERNARD.

¶ 1 The Colorado Sex Offender Lifetime Supervision Act (the Act), §§ 18-1.3-1001 to - 1012, C.R.S.2012, establishes indeterminate sentencing for certain felony sex offenses. Under the Act, an offender must be sentenced to an indeterminate sentence, *38which consists of a bottom end of a definite number of years and a top end of the offender's natural life.

¶ 2 This appeal presents a series of questions about one aspect of this sentencing scheme. What is the sentencing range for the bottom end when the sex offense is also a crime of violence under section 18-1.3-406, C.R.S.2012? Is the bottom end for such an offense automatically subject to the same aggravated sentencing range as other crimes of violence? Or must the prosecution prove additional aggravating circumstances to support a trial court's decision to impose a bottom end in the aggravated sentencing range?

¶ 3 These questions arose in the context of a postconviction court's decision to grant a Crim. P. 35(a) motion to correct an illegal sentence. The motion was filed by defendant, William J. Hunsaker, who had been convicted of two sexual offenses that were subject to indeterminate sentencing under the Act.

¶ 4 To answer those questions, we first recognize that some parameters of the bottom end have been considered by our supreme court in Vensor v. People, 151 P.3d 1274, 1279 (Colo.2007), and by a division of this court in People v. Tillery, 231 P.3d 36, 50 (Colo.App.2009), aff'd sub nom. People v. Simon, 266 P.3d 1099 (Colo.2011). In each case, the appellate court struck down a sentence containing a bottom end that exceeded twice the maximum of the presumptive sentencing range. In Vensor, the court held that the bottom end must be

not less than the minimum nor more than twice the maximum of the presumptive range authorized for the class of felony of which the defendant stands convicted. As with other class two, three, and four felonies, the sentencing court must consider the existence of aggravating and mitigating circumstances surrounding the offense and the offender in choosing a particular term within the presumptive range. Although the Act expressly forbids a sentence with a lower term that is less than the minimum of the presumptive range, it does not preclude the lower term of the defendant's indeterminate sentence from exceeding the presumptive range as the result of extraordinary aggravating circumstances.

151 P.3d at 1279-80 (emphasis added). However, Vensor did not involve crimes of violence.

¶ 5 The division in Tillery considered a sentence imposed for the same offense at issue in this case-sexual assault on a child as part of a pattern of sexual abuse. The division held that the bottom end must fall between the midpoint in, and twice the maximum of, the presumptive range for a class three felony-or eight to twenty-four years. However, the division did not address the specific question raised here: whether proof of aggravating circumstances is a necessary prerequisite to imposing a bottom end above the maximum of the presumptive range.

¶ 6 We conclude, for the reasons we explain below, that the prosecution is not required to prove aggravating factors before a court can impose a bottom end above the maximum of the presumptive range for the class three felony offense of sexual assault on a child as part of a pattern of abuse. Therefore, (1) we agree with the position of the prosecution, which brought this appeal; and (2) we reverse the postconviction court's order and remand with directions.

I. Background

¶ 7 A jury convicted defendant of one count of sexual assault of a child, a class four felony, and one count of sexual assault of a child as part of a pattern of sexual abuse, a class three felony. See § 18-3-405(1), (2)(d), C.R.S.2012. On the first count, the trial court sentenced him to an indeterminate term of eight years to life imprisonment. On the second count, the trial court imposed an indeterminate sentence of sixteen years to life imprisonment. The maximum of the presumptive sentencing range for class four and class three felonies is six years and twelve years, respectively. § 18-1.3-401(1)(a)(V)(A), C.R.S.2012.

¶ 8 Defendant filed a Crim. P. 35(a) postconviction motion. He argued that his sentences were illegal because the bottom end of each sentence improperly exceeded the maximum of the presumptive sentencing range *39for the respective class of felony. He contended that such bottom ends could only be imposed if the trial court expressly found that there were aggravating factors that supported a bottom end in the aggravated range.

¶ 9 The prosecution conceded that the bottom end on the first count-the class four felony-was improper. However, the prosecution argued that the bottom end on the second count-the class three felony-was proper. It was proper, according to the prosecution, because the class three felony was automatically subject to a bottom end in the aggravated range because it was per se a crime of violence. See § 18-3-405(3), C.R.S.2012.

¶ 10 A second judge (the postconviction court) heard the postconviction motion. The postconviction court reduced the bottom end for both convictions to the maximum of the presumptive sentencing range for the respective class of felony, namely, six and twelve years.

II. Analysis

A. The Appeal Is Properly Before Us

1. The Appeal Is Timely

¶ 11 Defendant contends that this appeal is untimely. We disagree.

¶ 12 At all times relevant to this appeal, C.A.R. 4(b)(2) provided that a notice of appeal by the prosecution in a criminal case must be filed within forty-five days after the entry of the order being appealed. (The filing period has since been extended to forty-nine days.) A notice of appeal following resentencing must be filed within forty-five days from the date of the imposition of sentence. People v. Retallack, 804 P.2d 279 (Colo.App.1990) (citing C.A.R. 4(c)(1)(II)(A) ).

¶ 13 On June 6, 2011, the postconviction court issued an order granting defendant's Crim. P. 35(a) motion and reducing his sentence. Assuming that this order was final for purposes of appeal, and that the prosecution's subsequent motion to reconsider the June 6 order did not enlarge the time for filing an appeal, the prosecution's notice of appeal would have been due forty-five days later on July 21, 2011.

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Bluebook (online)
411 P.3d 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hunsaker-coloctapp-2013.