People v. Newman

91 P.3d 369, 2004 WL 1146372
CourtSupreme Court of Colorado
DecidedMay 24, 2004
DocketNo. 03SA320
StatusPublished
Cited by19 cases

This text of 91 P.3d 369 (People v. Newman) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Newman, 91 P.3d 369, 2004 WL 1146372 (Colo. 2004).

Opinion

Justice COATS

delivered the opinion of the court.

Richard Newman,, a criminal defendant in the underlying prosecution, petitioned pursuant to C.A.R. 21 for relief from the trial court’s order sentencing him to four years in prison for the storage of hazardous waste without a permit. Newman’s initial six-year sentence had been reversed because it exceeded the statutorily authorized range for that offense. In resentencing him, the court openly relied on evidence that his operations had, over a number of years, also caused substantial injury by spilling a great deal of hazardous waste. Newman’s separate conviction of felony disposal for that conduct had been reversed as barred by the applicable statute of limitations.

We issued our rule to show cause. Because the defendant’s four-year sentence for the storage of hazardous waste was not itself illegal; was not imposed in an illegal manner; and did not amount to an abuse of the sentencing court’s discretion, the rule is discharged.

I.

In 1997, Richard E. Newman was indicted for and subsequently convicted of feloniously storing and disposing of hazardous waste, in violation of section 25-15-310, 8 C.R.S. (2003): Both offenses stemmed from his activities as a supervisor and ultimately President of Thoro Products Company, Inc., a cleaning products manufacturer with a twenty-year-long business relationship with Dow Chemical Company.1 His conviction for felony disposal was reversed because prosecution for the conduct alleged in that charge was barred by the applicable statute of limitations. See People v. Thoro Prods. Co., Inc., 45 P.3d 737, 741-44 (Colo.App.2001), aff'd, 70 P.3d 1188, 1192 (Colo.2003). His conviction for felony storage was upheld on appeal; however, the court of appeals found that a four-year term of incarceration was the maximum sentence permitted by statute for that offense. Accordingly, it reversed the defendant’s original six-year sentence and remanded for resentencing.

On remand, the original trial judge conducted a second sentencing hearing. As its sole witness, the defense qualified the attorney for Newman and Thoro in their civil proceedings as an expert in hazardous waste regulation and compliance. Although he gave a detailed explanation, in the form of an offer of proof on behalf of defense counsel, of what he would say, his proposed testimony to the effect that Newman should have been convicted at most of misdemeanor storage, was excluded as irrelevant.2 The prosecution offered the testimony of three employees of the Environmental Protection Agency with regard to various aspects of the investigation, the extent of the damage caused by the defendants, and the plans for and costs of cleaning it up. The defendant was also given and took the opportunity to make a personal statement.

In a lengthy order, expressly incorporating its findings from the original sentencing hearing,3 the court resentenced Newman to four years in the custody of the Colorado Department of Corrections. After taking account of Newman’s personal background and community involvement, and noting the absence of any prior criminal record, the court turned to the facts of this case. Making clear that it considered itself not only permitted, but in fact obliged, to also account for Thoro’s decades-long practices of mishandling hazardous waste, which were the subject of the trial, the sentencing court concluded that Newman had firsthand knowledge of the large amounts of hazardous chemicals that were regularly leaked and spilled onto [371]*371the ground at Thoro but that he did virtually nothing to prevent the spillage or clean it up.4 Rather than laziness or carelessness, the court understood the evidence to demonstrate a calculated decision by both the individual and the corporate defendant to put their neighbors at risk, in order to maximize their own profits.

The sentencing court indicated its awareness of the specific aggravating and mitigating factors to be considered in imposing sentence for hazardous waste crimes by addressing each in turn.5 Once again it addressed the seriousness, intentionality, and impact of the violation, as well as the recalcitrance of the defendants and economic benefit they derived, in terms of their practices as a whole rather than confining its analysis to the storage of hazardous waste for which they actually stood convicted. With regard to the potentially mitigating factors specified in the hazardous waste statute, the court interpreted the evidence to demonstrate that Newman failed to cooperate with the EPA; failed over a number of years to fully disclose the information requested by the EPA; and failed to institute a regularized and comprehensive environmental compliance program.

Finally the court turned to the goals of criminal sentencing generally. It expressly noted its duty to consider the need to appropriately punish the convicted offender, to ensure fair and consistent treatment of all convicted offenders, to prevent crime and promote respect for the law, and to promote rehabilitation.6 Because it considered neither defendant likely, under the circumstances, to engage in the same kind of conduct in the future, it found the need for rehabilitation to be minimal. The court considered significant, however, Newman’s lack of remorse, as evidenced by his lack of cooperation in the investigation and clean-up effort and by his unwillingness to help remediate the substantial damages he and Thoro had caused. Finally, the court considered of particular importance the need for behavior modification, or deterrence, by making clear to others that the kind of behavior engaged in by Newman would not, in the long run, be profitable.

Rather than appealing to the court of appeals, Newman petitioned this court' pursuant to C.A.R. 21, asserting a number of reasons why the sentencing court’s consideration of his disposal practices should be held improper and his four-year sentence disapproved.

II.

Exercise of the supreme court’s original jurisdiction is entirely within its discretion. In re People v. Lee, 18 P.3d 192, 194 (Colo.2001). Relief pursuant to C.A.R. 21 is appropriate to remedy a lower court’s abuse of discretion where appellate review would be inadequate. Id. Although an appeal of the propriety of a sentence, as permitted by section 18-1-409, 6 C.R.S. (2003), or a challenge to the legality of a sentence, as permitted by Crim. P. 35, usually provides an adequate remedy, we have chosen to exercise our original jurisdiction in this case largely because the contentions of the criminal’ defendant challenge the trial court’s compliance with mandates already issued by the appellate courts in this same case and, as a matter of first impression, question the scope of a trial court’s discretion in sentencing for crimes defined outside the criminal code.

III.

Subject to constitutional limitations not at issue here, it is the prerogative of the legislature to define crimes and prescribe punishments. Martinez v. People, 69 P.3d 1029, 1031 (Colo.2003). Within the penalty ranges established by the legislature, the discretion of courts to choose particular sentences has historically been extremely broad, including consideration of not only the conduct with which the offender was expressly charged, but also his actual conduct in committing the charged offense, his unrelated criminal conduct, and even aspects’ of his life [372]

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Bluebook (online)
91 P.3d 369, 2004 WL 1146372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-newman-colo-2004.