People v. Piro

701 P.2d 878, 1985 Colo. App. LEXIS 1084

• Court: Colorado Court of Appeals
• Decided: April 18, 1985
• Docket: 83CA1420
• Status: Published

Opinions

METZGER, Judge.

Defendant, Michael Phillip Piro, appeals the concurrent sentences of eight years and two years imposed following his conviction for sexual abuse of a fourteen-year-old child and conspiracy to commit sexual abuse of a child, respectively. The eight-year sentence was twice the presumptive maximum of four years for a class 4 felony. We affirm.

This is defendant’s second appeal of his sentence. In People v. Piro, 671 P.2d 1341 (Colo.App.1983) (Piro I), we affirmed defendant’s convictions but remanded for a further hearing on the sentencing issue, holding that the trial court’s findings were insufficient to inform us as to the extent of its consideration of any extraordinary mitigating circumstances in sentencing defendant beyond the presumptive range. See §§ 18-l-105(l)(b) and (6), C.R.S. (1984 Cum.Supp.). The facts pertinent to this appeal are essentially the same as those set out in Piro I, and the trial court’s sentence is identical to the sentence which formed the basis of that appeal.

Defendant contends here that the sentence he received was excessive, and was thus an abuse of discretion by the trial court. He argues that the trial court either did not consider or did not accord proper weight to the mitigating circumstances of his case, and that the extraordinary aggravating circumstances cited by the court as justification for the sentence were either not extraordinary or not supported by the record. We disagree.

As we noted in Piro I, sentencing is by its nature a discretionary function, and the trial court is accorded wide latitude in its decisions on such matters. People v. Phillips, 652 P.2d 575 (Colo.1982). However, the trial court’s discretion is not unlimited. People v. Watkins, 200 Colo. 163, 613 P.2d 633 (1980).

In imposing a sentence, the trial court must balance the nature and elements of the offense, the character and record of the offender, and any aggravating or mitigating circumstances present, in its attempt to meet the goals of punishment, fair and consistent treatment, deterrence, and rehabilitation. See §§ 18-1-105(l)(b) and 18-1-102.5, C.R.S. (1984 Cum. Supp.). The court may not place undue emphasis on any one of these factors, to the exclusion of the others. People v. Martinez, 628 P.2d 608 (Colo.1981). Furthermore, the sentence must bear some proportionality to the crime for which it is imposed. Section 18-l-102.5(l)(a), C.R.S. (1984 Cum.Supp.); People v. Jenkins, 674 P.2d 981 (Colo.App.1983), rev’d on other grounds, 687 P.2d 455 (Colo.1984); People v. Martinez, supra.

On remand, the trial court, in a lengthy sentencing statement, listed as mitigating factors defendant’s lack of any pri- or criminal involvement, the need for him to provide for his family, and his background as a responsible citizen.

However, the trial court determined that the frequency and circumstances surrounding the incidents of sexual contact between the defendant and the victim constituted aggravating circumstances. They included both sexual intercourse and fellatio total-ling two to three times a week for a period of several months. These contacts commenced in the presence of and with the encouragement of the victim’s mother. The victim became emotionally attached to the defendant, and he did nothing to put that relationship on a healthy basis, notwithstanding the disparity in their ages.

We conclude that the trial court’s findings are well-supported by the record and reflect a proper balancing of mitigating and aggravating factors, and that the court did not, as defendant asserts, place undue emphasis on any one factor to the exclusion of others.

Accordingly, the sentence is affirmed.

STERNBERG, J., concurs. TURSI, J., dissents.