People v. Soper

628 P.2d 604, 1981 Colo. LEXIS 661

• Court: Supreme Court of Colorado
• Decided: April 20, 1981
• Docket: 79SA531
• Status: Published

Opinions

ROVIRA, Justice.

The defendant, Cline Lee Soper, appeals his three sentences for three felony convictions, which were ordered to be served consecutively, on the grounds that the sentencing judge abused his discretion in refusing to order the sentences to be served concurrently. He also claims that he is entitled to be resentenced under the presumptive sentencing provisions of the 1977 version of House Bill 1589.¹ We affirm.

In August 1977 the defendant was charged with three counts of second-degree burglary,² and in October and December 1977 he was charged with two separate counts of second-degree forgery.³ The offenses with which he was charged all occurred within a five-month period.

Pursuant to plea negotiations, the three cases were consolidated for disposition; and in March 1978 the defendant pled guilty to one count of second-degree burglary and two counts of second-degree forgery, all class four felonies.

Under the circumstances of this ease, at the time the defendant was sentenced, the statutory penalty for a class four felony was two to ten years.⁴ The trial court imposed sentences of six to ten years, five to seven years, and three to six years, all to run consecutively.

I.

The defendant argues that the trial court abused its discretion in ordering that the three sentences be served consecutively rather than concurrently and cites People v. Edwards, 198 Colo. 52, 598 P.2d 126 (1979), in support of his position.

In Edwards, supra, the three offenses for which Edwards was found guilty constituted “a single series of sales to the same undercover agent within less than three weeks.” Such is not the case here. The defendant pled guilty to three separate crimes which took place over a period of five months. Also, in Edwards we took into account the fact that the forty-two-year-old defendant had had no prior felony convictions in ordering his three 10- to 15-year sentences to be served concurrently.

The factors that must be considered in sentencing and sentence review have been stated on numerous occasions, see People v. Edwards, supra; Triggs v. People, 197 Colo. 229, 591 P.2d 1024 (1979); People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975); and we reaffirm the views stated in those cases.

Here, the trial judge, at the time of sentencing, had an extensive presentence investigation report which included psychiatric reports, an assessment by the Colorado Division of Rehabilitation, an evaluation by the Community Corrections Project, and a statement of the defendant’s parole officer. In addition, the trial court knew that the defendant had an adult criminal record of two prior felony convictions for second-degree burglary and the sale of narcotics and was aware that, when the defendant had been paroled from the state reformatory, parole was later revoked.

The sentences imposed by the trial judge reflected his awareness of all of the factors which should be considered, the nature of the offenses, the prior record of the defendant, his probability of rehabilitation, his age, and the criminal justice goals of punishment, deterrence, and protection of society-

Based upon the record before us, we cannot conclude that the sentences imposed by the trial court constituted an abuse of its discretion.

II.

The defendant argues that he is entitled to resentencing under the presumptive sentencing provisions of the 1977 version of House Bill 1589, which would have become effective on July 1, 1978, but for subsequent amendatory legislation postponing their effective date to April 1, 1979,⁵ and later to July 1, 1979.⁶ In People v. McKenna, Colo., 611 P.2d 574 (1980), we resolved adversely to the defendant these arguments, and we have adhered consistently to that decision. E. g., People v. Scott, Colo., 615 P.2d 35 (1980); People v. Cunningham, Colo., 614 P.2d 886 (1980).

The judgment is affirmed.

ERICKSON, DUBOFSKY and QUINN, JJ., dissent.

1 . Colo.Sess.Laws 1977, ch. 216, 18-1-105 at 867.

2 . Section 18-4-203, C.R.S.1973 (1978 Repl. Vol. 8).

3 . Section 18-5-103, C.R.S.1973 (1978 Repl. Vol. 8).

4 . Sections 18-1-105 and 16 — 1 l-101<l)(d), C.R. S.1973 (1978 Repl. Vol. 8). The defendant had been previously convicted of two felonies within five years prior to the dates of the offenses for which he was being sentenced.

5 . Colo.Sess.Laws 1978, First Extraordinary Session, ch. 1.

6 . Colo.Sess.Laws 1979, ch. 157, section 25 at 672.