Opinion
Court of Appeals No. 14CA2392
04-21-2016
The People of the State of Colorado, Plaintiff-Appellee, v. Tyson Lee Ellis, Defendant-Appellant.
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Kimberly Alderman Penix, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
Mesa County District Court No. 13CR366
Honorable Brian J. Flynn, Judge SENTENCE AFFIRMED Division II
Opinion by JUDGE DAILEY
Graham and Ashby, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Kimberly Alderman Penix, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶ 1 Defendant, Tyson Lee Ellis, pleaded guilty to attempted sexual assault on a child. He appeals the district court's sentence, arguing that the court abused its discretion by (1) denying his request to continue sentencing and (2) imposing the maximum prison term in the aggravated range. Because we disagree with both arguments, we affirm.
I. Background
¶ 2 Between his guilty plea and the sentencing hearing, Ellis moved through his public defender to withdraw his plea. During the same period, Ellis also alleged that his public defender provided ineffective assistance. The court appointed a different lawyer to represent him. Through this lawyer, Ellis abandoned his motion to withdraw his plea. The court then reappointed the public defender's office. ¶ 3 Ellis's newly appointed public defender (a different public defender from the one who represented him originally) moved to continue the scheduled sentencing hearing. Ellis's motion cited, in part, the incomplete presentence investigation report (PSIR) that the probation department had prepared. Ellis conceded that the PSIR was incomplete because he did not attend his interview with the author. He explained, however, that he did not attend the interview on the advice of his first public defender, who told him not to complete the interview because, at the time, he still wanted to withdraw his plea. Apparently no longer intending to withdraw his plea, he wanted to participate in an interview before sentencing. ¶ 4 At the scheduled sentencing hearing, the court denied Ellis's motion to continue. The court noted that it had received a PSIR and a psychosexual evaluation. The court also said that, if he wished, Ellis could "supplement the presentence report orally or provide [the court] any — any additional information he would like for [the court] to consider with regard to his request to have a community-based sentence." ¶ 5 The court proceeded to sentencing. The plea agreement called for "open sentencing." Ellis asked for probation or community corrections; the People asked for a six-year prison sentence. The court found that a community-based sentence would be inappropriate because (1) Ellis had been unsuccessful on probation before; (2) the "nature and seriousness" of his offenses justified a prison sentence; (3) Ellis had a prior history of sexual assault on a child, child abuse, and carrying a concealed weapon; and (4) Ellis posed a danger to children in the community. The court then found "extraordinary aggravated circumstances to justify an aggravated sentence" based on Ellis's prior record. It imposed a six-year prison sentence, the maximum term in the aggravated range for Ellis's offense. See §§ 18-1.3-401(1)(a)(V)(A), 18-1.3-401(6), C.R.S. 2015.
II. Discussion
¶ 6 Ellis argues that the court abused its discretion twice at the sentencing hearing, first by denying his motion to continue and then by imposing the maximum sentence in the aggravated range. In our view, the court acted within its discretion in both instances.
A. Standard of Review
¶ 7 Ellis's arguments implicate the district court's decisions to waive portions of the PSIR, to deny his motion to continue, and to sentence him in the aggravated range. When making each of those decisions, the court operated with discretion. People v. Brown, 2014 CO 25, ¶ 19 (denying a continuance); Villanueva v. People, 199 P.3d 1228, 1238 (Colo. 2008) (imposing a sentence in the aggravated range); People v. Valencia, 906 P.2d 115, 118 (Colo. 1995) (waiving portions of a PSIR). So we review each decision for an abuse of discretion. See Brown, ¶ 19; Valencia, 906 P.2d at 118; People v. Robinson, 187 P.3d 1166, 1177 (Colo. App. 2008). A district court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if its decision is based on an erroneous understanding or application of the law. People v. Johnson, 2016 COA 15, ¶ 29.
B. Motion to Continue and Waiver of PSIR Information
¶ 8 We first conclude that the court acted within its discretion when it denied Ellis's motion to continue and proceeded to sentencing with the incomplete PSIR. ¶ 9 When a defendant pleads guilty to a felony, a probation officer "shall make an investigation and written report to the court" before sentencing. § 16-11-102(1)(a)(I), C.R.S. 2015. The PSIR must include information about the defendant's family background, educational history, employment record, and criminal record. Id. The court has discretion to waive this information. See id.; Valencia, 906 P.2d at 118. But if it elects to do so, it must provide a sufficient justification for its action. See Valencia, 906 P.2d at 118-19. In Valencia, the supreme court suggested a court may be justified in waiving portions of a PSIR if the information that would normally appear in a PSIR is available from another source, or if the defendant knowingly refused to cooperate with the probation officer's investigation. Id. at 118. ¶ 10 Here, in denying Ellis's motion, the court noted that it had received a PSIR and a psychosexual evaluation. The record confirms that statement. Indeed, the psychosexual evaluation, which incorporated an interview with Ellis, contains sections discussing his version of events, his early life, his recent employment history, his past relationships, his past substance abuse, and his criminal history. On top of that, the court received a letter from Ellis's supervisor at work and heard statements from Ellis's lawyer, Ellis's wife, and Ellis himself. ¶ 11 Because the court had all of this information available to it from sources other than the PSIR, we conclude that it acted within its discretion by denying Ellis's motion to continue and proceeding to sentencing after finding it "unnecessary to have him interviewed by a probation officer." See id. ¶ 12 We reject Ellis's argument that the court's allowing him to orally supplement the PSIR at sentencing did not sufficiently compensate for the information missing from the PSIR. For support, Ellis points to People v. Wright, 672 P.2d 518, 521-22 (Colo. 1983). But, in our view, Wright does not help him. Ellis quotes a portion of Wright in which the court noted that a defendant must have "a reasonable opportunity prior to the imposition of sentence to correct or supplement the information" in a PSIR. Id. at 521. Here, the court expressly gave Ellis an opportunity to supplement the PSIR. ¶ 13 To the extent Ellis suggests that he did not review the PSIR with his lawyer before sentencing, he did not alert the court to this problem when he requested a continuance. And we must determine whether the court improperly denied his motion to continue by considering "the reasons presented to the trial judge at the time the request [was] denied." People v. Hampton, 758 P.2d 1344, 1354 (Colo. 1988) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). ¶ 14 We are likewise unpersuaded by Ellis's argument that the court's sentence demonstrates the "prejudicial impact" of proceeding to sentencing with the incomplete PSIR. True, the PSIR cited Ellis's "failure to comply with the PSIR process" as one factor suggesting that he "may benefit from a more structured and restrictive form of supervision." But Ellis's motion to continue explained to the court why he missed the interview. And in the end, the court articulated the reasons behind its sentence — Ellis's failure to meet with the probation officer was not among them.
C. Aggravated Sentence
¶ 15 We now turn to the sentence, and conclude that the court did not abuse its discretion by imposing the maximum term in the aggravated range. ¶ 16 If a court imposes a prison sentence, normally it must impose a term within the presumptive range. See § 18-1.3-401(6). If the court imposes a sentence outside of the presumptive range, it must make specific findings "detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentence." § 18-1.3-401(7). The existence of an extraordinary aggravating circumstance expands the sentencing range available to the court, allowing the court to impose a term of up to twice the presumptive maximum. § 18-1.3-401(6); Lopez v. People, 113 P.3d 713, 731 (Colo. 2005). The court "then has full discretion to sentence within this widened range according to traditional sentencing considerations." Lopez, 113 P.3d at 731. ¶ 17 Exercising its sentencing discretion, the court must consider the nature of the offense, the defendant's character and potential for rehabilitation, the development of respect for the law and the deterrence of crime, and the public's protection. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990); see also § 18-1-102.5, C.R.S. 2015 (listing the purposes of the criminal code with respect to sentencing). A district court need not explicitly refer to each factor it considers; it need only state the basic reasons for its sentence. People v. Chase, 2013 COA 27, ¶ 84. ¶ 18 We reject Ellis's claim that the court's findings fail to justify its sentence. The court began by identifying appropriate factors as informing its decision — for example, the nature of Ellis's offenses and the public's protection. See Fuller, 791 P.2d at 708. It then described why, in its view, a community-based sentence would not have been appropriate. And lastly it found "extraordinarily aggravated circumstances" — Ellis's prior convictions — that caused it to conclude that a sentence in the aggravated range was appropriate. In our view, the court properly and methodically exercised its discretion. ¶ 19 Ellis's argument requires too restrictive a reading of the court's analysis. He asserts that the court did not explain why imposing the maximum sentence served the purposes of sentencing, but instead simply identified his prior convictions. Not so. We recognize, of course, that the court found that his prior convictions justified a sentence in the aggravated range. But the court also listed other factors informing its sentence: the seriousness of the offense, the deterrence of crime, and the concern that Ellis posed a danger to children in the community. And the court's finding that Ellis posed a danger to children came shortly after it noted that he had "a prior history" of sexual assault on a child and child abuse. ¶ 20 In sum, the record shows that the court considered the purposes of sentencing, found extraordinary aggravating circumstances justifying a sentence in the aggravated range, and explained the reasons behind its sentence. We see no abuse of discretion. See § 18-1.3-401(7); Fuller, 791 P.2d at 708.
III. Conclusion
¶ 21 The sentence is affirmed.
JUDGE GRAHAM and JUDGE ASHBY concur.