Opinion
July 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
There was no abuse of discretion where trial court considered defendant's presentence confinement in county jail, but in imposing sentence did not credit defendant with time spent in presentence confinement. C.R.S. '73, 16-11-306.
Page 497
J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, William J. Donlon, Jr., Asst. Attys. Gen., Denver, for plaintiff-appellee.
Jeffrey I. Tompkins, P.C., Colorado Springs, for defendant-appellant.
RULAND, Judge.
Pursuant to s 18--1--409, C.R.S.1973, defendant, Roger Henley, seeks review of a sentence of from 15 to 20 years in the Colorado State Penitentiary imposed upon him on a plea of guilty to a charge of aggravated robbery. We affirm.
In November 1973 two separate informations were filed against defendant and a confederate in the El Paso County District Court. In the first, both men were charged with felony theft, conspiracy to commit felony theft, aggravated robbery, and conspiracy to commit aggravated robbery. Defendant was also charged with possession of an illegal weapon. The second information charged defendant and his confederate with two counts of second degree burglary, three counts of felony theft, one count of first degree burglary, and conspiracy to commit second degree burglary and felony theft.
As a result of plea bargaining all charges in the first information were dismissed except that of aggravated robbery, and the second information was amended to charge defendant with only one count of second degree burglary. Defendant then pled guilty to both charges. Throughout these and subsequent proceedings defendant was represented by court-appointed counsel.
The count of aggravated robbery to which defendant pled guilty charged both men with taking certain items of personal property from the person and presence of the victims by the use of force, threats, and intimidation, and in addition charged that this defendant was armed with a deadly weapon during the robbery. See s 18--4--302, C.R.S.1973. During the course of the providency hearing, the trial court advised defendant of the possible penalties for each offense. In response to a question from the trial court, defendant answered that he had a gun on his person during the robbery. Relative to his plea to the charge of aggravated robbery, defendant was asked, Inter alia, if he understood that 'in all probability, you will receive a substantial sentence to the Colorado State Penitentiary substantially in excess of the minimum,' to which defendant responded affirmatively. At the close of the hearing the trial court remanded defendant to the county jail pending a presentence investigation as required by s 16--11--102(1), C.R.S.1973, and Crim.P. 32(a)(1), as well as possible applications for probation.
The presentence investigation reports reflect that defendant was 22 years old, had been reared by his mother 'under adequate circumstances,' and had completed 11 years of formal education. Defendant enlisted in the army when he was almost 19 years old, served in Vietnam, and received several decorations including the Purple Heart. While in Vietnam he sustained various injuries including loss of hearing in one ear. In November and December 1973 defendant twice went AWOL and at the time of the presentence investigation had been dropped from the rolls of his military unit at Fort Carson as a deserter.
After his return from Vietnam and while in Colorado Springs defendant was twice convicted of and sentenced to short jail terms for traffic violations. He was granted a deferred prosecution, apparently for possession of dangerous drugs, and had been released from supervision shortly before the events on which the present convictions are based.
Relative to defendant's involvement in the aggravated robbery, statements from the police investigating officer and one of the victims reflect that defendant and his confederate robbed an elderly couple, Clinton Buchner and Belle Buchner, in their home. During the course of the robbery, defendant physically abused Clinton Buchner by kicking him while he and his wife were forced to lie on the floor, and also threatened to kill him. According to the police detective, at one point defendant placed his weapon alongside Clinton Buchner's head and pulled the trigger. The hammer apparently fell on an empty chamber, and the gun did not fire. The summary of the police detective's statement in the presentence report included the opinion that 'Henley was considered the most vicious of the two robbers . . ..' Clinton Buchner's account of the events reflects that defendant 'was extremely vicious.' In his 'recommendations' the probation officer relied upon the foregoing and concluded that probation should be denied and that defendant should receive a 'substantial sentence in the state penitentiary.
At the sentencing hearing and before imposing sentence, the trial court afforded defendant and his counsel the right of allocution. See s 16--11--102(5), C.R.S.1973, and Crim.P. 32(b)(1). Relative to the report on the aggravated robbery, defendant's counsel disputed that defendant kicked the Buchners or otherwise inflicted physical violence or took their eyeglasses, and stated that Clinton Buchner had identified defendant's confederate to the police as the man with the gun and that Belle Buchner had made a similar identification though not a positive one. Defense counsel also made other statements in mitigation relative to defendant's rehabilitation potential, military service, and assistance to the police in recovering the stolen property. Defendant elected to remain silent.
Pursuant to s 18--1--105(1), C.R.S.1973, the trial court sentenced defendant to a term of not less than 15 nor more than 20 years in the state penitentiary on the charge of aggravated robbery, a class 3 felony, and to an indeterminate sentence not to exceed eight years on the burglary count, a class 4 felony, the two sentences to run concurrently.
On appeal defendant seeks reduction of the 15-year minimum sentence imposed upon him for aggravated robbery. Since this minimum exceeds the statutory minimum of 5 years for class 3 felonies by more than three years, defendant is entitled to appellate review thereof pursuant to s 18--1--409(2), C.R.S.1973. Although defendant originally also sought review of the sentence for second degree burglary, thus challenging what he erroneously thought to be a combined minimum sentence of 23 years, he informed this court at oral argument that he no longer seeks review of the sentence for burglary. Hence, we do not consider that sentence. See Nugent v. District Court, Colo., 520 P.2d 592.
Defendant first contends that the trial court abused its discretion in imposing a minimum sentence for aggravated robbery which is three times the statutory minimum of five years. We disagree.
Section 18--1--409(1), C.R.S.1973, provides that the following factors be considered upon appellate review of sentence for a felony: (1) The nature of the offense; (2) the character of the offender; (3) the public interest; (4) the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. A sentencing court should attempt to 'tailor' the sentence it imposes to the defendant. People v. Alvarez, Colo., 530 P.2d 506. In so doing, the court 'must balance a number of factors to determine what deprivation of liberty a particular fact situation requires.' People v. Duran, Colo., 533 P.2d 1116.
Here defendant had no prior felony convictions. However, defendant demonstrated a serious capacity for violence in commission of the aggravated robbery. Moreover, the sentence was within the permissible range prescribed by the legislature for class 3 felonies. In view of the seriousness of the offense, we cannot say that the trial court abused its discretion. Hence, we may not disturb the minimum sentence on review. See People v. Duran, supra; People v. Alvarez, supra.
Defendant also asserts that the trial court improperly relied on hearsay information in its sentence determination. He points to allegations relating to his involvement in the crimes charged which he contends were unsupported by any facts and constituted hearsay statements for which no source was revealed. These include the statements in the probation officer's recommendations and statements in the accounts of the police officers for both crimes to the effect that defendant was believed to be the more vicious of the two perpetrators. The other allegations relate only to the burglary. Again, we disagree.
No contention is made that defendant was denied the opportunity to be heard or to refute or explain any matters in the presentence investigation report. Adherence to strict rules of evidence is not required to establish information appearing in the presentence report. See Wolford v. People, 178 Colo. 203, 496 P.2d 1011; See also People v. Duran, supra. Further, where, as here, the content of the report is make known to defendant's counsel and defendant is given adequate opportunity to refute the report, the trial court may consider the presentence report even though it contains hearsay. See People v. Forman, 108 Ill.App.2d 482, 247 N.E.2d 917; People v. McDaniel, 8 Ill.App.3d 45, 288 N.E.2d 651. Hence, we find no error in the court's consideration of the material contained therein. See People v. Carter, Colo., 527 P.2d 875.
Defendant also contends that the imposition of a greater sentence on him than on his confederate constitutes a denial of his rights to due process of law and equal protection of the laws. This contention is without merit.
The individual treatment of each of two codefendants or confederates within the limits of the sentence provided by statute is discretionary with the trial court based on the degree of involvement, previous record, and rehabilitative needs of each. People v. Pauldino, Colo., 528 P.2d 384. We have no record before us relative to defendant's confederate. Hence, there is no basis for concluding that the trial court abused its discretion in this regard.
Finally, defendant requests that he be given credit for presentence confinement in the county jail as an alternative to impossing a lesser minimum sentence.
We note that defendant's maximum sentence plus his presentence confinement time does not exceed the maximum allowable sentence for a class 3 felony. Section 16--11--306, C.R.S.1973, requires that a trial court consider a defendant's presentence confinement when imposing sentence but does not compel that any sentence imposed must be reduced by the time spent in presentence confinement. See People v. Johnson, Colo., 523 P.2d 1403; People v. Nelson, Colo., 510 P.2d 441. Here, the judgment and sentence reflect the trial court's consideration of presentence confinement. We find no abuse of discretion in the court's refusal to give credit therefor.
Sentence affirmed.
SILVERSTEIN, C.J., and KELLY, J., concur.