Summary
stating the CSOA gave state trial courts the "power to commit a defendant as a sexual offender," which created "the duty to elect between that sentencing alternative or a term of imprisonment"
Summary of this case from Wimberly v. WilliamsOpinion
No. 76-376
Decided April 6, 1978. Petition for rehearing granted and prior opinion of November 10, 1977, withdrawn. Rehearing denied May 18, 1978. Certiorari denied August 14, 1978.
From denial of his motion to withdraw pleas of guilty and from the sentence imposed on those pleas, defendant appealed.
Judgment Affirmed, Sentence Vacated.
1. CRIMINAL LAW — Sex Offender Statute — Right to Advisement — Assured by Statute — Circumstances — Waiver — Guilty Pleas — Not Vulnerable. Where defendant's counsel not only acquiesced to a preliminary psychiatric examination for sex offender evaluation and requested that the court sentence defendant as a sex offender, but at the sentencing hearing expressly acknowledged that that request was being made despite the trial court's failure to advise defendant, prior to accepting his guilty pleas, of the possibility of sex offender commitment, and further stated that he had explained to defendant the implications of sex offender commitment, defendant effectively waived his right to advisement of the possibility of sex offender treatment that is assured by statute and his pleas of guilty are thus not subject to challenge because of the omission of that advisement.
2. Burglary — With Intent — Commit Sex Offense — Commitment — As Sex Offender — Permitted — Trial Court — Must Elect — Two Types of Commitment. Under the applicable statutes, burglarious intrusion warrants a term of imprisonment in addition to any term imposed for the offense committed within the intruded building; consequently, when the requisite proscribed intent accompanying such an intrusion is that of seeking to accomplish one of the sex offenses enumerated in § 16-13-202(5), C.R.S. 1973, a district court may order an indeterminate commitment under the Sex Offenders Act, in lieu of imprisonment; however, concomitant to such power to commit a burglary defendant as a sexual offender is the duty to elect between that sentencing alternative or a term of imprisonment, and both types of commitment may not be invoked.
3. Sentencing — Multiple Offenses — Against Women — Deadly Weapon — 30 to 40 Years — Burglary — Not Excessive. Where presentence report, together with further arrests appearing in record, showed defendant to have been charged with numerous offenses against many women including harassment, assault, burglary, robbery, attempted rape, and sexual assault, and where, at least, some of the offenses, were committed with either a gun or a knife, the trial court's sentence of defendant to imprisonment for from 30 to 40 years was not excessive as a matter of law and hence did not constitute an abuse of discretion by the trial court.
Appeal from the District Court of the City and County of Denver, Honorable Leonard P. Plank, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Deborah L. Bianco, Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Carol L. Gerstl, Deputy State Public Defender, for defendant-appellant.
Defendant, Michael Ingram, appeals from a denial of his motion pursuant to Crim. P. 32(e) to withdraw pleas of guilty and from the sentence imposed on those pleas. We affirm the denial of defendant's motion to withdraw his pleas, but vacate defendant's sentence and remand for sentencing.
Defendant was charged with first degree burglary with intent to commit rape, felony menacing, and attempt to commit rape. On February 24, 1975, he withdrew his previous pleas of not guilty and entered pleas of guilty to the first degree burglary and attempted rape charges. The menacing charges were dismissed. Before accepting the guilty pleas, the trial court ascertained that the defendant understood: (1) That his plea of guilty to the first degree burglary charge could result in five to 40 years imprisonment, to be served either at the State Penitentiary or the State Reformatory; and (2) that his plea of guilty to the attempted rape charge could result in one to five years imprisonment and a fine of $1,000 to $15,000. The court subsequently ordered a psychiatric evaluation of defendant's suitability for commitment under the Sex Offenders Act.
Prior to sentencing, defendant moved to withdraw his guilty pleas on several grounds, including allegations that the trial court's advisement of potential penalties was defective. After a hearing, the court denied the motion. At the same hearing, defendant's attorney requested that the court sentence defendant to an indeterminate commitment to the State Hospital as a sex offender, for both offenses. The court, however, sentenced defendant to a term of not less than 30 nor more than 40 years in the Colorado State Penitentiary for the first degree burglary offense, and, as a sex offender, for a period of one day to life in the Colorado State Penitentiary for the attempted rape offense, the sentences to run concurrently.
I.
Preliminarily, we reject defendant's contention that the trial court's failure to advise him of possible sentencing under the Sex Offenders Act prior to accepting his pleas of guilty entitles him to withdraw the pleas.
Section 16-13-204, C.R.S. 1973, does require that before accepting a plea of guilty from a defendant charged with a sex offense, "the court shall, in addition to any other requirement of law, advise the defendant that he may be committed to the custody of the department, including any penal institution under the jurisdiction of the department, as provided in 16-13-203." Section 16-13-203, C.R.S. 1973, permits commitment of a sex offender for an indeterminate term of one day to life.
Nonetheless, the record now before us demonstrates that in the instant case defendant's counsel not only acquiesced to a preliminary psychiatric examination for sex offender evaluation and requested that the court sentence defendant as a sex offender, but at the sentencing hearing expressly acknowledged that that request was being made despite the trial court's failure to advise defendant, prior to accepting his guilty pleas, of the possibility of the sex offender commitment. Moreover, defendant's counsel insisted:
"I have explained to him that this does mean in effect an indeterminate commitment to the hospital, which may be for the rest of his life. So, he is aware of that, and he is aware that the one charge that is covered under the Sex Offender's Act only carries a five-year maximum sentence. He is aware of that."
[1] We conclude that, in such circumstances, defendant effectively waived his right to advisement of the possibility of sex offender commitment, as assured by § 16-13-204, C.R.S. 1973, and his pleas of guilty are therefore not subject to challenge. See Stilley v. People, 160 Colo. 329, 417 P.2d 494 (1966) (motion to withdraw pleas of guilty denied because of any failure to advise of sentencing alternatives was suggested or invited by defendants).
II.
Defendant argues, however, that even if his pleas of guilty are binding, sentencing him to a term of imprisonment for the burglary offense concurrently with an indeterminate commitment as a sex offender violates the mandate of People v. Sanchez, 184 Colo. 379, 520 P.2d 751 (1974). In the circumstances present here, we agree.
Section 16-13-203, C.R.S. 1973, empowers trial courts of this state to order the indeterminate commitment of a sex offender "in lieu of the sentence otherwise provided by law." In People v. Sanchez, supra, the Colorado Supreme Court held that such language, read together with other provisions of the Sex Offenders Act, precludes imposing on a defendant found to constitute a threat of bodily harm to the public, a sentence of commitment and a sentence of imprisonment. Accordingly, the court found error in the trial court's sentencing a defendant convicted of sodomy and additionally determined to be an habitual criminal to a term of commitment and imprisonment.
The People argue, however, that Sanchez does not govern our disposition here, since the concurrent term imposed there was for a single underlying offense. They construe People v. Lyons, 185 Colo. 112, 521 P.2d 1265 (1974), as authorizing a sentence of commitment and imprisonment when, as here, a defendant is convicted of several offenses. While it is not necessary that we determine the full reach of Lyons, we conclude that that decision does not authorize the concurrent sentence challenged here.
In Lyons, another district court, in sentencing for an unrelated offense, had found that the defendant posed a threat of bodily harm to members of the public. The defendant contended that the doctrine of collateral estoppel required the trial court to adopt that finding. Rejecting that argument and reiterating its holding in Sanchez, the Supreme Court determined that the trial court was "vested with the option of committing or sentencing the defendant." (emphasis added)
The instant case differs from both Sanchez and Lyons in that here the defendant was convicted of two offenses in the sentencing district court. Nonetheless, the nature and relationship of the particular offenses committed here leads us to conclude that the trial court was limited to the same sentencing option of commitment or imprisonment required in Sanchez and Lyons.
As noted previously, defendant pled guilty to charges of first degree burglary with intent to commit rape and with attempt to commit rape. Those charges stemmed from a single incident in which defendant entered the victim's apartment by removing the screen of an open window, proceeded to victim's bedroom and there forced the victim to submit to his attempts at sexual intercourse.
[2] The General Assembly has determined that burglarious intrusion warrants a term of imprisonment in addition to any term imposed for the offense committed within the intruded building. We conclude, however, that when, as here, the requisite proscribed intent accompanying such an intrusion is that of seeking to accomplish one of the sex offenses enumerated in § 16-13-202(5), C.R.S. 1973, a district court may order an indeterminate commitment under the Sex Offenders Act, in lieu of imprisonment.
In so ruling, we do not reach the broader issue of whether indeterminate commitment pursuant to the Sex Offenders Act may be ordered concurrently with a term of imprisonment, when a defendant is convicted of one of the Act's enumerated sex offenses and an offense which does not require, as an element of the crime, intent to commit one of those offenses. Included within the latter category of non-sexual offenses would, of course, be the typical larcenous burglary.
But as Sanchez and Lyons recognize, concomitant to such power to commit a defendant as a sexual offender is the duty to elect between that sentencing alternative or a term of imprisonment. Accordingly, we remand the case to the trial court for it to exercise its option of either sentencing the defendant to a term of imprisonment for the burglary with intent to commit rape and attempted rape offenses or committing him pursuant to the Sex Offenders Act.
[3] Finally, since the issue may arise on resentencing, we also consider and reject defendant's assertion that the term of imprisonment initially imposed for the burglary offense — 30 to 40 years in the Colorado State Penitentiary — is excessive as a matter of law. The presentence report disclosed that, at the time he entered his pleas in this case, the defendant was charged with offenses relating to various forms of harassment, assault, and attempted rape against five separate women; these charges were dismissed upon the defendant's guilty plea in this action. Moreover, the record discloses that in the interim of the court's entry of defendant's pleas of guilty and sentencing, the defendant was arrested for investigation of recent incident involving sexual assault, burglary, and robbery. At that time defendant confessed to 15 to 25 similar rapes and thefts in the previous ten months while under supervision of the probation department pending sentencing. The last offense was committed while the defendant was armed with a gun, and previous offenses were committed while the defendant was armed with a knife. The term imposed here falls within the range authorized by statute, and under the circumstances outlined above, we cannot say that such a sentence constitutes an abuse of discretion. People v. Bruebaker, 189 Colo. 219, 539 P.2d 1277 (1975).
The denial of defendant's motion to withdraw his guilty pleas is affirmed, defendant's sentence if vacated, and the cause is remanded for resentencing in accordance with the views expressed herein.
JUDGE COYTE and JUDGE KELLY concur.