Opinion
No. 80SA17
Decided July 27, 1981.
Appeal from the District Court of the City and County of Denver, Honorable Susan G. Barnes, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Mary J. Mullarkey, Solicitor General, Susan P. Mele-Sernovitz, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, State Public Defender, Robert Breindel, Deputy, for defendant-appellant.
En Banc.
Defendant appeals the judgment of the trial court denying his Crim. P. 35(a) motion for reduction of sentence. We affirm.
Defendant entered a plea of guilty on January 21, 1978 to the charge of first-degree sexual assault. The presentence report revealed an extensive history of violent sexual assaultive behavior on the part of this 33-year old defendant. In September 1978, he was sentenced to a twenty-five to thirty-five year term.
On January 3, 1979, defendant filed a Crim. P. 35(a) motion for reconsideration of sentence. A hearing was held on that motion, and the trial court denied it on May 17, 1979. Defendant now appeals the judgment of the trial court denying this motion.
I.
Initially, defendant argues that a sentence of twenty-five to thirty-five years imprisonment is unduly harsh.
This argument was advanced by defendant during the Crim. P. 35(a) hearing in the trial court, and was rejected. Because this argument challenges the intrinsic fairness of the sentence imposed and not the sentencing procedure utilized by the trial court, it will not be reconsidered on appeal to this court. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980).
II.
Defendant's second argument questions the constitutionality of section 25 of House Bill 1589, as amended in March 1979, Colo. Sess. Laws 1979, ch. 157, Sec. 25 at 672, and claims entitlement to resentencing under the presumptive sentencing provisions of the 1977 version of House Bill 1589, Colo. Sess. Laws 1977, ch. 216, Sec. 18-1-105 at 867. The argument is without merit. People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980); see People v. Francis, 630 P.2d 82 (Colo. 1981).
Judgment affirmed.
JUSTICE ERICKSON does not participate.