Summary
In People v. Cantwell, 636 P.2d 1313 (Colo.App. 1981) a sentence beyond the presumptive range was upheld where the defendant's record included three prior felony convictions.
Summary of this case from People v. JenkinsOpinion
No. 80CA0598 and 80CA0693
Decided July 30, 1981. Rehearing denied September 10, 1981. Certiorari granted November 16, 1981.
Appeal from the District Court of Morgan County, Honorable Dean Johnson, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Assistant Attorney General, William Morris, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Deborah S. Waldbaum, Deputy State Public Defender, for defendant-appellant.
Division III.
The defendant, Kaneni B. Cantwell, pled guilty to two counts of second degree forgery. Section 18-5-103(1)(a), C.R.S. 1973 (1979 Repl. Vol. 8). This offense is a class 4 felony, the presumptive range of sentences for which is not less than two nor more than four years' imprisonment plus one year of parole. Section 18-1-105(1)(a), C.R.S. 1973 (1980 Cum. Supp.). Noting that defendant's record included three prior felony convictions entailing substantially the same method of theft by use of checks, and noting that defendant was "on parole" from a 1969 forgery conviction at the time of the current offenses, the court concluded "that the facts of this case warrant an aggravated sentence . . . ." The court then sentenced defendant to a term of eight years plus one year of parole on each count, to be served concurrently. By order of this court, the non-adversary review mandated under C.A.R. 4(d)(3) and (4) pursuant to § 18-1-409.5, C.R.S. 1973 (1980 Cum. Supp.), has been consolidated with defendant's appeal. We approve the sentence under the non-adversary review procedure and affirm the sentence in the appellate proceeding.
I.
The principal issue raised in both cases is one that has previously been answered by a divided panel of this court in People v. Gonzales, 44 Colo. App. 411, 613 P.2d 905 (1980), a non-adversary review. There we held that "under the sentencing code, a defendant's criminal record may be considered by a court as `extraordinary mitigating or aggravating circumstances' as that term is used in § 18-1-105(6), C.R.S. 1973 (1979 Cum. Supp.)." We reasoned in Gonzales that the record before both the sentencing court and this court on review must include a written presentence investigation report. A primary facet of that report is information about a defendant's past criminal record. Consequently, we concluded that the General Assembly intended information relating to a defendant's past criminal record to be something that properly could be considered an extraordinary mitigating or aggravating circumstance.
In Gonzales our conclusion was buttressed by the following considerations: to hold a sentencing court could not consider a defendant's bad record would be inconsistent with basic and traditional concepts in sentencing; and, had it been the intention of the General Assembly to eliminate such a traditional sentencing guide, a restrictive definition of the term "extraordinary circumstances" would have been employed in the statute.
This reasoning is applicable here. However, as an additional reason for our conclusion, we note that in directing the sentencing court as to appropriate considerations in sentencing within the presumptive range, the General Assembly refers to "the nature and elements of the offense, the character and record of the offender, and all aggravating or mitigating circumstances surrounding the offense and the offender." Section 18-1-105(1)(b), C.R.S. 1973 (1980 Cum. Supp.), (emphasis added). Subsection (6) then permits imposition of a sentence beyond the presumptive range, directing the court to consider "extraordinary mitigating or aggravating circumstances." In so doing the statute directs the sentencing court to look at the specifics of the "aggravating or mitigating circumstances surrounding the offense and the offender" to determine if they are "extraordinary." A fact "surrounding . . . the offender" is his criminal record. Thus, it may be considered when sentencing beyond the presumptive range.
Indeed, adoption of defendant's theory, would lead to an absurd result. If the prior record were removed from consideration, similar reasoning would require that evidence of defendant's character and the nature and elements of the offense not be considered. Thus, there would be nothing to constitute an extraordinary mitigating or aggravating circumstance. Such construction would render subsection (6) surplusage contrary to the rule of statutory construction to give meaning to an entire statute. Section 2-4-401, C.R.S. 1973.
II.
In sentencing this defendant the trial court did not contemporaneously enter written findings of the specific extraordinary circumstances justifying the sentence beyond the presumptive range. The court did so a week later. Defendant urges that this constitutes reversible error. We disagree. People v. Abila, 44 Colo. App. 68, 606 P.2d 81 (1980), is controlling in this regard. At the time of sentencing, the court in this case did refer to the fact that it was basing the sentence on the fact that defendant had been convicted of three other felonies. In Abila, this court, while holding that the statute required written findings, remanded to the trial court for later entry of such written findings, and upon receipt of them, approved the sentence. Application of Abila to the instant case requires rejection of defendant's argument; if a trial court can enter written findings after remand from this court, certainly it can do so on its own motion a week later.
III.
Defendant's final assertion, that the totality of the circumstances does not justify an eight-year sentence, is also without merit. The record reveals that the trial court was concerned with the fact that defendant had forged checks in the past, had not learned respect for the law from her previous sentences, and was on parole at the time of this offense. The court stated that a severe sentence was required to avoid similar crimes being committed by this defendant. The court's conclusion is justified by the record. See People v. Warren, 200 Colo. 110, 612 P.2d 1124 (1980), wherein it was stated: "while rehabilitation may be the preferred method for preventing crime, an extended term of confinement is sometimes necessary in order to protect the public . . . [and to] provide for individual deterrence and correction."
The sentence is approved and the judgment is affirmed.
JUDGE KELLY concurs.
JUDGE KIRSHBAUM specially concurs.