Opinion
April 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Sentence to term of indeterminate years in state reformatory, which sentence is otherwise valid, will not be vacated or modified in postconviction proceedings merely because it states no maximum term. Colo.R.Crim.P. rule 35(b)(1)(IV).
John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., David A. Sorenson, E. Ronald Beeks, Asst. Attys., Gen., for plaintiff-appellee.
Davies & Saint-Veltri, Stuart A. Kritzer, Denver, for defendant-appellant.
VAN CISE, Judge.
Ricardo Allejandro Ellis, the defendant, pled guilty to a charge of conspiracy to commit burglary and, on January 8, 1968, was sentenced to a term of indeterminate years at the Colorado State Reformatory at Buena Vista. After serving approximately one year, the defendant was released on parole. On November 12, 1974, while on parole, defendant moved for post-conviction relief pursuant to Crim.P. 35(b)(1)(IV). He alleged that this reformatory sentence was illegal, improper, and unconstitutional, and requested that the trial court vacate the judgment, impose a new sentence, or grant a new trial. On November 15, 1974, the trial court denied defendant's motion. Defendant now appeals from that order. We affirm.
Under the statute in effect at the time of sentencing C.R.S.1963, 40--7--35, conspiracy to commit burglary was punishable by imprisonment in the penitentiary for a period of not less than one year nor more than ten years. C.R.S.1963, 39--10--2, also then in effect, provided that when the court sentences a person to the Colorado State Reformatory in lieu of imprisonment in the penitentiary, the sentencing court 'shall not fix or limit the duration of the sentence.' Therefore, the sentence to an indeterminate term was valid at the time of its imposition, and still is valid.
Ellis contends, however, that the indeterminate sentence subjects him to a potentially greater penalty than the maximum allowed by C.R.S.1963, 40--7--35, under which he was convicted and, therefore, that the sentence violates C.R.S.1963, 39--10--2, which specifies:
'(T)hat no person sentenced to said reformatory shall be imprisoned or subject to the sentence imposed upon him for a term exceeding the maximum term provided by the statute fixing the length of the sentence for the crime of which he was convicted and for which he is sentenced.'
While it would have been better for the sentencing judge to have provided that the sentence not exceed ten years, Ellis' concern that an indeterminate term might extend longer is premature. The statutes direct that he shall not be subject to the sentence for a period longer than the maximum term fixed for the crime of which he was convicted, and it is assumed that the law will be followed in this regard.
Order affirmed.
SILVERSTEIN, C.J., and KELLY, J., concur.