Opinion
No. 77-585
Decided April 6, 1978. Rehearing denied April 27, 1978. Certiorari denied July 3, 1978.
Contending that sentence under habitual criminal conviction entered following appellate remand was excessive, defendant appealed.
Sentence Affirmed
1. CRIMINAL LAW — Sentencing — Resentencing — Amended Statute — Trial Court — Not Bound — Original Sentence — Proportional Reduction — Not Required. When a trial court must resentence under an amended statute, the court has the same affirmative obligation to exercise judicial discretion as it had on the original sentencing, and thus it is not bound by its original sentence, and it need not make the new sentence proportional to the previous sentence.
Appeal from the District Court of El Paso County, Honorable Hunter D. Hardeman, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Gene Beville, Deputy State Public Defender, for defendant-appellant.
Defendant, Ronald Lee Faulkner, was convicted of attempt to commit rape, sexual assault with force, on a child deviate sexual intercourse by force, and as a habitual criminal. On a prior appeal of his convictions and his sentence on the habitual criminal count, this court, in an unpublished decision, affirmed the convictions but reversed and remanded with directions to vacate the sentence on the habitual criminal count and to resentence defendant in conformity with the 1976 amendments to § 16-13-101(1), C.R.S. 1973. Contending that his new sentence for the habitual criminal conviction is excessive, defendant appeals. We affirm.
Defendant was originally sentenced from 45 to 65 years on the habitual criminal count. Subsequent to our remand, the court imposed a new sentence of from 36 years and 9 months to 45 years under the amended statutory sentencing range of from 25 to 50 years. See § 16-13-101(1), C.R.S. 1973 (1976 Cum. Supp.). The new sentence would begin to run as of the date the original sentence was imposed.
Defendant now contends that his sentence was impermissibly increased because the minimum and maximum period of time imposed are not in the same proportion to the new statutory limits as the former sentence had been to the statutory limits then existing. This contention is based on the assumption that having already exercised its judicial discretion in the initial sentencing, the trial court is bound by that decision on resentencing and must bring defendant's sentence in line with the new statutory minimum and maximum by means of a proportional formula. We disagree.
[1] We hold that when a trial court must resentence under an amended statute, the court has the same affirmative obligation to exercise judicial discretion as it had on the original sentencing. See Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977).
A sentencing court should tailor the sentence to the defendant, keeping in mind past record, potential for rehabilitation, and protection of the public. People v. Alvarez, 187 Colo. 290, 530 P.2d 506 (1975). Defendant admits that the court conducted a hearing at which time he was afforded an opportunity to present evidence in his behalf. It considered the reports of probation officers, supplemental presentence reports, letters from correctional officers, and statements of the defendant himself before resentencing. Thus there was no abuse of discretion.
The new sentence clearly is within the limits prescribed by the amended statute and is not disproportionate to defendant's conduct, which included three felony convictions in the instant action and two prior felony convictions. Under these circumstances, the sentence is proper, and it may not be disturbed on appellate review. See People v. Thomas, 190 Colo. 140, 542 P.2d 387 (1975).
Sentence affirmed.
JUDGE RULAND and JUDGE STERNBERG concur.