Opinion
No. 76-582
Decided October 20, 1977. Rehearing denied November 10, 1977. Certiorari granted February 21, 1978.
Sentenced to concurrent terms of imprisonment upon conviction of disorderly conduct and of a related offense, defendants appealed on basis that disorderly conduct statute was held unconstitutional.
Judgments and Sentences Reversed
1. CRIMINAL LAW — Sentencing — Concurrent — Defendants Convicted — Two Offenses — Disorderly Conduct Statute — Unconstitutional — Concurrent Sentence Rule — Not Jurisdictional Barrier — May Be Rejected. Where defendants were convicted of obstructing a police officer and disorderly conduct, and concurrent sentences were imposed, but shortly thereafter the disorderly conduct statute was ruled unconstitutional, the concurrent sentence rule does not constitute a jurisdictional barrier to appellate review of the disorderly conduct conviction and sentence, and Court of Appeals could properly exercise its discretion to reject application of the concurrent sentence rule.
2. No Motion for New Trial — No Cross-Appeal — People — May Not Challenge — Defendant's Sentence. Where upon appeal by defendant of her conviction and sentence under disorderly conduct statute subsequently declared unconstitutional, the People sought to contend that trial court's suspension of defendant's sentence was invalid, their failure to file a motion for new trial or a cross-appeal is fatal to any further challenge to defendant's sentence.
Appeal from the District Court of Larimer County, Honorable Conrad L. Ball, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, J. Stephen Phillips, Assistant Attorney General, for plaintiff-appellee.
Don L. Nelson, for defendants-appellants.
The defendants are mother and son. On February 27, 1976, the mother, Ruby, was convicted of obstructing a peace officer, and disorderly conduct. On that same date, the son, William, was convicted of resisting arrest, and disorderly conduct.
William was sentenced on March 2, 1976, to serve a term of one year for his conviction of resisting arrest, the sentence to run consecutively with a sentence he was then serving in the Colorado State Reformatory, and to serve a term of six months for his conviction of disorderly conduct, the sentence to run concurrently with the sentence for resisting arrest. On April 22, 1976, Ruby was sentenced to serve a term of 90 days in the county jail for her conviction of disorderly conduct and was assessed a fine in the amount of $50. For her conviction of obstructing a peace officer she was sentenced to serve a term of six months in the county jail and assessed a fine of $300, the sentence to run concurrently with the sentence on the charge of disorderly conduct. Each of her sentences were suspended on the condition that she conduct herself as a law-abiding citizen.
Defendants appeal only their conviction and sentence for disorderly conduct. We reverse.
On April 19, 1976, three days before Ruby was sentenced, our Supreme Court in Hansen v. People, 191 Colo. 175, 548 P.2d 1278, declared that the subsection of the disorderly conduct statute under which the defendants here were convicted was unconstitutional because it was facially overbroad.
Thereafter, on June 4, 1976, the defendants filed their motion for correction of illegal sentence pursuant to Crim. P. 35(a) and requested that the charge of disorderly conduct be dismissed and that they be resentenced. Relying upon § 18-1-410, C.R.S. 1973, and Naranjo v. District Court, 189 Colo. 21, 536 P.2d 36 (1975), and People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974), they draw the premise that where, within 120 days of imposition of sentence, a criminal statute underlying a conviction is declared unconstitutional, the court has jurisdiction to set aside the conviction and sentence and dismiss the charged offense.
The People concede that convictions obtained under penal statutes later declared unconstitutional are generally invalid, People v. Mason, 192 Colo. 5, 555 P.2d 518 (1976). Nevertheless they contend that, since the sentences for disorderly conduct were to be served concurrently with the sentence imposed for another offense for which defendants were properly convicted, under the doctrine of People v. Brown, 185 Colo. 272, 523 P.2d 986 (1974), the defendants have suffered no prejudice by the unconstitutional conviction and are not entitled to relief. However, none of the cases relied on by the People involve convictions based on the violation of an unconstitutional statute, and we refuse to extend the doctrine of Brown to preclude relief from such convictions.
Since we consider conviction under an unconstitutional statute to differ significantly from the situation existing in People v. Brown, supra, We need not await the result of People v. Villafranca, 38 Colo. App. 369, 559 P.2d 1116 (1976), for which certiorari was granted and oral argument has been held. In that case, Kelly, J., specially concurring, cast doubt upon the necessity for rigid adherence to the Brown doctrine.
The concurrent sentence doctrine is generally recognized as a rule of judicial convenience with concern for judicial economy and efficiency, and we see no jurisdictional barrier to our review of a conviction and sentence where, as here, the underlying statute has been declared unconstitutional after the conviction. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Darnell, 545 F.2d 595 (8th Cir. 1976). See also United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).
[1] "In legal contemplation an unconstitutional act is as inoperative as if it had never been passed," C. Sands, Statutes and Statutory Construction § 2.07 (4th ed. 1972); Denver v. McNichols, 129 Colo. 251, 268 P.2d 1026 (1954). Accordingly, proceedings under the disorderly conduct statute should never have been instituted, the exercise of discretion to reject application of the concurrent sentence rule is particularly appropriate.
[2] Finally, although the People contend that the trial court lacked authority to suspend Ruby's sentence, their failure to file a motion for a new trial or a cross-appeal is "fatal to any further challenge to the sentence." People v. Hinchman, 40 Colo. App. 9, 574 P.2d 866 (1977).
Judgment reversed and cause remanded with directions to dismiss the charges of disorderly conduct, to set aside the sentences of confinement and fine imposed upon said convictions, and to resentence each of the defendants under the remaining charge on which they were found guilty.
JUDGE PIERCE and JUDGE STERNBERG concur.