Opinion
No. 80SA319
Decided June 1, 1981.
Appeal from the District Court of Montrose County, Honorable Jerry D. Lincoln, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Mary J. Mullarkey, Solicitor General, Morgan Rumler, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, State Public Defender, Margaret L. O'Leary, Deputy, for defendant-appellant.
En Banc.
Defendant Kerns appeals the trial court's denial of his motion to reduce sentence. He also asserts in this appeal that he is entitled to be resentenced in conformity with the amendatory legislation of H.B. 1589. We affirm.
The defendant was charged with possession of cocaine, section 12-22-302, C.R.S. 1973 (1978 Repl. Vol. 5), sale of cocaine, section 12-22-302, C.R.S. 1973 (1978 Repl. Vol. 5), possession of cannabis, section 12-22-404(1)(a), C.R.S. 1973 (1978 Repl. Vol. 5), and sale of cannabis, section 12-22-404(1)(a), C.R.S. 1973 (1978 Repl. Vol. 5). In return for the defendant's plea of guilty to one count of sale of cocaine, the remaining charges were dismissed. On May 12, 1978, the defendant was sentenced to a term of six to twelve years. Several months later, he filed a motion for reduction of sentence pursuant to Crim. P. 35(a). This motion was denied as was the defendant's subsequent motion for reconsideration. On appeal, the defendant now argues that he is also entitled to be resentenced under the amendatory legislation of H.B. 1589.
Crim. P. 35 has since been extensively amended effective November 13, 1979. See Crim. P. 35 (1980 Cum. Supp.).
In People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980), we held that there is no right of appeal to the denial by a trial court of a Crim. P. 35(a) motion where the issue presented and resolved by the trial court concerns the propriety of the sentence. See also People v. Foster, 200 Colo. 283, 615 P.2d 652 (1980). The only issue presented to the trial court pertained to the propriety of the sentence. We therefore decline to consider this issue.
The remaining argument, presented for the first time on this appeal, that the defendant is entitled to be resentenced under H.B. 1589 has been rejected in People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980), and we continue to adhere to that decision. See, e.g., People v. Trujillo, 627 P.2d 737 (Colo. 1981).
The judgment is affirmed.