Summary
In People v. Mikkleson, 42 Colo. App. 77, 593 P.2d 975 (1979), the Colorado Court of Appeals affirmed the trial court's denial of Petitioner Mikkleson's Crim. P. 35(a) motion to reduce his sentence for first-degree sexual assault.
Summary of this case from Mikkleson v. PeopleOpinion
No. 77-1008
Decided January 11, 1979. Rehearing denied February 22, 1979. Certiorari granted April 23, 1979.
Upon plea of guilty to first degree sexual assault, defendant was sentenced to from 20 to 30 years in the penitentiary, and he appealed from the trial court's denial of his motion to reduce his sentence filed pursuant to Crim. P. 35(a).
Sentence Affirmed
1. CRIMINAL LAW — Review — By Court of Appeals — Crim. P. 35(a) Proceeding — Not Prohibited — Standard of Review — Abuse of Discretion. There is no statute or rule that prohibits review of a Crim. P. 35(a) proceeding by the Court of Appeals, and thus such review is permitted with the standard of review being whether the trial court abused its discretion.
2. Sentencing — Trial Court — Consider — Interest of Public — Nature of Offense — Rehabilitation Possibilities — 20 to 30 Years — Sexual Assault — Threat of Death — No Abuse of Discretion. In sentencing, the trial court must give full consideration to the interests of the public and the nature of the offense as well as the possibility of rehabilitation; and although sentence of 20 to 30 years was severe, the record also reveals that defendant, with a pistol and by the threat of death, forced a 19-year-old girl to submit to sexual intercourse; therefore, the trial court did not abuse its discretion in denying defendant's motion to reduce that sentence.
Appeal from the District Court of La Plata County, Honorable Frederic B. Emigh, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Jeffrey G. Pearson, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy Public Defender, Timothy A. Patalan, Deputy State Public Defender, for defendant-appellant.
Defendant appeals from the trial court's denial of his motion to reduce his sentence under Crim. P. 35(a). We affirm.
Defendant pled guilty to commission of first degree sexual assault while armed with a deadly weapon, a class 2 felony, § 18-3-402(2), C.R.S. 1973 (1976 Cum. Supp.). The trial court sentenced him to serve 20 to 30 years in the state penitentiary. Instead of appealing his sentence directly to this court pursuant to C.A.R. 4(c), defendant filed a motion with the trial court under Crim. P. 35(a) for reconsideration of his sentence. After the trial court denied defendant's motion, defendant appealed the denial to this court alleging that the sentence imposed was excessive and that the trial court failed to give due consideration to the possibility of rehabilitation.
[1] Here, contrary to the situation in People v. McKnight, 41 Colo. App. 372, 588 P.2d 886, cert. granted, [(reporter's note) remanded for dismissal 199 Colo. 313, 607 P.2d 1007 (1979)] there is no statute or rule that prohibits our review of this Crim. P. 35(a) proceeding. Thus, the standard of review is whether the trial court abused its discretion. See Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). In sentencing, the trial court must give full consideration to the interests of the public and the nature of the offenses as well as the possibility of rehabilitation. People v. Duran, 188 Colo. 207, 538 P.2d 1116 (1975).
[2] A review of the record discloses that although the sentence was severe, the trial court did not abuse its discretion in denying the Rule 35(a) motion. The sentence was well within the minimum of 10 and maximum of 50 years set by the legislature for class 2 felonies. Section 18-1-105(1), C.R.S. 1973 (1976 Cum. Supp.). Defendant was armed with a pistol when he entered a retail shop and forced, by threat of death, a nineteen-year-old girl to submit to sexual intercourse. Although defendant has no prior criminal history and psychiatric testimony indicated that his rehabilitation potential was good, the court properly considered the countervailing interest of society, the seriousness of the offense, and the evidence of severe psychological trauma to the victim.
Sentence affirmed.
JUDGE STERNBERG concurs.
JUDGE KELLY specially concurs.