Opinion
No. 81CA0287
Decided November 19, 1981.
Appeal from the District Court of Rio Blanco County, Honorable Thomas W. Ossola, Judge.
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General, Susan P. Mele, Assistant Attorney General, for plaintiff-appellee.
Stuver George, Thomas W. Stuver, for defendant-appellant.
Division I.
Defendant appeals from the denial of his Crim. P. 35(c) motion for reduction of sentence. We affirm.
Defendant sought reduction of his sentence pursuant to Crim. P. 35(c) claiming that the decision in Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979), modified, 639 F.2d 559 (10th Cir. 1980), cert. denied, 450 U.S. 1041, 101 S. Ct. 1759, 68 L.Ed.2d 239 (1981) which determined that conditions at the prison constituted cruel and unusual punishment, made his sentence more onerous than contemplated by the sentencing judge. The reviewing court denied the motion, finding that the unconstitutional conditions of the prison were irrelevant to the sentencing process and would not be considered in an application for post-conviction review.
Defendant appeals, arguing that the reviewing court abused its discretion in failing to find that the unconstitutional conditions of confinement justified a reduction in sentence. In support of his assignment of error, defendant contends that the Ramos holding constitutes either material facts or "a ground otherwise properly the basis for collateral attack," thus justifying post-conviction review of his sentence. We disagree.
In its opinion, the Ramos court, explicitly rejected any interpretation that its decision furnished a basis for the defendant to challenge the length of his sentence. Instead, the court focused only on correcting the unsatisfactory conditions at the prison. Furthermore, other jurisdictions, when considering what relief should be available to prisoners upon a finding that conditions where they are incarcerated constitute cruel and unusual punishment have declined to allow as a remedy the reduction of sentence or early release of prisoners. See Cook v. Hanberry, 596 F.2d 658 (5th Cir. 1979), cert. denied, 442 U.S. 932, 99 S.Ct. 2866, 61 L.Ed.2d 301 (1979); Konigsberg v. Ciccone, 285 F. Supp. 585 (D. Mo. 1968), aff'd, 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 (1970); Ex parte Pickens, 101 F. Supp. 285 (D. Ala. 1951); Newton v. Cupp, 3 Or. App. 434, 474 P.2d 532 (1970).
Absent an abuse of discretion, the decision of the reviewing court on a Crim. P. 35 motion will not be reversed. Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). Defendant's allegations do not present a claim for relief under Crim. P. 35(c). Hence, the trial court did not abuse its discretion in denying defendant's motion for reduction of sentence.
Order affirmed.
JUDGE STERNBERG and JUDGE KIRSHBAUM concur.