Opinion
No. 90SC360
Decided May 6, 1991.
Certiorari to the Colorado Court of Appeals.
Law Office of Stanley H. Marks Richard A. Hostetler, Richard A. Hostetler, for Petitioner.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, for Respondent.
We granted certiorari to review People v. Schrecongost, 796 P.2d 45 (Colo.App. 1990). In Schrecongost, the court of appeals held that the trial court did not abuse its discretion by sentencing the defendant to consecutive sentences for second-degree kidnapping involving sexual assault, and first-degree sexual assault.
§ 18-3-302(3)(a), 8B C.R.S. (1986).
§ 18-3-402, 8B C.R.S. (1986).
After Schrecongost filed his appeal, but before the court rendered its decision, another division of the court of appeals announced People v. Henderson, 794 P.2d 1050 (Colo.App. 1990), which held that the crime of sexual assault merged into second-degree kidnapping involving sexual assault. The court of appeals, based on Henderson, denied Schrecongost's motion to filed supplemental briefs regarding the merger doctrine and consecutive sentences based on Henderson. We granted certiorari in both this case and Henderson to review whether the doctrine of merger barred convictions and cumulative sentences for sexual assault and second-degree kidnapping involving sexual assault.
In People v. Henderson, No. 90SC173 (Colo. May 6, 1991), we reversed the court of appeals and held that sexual assault is not a lesser included offense of second-degree kidnapping, and therefore that the doctrine of judicial merger did not bar convictions and cumulative sentences for both offenses. Henderson controls the resolution of the issue in this case.
Accordingly, we affirm the judgment of the court of appeals.