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People v. Protsman

Supreme Court of Colorado

July 3, 1978

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Eugene Albert PROTSMAN, Defendant-Appellant.

Rehearing Denied July 24, 1978.

[196 Colo. 49] J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee J. Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

The appellant, Eugene Albert Protsman, appeals the denial of his Crim.P. 35(a) motion to correct an allegedly illegal sentence. We affirm.

Appellant was originally charged with seven counts of second degree forgery, a class 4 felony. He plead guilty to count one and the remainder were Nolle prossed.

Page 1243

At the providency hearing the district attorney tendered to the court an authenticated copy of a former felony conviction of appellant. The trial judge advised the appellant that, pursuant to section 16-11-101(1)(d), C.R.S.1973 (1976 Supp.), [1] his prior felony conviction could affect his sentence. Appellant's counsel objected to the application of this statute. Nevertheless, the appellant persisted in his plea of guilty, and this plea was accepted by the trial court.

At the sentencing hearing, after hearing further argument as to the applicability of section 16-11-101(1)(d), the trial judge sentenced appellant to a term of not less than 4 years nor more than 8 years.

[196 Colo. 50] Appellant contends that section 16-11-101(1)(d) is a punishment enhancer and, as such, is unconstitutional. He claims that since the section is a punishment enhancer, it denies him due process of law by failing to provide procedural safeguards such as notice and it denies him equal protection of the laws by its failure to provide the same procedures as are required in the Colorado Habitual Criminal Act. See, section 16-13-103, C.R.S.1973.

We have recently reviewed and rejected similar claims. People v. Smith, Colo., 579 P.2d 1129 (announced May 22, 1978). In Smith we stated that section 16-11-101(1)(d) is not a punishment enhancer but "merely forbids an Indeterminate sentence to a defendant with a prior felony conviction." (Emphasis in original.) We adhere to this position.

The judgment is affirmed.

HODGES, J., does not participate.


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