City and County of Denver District Court Nos. 02CR5043 & 03CR4422. Honorable Martin F. Egelhoff, Judge.
John W. Suthers, Attorney General, Michael D. McMaster, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE ROMÁN. Webb and Booras, JJ., concur.
[¶1] Defendant, Adelbert Bassford, appeals the district court's order vacating his original sentence and imposing a new sentence. We vacate the new sentence and remand for resentencing.
I. Factual Background
[¶2] Defendant was charged with one count of violating the Colorado Organized Crime Control Act (COCCA), and with multiple counts of securities fraud and felony theft in Denver District
Court in case number 02CR5403. He was later charged with one count each of felony theft, defrauding a secured creditor, and forgery in Denver District Court in case number 03CR4422. The cases were consolidated for trial.
[¶3] A jury found defendant guilty of all counts ultimately tried, namely: one count of a COCCA violation, multiple counts of securities fraud and felony theft, and one count each of defrauding a secured creditor and forgery.
[¶4] The district court sentenced defendant to concurrent terms in the custody of the Department of Corrections (DOC) on the convictions in case number 03CR4422, with the sentence for the felony theft conviction controlling -- four years in the custody of the DOC plus mandatory parole. The district court sentenced defendant to concurrent terms of incarceration in the custody of the DOC on the convictions in case number 02CR5403, with the sentence for the felony COCCA violation controlling. On that count, the court sentenced defendant to eighteen years in the custody of the DOC plus mandatory parole; however, the court suspended ten years of the prison sentence on the condition that, upon his release from DOC custody, defendant successfully complete twelve years of probation with the economic crime unit. The prison sentences on the concurrent counts were each less than the unsuspended eight years on the COCCA count.
[¶5] The court imposed the sentence for the 02CR5403 convictions consecutively to the sentence for the 03CR4422 convictions. In aggregate, defendant was to serve twelve years in DOC custody, then twelve years on probation.
[¶6] On appeal, the forgery conviction was vacated, but the judgment and sentence were affirmed as to all other counts. People v. Bassford,
(Colo. App. No. 08CA0221, Aug. 25, 2011) (not published pursuant to C.A.R. 35(f)). In that appeal, defendant did not challenge the probation component of the sentence.
[¶7] Then, after serving approximately five years in prison, defendant was transferred to community corrections. While there, he filed a motion seeking to prohibit probation supervision until he completed his parole. In response to that motion, the People asserted that defendant's sentence was illegal and asked the court to modify the sentence by removing the suspension, resulting in an aggregate sentence of twenty-two years in the custody of the DOC plus mandatory parole.
[¶8] Defendant, too, claimed the sentence was illegal. But he contended in a Crim. P. 35(a) motion that the appropriate remedy was for the court to remove the probation requirement only, leaving the suspension of ten years in DOC custody intact.
[¶9] To summarize, the People wanted the sentence declared illegal and modified to impose the entire twenty-two-year sentence in DOC custody. Defendant wanted the sentence declared illegal, but the ten-year suspension retained without the need for probation.
[¶10] However, the district court did not explicitly rule on whether the original sentence was illegal. Instead, the court relied on Crim. P. 35(b) to vacate the original sentence and then resentenced defendant. Taking the sentences in the aggregate, the court sentenced defendant to twenty-two years in DOC custody plus mandatory parole. The court then suspended the entire DOC sentence (giving defendant credit for just over twelve years of time served) and imposed twelve years of probation with the economic crime unit.
[¶11] On appeal, defendant contends that his original sentence was illegal and that the district court erred by resentencing him rather than simply removing the probation requirement.
[¶12] We conclude the district court erred in resentencing defendant pursuant to Crim. P. 35(b). We further conclude that the original
sentence was illegal. However, we disagree with defendant's proposed remedy and conclude instead that the case must be remanded for resentencing.
II. Crim. P. 35(b)
[¶13] The district court erred in relying on Crim. P. 35(b) to modify defendant's sentence because the court did not ...