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Hunsaker v. People

Supreme Court of Colorado, En Banc

June 15, 2015

William J. Hunsaker, Jr., Petitioner:
v.
The People of the State of Colorado, Respondent:

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 11CA2184.

Judgment Affirmed.

SYLLABUS

The defendant appeals his sentence on his conviction for sexual assault on a child -- pattern of abuse, a class 3 felony.

The supreme court holds: (1) when a conviction is for a sex offense that requires sentencing in accordance with the mandatory sentencing statute, the prosecution is not required to prove aggravating circumstances to support a bottom-end sentence in the aggravated range; (2) the prosecution here is authorized to appeal the post-conviction court's ruling on the defendant's Rule 35(a) motion because it challenges the legal basis for the range the post-conviction court used to impose the sentence; (3) under Crim. P. 35(a), the illegality of a sentence on one count does not entitle a defendant to resentencing on other counts with legal sentences; and (4) if a sentence is subject to correction on one count, Crim. P. 35(b) authorizes a resentencing court to reconsider and reduce the legal sentences as to all counts after it has corrected the entire sentence.

The supreme court affirms the judgment of the court of appeals reversing and remanding the case to the post-conviction court to reinstate the defendant's sentence of sixteen years to life on his conviction for sexual assault on a child -- pattern of abuse. The court also holds, however, that upon remand to the post-conviction court, the defendant may seek reconsideration of his sentence under Crim. P. 35(b).

For Petitioner: Norman R. Mueller, Haddon, Morgan and Foreman, P.C., Denver, Colorado.

For Respondent: Clifford E. Riedel, District Attorney, Eighth Judicial District, Emily Humphrey, Chief Deputy District Attorney, Katharine J. Ellison, Chief Deputy District Attorney, Fort Collins, Colorado.

OPINION

Page 389

HOOD, JUSTICE

[¶1] We granted certiorari in this case to resolve a series of questions arising under the Colorado Sex Offender Lifetime Supervision

Page 390

Act (" the LSA" or " the Act" ), § § 18-1.3-1001 to -1012, C.R.S. (2014), which establishes indeterminate sentencing for felony sex offenses. We primarily consider whether a minimum sentence in the aggravated range on a conviction for sexual assault on a child -- pattern of abuse is legal when there is no explicit finding of aggravating circumstances. Stated differently: Is this offense subject to the same range, on the bottom end, as any other crime of violence? We also resolve three related procedural questions: Is the prosecution authorized to appeal a legal sentence entered on resentencing? If a defendant received an illegal sentence on one count, does Crim. P. 35(a) entitle him to resentencing on other counts with legal sentences? If not, does Crim. P. 35(b) nonetheless authorize a resentencing court to reconsider and reduce the defendant's legal sentences?

[¶2] We hold: (1) when a conviction is for a sex offense that requires sentencing in accordance with the mandatory sentencing statute, the prosecution is not required to prove aggravating circumstances to support a bottom-end sentence in the aggravated range; (2) the prosecution here is authorized to appeal the post-conviction court's ruling on the defendant's Rule 35(a) motion because it challenges the legal basis for the range the post-conviction court used to impose the sentence; (3) under Crim. P. 35(a), the illegality of a sentence on one count does not entitle a defendant to resentencing on other counts with legal sentences; and (4) if a sentence is subject to correction on one count, Crim. P. 35(b) authorizes a resentencing court to reconsider and reduce the legal sentences as to all counts after it has corrected the entire sentence. Accordingly, we affirm the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

[¶3] In 2006, a jury convicted William J. Hunsaker, Jr., of sexual assault on a child (count I), a class 4 felony, and sexual assault on a child -- pattern of abuse (count II), a class 3 felony. See § 18-3-405(1), (2)(d), C.R.S. (2014). The trial court concluded that these offenses constituted " extraordinary risk crimes" under section 18-1.3-401(10), C.R.S. (2014). This resulted in indeterminate minimum sentencing ranges of two to eight years for count I and four to sixteen years for count II. § 18-1.3-401(10). The court sentenced Hunsaker to indeterminate terms of eight years to life imprisonment and sixteen years to life imprisonment on counts I and II, respectively.

[¶4] In 2011, Hunsaker filed a motion to correct his sentences under Crim. P. 35(a) or, in the alternative, a motion to reduce his sentences under Crim. P. 35(b). He argued the two counts could not qualify as extraordinary risk crimes without an explicit finding of aggravating circumstances. He thus concluded that his bottom-end sentences were illegal. The prosecution conceded that neither count qualified as an extraordinary risk crime but asserted only count I's sentence was illegal. The prosecution reasoned: (1) section 18-3-405(3) expressly requires the court to sentence Hunsaker on count II in accordance with section 18-1.3-406, C.R.S. (2014), the mandatory sentencing statute for crimes of violence; (2) section 18-1.3-406 identifies a bottom-end sentencing range between the midpoint in, but not more than twice the maximum of, the presumptive range, which is eight to twenty-four years; and (3) the sentence for count II was lawful because it fell within this range.

[¶5] The post-conviction court granted Hunsaker's Rule 35(a) motion. As to count I, the court determined that sexual assault on a child is not an extraordinary risk crime; therefore, the statutory presumptive range of two to six years applied. As to count II, the court concluded that it could not increase the maximum term on the bottom end to more than the presumptive maximum of twelve years. Consequently, the court reduced Hunsaker's sentence on each count to the maximum presumptive terms: six years to life and twelve years to life, respectively. The court held that because this order correcting his sentences triggered the filing deadline under Crim. P. 35(b), his alternative Rule 35(b) motion was premature.

[¶6] The prosecution appealed the post-conviction court's order. In response, Hunsaker

Page 391

argued: (1) a finding of aggravating circumstances must support a bottom-end sentence that exceeds the presumptive maximum; (2) the prosecution could not appeal the propriety of a corrected sentence; and (3) an illegal sentence on one count entitled him to resentencing on both counts. The court of appeals resolved these issues in the prosecution's favor. See People v. Hunsaker, 2013 COA 5, __ P.3d __.

[¶7] First, the court of appeals held that the mandatory sentencing statute, section 18-1.3-406, does not require the prosecution to establish aggravating circumstances where the defendant's conviction is for a sex offense that constitutes a crime of violence. Id. at ¶ 40. It reasoned that sexual assault on a child -- pattern of abuse constitutes a " per se" crime of violence, which " is itself an extraordinary aggravating circumstance that requires [bottom-end] sentencing in the aggravated range" of between the midpoint in, but not more than twice the maximum of, the presumptive range--here, eight to twenty-four years. Id. (citing § 18-1.3-401(8)(a)(I)). The court of appeals then vacated the post-conviction court's minimum twelve-year sentence on count II and reinstated the trial court's sentence of sixteen years to life. Id. at ¶ 46.

[¶8] Second, the court of appeals concluded that under section 16-12-102(1), C.R.S. (2014), the prosecution can appeal " any decision of a court in a criminal case upon any question of law." Id. at ¶ 18. The court held that whether the post-conviction court miscalculated the sentencing range for count II in ruling on Hunsaker's Rule 35(a) motion " ...


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