Arapahoe County District Court No. 02CR2082 Honorable Michael James Spear, Judge.
Cynthia H. Coffman, Attorney General, Wendy Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Ruchi Kapoor, Lakewood, Colorado, for Defendant-Appellant
¶ 1 In this appeal we construe two statutory provisions governing the sentencing of habitual sex offenders against children: sections 18-3-412(2) and 18-1.3-1004(1)(c), C.R.S. 2014. We construe them as requiring a district court to sentence a habitual sex offender against children to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under section 18-1.3-401, C.R.S. 2014, in which case the lower term can be up to six times the maximum of the presumptive range.
¶ 2 A jury found defendant, Ervin Isom, guilty of (among other charges) sexual assault on a child, a class 4 felony with a presumptive sentencing range of two to six years. After the district court adjudicated him a habitual sex offender against children, it sentenced him to forty years to life on that count. Because the district court could not aggravate the lower term of that sentence beyond thirty-six years, we vacate the sentence on that count only and remand for resentencing.
¶ 3 In 2003, a jury found defendant guilty of sexual assault on a child, enticement of a child, and contributing to the delinquency of a minor based on evidence that he had given a fourteen-year-old girl alcohol and then sexually assaulted her. The district court adjudicated him a habitual sex offender against children, and imposed consecutive sentences of forty years to life in prison on the sexual assault on a child count, and five years to life in prison on each of the counts of enticement of a child and contributing to the delinquency of a minor. The court later corrected the sentence for contributing to the delinquency of a minor to a determinate sentence of five years in prison.
¶ 4 On direct appeal, a division of this court affirmed the judgment of conviction and sentence. See People v. Isom, 140 P.3d 100 (Colo.App. 2005). The only sentencing issue raised (and rejected) in that appeal was whether defendant was entitled to a jury trial on the habitual sex offender against children charge. See id. at 106. The mandate was issued in 2006.
¶ 5 After filing several other postconviction motions that the district court denied, in 2013 defendant filed the Crim. P. 35(a) motion at issue. In it, he claimed that (1) his sentence of forty years to life for sexual assault on a child is illegal; (2) the district court failed to sufficiently explain its reasons for aggravating his sentence on that count; and (3) his indeterminate sentences violate due process.
¶ 6 The district court denied the motion, and this appeal followed.
II. Legality of the Forty-Years-to-Life Sentence
A. Applicable Law and Standard of Review
¶ 7 A court has the power and the duty to correct a criminal sentence that is not authorized by statute. See Lucero v. People, 2012 CO 7, ¶ 20. It may do so at any time. See Crim. P. 35(a); Lucero, ...