County District Court No. 00CR907 Honorable Charles A. Buss,
Judge Honorable Brian J. Flynn, Judge
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jason C.
Middleton, Deputy State Public Defender, Denver, Colorado,
1 Defendant, David William Wiseman, appeals the district
court's order vacating his original sentence and imposing
a new sentence. We vacate the new sentence and remand for
2 As pertinent here, Wiseman was charged with acts committed
between August 31, 1999, and July 31, 2000, constituting
sexual assault on a child under the age of fifteen by one in
a position of trust. After a trial to a jury held in 2001, he
was convicted of two counts of sexual assault on a child
under the age of fifteen by one in a position of trust
(counts one and three), sexual assault on a child under the
age of fifteen by one in a position of trust - pattern of
abuse (count seven), and sexual assault on a child under the
age of fifteen - pattern of abuse (count eight). Count one
concerned a "lotion incident, " and count three
concerned a "condom incident." Those same two
incidents were found by the jury to be the same two predicate
acts constituting the patterns of abuse found in connection
with counts seven and eight.
3 At the 2002 sentencing hearing, the district court
sentenced Wiseman to the custody of the Department of
Corrections (DOC) on
• count one, for six years;
• count three, for eight years, consecutive to count
• count seven, for fifteen years, concurrent to the
sentences imposed on counts one and three; and
• count eight, for fifteen years, consecutive to counts
one and three.
4 The sentence reflected in a minute order and the mittimus
initialed by the court, however, differed from that which was
orally pronounced, in the following respects:
• for count one, the sentence was eight (not six) years;
• there was no indication whether the sentences imposed
in connection with counts seven and eight would be served
concurrently or consecutively to one another or to the other
sentences in the case.
5 A division of this court affirmed Wiseman's convictions
on direct appeal. People v. Wiseman, (Colo.App. No.
02CA0496, Apr. 1, 2004) (not published pursuant to C.A.R.
35(f)). In 2013, while Wiseman was incarcerated in the DOC,
the district court, at the DOC's request, reviewed his
sentence and determined that consecutive terms were mandated
by law on all four of his sentences:
The sentence imposed for count seven should have been ordered
consecutive to the sentences imposed for counts one and three
(count one was ordered consecutive to count three) and the
sentence imposed for count eight should have been ordered
consecutive to the sentences imposed for counts, one, three,
Accordingly, it is ORDERED that an Amended Mittimus be issued
consistent with this Order.
6 The effect of the court's order was to increase
Wiseman's sentence to forty-six years imprisonment.
7 The district court denied Wiseman's motion to
reconsider and vacate its order and the corresponding amended
8 Wiseman contends that he was subject to, at most, two
convictions and sentences in this case, and that the district
court erred in determining that consecutive sentences were
statutorily required. We agree with both contentions, but,
with respect to the first one, for reasons somewhat different
from those argued by Wiseman.
The Number of Convictions and Sentences
9 The district court could not impose four consecutive
sentences because it could not impose four sentences; it
could impose only two.
10 As we see it, the number of sentences that could be
entered in the case turns on whether the pattern of abuse
counts (seven and eight)
• were simply sentence enhancers, People v.
Simon, 266 P.3d 1099, 1107-08 (Colo. 2011) (holding that
the pattern of abuse statutory provisions, sections
18-3-405(2)(d) and 18-3-405.3(2)(b), C.R.S. 2016,
"do not establish separate, overall course of conduct
'pattern' offenses, " but "authorize
greater punishment" (or sentence enhancement) "for
each incident of sexual assault on a child, or sexual assault
on a child by one in a position of trust, where '[t]he
actor commits the offense as a part of a pattern of
sexual abuse.'") (alteration in original) (citations
• were meant to encompass additional substantive
offenses as well, see, e.g., People v. Melillo, 25
P.3d 769, 777 (Colo. 2001).
11 If the former was the case, then only the two convictions
for counts one and three, with enhanced sentences for each,
could be entered; if the latter was the case, then four
convictions and sentences could be entered. See People v.
Torrez, 2013 COA 37, ¶ 23 ("Trial courts may
not enter a separate conviction or sentence on a count that
is only a sentence enhancer.... But 'a single count may
charge both a crime and a sentence
enhancer.'" (quoting Melillo, 25 P.3d at
12 Nothing in the charging document indicates that counts
seven and eight were intended to include one or more
substantive offenses in addition to those charged in counts
one and three. And, the special interrogatory given in
connection with the pattern of abuse verdict forms identified
only the lotion and condom incidents as the predicate acts
establishing the patterns. Because those incidents were also
the subject of separate charges (i.e., counts one and three)
and verdicts, counts seven and eight did not encompass
"additional" substantive crimes for which one or
more separate sentences could be imposed. They acted, then,
as mere sentence enhancers for counts one and three.
13 Notably, identical acts supported the verdicts for each
pattern of abuse count. There was, then, but one pattern of
abuse, and the court should have applied only the applicable
one (i.e., sexual assault on a child by one in a position of
trust - pattern of abuse). That enhancer, in turn, would
apply to each of the sentences for the lotion and condom
incidents (counts one and three), elevating each from a class
4 felony to a class 3 felony. §§ 18-3-405(2)(d),
-405.3(2)(b), C.R.S. 2016.
14 Consequently, in entering separate convictions and
sentences for counts seven and eight, the district court
15 The district court also erred in concluding that it was
statutorily required to impose consecutive sentences.
16 Generally, a trial court has discretion to impose either
consecutive or concurrent sentences, except when the offenses
charged are supported by "identical evidence, " in
which case concurrent sentencing is required under section
18-1-408(3), C.R.S. 2016. Juhl v. People, 172 P.3d
896, 899 (Colo. 2007).
17 In some instances, however, consecutive sentencing is
required by statute. See § 16-11-309(1)(a),
C.R.S. 1999 (providing, as pertinent here, that "[a]
person convicted of two or more separate crimes of violence
arising out of the same incident shall be sentenced
for such crimes so that sentences are served consecutively
rather than concurrently") (emphasis
added); § 16-13-804(5)(a), C.R.S. 1999
(requiring that any sentence for a sex offense be served