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People v. Wiseman

Court of Appeals of Colorado, Second Division

April 20, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
David William Wiseman, Defendant-Appellant.

         Mesa 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 Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          DAILEY JUDGE.

         ¶ 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 resentencing.

         I. Background

         ¶ 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.[1]

         ¶ 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 one;
• 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; and
• 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, and seven.
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 mittimus.

         II. Analysis

         ¶ 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.

         A. 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, [2] "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 omitted); or
• 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 777)).

         ¶ 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.[3]

         ¶ 14 Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred.

         B. Consecutive Sentencing

         ¶ 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);[4] ยง 16-13-804(5)(a), C.R.S. 1999 (requiring that any sentence for a sex offense be served consecutively ...


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