to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner/Cross-Respondent: The Noble Law
Firm, LLC Antony Noble Lakewood, Colorado
Attorneys for Respondent/Cross-Petitioner: Cynthia H.
Coffman, Attorney General Wendy J. Ritz, First Assistant
Attorney General Denver, Colorado
Ervin Isom was convicted of sexual assault on a child,
adjudicated a habitual sex offender against children, and
sentenced to an indeterminate term of forty years to life. We
address the legality of Isom's sentence, specifically
whether the applicable sentencing statutes impose a maximum
on the minimum end of indeterminate sentences for defendants
adjudicated habitual sex offenders against
children. We hold that to calculate the maximum
permissible minimum end of an indeterminate sentence for a
defendant sentenced as a habitual sex offender against
children, trial courts must triple the maximum of the
presumptive range for the offense and may then double the
resulting figure if the court finds extraordinary aggravating
circumstances under section 18-3-401(6), C.R.S. (2017).
Hence, we affirm the court of appeals and conclude that the
bottom end of Isom's indeterminate sentence must be no
lower than eighteen years, and may be extended up to
thirty-six years if the trial court finds extraordinary
aggravating circumstances. We thus vacate Isom's sentence of
forty years to life and remand for resentencing.
Facts and Procedural History
A jury found Isom guilty of sexual assault on a child, which
carries a maximum presumptive sentence of six years. After an
evidentiary hearing, the trial court found that Isom was a
habitual sex offender against children and sentenced him
under the habitual sex offender statute. Concluding that the
bottom end of the enhanced sentence did not have a maximum,
the trial court sentenced Isom to an indeterminate term of
forty years to life on that charge.
Isom filed a direct appeal, raising a number of arguments
unrelated to the issues now before us. The court of appeals
rejected those arguments and affirmed his conviction and
sentence. People v. Isom, 140 P.3d 100 (Colo.App.
Isom later filed a Crim. P. 35(a) motion, arguing that the
forty-years-to-life sentence was illegal because the maximum
permissible sentence for his offense was eighteen years to
life. The court of appeals agreed with Isom that his sentence
was illegal, but it concluded that thirty-six years to life
was the maximum permissible sentence for his offense.
People v. Isom, 2015 COA 89, ¶ 34, ___P.3d ___.
The court of appeals noted that the statute governing
aggravated sentences for habitual sex offenders against
children does not appear to impose a maximum for the bottom
end of an enhanced, indeterminate sentence. Id. at
¶ 14. But it applied this court's holding in
Vensor v. People, 151 P.3d 1274 (Colo. 2007), to
conclude that the felony sentencing statutory scheme as a
whole limited Isom's sentence to thirty-six years to
life. Isom, ¶¶ 20-29. We granted
certiorari and now affirm.
Standard of Review
Statutory interpretation is a question of law that this court
reviews de novo. Hunsaker v. People, 2015 CO 46,
¶ 11, 351 P.3d 388, 391.
Indeterminate sentencing for sex offenders in Colorado is
governed by section 18-1.3-1004, C.R.S. (2017). The general
sex offender sentencing provision in section 1004(1)(a)
("the general sex offender statute") provides for a
sentence of at least the minimum of the presumptive range in
the sentencing statute in section 18-1.3-401 ("the
general sentencing statute") and for a maximum of life.
For sex offenders whose offense constitutes a crime of
violence, section 1004(1)(b) provides for a sentence of at
least the midpoint in the presumptive range for the level of
offense committed and a maximum of life. And for offenders
eligible for sentencing as habitual sex offenders as defined
by section 18-3-412, C.R.S. (2017), the habitual sex offender
provision in section 1004(1)(c) ("the habitual sex
offender statute") provides for a sentence of "at
least" three times the presumptive maximum and a maximum
of life. In this case, we must determine the limits for the
lower end of a sentence imposed under the habitual sex
offender statute in section 1004(1)(c).
The parties agree that because the conviction at issue here
is a sex offense, the trial court properly sentenced Isom to
an indeterminate sentence with a maximum sentence of life.
But they dispute whether the trial court properly set the
minimum end of Isom's indeterminate sentence at forty
The People argue that Isom's sentence is proper because
the statutory scheme allows a trial court to impose any
minimum end equal to or greater than eighteen years. They
assert that the habitual sex offender statute, section
1004(1)(c), requires only that the minimum sentence be
"at least" triple the presumptive maximum-in this
case six years-and does not impose an upper limit. The
People's rationale is that the habitual sex offender
statute is an entirely different sentencing scheme, not
subject to limitations or conditions in the broader
Isom, on the other hand, argues that his sentence is illegal
because the statutory scheme requires the trial court to set
the minimum value of his sentence at eighteen years. He notes
that the habitual sex offender statute sets the enhanced
lower limit at three times the presumptive maximum, but the
general felony sentencing statute, section 18-1.3-401, sets
the enhanced lower limit at two times the presumptive
maximum. Rather than sextupling the presumptive maximum, Isom
argues that the habitual sex offender statute trumps the
general sentencing statute's limit and controls alone. In
other words, since the habitual sex offender statute triples
the minimum sentence, the general sentencing statute-which
only allows a court to at most double the minimum sentence-is
inapplicable. Therefore, Isom would have us set the lower
bound of the indeterminate sentence precisely at three times
the presumptive maximum and set the upper bound at life.
To determine Isom's range, we first look to the range for
the underlying sexual- assault-on-a-child offense: two to six
years. §§ 18-3-405(2), 18-1.3-401(1)(a)(V)(A),
C.R.S. (2017). We then apply the habitual sex offender
sentencing statute, which directs the trial court to sentence
the defendant to at least three times the maximum of
the presumptive range. In this case, that is six years
multiplied by three; therefore, the sentence is "at
least" eighteen years to life. The statute, however,
does not specify a maximum bottom end to the indeterminate
sentence. Hence, we must now determine whether ...