Opinion
No. 76-026
Decided June 2, 1977. Rehearing denied June 30, 1977. Certiorari granted October 3, 1977.
Upon being convicted of second degree burglary and sentenced under the terms of the habitual criminal act then in effect, defendant appealed.
Affirmed
1. CRIMINAL LAW — Issue — Scope of Cross-Examination — Not Raised — Motion for New Trial — Not Plain Error — Not Considered. Since defendant's assertion that the trial court erred in limiting the scope of cross-examination of the principal prosecution witness was not raised in the motion for new trial, that issue, not being plain error, was not properly before the court on appeal.
2. Statement of Defendant — Voluntary — Emphasis — Its Contents — Testimony — Read to Jury — Not Reversible Error. Since no question was raised as to the voluntariness of the statement made by the defendant, the emphasis given it by virtue of the fact that a police officer first testified about the contents of the statement and then later was allowed to read part of that statement to the jury was not, under the circumstances, reversible error.
3. Habitual Criminal Statute — Length of Sentence — Not Within — Standards for Review — Not Raised — At Trial — Ameliorative Benefits — Available to Defendant -_ Cause Remanded — Resentencing. Although length of sentence imposed for habitual criminal conviction does not meet the statutory requirements for seeking review of such sentence, and although timely review was not first sought in the trial court, the possible ameliorative benefits of the amended habitual criminal statute must be made available to defendant; accordingly, and the cause must be remanded for resentencing in accordance with the lessened penalties of the amended statute.
4. Resentencing — Amended Statute — Habitual Criminal — At Earlier Sentencing — One 1971 Conviction — Dropped — On Remand — All Convictions — Within 10 Years — To Be Considered. Since defendant, convicted of being an habitual criminal, must be accorded the benefits of an amended sentencing statute and since plea bargaining led to the dropping of a 1971 forgery conviction at the earlier habitual sentencing proceeding, it is altogether appropriate that the People be entitled to reinstate that conviction subject to proof of authenticity; accordingly, when the trial court resentences defendant under the new habitual criminal statute, it may consider all felony convictions appearing of record, if properly proved, which occurred within 10 years of the burglary, including the 1971 conviction.
Appeal from the District Court of the City and County of Denver, Honorable George M. McNamara, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John R. Rodman, Assistant Attorney General, E. Ronald Beeks, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dorian E. Welch, Deputy State Public Defender, for defendant-appellant.
Defendant Joseph Vigil was convicted by a jury of second degree burglary on September 2, 1975. Under the terms of the habitual criminal statute then in effect, § 16-13-101(1), C.R.S. 1973, he was sentenced to a term of 40 to 41 years, but in consideration of jail time served, the minimum term was reduced to 37 years. The minimum sentence permissible under that statute was 40 years. After Vigil was sentenced, the habitual criminal statute was amended by Colo. Sess. Laws 1976, ch. 93. The new statute provides for a minimum sentence of as low as 25 years in defendant's case. See § 16-13-101, C.R.S. 1973 (1976 Cum. Supp.). Vigil appeals the burglary conviction, and, alternatively, seeks to have the case remanded to the trial court for resentencing under the new statute. We affirm the judgment of conviction but remand for resentencing.
[1] In seeking reversal of the burglary conviction, Vigil first asserts that the trial court erred in limiting the scope of cross-examination of the principal prosecution witness. This issue is not properly before us since it was not raised by the motion for new trial, Crim. P. 33(a); Cook v. People, 129 Colo. 14, 266 P.2d 776 (1954), nor does it constitute plain error under Crim. P. 52(b).
[2] Vigil's other attack on the conviction is based on the fact that a police officer first testified about the contents of defendant's in-custody statement and, over objection, later was allowed to read part of that statement to the jury. No question is raised as to the voluntariness of the statement; and the emphasis given it by, in effect, allowing it to be presented twice, does not, under the circumstances here, constitute reversible error. People v. Kleiman, 191 Colo. 532, 554 P.2d 306 (1976).
As to the issue of the review of defendant's sentence, the People originally asserted that the prerequisites to appellate review do not exist because the minimum sentence imposed does not exceed by more than three years the minimum provided for in the statute, and timely review was not first sought in the trial court. Section 18-1-409, C.R.S. 1973 (1976 Cum. Supp.). See People v. Marlott, 191 Colo. 304, 552 P.2d 491 (1976); People v. Thornton, 187 Colo. 202, 529 P.2d 628 (1974).
[3] However, based upon People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977), the People now confess error. There, although the issue had not been raised by the parties, an habitual criminal case was remanded for resentencing pursuant to People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974). We consider Renfrow and its interpretation of Thomas to be dispositive here. The record discloses that the same apparent statutory impediments to review were present in Renfrow as exist here. Thus, Renfrow requires that the possible ameliorative benefits of the amended habitual criminal statute be made available to Vigil notwithstanding the requirements of § 18-1-409, C.R.S. 1973 (1976 Cum. Supp.).
A problem may be encountered in the trial court upon resentencing under the new statute. Following his conviction of second degree burglary charges in this case, Vigil's felony record was as follows:
Second degree burglary 1975 (this conviction)
Forgery 1971
Forgery 1969
Forgery 1963
Thus, at the time of the habitual criminal sentencing proceedings in the trial court, Vigil's record showed the conviction in this case and three prior felonies. Apparently as the result of a plea bargain, however, the district attorney dismissed the 1971 forgery conviction from consideration in the habitual criminal proceedings. Consequently, the 1963 aggravated robbery, the 1969 forgery, and the burglary conviction in this case served as the basis for the habitual criminal sentencing.
The new act, however, places a 10 year time limit on prior felony convictions which may be invoked in its application. Section 16-13-101, C.R.S. 1973 (1976 Cum. Supp.). When this matter reaches the trial court for resentencing under the new statute, there will be but one prior felony conviction to be counted because of the dismissal of the 1971 conviction from consideration. Thus, under the terms of the new statute, Vigil could not be adjudged an habitual criminal, despite the fact that the requisite number of convictions within the 10 year period have occurred.
[4] In light of defendant being accorded the benefits of the amended sentencing statute and because plea bargaining led to the dropping of the 1971 forgery conviction, it is altogether appropriate that the People be entitled to reinstate that conviction subject to proof of authenticity. See People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972); People v. Mason, 176 Colo. 544, 491 P.2d 1383 (1971).
Accordingly, when the trial court resentences Vigil under the new habitual criminal statute, it may considered all felony convictions appearing of record, if properly proved, which occurred within 10 years of the burglary, including the 1971 conviction. In this regard, we note that the 37 (or 40) to 41 year term to which Vigil was sentenced is within the 25 to 50 year range of the new statute and thus the same sentence could be imposed by the trial court. However, the court must make its determination of the sentence to be imposed with knowledge of the new minimum term provided in the amended statute.
The judgment of the trial court is affirmed in all respects except that the cause is remanded for resentencing consistent with the views expressed in this opinion.
JUDGE PIERCE and JUDGE BERMAN concur.