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People v. Herrera

Supreme Court of Colorado. En Banc
Oct 29, 1973
183 Colo. 155 (Colo. 1973)

Summary

holding that "[t]he power of commutation ... is the power to reduce punishment from a greater to a lesser sentence," and this power was exclusive to the governor

Summary of this case from State ex rel. Esteen v. State

Opinion

No. 25727 No. 25718 No. 25736 No. 25752 No. 25749 No. 25694 No. 25758 No. 25815

Decided October 29, 1973. Rehearing denied December 10, 1973.

Defendants sought post-conviction review of their sentences under statute providing for such relief when sentence for crime of which a defendant was convicted is subsequently reduced by the legislature. Trial court denied review in all eight cases consolidated on this appeal.

Affirmed

1. CONSTITUTIONAL LAWCommutation — Statute — Invasion — Governor's Power — Unconstitutional — Violation — Separation of Powers. The statute, 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f), as amended, which invaded the Governor's exclusive power to grant a commutation after conviction, as provided in Article IV, Section 7, of the Colorado Constitution, violated the doctrine of separation of powers embodied in Article III of the Colorado Constitution and was therefore unconstitutional.

2. CRIMINAL LAWSentences — Correction — Inequities — Circumscribed — Constitution. The methods and means by which correction of inequities and injustices in the area of imposition of sentences for criminal misconduct may be attained are circumscribed by constitutional limitations.

3. CONSTITUTIONAL LAWSeparation of Powers — Applicable — Three Branches. The doctrine of separation of powers applies with equal force to all three branches of the government.

4. Judiciary — Exercise — Power — Legislature — Prohibited. The judiciary can no more exercise a power constitutionally conferred upon the legislature than can the executive; and the legislature is equally powerless to confer executive powers upon the judiciary.

5. Governor — Reprieves — Commutations — Pardons. Under Article IV, Section 7, of the Colorado Constitution, the governor has power to grant reprieves, commutations and pardons after conviction, for all offenses except treason.

6. WORDS AND PHRASESCommutation. The power of commutation is the power to reduce punishment from a greater to a lesser sentence.

7. CONSTITUTIONAL LAWCommutation — Courts — Negative. Nowhere does the constitution vest the power of commutation in the courts.

8. Reprieves — Commutations — Pardons — Governor — Exclusive Power. The governor has the exclusive power to grant reprieves, commutations and pardons after conviction.

9. COURTSReprieve — Commutation — Pardon — Judicial Department — Violation — Separation of Powers. Any attempt by the judicial department to exercise the power of reprieve, commutation and pardon after conviction, even though legislatively sanctioned, is a violation of the doctrine of separation of powers under Article III of the Colorado Constitution.

Appeal from the District Court of Morgan County, No. 25727, Honorable Earl A. Wolvington, Judge.

John P. Moore, Attorney General, John E. Bush, Deputy, Aurel M. Kelly, Assistant, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Kenneth J. Russell, Deputy, Thomas M. Van Cleave III, Deputy, Roger A. Klein, Deputy, for defendant-appellant.

Appeal from the District Court of the City and County of Denver, No. 25718, Honorable Robert T. Kingsley, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, Kenneth J. Russell, Deputy, for defendant-appellant.

Appeal from the District Court of the City and County of Denver, No. 25736, Honorable Henry E. Santo, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, T. Michael Dutton, Deputy, for defendant-appellant.

Appeal from the District Court of El Paso County, No. 25752, Honorable Hunter D. Hardeman, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, Richard C. Webster, Deputy, Dorian E. Welch, Deputy, for defendant-appellant.

Appeal from the District Court of the City and County of Denver, No. 25749, Honorable Henry E. Santo, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, Lee Belstock, Deputy, for defendant-appellant.

Appeal from the District Court of Pueblo County, No 25694, Honorable S. Philip Cabibi, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, Lee Belstock, Deputy, Darol C. Biddle, Deputy, for defendant-appellant.

Appeal from the District Court of the City and County of Denver, No. 25758, Honorable George M. McNamara, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, Lee Belstock, Deputy, for defendant-appellant.

Appeal from the District Court of the City and County of Denver, No. 25815, Honorable Henry E. Santo, Judge.

Same as above for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, T. Michael Dutton, Deputy, for defendant-appellant.


In these eight cases, consolidated for appeal, appellants seek post-conviction review of their sentences, under 1971 Perm. Supp., C.R.S. 1963, 40-1-101 et seq. Section 40-1-510(1)(f), as amended, authorizes post-conviction review where it is alleged:

"That there has been a significant change in the law, applied to applicant's conviction or sentence, allowing in the interest of justice retroactive application of the changed legal standards." (Emphasis added.)

Prior to the amendment of April 19, 1973, the word "allowing" read "requiring."

The Colorado Criminal Code, effective July 1, 1972, redefined many offenses and completely revamped the penalty provisions. Sentences were reduced for most offenses. The appellants, all of whom had been convicted and sentenced under prior criminal statutes, sought a review of their sentences under Section 40-1-510(1)(f), as amended. The trial courts denied review in all eight cases.

[1] At oral argument, upon the suggestion of the People that the statute under consideration might involve a violation of the separation of powers provision of the Colorado Constitution, this Court ordered the filing of supplemental briefs on this constitutional issue. For the reasons hereinafter set forth, we affirm the judgments on the grounds that 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f), as amended, invades the Governor's exclusive power to grant a commutation after conviction, as provided in Article IV, Section 7, of the Colorado Constitution, and therefore violates the doctrine of separation of powers embodied in Article III of the Colorado Constitution.

In view of our holding here, it is unnecessary to discuss the respective contentions of the parties relative to the retroactive and retrospective operation of the statute under consideration.

It is clear that the legislature intended by Section 40-1-510(1)(f) to confer a right of review of sentences, to the end that sentences might be equalized in light of the changes in the Colorado criminal laws. All appellants qualify for review under the terms of the statute, in that their sentences either exceeded the maximums authorized by the new code for the same offenses, or exceeded by three years the minimums provided by it. 1971 Perm. Supp., C.R.S. 1963, 40-1-509.

[2] We recognize and agree with the laudable, beneficent purposes motivating the enactment of Section 40-1-510(1)(f). We also are aware that the criminal justice process sometimes results in imperfect justice which in extreme cases cries out for correction. This is particularly so in the area of imposition of sentences for criminal misconduct. The methods and means by which correction of such inequities and injustices may be attained, however, are circumscribed by constitutional limitations.

[3,4] Article III of the Colorado Constitution divides "the powers of the government of this state . . . into three distinct departments, — the legislative, executive and judicial" and further provides that:

"No person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as is in this constitution expressly directed or permitted."

It is clear that the doctrine of separation of powers applies with equal force to all three branches of the government, as stated in Hudson v. Annear, 101 Colo. 551, 75 P.2d 587:

"* * * Article III of the Constitution applies not less to the judicial department than to the other departments. It is well, of course, that all departments give pause, that they may not offend. All must answer to the people, in and from whom, as specifically set forth in the Constitution, all political power is invested and derived. Art. II, § 1. * * *"

The judiciary can no more exercise a power constitutionally conferred upon the legislature than can the executive. Also, it seems obvious that the legislature is equally powerless to confer executive powers upon the judiciary.

[5,6] Article IV, Section 7, of the Colorado Constitution provides:

"The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason * * *."

The power of commutation, with which we are here concerned, is the power to reduce punishment from a greater to a lesser sentence. People v. Jenkins, 325 Ill. 372, 156 N.E. 290; Whittington v. Stevens, 221 Miss. 598, 73 So.2d 137; Steinacher v. Swanson, 131 Neb. 439, 268 N.W. 317; Fehl v. Martin, 155 Or. 455, 64 P.2d 631; Black's Law Dictionary (4th rev. ed. 1968); Am. Jr. 2d Pardon and Parole § 65.

[7] By Section 40-1-510(1)(f), the legislature sought to confer upon the courts the express power to review sentences after conviction and exhaustion of appellate remedies. Implied in this provision is the authority to reduce a sentence after a final conviction — the power of commutation. Nowhere does the constitution vest the power of commutation in the courts.

By contrast, the legislature provided in Section 40-1-509 for appellate review of sentences during the appeal process, which imports the exercise of a proper judicial function before finality of a judgment of conviction.

[8,9] In People v. District Court, 180 Colo. 107, 502 P.2d 420, we observed that the governor has the exclusive power to grant reprieves, commutations and pardons after conviction. We affirm that declaration. Any attempt, therefore, to exercise such power by the judicial department, even though legislatively sanctioned, would be a violation of the doctrine of separation of powers under Article III of the Colorado Constitution. Other states with similar constitutional provisions have reached like conclusions. See People v. Fox, 312 Mich. 577, 20 N.W.2d 732; Whittington v. Stevens, 221 Miss. 598, 73 So.2d 137; State v. District Court, 68 Mont. 309, 218 P. 558; State v. Lewis, 226 N.C. 249, 37 S.E.2d 691; Moore v. Thorn, 245 App. Div. 180, 281 N.Y.S. 49; Gilderbloom v. State, 160 Tex. Cr. R. 471, 272 S.W.2d 106; Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S.W. 162.

Resort to interpretation of the federal constitutional provision relating to executive clemency does not lend support to appellants' position here. The Constitution of the United States provides in Article II, Section 2, that the President "* * * shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The power of commutation is not mentioned. Hence, as interpreted by the United States Supreme Court, in United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Nix v. James, 7 F.2d 590 (9th Cir. 1925); and Rawls v. United States, 218 F. Supp. 849 (W. D. Mo. 1963), the power of commutation may be validly exercised by the federal judiciary and it is not constrained, as we are, by the exclusive grant of that authority to the executive department.

For the foregoing reasons, the judgments of the trial courts denying review of appellants' sentences under Section 40-1-510(1)(f) in these consolidated cases are affirmed.

MR. JUSTICE ERICKSON concurs in the result.


Summaries of

People v. Herrera

Supreme Court of Colorado. En Banc
Oct 29, 1973
183 Colo. 155 (Colo. 1973)

holding that "[t]he power of commutation ... is the power to reduce punishment from a greater to a lesser sentence," and this power was exclusive to the governor

Summary of this case from State ex rel. Esteen v. State

noting that after a final conviction, only the Governor has the power to reduce a sentence and that any effort by a court to exercise that power would violate the separation of powers doctrine

Summary of this case from People v. Cali

In People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), the Colorado Supreme Court, interpreting constitutional language equivalent to the double emphasis of our own article III on separation of powers, held that a statute that attempted to give the courts power to reduce sentences after they had been imposed, was unconstitutional as an invasion of the executive power to grant commutations.

Summary of this case from State v. Hunter

In People v. Herrera (1973), 183 Colo. 155, 516 P.2d 626, the Supreme Court of Colorado unanimously struck down a statute which authorized postconviction review of sentences and allowed retroactive application of changed legal standards.

Summary of this case from State v. Morris

In People v. Herrera, 183 Colo. 155, 516 P.2d 626, the Supreme Court held that section 40-1-510(1)(f) of the newly adopted Colorado Criminal Code was unconstitutional with respect to judgments which were final on the effective date of the Act in that it encroached on the governor's exclusive power to grant commutation after conviction, thereby violating the doctrine of separation of powers embodied in Article III of the Colorado Constitution.

Summary of this case from People v. Mankowsky

In Herrera we held that once an appellant has exhausted his appellate remedy of appeal and his conviction has become final, the trial court is without jurisdiction to entertain a motion for post-conviction review of sentence.

Summary of this case from People v. Thomas

In People v. Herrera, 183 Colo. 155, 516 P.2d 626, this Court declared unconstitutional section 40-1-510(1)(f) as an invasion of the Governor's exclusive power to grant a commutation after conviction, as provided in Article IV, Section 7, of the Colorado Constitution, and also as a violation of the doctrine of separation of powers as embodied in Article III of the state constitution.

Summary of this case from People v. Arellano

In People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), when the General Assembly explicitly authorized courts to review sentences after a conviction became final, the supreme court invalidated the statute as a breach of the separation of powers doctrine.

Summary of this case from People v. Cali

In People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), a legislative enactment authorized the court to grant post-conviction relief where a significant change in the law subsequent to a petitioner's conviction or sentence had occurred.

Summary of this case from State v. Robinson
Case details for

People v. Herrera

Case Details

Full title:The People of the State of Colorado v. Manuel Herrera The People of the…

Court:Supreme Court of Colorado. En Banc

Date published: Oct 29, 1973

Citations

183 Colo. 155 (Colo. 1973)
516 P.2d 626

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