People v. Wiseman , 413 P.3d 233 ( 2017 )

COLORADO COURT OF APPEALS 2017COA49
Court of Appeals No. 14CA0339
Mesa County District Court No. 00CR907
Honorable Charles A. Buss, Judge
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David William Wiseman,
Defendant-Appellant.
SENTENCE VACATED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAILEY
J. Jones, J., concurs
Berger, J., specially concurs
Announced April 20, 2017
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
¶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
1 Wiseman had been charged in connection with yet another
incident (“the breast touching incident when Mom was present”),
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.
but the jury acquitted him of this charge and rejected it as a basis
for its pattern of abuse findings.
2
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
3
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
2 The relevant statutory language is the same as in the versions of
sections 18-3-405 and 18-3-405.3, C.R.S. 1999, that were in effect
in 1999 and 2000, when the offenses were alleged to have occurred.
4
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
5
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.
3The pattern of abuse enhancer could be applied to each of the
substantive counts without offending double jeopardy principles.
People v. Simon, 266 P.3d 1099, 1109-10 (Colo. 2011).
6
¶ 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 § 16-13-804(5)(a), C.R.S.
1999 (requiring that any sentence for a sex offense be served
consecutively to the sentences for any “additional crimes arising out
of the same incident as the sex offense”) (emphasis added).5
¶ 18 Here, Wiseman’s convictions were not supported by identical
evidence and arose out of different incidents. Under the
4This statute has since been repealed and reenacted at section 18-
1.3-406, C.R.S. 2016.
5This statute has since been repealed and reenacted at section 18-
1.3-1004, C.R.S. 2016.
7
circumstances, Wiseman was subject to concurrent or consecutive
sentencing, in the court’s discretion.
C. Remedy
¶ 19 Wiseman requests that the case be remanded for
reinstatement of the original judgment of conviction and sentences
entered in the case. In addition to the fact that separate sentences
could not be imposed on counts seven and eight (i.e., the pattern of
abuse sentence enhancement counts), however, it has come to our
attention that re-imposing determinate sentences6 here would be
“illegal.”
¶ 20 Citing People v. Gallegos, 764 P.2d 76 (Colo. 1988), Wiseman
asserts that we should not address the issue because the People
never objected to the determinate nature of either the original or
revised sentences and never filed a Crim. P. 35(a) motion attacking
the legality of a determinate sentence. In Gallegos, the People
challenged on appeal whether the trial court was required by
statute to sentence the defendant beyond the presumptive range
when the defendant was convicted of possession of contraband
6“Determinate” sentencing encompasses sentencing a person for a
specific, fixed period of time.
8
while in a correctional institution. The supreme court declined to
consider the merits of the People’s appeal because they had failed to
preserve the issue either by contemporaneously objecting at the
sentencing hearing or by requesting the trial court, pursuant to
Crim. P. 35(a), to correct an illegal sentence.
¶ 21 Subsequently, however, the supreme court recognized that
“[a]llegations that a particular sentence is void or illegal require
inquiry into the subject matter jurisdiction of the sentencing court
and may not be waived.” Downing v. People, 895 P.2d 1046, 1050
(Colo. 1995). To be sure, it was the defendant, not the People, who
was asserting the illegality of a sentence for the first time on appeal
in Downing. Id. But that does not matter. The prosecution too can
request a correction of an illegal sentence, People v. White, 179 P.3d
58, 61 (Colo. App. 2007), even (because the issue involves a kind of
jurisdictional defect) for the first time on appeal. See People v.
Anaya, 894 P.2d 28, 31 (Colo. App. 1994) (People may challenge an
illegal sentence for the first time on appeal); see Crim. P. 35(a) (“The
court may correct a sentence that was not authorized by law or that
9
was imposed without jurisdiction at any time . . . .”) (emphasis
added).7
¶ 22 Turning to the merits of the issue, an “illegal” sentence is one
that is “inconsistent with the statutory scheme outlined by the
legislature” or lying “within the range contemplated by statute
but . . . otherwise imposed in excess of the court’s subject matter
jurisdiction.” People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.
2006). “The legality of a sentence is a question of law that we
review de novo.” People v. Bassford, 2014 COA 15, ¶ 20.
Wiseman’s crimes were sex crimes committed after November 1,
1998, and, as such, they were punishable by indeterminate
sentencing under the Colorado Sex Offender Lifetime Supervision
Act of 1998 (SOLSA). See §§ 16-13-801 to -812, C.R.S. 1999.8
Under SOLSA, courts must sentence sex offenders to prison “for an
indeterminate term of at least the minimum of the presumptive
7 In People v. Wenzinger, 155 P.3d 415 (Colo. App. 2006), the
division recognized that the terminology presently found in Crim. P.
35(a) “merely codifie[d] case law defining ‘illegal sentence.’” Id. at
418.
8 SOLSA has since been repealed and reenacted at sections 18-1.3-
1001 to -1012, C.R.S. 2016.
10
range specified in section 18-1-105, C.R.S. [1999], for the level of
offense committed and a maximum of the sex offender’s natural
life.” § 16-13-804(1)(a), C.R.S. 1999.9
¶ 23 Consequently, under SOLSA, Wiseman had to be sentenced for
each conviction to an indeterminate sentence having a minimum
term of a certain number of years and a maximum term of life
imprisonment.
¶ 24 Because Wiseman’s original and revised sentences were both
illegal, a remand for the imposition of a “legal” indeterminate
sentence under SOLSA is required. See Bassford, ¶ 29.
9If the sex offender committed a sex offense that constitutes a
crime of violence, courts must sentence offenders to “at least the
midpoint in the presumptive range for the level of offense
committed.” § 16-13-804(1)(b), C.R.S. 1999 (now § 18-1.3-
1004(1)(b), C.R.S. 2016) (crime of violence sentencing for sex
offenders). In any event, the minimum term of a sentence imposed
under SOLSA may be as high as twice the maximum of the
presumptive range for the class of felony of which a defendant was
convicted. Vensor v. People, 151 P.3d 1274, 1279 (Colo. 2007).
Sexual assault on a child while in a position of trust as part of a
pattern of abuse is a per se crime of violence. Chavez v. People,
2015 CO 62, ¶ 16.
11
D. Wiseman’s Objections to Indeterminate Sentencing
¶ 25 Wiseman objects to the imposition of yet another (but this time
legal) sentence — particularly one that could expose him to the
potential of serving life in prison. More specifically, he asserts that
the imposition of an indeterminate sentence at this point, over
fifteen years after he was initially sentenced in the case, would
violate double jeopardy, due process, laches, speedy sentencing,
and cruel and unusual punishment principles. We disagree.
1. Double Jeopardy
¶ 26 “[D]ouble jeopardy does not bar the imposition of an increased
sentence if the defendant lacked a legitimate expectation of finality
in the sentence.” Romero v. People, 179 P.3d 984, 989 (Colo. 2007).
¶ 27 “A defendant can have no legitimate expectation of finality in a
sentence that, by statute, is subject to further review and revision.”
People v. Castellano, 209 P.3d 1208, 1209 (Colo. App. 2009)
(alteration omitted) (quoting People v. Chavez, 32 P.3d 613, 614
(Colo. App. 2001)).
¶ 28 Because an illegal sentence is correctable “at any time,” Crim.
P. 35(a), and “every person is generally presumed to know the law,”
People v. Hayward, 55 P.3d 803, 806 (Colo. App. 2002), Wiseman
12
could have had no legitimate expectation of finality in his illegal
sentence. See Jones v. Thomas, 491 U.S. 376, 395 (1989) (“[T]he
defendant could not argue that his legitimate expectation of finality
in the original sentence had been violated, because he was charged
with knowledge that the court lacked statutory authority to impose
the subminimum sentence in the first instance.”); United States v.
Rourke, 984 F.2d 1063, 1066 & n.3 (10th Cir. 1992) (a defendant
never has a legitimate expectation of finality in an illegal sentence
because it is always subject to modification); United States v. Kane,
876 F.2d 734, 737 (9th Cir. 1989) (“Generally, a defendant can
acquire no expectation of finality in an illegal sentence . . . If such
illegality exists, a defendant is charged with knowledge that it can
be corrected under Fed. R. Crim. P. 35.”) (citations omitted).
¶ 29 Because Wiseman was put on notice by the statute that his
offense would be subject to an indeterminate sentence, he lacked a
legitimate expectation of finality in his original sentence. Thus,
correcting the illegal sentence to reflect that it is indeterminate does
not violate double jeopardy principles. See Bassford, ¶ 29 (“Where
an illegal sentence had been imposed, a legal sentence generally
13
may be imposed in its stead without running afoul of double
jeopardy.”).
¶ 30 In so concluding, we necessarily reject, as misplaced,
Wiseman’s reliance on Commonwealth v. Selavka, 14 N.E.3d 933(Mass. 2014), for a contrary result. In Selavka, the Massachusetts
Supreme Judicial Court held that a year-long delay in imposing a
statutorily required GPS-monitoring condition of probation violated
double jeopardy principles. The court based its decision, however,
largely on (1) due process “delay” principles articulated in two
federal cases; and (2) its conclusion that a sentence should be
considered final and not subject to change, consistent with a rule of
criminal procedure, sixty days after sentencing. As we explain in
the next section, the rationale of the two federal cases — Breest v.
Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978), and United States v.
Lundien, 769 F.2d 981 (4th Cir. 1985) — has been undermined by
subsequent case law. And our rules impose no time limit within
which either the defendant or the prosecution may challenge an
illegal sentence.
14
2. Due Process
¶ 31 Wiseman also argues that substantive due process bars his
resentencing. To support his due process claim, he relies
principally on the decisions of the First and Fourth Circuit Courts
of Appeals in Breest, 579 F.2d at 101 (“[T]he power of a sentencing
court to correct even a statutorily invalid sentence must be subject
to some temporal limit. . . . After a substantial period of time, . . . it
might be fundamentally unfair, and thus violative of due process for
a court to alter even an illegal sentence in a way which frustrates a
prisoner’s expectations by postponing his parole eligibility or release
date far beyond that originally set.”); Lundien, 769 F.2d at 987 (an
enforceable expectation of finality can “crystallize[]” after enough
time, even in an illegal sentence); and DeWitt v. Ventetoulo, 6 F.3d
32, 34 (1st Cir. 1993) (“[D]ue process must impose some outer limit
on the power to revise sentences upward after the fact.”).
¶ 32 Wiseman’s reliance on those cases, however, is misplaced:
All of those opinions pre-date, and none of
them apply, the substantive due process
analysis laid out in [Washington v. Glucksberg,
521 U.S. 702 (1997),] and [County of
Sacramento v. Lewis, 523 U.S. 833 (1998)]. All
of those opinions discuss due process only in a
general sense. And that discussion appears
15
only as dicta mere speculation in Breest and
Lundien. The First Circuit found a due
process violation in DeWitt, but on facts so
unusual and with no relevance to defendant’s
situation here that it concluded, “[i]n sum, this
case is the very rare exception to the general
rule that courts can after sentence, revise
sentences upward to correct errors.”
Therefore, none of the opinions which
defendant cites support his underlying
contention that his asserted liberty interest is
specially protected under the Due Process
Clause.
People v. Thompson, 880 N.Y.S.2d 875, 2009 WL 348370, at *7 (N.Y.
Sup. Ct. 2009) (unpublished table decision) (citations and footnotes
omitted); see Hawkins v. Freeman, 195 F.3d 732, 748-49 (4th Cir.
1999) (en banc) (declining to follow either Lundien or DeWitt, both of
which had relied on Breest, and noting that a right based on a
claimant’s “‘crystallized expectations’ . . . has been specifically
rejected by the Supreme Court as a source of substantive due
process right in related contexts”); People v. Lingle, 949 N.E.2d 952,
957 (N.Y. 2011) (Breest, Lundien, and DeWitt “generally apply a
multi-factor test to determine when a defendant’s expectation that
his sentence will remain unchanged has ‘crystallized’ such that
resentencing would offend substantive due process. But
subsequent decisions by the very same courts have largely
16
abandoned the multi-factor test in favor of a ‘shocks the conscience’
standard.”) (citations omitted); see also Littlefield v. Caton, 856 F.2d
344, 348 (1st Cir. 1988) (“While we do not minimize the strain
which accompanies a prisoner’s dashed expectations in
circumstances like these, particularly when the string is played out
over a long period of years, we have made clear that misdirection of
this sort must ‘involve[] prejudice and harm beyond frustrated
expectations’ to be constitutionally redressable.”) (alteration in
original) (citation omitted); Beliles v. State, 663 N.E.2d 1168, 1172
(Ind. Ct. App. 1996) (“[A] prisoner’s due process rights are not
violated merely by the dashed hopes attendant in the correction of a
sentence which delays the prisoner’s expected release date.”).
¶ 33 Because Wiseman has no fundamental right to avoid serving a
lawful sentence of which he should have been aware, and because it
was an executive agency (i.e., the DOC) that sought resentencing,
the standard for assessing a substantive due process claim is
whether the governmental action was “so egregious, so outrageous,
17
that it may fairly be said to shock the contemporary conscience.”
Lewis, 523 U.S. at 847 n.8.10
¶ 34 In applying this standard, we find the First Circuit Court of
Appeals’ decision in Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st
Cir. 2010), instructive. In that case, the court noted that “[t]he
shock-the-conscience test is an extremely demanding one, and
challenges analyzed under it rarely succeed.” Id. at 885. The
Commonwealth of Puerto Rico had erroneously admitted some of its
prisoners into an electronic supervision program (ESP). Id. at 871.
When, a decade later, it re-evaluated its position and realized that it
had erred, it attempted to reincarcerate the affected individuals —
many of whom “had spent multiple years (some as many as five)
living in their homes rather than behind prison walls” and were
without any “reason to doubt that that arrangement would be
permanent so long as they abided by the terms of the program.” Id.10 Citing a concurring opinion in Betterman v. Montana, 578 U.S.
___, ___, 136 S. Ct. 1609, 1619 (2016) (Sotomayor, J., concurring),
Wiseman insists that the due process test for delayed sentencing is,
indeed, the four-part test from Barker v. Wingo, 407 U.S. 514(1972), which is used to determine Sixth Amendment speedy trial
claims. A majority of the Court has, however, not adopted that test,
and the federal circuit courts of appeal have not applied it in this
context.
18
at 881-82. According to those individuals, they “were blindsided by
the new administration’s about-face” view of the law. Id. at 882.
¶ 35 The court recognized that “[t]he impact of reincarceration on
the [individuals was], of course, substantial. By waiting until 2005,
the Commonwealth did more than squash a mere expectation of
liberty. It set about actually undoing the liberty itself.” Id.
¶ 36 But, the court recognized, “[t]he Commonwealth’s executive
branch necessarily has a fundamental interest in fidelity to
legislative directives” and “an interest in avoiding ‘the precedential
risk of acquiescing in irregular enforcement of state law.’” Id. at
882-83 (quoting Hawkins, 195 F.3d at 746). And “there [was] no
doubt as to the thoroughness of Puerto Rico’s plans to reimprison
every individual participating in the ESP in violation of Law 49.
Puerto Rico is engaging in precisely the sort of wide-scale efforts
that we emphasized were lacking in DeWitt.” Id. at 884.
¶ 37 The court could “take no issue with the district court’s rebuke
of the Commonwealth for cavalierly disregarding the [affected
individuals’] dignity.” Id. at 885. Nonetheless, given the
Commonwealth’s countervailing interests, the decision to
19
reimprison the individuals following their time participating in ESP
did not shock the conscience of the court. Id. at 884.
¶ 38 The State of Colorado has the same legitimate interests at
stake here as were identified in Gonzalez-Fuentes: the correct
application of its laws and avoiding the precedential risk of irregular
enforcement of its laws.11 And the record reflects that Wiseman’s
case was brought to the court’s attention in 2013 as part of a DOC
11 These were important interests in enacting SOLSA:
The general assembly hereby finds that the
majority of persons who commit sex offenses, if
incarcerated or supervised without treatment,
will continue to present a danger to the public
when released from incarceration and
supervision. The general assembly also finds
that keeping all sex offenders in lifetime
incarceration imposes an unacceptably high
cost in both state dollars and loss of human
potential. The general assembly further finds
that some sex offenders respond well to
treatment and can function as safe,
responsible, and contributing members of
society, so long as they receive treatment and
supervision. The general assembly therefore
declares that a program under which sex
offenders may receive treatment and
supervision for the rest of their lives, if
necessary, is necessary for the safety, health,
and welfare of the state.
§ 16-13-801, C.R.S. 1999 (repealed and reenacted at section 18-
1.3-1001, C.R.S. 2016).
20
and State Court Administrator’s Office initiative to identify
individuals with potentially illegal concurrent sentences when
consecutive sentences were mandated by statute.
¶ 39 The case is, in our view, resolved on the same grounds as
those in Gonzalez-Fuentes:
[S]ubstantive due process is not “a font of tort
law,” and limits executive action only when
that action “was infected or driven by
something much worse — more blameworthy
— than mere negligence, or lack of proper
compassion, or sense of fairness, or than
might invoke common law principles of
estoppel or fair criminal procedure to hold the
state to its error.” Because that condition has
not been met for [Wiseman], [his] substantive
due process claim must fail.
Id. at 885-86 (first quoting Lewis, 523 U.S. at 847 n.8; then quoting
Hawkins, 195 F.3d at 746); see also, e.g., Evans v. Sec’y Pa. Dep’t of
Corr., 645 F.3d 650, 661 (3d Cir. 2011) (an individual’s deep
disappointment in belatedly learning of the upward correction “is
certainly regrettable, but that does not make the correction
conscience-shocking”).
21
3. Laches
¶ 40 Wiseman contends that the application of the doctrine of
laches bars resentencing him to an indeterminate sentence fifteen
years after he was originally sentenced in the case. We disagree.
¶ 41 “Laches is an equitable doctrine that may be asserted as a
defense when a party’s unconscionable delay in enforcing its rights
has prejudiced the party against whom relief is sought.” White, 179
P.3d at 61. No case in Colorado, however, has held that the
doctrine of laches applies in the context of a Crim. P. 35(a) motion
to correct an illegal sentence.
¶ 42 The Alaska Court of Appeals, while sympathetic to a
defendant’s plight in this situation, nonetheless rejected the
applicability of the doctrine in this context:
A defendant’s rehabilitation requires, inter alia,
that he accept the court’s sentence.
Subsequent tampering with that sentence,
however justified legally, may leave the
defendant with an understandable sense of
unfairness, jeopardizing rehabilitative efforts.
We believe however, that on balance,
correction of [the defendant’s] sentence even
though delayed, must be allowed in order to
carry out the legislative purpose in
establishing minimum sentences and to
preclude other defendants from asserting a
vested right in an illegal sentence. Defendants
22
and their counsel should not be encouraged to
remain silent while judges and prosecutors
negligently cooperate in the imposition of an
illegal sentence. In order to ensure that the
law will be carried out, and that judicial
negligence will not result in disparate and
unequal sentencing, we exercise our authority
and hold that the sentence imposed upon [the
defendant] was illegal.
State v. Price, 715 P.2d 1183, 1186 (Alaska Ct. App. 1986).
¶ 43 The Tenth Circuit Court of Appeals has also rejected the
applicability of the doctrine in this context:
To follow the argument of the defendants
would be to affirm the imposition of illegal
sentences and to violate our duty to correct
illegal sentences whenever that illegality is
discovered by the court.
A trial court may correct an invalid sentence
which is in itself a nullity at any time. The fact
that the government may fail to exert due
diligence in presenting this issue to the trial
court may not prevent the trial court from
fulfilling its judicial obligations. The doctrine
of laches is an equitable remedy which is
applied to promote justice. Needless to say,
justice is not fostered by preventing the court
from correcting an illegal sentence. We hold,
therefore, that the doctrine of laches is
inapplicable.
United States v. Romero, 642 F.2d 392, 396 (10th Cir. 1981)
(citations omitted); see, e.g., Greco v. State, 48 A.3d 816, 831 (Md.
23
2012) (A laches argument “is not available in the context of a
motion to correct an illegal sentence because an illegal sentence can
be corrected ‘at any time.’”) (citation omitted); Ferguson v. State, 381
P.3d 611, 2012 WL 4801641, at *1 n.3 (Nev. 2012) (unpublished
table decision) (“[T]he district court erroneously denied the motion
as procedurally barred pursuant to laches. To the extent that the
motion was a motion to modify or correct an illegal sentence, laches
does not apply.”).
¶ 44 Persuaded by these authorities, we conclude that the doctrine
of laches would not bar the imposition of a legal, indeterminate
sentence at this point.
4. Speedy Sentencing
¶ 45 We find unpersuasive Wiseman’s contention that resentencing
him to an indeterminate sentence now would violate a
constitutional right to speedy sentencing and Crim. P. 32(b).
¶ 46 Wiseman had initially advanced the argument that
resentencing him now would violate a federal constitutional right to
speedy sentencing. But he has since retracted the argument, in
light of Betterman v. Montana, 578 U.S. ___, 136 S. Ct. 1609 (2016),
which rejected the existence of such a federal constitutional right.
24
¶ 47 We decline Wiseman’s invitation to recognize a separate state
constitutional right to speedy sentencing arising out of our state
speedy trial guarantee. See Colo. Const. art. II, § 16. No such
separate right has been identified by either the supreme court or
this court. And, “[i]n the past, [the supreme court has] generally
declined to construe the state constitution as imposing . . . greater
restrictions [than the Federal Constitution] in the absence of textual
differences or some local circumstance or historical justification for
doing so.” Curious Theatre Co. v. Colo. Dep’t of Pub. Health & Env’t,
220 P.3d 544, 551 (Colo. 2009).
¶ 48 Wiseman presents no argument why the state constitutional
provision should be interpreted differently from its federal
constitutional counterpart. Consequently, we decline to address
the assertion. See People v. Mendoza, 313 P.3d 637, 645 (Colo.
App. 2011) (“[The defendant] does not support his assertion with
any meaningful argument. Consequently, we do not address it.”);
People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to
address arguments presented in a “perfunctory or conclusory
manner”); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“[I]ssues adverted to in a perfunctory manner,
25
unaccompanied by some effort at developed argumentation, are
deemed waived.”).
¶ 49 Finally, we perceive no basis upon which Wiseman may assert
a violation of Crim. P. 32(b). That provision requires that
“[s]entence shall be imposed without unreasonable delay.”
Wiseman was resentenced immediately after the district court
vacated his prior sentence, and we cannot presume that he would
be subjected to unreasonable delay following a remand from this
court for resentencing.
5. Cruel and Unusual Punishment
¶ 50 Finally, we disagree with Wiseman that the imposition of a
legal, indeterminate sentence at this point would constitute cruel
and unusual punishment within the meaning of the Eighth
Amendment to the United States Constitution.
¶ 51 Ordinarily, the imposition of an indeterminate sentence for a
sex crime does not constitute cruel and unusual punishment. E.g.,
Torrez, ¶ 88; People v. Dash, 104 P.3d 286, 293 (Colo. App. 2004).
But, Wiseman says:
Imposing indeterminate life sentences . . . and
requiring [Wiseman] to essentially start over in
terms of the requirements necessary for
26
release on parole, after already having served
[sixteen] years in DOC, and where he would
have completed serving the determinate
sentences originally imposed and been
released into the community, would be
unnecessarily cruel and barbaric. Arbitrarily
and unnecessarily inflicting such psychological
and emotional damage upon a criminal
defendant, due to the negligence of the
prosecution and court system in imposing or
correcting his sentence at a much earlier date,
constitutes unnecessary cruel and unusual
punishment.
¶ 52 For two reasons, we are not persuaded. First, Wiseman’s
premise that he had an expectation that he would be immediately
released on parole is wrong. He appears to view his initial sentence
as having been for only sixteen years. But that figure is based on
the sentence reflected on the initial mittimus, and it assumes, of
course, that the mittimus’s silence with respect to counts seven and
eight would require concurrent sentencing on those counts.
However, “[w]hat the judge says in sentencing a defendant takes
precedence over the written judgment.” United States v. Cephus,
684 F.3d 703, 709 (7th Cir. 2012); accord People v. Rockne, 2012
COA 198, ¶ 23 (resolving any conflict in the record regarding
sentencing in favor of the court’s oral pronouncement); People v.
Young, 894 P.2d 19, 20 (Colo. App. 1994) (directing court to correct
27
mittimus consistent with its earlier oral ruling). What the court
said at the 2002 sentencing produced an aggregate sentence of
twenty-nine years. Whether assessed from 2013 (when he was
resentenced) or even now, Wiseman had and has a considerable
amount of time yet to serve before he could enjoy an “unqualified”
right to immediate release on parole under his initial sentence.
¶ 53 Second, a cruel and unusual punishment claim cannot be
predicated on the negligence of executive agencies or the court
system in failing to impose or correct a sentence at a much earlier
date. Farmer v. Brennan, 511 U.S. 825, 835, 838 (1994).
¶ 54 Consequently, Wiseman is not entitled to relief on this ground.
III. Conclusion
¶ 55 We vacate the sentence imposed by the district court and
remand with instructions to resentence Wiseman to a legal,
indeterminate sentence under SOLSA consistent with the views
expressed in this opinion.
JUDGE J. JONES concurs.
JUDGE BERGER specially concurs.
28
JUDGE BERGER, specially concurring.
¶ 56 The court’s rejection of Wiseman’s double jeopardy, speedy
sentencing, and Eighth Amendment claims is fully supported and
required by controlling precedent. I also agree that the Supreme
Court’s modern substantive due process jurisprudence requires us
to reject Wiseman’s substantive due process claim. See Cty. of
Sacramento v. Lewis, 523 U.S. 833 (1998); Washington v.
Glucksberg, 521 U.S. 702 (1997).
¶ 57 The court’s opinion correctly notes that these Supreme Court
cases cast serious doubt on the continued validity of earlier
decisions by the Fourth Circuit in United States v. Lundien, 769
F.2d 981 (4th Cir. 1985), and by the First Circuit in Breest v.
Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978), and DeWitt v.
Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993), cases relied on by
Wiseman.
¶ 58 I write separately, however, to express my view that neither
Glucksberg nor Lewis categorically precludes a successful
substantive due process claim when a prisoner is erroneously
released from custody and then later is reincarcerated when the
error is discovered.
29
¶ 59 Years after the Supreme Court’s cases that redefined and
limited substantive due process claims, a division of this court
recognized that “a defendant may have developed an expectation of
finality regarding the sentence or a portion thereof.” People v.
Bassford, 2014 COA 15, ¶ 33;1 cf. People v. Castellano, 209 P.3d
1208, 1209-10 (Colo. App. 2009) (addressing an expectation of
finality in a sentence but noting that “[a] defendant can have no
legitimate expectation of finality in a sentence that, by statute, is
subject to further review and revision”) (alteration in original)
(citation omitted).
¶ 60 Other courts also have concluded, post Glucksberg and Lewis,
that such an expectation of finality might require enforcement of a
previously imposed, yet unlawful, sentence. In United States v.
Watkins, 147 F.3d 1294, 1298 n.5 (11th Cir. 1998), the Eleventh
Circuit stated: “We are mindful that a defendant’s due process
rights may be violated ‘when a sentence is enhanced after the
defendant has served so much of his sentence that his expectations
1 Although People v. Bassford, 2014 COA 15, ¶ 50 n.6, recognized
such an expectation of finality, because the argument was not
properly developed in that case, the division did not further analyze
either those expectations or when or how the expectations would be
entitled to enforcement.
30
as to its finality have crystallized and it would be fundamentally
unfair to defeat them.’” (Citation omitted.) See also Hawkins v.
Freeman, 195 F.3d 732, 751 (4th Cir. 1999) (Murnaghan, J.,
dissenting); United States v. Davis, 112 F.3d 118, 123 (3d Cir.
1997); United States v. Tolson, 935 F. Supp. 17, 21 (D.D.C. 1996).
¶ 61 A substantive due process claim for enforcement of an
original, but unlawful, sentence is strongest when the defendant
has been released from custody and has spent a substantial
amount of time at liberty. See Freeman, 195 F.3d at 751(Murnaghan, J., dissenting). Because by definition no
reincarceration results when a defendant is resentenced while still
in custody, I agree with the court that it is virtually impossible to
meet the “shocks the conscience” test prescribed by the Supreme
Court in Lewis, 523 U.S. at 847 n.8, when an illegal sentence is
corrected while the defendant remains in custody.
¶ 62 Wiseman was never released from custody. He was sentenced
in 2002 and he has remained in state custody since that date.
Though his expectations (which for these purposes I assume are
bona fide) of a determinate sentence will be seriously frustrated by
the imposition of an indeterminate sentence under the Colorado Sex
31
Offender Lifetime Supervision Act of 1998 (SOLSA), his situation is
different in kind from that of a prisoner who is erroneously released
from custody and spends a substantial amount of time at liberty. I
agree with the court that given the enhanced requirements for a
substantive due process claim, Wiseman cannot establish a
substantive due process violation.
¶ 63 But, depending upon the particular facts, I would not
categorically reject a substantive due process claim by a released
prisoner who is later reincarcerated. Depending on the facts, an
executive branch decision to seek reincarceration may meet the
stringent requirements of the “shock the conscience” test and
require enforcement of an otherwise illegal sentence originally
imposed.
32