19CA2242 Peo v Sandbom 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA2242
Adams County District Court No. 86CR1171
Honorable Mark D. Warner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Richard Charles Sandbom, Jr.,
Defendant-Appellant.
ORDER AFFIRMED
Division I
Opinion by JUDGE FOX
Schutz and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Ellen Michaels, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Richard Charles Sandbom, Jr., Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021
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¶ 1 Richard Charles Sandbom, Jr., appeals the denial of his Crim.
P. 35(a) motion to correct an illegal sentence. We affirm.
I. Background
¶ 2 In 1986 Sandbom pleaded guilty to escape, then a class 4
felony, in case number 86CR1171.
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§§ 18-8-208, 18-1-105(1)(a)(IV),
C.R.S. 1986. He also entered guilty pleas to aggravated robbery in
two other cases predating his escape (86CR371 and 86CR475).
¶ 3 In 1987, the district court sentenced Sandbom to sixteen years
in the Department of Corrections’ custody for his escape
(86CR1171) and ordered the sentence to run consecutive to the
other sentences for the two aggravated robberies.
¶ 4 Sandbom filed several motions for postconviction relief after
sentencing. The court denied each motion.
¶ 5 In 2019, Sandbom filed a Crim. P. 35(a) motion asking the
court to correct his allegedly illegal sentence. The postconviction
court appointed counsel for Sandbom and counsel supplemented
the 2019 motion, adding that the law that applied at sentencing
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The criminal code was revised in 2002.
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prohibited the court from aggravating an escape sentence based on
his in-custody status.
¶ 6 The prosecution did not dispute that an escape conviction
could not be aggravated based on a defendant’s custody when the
escape occurred. Instead, the prosecution countered that the
record disclosed that Sandbom’s in-custody status was not the
basis for the sentencing court’s actions. The postconviction court
agreed and denied Sandbom’s motion.
¶ 7 Sandbom now appeals the postconviction court’s ruling on his
Crim. P. 35(a) motion.
II. Standard of Review and Applicable Law
¶ 8 Crim. P. 35(a) provides that “[t]he court may correct a
sentence that was not authorized by law . . . at any time.” “[A]n
illegal sentence is one that is inconsistent with the terms specified
by statutes.” People v. Green, 36 P.3d 125, 126 (Colo. App. 2001).
We review the legality of a sentence de novo. People v. Bassford,
(“When a sentence is illegal, it may be corrected at any time, even if
challenged for the first time on appeal.”) (cert. granted May 24,
2021).
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¶ 9 A court is required to deny any claim that was, or could have
been, raised and resolved in a prior appeal or postconviction
proceeding on behalf of the same defendant. Crim. P. 35(c)(3)(VI)-
(VII).
III. Analysis
¶ 10 The postconviction court correctly denied Sandbom’s Crim. P.
35(a) claim that the aggravation of his escape sentence was
inconsistent with applicable law.
¶ 11 Sandbom claims, the prosecution agrees, and the
postconviction court recognized that being in confinement was not a
mandatory aggravator for the crime of escape. People v. Russell,
People v. Sanchez, 769 P.2d 1064 (Colo. 1989). The parties also
agree that Sandbom’s sentence was aggravated — he was given a
sixteen-year sentence when the sentencing range at the time of his
escape offense was four to eight years. See § 18-1-105(1)(a)(IV),
C.R.S. 1986. The parties diverge, however, on whether the record
substantiates Sandbom’s claim that the sentencing court
aggravated his felony escape charge based on his confinement. The
postconviction court agreed with the prosecution that the record
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shows that (1) Sandbom had at least one other felony conviction
(86CR475, aggravated robbery) when he was sentenced for the
escape, and (2) the felony could legally form the basis for the
aggravated sentence. See § 18-1-105(6), (9), C.R.S. 1986.
¶ 12 Despite Sandbom’s claims to the contrary, his in-custody
status was not the only basis for the sentencing court’s aggravation
of his escape sentence. The record shows that multiple felonies
predated his escape, which allowed the sentencing court to
aggravate Sandbom’s escape sentence. See § 18-1-105(9), C.R.S.
1986 (listing aggravators). Without the benefit of the sentencing
transcript, we cannot know what felony the sentencing court relied
upon. Even so, Sandbom’s aggravated robbery (86CR475), charged
as a crime of violence, was sufficient to allow aggravation under the
applicable statutory scheme. See §§ 18-1-105(9)(a)(IV) (defendant
having been charged with another felony, and later convicted of the
same, is an aggravating circumstance), 18-4-302 (aggravated
robbery, a class 3 felony), C.R.S. 1986.
¶ 13 Regardless, Sandbom’s claim is successive because it could
have been raised in his prior motions for postconviction relief. See
People v. Vondra, 240 P.3d 493, 494 (Colo. App. 2010) (applying
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Crim. P. 35(c)(3)(VII) on appeal to preclude a successive claim even
though the postconviction court did not rely on that provision); see
also Crim. P. 35(c)(2)(I), (III) (a defendant may seek postconviction
review of his or her conviction on the grounds that the conviction
was obtained in violation of the constitution or laws of the United
States or Colorado). Sandbom relies on People v. Andrews, 871
P.2d 1199, 1203 (Colo. 1994), and Russell in support of his claim.
But Andrews relies on Russell, a 1985 case that predates
Sandbom’s plea and sentence. There is therefore no reason he
could not have asserted the claim earlier.
¶ 14 Given our disposition, we need not address the prosecution’s
suggestion that Sandbom’s claims are barred by the doctrine of
laches.
IV. Conclusion
¶ 15 The postconviction court’s order is affirmed.
JUDGE SCHUTZ and JUDGE GRAHAM concur.
