People v. Banks

Judge TURSI

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part.

Because People v. Milton, supra merely restated and followed People v. Curtis, supra, I am unpersuaded that Milton was an “intervening change in the law.” Therefore, I concur in Part I of the majority opinion.

For reasons set forth herein, I dissent to Part II of the majority opinion. Initially, I agree with the contention of the defendant and the assumption, arguendo, of the majority that the issue of sentencing violation pursuant to § 18-1-403(3), C.R.S. (1986 Repl. Vol. 8B), a distinct and different argument, is being put forth for the first time. Nor do I dispute that § 18-1-403 was available for review in the direct appeal.

However, by affirming an apparently valid challenge to an illegal sentence, we invite further Crim. P. 35(c) motions based on ineffective assistance of counsel and, therewith, a waste of judicial time and money. See People v. Page, 907 P.2d 624 (Colo.App.1995).

Therefore, I would either reverse and remand to the trial court to determine whether the consecutive sentences did, in fact, violate § 18-1-403(3) e.g. People v. Bastardo, 646 P.2d 382 (Colo.1982), or address defendant’s contention in Part II on its merits.