2014 COA 15
Colo. Ct. App.2014Background
- Bassford was convicted after a jury trial of multiple counts including a Colorado Organized Crime Control Act (COCCA) violation, securities fraud, felony theft, and related counts; one forgery conviction was later vacated on appeal.
- The trial court imposed an 18-year DOC term on the COCCA count, suspended 10 years on condition that Bassford serve 12 years of probation after release (effectively intending 8 years DOC then 12 years probation); other counts were concurrent or consecutive producing an aggregate plan of 12 years DOC then 12 years probation.
- After ~5 years in DOC custody Bassford was in community corrections and sought to delay probation supervision until completion of parole; the People responded by asserting the original sentence was illegal and asking the court to remove the suspension (i.e., require the full 22 years in DOC).
- The district court did not rule explicitly that the original sentence was illegal but, invoking Crim. P. 35(b), vacated the original sentence and resentenced Bassford to 22 years DOC (then suspended the entire DOC term and imposed 12 years probation, giving credit for time served).
- On appeal the court of appeals held the district court erred in using Crim. P. 35(b) (which authorizes only reduction), concluded the original sentence was illegal because the court lacked statutory authority to suspend a DOC term and impose probation to follow that suspended period, and vacated the new sentence and remanded for resentencing.
Issues
| Issue | People’s Argument | Bassford’s Argument | Held |
|---|---|---|---|
| Was Crim. P. 35(b) a proper vehicle to correct the sentence? | The court could modify sentence under Crim. P. 35(b) to reflect trial-court intent. | Crim. P. 35(b) was not proper because the court did not reduce the sentence. | Court: Crim. P. 35(b) authorizes reduction only; district court erred in using it to correct an illegal sentence. |
| Was the original sentence legal (suspending DOC time conditioned on post-release probation)? | The People initially argued the sentence was illegal and sought imposition of the full DOC terms. | Bassford argued the sentence was illegal but asked the court to simply remove the probation requirement while leaving the suspended DOC time. | Court: Original sentence was illegal — a court cannot suspend a DOC term and impose probation to begin after that suspended period. |
| If sentence is illegal, is the appropriate remedy to lop off the illegal portion or to resentence? | People favored declaring sentence illegal and imposing full DOC time; they opposed Bassford’s limited lopping. | Bassford asked to delete the probation condition (lopping) and keep the suspended DOC term. | Court: Under Colorado precedent an illegal sentence renders the complete sentence void; remand for resentencing is the appropriate remedy here rather than simply lopping. |
| May resentencing consider time already served and finality concerns? | The People argued reformation was proper; court may consider entire sentencing scheme on remand. | Bassford raised expectation-of-finality and credit for time served to limit a harsher outcome. | Court: Time served and finality concerns are relevant but do not preclude resentencing; on remand the court must account for these concerns and parties may appeal. |
Key Cases Cited
- Downing v. People, 895 P.2d 1046 (Colo. 1995) (Crim. P. 35(b) authorizes reduction of sentence; not a vehicle to increase or restructure sentences)
- Delgado v. People, 105 P.3d 634 (Colo. 2005) (if any aspect of a sentence is inconsistent with statute, the entire sentence is illegal)
- Flenniken v. People, 749 P.2d 395 (Colo. 1988) (sentence combining probation with suspended imprisonment is illegal and requires resentencing)
- People v. District Court, 673 P.2d 991 (Colo. 1983) (court may not impose a sentence inconsistent with statutory sentencing scheme; probation cannot replace an otherwise statutorily prescribed term of imprisonment)
- Abeyta v. People, 145 P.2d 884 (Colo. 1944) (appellate lopping of an excessive prison term to statutory maximum is an available remedy)