2013 COA 5
Colo. Ct. App.2013Background
- Act creates indeterminate sentencing for certain sex offenses with bottom end of years up to life.
- Questions concern bottom-end range for sex offenses that are crimes of violence and need for aggravating factors.
- Defendant William J. Hunsaker was convicted of sexual assault of a child (class four) and sexual assault of a child as part of a pattern of abuse (class three).
- First count received eight years to life; second count sixteen years to life.
- Postconviction court reduced both bottom ends to the presumptive-range maximums; appellate review addressed legality of bottom ends and need for aggravators.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bottom end above presumptive max for class three must prove aggravators? | Prosecution argues per se violence allows aggravated bottom end. | Hunsaker argues aggravators are required. | Bottom end above presumptive max allowed without extra aggravators. |
| Whether sexual assault on a child as pattern of abuse is a per se crime of violence? | Per se violence triggers 18-1.3-406 sentencing. | Not contested; relies on statutory interpretation. | Sexual assault on a child as part of a pattern is a per se crime of violence. |
| Is the bottom end of indeterminate sentence for sex offense in violence class between midpoint and twice max of presumptive range? | Bottom end mirrors determinate violence sentencing. | May require aggravating factors beyond midpoint. | Bottom end is between midpoint and twice the maximum, like non-sex offenses. |
| Was the original sixteen-years-to-life sentence legal and removable without affecting the other count? | Illegal bottom end on first count; seeks correction. | Correction does not mandate resentencing on second count. | Original sentence on class three was legal; remand to reinstate sixteen-to-life. |
Key Cases Cited
- Vensor v. People, 151 P.3d 1274 (Colo. 2007) (bottom end must be within/minimum to twice maximum presumptive range for class of felony; applies to violent offenses?)
- Tillery v. People, 231 P.3d 36 (Colo.App. 2009) (bottom end for sexual assault on a child as part of pattern of abuse between midpoint and twice presumptive max)
- People v. Simon, 266 P.3d 1099 (Colo. 2011) (affirmed Tillery; related to per se violence treatment for sex offenses)
- People v. Banks, 9 P.3d 1125 (Colo. 2000) (per se crime of violence sentencing provision guidance)
- Leyva v. People, 184 P.3d 48 (Colo. 2008) (illegal sentence on one count does not automatically invalidate entire sentence)
- Delgado v. People, 105 P.3d 634 (Colo. 2005) (remedial correction of excessive sentence)
- Abeyta v. People, 112 Colo. 49, 145 P.2d 884 (1944) (historical basis for correcting illegal sentences)