2013 COA 37
Colo. Ct. App.2013Background
- Torrez pled guilty to fourteen sex offenses, including five paired counts alleging crimes based on the same incidents.
- The trial court imposed consecutive sentences for each pair of counts.
- The defendant was sentenced under indeterminate terms as a sex offender under 18-1.3-1004(1)(a).
- The issue is whether 18-1.3-1004(5)(a) creates an exception to the general rule that counts based on identical evidence run concurrently.
- The majority holds the two counts in each pair were based on identical evidence and therefore must be concurrent; 1004(5)(a) does not create an exception to 408(8).
- As a remedy, the court reduces the aggregate sentence from 300 years to life to 192 years to life and remands to amend the mittimus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 18-1-3-1004(5)(a) create an exception to 408(8)? | People argues 1004(5)(a) overrides 408(8) as a sex-offender-specific provision. | Torrez contends 1004(5)(a) does not apply when evidence is identical. | No exception; 408(8) governs unless clear statutory exception exists. |
| Were the paired counts based on identical evidence? | People argues some counts arose from distinct acts. | Torrez asserts each pair rests on the same act and identical evidence. | The five pairs were based on identical evidence. |
| Did the trial court abuse its discretion in imposing the maximum sentence initially? | The court’s discretion allowed a maximum sentence given egregious acts. | Consecutive sentences for identical evidence were illegal under 408(8). | Yes; the consecutive sentences were illegal; must be concurrent. |
| Is the SOLSA/sex-offender regime constitutionally sound? | SOLSA survives as previously held in related cases. | Challenges SOLSA as violating due process and other rights. | SOLSA constitutional; issues rejected as previously resolved. |
Key Cases Cited
- Juhl v. People, 172 P.3d 896 (Colo. 2007) (concurrent sentences required when identical evidence)
- Melillo v. People, 25 P.3d 769 (Colo. 2001) (information sufficiency and doubling/merging of charges)
- Muckle v. People, 107 P.3d 380 (Colo. 2005) (identical evidence test for concurrent sentencing)
- Cordova v. People, 199 P.3d 1 (Colo. App. 2007) (crime of violence analogous reasoning for separate crimes)
- Jurado v. People, 80 P.3d 769 (Colo. App. 2001) (whether crimes are separate based on evidence)
- O'Shaughnessy v. People, 275 P.3d 687 (Colo. App. 2010) (crimes of violence and evidence-based separation)
- Wenzinger v. People, 155 P.3d 415 (Colo. App. 2006) (illegal sentence standard and statutory framework)