People v. Wiseman
2017 COA 49
Colo. Ct. App.2017Background
- Wiseman was convicted at jury trial (2001) of two substantive counts of sexual assault on a child under 15 by one in a position of trust (the “lotion” and “condom” incidents) and two pattern-of-abuse counts the jury identified using those same two incidents as predicates.
- At the 2002 sentencing hearing the court orally pronounced sentences totaling 29 years (with specified concurrency/consecutivity), but the mittimus/minute order reflected a different determinate sentence and omitted some concurrency details.
- In 2013, at the DOC’s request, the district court concluded consecutive sentences were statutorily required and issued an amended mittimus that increased Wiseman’s aggregate sentence to 46 years; the court denied his motion to reconsider.
- On appeal the court considered (1) whether the pattern-of-abuse counts were separate offenses or mere sentence enhancers, (2) whether consecutive sentences were mandatory, and (3) whether both the original and revised determinate sentences were illegal because SOLSA required indeterminate sentencing for the sex offenses at issue.
- The Court of Appeals held the pattern counts were only sentence enhancers (so only two convictions/sentences could validly be entered), concluded consecutive sentencing was discretionary (not mandated here), but determined both prior determinate sentences were illegal under the Colorado Sex Offender Lifetime Supervision Act (SOLSA) and remanded for lawful indeterminate sentences.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Wiseman) | Held |
|---|---|---|---|
| Whether pattern-of-abuse counts (7 & 8) were separate crimes or only sentence enhancers | Counts 7 and 8 supported separate convictions/sentences | Pattern counts merely enhanced punishment for the substantive lotion and condom counts | Pattern counts were only sentence enhancers; only two convictions/sentences could be entered |
| Whether consecutive sentences were statutorily required | Consecutive terms were required by statute as the court later found | At most two convictions; court had discretion whether to run sentences concurrent or consecutive | Consecutive sentencing was not required; court had sentencing discretion because convictions did not arise from identical evidence |
| Whether the original and amended determinate sentences were legal | Original mittimus/sentence reflected determinate terms; court corrected sentencing to conform with law | Resentencing now to indeterminate SOLSA terms violates finality and other protections | Both original and revised determinate sentences were illegal under SOLSA; remand for legal indeterminate sentences under SOLSA required |
| Whether resentencing to indeterminate SOLSA terms violates constitutional or equitable protections (double jeopardy, due process, laches, speedy sentencing, Eighth Amendment) | Correction to a legal sentence is permissible; public interest in correct application of law supports resentencing | Resentencing after 11+ years violates double jeopardy, due process, laches, speedy sentencing, and is cruel and unusual | All constitutional and equitable challenges rejected: no double jeopardy, no substantive due process violation (no shock-the-conscience), laches inapplicable to correcting illegal sentences, no separate speedy-sentencing right, Eighth Amendment claim rejected |
Key Cases Cited
- People v. Simon, 266 P.3d 1099 (Colo. 2011) (pattern-of-abuse provisions are sentence enhancers, not separate course-of-conduct offenses)
- Juhl v. People, 172 P.3d 896 (Colo. 2007) (concurrent sentences required where offenses are supported by identical evidence)
- People v. Gallegos, 764 P.2d 76 (Colo. 1988) (issue-preservation principles at sentencing)
- Downing v. People, 895 P.2d 1046 (Colo. 1995) (illegal sentence challenges implicate jurisdiction and may not be waived)
- People v. Wenzinger, 155 P.3d 415 (Colo. App. 2006) (definition and review of illegal sentence)
- Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010) (shock-the-conscience standard for late corrections and reincarceration)
- Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978) (older authority suggesting temporal limits on upward corrections)
- United States v. Lundien, 769 F.2d 981 (4th Cir. 1985) (older authority on crystallized expectations doctrine)
- United States v. Romero, 642 F.2d 392 (10th Cir. 1981) (laches inapplicable to correction of illegal sentences)