Williаm MAMULA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 91SC801.
Supreme Court of Colorado, En Banc.
March 8, 1993.
847 P.2d 1135
Donald E. Mielke, Dist. Atty., Donna Skinner Reed, Chief Appellate Deputy Dist. Atty., Golden, for respondent.
H. Patrick Furman, Boulder, Thomas Cross, Denver, for amicus curiae Colorado Bar Ass‘n.
Chief Justice ROVIRA delivered the Opinion of the Court.
We granted certiorari to consider the court of appeals opinion in People v. Mamula, No. 90CA2013 (Colo.App. Sept. 12, 1991) (not selected for official publication), holding that petitioner abandoned his reduction of sentence motion pursuant to
I
Petitioner was charged with six felonies and one misdemeanor. On August 22, 1988, he pleaded guilty to three counts of second degree burglary, and the remaining charges werе dismissed. Petitioner was originally sentenced to probation for two years. Shortly thereafter, the People filed a motion to correct an illegal sentence alleging that petitioner was ineligible for probation. On December 28, 1988, the district court resentenced petitioner to ten years and one day on each count of second degree burglary, each sentenсe to run concurrently.
Forty-seven days after petitioner was resentenced he filed a motion for reduction of sentence pursuant to
On July 30, 1990, 532 days aftеr petitioner filed his motion, he requested the court to rule on his motion. Almost three months later the district court heard petitioner‘s motion, about twenty months after the motion was filed—547 days after the expiration of the 120-day period following sentencing. At this hearing, the People contended that the district court lacked jurisdiction to consider petitioner‘s motion because he had abandoned the motion by failing to seek a ruling on it within a reasonable time. However, the trial court found that the delay was reasonable, and after considering the merits suspended the balance of petitioner‘s sentence. The trial court ruled:
In this particular case, under these particular circumstances, the court finds that the delay was reasonable and that the defendant at his аge should be granted a chance to show that he can utilize what he has learned in prison.
The court of appeals vacated the order suspending petitioner‘s sentence. People v. Mamula, No. 90CA2013 (Colo.App. Sept. 12, 1991). The court found that, although the petitioner‘s desire to demonstrate his rehabilitation to the trial court may be admirable,
the fact remains that the practice followed here diverts a trial cоurt from performing its legitimate function of reviewing a sentence to determine its fairness based upon the purposes of the sentencing code as set out in
§ 18-1-102.5, C.R.S. (1986 Repl.Vol. 8B) , and it allows the court to usurp the functions of parole and commutation, which are reposed exclusively in the executive branch.
Mamula, No. 90CA2013, slip. op. at 2. The court held that petitioner had failed to pursue his motion in a timely fashion, thus abandoning the motion as a matter of law. Id. at 2-3.
Central to resolution of this case is whether petitioner abandoned his
The court may reduce the sentence provided that a motion for reduction of sentence is filed (1) within 120 days after the sentence is imposed, or (2) within 120 days after receipt by the court of a rеmittitur issued upon affirmance of the judgment or sentence or dismissal of the appeal, or (3) within 120 days after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing. The court may reduce a sentence on its own initiative within any of the above periods of time.
Petitioner argues that because a trial court‘s ruling on whether to grant or deny a motion for reduction of sentence is subject to an abuse of discretion standard, we cannot reverse or modify the trial court‘s decision absent a clear abuse of that discretion. See People v. Fuller, 791 P.2d 702, 708 (Colo.1990) (only in exceptional circumstances will an appellate court substitute its judgment for that of the trial court in sentencing matters); People v. Watkins, 684 P.2d 234, 239 (Colo.1984) (trial court‘s sentencing decision is not modifiable absent abuse of discretion). Petitioner contends that from this premise we must conclude that a trial court‘s decision on whether or not a delay in ruling on a
In People v. Fuqua, 764 P.2d 56 (Colo.1988), we rejected the argument that a trial court loses jurisdiction to rule on a motion to reconsider after 120 days have passed since the imposition of sentence. However, this jurisdiction is not interminable:
In the case of a timely filed motion for reduction, the extension of the sentencing court‘s jurisdiction to rule on a motion beyond the 120-day period is not interminable. It is the responsibility of the court to rule on the motion within a reasonable time after its filing.
Id. at 61 (footnote omitted). The burden of pursuing a rule 35(b) motion is on the defendant if the court fаils to rule on the motion within a reasonable time:
When the sentencing court fails to act on a timely filed motion for reduction of sentence within a reasonable period of time, it then becomes the defendant‘s obligation to make reasonable efforts to secure an expeditious ruling on the motion. In the absence of any reasonable effort by the defendant to obtаin an expeditious ruling, the motion for reduction should be deemed abandoned.
Id. (Emphasis added.) See id. at 58. Although a “reasonable time” and “reasonable efforts” will vary with the circumstances of each individual case, they must be construed to effectuate the purposes underlying rule 35(b). No period of time can be reasonable where its purpose is contrary to the purposes and interests served by the rulе. See United States v. Taylor, 768 F.2d 114, 118 (6th Cir.1985).
While rule 35(b) gives the trial court the opportunity to reexamine the propriety of the sentence imposed, it also adheres to the constitutional principle that only the executive department may modify a legally imposed criminal sentence after the conviction upon which it is based has become final. See People v. Herrera, 183 Colo. 155, 161-62, 516 P.2d 626, 628-29 (1973); People v. Lyons, 44 Colo.App. 126, 618 P.2d 673 (1980). However, as our prior cases make clear, reexamination of the sentence before it becomes final does not intrude into this area of executive power.
In reaching this conclusion, we do not suggest that a trial court may not consider events favorable or unfavorable about a defendant that occurred during the “reasonable” period subsequent to filing the mоtion when examining the merits of that motion—the trial judge is not “required to close his eyes to developments favorable to the movant‘s request....” Taylor, 768 F.2d at 118 n. 4. See People v. Bridges, 662 P.2d 161, 164-65 (Colo.1983) (in ruling on a
The only reason asserted by petitioner for his failure to pursue the motion was his desire to enter and complete programs at the department of corrections, and he justifiеs the period of delay in this case by the lack of rehabilitative programs in the correctional system. Not only did petitioner fail “to take reasonable efforts to secure an expeditious ruling on the motion,” Fuqua, at 58, he intentionally requested the court not to rule on his motion until he could present evidence of rehabilitation which did not even exist at the time his motion was filed. The reasons put forth for the delay, are, as a matter of law, insufficient under Fuqua to sustain a finding that the delay was reasonable.
Accordingly, by failing to pursue his motion for reduction of sentence, petitioner abandoned his motion as a matter of law. The judgment of the court of appeals is affirmed.
KIRSHBAUM, J., dissents.
Justice KIRSHBAUM dissents.
The majority, as did the court of appeals, holds that under the circumstances of this case the trial court erred in not finding that the petitioner abаndoned his
It is undisputed that, well within the applicable time limits of
The mаjority does not hold that by filing a request for a delay in the determination of his
The basic purpose of
Crim.P. 35(b) would be significantly frustrated if, in the cаse of a timely filed motion for reduction, the finality of the sentence were not further suspended for such reasonable time as necessary for the court to make an informed judicial decision on the motion. The suspension of the finality of sentence for such additional time as necessary for proper resolution of the motion assures reliability in the sentencing process withоut, however, abridging the principle that the executive department rather than the judiciary, has the sole authority to modify a legally imposed sentence after the sentence becomes final.
The petitioner desired to obtain relevant information to assist the trial court in making an informed decision. At the time he requested a delay of the determination of his
In Fuqua, we held that a trial court retains jurisdiction to rule on a timely filed
In ruling upon a defendant‘s
In this case the petitioner, while incarcerated, attempted to enroll in high school equivalency classes, an electroniсs course, a psychological drug and alcohol education group program, and a marriage and family psychology program. He also participated in a literacy tutor training program. The petitioner was placed on a waiting list to enter some of these classes, particularly the drug and alcohol program. The petitioner‘s progress or lack thereof in such programs constituted relevant evidence for the trial court‘s determination of the
Contrary to the majority, I find the reason for the petitioner‘s request for a reasonable delay in determining his
The majority recognizes that in exercising judicial discretion to modify a previously imposed sentence a trial court does not usurp such executive powers as parole and commutation. Maj. op. at 1137. However, the majority then suggests that in view of the lengthy delay here this court cannot be assured that the trial court did not misuse its judicial authority as a substitute for such executive authority, and that a trial court that holds a timely filed
Finally, I cannot agree that the record in this case supports the conclusion that the petitioner abandoned his
A further factor in resolving the central issue as framed by the majority—whether the petitioner abandoned his
As previously noted, incarcerated defendants should be encouraged to participate in rehabilitative programs. The majority suggests that the petitioner‘s efforts to do so were simply calculated to create a favorable impression with the trial court. However, the trial court did not make any such finding; to the contrary, it evidently found that the defendant‘s conduсt while incarcerated constituted evidence favorable to the defendant‘s position.
I conclude that the trial court did not abuse its discretion in finding that its delay in determining the petitioner‘s