*1 surety released from be directions the bond. obligation on
his HUME, JJ., concur.
TURSI Colorado, of of the State
The PEOPLE
Plaintiff-Appellant, BYRUM, D. Carroll Hunter, Atty., and C. Alexander M. Dist. Defendant-Appellee. Boulder, Miller, Atty., Phillip Asst. Dist. plaintiff-appellant. of Court Colorado Vela, Public De- David F. Colorado State Bachman, A. fender, Deputy Div. Jaydee K. Defender, Denver, for defen- State Public 29, 1989. June dant-appellee. Modified on Denial of As Opinion by Judge RULAND. modi- People appeal the trial court’s mandatory sen- of the defendant’s fication pursuant crime tence for violent 16-ll-309(l)(a), (1986 Repl.Vol. 8A). affirm the modified Byrum, D. was Carroll manslaughter and second-de- of convicted shooting of his in the deaths gree murder companion in her male estranged wife and 16-ll-309(l)(a), 1985. Pursuant years was sentenced degree murder con- day the second one the five- viction, concurrently with to run man- for the he received year sentence vio- The crime of slaughter conviction. the minimum available lence sentence 16-ll-309(l)(a), the version 16-ll-309(l)(a), in effect. then §Cf. (1988 Cum.Supp.). subsequently moved the sen- court for reconsideration 16-ll-309(l)(a), tence, as authorized exceptional his case was ground on the extenuating cir- involved unusual at adduced Evidence cumstances. summary diagnostic including the hearing, Corrections, Department from had be- wife showed abu- psychologically physically come *2 818 deny contends it is not sustainable. suffering a miscar- him after towards sive the pointing included motion.
riage in 1960. This abuse
children,
two
gun at him and their
a loaded
if
that resolution of the
Even we assume
live in a
him,
forcing him to
and
beating
con-
People’s first and second contentions
of their home
room in the basement
small
fact,
argu-
questions
the third
only
cerns
years. Medical evi-
one and one-half
argument posits the
ment does not. This
defendant suffered
dence showed
prop-
legal
the trial court
issue whether
major depression,
lesions
from brain
un-
erly
post-conviction
considered
conduct
swings
hy-
by
mood
manifested
severe
16-ll-309(l)(a).
der §
'
peractivity.
mer
Addressing
appeal
the
on its
forced him to
after his wife
Two weeks
its,
deci
conclude that the trial court’s
we
home,
family
decid-
the defendant
leave the
must be af
modify
sion to
the sentence
at-
thought
commit suicide but
ed to
reflects
firmed. A
of the record
review
first.
his wife
tempt a reconciliation with
findings
support the
sufficient evidence to
home, the defendant
he returned
When
court,
thus,
conclusion of the trial
man and shot
his wife
another
found
with
say
the
court erred as
we cannot
them both.
Further,
com
matter of
the various
a
law.
by
during the course
hear- ments
the trial court
transcript
of the modification
hearing
the
for its deci
court believed of the
reveal
basis
ing
that the trial
indicates
statutory requirements
sion and that the
in heat-of-
deaths should have resulted
both
Finally, the statute does
were satisfied.
manslaughter
and sen-
passion
convictions
from consider
preclude
the trial court
tences,
fact that the male victim
but for the
post-conviction conduct
ing the defendant’s
In
nothing
provoke the defendant.
did
extenuating cir
determining
in
whether
the defendant’s
to the evidence of
addition
This
established.
cumstances have been
prob-
mental
family situation and
abusive
necessarily follows from
conclusion
lems,
the fact that the
the court considered
expressly authorized
fact that the court is
criminal convic-
previous
had no
the evaluation
by the statute to consider
tions,
prisoner,
that he had
a model
been
Department of Correc
by the
submitted
that,
drug treat-
regular
medical
with
Then,
tions.
ment,
life.
he could lead a normal
extenuating
upon finding
of unusual and
report to the
failure to
The trial court’s
circumstances,
the trial court reduced
required by
as
state court administrator
degree
sentence on the second
16-ll-309(l)(a) does not affect the validi-
years imprison-
murder
to 16
conviction
ty of the modified
ment.
Modified sentence affirmed.
on
People’s primary
contentions
PIERCE, J.,
(1)
concurs.
appeal
the record is insuffi
are that:
findings
support
cient as a matter of law to
KELLY, C.J., specially concurs.
by the trial court that the defendant’s
KELLY,
Judge, specially
Chief
unusual and
exceptional and involved
concurring.
extenuating
circumstances
appeal
jurisdic-
(2)
I
dismiss the
16-ll-309(l)(a);
trial court failed
would
therefore,
specially
I
support
grounds, and
findings necessary to
to make the
(3)
reduction;
the trial court
concur.
con
considering
the defendant’s
erred
may not
People
my
It is
view that
determining
prisoner in
whether
duct as a
imposed by
bring
appeal
an
of a sentence
extenuating
existed.
circumstances
illegal.
is
court unless the sentence
the trial
Hinchman,
People v.
196 Colo.
mo- See
Initially,
address the defendant’s
we
Henderson,
(1978); People
P.2d 917
tion to dismiss the
(1978).
Al-
fective in of a sentence was to a defendant in a criminal
available Eighth
other than on Amendment constitu- statute, grounds. appel- Absent this unavail-
late review of a sentence would be excep- even to a with the
able
tion noted. circumstances, I
Under these would rule People may challenge
in a criminal case based on evidence, sufficiency of the even if that
challenge insufficiency asserts the
evidence as a matter of law. A sentence statutory with the mandate
rests within the discretion of the trial court may not be reviewed at the behest of People. People’s only inter- Since assuring
est a sentence is limited to legal, since sentence is this sen- illegal,
tence is not I would dismiss the SURDYKA, Plaintiff,
William
v. DeWITT, H. Tool Rent
Verne OK d/b/a als, Third-Party Defendant
Plaintiff-Appellee,
SHELTER GENERAL INSURANCE
COMPANY, corporation, a Missouri
Third-Party Defendant-Appellant.
Colorado Court
Div. IV. 6, 1989. Aug. Denied 1989.
Certiorari Denied Dec. notes 16-12-102(1), (1986 Repl. 8A) People though appeals by the limits 4(b)(2) 8A) authorize an and, and C.A.R. law, asserting that this Vol. questions of any question of fact, by People “upon he only questions involves law,” People prejudice to the arises of a sentence which imposition from the statutorily-prescribed with limits.