The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kaneni B. CANTWELL, Defendant-Appellant.
Nos. 80CA0598, 80CA0693
Colorado Court of Appeals, Div. III.
July 30, 1981
Rehearing Denied Sept. 10, 1981
Certiorari Granted Nov. 16, 1981.
Although there are no Colorado cases interpreting this statute, the New Mexico Supreme Court, interpreting a substantially similar statute, has held that for a plaintiff to be considered under the care of a practitioner of the healing arts, such care need not be actual and continuous, but rather “must be provided in good faith and must be reasonably required.” Bolles v. Smith, 92 N.M. 524, 591 P.2d 278 (1979). We adopt this interpretation of the statute.
Although plaintiff was not under the care of a particular doctor on the day the statement was taken, he was at that time on referral status, and under such circumstances, we hold that care was being provided in good faith, and was reasonably required. Thus, the trial court did not err in excluding the statement.
We also reject defendant‘s contention that statements obtained in violation of
III.
Defendant‘s final contention is that the trial court erred in instructing the jury to consider “other expenses” in assessing plaintiff‘s damages. This issue was not raised by defendant in its motion for new trial, and, finding no plain error, we will not consider the issue here.
To the extent that this argument includes defendant‘s contention raised in its motion for new trial that the jury was guilty of misconduct for its failure to follow the court‘s instructions on assessing damages, we hold that defendant‘s failure to file a supporting affidavit precludes the issue from being considered on review. See Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965); Cawthra v. City of Greeley, 154 Colo. 483, 391 P.2d 876 (1964).
Judgment affirmed.
COYTE and STERNBERG, JJ., concur.
J. Gregory Walta, Colo. State Public Defender, Deborah S. Waldbaum, Deputy State Public Defender, Denver, for defendant-appellant.
STERNBERG, Judge.
The defendant, Kaneni B. Cantwell, pled guilty to two counts of second degree forgery.
I.
The principal issue raised in both cases is one that has previously been answered by a divided panel of this court in People v. Gonzales, Colo. App., 613 P.2d 905 (1980), a non-adversary review. There we held that “under the sentencing code, a defendant‘s criminal record may be considered by a court as ‘extraordinary mitigating or aggravating circumstances’ as that term is used in
In Gonzales our conclusion was buttressed by the following considerations: to hold a sentencing court could not consider a defendant‘s bad record would be inconsistent with basic and traditional concepts in sentencing; and, had it been the intention of the General Assembly to eliminate such a traditional sentencing guide, a restrictive
This reasoning is applicable here. However, as an additional reason for our conclusion, we note that in directing the sentencing court as to appropriate considerations in sentencing within the presumptive range, the General Assembly refers to “the nature and elements of the offense, the character and record of the offender, and all aggravating or mitigating circumstances surrounding the offense and the offender.”
Indeed, adoption of defendant‘s theory, would lead to an absurd result. If the prior record were removed from consideration, similar reasoning would require that evidence of defendant‘s character and the nature and elements of the offense not be considered. Thus, there would be nothing to constitute an extraordinary mitigating or aggravating circumstance. Such construction would render subsection (6) surplusage contrary to the rule of statutory construction to give meaning to an entire statute.
II.
In sentencing this defendant the trial court did not contemporaneously enter written findings of the specific extraordinary circumstances justifying the sentence beyond the presumptive range. The court did so a week later. Defendant urges that this constitutes reversible error. We disagree. People v. Abila, Colo. App., 606 P.2d 81 (1980), is controlling in this regard. At the time of sentencing, the court in this case did refer to the fact that it was basing the sentence on the fact that defendant had been convicted of three other felonies. In Abila, this court, while holding that the statute required written findings, remanded to the trial court for later entry of such written findings, and upon receipt of them, approved the sentence. Application of Abila to the instant case requires rejection of defendant‘s argument; if a trial court can enter written findings after remand from this court, certainly it can do so on its own motion a week later.
III.
Defendant‘s final assertion, that the totality of the circumstances does not justify an eight-year sentence, is also without merit. The record reveals that the trial court was concerned with the fact that defendant had forged checks in the past, had not learned respect for the law from her previous sentences, and was on parole at the time of this offense. The court stated that a severe sentence was required to avoid similar crimes being committed by this defendant. The court‘s conclusion is justified by the record. See People v. Warren, Colo., 612 P.2d 1124 (1980), wherein it was stated: “while rehabilitation may be the preferred method for preventing crime, an extended term of confinement is sometimes necessary in order to protect the public ... [and to] provide for individual deterrence and correction.”
The sentence is approved and the judgment is affirmed.
KELLY, J., concurs.
KIRSHBAUM, J., specially concurs.
KIRSHBAUM, Judge, specially concurring.
As the majority opinion indicates, the offense for which defendant was punished occurred while defendant was under parole supervision in connection with a prior offense.
Because such fact may be considered an “extraordinary” aggravating circumstance,
I disagree, however, with the majority‘s conclusion—in my view wholly unnecessary to the resolution of this appeal—that the statute in question authorizes trial judges, at their absolute discretion, to impose sentence not within the presumptive range specified by the General Assembly for a particular offense solely because of the “record” of a particular defendant.
In the first place, such expansive construction of the presumptive penalty statute directly contravenes two of the stated purposes of the sentencing provisions of the Criminal Code: to punish an offender “by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense,” and to “assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, [and] providing fair warning of the nature of the sentence to be imposed.”
The majority‘s construction of the statute also fails to give effect to the precise words and phrases articulated by the General Assembly.
The majority ignores this statutory definitional distinction on the theory that it would be ludicrous to conclude that a defendant‘s record cannot be considered in imposing a sentence outside the presumptive range while it may be considered for purposes of sentencing within the presumptive range. To the contrary, such distinction makes practical good sense when viewed in light of the statute‘s purpose of reducing sentence disparity by reducing trial court sentencing discretion. Whatever the merits of the debate as to whether sentencing statutes should mandate enhanced punishment for offenders with prior records, the General Assembly has made the determination in this statute that the prior record of an offender is a factor for consideration only as to where within the presumptive range a particular sentence for a particular offense may be imposed.