723 P.2d 1350 | Colo. | 1986
Defendant Ralph Simmons appeals from the denial of his motion for correction of illegal sentence.
On December 2, 1982, the defendant pled guilty to second degree burglary,
On September 6, 1983, defendant’s motion to correct illegal sentence was denied. He alleged section 18-l-105(9)(a)(IV) was unconstitutional because it permitted enhanced punishment without notice and without an opportunity for a hearing. Further, he argued the statute was constitutionally infirm because it differentiated, with no rational basis, as to the treatment afforded to offenders who are sentenced in the extraordinary range pursuant to section 18-l-105(9)(a)(I), 8 C.R.S. (1985
I.
Initially, defendant maintains section 18-l-105(9)(a)(IV) denies equal protection of the law because it fails to afford procedural guarantees like those contained in section 18-l-105(9)(a)(I) and section 16-11-309(5).
We addressed a similar argument in People v. Lacey, 723 P.2d 111 (Colo.1986). See also, People v. Murphy, 722 P.2d 407 (Colo.1986).
In Lacey, we held a defendant subject to enhanced sentencing under section 18-1-105(9)(a)(III), 8 C.R.S. (1985 Supp.), has a right to reasonable notice and to have the prosecution prove the status
We believe the reasoning expressed in Lacey to be equally applicable in this case. Section 18-l-105(9)(a)(IV) has a rational basis in that it addresses the problem of recidivism by subjecting those persons who are on bond and subsequently convicted of a felony to sentencing in the aggravated range. The deterrent effect of enhanced sentences is hoped to have an effect on recidivism.
Here, the need for the procedural safeguards argued for by defendant does not exist as it does in cases involving crimes of violence. Whether or not a deadly weapon was used in the commission of an offense involves more complicated factual issues than the determination of a defendant’s status at the time of the commission of an offense. Indeed, in this case the defendant never contested the fact that he was on bond at the time he committed the new crimes. Such information is usually available from court records or the presentence investigation report.
We conclude the defendant’s claim of denial of equal protection lacks merit, and section 18-l-105(9)(a)(IV) is not constitutionally infirm on that basis.
II.
Defendant next contends his sentence in the aggravated range violates his constitutional right to due process of the law. He contends that a conviction pursuant to a sentence enhancing statute requires a jury determination that the sentencing enhancement factors exist.
We agree that section 18-l-105(9)(a)(IV) is a sentence enhancement statute. People v. Lacey, 723 P.2d at 112; People v. Smith, 195 Colo. 404, 406, 579 P.2d 1129, 1130 (1978). Again, in Lacey, 723 P.2d at 113, we held a defendant subject to sentence enhancement under section 18-1-105(9)(a)(III) is entitled to reasonable notice that he is subject to en
Judgment affirmed,
. This appeal was filed directly in this court pursuant to section 13-4-102(l)(b), 6 C.R.S. (1973) (constitutionality of a statute in question).
. Section 18-l-105(9)(a)(IV), 8 C.R.S. (1985 Supp.), provides:
(9)(a) The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term greater than the maximum in the presumptive range, but not more
than twice the maximum term authorized in the presumptive range for the punishment of a felony.
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(IV) The defendant was charged with or was on bond for a previous felony at the time of the commission of the felony, for which previous felony the defendant was subsequently convicted.
. Section 18-4-203, 8 C.R.S. (1978).
. Section 18-4-401, 8 C.R.S. (1978).
. Section 18 — 1—105(9)(a)(I) requires the court to sentence in the aggravated range if the defendant is convicted of a crime of violence under section 16-11-309, 8 C.R.S. (1985 Supp.).
. Section 16-11-309 mandates sentencing in the aggravated range if a person is convicted of a crime of violence as defined in subsection (2)(a)(I) or (2)(a)(II) of this statute. Subsection (5) requires a specific finding as to whether a deadly weapon was used or possessed during the commission of the crime.
.In Lacey, the defendant was on probation at the time of the commission of the offense.