(593 P.2d 975)
No. 77-1008Colorado Court of Appeals.
Decided January 11, 1979. Rehearing denied February 22, 1979. Certiorari granted April 23, 1979.
Upon plea of guilty to first degree sexual assault, defendant was sentenced to from 20 to 30 years in the penitentiary, and he appealed from the trial court’s denial of his motion to reduce his sentence filed pursuant to Crim. P. 35(a).
Sentence Affirmed
1. CRIMINAL LAW — Review — By Court of Appeals — Crim. P. 35(a) Proceeding — Not Prohibited — Standard of Review — Abuse of Discretion. There is no statute or rule that prohibits review of a Crim. P. 35(a) proceeding by the Court of Appeals, and thus such review is permitted with the standard of review being whether the trial court abused its discretion.
2. Sentencing — Trial Court — Consider — Interest of Public — Nature of Offense — Rehabilitation Possibilities — 20 to 30 Years — Sexual Assault — Threat of Death — No Abuse of Discretion. In sentencing, the trial court must give full consideration to the interests of the public and the nature of the offense as well as the possibility of rehabilitation; and although sentence of 20 to 30 years was severe, the record also reveals that defendant, with a pistol and by the threat of death, forced a 19-year-old girl to submit to sexual intercourse; therefore, the trial court did not abuse its discretion in denying defendant’s motion to reduce that sentence.
Appeal from the District Court of La Plata County, Honorable Frederic B. Emigh, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Jeffrey G. Pearson, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy Public Defender, Timothy A. Patalan, Deputy State Public Defender, for defendant-appellant.
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Division II.
Opinion by JUDGE ENOCH.
Defendant appeals from the trial court’s denial of his motion to reduce his sentence under Crim. P. 35(a). We affirm.
Defendant pled guilty to commission of first degree sexual assault while armed with a deadly weapon, a class 2 felony, § 18-3-402(2), C.R.S. 1973 (1976 Cum. Supp.). The trial court sentenced him to serve 20 to 30 years in the state penitentiary. Instead of appealing his sentence directly to this court pursuant to C.A.R. 4(c), defendant filed a motion with the trial court under Crim. P. 35(a) for reconsideration of his sentence. After the trial court denied defendant’s motion, defendant appealed the denial to this court alleging that the sentence imposed was excessive and that the trial court failed to give due consideration to the possibility of rehabilitation.
[1] Here, contrary to the situation in People v. McKnight, 41 Colo. App. 372, 588 P.2d 886, cert. granted, [(reporter’s note) remanded for dismissal 199 Colo. 313, 607 P.2d 1007 (1979)] there is no statute or rule that prohibits our review of this Crim. P. 35(a) proceeding. Thus, the standard of review is whether the trial court abused its discretion See Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). In sentencing, the trial court must give full consideration to the interests of the public and the nature of the offenses as well as the possibility of rehabilitation. People v. Duran, 188 Colo. 207, 538 P.2d 1116 (1975). [2] A review of the record discloses that although the sentence was severe, the trial court did not abuse its discretion in denying the Rule 35(a) motion. The sentence was well within the minimum of 10 and maximum of 50 years set by the legislature for class 2 felonies. Section 18-1-105(1), C.R.S. 1973 (1976 Cum. Supp.). Defendant was armed with a pistol when he entered a retail shop and forced, by threat of death, a nineteen-year-old girl to submit to sexual intercourse. Although defendant has no prior criminal history and psychiatric testimony indicated that his rehabilitation potential was good, the court properly considered the countervailing interest of society, the seriousness of the offense, and the evidence of severe psychological trauma to the victim.Sentence affirmed.
JUDGE STERNBERG concurs.
JUDGE KELLY specially concurs.
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JUDGE KELLY specially concurring:
I concur specially.
In my view, the defendant’s failure to appeal his sentence as required by § 18-1-409, C.R.S. 1973 (1976 Cum. Supp.) and C.A.R. 4(c), deprives this court of jurisdiction to review the issues presented. I would, therefore, dismiss this appeal.
Prior to the enactment of § 18-1-409, C.R.S. 1973, effective July 1, 1972, and the subsequent promulgation of C.A.R. 4(c), effectuating the statutory revisions, the length of a criminal sentence which was within the statutory limits was not subject to appellate review. Raullerson v. People, 157 Colo. 462, 404 P.2d 149 (1965); Chasse v. People, 119 Colo. 160, 201 P.2d 378 (1949). Section 18-1-409, C.R.S. 1973 (1976 Cum. Supp.) and C.A.R. 4(c) now provide for “one appellate review” of the propriety of a sentence, and require that a notice of appeal be filed within 30 days after the imposition of sentence. These are the only statutory provisions authorizing appellate review of sentences and provide the sole basis for our jurisdiction. See People v. Duran, 188 Colo. 207, 533 P.2d 1116
(1975); People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972).
Since the failure to file a timely notice of appeal is a jurisdictional defect, Concelman v. Ray, 36 Colo. App. 181, 538 P.2d 1343 (1975), the defendant’s conviction became final after the elapse of the 30-day period for filing the notice of appeal. Glazier v. People, 193 Colo. 268, 565 P.2d 935 (1977). Accordingly, the defendant’s right to appellate review, if any, depends upon the appealability of the trial court’s ruling on his motion to reduce sentence under Crim. P. 35(a).
I do not regard Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977), as giving this court the authority to review a trial court’s denial of a Crim. P. 35(a) motion. It was there held that the Supreme Court may review such discretionary rulings under its “general superintending control over all inferior courts.” Colo. Const., Art. VI, Sec. 1. The Court of Appeals is not invested with such constitutional power. See People v. McKnight, 41 Colo. App. 372, 588 P.2d 886 (announced October 5, 1978). Neither did the Supreme Court, in Spann v. People, supra, reverse this court’s ruling in People v. Spann, 37 Colo. App. 152, 549 P.2d 427 (1975), in which this court held that § 18-1-409, C.R.S. 1973, provides the only exception to the rule that a trial court’s imposition of sentence is not reviewable when it is within the bounds provided by the legislature.
In my view, a defendant who fails to appeal his sentence in accordance with § 18-1-409, C.R.S. 1973 (1976 Cum. Supp.), and C.A.R. 4(c), has recourse only to the executive, see Walker v. People, 126 Colo. 135, 248 P.2d 287; Olguin v. People, 115 Colo. 147, 170 P.2d 285; or to the Supreme Court pursuant to its constitutional authority over inferior courts. Spann v. People, supra. To allow a defendant an appellate review of sentence by direct appeal from an adverse Crim. P. 35(a) ruling is to
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permit circumvention of the plain provisions of § 18-1-409, C.R.S. 1973 (1976 Cum. Supp.), and C.A.R. 4(c).