Delgado v. People

COATS, J.,

dissenting.

Because I do not agree that the 120-day period of Crim. P. 35(b) applies only to the imposition of a “legal” sentence, I would uphold the court of appeals determination that the defendant’s motion was filed out of time. Because the parole component of a sentence is not within the discretion of the court, but rather must be imposed as a matter of law, I would also hold that the defen*639dant is not entitled to be resentenced, and therefore he is not entitled to an additional 120-day period within which to move for reduction of a new sentence. I therefore respectfully dissent.

For the first time, the majority adopts the reasoning of the court of appeals in People v. Dean, 894 P.2d 13, 14 (Colo.App.1994), to hold that the imposition of an illegal sentence does not trigger the rule’s 120-day filing deadline. Maj. op. at 635, 638. Nothing in the language of the rule admits of any such limitation, nor have we previously suggested as much. The rule speaks only to the period after “the sentence is imposed” or is affirmed or upheld. Our reference to “a legally imposed sentence” in Mamula v. People, 847 P.2d 1135, 1137 (Colo.1993), and earlier cases, addresses a constitutional separation of powers question and merely makes clear that the judicial branch does not lose its authority to resentenee a defendant whose initial sentence has been reversed as illegally imposed. Those holdings suggest nothing about the time within which a defendant may move for a sentence reduction.

Although the holding of Dean may not have been articulated with sufficient precision, its judgment was correct because nothing in Crim. P. 35(b) precludes a criminal defendant from moving for the reduction of a newly imposed sentence. Whenever a defendant is resentenced following a successful challenge to his original sentence, therefore, the rule provides him a right to seek a reduction of that sentence. In light of the defect in the defendant’s sentence in this case, I believe the court of appeals correctly remanded with directions to issue an amended mittimus, rather than ordering (or permitting) the trial court to resentenee the defendant.

In related contexts, we have held that the parole component of a defendant’s sentence is dictated by law and does not involve the court’s sentencing discretion. For that reason, we have upheld statutes permitting transfers from community corrections to prison, including the addition of a parole term, without the need for a sentencing hearing. See People v. Johnson, 13 P.3d 309 (Colo.2000). We have similarly held that the parole component of a sentence is not included within the “maximum sentence” allowable for sex offenders. See Martin v. People, 27 P.3d 846 (Colo.2001). We have even held that a failure to include a statutorily prescribed parole term on a defendant’s mitti-mus merely requires that the forms be amended by the trial court. See Benavidez v. People, 986 P.2d 943 (Colo.1999).

As with other statutorily prescribed conditions of a sentence, like the place or conditions of confinement, the defendant’s parole requirement is dictated by law and is not a matter involving the sentencing discretion of the court. For that reason, I would hold that a defect in a defendant’s mittimus indicating an erroneous parole requirement can be corrected without resentencing, and therefore a new 120-day period does not arise for purposes of a motion for reduction of sentence.

Because I would affirm the judgment of the court of appeals, I respectfully dissent.

I am authorized to state that Justice KOURLIS joins in this dissent.