People v. Valencia

Chief Justice VOLLACK

dissenting:

The majority affirms the court of appeals’ judgment vacating the sentence of the trial court. The majority holds that a trial court must set forth its basis for waiving certain information in a presentence report in order for such waiver to be effective pursuant to section 16 — 11—102(l)(a), 8A C.R.S. (1995 Supp.). I dissent because section 16-11-102(l)(a) grants trial courts the discretion to waive background information in a presen-tence report and does not require courts to set forth justification for exercising such discretion. Absent a clear abuse of discretion, I would uphold the trial court’s waiver of background information in the presentence report.

I.

On February 21, 1993, the defendant, Adam G. Valencia, engaged in an armed robbery of a Denver taxi cab driver. During the course of the robbery, Valencia shot the cab driver twice, once in the arm and once in the chest. The cab driver recovered from his wounds after a lengthy hospitalization involving surgery and extensive physical therapy. Valencia was consequently charged with attempted aggravated robbery, attempted first-degree murder, and three counts of first-degree assault. In exchange for the defendant’s plea of guilty to one count of first-degree assault, the prosecution dismissed the remaining charges. After accepting the defendant’s plea, the trial court ordered a presentence report and investigation.

When a probation officer attempted to interview Valencia to complete the presentence report, Valencia refused to speak with the probation officer.1 At Valencia’s sentencing hearing, defense counsel requested a continuance of sentencing in order to complete the presentence report. The trial court denied the request for a continuance, stating that it had enough information to proceed with sentencing. After hearing from the defendant, defense counsel, the victim, and the district attorney, in addition to accepting a letter from the defendant’s stepfather, the trial court sentenced the defendant to twenty years in the custody of the Department of Corrections.

The defendant appealed the sentence, asserting that the trial court violated section 16 — 11—102(l)(a) by denying his request for a continuance and proceeding to sentencing without the information outlined in the statute. The court of appeals concluded that section 16-ll-102(l)(a) did not give a trial court absolute discretion to waive the statutorily required information. The court of appeals thus vacated the sentence and remanded to the trial court for compilation of a presentence report in accordance with the statute.

*120II.

The majority acknowledges that “section 16 — 11—102(l)(a) grants the trial court discretion to impose sentence without certain information otherwise required in the presentence report.” Maj. op. at 118. The majority asserts, however, that “a trial court exercising its authority to waive the [statutory] requirements ... should set forth on the record a sufficient basis or justification for its decision.” Id. This assertion that a trial court must set forth its basis for waiver is not supported by the language of the statute.

Section 16-ll-102(l)(a) provides:

[T]he probation officer shall make an investigation and written report to the court before the imposition of sentence. Each presentence report shall include a substance abuse assessment or evaluation ... and, unless waived by the court, shall include, but not be limited to, information as to the defendant’s family background, educational history, employment record, and past criminal record....

It is well settled that appellate courts should give effect to legislative intent and not impute their own meaning to otherwise clear statutory language. People v. White, 870 P.2d 424, 445 (Colo.), cert. denied, — U.S. -, 115 S.Ct. 127, 130 L.Ed.2d 71 (1994); People v. Schuett, 833 P.2d 44, 47 (Colo.1992). To discern legislative intent, a court should look first to the statutory language, People v. Warner, 801 P.2d 1187, 1190 (Colo.1990), and give statutory words and phrases effect according to their plain and ordinary meaning, People v. District Court, 713 P.2d 918, 921 (Colo.1986).

According to section 16 — 11—102(l)(a), a presentence report is mandatory before a trial court may impose a sentence on a criminal defendant. However, information such as family, educational, and employment background is not mandatory and the statute specifically grants trial courts the authority to waive inclusion of such information. Trial courts may presumably exercise this authority, and absent statutory language directing trial courts to provide justification for waiver, such a requirement should not be imposed by appellate courts.2

If the legislature had intended for trial courts to set forth justification for waiving background information in presentence reports, the legislature could have easily included language to that effect. Prior to 1991, section 16-11-102(1) provided:

Each presentence report shall include, but not be limited to, information as to the defendant’s family background, educational history, employment record, and past criminal record....

§ 16-11-102(1), 8A C.R.S. (1986). The statute was amended in 1991 to add the phrase “unless waived by the court,” in reference to inclusion of background information.3 This amendment shows a clear legislative intent to grant trial courts the discretion to waive certain background information, and the amendment does not include restrictive language directing courts to set forth the basis for waiver. Because the legislature did not include such directions in the amendment when it could have easily done so, the statute should not be construed as including such directions.

III.

On appellate review, the decision of the sentencing court must be accorded deference because a trial judge has broad discretion when imposing a sentence. People v. Fuller, 791 P.2d 702, 708 (Colo.1990). A trial judge’s decision to exclude evidence in a sentencing hearing will not be reversed absent an abuse of discretion. People v. Borrego, 774 P.2d 854, 856 (Colo.1989). Hence, the standard of review in this case is whether the trial court abused its discretion in waiving the presen-*121fence report information outlined in section 16-11-102(1)(a). See, e.g., White, 870 P.2d 424, 455 (refusing to reverse a trial court’s decision to exclude evidence in a sentencing hearing absent an abuse of that discretion); Montoya v. People, 864 P.2d 1098, 1095 (Colo.1994) (applying the abuse of discretion standard in reviewing a trial court’s sentence); Fuller, 791 P.2d at 708 (stating that a trial judge has broad discretion when imposing a sentence and the sentence imposed should not be overturned absent a clear abuse of discretion).

The majority holds that an appellate court cannot determine whether the trial court abused its discretion in waiving the information outlined in section 16-ll-102(l)(a) because the court did not set forth its basis for such waiver. To the contrary, the information available to the sentencing court in this case provides ample grounds for an appellate court to determine whether the trial court abused its discretion. Although information regarding Valencia’s family, educational, and employment background may have been helpful in imposing his sentence, the trial court acted well within its discretion in declining to grant a continuance to allow inclusion of such information in the presentence report. In this case, the record indicates that the trial court was cognizant of both mitigating and aggravating factors when it determined that a twenty-year sentence was appropriate.

In mitigation, the sentencing judge heard from the defendant and the defense counsel, and accepted a letter from the defendant’s stepfather. The court also knew some background information, such as the fact that the defendant had come from a broken home, that his mother was seriously ill, and that he had the support of his parents. However, the judge was also aware of aggravating factors which contributed to Valencia’s sentence. Valencia had engaged in a violent and unprovoked crime which resulted in serious bodily injury and permanent damage to his victim. Moreover, Valencia pleaded guilty to first-degree assault and thus was subject to a mandatory aggravated sentence of sixteen to thirty-two years.4 Taking all mitigating and aggravating circumstances into account, the trial court imposed a low-range sentence of twenty years. Pursuant to section 16-11-102(l)(a), it is within the trial court’s discretion to determine the background information necessary in a presentenee report for imposing an appropriate sentence. In light of the information available to the sentencing court in this case, the court did not abuse its discretion in waiving the defendant’s background information.5

IV.

Because section 16-ll-102(l)(a) grants trial courts the discretion to waive certain information in a presentence report and does not require courts to set forth justification for exercising such discretion, I dissent. In the absence of a clear abuse of discretion, I would uphold the trial court’s waiver of the defendant’s background information in his presentence report.

I am authorized to say that Justice ERICKSON and Justice KOURLIS join in this dissent.

. Valencia states that his attorney had advised him not to discuss the offense with the probation officer, but Valencia misunderstood such advice to mean that he was to remain completely silent, even about his background information.

. The majority correctly states that "[a]n appellate court cannot determine whether the sentence imposed upon a defendant is proper and within the trial court’s discretion without specific findings.” Maj. op. at 118. However, requiring a trial court to make findings for imposing a sentence is different from requiring that court to set forth its basis for waiving certain information in a presentence report. In this case, the trial court complied with the requirement to make findings in support of the sentence imposed on the defendant.

. Act approved May 29, 1991, ch. 82, sec. 1, 1991 Colo.Sess.Laws 436, 436.

. If a defendant is convicted of assault in the first degree for an assault involving serious bodily injury which he himself caused while attempting to commit robbery, the sentencing court is required to sentence the defendant to a term greater than the maximum in the presumptive range, but not more than twice the maximum term. § 18-3-202(2)(d), 8B C.R.S. (1986); § 16-11-309(l)(a), 8A C.R.S. (1986). Based on a presumptive range of four to sixteen years imprisonment, as provided in § 18-l-105(l)(a)(IV), 8B C.R.S. (1986), the mandatory aggravated range is sixteen to thirty-two years.

. It has been long established that a trial court need not grant a continuance in a criminal case unless the application for continuance shows that due diligence was used in attempting to obtain the necessary information. Wilson v. People, 3 Colo. 325 (1877). Here, the defendant did not show due diligence in providing his background information and instead refused to speak with the probation officer seeking to interview him. Thus, the defendant cannot benefit from creating the situation in which his background information is missing from the presentence report.