People v. Phillips

LOHR, Justice, specially

concurring.

I concur in the majority opinion but write separately to explain further the reasons why, in my view, the extraordinary mitigating or aggravating circumstances standard for sentencing outside the presumptive range is not unconstitutionally vague on its face.

Traditionally, trial judges have been permitted broad discretion in selecting appropriate sentences. E.g., People v. Cohen, Colo., 617 P.2d 1205 (1980). “However, the discretion implicit in the sentencing decision is not an unrestricted discretion devoid of reason or principle. On the contrary, the sentencing decision should reflect a rational *581selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process.” People v. Watkins, Colo., 613 P.2d 633, 636 (1980). The policies to be advanced by appropriate sentence selection include punishment commensurate with the seriousness of the offense, deterrence, rehabilitation, and elimination of unjustified disparity in sentences. Section 18-1-102.5(1), C.R.S.1973 (1981 Supp.). These standards give general guidance, but their effective implementation is dependent upon the exercise of sound judicial discretion.

In order to promote careful sentence selection consistent with the legislatively expressed policies and to facilitate effective appellate review, among other reasons, we have required that “in felony convictions involving the imposition of a sentence to a correctional facility the sentencing judge state on the record the basic reasons for the imposition of sentence.” People v. Watkins, supra, Colo., 613 P.2d at 637. I believe similar considerations are reflected in the legislative decision to require a statement of reasons in support of .a sentence at both the high and low ends of the range of authorized sentences under section 18-1— 105, C.R.S.1973 (1981 Supp.).

Under section 18-1-105 the General Assembly established a middle or presumptive sentencing range for each class of felonies, set the lower sentencing limit at one-half the minimum term authorized in the presumptive range, and fixed the maximum sentence at twice the upper limit of the presumptive range.1 Thus, a judge may sentence a defendant within a spectrum beginning at one-half the presumptive minimum and extending to twice the presumptive maximum.

The presumptive range reflects a legislative judgment of the sentencing limits appropriate to the usual case. Recognizing, however, the multitude of factors significant to the sentencing process, see People v. Watkins, supra, ‘and the fact that the weighing of these factors in some cases will reflect that a sentence within the presumptive range would be inappropriately high or low, the General Assembly extended the sentencing limits on both ends. Taking cognizance of the enhanced need for care in the imposition of an unusually lenient or severe sentence, the legislature included a requirement that the trial court make spe*582cific findings detailing the extraordinary circumstances that constitute its reasons for varying from a presumptive sentence. Section 18-1-105(7).2 I do not believe, however, that, by using “extraordinary mitigating or aggravating circumstances” as the test for appropriateness of a sentence outside the presumptive range, the General Assembly was attempting to draw exact lines. The obvious difficulty of precision of measurement of the circumstances relevant to sentencing is such that it is not conceivable that the legislature was endeavoring to compartmentalize and divide precisely the ordinary and the extraordinary. Cf. People v. Warren, Colo., 612 P.2d 1124 (1980) (Sentencing is discretionary and is not subject to scientific precision.). Rather, I believe the reading of section 18-1-105 that best gives effect to the presumptions that the legislature intended a just and reasonable result, section 2-4-201(l)(c), C.R.S.1973, and one feasible of execution, section 2 — 4—201(l)(d), C.R.S.1973, is that “extraordinary mitigating or aggravating circumstances” is simply a general standard to guide the court in the exercise of its sentencing discretion.

The statute informs the exercise of discretion by a sentencing judge by specifying the legislative judgment as to the sentencing range for the ordinary case, but takes cognizance of the fact that a greater or lesser sentence may be necessary in the exercise of the court’s sound discretion to reflect what the court considers to be extraordinary circumstances. In such cases the trial court must make specific findings as to the circumstances deemed extraordinary, and the resulting sentence is subject to appellate review under section 18-1-409(1), C.R.S.1973 (1981 Supp.)3 and C.A.R. 4(c) for propriety “having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.” Section 18-1-409(1); see, e.g., People v. Cohen, supra. The statutory requirement of specific findings to support a severe sentence comports with and reinforces our cases holding that a sentence of extended duration must be supported by clear justification in the record. E.g., People v. Horne, Colo., 619 P.2d 53 (1980); People v. Warren, supra. So viewed, the legislative standard gives helpful guidance to the trial courts in fixing sentences and aids the appellate courts in reviewing them but presents no issue of unconstitutional vagueness.

It is because I would so construe section 18-1-105, and for the additional reasons stated by the majority, that I concur in the rejection of the appellant’s due process challenge to the “extraordinary mitigating or aggravating circumstances” standard in section 18-1-105.

ERICKSON, DUBOFSKY and QUINN, JJ., join in this special concurrence.

. Section 18-l-105(l)(b) provides:

Except as provided in subsection (6) and subsection (9) of this section and in section 18-4-202.1 [relating to habitual burglary offenders], a person who has been convicted of a class 2, class 3, class 4, or class 5 felony shall be punished by the imposition of a definite sentence which is within the presumptive ranges set forth in paragraph (a) of this subsection (1). In imposing the sentence within the presumptive range, the court shall consider 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. The prediction of the potential for future criminality by a particular defendant, unless based on prior criminal conduct, shall not be considered in determining the length of sentence to be imposed.

Subsection (6) of section 18-1-105 provides:

In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.

Subsection (7) of section 18-1-105, as amended in 1981, provides:

In all cases, except as provided in subsection (9) of this section, in which a sentence which is not within the presumptive range is imposed, the court shall make specific findings on the record of the case, detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentence.

Subsection (9), adopted in 1981, specifies certain extraordinary aggravating circumstances that require sentences outside the presumptive range. See n. 5 in the majority opinion.

. Our decision in People v. Watkins, supra, extends this requirement by mandating a statement of basic reasons for any sentence to a correctional facility even though that sentence be within the presumptive range.

. As noted in the majority opinion, the review of the present case is based on section 18 — 1— 409.5, C.R.S.1973 (1979 Supp.), repealed in 1981, which provided for automatic appellate review of sentences outside the presumptive range.