concurring in part and dissenting in part.
I concur in parts I through III of the majority's opinion. I respectfully dissent, however, from part IV of the majority's opinion. There, the majority holds that a person formally adjudicated a "big" habitual offender under §$ 16-13-101(2), C.R.S.2001, based upon three or more prior felony convictions is, upon judicial invalidation of his habitual offender sentence, eligible for presumptive range sentencing for the felony of which he currently stands convicted.
The majority reaches its decision by looking to various other statutory provisions and concluding that, because they were not, by their express terms, applicable, by default the defendant's sentence must be determined under ordinary discretionary sentencing principles.
I disagree. I think the question turns on legislative intent: not, however, on "actual" legislative intent (because the legislature obviously intended to have persons in defendant's position sentenced to four times the maximum term of the presumptive range associated with his present felony), but rather upon the intent the legislature would have had had it known that a "big" habitual offender sentence could not be applied in this case.
In determining how to apply statutes to situations not contemplated by the legislature, the eminent jurist Learned Hand once wrote, "We can best reach the meaning here, as always, by recourse to the underlying purpose, and, with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time." Borella v. *1155Borden Co., 145 F.2d 63, 64 (2d Cir.1944), aff'd 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945).
Similarly, the leading commentator on the subject of statutory interpretation has noted, "[Where an issue arises within a general area covered by statute but for which the legislature has not made specific provision so as to preclude a judicial finding of any specific legislative intent, the court must discern the applicable legislative intent by what is necessarily an act of projection starting from the areas where legislative intent is readily discernible, and projecting to fair and reasonable corollaries of that intent for the specific issue before the court." 2A Norman J. Singer, Sutherland's Statutory Construction § 45:09, at 51-52 (6th ed.2000).
In using this approach, I find it inconceivable that a legislature which requires a "big" habitual offender to be imprisoned for four times the maximum term in the applicable presumptive range would, following judicial invalidation of that sentence, permit the same offender to be sentenced below the maximum presumptive range term.
In my view, the reasonable corollary to § 16-18-101 is that if the severely aggravated range sentence required thereunder is invalidated by the judiciary, some lesser form of aggravated range sentence must apply.
The majority correctly points out that, by its very terms, the "little" habitual sentencing provision, § 16-13-101(1.5), C.R.S8.2001, cannot apply to the facts of this case. However, nothing prevents imposition of an aggravated range sentence of up to two times the maximum term in the presumptive range. See § 18-1-105(6), C.R.S8.2001. In my view, upon judicial invalidation of an habitual offender sentence, as a matter of law the underlying formal adjudication of habitual criminality constitutes an "extraordinary aggravating factor" requiring at least an aggravated range sentence within the meaning of § 18-1-105(6).
I realize that my conclusion does not square up with the precise text of the sentencing statutes. But, to apply them in any other way defies common sense. See Hall v. Walter, 969 P.2d 224, 229 (Colo.1998)("the intention of the legislature prevails over a literal interpretation of the statute that would lead to an absurd result"); People v. Reed, 932 P.2d 842, 843 (Colo.App.1996)("we will not construe a statute either to defeat the legislative intent or to lead to an absurd or illogical result"). See also DeLeon v. Tompkins, 40 Colo.App. 241, 243, 576 P.2d 563, 564 (1977)("a court is not indulging in judicial legislation when it construes a statute so as to avoid an absurd result"), rev'd, 197 Colo. 569, 595 P.2d 242 (1979); Howard D. Johnson Co. v. King, 351 A.2d 524, 532 (Me.1976)(same).
Consequently, although I too would reverse the sentence imposed in this case, I would remand for imposition of an aggravated range sentence.