text:
    Nicholas WALLBANK and Mindilee Wall-bank, individually and as parents of Emily Wallbank, a minor, Plaintiffs-Appellees, v. Steven S. ROTHENBERG, M.D., Defendant-Appellant.
    No. 01CA1949.
    Colorado Court of Appeals, Div. IV.
    Jan. 2, 2003.
    Certiorari Granted July 21, 2003.

      Leventhal, Brown & Puga, P.C., Natalie Brown, Anthony Viorst, Denver, Colorado, for Plaintiffs-Appellees.
    Pryor, Johnson, Montoya, Carney & Carr, P.C., Irving G. Johnson, Elizabeth C. Moran, Aaron P. Bradford, Englewood, Colorado, for Defendant-Appellant.
    Montgomery, Little & McGrew, P.C., Patrick T. O'Rourke, Englewood, Colorado, for Amicus Curiae Physician Insurers Association of America.
    Mahoney Law Firm, Kevin S. Mahoney, Lakewood, Colorado, for Amicus Curiae Colorado Trial Lawyers Association.
   Opinion by

Judge TAUBMAN.

In this medical malpractice case, defendant, Steven S. Rothenberg, M.D., appeals the judgment entered on a jury verdict in favor of plaintiffs, Nicholas and Mindilee Wallbank, individually and as parents of Emily Wallbank. We affirm the judgment, but vacate the award for future medical expenses, reverse the trial court's determination not to reduce the jury's award in accordance with the one million dollar limitation on total damages under the Health Care Availability Act (HCAA), and remand for further proceedings.

This dispute arose from surgery that Roth-enberg performed on six-week-old Emily Wallbank to remove a growth on her neck called a cystic hygroma. During surgery, Emily's facial nerve was injured, causing a partial paralysis of the right side of her face. In their lawsuit, the Wallbanks alleged that Rothenberg was negligent in not obtaining a CT sean or MRI before surgery to determine the extent of the growth on Emily's face. They also alleged that Rothenberg did not obtain their informed consent to surgery because he did not advise them of the risk of facial nerve injury or of alternatives to surgery.

Following a trial, the jury returned a verdict in favor of the Wallbanks on both the negligence and informed consent claims, awarding them a total of $1,348,560 in damages. Specifically, the jury awarded as damages $12,560 for past medical expenses, $80,000 for future medical expenses, $78,500 for lost future earnings, $182,500 for future noneconomic losses, and $1,000,000 for physical disfigurement. The trial court later denied Rothenberg's motions for new trial and to amend the judgment, and this appeal followed.

I. Testimony Concerning the Personal Practices of Expert Witnesses

Rothenberg argues that the trial court committed an error of law in permitting the Wallbanks to question the experts regarding their personal practices. We disagree.

Ordinarily, we review trial court ruling admitting or excluding evidence under an abuse of discretion standard. Hock v. New York Life Ins. Co., 876 P.2d 1242, 1251 (Colo.1994). A court abuses its discretion when it rules based on an erroneous application of the law. See Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986).

A trial court's exercise of discretion should not be overturned on appeal unless its ruling was manifestly arbitrary, unreasonable, or unfair. People v. Moya, 899 P.2d 212 (Colo.App.1994).

In a medical malpractice case, the relevant standard of care is that of a reasonably careful physician acting as a specialist in the same field of practice. See Short v. Kinkade, 685 P.2d 210 (Colo.App.1983); see also CJI-Civ. 4th 15:3 (2001). To determine whether the applicable standard of care has been violated, the jury must compare the defendant's conduct with what a reasonably careful physician would do under the same cireumstances. See Greene v. Thomas, 662 P.2d 491 (Colo.App.1982); see also CJI-Civ. 4th 15:3 (2001).

Because the applicable standard of care is not within the common knowledge and experience of ordinary people, the standard must be established by expert testimony in a medical malpractice case. United Blood Servs. v. Quintana, 827 P.2d 509, 520 (Colo.1992).

However, a determination of the nature and existence of a generally accepted standard of medical practice cannot be determined simply by counting how many physi-clans follow a particular practice. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188, 1194 (Colo.1994). According to the McCroskey court: "[Alscertaining the objectively reasonable standard of care is more than just a factual finding of what all, most, or even a 'respectable minority of physicians do, although the actual practice in a community is certainly the starting point in any analysis." State Bd. of Med. Exam'rs v. McCroskey, supra, 880 P.2d at 1194-95; see also Denver & Rio Grande R.R. v. Vitello, 34 Colo. 50, 81 P. 766 (1905)(holding that it was error to permit expert witnesses to testify as to what they would have done under cireum-stances similar to the train derailment at issue).

Here, in addition to Rothenberg, one expert testified on his behalf, while two experts testified on behalf of the Wallbanks. One of the Wallbanks' experts testified that the failure of Rothenberg to obtain a CT sean or MRI prior to operating on Emily was below the preoperative standard of care for physicians performing cystic hygroma surgery. The Wallbanks' other expert testified that while the standard of care would not necessarily have required obtaining a CT sean or MRI prior to surgery, she herself would have done so.

Rothenberg's expert testified that obtaining a CT sean or MRI was not required by the applicable standard of care, but that he personally would have obtained those tests before performing cystic hygroma surgery.

In denying the motion in limine, and again during trial when the Wallbanks' expert testified that obtaining a CT sean or MRI was not required by the standard of care, the trial court ruled that such testimony of the experts' personal practices was admissible and relevant as some evidence of the standard of care, as long as additional evidence was presented that Rothenberg's conduct fell below the standard of care.

Rothenberg argues that such evidence is irrelevant, because the personal preferences of a particular expert do not establish the standard of care. Indeed, Rothenberg maintains, such evidence is irrelevant because a practice different from that personally followed by an expert witness may also fall within the applicable standard of care. We are not persuaded.

While McCroskey and Vitello make it clear that a standard of care may not be established by the testimony of the personal practices of expert witnesses, those cases do not address whether this testimony may be relevant when other evidence is presented concerning the applicable standard of care. This question is a matter of first impression for Colorado appellate courts.

We conclude, as did the trial court, that testimony concerning the experts' personal practices was of some relevance because each expert also testified concerning the applicable standard of care. We reach this conclusion for the following reasons.

First, as the MeCroskey court noted, "the actual practice in a community" is the starting point in determining a reasonable standard of care. Thus, onee the expert testifies concerning the standard of care, then testimony of that expert's personal practices may help the jurors understand why that standard of care is followed by that expert or other experts.

Second, testimony regarding an expert's personal practices may either bolster or impeach the credibility of that expert's testimony concerning the standard of care. Here, the Wallbanks' expert who stated that the standard of care did not require obtaining a CT sean or MRI nevertheless stressed the importance of obtaining those tests when . questioned about why she did so on a regular basis. Under CRE 607, the Wallbanks could impeach their own expert. Similarly, the Wallbanks properly cross-examined Rothen-berg's expert concerning his personal practice to obtain tests, when he testified that the standard of care did not require obtaining a CT sean or MRI. See C. Frederick Overby, Trial Practice and Procedure, 51 Mercer L..Rev. 487, 501-02 (1999)("The relevance and importance of a medical expert's personal choice of a course of treatment is highly probative of the credibility of the expert's opinion concerning the standard of care. A jury is free to disregard the expert's opinion entirely and find that the standard of care is reflected by the course of treatment the expert would have chosen, a highly probable scenario if other evidence admitted in the case supports this proposition.").

Third, because each expert addressed the applicable standard of care, testimony regarding their personal practices was proper direct and cross-examination. Thus, the jury could give whatever weight it determined was appropriate to the testimony of those experts, including ignoring it completely. Similarly, during closing argument, counsel for each party was able to argue the significance of the experts' testimony as to their personal practices. Also, the jury was properly instructed concerning the applicable standard of care.

Accordingly, we conclude that the trial court did not abuse its discretion nor err as a matter of law in allowing the experts here to testify about their own practices as well as the applicable standard of care. See, eg., Greenberg v. Bishop Clarkson Mem'l Hosp., 201 Neb. 215, 266 N.W.2d 902, 907 (1978)(testimony that a physician would have acted differently from defendant, although not normally admissible, may be considered where ample medical testimony establishes the applicable standard of care); Miller v. Peterson, 42 Wash.App. 822, 714 P.2d 695 (1986)(while testimony reflecting only a personal opinion of experts that they would have followed a different course of treatment from that of the defendant is insufficient to establish a standard of care, there was no error to allow such testimony, because there was expert testimony on the standard of care and the jury was given the proper standard of care instruction).

IL. - Award of Damages

Rothenberg contends that the judgment must be reduced to comply with the damages limitation of the HCAA, $ 18-64-3802, C.R.S. 2002, We agree in part.

A. Physical Impairment and Disfigurement

Rothenberg first argues that the damages awarded for physical impairment and disfigurement are subject to HCAA's one million dollar damages limitation in this medical negligence case. We agree.

The interpretation of a statute is a question of law, which appellate courts review de novo. City of Colorado Springs v. Conners, 993 P.2d 1167, 1171 (Colo.2000).

A court's task when interpreting a statute is to ascertain and give effect to the legislative intent. Courts first look to the plain language of the statute to determine the General Assembly's intent. "If courts can give effect to the ordinary meaning of words used by the legislature, the statute should be construed as written, giving full effect to the words chosen, as it is presumed that the General Assembly meant what it clearly said." State v. Nieto, 993 P.2d 493, 500 (Colo.2000). Courts should avoid statutory constructions that defeat the clear intent of the General Assembly. People v. District Court, 713 P.2d 918, 921 (Colo.1986).

The HCAA's liability limitation provides in pertinent part:

The total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional . whether past damages, future damages, or a combination of both, shall not exceed one million dollars, present value per patient ... of which not more than two hundred fifty thousand dollars, present value per patient ... shall be attributable to noneconomie loss or injury, as defined in section 18-21-102.5(2)(a) and (2)(b), whether past damages, future damages, or a combination of both; except that if, upon good cause shown, the court determines that the present value of the amount of lost past earnings and the present value of lost future earnings, or the present value of the amount of past medical and other health care costs and the present value of the amount of future medical and other health care costs, or both, when added to the present value of other past damages and the present value of other future damages, would exceed such limitation and that the application of such limitation would be unfair, the court may award the present value of additional future damages only for loss of such exeess future earnings, or such exeess future medical and other health care costs, or both.

Section 18-64-802(1), C.R.S.2002 (emphasis added).

Here, the damages limitations contained in § 18-64-802 are clear and unambiguous. Colo. Permanente Med. Group, P.C. v. Evans, 926 P.2d 1218, 1230 (Colo.1996).

In Preston v. Dupont, 35 P.3d 433 (Colo.2001), the supreme court held that the $250,000 limitation on noneconomic damages under § 13-64-302 does not limit the amount of damages awarded for physical impairment or disfigurement. - However, the Preston court did not determine whether damages for physical impairment or disfigurement are subject to the one million dollar limitation on total damages under § 18-64-3802.

The parties agree that while the holding of Preston is not dispositive of the issue before us, this court should look to Preston for guidance. However, the parties sharply differ on the statutory interpretation Preston supports.

On the one hand, Rothenberg argues that Preston does not suggest that damages for physical impairment and disfigurement are exempt from the limitation on total damages. He notes that the HCAA's statutory scheme limits the total amount recoverable for all damages, and "The [Preston ] majority rationale does not question that the legislature intended to and successfully has limited common-law damages for physical impairment and disfigurement." Preston v. Dupont, supra, 35 P.3d at 443 (Coats, J., dissenting).

On the other hand, the Wallbanks assert the same reasoning the Preston court used to exclude damages for physical impairment and disfigurement from HCAA's $250,000 noneconomic damages limitation should likewise exclude such damages from the one million dollar limitation. According to the Wallbanks, any overall damages limitation must be guided by $ 13-21-102.5(5), C.R.S. 2002, which provides, "Nothing in this section shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement." See Preston v. Dupont, supra, 35 P.3d at 440.

However, § 18-64-302(1) of the HCAA refers to the general damages statute, § 13-21-102.5(2)(a) and (2)(b), C.R.S.2002, only for its definition of noneconomic damages. In contrast, the provision in § 13-64-302(1) that "past damages, future damages, or a combination of both, shall not exceed one million dollars," does not refer to the general damages statute. Further, the statute on which the Wallbanks rely, § 18-21-102.5(5), is itself expressly limited to "this section" and, therefore, does not govern our interpretation of § 18-64-302(1).

Accordingly, we conclude that § 18-21-102.5(5) does not apply to the one million dollar total damages limitation contained in § 18-64-3021).

Under a plain language analysis of § 13-64-302(1), damages for physical impairment or disfigurement are subject to HCAA's one million dollar total damages limitation in medical negligence actions. The General Assembly used the mandatory term "shall" to limit the "total" amount of damages to one million dollars. See People in Interest of E.S., 49 P.3d 1221, 1223 (Colo.App.2002)("In construing a statute, the word 'shall is given a mandatory connotation.").

Moreover, the General Assembly specified the types of damages, namely lost future earnings and future medical expenses, that are exempt from the one million dollar damages limitation. Had the General Assembly intended damages for physical impairment and disfigurement to be exempt from the one million dollar limitation, it could have easily included this category of damages in the specific exemptions. See Holdridge v. Bd. of Educ., 881 P.2d 448, 450 (Colo.App.1994)(where statute specifies certain situations to which it applies, it must be interpreted to exclude from its operation other situations not specified).

Because the statutory language is clear and unambiguous, we apply it as written, and we need not resort to other rules of statutory construction or consider legislative history. See People v. Triantos, 55 P.3d 131, 134 (Colo.2002); see also State v. Nieto, supra. Thus, we conclude the trial court should have applied the one million dollar limit here.

B. Future Medical Expenses and Lost Earnings

Rothenberg next contends the court did not find and the evidence does not establish that "good cause" justified an award of lost future earnings or medical expenses in excess of the one million dollar limit and that application of this limit would be unfair. We agree in part and conclude a remand for further proceedings is necessary.

The Wallbanks argue the trial court implicitly made the findings necessary for awarding damages in excess of the one million dollar limit when it adopted their position regarding the exceptions to the limit in its order denying Rothenberg's motion to reduce the judgment. However, the trial court's order simply stated the motion was "denied" without discussing good cause or unfairness.

We are not persuaded by the Wallbanks' argument that Herrera v. Gene's Towing, 827 P.2d 619 (Colo.App.1992), warrants the conclusion that implied findings are sufficient here. There, a division of this court determined that the trial court was not required to make specific findings that an award of non-economic damages in exeess of $250,000 had been proved by clear and convincing evidence, the statutory standard of proof under § 13-21-102.5(8)(a), C.R.S.2002. Here, in contrast, the trial court's articulation of factors establishing good cause and unfairness in application of the one million dollar cap would be readily subject to review for abuse of discretion.

1. Future Medical Expenses

"An award of future medical expenses must be based upon substantial evidence which establishes the reasonable probability that such expenses will necessarily be incurred." Reynolds v. Reichwein, 510 P.2d 895, 896 (Colo.App.1973)(not published pursuant to C.A.R. 85(f)).

Here, the record does not support an award of future medical expenses. No evidence suggests future medical expenses necessarily will be incurred. While there was evidence that Emily Wallbank could benefit from reconstructive surgery at a young age, her mother testified that Emily, with input from her parents, would make that decision.

Additionally, even the approximate cost of this surgical procedure was not presented to the jury. Instead, the Wallbanks elicited testimony that Rothenberg charged $2,000 for the surgery he performed. In closing statement, the Wallbanks' counsel asked the jury to "use that as a starting place to evaluate the cost of future medical care."

Therefore, we conclude that there was insufficient evidence as a matter of law to support an award for future medical expenses. See Reynolds v. Reichwein, supra. Accordingly, we vacate that award.

2. Lost Future Earnings

The determination whether to award damages for lost future earnings for a minor and in what amount, if any, "is left to the sound judgment and experience of the jury" because it is impossible to provide evidence of the value of a minor's future lost wages. Stewart v. Rice, 25 P.3d 1233, 1236 (Colo.App.2000), rev'd on other grounds, 47 P.3d 316 (Colo.2002).

Here, the Wallbanks' vocational rehabilitation expert testified that, according to literature on the subject, persons who have a facial disfigurement may encounter difficulties upon entering the workforce in obtaining certain types of employment because "the biggest problem in employment is probably the first impression people make, and if you don't get past the first impression, if you don't get an employer to see beyond their initial instinet, you won't be hired." We conclude this testimony was sufficient to support the award of $73,500 for lost future earnings.

Rothenberg filed a motion to amend the judgment, which the trial court summarily denied. The trial court did not address whether good cause existed for awarding damages in excess of the HCAA's one million dollar damage limitation or whether application of the limit to damages awarded for lost future earnings would be unfair.

Accordingly, we conclude a remand is necessary for further factual findings on this issue. See Rocky Mountain Health Maint. Org., Inc. v. Colo. Dep't of Health Care Policy & Financing, 54 P.3d 913, 918 (Colo.App.2001)(trial court must make sufficient findings to permit appropriate appellate review, providing an appellate court with "a clear understanding of the basis of its order"); see also C.R.C.P. 52. In addition, the trial court must enter an amended judgment for one million dollars and, in the event of appropriate findings of good cause and unfairness in application of the cap, for the award for lost future earnings as determined by the jury.

C. Prefiling Interest

Finally, Rothenberg contends that the trial court erred in denying his motion to amend judgment because it did not specify that any award of prefiling interest must be limited under the HCAA. We agree.

Under § 18-64-302(2), C.R.9.2002, prejudgment interest "that accrues during the time period beginning on the date the action accrued and ending on the date of filing of the civil action is deemed to be a part of the damages awarded ... and is included" within the HCAA's $250,000 limit on noneconomic damages and the one million dollar limit on total damages.

Here, although Rothenberg contended the trial court was required to apply the prefiling interest limitation to the judgment, the trial court denied the motion and made no findings regarding prefiling interest.

Under the one million dollar limitation, the Wallbanks may not recover additional amounts for prefiling interest. See § 18-64-302(2). Similarly, if the trial court finds good cause and unfairness justifying the award for lost future earnings, then prefiling interest also may not be awarded for that portion of the judgment that exceeds one million dollars, because prefiling interest is included in the total limit. Cf. Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo.1993)(holding, before enactment of § 13-64-802(2), that prefiling interest was not subject to one million dollar total damages limitation in the HCAA); Shannon v. Colo. Sch. of Mines, 847 P.2d 210 (Colo.App.1992)(prejudgment interest not recoverable on damages for future losses). However, the Wallbanks may recover postfiling prejudgment interest and post-judgment interest. See § 18-21-101, C.R.S. 2002.

Therefore, we conclude it is necessary to remand this matter to the trial court for further findings on this issue. See Rocky Mountain Health Maint. Org., Inc. v. Colo. Dep't of Health Care Policy & Financing, supra; see also C.R.C.P. 52.

The judgment is affirmed, except the award for future medical expenses is vacated, the trial court's determination not to reduce the amount of the judgment in accordance with the HCAA one million dollar limitation on total damages is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge WEBB and Judge PLANK concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Eliah S. KLAUSNER, Defendant-Appellant and Cross-Appellee.
    No. 00CA2381.
    Colorado Court of Appeals.
    Jan. 16, 2003.
    Rehearing Denied Feb. 27, 2003.
    Certiorari Denied July 21, 2003.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    David S. Kaplan, Colorado State Public Defender, Naney J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

       Justice MARTINEZ would grant as to the following issues:
      Whether the court of appeals erroneously concluded that defendants who are convicted under section 18-6.5-103(7) are subject to sentencing under the Colorado Sex Offender Lifetime Supervision act, where this offense is not specifically enumerated in the Act. #
      Whether the elemental jury instruction, which omitted three critical elements of the offense, deprived the defendant of his due process right to have the jury determine whether the prosecution proved a crime beyond a reasonable doubt. Whether the trial court erroneously excluded the videotaped confession that the defendant sought to cross-examine the detective's depiction of the confession.

   Opinion by

Judge KAPELKE.

Defendant, Eliah S. Klausner, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault on an at-risk adult, a class two felony, in violation of § 18-6.5-103(7), C.R.S. 2002. The People cross-appeal, contending that the trial court erred in concluding that defendant's offense was not subject to the indeterminate sentencing scheme for sex offenders under § 18-1.3-1004, C.R.S.2002 (formerly § 16-18-804). We affirm the judgment, vacate the sentence, and remand for resentencing.

The victim, a 78-year-old nursing home resident suffering from advanced Alzheimer's disease, was sexually assaulted at her nursing home by defendant, a nursing assistant.

Defendant and the other male staff member on duty the night of the assault were questioned by police and consented to DNA testing. The test results revealed the presence of DNA that was consistent with defendant's, but not that of the other male staff member. After learning the test results, a police officer told defendant, "we found your semen in her." At that point, defendant confessed.

Defendant was not under arrest at the time of the confession. However, immediately after he confessed, he was placed under arrest and waived his Miranda rights.

The police videotaped defendant's confession, waiver of Miranda rights, and subsequent interrogation.

At trial, defendant admitted assaulting the victim, but argued that his actions constituted second degree sexual assault rather than first degree assault because the evidence did not establish that the victim was "physically helpless," as that term is defined by statute. The trial court instructed the jury on both offenses, and the jury returned a guilty verdict on the charge of first degree sexual assault. The court imposed a sentence of sixteen years, but rejected the prosecution's argument that defendant was subject to indeterminate sentencing.

I. Sufficiency of the Evidence

Defendant first contends that the evidence was insufficient to establish that the victim was "physically helpless," as that term is defined by § 18-3-401(8), C.R.98.2002. We disagree.

Challenges to the sufficiency of the evidence to support a criminal conviction require a determination whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. People v. Quick, 713 P.2d 1282 (Colo.1986).

A victim is "physically helpless" if he or she is "unconscious, asleep, or otherwise unable to indicate willingness to act." Section 18-83-401(8).

Our review of the record demonstrates that there was sufficient evidence from which the jury could find that the victim was unable to indicate a willingness to act and therefore "physically helpless" within the statutory definition of that term. There was testimony that the victim was virtually unable to converse and required total care; that she needed assistance in everything she did; that while she could at times respond to a simple yes-or-no question, her answers could be nonsensical or inaccurate; that she was physically incapable of protecting herself against any attack; that she was in a locked facility for her own protection, because she would otherwise wander away; and that the Alzheimer's disease affected her both mentally and physically.

Defendant maintains that the evidence showed the victim was physically able to indicate a willingness to act. In so arguing, defendant points to the fact that the victim had walked toward him at his command to "come here." Further, he argues that the victim was merely mentally incapable of understanding the nature of her actions, rather than physically helpless. However, the evidence showed that the victim's condition affected her physically as well as mentally, such that she was unable to indicate willingness to act. We will not reweigh the evidence nor determine witness eredibility, Kogan v. People, 756 P.2d 945 (Colo.1988).

Accordingly, we find no error.

IIL, - Omission of Elements From Instruction

Defendant next contends that the trial court erred by omitting three elements from the jury instruction concerning first degree sexual assault. We perceive no basis for reversal.

The People concede that the instructions given to the jury regarding first degree sexual assault omitted the elements of the defendant's knowledge of the victim's physical helplessness and lack of consent. However, as defendant concedes, there was no objection to the instruction in the trial court. Therefore, the instructional error is subject to a constitutional harmless error or plain error analysis, rather than structural error analysis as urged by defendant. See Griego v. People, 19 P.3d 1 (Colo.2001).

A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict obtained. G@riego v. People, supra. An error rises to the level of plain error when it so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Bogdanov v. People, 941 P.2d 247 (Colo.1997).

Here, we conclude that reversal is not required under the constitutional harmless error standard. See People v. Auman, 67 P.3d 741, 2002 WL 31121880 (Colo.App. No. 99CA0016, Sept. 26, 2002).

Defendant did not argue that the victim had consented to the sexual assault. Indeed, he admitted to the arresting officer that she did not consent. Nor did defendant claim he had been unaware that the victim was physically helpless. Rather, it was defendant's theory of the case that the victim was simply not physically helpless within the meaning of the statute.

There was overwhelming evidence of the victim's physical limitations and her lack of consent, as well as of defendant's knowledge of those limitations and lack of consent. Because defendant's mental state and the vice-tim's consent were not contested issues at trial, we are confident that the instructional errors did not contribute to the jury verdict. See People v. Auman, supra (although the instructions misdescribed the element of "knowingly," defendant's admissions at trial precluded a conclusion that a misinterpretation of the standard played a role in the verdict); see also People v. Hunter, 666 P.2d 570 (Colo.1983)(no plain error where court failed to instruct on an element of the crime not in issue); People v. Romero, 689 P.2d 692 (Colo.App.1984)(same).

Therefore, we find no reversible error.

III. Exelusion of Videotaped Confession

Defendant next contends that the trial court abused its discretion in denying admission of his videotaped confession in connection with his cross-examination of the arresting officer. We disagree.

Defendant sought to introduce the videotape of his confession to allow the jury to observe his demeanor at that time and to show the context of his statements. The prosecution objected, arguing in part that the tape included references to defendant's drug use, which the trial court had previously ruled inadmissible. The prosecution further argued that the tape had not been edited to redact the inadmissible statements.

The trial court denied defendant's request to admit the tape, noting that because defendant failed to raise the issue until midtrial, it was not feasible for the court to view the one and one-half hour tape, rule on the admissibility of various statements, and also afford the parties the opportunity to redact inadmissible material.

Defendant has not shown that he suffered any prejudice from the exclusion of the videotape. He does not claim that it contained exeulpatory evidence, nor has he demonstrated that its content was inconsistent with the testimony of the arresting officer so as to impeach him. Moreover, defense counsel was permitted to cross-examine the arresting officer at length regarding defendant's demeanor and the full context of defendant's statements. Accordingly, we find no basis for reversal.

IV. Voluntariness of Confession

Defendant next contends that the trial court erred in concluding that his confession was voluntary. Specifically, he argues that his confession to the arresting officer was involuntary because the officer made the deceptive claim that the police had found defendant's semen in the victim, when in fact the DNA evidence only indicated that defendant's DNA was consistent with the semen found in the victim. We find no error.

The determination of whether a confession is voluntary should be based upon the totality of the cireumstances, including any official misconduct. People v. Smith, 716 P.2d 1115 (Colo.1986). On review, we are bound by the trial court's factual findings when they are supported by adequate evi-denee in the record, and we will not lightly disturb the court's finding that a statement was voluntarily made. People v. Trujillo, 784 P.2d 788 (Colo.1990).

While it is improper for a police officer to make false representations regarding the evidence of a defendant's guilt, a single impropriety of this kind, standing alone, will not necessarily render a confession involuntary. People v. Cooper, 731 P.2d 781 (Colo.App.1986).

Defendant relies on People v. Freeman, 668 P.2d 1371 (Colo.1983), in support of his claim that the alleged misrepresentation here was sufficient to render his confession involuntary. We find that case distinguishable. In Freeman, the officers made repeated misrepresentations to the defendant regarding his potential punishment and the strength of the evidence against him. Further, they conducted the interrogation by alternately berating, reassuring, and complimenting the defendant. The supreme court concluded that, while none of the factors considered separately would render the confession involuntary, their combined effect, together with the coercive atmosphere, mandated a determination that the confession was involuntary.

Here, defendant points only to the alleged misrepresentation, and the record reveals no other basis for deeming the confession involuntary. - Furthermore, the trial court found, and the record confirms, that the statement regarding the DNA was not wholly inaceu-rate, because defendant's DNA was consistent with the DNA evidence found in the victim.

The trial court further ruled that even if the statement had been a misrepresentation, that was but one factor to be considered. Based on its review of the totality of the evidence, the court found the statement voluntary. The court pointed to several facts demonstrating voluntariness, including that: (1) defendant was not in custody at the time of the confession; (2) he waived his Miranda rights and gave further incriminating responses after making the confession; (8) no promises were made to him; (4) the style of the interview was not confrontational; (5) the questioning was nondirect, and he was given time to ponder his answers; (6) he wrote his statement while the officer was out of the room; (7) he did not request an attorney; and (8) his demeanor signaled that he had been caught.

Based on these findings, which have record support, we conclude that the trial court did not err in determining that the confession was voluntary.

V. - Applicability of Indeterminate Sentencing

By their cross-appeal, the People contend that the trial court erred in holding that the indeterminate sentencing scheme set forth in the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1001, et seq., C.R.S.2002 (the Act), does not apply to the crime of first degree sexual assault on an at-risk adult. We agree.

The interpretation of a statute involves a question of law that we review de novo. People v. Merchant, 983 P.2d 108 (Colo.App.1999). In construing a statute, our primary task is to ascertain and give effect to the intent of the General Assembly. To determine legislative intent, we look first to the plain and ordinary meaning of the statutory language. If the language is clear and the intent appears with reasonable certainty, there is no need to resort to other rules of statutory construction. People v. District Court, 713 P.2d 918 (Colo.1986).

The Act provides for indeterminate sentencing for "sex offenders," including those convicted of certain enumerated crimes. See § 18-1.3-1008(5), C.R.9.2002. The purpose of the Act is to provide lifetime treatment and supervision for sex offenders so that they will not continue to present a danger to the public when released from incarceration. Section 18-1.83-1001.

Here, defendant was convicted of sexual assault on an at-risk adult pursuant to § 18-6.5-103(7). We note, and the People concede, that § 18-6.5-103(7) is not one of the statutes specifically enumerated in the Act.

However, § 18-6.5-103(7)(a) provides as follows:

Any person who commits a crime of sexual assault, as such crime is described in seetion 18-8-402, sexual assault in the first degree, as such crime was deseribed in section 18-8-402, as it existed prior to July 1, 2000, and the victim is an at-risk adult or an at-risk juvenile commits a class 2 felony.

As pertinent here, § 18-1.3-1008(4), C.R.S. 2002, defines "sex offender" as "a person who is convicted of ... a sex offense."

Section 18-1.83-1008(5)(a)(I), in turn, defines "sex offense" to include "(A) sexual assault, as described in section 18-8-402; or (B) sexual assault in the first degree, as described in section 18-3-402 as it existed prior to July 1, 2000."

Defendant's conviction of sexual assault on an at-risk adult therefore required, by definition, proof that he had committed a sexual assault as described in § 18-3-402. Thus, defendant was convicted of a "sexual offense" within the meaning of the Act, and he is subject to indeterminate sentencing accordingly.

We reject defendant's argument that the General Assembly did not intend to subject a perpetrator to indeterminate sentencing where the victim is an at-risk adult. Such an interpretation appears to lead to an absurd result, because there is no rational basis for believing that the General Assembly wished to exclude from lifetime supervision those sex offenders whose victims had been especially vulnerable, that is, at-risk adults or juveniles.

Finally, we disagree with defendant's assertion that a remand for sentencing pursuant to the Act would violate the constitutional prohibition against double jeopardy. See People v. District Court, 673 P.2d 991 (Colo.1983)(when an original sentence is found to be contrary to statute, resentencing for a longer term does not constitute double jeopardy); People v. Ovalle, 51 P.3d 1073 (Colo.App.2002)(no double jeopardy violation in re-sentencing for longer term where defendant had not fully discharged original sentence).

The judgment is affirmed, the sentence is vacated, and the case is remanded for resen-tencing under the Act.

NEY and NIETO, JJ., concur.


author: Judge NEY.

text:
    Harry BAUM, Plaintiff-Appellant, v. TOWN OF FRISCO, a home rule municipality, and Dick Boylan, Defendants-Appellees.
    No. 02CA1164.
    Colorado Court of Appeals, Div. II.
    Jan. 30, 2003.
    Certiorari Granted Aug. 18, 2003.
    Peter H. Ziemke, LLC, Peter H. Ziemke, Wheat Ridge, Colorado, for Plaintiff-Appellant.
    Holme Roberts & Owen, LLC, Thad Re-naud, Denver, Colorado, for Defendant-Ap-pellee Town of Frisco.
    Schlueter Mahoney & Ross, P.C., Michael A. Schlueter, Denver, Colorado, for Defendant-Appellee Dick Boylan.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge NEY.

Plaintiff, Harry Baum, appeals the judgment dismissing for lack of subject matter jurisdiction his action against defendant, the Town of Frisco. We reverse and remand.

Plaintiff brought this action in district court pursuant to C.R.C.P. 106(a)(4) to challenge a zoning action by the town. The town moved to dismiss for lack of subject matter jurisdiction on grounds its town charter vested its municipal court with "exclusive original jurisdiction over all matters arising under this Charter, the ordinances, and other enactments of the Town." The district court granted the motion and dismissed the action, and plaintiff now appeals.

We review de novo the district court's legal conclusions upon a motion to dismiss for lack of subject matter jurisdiction. Walton v. State, 968 P.2d 636 (Colo.1998).

The pivotal legal issue here is whether the town's charter exceeds its constitutional authority by purporting to grant its municipal court exclusive jurisdiction of all matters arising under its charter, ordinances, and other enactments. The town asserts that it has the authority to set the jurisdiction of its municipal court,. While we agree with this assertion in general, see Colo. Const. art. XX, § 6, the issue here concerns the limits on that authority.

In purporting to establish exclusive jurisdiction in its municipal court over claims arising under its charter, ordinances, and other enactments, the town attempted to remove such jurisdiction from the district court. Thus, the issue before us is whether the town has the authority to divest the district courts of original jurisdiction over claims arising under the town's charter, ordinances, and other enactments. We conclude that it does not.

While a home rule city enjoys great power to regulate on matters of local concern, it has the power to regulate on issues of statewide concern only if authorized to do so by the constitution or a state statute. Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo.2000).

The jurisdiction of state courts is of statewide concern. See City & County of Denver v. Bridwell, 122 Colo. 520, 524, 224 P.2d 217, 218 (1950)(municipality's attempt to affect jurisdiction of state court "would be the exercise of an extraordinary power not included within the powers of local self-government" and "not to be exercised by a municipality unless granted by the people of the state or by the legislature"); Williams v. People, 38 Colo. 497, 505, 88 P. 463, 466 (1907)(municipality "cannot legislate with respect to the jurisdiction and procedure of the state courts, which necessarily are matters of governmental nature and state importance, and reserved exclusively for action by the general assembly"); see also Colo. Const. art. VI, § 19 ("[Talll laws relating to state courts shall be general and of uniform operation throughout the state"); Hardamon v. Municipal Court, 178 Colo. 271, 276, 497 P.2d 1000, 1002 (1972)(constitutional authority to establish municipal courts "is limited in seope to those aspects of court organization and operation which are local and municipal in nature and does not empower home rule cities to deny substantive rights conferred upon all of the citizens of the state by the [Gleneral [A]ssembly").

Accordingly, we conclude that unless the constitution or a state statute authorizes the town to grant exelusive original jurisdiction over certain matters to its municipal court, the town may not do so.

The town nevertheless argues that this authority is conferred by Colo. Const. art. VI, § 1, which reads:

The judicial power of the state shall be vested in a supreme court, district courts, a probate court in the city and county of Denver, a juvenile court in the city and county of Denver, county courts, and such other courts or judicial officers with jurisdiction inferior to the supreme court, as the general assembly may, from time to time establish; provided, however, that nothing herein contained shall be construed to restrict or diminish the powers of home rule cities and towns granted under article XX, section 6 of this constitution to create municipal and police courts. (Emphasis added.)

The town argues that the emphasized proviso grants a home rule city authority to create exclusive original jurisdiction of certain matters in its municipal court, regardless of the effect on other state courts. We reject this argument as applied to the issues in this case.

The plain language of art. VI, § 1 is clear, and we apply it as written. See Board of Education v. Booth, 984 P.2d 639, 647 (Colo.1999)("Where the language of the constitution is plain and its meaning clear, we will enforce that language as written."). This proviso harmonizes this section with Colo. Const. art. XX, § 6 and clarifies that the grant of authority to the General Assembly to establish inferior courts does not abrogate the power of home rule cities to establish municipal courts. Interpreting the proviso to authorize home rule cities to limit the jurisdiction of district courts would not give effect to the entire section, but rather would conflict with the preceding clauses granting such authority to the General Assembly. See Reale v. Board of Real Estate Appraisers, 880 P.2d 1205 (Colo.1994).

Because the town is without authority to alter the jurisdiction of the district courts, we conclude that the district court has jurisdiction of plaintiffs action here. See Colo. Const. art. VI, § 9(I)("The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal, except as otherwise provided herein, cases ... and shall have such appellate jurisdiction as may be prescribed by law."). Accordingly, we conclude that the court erred in dismissing this case for lack of subject matter jurisdiction.

The judgment is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.

Chief Judge HUME and Justice ERICKSON coneur.


text:
    The PEOPLE of the State of Colorado, Petitioner-Appellant, v. ARAPAHOE COUNTY COURT and The Honorable Alex R. Bencze, Respondents-Appellees, and Joseph J. Verbrugge, Intervenor-Appellee.
    No. 02CA0060.
    Colorado Court of Appeals, Div. II.
    Jan. 30, 2003.
    Rehearing Denied March 27, 2003.
    Certiorari Denied Aug. 18, 2003.

      James J. Peters, District Attorney, William W. Hood, III, Chief Deputy District Attorney, Englewood, Colorado, for Petitioner-Appellant.
    Ken Salazar, Attorney General, Gary R. Brown, Assistant Attorney General, Denver, Colorado, for Respondents-Appellees.
    Springer and Steinberg, P.C., Harvey A. Steinberg, Stacey L. Ross, Denver, Colorado, for Intervenor-Appellee.

       Justice COATS would grant as to the following issues:
      Whether the court of appeals erred in concluding that duplication of sexually exploitive materials pursuant to Crim. P. 16 does not violate section 18-6-403, 6 C.R.S. (2002)?
      Whether the statutory exception under section 18-6-403(3)(b.5) permitting court personnel to possess sexually exploitive materials encompasses defense counsel?

       sitting by assignment of the Chief Justice under © provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge NEY.

The People appeal the order of the district court concluding that the county court did not abuse its discretion by requiring the district attorney's office to provide defense counsel with duplicates of photographs that form the basis of the criminal charge. We affirm.

The events underlying this appeal arose during discovery in a criminal prosecution, case no. O1CR1501, against defendant Joseph J. Verbrugge. Defendant is charged with 200 counts of sexual exploitation of a child, based upon his possession of certain photographs of his son. Pursuant to defendant's motion, the county court ordered the prosecution to provide duplicates of the photographs to defense counsel. The county court issued a protective order (1) prohibiting defense counsel from disseminating or copying the material or leaving it in defendant's possession and (2) requiring that at the conclusion of the case, the photographs be returned to the court for destruction.

Pursuant to C.R.C.P. 106(a)(4), the People filed this action in the district court alleging that the discovery order constituted an abuse of discretion in that it conflicts with § 18-6-403(3), C.R.S.2002. The district court concluded that the county court did not abuse its discretion, and the People now appeal.

To determine whether the county court abused its discretion, we must determine the seope of § 18-6-403(8), which reads:

A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:
(b) Prepares, arranges for, publishes, . produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes ... any sexually exploitative material; or
(b.5) Possesses or controls any sexually exploitative material for any purpose; except that this paragraph (b.5) does not apply to peace officers or court personnel in the performance of their official duties

On its face, this statute is inapplicable to discovery in a criminal case. However, the People raise two arguments for its applicability. First, the People argue that that the ban on publishing explicit photographs of children in § 18-6-403(@8)(b) should be read to prohibit the reproduction of the photographs for defense counsel's use. Second, the People argue that defense counsel cannot possess the photographs pursuant to § 18-6-403(8)(b.5). We disagree with both of these arguments.

In construing a statute, our primary task is to ascertain and give effect to the intent of the General Assembly. In doing so, we must harmonize each provision of a statute with the overall statutory scheme. Furthermore, we presume that the General Assembly intended a just and reasonable result, and we avoid interpretations leading to unjust or absurd results. People v. Richards, 23 P.3d 1223 (Colo.App.2000).

In contrast to the People's interpretation of § 18-6-408(8), Crim. P. 16(a)(1) requires the prosecution to provide, upon defendant's request, duplicates of any photographs held as evidence in connection with the case. The People concede that upon request, pursuant to Crim. P. 16(a)(1), photographs would normally be duplicated for defendant's use. However, the People contend that under § 18-6-403(3) they are prohibited from doing so.

However, the People's reading of § 18-6-403(3) would deprive defendant of the equal opportunity to examine the photographs under the same conditions as the prosecution and would frustrate the purposes of Crim. P. 16, which was designed to ensure a fair trial. See Lanari v. People, 827 P.2d 495, 499 (Colo.1992)("By permitting the prosecution and defense to obtain relevant information prior to trial, the rules also promote fairness in the criminal process by reducing the risk of trial by ambush."); People v. Edgar, 40 Colo.App. 377, 578 P.2d 666 (1978)(pretrial discovery rules aid accuracy and efficiency in the search for truth). In the words of the county court, the People's interpretation would "tilt the playing field to [the prosecution's] advantage."

Additionally, it should be noted that § 18-1-701, C.R.9.2002, provides full justification and exemption from eriminal liability for actions taken under a judicial decree binding in Colorado. Here, because the county court required the prosecution to provide duplicates of the photographs to defense counsel, neither the district attorney nor defense counsel would be subject to criminal lability.

Thus, we reject the People's interpretation, and we conclude that, in light of the purposes of Crim. P. 16, § 18-6-403(8)(b) does not apply to the duplication of photographs by the prosecution for use by defense counsel in preparation for trial, when, as here, the county court has taken adequate precautions to limit their use.

The People also contend that Crim. P. 16 must yield to the statute in the event of a conflict between them. However, we need not reach this argument because we have found no conflict between § 18-6-408 and Crim. P. 16.

Additionally, based upon our holding here, we do not address the argument that the statutory exception in § 18-6-408(8)(b.5) for court personnel does not include defense counsel.

Accordingly, we conclude that the county court did not abuse its discretion.

The order is affirmed.

Judge MARQUEZ and Justice ERICKSON concur.


author: Judge KAPELKE. Judge NEY

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. PHONG LE, Defendant-Appellant.
    No. 01CA1303.
    Colorado Court of Appeals, Div. III.
    Feb. 13, 2003.
    Rehearing Denied April 17, 2003.

      Ken- Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Forrest W. Lewis, P.C., Forrest W. Lewis, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. IV, § 5(3), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge KAPELKE.

Defendant, Phong Le, appeals his sentences, which total thirty-six years in the Department of Corrections (DOC). We affirm the sentences and remand for amendment of the mittimus.

Defendant and three other individuals planned and carried out a robbery of his sister-in-law's home. Two of the others later returned to the home, where they fatally shot the sister-in-law and her friend and also wounded a child.

Following a jury trial, defendant was found guilty of solicitation to commit first degree burglary, solicitation to commit aggravated robbery, conspiracy to commit first degree burglary, conspiracy to commit aggravated robbery, burglary, theft, and attempt to influence a public servant. He was acquitted on four counts of first degree murder and on counts of solicitation to commit first degree murder and attempt to commit aggravated robbery.

The court imposed sentences of twelve years on each of the solicitation convictions, to run concurrently with each other; twelve years on the conspiracy convictions, to run concurrently with each other and consecutively to the solicitation sentences; and twelve years on the burglary and the theft convictions, to run concurrently with each other and consecutively to the solicitation and conspiracy sentences. Each twelve-year sentence is the maximum within the aggravated - range - pursuant to - § 18-1.8-401(1)(a)(V)(A) and (6), C.R.S.2002. The court also imposed a six-year sentence on the attempt to influence a public servant convietion, to run concurrently with all the other sentences. - Thus, defendant's aggregate DOC sentence is thirty-six years.

I.

In this direct appeal, defendant contends that the court erred in imposing the maximum sentences in the aggravated range. Defendant asserts that his sentences are illegal and excessive as a matter of law because they are based on findings that are unsupported by the record and contrary to law and the jury verdict acquitting him of murder. Specifically, defendant argues that the court improperly considered the prosecution's "but for" argument-that but for the actions of defendant, the homicide victims would not have been killed-related to the murders, as well as evidence of his failure to stop or dissuade the others from returning to the victim's home. We find no basis for reversal.

Appellate courts must accord considerable deference to a sentence imposed by the trial court because of that court's familiarity with the circumstances of the case. People v. Fuller, 791 P.2d 702 (Colo.1990). Thus, a trial court's sentencing decision will not be disturbed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984). If the sentence imposed is within the range required by law, is based upon appropriate considerations as reflected by the record, and is factually supported by the cireumstances of the case, we must uphold it on review. People v. Fuller, supra.

The basic factors implicated in any sentencing decision include "the gravity of the offense, the extent of injury caused to the victim, the defendant's societal history and prior criminal record, the risk of future erim-inal conduct posed by the defendant, and the potential of the defendant for effective rehabilitation." People v. Madril, 746 P.2d 1329, 1336 (Colo.1987). - Further, the cireum-stances of the crime alone may justify imposition of a maximum sentence. People v. Vigil, 718 P.2d 496 (Colo.1986).

Here, at the sentencing hearing, the prosecutor argued:

This wasn't just a burglary. The truth of the matter is, but for this man's conduct, two people would not have been butchered in their own home, and a four-year-old boy shot.

In response, defense counsel argued that the "but for" argument was improper because, "Defendant was not the person who killed these people, and he didn't intend them to be killed. That's what the evidence was. That's what the jury found."

In its sentencing findings, the court stated:

The defendant was found not guilty of murder and felony murder, despite the fact that it was the position of the prosecution that this is the individual who really put the whole thing into play, and that he, in essence, arranged to have his sister-in-law killed. And that was a hotly contested issue, and one that the jury resolved in favor of the defendant.
Nonetheless, they found him guilty of some fairly serious crimes, including conspiracy to commit armed robbery and solicitation to commit aggravated robbery, {and] second-degree burglary, and I think that there is some weight to be given to the but-for argument, because I think that it is true that but for the actions of this individual, those individuals would not have died, would not have been killed.
While I certainly can't say that the defendant arranged to have them killed, it's fairly clear from the jury's verdict that he put into motion erimes which were not only very serious in and of themselves, but which created a great risk to the individuals who ended up getting murdered as a result of the crimes that he put in motion.
And I think that's a fact that I can take into consideration, and I will take into account that this individual did, regardless of what his intentions may have been, at best obviously disregarded the great risk that he ... was subjecting these folks to. The prosecution, of course, would argue that he did much more than disregard a risk, that he intentionally caused it to happen. But I think that, based on the jury's verdict, the most that I can assume is that he consciously disregarded a substantial risk that this would happen, despite the fact that he knew what [the shooter] was like, and he certainly participated, to a greater or lesser degree, in every aspect of the planning and initial implementation of the crime, and participated in part of it.
So I find as a result of that, that there are not only these serious crimes, but also that there is significant aggravation involved here.

Although the sentencing court considered mitigating factors, it unequivocally concluded that the aggravating factors, including defendant's serious juvenile record and the "severity of the crimes and the ultimate consequences of putting these crimes in place," outweighed the mitigating circumstances. The court summed up its findings on aggravation:

[TJhose exceptional cireumstances include [the fact that] the defendant, despite a young age, has a very serious eriminal history; and two, and this is really the important one, that these particular crimes resulted in the most serious consequence possible, that is, the death of two individuals, and the shooting of a 4-year-old child.

Contrary to defendant's argument, the court was not, in effect, sentencing him for murders of which he had been acquitted. The record indicates that the court specificalTy acknowledged and took into account defendant's acquittal on the murder counts. The court recognized that the jury resolved in defendant's favor the contested issue of whether he had arranged the murder. In imposing the aggravated range sentences, the court was not assigning defendant direct culpability for the shooting, but was instead focusing on his role in the crimes for which he was convicted and emphasizing the substantial and serious risks that such crimes create and the grave consequences that can-and here ultimately did-result from them.

As the court's quoted remarks indicate, the court considered to some extent the prosecution's "but for" argument. Further, while the court considered the evidence that defendant withdrew from the conspiracy, it observed, with record support, that defendant had set in motion the series of events that ultimately led to the deaths and that he "did not do anything to prevent the crime from happening at that point." The court specifically indicated it would not assume that defendant had a legal duty to stop the others from returning to the victim's home, but nonetheless noted that the ultimate killing "certainly is a crime that he could have prevented."

We do not agree with defendant's assertion that the court's consideration of such factors was improper. CL People v. Lowery, 642 P.2d 515, 518 (Colo.1982)("it is proper for the judge to consider aggravating or mitigating information, including other charges 'dismissed at the time of the plea"); People v. Campbell, 58 P.3d 1080 (Colo.App.2002)(cert. granted Nov. 25, 2002)(sentencing court did not abuse its discretion in considering that defendant previously failed to seek help for a woman who had died of an obvious drug overdose in his presence).

Further, even if we were to agree with defendant that his sentence is based to some extent on conduct that formed the basis of a charge of which he was acquitted, that fact would not compel reversal. See United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997)("I[A] jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."); see also United States v. Mendez-Zamora, 296 F.3d 1013 (10th Cir.2002)(same).

Here, the sentencing court's consideration of defendant's role in the erimes that later led to the murders was not tantamount to punishing him for erimes of which he was acquitted. Rather, the court properly evaluated the overall cireumstances of the crimes of which he was convicted and of the serious risks that attend such crimes. See People v. Vigil, supra; People v. Smith, 881 P.2d 385, 389 (Colo.App.1994)("The cireumstances of the crime and the offender's past criminal record may justify the imposition of a lengthy sentence.").

We therefore find no abuse of discretion.

IL.

Defendant also contends that the trial court erred in imposing consecutive sentences on the solicitation convictions and the conspiracy convictions. He asserts that the evidence supporting these counts is identical and that the sentences therefore must be concurrent pursuant to § 18-1-408(8), C.R.S. 2002. We agree.

When a defendant is convicted of multiple offenses, the sentencing court has discretion to impose consecutive or concurrent sentences. - However, § 18-1-408(8) mandates imposition of concurrent sentences for offenses committed against a single vice-tim when the counts are based on the same act or series of acts arising from the same criminal episode and the evidence supporting the counts is identical. People v. Jurado, 30 P.3d 769 (Colo.App.2001).

"Whether the evidence supporting two or more offenses is identical turns on whether the charges result from the same discrete act, so that the evidence of the act is identical, or from two or more acts fairly considered to be separate acts, so that the evidence is different." People v. Page, 907 P.2d 624, 637 (Colo.App.1995).

Here, the conspiracy and solicitation convictions arose out of the same acts and are based on the same criminal episode, specifically, the planning session held among the four members of the group before the first burglary.

The offense of criminal solicitation requires proof that the defendant "commands, induces, entreats, or otherwise attempts to persuade another person ... to commit a felony." Section 18-2-301(1), C.R.S8.2002. The crime of conspiracy is the illegal agreement to commit a crime coupled with at least one overt act in furtherance of that agreement. - Section 18-2-201, C.R.S.2002; see People v. Hood, 878 P.2d 89, 95 (Colo.App.1994)(proof of the elements of solicitation does not necessarily establish conspiracy and vice versa).

Although the crime of solicitation requires proof of inducement, and conspiracy requires proof of an agreement and of an act in furtherance thereof, the convictions here were based on the same acts: the planning by the members of the group to rob the home of the victim and the performance of that robbery. Therefore, because the evidence supporting the convictions for conspiracy and solicitation was identical, concurrent sentencing was required. See People v. Page, supra (prosecution failed to establish basis for depriving defendant of right to concurrent sentences when the assault and attempted murder charges were based on identical evidence).

Thus, we remand for amendment of the mittimus to provide that the sentences on the solicitation convictions and the conspiracy convictions shall run concurrently with each other, as required by § 18-1-408(8).

IIL.

Finally, we reject defendant's challenge to his aggravated sentences under the rationale of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We conclude that the rule in that case does not apply to defendant's sentences. Ree People v. Allen, 43 P.3d 689, 693 (Colo.App.2001)(holding that Apprendi does not prohibit "the trial court, in its discretion, to sentence in aggravated or mitigated ranges based on unspecified extraordinary aggravating or mitigating factors or cireum-stances particularized to the defendant or the offense"); see also People v. Ramos, 53 P.3d 1178 (Colo.App.2002).

The sentences are affirmed, and the case is remanded to the trial court for amendment of the mittimus to provide that the sentences on defendant's solicitation and conspiracy convictions shall run concurrently with each other.

Judge STERNBERG concurs.

Judge NEY dissents.

Judge NEY

dissenting.

I dissent because I conclude the sentencing court improperly based defendant's aggravated sentences on acquitted conduct.

Here, two distinct criminal episodes occurred, and defendant was acquitted of participation in the second episode. However, the sentencing court concluded that "but for" defendant's conduct before and during the first episode, the second episode would not have occurred. The court then used the acquitted crimes to support defendant's sentences in the maximum aggravated range.

In my view, defendant thus received punishment for crimes of which he was acquitted by the jury. I consider this type of sentencing to be an abuse of discretion. See, eg., People v. Coward, 100 A.D.2d 628, 473 N.Y.S.2d 591, 593 (N.Y.App.Div.1984)(remanding for resentencing "in light of the sentencing court's remarks which apparently demonstrated that [it] had considered testimony relating to crimes for which defendant had been acquitted as a basis for sentencing").

Accordingly, I would remand the case for resentencing.


author: Judge JONES. Judge GRAHAM

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Victor ROBLES, Defendant-Appellant.
    No. 01CA0990.
    Colorado Court of Appeals, Div. II.
    Feb. 13, 2003.
    Rehearing Denied March 13, 2003.
    Certiorari Denied Aug. 18, 2003.
    Ken Salazar, Attorney General, Monica M. Marquez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Samler and Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge JONES.

Defendant, Victor Robles, appeals the trial court's order denying his Crim. P. 35(c) motion for postconviction relief based on the alleged ineffective assistance of his trial counsel. We affirm.

Defendant and a codefendant were tried in 1987 for their participation in a criminal episode that included, among other things, the breaking and entering of a business and the attack and robbery of two men.

During trial, a vietim of the assaults unexpectedly testified that defendant was one of his attackers. Neither the prosecution nor the defense expected an in-court identification by a witness.

Defense counsel moved to suppress the testimony and asked the court to grant a mistrial. The court held an in camera hearing on the matter, during which both defense counsel indicated waiver of their respective clients' presence. After determining that the in-court identification was not a result of improper conduct, the court denied the defense motions. The trial then resumed in the presence of defendant and the jury. Defense counsel fully cross-examined the witness about his identification of defendant and achieved the witness's concession that he could not in fact identify the faces and hair of either defendant.

The jury found defendant guilty of first degree burglary, robbery of the elderly, theft, aggravated motor vehicle theft, two counts of first degree assault, two counts of aggravated robbery, and five counts of crimes of violence. The court entered judgment of conviction against defendant and sentenced him to a cumulative total of 112 years in prison.

His conviction and sentence were affirmed on direct appeal by a division of this court in People v. Robles, (Colo.App. No. 88CAO0289, Jan. 4, 1990)({not published pursuant to C.A.R. 35(f))(Robles I). The supreme court granted a writ of certiorari and, in Robles v. People, 811 P.2d 804 (Colo.1991), ordered that defendant's sentence be modified to comply with the crimes of violence statute. On remand, defendant was resentenced by the trial court to sixty-eight years in prison.

According to the record, defendant then sought a reconsideration of his sentence pursuant to both Crim. P. 35(b) and (c), which the trial court denied. Defendant appealed the ruling; a division of this court affirmed it, People v. Robles, (Colo.App. No. 94CA0993, July 27, 1995)(not published pursuant to CAR. 35(f); and, in December 1995, the supreme court denied defendant's petition for writ of certiorari.

In October 1998, defendant filed the Crim. P. 35(c) motion at issue here. After a hearing, the court denied the motion, and this appeal followed.

1.

We begin by acknowledging the People's argument that defendant's Crim. P. 35(c) motion was filed outside the statutory time period for collateral attacks set forth in § 16-5-402(1), C.R.S.2002. However, we elect to address the merits of defendant's collateral attack because the trial court considered the motion on its merits. See People v. Kilgore, 992 P.2d 661 (Colo.App.1999).

IL.

Defendant contends that his conviction was obtained in violation of his constitutional right to effective assistance of counsel because counsel waived defendant's presence at the in camera hearing. We do not agree.

There is a strong presumption that judicial proceedings are reliable, and, to prove ineffective assistance of counsel, a defendant must overcome that presumption. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To succeed on a claim for ineffective assistance of counsel, the defendant must show both that his or her counsel's performance was constitutionally deficient and that the deficient performance resulted in prejudice to the defendant. However, the foregoing two-part test need not be met in any particular order; a court may elect first to determine whether the defendant suffered any prejudice and may resolve the claim on that basis alone. Strickland v. Washington, supra; People v. Naranjo, 840 P.2d 319 (Colo.1992).

To prove prejudice, a defendant must show a reasonable probability that, but for counsel's ineffective assistance, the result of the proceeding would have been different. Strickland v. Washington, supra. Thus, a defendant must establish a "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting [his or her] guilt." Strickland v. Washington, supra, 466 U.S. at 695, 104 S.Ct. at 2068-69, 80 L.Ed.2d 674.

Notably, the prejudice prong of the Strickland test is modified in cases where counsel's erroneous performance leads to a defendant's deprivation of legal proceedings. In such instances, to prove "actual prejudice," a defendant need show only a reasonable probability that, but for counsel's ineffective assistance, he or she would have asserted the right to have the legal proceeding. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)(defendant claiming ineffective assistance because counsel failed to consult with him about appeal must prove prejudice by showing that he would have timely appealed but for counsel's failure to consult with him), Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 LEd.2d 203 (1985)(defendant claiming that counsel's bad advice caused him to plead guilty must establish prejudice by showing that he would have proceeded to trial but for counsel's advice).

Moreover, the Strickland prejudice test does not apply at all when an ineffective assistance of counsel claim arises because of the actual or constructive total denial of the assistance of counsel. In such cases, there is a legal presumption of prejudice. Thus, when a defendant is completely denied assistance of counsel during a critical stage of judicial proceedings, when the state interferes in various ways with counsel's assistance, or when certain types of conflicts of interest are present, prejudice is presumed simply upon a showing that the actual or constructive deprivation occurred. - See Strickland v. Washington, supra.

Here, contrary to his assertions, defendant experienced neither a deprivation of a legal proceeding nor an actual or constructive total deprivation of assistance of counsel. Thus, defendant's trial proceedings must be afforded the usual strong presumption of reliability, and defendant must meet the "actual prejudice" requirement as defined in Strickland by showing a reasonable probability that the outcome of the case would have been different if counsel had not waived defendant's presence at the in camera hearing. Defendant has made no such showing.

The record reveals that, in finding defendant guilty, the jury could have relied on any or all of the following evidence presented at trial: One of defendant's friends testified that defendant had called her on the morning of the crime and had asked her to give him a ride. The friend picked up defendant and his codefendant from an auto body shop. During the ride, the two men told her about the attack, described it as a "job," showed her money and a ring they had taken from the victims, and described how they had hit one victim over the head with a bat and had hogtied another. The friend later contacted the police with this information.

Also, the friend's daughter, who had accompanied her mother to pick up the code-fendants, testified that she had heard the two men explain how they had used bats as weapons, hogtied a victim, "took one of the trucks" from the company, and later "got rid of it."

In addition, an employee of the body shop testified that he had identified one of the codefendants from a photo lineup the police had shown him some time after the crime. The employee testified that he had recognized a man in the lineup as the man who had asked him for a cigarette while waiting for a ride.

Further, a forensic serologist, who was accepted by the court as an expert, testified that a bloodstain on the codefendant's shoe was consistent with a blood sample taken from one victim, but inconsistent with blood samples taken from the other victim and the two perpetrators.

Finally, when defendant was arrested, a knife belonging to one of the victims was found in defendant's pocket.

Notwithstanding the fact that the above evidence could lead a reasonable jury to con-viet defendant of the charges, a division of this court, on direct appeal, also considered the above evidence, as well as the victim's surprise in-court identification, and concluded that the trial court's failure to suppress the testimony was not prejudicial because it "could not have substantially influenced the verdict or affected the fairness of the trial proceedings." Robles I, supra.

Thus, we need not consider defendant's contentions grounded in the Fifth and Fourteenth Amendments. Even if defendant had been present and his presence had somehow persuaded the court to suppress the identification, the absence of that "vague and cumulative" testimony still would not have allowed him to prevail at trial. Indeed, the record reflects that defendant may have benefited from the admission of the testimony in that it afforded his counsel the opportunity to damage the witness's credibility very effectively through cross-examination.

As a matter of law, defendant suffered no prejudice from his attorney's conduct. Therefore, we need not determine whether counsel's performance was deficient See People v. Naranjo, supra.

The order is affirmed.

Judge VOGT concurs.

Judge GRAHAM specially concurs.

Judge GRAHAM

specially concurring.

I agree with the conclusion and the analysis contained in Part II of the majority's opinion. I write separately, however, to express my view that defendant's motion for postconviction relief is time barred under § 16-5-402, C.R.8.2002.

Defendant first raised his claim of ineffective assistance of counsel nearly eleven years after trial and over four years after his conviction was final. In this period, defendant pursued a direct appeal, review of that appeal, and motions to reduce his sentence and a proportionality review of his sentences. He also has been afforded further appellate review of those matters.

Section 16-5-402 limits the time in which the validity of a conviction may be collaterally attacked to three years from the date of conviction. The three-year period began running June 25, 1991, the date this court issued its mandate at the conclusion of defendant's direct appeal. Although defendant was resentenced at the conclusion of his direct appeal, this cireumstance did not toll or otherwise modify the limitations period. See People v. Metcalf, 979 P.2d 581 (Colo.App.1999). One division of this court has already expressly ruled that resentencing does not modify the three-year period. People v. Cummins, 37 P.3d 507 (Colo.App.2001).

Thus, defendant's motion was time barred, and I see no reason to reach the merits of his ineffective assistance claim.


author: Judge CRISWELL.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Katherine Jewell DEVINE, Defendant-Appellant.
    No. 01CA1477.
    Colorado Court of Appeals, Div. II.
    Feb. 27, 2003.
    Rehearing Denied April 10, 2003.
    Certiorari Denied Aug. 18, 2003.

      Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Justice COATS would grant as to the following issues:
      Whether the court of appeals erred by holding that a unanimous verdict is required as to which act a defendant committed, where the defendant was charged with one count of theft and the evidence showed five acts of theft that occurred as part of a single fraudulent scheme. Whether the court of appeals incorrectly found plain error in the trial court's failure to give the jury a special unanimity instruction where the defendant did not request one.

   Opinion by

Judge CRISWELL.

Defendant, Katherine Jewell Devine, appeals the judgment of conviction on one count of theft of over $500 but less than $15,000, a class four felony under § 18-4-401(2)(c), C.R.S.2002, We reverse the conviction and remand the case for a new trial.

In 1992, defendant was made conservator of a trust account, which was the property of her then fifteen-year-old son. The son had received, after attorney fees, $5,088.93 as compensation for injuries suffered in an automobile accident. From December 1992 through May 1997, defendant sought approval for five withdrawals from the account, with the final withdrawal leaving the account empty. Each withdrawal was made allegedly to purchase items for the son. Excluding a $600 request for funds made in April 1995, the probate court approved all the withdrawals sought.

In 1998, the son approached the probate court to withdraw funds from his account and was informed that the account was empty. He then informed the court that he was unaware of the withdrawals and that he had received none of the items identified in the motions for withdrawal. Following the appointment of a guardian ad litem to investigate, defendant was charged with one count of theft under § 18-4-401(2)(c) for stealing the funds from the trust account. Following trial to a jury, defendant was convicted, sentenced to a brief jail term, admitted to probation, and ordered to pay restitution in the amount of $7,000.67.

I.

Defendant first asserts that, by failing properly to instruct the jurors, the trial court denied her right to a unanimous verdict. We agree.

The theft statute, § 18-4-401(4), C.R.S.2002, allows the amount stolen during multiple thefts, occurring within a six month period, to be aggregated for purposes of charging an offense with a greater attached sentence. Here, five discrete acts of theft, spanning a period of more than four years, are the subject of a single charge, although each withdrawal occurred more than six months after the previous one.

If discrete acts of embezzlement occurred all pursuant to a single criminal impulse, they may be charged as a single offense, regardless of the time period over which they occurred. See Gill v. People, 139 Colo. 401, 411, 339 P.2d 1000, 1005 (1959); People v. Stratton, 677 P.2d 373 (Colo.App.1983). The determination whether charging in this manner is duplicitous is for the trial court. Gill v. People, supra, 139 Colo. at 410, 339 P.2d at 1005.

Gill and Stratton, however, each involved employees who embezzled funds from their employers over eighteen- or twenty-two-month periods, with each transaction representing only a small percentage of the total theft. Here, the five discrete acts, occurring almost annually, were of a different character. Each of four of the withdrawals could, itself, constitute the sole basis for the charge as alleged.

Regardless of how a crime is charged, however, guilty verdicts must be supported by the jurors unanimously agreeing that the elements of the crime have been satisfied beyond a reasonable doubt. Section 16-10-108, C.R.S.2002. Where, as here, it cannot be said that the thefts were part of a single transaction, the prosecution must elect upon which transaction it seeks to base the conviction, or in the alternative, the jurors must be given a unanimity instruction. People v. Thurman, 948 P.2d 69, 71 (Colo.App.1997); cf. People v. Freda, 817 P.2d 588, 593 (Colo.App.1991)(where each transaction is charged as a separate offense, a jury need only agree that each element of the offense is satisfied).

If the evidence presents a reasonable likelihood that jurors may disagree upon which acts the defendant committed, and the prosecution does not elect to stand upon a specific incident, jurors should be instructed that they must unanimously agree as to a specific act or agree that the defendant committed all the acts alleged. Thomas v. People, 803 P.2d 144, 153-54 (Colo.1990). This requirement assures that the jury does not base its conviction upon some jurors finding that one act was committed, while others rely on a different act. People v. Rivera, 56 P.3d 1155, 1160 (Colo.App.2002).

Defendant's counsel did not request a unanimity instruction, so our analysis here must consider whether the failure to so instruct was plain error. See Crim. P. 52(b); People v. Garcia, 28 P.3d 340, 344 (Colo.2001); People v. Rivera, supra, 56 P.3d at 1159. Reversal under a plain error standard requires a defendant to demonstrate not only that the absence of an instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to the conviction. People v. Garcia, supra, 28 P.3d at 344.

Unlike the situation in Thomas, supra, here the court was not presented with a viectim-witness who was incapable of aceu-rately recalling the time and date of the specific instances of the alleged offense. On the contrary, each withdrawal here was a completely separate transaction and was the subject of different testimony and evidence. In such a case, the failure to give a special unanimity instruction raises grave doubts whether the jurors' conviction was based upon a true unanimity, or whether different incidents formed the basis for the conclusion of individual jurors. We conclude, therefore, that the failure to instruct here was plain error.

Defendant also contends that the conviction must be reversed because of insufficiency of the evidence. Specifically, she asserts that the jury might have based its verdict on the fourth withdrawal, a transaction involving only $400. However, because that incident alone could not support the verdict returned, it is obvious that the jurors relied upon at least one of the other incidents, each of which was a withdrawal of $500 or more. And there is no assertion that the evidence was not sufficient to support a verdiet based on any one or more of these four withdrawals.

IL.

Because defendant's contention that a conviction cannot be based upon deception of the probate court is based upon cireum-stances that may recur on retrial, we address it here.

Defendant was charged with stealing funds belonging to the son's estate. By statute, theft occurs when a defendant "knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception." Section 18-4-401(1), C.R.S.2002. A thing of value is defined as "that of 'another' if anyone other than the defendant has a possessory or proprietary interest therein." - Section 18-4-401(1.5), C.R.9.2002 (emphasis added).

Defendant is correct in asserting that to convict on these facts, it must be found that the monies were obtained either without authorization or by deception. Defendant relies on language in People v. Norman, 703 P.2d 1261, 1268 (Colo.1985), to argue that it is the victim who must be deceived. However, the theft statute has been interpreted to include conduct where, through deception, a defendant has acquired the victim's property by deceiving the vie-tim's agent. See People v. Warner, 801 P.2d 1187, 1190 (Colo.1990). Further, in Norman, neither the victim nor the victim's agents ever relied upon the defendant's misrepresentations.

The victim here, the son's estate, was capable of being deceived only through deception upon the probate court. The probate court was the only entity entitled to determine whether the estate could part with any of the estate property. Accordingly, we agree with the prosecution that, in this situation, deception made upon the probate court in an effort to commit theft from a victim's estate satisfies the requirements of § 18-4-401(1).

The judgment is reversed, and the case is remanded to the district court for a new trial in accordance with the views expressed in this opinion.

Judge NEY and Judge MARQUEZ concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


author: Judge DAVIDSON.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Fred BARBER, Defendant-Appellant.
    No. 02CA1005.
    Colorado Court of Appeals, Div. III.
    Feb. 27, 2003.
    Certiorari Denied Aug. 4, 2003.

      Ken Salazar, Attorney General, Joseph P. Sanchez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Fred Barber, Pro Se.
   Opinion by

Judge DAVIDSON.

Defendant, Fred Barber, appeals from the orders denying his postconviction motions, filed pursuant to Crim. P. 35(c)(2)(VII), challenging the constitutionality of his reincar-ceration imposed after revocation of mandatory parole. We affirm.

Defendant pled guilty to conspiracy to possess a schedule II controlled substance and was sentenced to a four-year term in the Department of Corrections (DOC), plus a three-year period of mandatory parole. Defendant served his term of imprisonment and was subsequently released to serve his period of mandatory parole.

Thereafter, according to defendant's motion, he sent a letter to the Colorado Parole Board self-revoking his parole because "he was no longer in agreement with the terms and conditions as modified by the parole agent." The parole board then revoked defendant's parole and ordered that he be rein-carcerated for the remainder of the mandatory parole period.

Defendant apparently filed an initial post-conviction motion challenging the revocation, which the Crim. P. 35(c) court summarily denied. Defendant then filed a "Renewed and Revised Motion for Protection from Unconstitutional Parole Revocation and Unconstitutional Parole Statutes, Pursuant to C.R.Crim.P. Rule 35(c)@(VID) and 85(c)," which also was denied.

On appeal, defendant reasserts the constitutional claims raised in his postconviction motions challenging his parole revocation, Specifically, he contends that his reincarceration for the remainder of his mandatory parole period is in violation of equal protection, the doctrine of separation of powers, and procedural due process. We disagree.

I.

Defendant first contends that, because inmate disciplinary actions are subject to the procedures and penalties contained in the Code of Penal Discipline, and parolees such as himself are subject to the discretion of the parole board, he was denied equal protection of the laws. We disagree.

The threshold question in any equal protection challenge is whether the persons allegedly subject to disparate treatment are in fact similarly situated. People v. Black, 915 P.2d 1257 (Colo.1996).

Although inmates and parolees are in legal custody and, thus, are constructively prisoners of the state, see People v. Perea, 74 P.3d 326, 2002 WL 1766009 (Colo.App. 00CA1473, Aug. 1, 2002), parolees have substantially greater freedom than do incarcerated inmates. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 LEd.2d 484 (1972)(a term of parole, while subject to many restrictions not applicable to citizens, is very different from confinement in prison); People v. Luther, 58 P.3d 1013, 1017 (Colo.2002)(parole is a "condition of constrained liberty involving a 'release from institutional custody' " (quoting § 17-22.5-404(1), C.R.8.2002)).

Moreover, while the DOC governs the conditions of confinement, see People v. Harris, 934 P.2d 882 (Colo.App.1997), the parole board has authority to establish the conditions of parole. See § 17-22.5-403(8)(a), C.R.S.2002 (authorizing the parole board to continue, modify, or revoke parole when an offender violates a condition of parole). Contrary to defendant's argument, "[the parole board and DOC are separate entities in the Executive Branch." People v. Gallegos, 975 P.2d 1135, 1138 (Colo.App.1998), aff'd, 2 P.3d 716 (Colo.2000).

Thus, we conclude that inmates and parolees are not similarly situated because their supervision is governed by distinct entities. Accordingly, the Crim. P. 85(c) court properly rejected defendant's equal protection claim. See People v. Friesen, 45 P.3d 784 (Colo.App.2001) equal protection violation occurs only when the person alleging disparate treatment is in fact similarly situated).

IL.

Defendant next contends that the parole board's power to revoke his mandatory parole constituted a violation of separation of powers. Specifically, he asserts that the parole board's power to "sentence" him by revoking his parole impinges on the power of the judiciary. We again disagree.

Defendant's contention is premised on the assumption that the revocation of mandatory parole converts the term of parole into a new prison sentence. However, rein-carceration after a parole violation is incarceration on an already imposed sentence. See People v. Luther, supra (when defendant is reincarcerated on mandatory parole revocation, he is serving a revocation of parole period); Martin v. People, 27 P.3d 846 (Colo.2001)(offender who has completed his sentence of incarceration has not discharged his sentence in its entirety); People v. Lucero, 772 P.2d 58 (Colo.1989)(defendant's release on parole in no way alters the fact that he is still under sentence); People v. Perea, supra, (offender is no longer serving a period of parole, but instead is serving a penalty period of confinement).

Accordingly, because defendant's parole revocation reinearceration does not constitute a new sentence, the power of the judiciary is not implicated.

TIL

Defendant also challenges as a violation of due process the parole board's "unlimited discretionary power" to impose the maximum length of reincarceration regardless of the severity of the infraction, as well as the lack of a specific schedule of penalties. We find no violation.

Initially, we note that the revocation of defendant's parole was not a discretionary act by the parole board. Under the relevant statutory scheme, the parole board "shall revoke the parole if requested to do so by the parolee." Section 17-2-103(9)(a), C.R.S. 2002. Although defendant's letter is not contained in the record, defendant concedes that he "self-revoked" his parole.

Nevertheless, defendant argues that, even if he consented to the revocation itself, the fact that the parole board had the discretion to reincarcerate him for the full time remaining on his period of parole, and did so, constitutes a violation of due process. Again, his argument is premised on the mistaken assumption that reincarceration following mandatory parole revocation constitutes a new sentence. Defendant reasons that circumscribed due process guarantees-otherwise acceptable in the context of revocation of discretionary parole-are inappropriate for revocation of mandatory parole because in the latter, the offender is facing "a new period of confinement separate and distinct from that of his original sentence to imprisonment."

But, as discussed, such reincarceration is not a new sentence and, therefore, under the cireumstances here, provides no due process basis to limit the parole board's discretion to determine an appropriate penalty for a violation of mandatory parole, including the length of the period of reincarceration. Cf. Martin v. People, supra (an offender's rein-carceration period for a parole violation is limited only by the parole board's statutory authority).

IV.

Because the motion, the files, and the ree-ord clearly establish that defendant is not entitled to relief, we find no error by the court in summarily denying defendant's motions without appointing counsel or holding an evidentiary hearing. See People v. Lopez, 12 P.3d 869 (Colo.App.2000); People v. Hartkemeyer, 843 P.2d 92 (Colo.App.1992).

Additionally, because we have ruled that the court properly denied defendant's motions, the court's alleged failure to make more specific findings of fact and conclusions of law is harmless. See People v. Russell, 36 P.3d 92 (Colo.App.2001); People v. Hartkemeyer, supra.

The orders are affirmed.

Judge ROY and Judge WEBB concur.