The People of the State of Colorado, Plaintiff-Appellee, v. John Doushay Wise, Defendant-Appellant. (2023)

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

¶ 1 Defendant, John Doushay Wise, appeals the district court's order, issued on remand from a prior appeal, sentencing him to a term of twenty-four years’ imprisonment on a conviction for attempted second degree murder. We reverse and remand for yet another resentencing.

I. Background

¶ 2 In 2004, Wise was convicted of (1) four counts of aggravated robbery, for actions taken at a 7-Eleven store at around 11:15 a.m. on November 23, 2003, and (2) attempted second degree murder and attempted aggravated robbery for actions taken about a half hour later at a King Soopers. The trial court imposed consecutive sentences on all counts, totaling an aggregate term of 150 years in the custody of the Department of Corrections.

¶ 3 On direct appeal, a division of this court affirmed Wise's convictions and sentences. See People v. Wise, (Colo. App. No. 04CA2534, June 28, 2007) (not published pursuant to C.A.R. 35(f)) (Wise I).

¶ 4 Subsequently, Wise filed a Crim. P. 35(c) motion for postconviction relief, which was denied and affirmed on appeal. See People v. Wise, (Colo. App. No. 09CA2355, Mar. 29, 2012) (not published pursuant to C.A.R. 35(f)) (Wise II).

¶ 5 In 2017, Wise filed a Crim. P. 35(a) motion alleging that the thirty-two-year sentence imposed on his conviction for attempted second degree murder was illegal because it did not qualify for the ten-to-thirty-two-year sentencing range applicable for “extraordinary risk” sentencing under section 18-1.3-401(10)(b), C.R.S. 2022. The applicable range, Wise said, was eight to twenty-four years. Although the postconviction court disagreed with him, a division of this court did not. The division reversed the postconviction court's order and remanded the case for “resentencing within the applicable sentencing range of eight to twenty-four years in the DOC on Wise's class 3 felony, non-extraordinary risk, per se crime of violence attempted second degree murder conviction.” People v. Wise, slip op. at ¶ 19 (Colo. App. No. 17CA2309, Jan. 17, 2019) (not published pursuant to C.A.R. 35(e)) (Wise III).

¶ 6 The present appeal arises from the action taken by the district court on remand for resentencing. On remand, the presiding judge was not the same judge who imposed the original sentence. After its review of the facts, the court noted that it was familiar with the original sentencing judge who “knew his stuff.” Relying on what it perceived to be the original judge's intent to sentence Wise to the maximum term for attempted second degree murder and for all his sentences to run consecutively, the court imposed the maximum, twenty-four-year term for the crime ¹ and declined to “disturb any of the other counts regarding concurrent or consecutive time.”

¶ 7 Wise appeals, contending that the resentencing court erred by (1) not affording Wise the right of allocution before resentencing him; (2) not requiring an updated presentence report; (3) not exercising its own, independent judgment and discretion as to the length of the sentence; and (4) not exercising its own, independent judgment and discretion as to the concurrent or consecutive nature of all the sentences. He also asks us to (5) conduct a proportionality review of the sentences imposed on his multiple convictions.

¶ 8 We reverse and remand for resentencing based on the first issue.

II. Wise's Right of Allocution

¶ 9 Wise contends, the People concede, and we agree, that the trial court reversibly erred when it failed to invite Wise to speak in allocution at the resentencing hearing.

A. Standard of Review and General Law

¶ 10 A defendant “has a right of allocution before sentence is handed down which cannot be withheld from him.” People v. Garcia, 752 P.2d 570, 575–76 (Colo. 1988) (quoting People v. Emig, 177 Colo. 174, 177, 493 P.2d 368, 369 (1972)). To this end, “[b]efore imposing a sentence, a trial court must ‘afford the defendant an opportunity to make a statement in his or her own behalf and to present any information in mitigation of punishment.’ ” People v. Smalley, 2015 COA 140, ¶ 72 (quoting § 16–11–102(5), C.R.S. 2022); accord Crim. P. 32(b)(1).

The right [of allocution] has its origins in the common law practice of allowing a defendant to state legal reasons why his sentence should not be imposed. This tradition arose at a time when the defendant had no right to be represented by counsel or to testify on his own behalf. Today, with counsel to speak for him and the ability to testify under oath, the defendant's need to make an unsworn statement in order to get across his side of the story to the sentencer is considerably less pressing. But the opportunity to personally address the sentencer retains both symbolic and practical significance. It may increase for some defendants the perceived equity of the process. Moreover, as the Supreme Court noted in Green v. United States[, 365 U.S. 301, 305 (1961)], a case which held that merely affording counsel a chance to speak fails to fulfill the allocution requirement in the federal rules, there are times when a plea in mitigation can best be presented by the defendant: “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

6 Wayne R. LaFave et al., Criminal Procedure § 26.4(g), Westlaw (4th ed. database updated Nov. 2022) (footnotes omitted).

¶ 11 “To afford a defendant the opportunity to make a statement on his behalf, the trial court must address the defendant in a manner that leaves no doubt that the defendant is personally invited to speak prior to sentencing.” Smalley, ¶ 73 (quoting People v. Marquantte, 923 P.2d 180, 186 (Colo. App. 1995)).

¶ 12 “The remedy for denial of a defendant's right to speak at sentencing is resentencing.” Id. at ¶ 74; Marquantte, 923 P.2d at 186.

¶ 13 We review the record “de novo to determine whether a court afforded [Wise] the opportunity to speak.” Smalley, ¶ 77.

B. Analysis

¶ 14 The record reflects that the resentencing court did not invite Wise to speak, and that Wise did not speak, at the resentencing hearing.

¶ 15 That no one raised the issue at the time is of no consequence. Because Wise was not afforded his right to allocution, his sentence was imposed in an illegal manner. See People v. Bowerman, 258 P.3d 314, 316 (Colo. App. 2010) (citing Garcia, 752 P.2d at 576). Illegal manner claims may be brought on direct appeal, or through a postconviction Crim. P. 35(a) motion. See Fransua v. People, 2019 CO 96, ¶ 13. And “[i]t makes no sense to require preservation of a claim on direct appeal when an identical claim could be raised without preservation after the conclusion of the direct appeal.” Id.

¶ 16 Nor are we concerned that this was not Wise's original sentencing. As Wise argues in his opening brief, nothing in the case law, statutes, or court rules suggests that this requirement applies only to the original sentencing. In applying a similar requirement in Fed. R. Crim. P. 32(i)(4)(A)(ii), federal courts have concluded that the right to allocution applies in resentencing hearings. See, e.g., United States v. Gunning, 401 F.3d 1145, 1149-1150, 1149 n.6 (9th Cir. 2005) (holding that “the district court overlooked according [the defendant] his right of allocution at resentencing,” requiring yet another remand because of the appellate court's inability to “say that the district court could not have lowered [the defendant's] sentence had he been given an opportunity to speak”); United States v. Barnes, 948 F.2d 325, 330 (7th Cir. 1991) (When a prior sentence is vacated, the right to allocution at resentencing “was resuscitated ․ regardless of whether [defendant] had previously exercised it.”); United States v. Muhammad, 478 F.3d 247, 250 (4th Cir. 2007) (“[E]ven though [the defendant] had addressed the court at the original sentencing hearing, he had a renewed right to allocute at resentencing.”).²

¶ 17 Consequently, we conclude that the resentencing court erred by not affording Wise the opportunity to speak in mitigation of his sentence at the resentencing hearing. Thus, we vacate the twenty-four-year sentence imposed for attempted murder and remand for resentencing after affording Wise an opportunity to speak in allocution of his sentence. See Marquantte, 923 P.2d at 186.

III. Other Issues

¶ 18 As noted earlier, Wise raised five issues on appeal. In light of our disposition, we need not resolve them all. Nonetheless, “our common practice is to address contentions that pertain to issues likely to arise on remand.” People v. Stewart, 2017 COA 99, ¶ 64 (J. Jones, J., concurring in part and dissenting in part).

¶ 19 On remand, the resentencing court must exercise its own discretion as to the length of sentence to be imposed for Wise's attempted murder conviction, considering the “the nature of the offense, the character and rehabilitative potential of the offender, the development of respect for the law, the deterrence of crime, and the protection of the public.” People v. Tresco, 2019 COA 61, ¶ 30 (quoting People v. Maestas, 224 P.3d 405, 409 (Colo. App. 2009)). In saying that the court should exercise its “own discretion,” we mean only that the court should not automatically impose the maximum twenty-four-year sentence simply because the original sentencing court had imposed the maximum term in an even greater (but erroneous) sentencing range. It would, after all, be a meaningless gesture if Wise's words in allocution had not even the potential to affect the length of sentence imposed.³

¶ 20 Moreover, because a resentencing court may consider information concerning a defendant's good conduct while incarcerated following original sentencing, see, e.g., Commonwealth v. White, 764 N.E.2d 808, 812 (Mass. 2002),⁴ and “information provided in a presentence report is of great importance to the trial judge's ultimate sentencing decision,” People v. Valencia, 906 P.2d 115, 117-18 (Colo. 1995), an updated presentence report should be provided.

¶ 21 That leaves us with only two more issues to discuss: (1) the court's failure to exercise independent discretion with respect to the concurrent or consecutive nature of all of the sentences imposed; and (2) a request that, in light of some recent amendatory legislation, an abbreviated proportionality review be conducted by either us or the resentencing court.

¶ 22 We perceive no reason to consider these issues, however.

¶ 23 A trial court must comply with specific directions of an appellate court mandate on remand. Sebastian v. Douglas County, 2013 COA 132, ¶ 34 (citing Colo. State Bd. of Med. Exam'rs v. McCroskey, 940 P.2d 1044, 1046 (Colo. App. 1996)); see also Powell v. Hart, 854 P.2d 1266, 1267 (Colo. 1993) (“[A]n inferior trial court must comply with the mandate of a superior appellate court.”). “When an appellate court remands a case with specific directions ․ to pursue a prescribed course, a trial court has no discretion except to comply with such directions.” Musgrave v. Indus. Claim Appeals Off., 762 P.2d 686, 687-88 (Colo. App. 1988); see also Molinary v. Powell Mountain Coal Co., 173 F.3d 920, 923 (4th Cir. 1999) (“On remand, a lower court may decide matters left open only insofar as they reflect proceedings consistent with the appellate court's mandate.”).

¶ 24 Here, the remand directives of the division in Wise III were clear and concise: the case was remanded for “resentencing within the applicable sentencing range of eight to twenty-four years in the DOC on Wise's class 3 felony, non-extraordinary risk, per se crime of violence attempted second degree murder conviction.” Wise III, No. 17CA2309, slip op. at ¶ 19. Those directives said nothing about considering (1) the consecutive nature of Wise's sentences,⁵ or (2) the proportionality of Wise's sentence(s). Nor will we, for the simple reason that the present appeal should not encompass matters that the resentencing court could not have considered on remand from the prior appeal.⁶

IV. Disposition

¶ 25 The resentencing court's order is reversed, and the case is remanded for yet another resentencing within the applicable sentencing range of eight to twenty-four years in the DOC on Wise's class 3 felony conviction for attempted second degree murder.

FOOTNOTES

1.   The resentencing court used, as the basis of its decision, what the original judge would do “if [he] were here today.”

2.   When, as here, our rule is similar to a federal rule, federal authority interpreting or applying the rule is persuasive. See, e.g., State ex rel. Salazar v. Gen. Steel Domestic Sales, LLC, 129 P.3d 1047, 1049 (Colo. App. 2005).

3.   But to be clear, we are not foreclosing the resentencing court from imposing a maximum term of imprisonment. We are saying only that the sentencing court's decision must be based on a consideration of the proper sentencing factors as well as any statement in mitigation Wise might make.

4.   Similarly, “a trial court is free to consider an inmate's ‘exemplary conduct while incarcerated’ in addressing a Rule 35(b) motion [for reconsideration of sentence].” People v. Brosh, 2012 COA 216M, ¶ 19 n.2 (first citing Ghrist v. People, 897 P.2d 809, 813 (Colo. 1995); and then citing Mamula v. People, 847 P.2d 1135, 1137 (Colo. 1993)).

5.   Nor would there have been any reason to. The propriety of a sentence (including its consecutive or concurrent nature) could have been — and was — raised by Wise on direct appeal. See § 18-1-409, C.R.S. 2022; People v. Wise, slip op. at 9-11 (Colo. App. No. 04CA2534, June 28, 2007) (not published pursuant to C.A.R. 35(f)) (Wise I).

6.   The constitutional proportionality of a sentence could have independently been raised before the district court under Crim. P. 35(c)(3), People v. Castillo, 2022 COA 20, ¶ 38, if timely brought within the three-year period prescribed by section 16-5-402, C.R.S. 2022, as impacted by the illegality of the initial sentence imposed for attempted murder. See generally Hunsaker v. People, 2021 CO 83 (discussing how an impact on part of a sentence impacts the timeliness of Rule 35(c) challenges).

Opinion by JUDGE DAILEY

Lum and Bernard *, JJ., concur JUDGE LUM and JUDGE BERNARD concur.