People v. Wiseman

COLORADO COURT OF APPEALS 2017COA49

Court of Appeals No. 14CA0339
Mesa County District Court No. 00CR907
Honorable Charles A. Buss, Judge
Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David William Wiseman,

Defendant-Appellant.

SENTENCE VACATED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE DAILEY
J. Jones, J., concurs
Berger, J., specially concurs

Announced April 20, 2017

Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, David William Wiseman, appeals the district

court’s order vacating his original sentence and imposing a new

sentence. We vacate the new sentence and remand for

resentencing.

I. Background

¶2 As pertinent here, Wiseman was charged with acts committed

between August 31, 1999, and July 31, 2000, constituting sexual

assault on a child under the age of fifteen by one in a position of

trust. After a trial to a jury held in 2001, he was convicted of two

counts of sexual assault on a child under the age of fifteen by one

in a position of trust (counts one and three), sexual assault on a

child under the age of fifteen by one in a position of trust - pattern

of abuse (count seven), and sexual assault on a child under the age

of fifteen - pattern of abuse (count eight). Count one concerned a

“lotion incident,” and count three concerned a “condom incident.”

Those same two incidents were found by the jury to be the same

two predicate acts constituting the patterns of abuse found in

connection with counts seven and eight.1

1 Wiseman had been charged in connection with yet another
incident (“the breast touching incident when Mom was present”),

1
¶3 At the 2002 sentencing hearing, the district court sentenced

Wiseman to the custody of the Department of Corrections (DOC) on

 count one, for six years;

 count three, for eight years, consecutive to count one;

 count seven, for fifteen years, concurrent to the

sentences imposed on counts one and three; and

 count eight, for fifteen years, consecutive to counts one

and three.

¶4 The sentence reflected in a minute order and the mittimus

initialed by the court, however, differed from that which was orally

pronounced, in the following respects:

 for count one, the sentence was eight (not six) years; and

 there was no indication whether the sentences imposed

in connection with counts seven and eight would be

served concurrently or consecutively to one another or to

the other sentences in the case.

¶5 A division of this court affirmed Wiseman’s convictions on

direct appeal. People v. Wiseman, (Colo. App. No. 02CA0496, Apr.

but the jury acquitted him of this charge and rejected it as a basis
for its pattern of abuse findings.

2
1, 2004) (not published pursuant to C.A.R. 35(f)). In 2013, while

Wiseman was incarcerated in the DOC, the district court, at the

DOC’s request, reviewed his sentence and determined that

consecutive terms were mandated by law on all four of his

sentences:

The sentence imposed for count seven should
have been ordered consecutive to the
sentences imposed for counts one and three
(count one was ordered consecutive to count
three) and the sentence imposed for count
eight should have been ordered consecutive to
the sentences imposed for counts, one, three,
and seven.

Accordingly, it is ORDERED that an Amended
Mittimus be issued consistent with this Order.

¶6 The effect of the court’s order was to increase Wiseman’s

sentence to forty-six years imprisonment.

¶7 The district court denied Wiseman’s motion to reconsider and

vacate its order and the corresponding amended mittimus.

II. Analysis

¶8 Wiseman contends that he was subject to, at most, two

convictions and sentences in this case, and that the district court

erred in determining that consecutive sentences were statutorily

required. We agree with both contentions, but, with respect to the

3
first one, for reasons somewhat different from those argued by

Wiseman.

A. The Number of Convictions and Sentences

¶9 The district court could not impose four consecutive sentences

because it could not impose four sentences; it could impose only

two.

¶ 10 As we see it, the number of sentences that could be entered in

the case turns on whether the pattern of abuse counts (seven and

eight)

 were simply sentence enhancers, People v. Simon, 266

P.3d 1099, 1107-08 (Colo. 2011) (holding that the

pattern of abuse statutory provisions, sections 18-3-

405(2)(d) and 18-3-405.3(2)(b), C.R.S. 2016,2 “do not

establish separate, overall course of conduct ‘pattern’

offenses,” but “authorize greater punishment” (or

sentence enhancement) “for each incident of sexual

assault on a child, or sexual assault on a child by one in

a position of trust, where ‘[t]he actor commits the offense

2 The relevant statutory language is the same as in the versions of
sections 18-3-405 and 18-3-405.3, C.R.S. 1999, that were in effect
in 1999 and 2000, when the offenses were alleged to have occurred.

4
as a part of a pattern of sexual abuse.’”) (alteration in

original) (citations omitted); or

 were meant to encompass additional substantive offenses

as well, see, e.g., People v. Melillo, 25 P.3d 769, 777

(Colo. 2001).

¶ 11 If the former was the case, then only the two convictions for

counts one and three, with enhanced sentences for each, could be

entered; if the latter was the case, then four convictions and

sentences could be entered. See People v. Torrez, 2013 COA 37,

¶ 23 (“Trial courts may not enter a separate conviction or sentence

on a count that is only a sentence enhancer. . . . But ‘a single

count may charge both a crime and a sentence enhancer.’” (quoting

Melillo, 25 P.3d at 777)).

¶ 12 Nothing in the charging document indicates that counts seven

and eight were intended to include one or more substantive offenses

in addition to those charged in counts one and three. And, the

special interrogatory given in connection with the pattern of abuse

verdict forms identified only the lotion and condom incidents as the

predicate acts establishing the patterns. Because those incidents

were also the subject of separate charges (i.e., counts one and

5
three) and verdicts, counts seven and eight did not encompass

“additional” substantive crimes for which one or more separate

sentences could be imposed. They acted, then, as mere sentence

enhancers for counts one and three.

¶ 13 Notably, identical acts supported the verdicts for each pattern

of abuse count. There was, then, but one pattern of abuse, and the

court should have applied only the applicable one (i.e., sexual

assault on a child by one in a position of trust - pattern of abuse).

That enhancer, in turn, would apply to each of the sentences for the

lotion and condom incidents (counts one and three), elevating each

from a class 4 felony to a class 3 felony. §§ 18-3-405(2)(d),

-405.3(2)(b), C.R.S. 2016.3

¶ 14 Consequently, in entering separate convictions and sentences

for counts seven and eight, the district court erred.

B. Consecutive Sentencing

¶ 15 The district court also erred in concluding that it was

statutorily required to impose consecutive sentences.

3The pattern of abuse enhancer could be applied to each of the
substantive counts without offending double jeopardy principles.
People v. Simon, 266 P.3d 1099, 1109-10 (Colo. 2011).

6
¶ 16 Generally, a trial court has discretion to impose either

consecutive or concurrent sentences, except when the offenses

charged are supported by “identical evidence,” in which case

concurrent sentencing is required under section 18-1-408(3), C.R.S.

2016. Juhl v. People, 172 P.3d 896, 899 (Colo. 2007).

¶ 17 In some instances, however, consecutive sentencing is

required by statute. See § 16-11-309(1)(a), C.R.S. 1999 (providing,

as pertinent here, that “[a] person convicted of two or more separate

crimes of violence arising out of the same incident shall be sentenced

for such crimes so that sentences are served consecutively rather

than concurrently”) (emphasis added);4 § 16-13-804(5)(a), C.R.S.

1999 (requiring that any sentence for a sex offense be served

consecutively to the sentences for any “additional crimes arising out

of the same incident as the sex offense”) (emphasis added).5

¶ 18 Here, Wiseman’s convictions were not supported by identical

evidence and arose out of different incidents. Under the

4This statute has since been repealed and reenacted at section 18-
1.3-406, C.R.S. 2016.

5This statute has since been repealed and reenacted at section 18-
1.3-1004, C.R.S. 2016.

7
circumstances, Wiseman was subject to concurrent or consecutive

sentencing, in the court’s discretion.

C. Remedy

¶ 19 Wiseman requests that the case be remanded for

reinstatement of the original judgment of conviction and sentences

entered in the case. In addition to the fact that separate sentences

could not be imposed on counts seven and eight (i.e., the pattern of

abuse sentence enhancement counts), however, it has come to our

attention that re-imposing determinate sentences6 here would be

“illegal.”

¶ 20 Citing People v. Gallegos, 764 P.2d 76 (Colo. 1988), Wiseman

asserts that we should not address the issue because the People

never objected to the determinate nature of either the original or

revised sentences and never filed a Crim. P. 35(a) motion attacking

the legality of a determinate sentence. In Gallegos, the People

challenged on appeal whether the trial court was required by

statute to sentence the defendant beyond the presumptive range

when the defendant was convicted of possession of contraband

6“Determinate” sentencing encompasses sentencing a person for a
specific, fixed period of time.

8
while in a correctional institution. The supreme court declined to

consider the merits of the People’s appeal because they had failed to

preserve the issue either by contemporaneously objecting at the

sentencing hearing or by requesting the trial court, pursuant to

Crim. P. 35(a), to correct an illegal sentence.

¶ 21 Subsequently, however, the supreme court recognized that

“[a]llegations that a particular sentence is void or illegal require

inquiry into the subject matter jurisdiction of the sentencing court

and may not be waived.” Downing v. People, 895 P.2d 1046, 1050

(Colo. 1995). To be sure, it was the defendant, not the People, who

was asserting the illegality of a sentence for the first time on appeal

in Downing. Id. But that does not matter. The prosecution too can

request a correction of an illegal sentence, People v. White, 179 P.3d

58, 61 (Colo. App. 2007), even (because the issue involves a kind of

jurisdictional defect) for the first time on appeal. See People v.

Anaya, 894 P.2d 28, 31 (Colo. App. 1994) (People may challenge an

illegal sentence for the first time on appeal); see Crim. P. 35(a) (“The

court may correct a sentence that was not authorized by law or that

9
was imposed without jurisdiction at any time . . . .”) (emphasis

added).7

¶ 22 Turning to the merits of the issue, an “illegal” sentence is one

that is “inconsistent with the statutory scheme outlined by the

legislature” or lying “within the range contemplated by statute

but . . . otherwise imposed in excess of the court’s subject matter

jurisdiction.” People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.

2006). “The legality of a sentence is a question of law that we

review de novo.” People v. Bassford, 2014 COA 15, ¶ 20.

Wiseman’s crimes were sex crimes committed after November 1,

1998, and, as such, they were punishable by indeterminate

sentencing under the Colorado Sex Offender Lifetime Supervision

Act of 1998 (SOLSA). See §§ 16-13-801 to -812, C.R.S. 1999.8

Under SOLSA, courts must sentence sex offenders to prison “for an

indeterminate term of at least the minimum of the presumptive

7 In People v. Wenzinger, 155 P.3d 415 (Colo. App. 2006), the
division recognized that the terminology presently found in Crim. P.
35(a) “merely codifie[d] case law defining ‘illegal sentence.’” Id. at
418.

8 SOLSA has since been repealed and reenacted at sections 18-1.3-
1001 to -1012, C.R.S. 2016.

10
range specified in section 18-1-105, C.R.S. [1999], for the level of

offense committed and a maximum of the sex offender’s natural

life.” § 16-13-804(1)(a), C.R.S. 1999.9

¶ 23 Consequently, under SOLSA, Wiseman had to be sentenced for

each conviction to an indeterminate sentence having a minimum

term of a certain number of years and a maximum term of life

imprisonment.

¶ 24 Because Wiseman’s original and revised sentences were both

illegal, a remand for the imposition of a “legal” indeterminate

sentence under SOLSA is required. See Bassford, ¶ 29.

9If the sex offender committed a sex offense that constitutes a
crime of violence, courts must sentence offenders to “at least the
midpoint in the presumptive range for the level of offense
committed.” § 16-13-804(1)(b), C.R.S. 1999 (now § 18-1.3-
1004(1)(b), C.R.S. 2016) (crime of violence sentencing for sex
offenders). In any event, the minimum term of a sentence imposed
under SOLSA may be as high as twice the maximum of the
presumptive range for the class of felony of which a defendant was
convicted. Vensor v. People, 151 P.3d 1274, 1279 (Colo. 2007).

Sexual assault on a child while in a position of trust as part of a
pattern of abuse is a per se crime of violence. Chavez v. People,
2015 CO 62, ¶ 16.

11
D. Wiseman’s Objections to Indeterminate Sentencing

¶ 25 Wiseman objects to the imposition of yet another (but this time

legal) sentence — particularly one that could expose him to the

potential of serving life in prison. More specifically, he asserts that

the imposition of an indeterminate sentence at this point, over

fifteen years after he was initially sentenced in the case, would

violate double jeopardy, due process, laches, speedy sentencing,

and cruel and unusual punishment principles. We disagree.

1. Double Jeopardy

¶ 26 “[D]ouble jeopardy does not bar the imposition of an increased

sentence if the defendant lacked a legitimate expectation of finality

in the sentence.” Romero v. People, 179 P.3d 984, 989 (Colo. 2007).

¶ 27 “A defendant can have no legitimate expectation of finality in a

sentence that, by statute, is subject to further review and revision.”

People v. Castellano, 209 P.3d 1208, 1209 (Colo. App. 2009)

(alteration omitted) (quoting People v. Chavez, 32 P.3d 613, 614

(Colo. App. 2001)).

¶ 28 Because an illegal sentence is correctable “at any time,” Crim.

P. 35(a), and “every person is generally presumed to know the law,”

People v. Hayward, 55 P.3d 803, 806 (Colo. App. 2002), Wiseman

12
could have had no legitimate expectation of finality in his illegal

sentence. See Jones v. Thomas, 491 U.S. 376, 395 (1989) (“[T]he

defendant could not argue that his legitimate expectation of finality

in the original sentence had been violated, because he was charged

with knowledge that the court lacked statutory authority to impose

the subminimum sentence in the first instance.”); United States v.

Rourke, 984 F.2d 1063, 1066 & n.3 (10th Cir. 1992) (a defendant

never has a legitimate expectation of finality in an illegal sentence

because it is always subject to modification); United States v. Kane,

876 F.2d 734, 737 (9th Cir. 1989) (“Generally, a defendant can

acquire no expectation of finality in an illegal sentence . . . If such

illegality exists, a defendant is charged with knowledge that it can

be corrected under Fed. R. Crim. P. 35.”) (citations omitted).

¶ 29 Because Wiseman was put on notice by the statute that his

offense would be subject to an indeterminate sentence, he lacked a

legitimate expectation of finality in his original sentence. Thus,

correcting the illegal sentence to reflect that it is indeterminate does

not violate double jeopardy principles. See Bassford, ¶ 29 (“Where

an illegal sentence had been imposed, a legal sentence generally

13
may be imposed in its stead without running afoul of double

jeopardy.”).

¶ 30 In so concluding, we necessarily reject, as misplaced,

Wiseman’s reliance on Commonwealth v. Selavka, 14 N.E.3d 933

(Mass. 2014), for a contrary result. In Selavka, the Massachusetts

Supreme Judicial Court held that a year-long delay in imposing a

statutorily required GPS-monitoring condition of probation violated

double jeopardy principles. The court based its decision, however,

largely on (1) due process “delay” principles articulated in two

federal cases; and (2) its conclusion that a sentence should be

considered final and not subject to change, consistent with a rule of

criminal procedure, sixty days after sentencing. As we explain in

the next section, the rationale of the two federal cases — Breest v.

Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978), and United States v.

Lundien, 769 F.2d 981 (4th Cir. 1985) — has been undermined by

subsequent case law. And our rules impose no time limit within

which either the defendant or the prosecution may challenge an

illegal sentence.

14
2. Due Process

¶ 31 Wiseman also argues that substantive due process bars his

resentencing. To support his due process claim, he relies

principally on the decisions of the First and Fourth Circuit Courts

of Appeals in Breest, 579 F.2d at 101 (“[T]he power of a sentencing

court to correct even a statutorily invalid sentence must be subject

to some temporal limit. . . . After a substantial period of time, . . . it

might be fundamentally unfair, and thus violative of due process for

a court to alter even an illegal sentence in a way which frustrates a

prisoner’s expectations by postponing his parole eligibility or release

date far beyond that originally set.”); Lundien, 769 F.2d at 987 (an

enforceable expectation of finality can “crystallize[]” after enough

time, even in an illegal sentence); and DeWitt v. Ventetoulo, 6 F.3d

32, 34 (1st Cir. 1993) (“[D]ue process must impose some outer limit

on the power to revise sentences upward after the fact.”).

¶ 32 Wiseman’s reliance on those cases, however, is misplaced:

All of those opinions pre-date, and none of
them apply, the substantive due process
analysis laid out in [Washington v. Glucksberg,
521 U.S. 702 (1997),] and [County of
Sacramento v. Lewis, 523 U.S. 833 (1998)]. All
of those opinions discuss due process only in a
general sense. And that discussion appears

15
only as dicta mere speculation in Breest and
Lundien. The First Circuit found a due
process violation in DeWitt, but on facts so
unusual and with no relevance to defendant’s
situation here that it concluded, “[i]n sum, this
case is the very rare exception to the general
rule that courts can after sentence, revise
sentences upward to correct errors.”
Therefore, none of the opinions which
defendant cites support his underlying
contention that his asserted liberty interest is
specially protected under the Due Process
Clause.

People v. Thompson, 880 N.Y.S.2d 875, 2009 WL 348370, at *7 (N.Y.

Sup. Ct. 2009) (unpublished table decision) (citations and footnotes

omitted); see Hawkins v. Freeman, 195 F.3d 732, 748-49 (4th Cir.

1999) (en banc) (declining to follow either Lundien or DeWitt, both of

which had relied on Breest, and noting that a right based on a

claimant’s “‘crystallized expectations’ . . . has been specifically

rejected by the Supreme Court as a source of substantive due

process right in related contexts”); People v. Lingle, 949 N.E.2d 952,

957 (N.Y. 2011) (Breest, Lundien, and DeWitt “generally apply a

multi-factor test to determine when a defendant’s expectation that

his sentence will remain unchanged has ‘crystallized’ such that

resentencing would offend substantive due process. But

subsequent decisions by the very same courts have largely

16
abandoned the multi-factor test in favor of a ‘shocks the conscience’

standard.”) (citations omitted); see also Littlefield v. Caton, 856 F.2d

344, 348 (1st Cir. 1988) (“While we do not minimize the strain

which accompanies a prisoner’s dashed expectations in

circumstances like these, particularly when the string is played out

over a long period of years, we have made clear that misdirection of

this sort must ‘involve[] prejudice and harm beyond frustrated

expectations’ to be constitutionally redressable.”) (alteration in

original) (citation omitted); Beliles v. State, 663 N.E.2d 1168, 1172

(Ind. Ct. App. 1996) (“[A] prisoner’s due process rights are not

violated merely by the dashed hopes attendant in the correction of a

sentence which delays the prisoner’s expected release date.”).

¶ 33 Because Wiseman has no fundamental right to avoid serving a

lawful sentence of which he should have been aware, and because it

was an executive agency (i.e., the DOC) that sought resentencing,

the standard for assessing a substantive due process claim is

whether the governmental action was “so egregious, so outrageous,

17
that it may fairly be said to shock the contemporary conscience.”

Lewis, 523 U.S. at 847 n.8.10

¶ 34 In applying this standard, we find the First Circuit Court of

Appeals’ decision in Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st

Cir. 2010), instructive. In that case, the court noted that “[t]he

shock-the-conscience test is an extremely demanding one, and

challenges analyzed under it rarely succeed.” Id. at 885. The

Commonwealth of Puerto Rico had erroneously admitted some of its

prisoners into an electronic supervision program (ESP). Id. at 871.

When, a decade later, it re-evaluated its position and realized that it

had erred, it attempted to reincarcerate the affected individuals —

many of whom “had spent multiple years (some as many as five)

living in their homes rather than behind prison walls” and were

without any “reason to doubt that that arrangement would be

permanent so long as they abided by the terms of the program.” Id.

10 Citing a concurring opinion in Betterman v. Montana, 578 U.S.
___, ___, 136 S. Ct. 1609, 1619 (2016) (Sotomayor, J., concurring),
Wiseman insists that the due process test for delayed sentencing is,
indeed, the four-part test from Barker v. Wingo, 407 U.S. 514
(1972), which is used to determine Sixth Amendment speedy trial
claims. A majority of the Court has, however, not adopted that test,
and the federal circuit courts of appeal have not applied it in this
context.

18
at 881-82. According to those individuals, they “were blindsided by

the new administration’s about-face” view of the law. Id. at 882.

¶ 35 The court recognized that “[t]he impact of reincarceration on

the [individuals was], of course, substantial. By waiting until 2005,

the Commonwealth did more than squash a mere expectation of

liberty. It set about actually undoing the liberty itself.” Id.

¶ 36 But, the court recognized, “[t]he Commonwealth’s executive

branch necessarily has a fundamental interest in fidelity to

legislative directives” and “an interest in avoiding ‘the precedential

risk of acquiescing in irregular enforcement of state law.’” Id. at

882-83 (quoting Hawkins, 195 F.3d at 746). And “there [was] no

doubt as to the thoroughness of Puerto Rico’s plans to reimprison

every individual participating in the ESP in violation of Law 49.

Puerto Rico is engaging in precisely the sort of wide-scale efforts

that we emphasized were lacking in DeWitt.” Id. at 884.

¶ 37 The court could “take no issue with the district court’s rebuke

of the Commonwealth for cavalierly disregarding the [affected

individuals’] dignity.” Id. at 885. Nonetheless, given the

Commonwealth’s countervailing interests, the decision to

19
reimprison the individuals following their time participating in ESP

did not shock the conscience of the court. Id. at 884.

¶ 38 The State of Colorado has the same legitimate interests at

stake here as were identified in Gonzalez-Fuentes: the correct

application of its laws and avoiding the precedential risk of irregular

enforcement of its laws.11 And the record reflects that Wiseman’s

case was brought to the court’s attention in 2013 as part of a DOC

11 These were important interests in enacting SOLSA:

The general assembly hereby finds that the
majority of persons who commit sex offenses, if
incarcerated or supervised without treatment,
will continue to present a danger to the public
when released from incarceration and
supervision. The general assembly also finds
that keeping all sex offenders in lifetime
incarceration imposes an unacceptably high
cost in both state dollars and loss of human
potential. The general assembly further finds
that some sex offenders respond well to
treatment and can function as safe,
responsible, and contributing members of
society, so long as they receive treatment and
supervision. The general assembly therefore
declares that a program under which sex
offenders may receive treatment and
supervision for the rest of their lives, if
necessary, is necessary for the safety, health,
and welfare of the state.

§ 16-13-801, C.R.S. 1999 (repealed and reenacted at section 18-
1.3-1001, C.R.S. 2016).

20
and State Court Administrator’s Office initiative to identify

individuals with potentially illegal concurrent sentences when

consecutive sentences were mandated by statute.

¶ 39 The case is, in our view, resolved on the same grounds as

those in Gonzalez-Fuentes:

[S]ubstantive due process is not “a font of tort
law,” and limits executive action only when
that action “was infected or driven by
something much worse — more blameworthy
— than mere negligence, or lack of proper
compassion, or sense of fairness, or than
might invoke common law principles of
estoppel or fair criminal procedure to hold the
state to its error.” Because that condition has
not been met for [Wiseman], [his] substantive
due process claim must fail.

Id. at 885-86 (first quoting Lewis, 523 U.S. at 847 n.8; then quoting

Hawkins, 195 F.3d at 746); see also, e.g., Evans v. Sec’y Pa. Dep’t of

Corr., 645 F.3d 650, 661 (3d Cir. 2011) (an individual’s deep

disappointment in belatedly learning of the upward correction “is

certainly regrettable, but that does not make the correction

conscience-shocking”).

21
3. Laches

¶ 40 Wiseman contends that the application of the doctrine of

laches bars resentencing him to an indeterminate sentence fifteen

years after he was originally sentenced in the case. We disagree.

¶ 41 “Laches is an equitable doctrine that may be asserted as a

defense when a party’s unconscionable delay in enforcing its rights

has prejudiced the party against whom relief is sought.” White, 179

P.3d at 61. No case in Colorado, however, has held that the

doctrine of laches applies in the context of a Crim. P. 35(a) motion

to correct an illegal sentence.

¶ 42 The Alaska Court of Appeals, while sympathetic to a

defendant’s plight in this situation, nonetheless rejected the

applicability of the doctrine in this context:

A defendant’s rehabilitation requires, inter alia,
that he accept the court’s sentence.
Subsequent tampering with that sentence,
however justified legally, may leave the
defendant with an understandable sense of
unfairness, jeopardizing rehabilitative efforts.
We believe however, that on balance,
correction of [the defendant’s] sentence even
though delayed, must be allowed in order to
carry out the legislative purpose in
establishing minimum sentences and to
preclude other defendants from asserting a
vested right in an illegal sentence. Defendants

22
and their counsel should not be encouraged to
remain silent while judges and prosecutors
negligently cooperate in the imposition of an
illegal sentence. In order to ensure that the
law will be carried out, and that judicial
negligence will not result in disparate and
unequal sentencing, we exercise our authority
and hold that the sentence imposed upon [the
defendant] was illegal.

State v. Price, 715 P.2d 1183, 1186 (Alaska Ct. App. 1986).

¶ 43 The Tenth Circuit Court of Appeals has also rejected the

applicability of the doctrine in this context:

To follow the argument of the defendants
would be to affirm the imposition of illegal
sentences and to violate our duty to correct
illegal sentences whenever that illegality is
discovered by the court.

A trial court may correct an invalid sentence
which is in itself a nullity at any time. The fact
that the government may fail to exert due
diligence in presenting this issue to the trial
court may not prevent the trial court from
fulfilling its judicial obligations. The doctrine
of laches is an equitable remedy which is
applied to promote justice. Needless to say,
justice is not fostered by preventing the court
from correcting an illegal sentence. We hold,
therefore, that the doctrine of laches is
inapplicable.

United States v. Romero, 642 F.2d 392, 396 (10th Cir. 1981)

(citations omitted); see, e.g., Greco v. State, 48 A.3d 816, 831 (Md.

23
2012) (A laches argument “is not available in the context of a

motion to correct an illegal sentence because an illegal sentence can

be corrected ‘at any time.’”) (citation omitted); Ferguson v. State, 381

P.3d 611, 2012 WL 4801641, at *1 n.3 (Nev. 2012) (unpublished

table decision) (“[T]he district court erroneously denied the motion

as procedurally barred pursuant to laches. To the extent that the

motion was a motion to modify or correct an illegal sentence, laches

does not apply.”).

¶ 44 Persuaded by these authorities, we conclude that the doctrine

of laches would not bar the imposition of a legal, indeterminate

sentence at this point.

4. Speedy Sentencing

¶ 45 We find unpersuasive Wiseman’s contention that resentencing

him to an indeterminate sentence now would violate a

constitutional right to speedy sentencing and Crim. P. 32(b).

¶ 46 Wiseman had initially advanced the argument that

resentencing him now would violate a federal constitutional right to

speedy sentencing. But he has since retracted the argument, in

light of Betterman v. Montana, 578 U.S. ___, 136 S. Ct. 1609 (2016),

which rejected the existence of such a federal constitutional right.

24
¶ 47 We decline Wiseman’s invitation to recognize a separate state

constitutional right to speedy sentencing arising out of our state

speedy trial guarantee. See Colo. Const. art. II, § 16. No such

separate right has been identified by either the supreme court or

this court. And, “[i]n the past, [the supreme court has] generally

declined to construe the state constitution as imposing . . . greater

restrictions [than the Federal Constitution] in the absence of textual

differences or some local circumstance or historical justification for

doing so.” Curious Theatre Co. v. Colo. Dep’t of Pub. Health & Env’t,

220 P.3d 544, 551 (Colo. 2009).

¶ 48 Wiseman presents no argument why the state constitutional

provision should be interpreted differently from its federal

constitutional counterpart. Consequently, we decline to address

the assertion. See People v. Mendoza, 313 P.3d 637, 645 (Colo.

App. 2011) (“[The defendant] does not support his assertion with

any meaningful argument. Consequently, we do not address it.”);

People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to

address arguments presented in a “perfunctory or conclusory

manner”); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (“[I]ssues adverted to in a perfunctory manner,

25
unaccompanied by some effort at developed argumentation, are

deemed waived.”).

¶ 49 Finally, we perceive no basis upon which Wiseman may assert

a violation of Crim. P. 32(b). That provision requires that

“[s]entence shall be imposed without unreasonable delay.”

Wiseman was resentenced immediately after the district court

vacated his prior sentence, and we cannot presume that he would

be subjected to unreasonable delay following a remand from this

court for resentencing.

5. Cruel and Unusual Punishment

¶ 50 Finally, we disagree with Wiseman that the imposition of a

legal, indeterminate sentence at this point would constitute cruel

and unusual punishment within the meaning of the Eighth

Amendment to the United States Constitution.

¶ 51 Ordinarily, the imposition of an indeterminate sentence for a

sex crime does not constitute cruel and unusual punishment. E.g.,

Torrez, ¶ 88; People v. Dash, 104 P.3d 286, 293 (Colo. App. 2004).

But, Wiseman says:

Imposing indeterminate life sentences . . . and
requiring [Wiseman] to essentially start over in
terms of the requirements necessary for

26
release on parole, after already having served
[sixteen] years in DOC, and where he would
have completed serving the determinate
sentences originally imposed and been
released into the community, would be
unnecessarily cruel and barbaric. Arbitrarily
and unnecessarily inflicting such psychological
and emotional damage upon a criminal
defendant, due to the negligence of the
prosecution and court system in imposing or
correcting his sentence at a much earlier date,
constitutes unnecessary cruel and unusual
punishment.

¶ 52 For two reasons, we are not persuaded. First, Wiseman’s

premise that he had an expectation that he would be immediately

released on parole is wrong. He appears to view his initial sentence

as having been for only sixteen years. But that figure is based on

the sentence reflected on the initial mittimus, and it assumes, of

course, that the mittimus’s silence with respect to counts seven and

eight would require concurrent sentencing on those counts.

However, “[w]hat the judge says in sentencing a defendant takes

precedence over the written judgment.” United States v. Cephus,

684 F.3d 703, 709 (7th Cir. 2012); accord People v. Rockne, 2012

COA 198, ¶ 23 (resolving any conflict in the record regarding

sentencing in favor of the court’s oral pronouncement); People v.

Young, 894 P.2d 19, 20 (Colo. App. 1994) (directing court to correct

27
mittimus consistent with its earlier oral ruling). What the court

said at the 2002 sentencing produced an aggregate sentence of

twenty-nine years. Whether assessed from 2013 (when he was

resentenced) or even now, Wiseman had and has a considerable

amount of time yet to serve before he could enjoy an “unqualified”

right to immediate release on parole under his initial sentence.

¶ 53 Second, a cruel and unusual punishment claim cannot be

predicated on the negligence of executive agencies or the court

system in failing to impose or correct a sentence at a much earlier

date. Farmer v. Brennan, 511 U.S. 825, 835, 838 (1994).

¶ 54 Consequently, Wiseman is not entitled to relief on this ground.

III. Conclusion

¶ 55 We vacate the sentence imposed by the district court and

remand with instructions to resentence Wiseman to a legal,

indeterminate sentence under SOLSA consistent with the views

expressed in this opinion.

JUDGE J. JONES concurs.

JUDGE BERGER specially concurs.

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JUDGE BERGER, specially concurring.

¶ 56 The court’s rejection of Wiseman’s double jeopardy, speedy

sentencing, and Eighth Amendment claims is fully supported and

required by controlling precedent. I also agree that the Supreme

Court’s modern substantive due process jurisprudence requires us

to reject Wiseman’s substantive due process claim. See Cty. of

Sacramento v. Lewis, 523 U.S. 833 (1998); Washington v.

Glucksberg, 521 U.S. 702 (1997).

¶ 57 The court’s opinion correctly notes that these Supreme Court

cases cast serious doubt on the continued validity of earlier

decisions by the Fourth Circuit in United States v. Lundien, 769

F.2d 981 (4th Cir. 1985), and by the First Circuit in Breest v.

Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978), and DeWitt v.

Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993), cases relied on by

Wiseman.

¶ 58 I write separately, however, to express my view that neither

Glucksberg nor Lewis categorically precludes a successful

substantive due process claim when a prisoner is erroneously

released from custody and then later is reincarcerated when the

error is discovered.

29
¶ 59 Years after the Supreme Court’s cases that redefined and

limited substantive due process claims, a division of this court

recognized that “a defendant may have developed an expectation of

finality regarding the sentence or a portion thereof.” People v.

Bassford, 2014 COA 15, ¶ 33;1 cf. People v. Castellano, 209 P.3d

1208, 1209-10 (Colo. App. 2009) (addressing an expectation of

finality in a sentence but noting that “[a] defendant can have no

legitimate expectation of finality in a sentence that, by statute, is

subject to further review and revision”) (alteration in original)

(citation omitted).

¶ 60 Other courts also have concluded, post Glucksberg and Lewis,

that such an expectation of finality might require enforcement of a

previously imposed, yet unlawful, sentence. In United States v.

Watkins, 147 F.3d 1294, 1298 n.5 (11th Cir. 1998), the Eleventh

Circuit stated: “We are mindful that a defendant’s due process

rights may be violated ‘when a sentence is enhanced after the

defendant has served so much of his sentence that his expectations

1 Although People v. Bassford, 2014 COA 15, ¶ 50 n.6, recognized
such an expectation of finality, because the argument was not
properly developed in that case, the division did not further analyze
either those expectations or when or how the expectations would be
entitled to enforcement.

30
as to its finality have crystallized and it would be fundamentally

unfair to defeat them.’” (Citation omitted.) See also Hawkins v.

Freeman, 195 F.3d 732, 751 (4th Cir. 1999) (Murnaghan, J.,

dissenting); United States v. Davis, 112 F.3d 118, 123 (3d Cir.

1997); United States v. Tolson, 935 F. Supp. 17, 21 (D.D.C. 1996).

¶ 61 A substantive due process claim for enforcement of an

original, but unlawful, sentence is strongest when the defendant

has been released from custody and has spent a substantial

amount of time at liberty. See Freeman, 195 F.3d at 751

(Murnaghan, J., dissenting). Because by definition no

reincarceration results when a defendant is resentenced while still

in custody, I agree with the court that it is virtually impossible to

meet the “shocks the conscience” test prescribed by the Supreme

Court in Lewis, 523 U.S. at 847 n.8, when an illegal sentence is

corrected while the defendant remains in custody.

¶ 62 Wiseman was never released from custody. He was sentenced

in 2002 and he has remained in state custody since that date.

Though his expectations (which for these purposes I assume are

bona fide) of a determinate sentence will be seriously frustrated by

the imposition of an indeterminate sentence under the Colorado Sex

31
Offender Lifetime Supervision Act of 1998 (SOLSA), his situation is

different in kind from that of a prisoner who is erroneously released

from custody and spends a substantial amount of time at liberty. I

agree with the court that given the enhanced requirements for a

substantive due process claim, Wiseman cannot establish a

substantive due process violation.

¶ 63 But, depending upon the particular facts, I would not

categorically reject a substantive due process claim by a released

prisoner who is later reincarcerated. Depending on the facts, an

executive branch decision to seek reincarceration may meet the

stringent requirements of the “shock the conscience” test and

require enforcement of an otherwise illegal sentence originally

imposed.

32