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People v. Kearns5/27/1999
e sentence imposed is within the range required by law, is based on appropriate considerations as reflected by the record, and is factually supported by the circumstances of the case, an appellate court must uphold it. People v. Fuller, 791 P.2d 702 (Colo. 1990).
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 criminal conduct posed by the defendant, and the potential of the defendant for effective rehabilitation. People v. Madril, 746 P.2d 1329 (Colo. 1987).
The trial court imposed a sentence in the lower half of the applicable two-to-six year presumptive range for defendant's class four felony. In doing so, it specifically considered the above factors, including defendant's character and potential for rehabilitation, but concluded that a less severe sentence would be unwarranted in light of the victim's "devastating injuries" which included a head injury resulting in a prolonged coma and permanent disability and the need to deter the sort of unlawful conduct that led to those injuries. Contrary to the defendant's argument, the sentence imposed does not justify an inference of gross disproportionality or unjustified disparity in sentences. See §18-1-102.5(1)(b), C.R.S. 1998; People v. Hayes, 923 P.2d 221 (Colo. App. 1995).
Because the sentence for vehicular assault is within the range prescribed by law, is based on appropriate considerations as indicated by the record, and is factually supported by the circumstances of the case, it must be upheld. See People v. Fuller, supra.
However, neither the transcript of the sentencing hearing nor the mittimus reflects that the trial court imposed sentence for defendant's misdemeanor DUI conviction pursuant to §42-4-1301(2)(a). Therefore, the cause must be remanded for imposition of sentence and correction of the mittimus to reflect the sentence imposed. See Crim. P. 32(c).
The court also is directed on remand to correct the clerical errors appearing on the mittimus, which incorrectly cites the offenses of which defendant was convicted. Specifically, the mittimus must reflect defendant's conviction of vehicular assault in violation of §18-3-205(1)(b), rather than §18-3-205(1)(a) as currently set forth, and his conviction of driving under the influence in violation of §42-4-1301(2)(a), not §42-4-1301(1)(a), C.R.S. 1998.
The judgment and the sentence imposed for the felony conviction are affirmed, and the cause is remanded for further proceedings as directed herein.
JUDGE DAVIDSON and JUDGE BRIGGS concur.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.
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