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.




                                       28
       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
