23CA1706 Peo v Wolf 12-19-2024 COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1706 Larimer County District Court No. 08CR281 Honorable Susan Blanco, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. Daniel Joel Wolf, Defendant-Appellant.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE SULLIVAN J. Jones and Lipinsky, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024

Philip J. Weiser, Attorney General, Katherine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Daniel Joel Wolf, Pro Se ¶1 Defendant, Daniel Joel Wolf, appeals the district court’s order denying his Crim. P. 35(a) motion to correct an illegal sentence. We affirm the order but remand for correction of the mittimus.

I. Background ¶2 Based on evidence that Wolf had sexually abused and taken sexually exploitive photographs of his stepdaughter when she was less than fifteen years old, a jury found him guilty of (1) sexual assault on a child as part of a pattern of abuse (SAOC-pattern); (2) sexual assault on a child by one in a position of trust; (3) aggravated incest; and (4) sexual exploitation of a child. These convictions were reversed on appeal, see People v. Wolf, (Colo. App. No. 09CA0248, Nov. 1, 2012) (not published pursuant to C.A.R. 35(f)). Wolf was re-tried in 2013, and a second jury found him guilty of the same offenses.

¶3 The district court sentenced Wolf to prison terms of (1) twenty years to life; (2) twelve years to life (concurrent); (3) twelve years to life (concurrent); and (4) eight years (consecutive), respectively — an aggregate sentence of twenty-eight years to life. A division of this

court affirmed the 2013 judgment of conviction. See People v. Wolf, (Colo. App. No. 13CA2233, Dec. 8, 2016) (not published pursuant to C.A.R. 35(e)).

¶4 In 2023, Wolf moved for postconviction relief under Crim. P. 35(a), alleging that one of his sentences — his indeterminate twenty-year SAOC-pattern sentence — was illegal. The district court denied the motion, and Wolf appealed.

II. Analysis ¶5 We agree with the district court that Wolf’s sentence is legal, but we apply different reasoning to reach that conclusion. See People v. Cooper, 2023 COA 113, ¶ 7 (we may affirm a postconviction court’s ruling on any ground supported by the record). As we understand Wolf’s motion, he contends that his aggravated-range prison sentence isn’t authorized by statute because (1) SAOC-pattern isn’t a per se crime of violence; (2) his indictment didn’t include a separate count charging a crime of violence; and (3) the jury didn’t find that he had used a deadly

weapon; used threat, intimidation, or force against the victim; or caused bodily injury to the victim. He is incorrect.

¶6 Section 18-3-405(1), C.R.S. 2024, defines sexual assault on a child. Section 18-3-405(2) generally designates the crime as a class felony, but specifies that it is a class 3 felony if, among other things, the actor commits the offense as a part of a pattern of sexual abuse. § 18-3-405(2)(d). Wolf doesn’t dispute that his SAOC-pattern offense is a class 3 felony. The presumptive sentencing range for class 3 felonies is four to twelve years in prison. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2024.

¶7 As relevant here, section 18-3-405(3) provides that, if a defendant is convicted of a class 3 felony sexual assault, such as SAOC-pattern, “the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406,” C.R.S. 2024.

Section 18-1.3-406 is entitled, “Mandatory sentences for violent crimes,” and the relevant subsection, 18-1.3-406(1)(d), provides as follows: [A]ny person convicted of a sex offense . . . that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401(1)(a)(V)(A) . . . up to a maximum of the person’s natural life . ...

¶8 Wolf doesn’t dispute that his sex offense requires an indeterminate prison sentence. Rather, he asserts that the bottom end of the sentencing range for SAOC-pattern is four to twelve years, rather than eight to twenty-four years, because SAOC- pattern isn’t “a sex offense . . . that constitutes a crime of violence,” absent a separate jury finding that it was a crime of violence. See 18-1.3-406(1)(d).

¶9 Wolf’s interpretation of the relevant statutes is contrary to settled law. The Colorado Supreme Court has interpreted sections 18-3-405(2)(d) and 18-1.3-406(1)(d) to mean that SAOC-pattern is a per se crime of violence, subject to crime-of-violence sentencing.

Hunsaker v. People, 2015 CO 46, ¶¶ 17-18, 27 (Hunsaker II). As a division of this court explained, the statute defining SAOC-pattern prescribes crime of violence sentencing by reference to section 18-1.3-406. People v. Hunsaker, 2013 COA 5, ¶¶ 42-43, aff’d, Hunsaker II. Under such circumstances, the crime is a per se crime of violence. Hunsaker II, ¶ 18 (citing Terry v. People, 977 P.2d 145, 149 (Colo. 1999)). We can’t depart from our supreme court’s controlling precedent. People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008).

¶ 10 Hunsaker II elaborates that the General Assembly modified section 18-1.3-406 in tandem with its 1998 enactment of the Colorado Sex Offender Lifetime Supervision Act to distinguish between crimes of violence that involve sex offenses and non-sex- related crimes of violence. Hunsaker II, ¶¶ 23-25. These laws mandate that certain sex offenses (including SAOC-pattern) require indeterminate sentences with a bottom end of at least the midpoint of the presumptive range — the same bottom-end sentencing range as for non-sex-related crimes of violence. Id. at ¶ 27. But because SAOC-pattern is a per se crime of violence that involves a sex offense, it need not “otherwise contain any of the basic elements for a crime of violence.” People v. Brown, 70 P.3d 489, 495 (Colo. App.

2002). In other words, SAOC-pattern is, in itself, a crime of violence.

¶ 11 Because SAOC-pattern is a per se crime of violence, “the prosecution was not required to charge and prove a separate crime of violence count” to the jury. Id. The prosecution was required to prove the sentence-enhancing “pattern of sexual abuse,” and it did so. See id. at 491.

¶ 12 As a crime of violence, the statutory minimum prison sentence a court may impose for class 3 felony SAOC-pattern is a term of eight years to life, and the statutory maximum is twenty-four years to life. See §§ 18-1.3-401(1)(a)(V)(A), 18-1-406(2)(d). Wolf’s twenty- year-to-life sentence falls within the range authorized by statute, so it is a legal sentence.

III. Issues Raised for the First Time on Appeal ¶ 13 In his opening brief, Wolf advances for the first time two claims that weren’t presented in his postconviction motion: (1) classifying SAOC-pattern as a “per se crime of violence” is

unconstitutional and (2) the sentencing court lacked subject matter jurisdiction to impose an aggravated sentence.

¶ 14 Because Wolf didn’t raise his first claim in his postconviction motion before the district court, we decline to address it. See DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (“Issues not raised before the district court in a motion for postconviction relief will not be considered on appeal of the denial of that motion.”).

¶ 15 We will, however, address subject matter jurisdiction claims raised for the first time on appeal. See People v. Heredia, 122 P.3d 1041, 1043 (Colo. App. 2005). We agree with Wolf that a court acts outside the scope of its jurisdiction when it imposes an illegal sentence. See People v. White, 179 P.3d 58, 61 (Colo. App. 2007).

But because we have already concluded that Wolf’s sentence is legal, we perceive no jurisdictional defect in this case.

IV. Correction of the Mittimus ¶ 16 We note, nostra sponte, that the mittimus incorrectly reflects that Wolf was found guilty of two counts of sexual assault on a child by one in a position of trust (counts 1 and 2), rather than one

count of SAOC-pattern (count 1) and one count of sexual assault on a child by one in a position of trust (count 2). Count 1 on the mittimus should be corrected to show that Wolf was found guilty of sexual assault on a child as part of a pattern of abuse under section 18-3-405(1), (2)(d). See People v. Brown, 2014 COA 155M-2, ¶ 40.

V. Disposition ¶ 17 The order is affirmed, and the case is remanded for correction of the mittimus.

JUDGE J. JONES and JUDGE LIPINSKY concur.