Peo v. Craig

23CA1176 Peo v Craig 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1176

Mesa County District Court No. 20CR167

Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Erik Shane Craig,

Defendant-Appellant.

SENTENCES AFFIRMED

Division III

Opinion by JUDGE MOULTRIE

Dunn and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 15, 2024

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Erik Shane Craig, appeals the sentences imposed

on his guilty pleas to sexual assault, obscenity, and child abuse.

We affirm.

I. Background

¶ 2 In exchange for Craig’s guilty pleas, the prosecution dismissed

thirty-three other charges related to his alleged sexual assaults on

multiple children. Craig stipulated in the plea agreement to the

following sentences:

• Sexual assault — ten to twelve years to life in the custody

of the Department of Corrections (DOC) plus ten years to

life of mandatory parole;

• Obscenity — two years in the custody of the DOC; and

• Child abuse — a jail sentence to be served concurrently

with the sexual assault sentence.

He also stipulated to a possible sentence in the aggravated range

because he was “a previously convicted sex offender and a[]

habitual felon criminal.” Craig further agreed to register as a sex

offender.

¶ 3 At sentencing, the district court heard from the victim of

Craig’s prior 2010 conviction for attempted sexual assault on a

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child, who also participated in this case as a CRE 404(b) witness.

The victim, C.S., talked about the effect Craig’s conduct had on her

and the effect the current case had on her. She urged the court to

impose the maximum prison sentence. The court also heard from

another person connected to the victims in this case. And a friend

of Craig’s spoke on his behalf.

¶ 4 The district court found that Craig did not meet the definition

of a sexually violent predator. The court found, however, that he

was a “serial [s]ex [o]ffender” based on the 2010 case. The court

also required Craig to register as a sex offender.

¶ 5 In making its findings, the court referenced C.S.’s statements,

indicating its appreciation of the difficulties cases like this present

to the victims and stating,

And I remember the, the 2010 case. I

remember – I think it was [the victim’s father],

and he talked about how Mr. Craig’s actions

had impacted his daughter, and it was

significant.

And so, here we are, you know, 13 years later

with similar type of behavior. I understand he

didn’t plead . . . to the sexual assault . . . on

the children accounts [sic], but they are listed

in th[e] obscenity counts.

The court went on to say,

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I’ve been involved in this litigation from the

beginning. I, I know the, the history and, and

what the evidence was purporting to —

purporting they’re going to be showing at trial.

And you know what I’ve got out of this is that

Mr. Craig, to the extent that he [previously]

participated in Sex Offender treatment, it

wasn’t successful, because we’re here again.

The court also expressed concern that Craig appeared to be focused

on the impact the case had on him rather than the victims in a

statement that he wrote.

¶ 6 The court then sentenced Craig, within the parameters of the

plea agreement, to twelve years to life in the custody of the DOC

plus ten years to life of mandatory parole for sexual assault, a

consecutive two-year term in the custody of the DOC for obscenity,

and a concurrent one-year jail term for child abuse.

II. Discussion

¶ 7 Craig contends that the district court abused its discretion

and violated his due process rights because it based its sentencing

decision, in part, on C.S.’s statements related to the 2010 case. We

disagree.

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A. Standards of Review and Reversal

¶ 8 We generally review sentencing decisions for an abuse of

discretion. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). “A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it fails to exercise its discretion

due to its erroneous construction of the law.” People v. Herrera,

2014 COA 20, ¶ 16 (citation omitted). However, we review de novo a

constitutional challenge to a district court’s sentencing

determination. Lopez, 113 P.3d at 720.

¶ 9 We agree with the parties that Craig’s contention is

unpreserved. We therefore review for plain error. See Hagos v.

People, 2012 CO 63, ¶ 14. An error is plain if it is obvious and

substantial. Id. We reverse under this standard only if the error so

undermined the fundamental fairness of the proceeding so as to

cast serious doubt on the reliability of the judgment of conviction.

Id.

B. Applicable Law

¶ 10 The type of evidence that a court may consider during the

sentencing phase of a criminal proceeding is largely unconstrained.

People v. Tallwhiteman, 124 P.3d 827, 837 (Colo. App. 2005). The

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court must consider the nature and elements of the offense, the

character and rehabilitative potential of the offender, any

aggravating or mitigating circumstances, the development of respect

for the law, the deterrence of crime, and the protection of the

public. People v. Maestas, 224 P.3d 405, 409 (Colo. App. 2009);

People v. Thoro Prods. Co., 45 P.3d 737, 748 (Colo. App. 2001), aff’d,

70 P.3d 1188 (Colo. 2003). Aggravating or mitigating

circumstances can include past conduct, a pattern of conduct that

indicates whether the defendant is a serious danger to society, and

prior convictions. People v. Leske, 957 P.2d 1030, 1043 (Colo.

1998). “[A] court may consider not only the conduct with which the

offender was expressly charged, but also unrelated criminal

conduct and even aspects of his life that go beyond antisocial

conduct.” Vensor v. People, 151 P.3d 1274, 1280 (Colo. 2007).

C. Analysis

¶ 11 We conclude that the district court did not err by considering

C.S.’s statements related to Craig’s 2010 conviction in making its

sentencing determination. A court is permitted to consider a

defendant’s criminal record during sentencing, and Craig has not

shown that such consideration was inappropriate here. See Leske,

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957 P.2d at 1043; Vensor, 151 P.3d at 1280; see also

Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998)

(“[P]rior commission of a serious crime . . . is as typical a sentencing

factor as one might imagine.”).

¶ 12 Tallwhiteman is instructive. In that case, the district court

heard statements at sentencing from the alleged victim in one of

two prior assault cases involving the defendant. Tallwhiteman, 124

P.3d at 837. The division noted that,

[w]hile a sentence may not be based on

materially untrue evidence, a sentencing court

may, in evaluating the nature of the offense

and the character of the offender, consider

conduct for which the offender was never

charged, conduct for which charges were filed

but later dismissed as part of a plea

agreement, or even conduct for which the

offender was charged and subsequently

acquitted.

Id. The division then concluded there was no evidence in the record

suggesting that the victim’s statements about the defendant’s prior

conduct were materially untrue, and therefore the district court had

not erred by considering the statements in sentencing. Id.

¶ 13 We agree with the division’s reasoning and holding in

Tallwhiteman and follow it here. In Craig’s case, there is likewise no

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evidence in the record indicating that the victim’s statements at

sentencing regarding Craig’s prior conduct were materially untrue.

Nor does Craig allege so. Accordingly, the district court did not err,

let alone plainly err, by considering C.S.’s statements in sentencing.

III. Disposition

¶ 14 The sentences are affirmed.

JUDGE DUNN and JUDGE YUN concur.