concurring-in-part-and-dissenting-in-part">Judge NIETO

concurring in part and dissenting in part.

I concur in part I, but respectfully dissent from the result in part II.

I agree that the analysis used in People v. Young, 987 P.2d 889 (Colo.App.1999), is appropriately applied here, but I would conclude beyond a reasonable doubt that the sentencing court’s consideration of the underlying offense surely did not contribute to the aggravated range sentence imposed.

On the one hand, viewed objectively based on what little is known of the facts of the underlying offense, it was an entirely unremarkable event. Further, neither the prosecutor nor the sentencing court discussed the factual basis for the offense in great detail or offered any reason why the offense should be considered extraordinary.

On the other hand, defendant’s criminal record of six prior felonies, viewed objectively, could be considered to be extraordinary, and the sentencing court’s comments reveal that it considered defendant’s criminal record to be exceptional. The court told defendant, “You have managed to accumulate way too many felony convictions.” The court also noted that in view of defendant’s failure to take advantage of probation and other alternative sentences, a sentence to probation here would be a waste of scarce resources. Finally, the court observed that defendant’s criminal history began as a juvenile and continued “as an adult up to and including this present offense.”

Because of the sentencing court’s emphasis on defendant’s criminal record and its minimal reference to the facts of the underlying offense, I conclude beyond a reasonable doubt that the trial court would have imposed the aggravated range sentence regardless of the court’s consideration of the underlying offense. Thus, in my opinion, the sentence imposed was surely not attributable to the court’s error.

Accordingly, I would affirm the sentence imposed by the sentencing court.

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