23CA0768 Peo v Brach 09-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0768 Mesa County District Court Nos. 22CR1121 & 22CR1226 Honorable Jeremy L. Chaffin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nathan Dominic Brach,
Defendant-Appellant.
SENTENCES AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE MEIRINK Freyre and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Nathan Dominic Brach, pleaded guilty to
possession of a weapon by a previous offender (POWPO) and to
third degree assault in Mesa County Case No. 22CR1121 and to one
count of POWPO in Mesa County Case No. 22CR1226.
¶2 In Case No. 22CR1121, the district court sentenced Brach to
364 days in county jail for the assault charge and fifteen years of
probation for the POWPO charge — with the sentences to run
consecutively. In Case No. 22CR1226, the district court sentenced
Brach to fifteen years of probation, to be served concurrently with
the probationary sentence in Case No. 22CR1121. This appeal
followed. We reverse the sentence imposed in Case No. 22CR1121
and remand for resentencing, and we affirm the sentence imposed
in Case No. 22CR1226.
I. Background
¶3 In August 2022, Brach and his girlfriend, E.M., were watching
a movie at E.M.’s home. Brach became agitated and asked E.M.
whom she was texting. E.M. handed Brach her phone, and he
threw it against the wall. E.M. told officers that Brach grabbed her
by the throat, strangled her, and pushed her against a wall and
1 then to the ground. Brach then struck her head with a cordless
drill, knocking her unconscious.
¶4 According to the affidavit in support of a warrantless arrest,
when E.M. woke up, she claimed that she was wrapped in a blue
plastic mattress cover. She could hear Brach on the phone talking
to someone. E.M. heard Brach leave, and she broke out of the
plastic. E.M. locked the front door, ran into her bedroom, and
called 911. E.M. said she could hear Brach knocking on and
kicking the front door. Eventually, Brach kicked in the front door
and entered E.M.’s home. The police arrived soon after.
¶5 When the police searched the apartment, they found
numerous bullets throughout the home. During interviews, E.M.
confirmed that Brach owned firearms, despite prior convictions
prohibiting him from possessing weapons. Brach was charged in
Case No. 22CR1121 with attempt to commit second degree murder,
two counts of second degree assault, felony menacing, false
imprisonment, criminal mischief, and three crime of violence
sentence-enhancer counts.
¶6 Officers later learned that Brach owned a fifth-wheel camper,
which was parked on E.M.’s brother’s property, and that there were
2 guns in the camper. When officers searched the camper, they
found numerous firearms, ammunition, and apparent explosives.
Based on the possession of those weapons, the People charged
Brach with six counts of POWPO in Case No. 22CR1226.
¶7 Brach reached a global plea agreement with the prosecution.
In Case No. 22CR1121, Brach agreed to plead guilty to an added
POWPO count and an added third degree assault count in exchange
for dismissal of the remaining charges. In Case No. 22CR1226,
Brach agreed to plead guilty to one POWPO count in exchange for
dismissal of the remaining charges.
¶8 After accepting Brach’s guilty pleas, the district court
sentenced Brach as mentioned above.
II. Analysis
¶9 Brach argues that (1) the district court erred in sentencing
him to imprisonment on one charge and probation on another
charge in Case No. 22CR1121; (2) the district court erred by
imposing probation without his consent; (3) his guilty pleas are
invalid because they were not made knowingly, intelligently, and
voluntarily; and (4) his fifteen-year probationary sentence for a
POWPO offense is disproportionate and constitutes cruel and
3 unusual punishment. We agree with Brach’s first contention and
disagree with his remaining contentions.
A. The Sentence Imposed in Case No. 22CR1121 Violates Allman v. People
¶ 10 Brach first argues that his sentence in Case No. 22CR1121 is
illegal because he was sentenced to imprisonment for the third
degree assault charge and probation for the POWPO charge in
violation of Allman v. People, 2019 CO 78, which requires courts to
choose either incarceration or probation when sentencing a
defendant to multiple sentences in the same case.
1. Standard of Review and Applicable Law
¶ 11 Whether a district court has the authority to impose a specific
sentence is a question of statutory interpretation, which we review
de novo. Snow v. People, 2025 CO 32, ¶ 19.
¶ 12 A district court’s sentencing authority derives entirely from
statute. Allman, ¶ 28. Section 18-1.3-202(1)(a), C.R.S. 2025, gives
district courts discretion to grant probation as an alternative to a
prison sentence. See Allman, ¶ 34 (recognizing that the probation
statute “requires a choice between prison and probation).” The
“legislature intended to allow courts to choose only one or the
4 other.” Id. When “a court sentences a defendant for multiple
offenses in the same case, it may not impose imprisonment for
certain offenses and probation for others.” Id. at ¶ 40.
2. Discussion
¶ 13 The district court sentenced Brach to 364 days in county jail
for the third degree assault charge to be followed by fifteen years of
probation for the POWPO charge.
¶ 14 Allman clarified that section 18-1.3-202 gives district courts
discretion to choose between imprisonment and probation within
the same case, but the statutory scheme does not “allow a court to
impose sentences of imprisonment and probation for different
counts in the same case.” Allman, ¶ 38. Here, the district court
acknowledged that the “options in this case are probation or
prison,” but it nevertheless imposed a fifteen-year probation
sentence following a 364-day imprisonment sentence. This is
incompatible with Allman and the probation statute.
¶ 15 Accordingly, we reverse the sentence imposed in Case No.
22CR1121 and remand the case to the district court for
resentencing consistent with Allman and section 18-1.3-202.
5 B. Brach Consented to Fifteen-Year Probationary Sentences
¶ 16 Brach contends that his fifteen-year probationary sentences
are illegal because he did not accept such lengthy terms. We
disagree.
¶ 17 We review the legality of a sentence de novo. Veith v. People,
2017 CO 19, ¶ 12.
¶ 18 Probation is an alternative to a prison sentence. People v.
Smith, 2014 CO 10, ¶ 8. A prison sentence is primarily punitive,
but probation is intended to be rehabilitative. Id. Because
probation is an opportunity for a defendant to avoid serving a
harsher sentence of incarceration, a defendant must apply for it,
and receipt of probation is a privilege, not a right. Id.; see also
§ 18-1.3-202(1)(a) (probation is a request that the court “may grant”
or deny). An offender must choose to accept the court’s terms; the
court may not impose a sentence of probation without the offender’s
consent. Smith, ¶ 8; see also People v. Rollins, 771 P.2d 32, 33
(Colo. App. 1989) (recognizing that probation “is accorded only to a
defendant who seeks or is willing to accept it as a sentence”). If the
6 offender “rejects probation, the court may sentence the offender to
imprisonment under section 18-1.3-104.” Smith, ¶ 8.
¶ 19 Brach contends that because he did not consent to fifteen
years of probation, his sentences are illegal and must be vacated.
Brach claims he did not consent for two reasons. First, while the
district court indicated that it could sentence him to incarceration,
Brach asserts that the court never raised the possibility of a fifteen-
year probationary sentence before it sentenced him. Second, Brach
claims that the district court never mentioned that he had to
consent or that he could reject probation after hearing its terms.
We are unpersuaded and address each of Brach’s arguments in
turn.
¶ 20 First, based on the record, we cannot say that Brach’s fifteen-
year probationary sentences were a surprise. Consistent with
section 18-1.3-201, C.R.S. 2025, Brach requested probation. At the
sentencing hearing, defense counsel argued that prison time was
not appropriate for Brach, “given the facts of this case, . . . Brach’s
low risk assessment, . . . [and] the fact that Mr. Brach has already
served 184 days in jail.” Counsel also noted that Brach had a lot of
7 family support; he owned a welding business; and, if placed on
probation, his “intent [wa]s to work with probation to do an
interstate compact to Texas, and reside with his mom, and get his
business up and running.”
¶ 21 Under section 18-1.3-202(1)(a), a court has broad discretion to
grant probation “upon such terms and conditions as it deems best.”
Further, the length of probation is “subject to the discretion of the
court and may exceed the maximum period of incarceration
authorized for the classification of the offense of which the
defendant is convicted.” Id.
¶ 22 At the sentencing hearing, the court mentioned that, when
compared to the time Brach could spend in prison, a probationary
sentence could be for an extended or indefinite length of time. As
the court explained, Brach was facing a “presumptive range
sentence of up to three years in prison,” but “[i]f [the court] were to
sentence Mr. Brach to probation, [it] c[ould] sentence him to any
term including forever, the rest of his life.” The court also described
its reasoning for imposing a probationary sentence over
incarceration:
8 [A]s easy as it would be to send you to prison today, Mr. Brach, I don’t think that just sending you to prison is going to address those issues. I don’t think the community is going to be safer if I just sent you to prison, and then in three years no one’s keeping an eye on you. I don’t think that sending you to prison where you aren’t going to go through substance abuse treatment, where you aren’t going to get mental health treatment, where you aren’t going to go through domestic violence treatment is going to make [E.M.] safer or the community safer. And so I am not going to send you to prison on the felony charges . . . .
¶ 23 Thus, there is ample evidence in the record demonstrating
that the court and parties discussed probation extensively,
including the fact that a probationary term could be lengthy, and
that the district court granted probation because Brach required
long-term supervision and treatment.
¶ 24 Second, the record shows that Brach consented to his
probationary sentences. While Brach did not object at the time the
court pronounced his sentences, he was given multiple
opportunities to object, but he did not. Moreover, when the court
was finished sentencing him, it asked Brach if he had “any further
record [he would] like to make,” and he declined to do so.
9 ¶ 25 Brach claims that his failure to object does not amount to
consent or acquiescence to his probation. In support, he relies on
Veith for the proposition that “a trial court cannot impose a
sentence of probation without the defendant’s consent.” Veith, ¶ 4.
We agree that consent is required but conclude that Brach’s
reliance on Veith is misplaced.
¶ 26 In Veith, the defendant pleaded guilty to theft and securities
fraud. Id. at ¶ 2. Veith requested probation but was sentenced to a
ten-year term of incarceration plus parole for the theft count and
twenty-five years of probation for the securities fraud charge. Id.
Like Brach, Veith did not object when the judge sentenced him. Id.
But unlike Brach, Veith did not sign any form acknowledging and
accepting the terms and conditions of the probationary sentence.
Id. at ¶ 9. Because Veith did not “sign the probation order that
provided the specific terms and conditions of the probationary
sentence,” the court held that Veith did not consent and that “the
court lacked the power to impose that sentence.” Id. at ¶¶ 18-19.
¶ 27 Brach’s situation is distinguishable. Brach signed and
initialed the probation order and form outlining the standards and
conditions of probation on April 19, 2023 — nearly a month after
10 the sentencing hearing and after having ample time to review and
challenge the terms. Considered collectively, Brach’s request for
probation, his failure to object at sentencing, and his signing the
sentencing order demonstrate Brach’s consent to his fifteen-year
probationary sentences.
C. The District Court Properly Advised Brach of the Possible Sentencing Range
¶ 28 Alternatively, Brach argues that his guilty pleas were invalid
because they were not made knowingly, intelligently, and
voluntarily. We disagree.
¶ 29 The People contend that a guilty plea may be challenged and
withdrawn before a defendant is sentenced under Crim. P. 32(d) or
after a defendant is sentenced in a postconviction proceeding under
Crim. P. 35(c). See People v. Kirk, 221 P.3d 63, 64-65 (Colo. App.
2009). Because Brach did not file a motion to withdraw his guilty
pleas under Crim. P. 32(d), the People contend that Brach may only
challenge the validity of his guilty pleas in a Crim. P. 35(c) motion
and not on direct appeal.
¶ 30 Brach clarifies that his argument is not whether his attorney
failed to advise him or incorrectly advised him on the sentencing
11 range, which he acknowledges requires development of the factual
record and can only be accomplished in a postconviction
proceeding. Rather, his argument is that the sentencing court failed
to properly advise him of the possible sentencing range, and,
therefore, his guilty pleas were not “knowing and intelligent.”
¶ 31 Assuming Brach’s argument is properly before us, we are not
persuaded. Crim. P. 11 requires that a defendant be advised of,
among other things, the “possible penalty or penalties” associated
with entering a guilty plea. Crim. P. 11(b)(4). Our supreme court
has construed this requirement as “charging the courts with a duty
to describe the ‘direct consequences’ of the resulting conviction.”
Craig v. People, 986 P.2d 951, 963 (Colo. 1999) (quoting People v.
Birdsong, 958 P.2d 1124, 1128 (Colo. 1998)).
¶ 32 During the plea hearing, Brach was informed of the potential
penalties for his guilty pleas, including any aggravating or
mitigating factors, and Brach informed the court he understood.
Brach was also informed that the court would sentence him as it
deemed appropriate, and Brach did not object or ask clarifying
questions when given the opportunity. Moreover, the court
mentioned that, once it reviewed the presentence investigation
12 report and community corrections screening, the court might
determine that it was not bound by the limitation on concurrent or
consecutive sentencing and that it would give Brach the
opportunity to withdraw his guilty pleas.
¶ 33 Finally, when Brach entered his guilty pleas, he was informed
that sentencing for both cases was “open to the [c]ourt” and signed
the plea agreements anyway. Brach’s signed plea agreements state
that he previously reviewed and discussed the specifications with
his attorney and that he fully understood and accepted the terms.
Accordingly, Brach’s claim that the district court failed to advise
him of the possible sentencing range and that he did not enter his
pleas knowingly, intelligently, and voluntarily is without merit.
13 D. Brach’s Sentence Was Not Disproportionate1
¶ 34 Lastly, Brach argues that his fifteen-year probation sentence is
disproportionate and violates the bar against cruel and unusual
punishment.2 We disagree.
¶ 35 We review constitutional challenges to sentencing de novo.
Misenhelter v. People, 234 P.3d 657, 660 (Colo. 2010). Whether a
sentence is constitutionally proportionate is a question of law that
we review de novo. Rutter v. People, 2015 CO 71, ¶ 12.
¶ 36 Both the United States and Colorado Constitutions prohibit
“grossly disproportionate” sentences. Wells-Yates v. People, 2019
CO 90M, ¶¶ 5, 10. Proportionality is a “foundational ‘precept of
1 Because we are reversing and remanding the sentence imposed in
Case No. 22CR1121, we address Brach’s argument in this section only as it applies to Case No. 22CR1226.
2 In footnote 3 of their answer brief, the People mention that they
are “unaware of authority addressing a proportionality challenge to a probation sentence” and that it is “not clear that such a claim is valid given that a defendant, such as Brach, is free to reject a probation sentence.” Because the People do not develop their claim, however, we do not address it. See People v. Hill, 228 P.3d 171, 176 (Colo. App. 2009) (declining to consider a conclusory assertion that was inadequately presented); see also People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003) (declining to consider “a bald legal proposition presented without argument or development”).
14 justice’” that “dictates that the punishment should fit the crime.”
Id. at ¶ 1 (quoting Weems v. United States, 217 U.S. 349, 367
(1910)). The inquiry must consider “the evolving standards of
decency that mark the progress of a maturing society.” Id. at ¶ 46
(quoting Graham v. Florida, 560 U.S. 48, 58 (2010)).
¶ 37 When a defendant challenges the proportionality of a sentence,
the court must conduct an abbreviated proportionality review,
which has two steps. Id. at ¶¶ 10-11.
¶ 38 At step one, the court will “consider the gravity or seriousness
of the offense” for which the defendant was convicted. Id. at ¶ 12.
For crimes that are not “per se” grave or serious, courts look at the
facts and circumstances of the offense to determine their gravity or
seriousness. See id. at ¶ 13. Crimes are only “per se” grave or
serious if the crime would be grave or serious in “every potential
factual scenario.” Id. at ¶ 63. Thus, step one generally requires “a
consideration of the harm caused or threatened to the victim or
society and the culpability of the offender.” People v. Session, 2020
COA 158, ¶ 33.
¶ 39 At step two, the court must compare the gravity of the
defendant’s offense with the harshness of the sentence imposed for
15 that offense. Wells-Yates, ¶ 14. This includes a consideration of
the length of the sentence as well as parole eligibility. Id.; Session,
¶ 37. Whether a defendant is parole eligible is relevant during an
abbreviated proportionality review because parole can reduce the
actual period of confinement and render the penalty less harsh.
Wells-Yates, ¶ 14.
¶ 40 Brach argues that his fifteen-year probationary sentence for
POWPO is disproportionate and violates the bar against cruel and
unusual punishment. We disagree.
¶ 41 POWPO is not a per se grave or serious crime. See People v.
Wright, 2021 COA 106, ¶¶ 73, 77 (recognizing that POWPO does not
present a sufficient level of harm or threat of harm such that it
could be considered inherently grave or serious). But “some, if not
most, factual permutations of POWPO may indeed be considered
grave or serious,” so it is necessary to consider the factual
circumstances associated with the charge and the harm caused or
threatened to the victim. Id. at ¶ 78.
¶ 42 Here, police were dispatched to E.M.’s home because she was
scared that Brach was going to kill her. After his initial arrest,
16 Brach made a recorded jail phone call to his mother, where he
spoke about his “artillery” in his fifth-wheel camper on E.M.’s
brother’s property. Police obtained a warrant to search the camper,
where they found a large compartment under the bed. The
compartment contained numerous firearms, ammunition, and
related items, and police discovered firearms and ammunition
throughout the camper and property.
¶ 43 In addition to the facts and circumstances, we must also
consider “aggravating or mitigating information, including other
charges dismissed at the time of [a] plea, in order to best balance
the competing sentencing goals of punishment, deterrence,
rehabilitation, and protection of society.” People v. Austin, 799 P.2d
408, 413 (Colo. App. 1990) (quoting People v. Lowery, 642 P.2d 515,
518 (Colo. 1982)).
¶ 44 Brach was charged with six counts of POWPO in Case No.
22CR1226 but ultimately pleaded guilty to only one count in
exchange for dismissal of the other five counts as part of his plea
deal. During the sentencing hearing and in a letter to the court,
E.M. detailed her tumultuous relationship with Brach, his history of
violence, his use of firearms and weapons, and her fear that Brach
17 “will come after [her] when he is released.” Further, the record
demonstrates that Brach has been involved with the criminal
justice system for over twenty years, and his offenses have
escalated in severity and violence:
• In 2000, Brach had four alcohol-related misdemeanor traffic
violations.
• In 2006, Brach was convicted of assault and was sentenced to
eighteen months of probation.
• In 2012, Brach was convicted of felony menacing alongside a
misdemeanor charge of criminal mischief and was sentenced
to five years’ probation. Brach also received a five-year
probationary sentence for an assault committed later in 2012.
• In 2020, Brach was charged with domestic violence assault
and was ordered to complete a family violence class.
¶ 45 Considering Brach’s criminal history, his risk of reoffending if
he does not address his “criminogenic needs,” and the original six
POWPO charges against him, we conclude Brach’s POWPO offense
was grave and serious.
¶ 46 We next address the harshness of the sentence imposed.
Brach faced a three-year prison sentence for the POWPO charge.
18 He would have been eligible for parole or community corrections
after serving fifty to seventy-five percent of his sentence. With
parole eligibility, Brach could have spent a year and a half in
custody, then two years on parole. However, Brach requested and
was granted a probationary sentence.
¶ 47 Brach contends that the length of probation makes his
sentence too harsh. We are unpersuaded. As previously
mentioned, “probation is an opportunity for an offender to avoid
serving a harsher sentence.” Smith, ¶ 8. Through probation, Brach
has received more freedom than he would have received with a
prison sentence, including the possibility of transferring his
probation to another state. Moreover, the district court granted
probation because Brach needed to participate in supervised
rehabilitation and treatment services, which are less harsh than
serving prison time. Finally, under section 18-1.3-204(4)(a), C.R.S.
2025, it’s possible that “[f]or good cause shown . . . the judge may
reduce . . . the term of probation or alter the conditions or impose
new conditions.”
19 ¶ 48 Under these circumstances, we conclude Brach’s fifteen-year
probationary sentence does not give rise to an inference of gross
disproportionality.
III. Disposition
¶ 49 We reverse the district court’s sentence in Case No. 22CR1121
and remand for resentencing consistent with this opinion. We
affirm the district court’s sentence in Case No. 22CR1226.
JUDGE FREYRE and JUDGE GOMEZ concur.