22CA0338 Peo v Carbajal 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0338 City and County of Denver District Court No. 10CR3824 Honorable Brian R. Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Dean Carbajal,
Defendant-Appellant.
ORDER AND SENTENCE AFFRIMED
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Dean Carbajal, Pro Se ¶1 Defendant, Dean Carbajal, appeals the district court’s orders
denying his most recent postconviction motion and resentencing
him following the vacatur of his habitual criminal sentence. We
affirm.
I. Background
¶2 In 2011, a jury found Carbajal guilty of multiple counts of
violation of a protection order, multiple counts of violation of bail
bond conditions, multiple counts of second degree burglary,
multiple counts of first degree trespass, multiple counts of stalking,
and one count of second degree kidnapping. In 2012, the trial
court adjudicated Carbajal a habitual offender and sentenced him
to a total of one hundred fifty-one and a half years in the custody of
the Department of Corrections (DOC).
¶3 A division of this court affirmed Carbajal’s convictions and
sentences on direct appeal. People v. Carbajal, (Colo. App. No.
12CA0410, June 30, 2016) (not published pursuant to C.A.R. 35(e))
(Carbajal I). The court issued the mandate on April 27, 2017.
¶4 In 2017, Carbajal filed his first pro se motion for
postconviction relief pursuant to Crim. P. 35, which the district
court denied. Carbajal appealed, and another division of this court
1 affirmed in part, reversed in part, and remanded the case for
further proceedings concerning Carbajal’s challenge to the
proportionality of his habitual criminal sentence. People v.
Carbajal, (Colo. App. No. 17CA2337, Mar. 25, 2021) (not published
pursuant to C.A.R. 35(e)) (Carbajal II). The court issued the
mandate on May 28, 2021.
¶5 Meanwhile, in 2019, one of the felony convictions that served
as a predicate for Carbajal’s habitual criminal sentence was
vacated. As a result, in March 2020, while his postconviction
appeal in Carbajal II was still pending, Carbajal filed a second pro
se postconviction motion challenging the legality of his habitual
criminal sentence and contending, among other things, that the use
of the now-vacated predicate conviction for impeachment at his trial
violated his constitutional rights. The People conceded that
Carbajal was entitled to be resentenced but opposed the other
claims raised in his motion.
¶6 On January 7, 2022, after the mandate was issued in Carbajal
II, the district court held a hearing to consider the claims raised in
Carbajal’s second postconviction motion and to resentence him.
2 The court denied Carbajal’s postconviction claims and resentenced
him to a combined thirty-six years in DOC custody.
¶7 In this single appeal, Carbajal directly appeals his new
sentence, appeals the court’s denial of his postconviction motion,
and raises new challenges to the court’s jurisdiction. We first
address the challenges to Carbajal’s underlying conviction, which
include arguments that the court lacked jurisdiction and erred by
denying his second postconviction motion. We then address
Carbajal’s challenges to his new sentence.
II. Challenges to the Underlying Conviction
¶8 Carbajal challenges the underlying judgment of conviction,
contending that the district court (1) lacked subject matter
jurisdiction and (2) erred by denying his second postconviction
motion. We disagree.
A. Crim. P. 35(c)
¶9 Crim. P. 35(c) permits postconviction review of alleged
constitutional errors in criminal proceedings. People v. Sherman,
172 P.3d 911, 915-16 (Colo. App. 2006). A postconviction court
may summarily deny a Crim. P. 35(c) motion if “the motion, the
files, and the record clearly establish that the allegations in the
3 motion lack merit and do not entitle the defendant to relief.”
Kazadi v. People, 2012 CO 73, ¶ 17. With exceptions that are not
applicable in this case, the rule requires that the court “deny any
claim that was raised and resolved in a prior appeal or
postconviction proceeding on behalf of the same defendant.” Crim.
P. 35(c)(3)(VI). The rule also bars claims “that could have been
presented in an appeal . . . or postconviction proceeding previously
brought” except claims based on events that occurred after
initiation of the defendant’s prior appeal or claims that the
sentencing court lacked subject matter jurisdiction. Crim. P.
35(c)(3)(VII).
¶ 10 While Crim. P. 35(c) is designed to prevent injustices after
conviction and sentencing, it is “not intended to establish a
procedure which would allow continuing review of issues previously
decided against the defendant.” People v. Hubbard, 519 P.2d 945,
947 (Colo. 1974); see also People v. Rodriguez, 914 P.2d 230, 249-
50 (Colo. 1996). In cases like this one, in which “a defendant has
already directly appealed his conviction and lost, and has likewise
failed to obtain postconviction relief upon application to the trial
court and review by an appellate court,” the rule does not provide
4 the defendant with another chance to collaterally attack his
conviction, even following a resentencing. People v. Dunlap, 222
P.3d 364, 369 (Colo. App. 2009) (“Because defendant would seek to
attack his conviction, not just his sentence, we decline to allow a
new appeal, which would effectively open his entire case to
relitigation, contrary to finality principles.”); see also Hunsaker v.
People, 2021 CO 83, ¶¶ 21-26 (“A defendant who successfully
corrects an illegal sentence may thereafter collaterally attack their
conviction, but they may only raise arguments addressing how the
illegality in the sentence potentially affected the original
conviction.”).
¶ 11 We review a district court’s ruling on a Crim. P. 35(c) motion
following an evidentiary hearing as a mixed question of fact and
law. People v. Sharp, 2019 COA 133, ¶ 12. We defer to the district
court’s factual findings if they have record support and review de
novo its legal conclusions. Id.
B. Jurisdictional Contentions
¶ 12 Carbajal contends that the district court lacked subject matter
jurisdiction to enter his judgment of conviction because (1) the
charges in the underlying case had already been brought and
5 dismissed in other cases; (2) the case was improperly bound over
from the county court to the district court, and the prosecution
failed to file an information in the district court; and (3) several
charges brought in the underlying case were based on a repealed
statute. None of these contentions demonstrate a jurisdictional
defect.
1. Subject Matter Jurisdiction
¶ 13 “Subject matter jurisdiction concerns a court’s authority to
deal with the class of cases in which it renders judgment.” People v.
Sims, 2019 COA 66, ¶ 14. A court has subject matter jurisdiction
“where it has been empowered to entertain the type of case before it
by the sovereign from which the court derives its authority.” Wood
v. People, 255 P.3d 1136, 1140 (Colo. 2011). Article VI, section 9(1),
of the Colorado Constitution vests the district court with original
jurisdiction in all criminal cases. Sims, ¶ 14.
¶ 14 In addition to a court’s general authority to hear a case,
subject matter jurisdiction must also be properly invoked before the
district court can act. Id. at ¶ 15. In criminal matters, a court’s
jurisdiction is invoked by the filing of a legally sufficient complaint,
information, or indictment. Id.
6 ¶ 15 Jurisdictional defects may be raised at any time, People v.
Torkelson, 971 P.2d 660, 661 (Colo. App. 1998), but “prior relevant
rulings made in the same case are to be followed unless such
application would result in error or unless the ruling is no longer
sound due to changed conditions,” People v. Dunlap, 975 P.2d 723,
758 (Colo. 1999). We review de novo whether the district court had
subject matter jurisdiction. Dodge v. Padilla, 2023 COA 67, ¶ 9.
2. Duplicative Filing of Charges
¶ 16 As best we understand, Carbajal contends that when the
prosecution initially charged him, it filed the fourteen charges
across “numerous shell cases” — namely, Denver County Court
Case No. 10M10759 and Denver District Court Case Nos.
10CR3823, 10CR3825, 10CR3859, and 10CR3875 — in addition to
the underlying case, Denver District Court Case No. 10CR3824.
According to Carbajal, the prosecution “refused to prosecute these
shell cases,” and they were “dismissed . . . for failure to prosecute,”
but “before these cases were dismissed, the prosecution illegally
refiled each of the respective charges that were filed in the five
subject cases . . . into case 10CR3824.” As a result, he argues, the
charges “remained sub judice and jurisdiction remained with the
7 original filings,” depriving the district court in this case of
jurisdiction over those charges. The People counter that because
Carbajal did not raise this contention in the district court, we
should deny it without further consideration.
¶ 17 To the extent Carbajal challenges the district court’s subject
matter jurisdiction, he may raise that challenge at any time,
including for the first time on appeal. See Torkelson, 971 P.2d
at 661. But Carbajal’s contention does not implicate the court’s
subject matter jurisdiction; at most, it implicates Carbajal’s
constitutional right against double jeopardy. See People v.
Arzabala, 2012 COA 99, ¶ 21 (“Double jeopardy is commonly
implicated where multiple counts are charged and multiple
punishments imposed for the same criminal conduct.”).
¶ 18 A claim that Carbajal’s conviction was obtained in violation of
his constitutional rights must be raised in accordance with Crim. P.
35(c). See Sherman, 172 P.3d at 915-16. And because this claim
“could have been presented in an appeal . . . or postconviction
proceeding previously brought,” and Carbajal has not asserted,
much less shown, that any relevant exceptions apply, it is barred as
successive. Crim. P. 35(c)(3)(VII).
8 3. Bind Over and Information
¶ 19 Carbajal contends that the district court lacked jurisdiction
because (1) the charges brought against him in county court were
improperly bound over to the district court, and (2) the prosecution
failed to file a valid information in the district court.
¶ 20 Carbajal made the same arguments in his direct appeal in
Carbajal I. There, the division understood him to argue “that the
prosecution filed charges in county court, which improperly
transferred venue and joined the charges into one case in the
district court — all without dismissing the charges in the county
court or filing a valid information in the district court.” Carbajal I,
slip op. at 21-22. Ultimately, the Carbajal I division determined
that “the district court had jurisdiction over the case, and the
prosecution properly consolidated the case.” Id. at 21.
¶ 21 Because these claims were raised and resolved in Carbajal I,
they must be denied. See Crim. P. 35(c)(3)(VI) (mandating that a
court “shall deny any claim that was raised and resolved in a prior
appeal” and providing no exception for claims alleging jurisdictional
defects); see also People v. McDowell, 219 P.3d 332, 335 (Colo. App.
2009) (“A defendant cannot use a Crim. P. 35 proceeding to
9 relitigate matters that were fully and finally resolved in an earlier
appeal.”).
4. Repealed Stalking Statutes
¶ 22 Carbajal contends that his stalking convictions are “void for
want of jurisdiction” because the district court “impos[ed] judgment
under a repealed stalking statute in absence of [d]ue [p]rocess of
law.” We disagree.
a. Additional Background
¶ 23 The prosecution filed its complaint and information against
Carbajal in September 2010, charging him with seventeen counts,
including one count of stalking (count 17) under section
18-3-602(1)(c), (5), C.R.S. 2010. In January 2011, the district court
granted the prosecution’s motion to amend count 17 to reference
section 18-9-111(4)(b)(I), (5)(b), C.R.S. 2010, and to add a second
stalking count (count 18) under section 18-9-111(4)(b)(III), (5)(b),
C.R.S. 2010. Both stalking counts charged a date range of May 12,
2010, to August 28, 2010.
¶ 24 In 2010, the legislature enacted House Bill 10-1233, which
repealed, reenacted, and relocated former section 18-9-111(4)(b)
and (5) to new section 18-3-602(1) and (3), C.R.S. 2010. Ch. 88,
10 secs. 1, 10, § 18-3-602(1), (3), 2010 Colo. Sess. Laws 294-97. The
bill took effect on August 11, 2010. Id. at 297.
b. The Relocated Statutory Provisions Do Not Impact the District Court’s Jurisdiction
¶ 25 Carbajal contends that because the amended complaint and
information reflected the repealed, reenacted, and relocated version
of the stalking statute, the trial court lacked jurisdiction to convict
him on counts 17 and 18. Specifically, he argues that “[b]ecause
this stalking charge did not exist under section 18-9-111, C.R.S.,
the extant stalking convictions are void.”
¶ 26 During the January 7, 2022, hearing, the district court
considered and denied this claim, reasoning that Carbajal had
identified a “notice requirement” rather than a jurisdictional
contention and that there was “no indication that Mr. Carbajal
didn’t know that he was protecting himself from a stalking charge.”
The court also explained that Carbajal’s contention “could have
been raised on the first appeal [but] it wasn’t. It’s being raised now
as a jurisdictional argument because jurisdiction can always be
argued.” We agree with the district court’s analysis.
11 ¶ 27 Had the relevant stalking provision been repealed prior to
Carbajal’s illegal conduct and not been reenacted at the time of his
conviction, his contention might have merit. See People v. Wetter,
985 P.2d 79, 80 (Colo. App. 1999) (“[A] a defendant may not be
convicted of a crime where . . . the General Assembly has expressly
repealed the statute defining that crime.”). But those are not our
facts. Instead, the statute was simultaneously repealed, reenacted,
and relocated, constituting a continuation of the existing law. See
§ 2-4-208, C.R.S. 2024 (“A statute which is reenacted, revised, or
amended is intended to be a continuation of the prior statute and
not a new enactment, insofar as it is the same as the prior
statute.”); see also Sec. Life & Accident Co. v. Heckers, 495 P.2d
225, 227 (Colo. 1972) (“[T]he provisions of any law or statute which
is reenacted, amended or revised, so far as they remain the same,
are to be construed as a continuation of such laws and not as new
enactments.”). Because the law criminalized Carbajal’s conduct at
the time he engaged in it, the district court had jurisdiction to
12 adjudicate the criminal charges against him based on that
conduct.1
¶ 28 Carbajal’s contention does not implicate the court’s
jurisdiction to hear his case but rather implicates Carbajal’s due
process right to notice of the charges against him. See People v.
Cooke, 525 P.2d 426, 428 (Colo. 1974) (“The right of an accused to
notice of the charges which have been made against him . . . lies at
the foundation of due process of law.”). This due process claim
could have been brought in a prior proceeding and is now barred.
See Crim. P. 35(c)(3)(VII).
C. Collateral Attacks on Underlying Conviction
¶ 29 Carbajal contends that the district court erred by denying his
postconviction claims collaterally attacking his underlying
conviction on the following grounds: (1) the two stalking convictions
were “illegal under the rubric of C.R.S. § 18-1-408[, C.R.S. 2024],”
because they were based on identical evidence; (2) the two stalking
1 We also note that the statute cited in the amended complaint and
information was in effect during at least part of the date range charged in the stalking counts, and Carbajal fails to explain how the court lacked jurisdiction over his conduct occurring prior to August 11, 2010.
13 convictions violate double jeopardy because they are multiplicitous;
(3) the two burglary convictions based on the predicate offense of
trespass with the intent to violate a protection order violate double
jeopardy; and (4) the use of a now-vacated felony conviction for
impeachment at his trial violated his constitutional rights to due
process and to testify. We conclude that his first three claims are
successive, and his last lacks merit.
1. Successive Challenges
¶ 30 The People argue that we should not address several of
Carbajal’s contentions because they were or could have been raised
in his direct appeal or in his first postconviction proceeding. See
Crim. P. 35(c)(3)(VI), (VII); McDowell, 219 P.3d at 335. We agree and
conclude that the following claims are barred as successive:
• claims that Carbajal’s stalking convictions were based on
identical evidence or that his consecutive sentences on
those convictions are illegal for that reason;2
2 The division in Carbajal II already held that “arguments that
Carbajal’s convictions were based on identical evidence” could have been raised in Carbajal’s direct appeal and were barred as successive under Crim. P. 35(c)(3)(VII). People v. Carbajal, slip op. at ¶ 41 (Colo. App. No. 17CA2337, Mar. 25, 2021) (not published pursuant to C.A.R. 35(e)) (Carbajal II).
14 • the claim that Carbajal’s stalking convictions are
multiplicitous and violate double jeopardy; and
• the claim that Carbajal’s convictions for burglary based
on trespass with intent to violate a protection order
violate double jeopardy.3
2. Use of a Vacated Conviction for Impeachment
¶ 31 Carbajal contends that the district court violated (1) his right
to due process by ruling that the prosecution could use a prior
felony conviction that was later vacated to impeach him and (2) his
right to testify by misadvising him regarding the prosecution’s
ability to impeach him with that felony. Although these claims
collaterally attack the underlying conviction, they are not
successive because the event on which they are based — the prior
felony being vacated in 2019 — occurred after Carbajal’s prior
appeal and postconviction motion were filed. See Crim. P.
35(c)(3)(VII)(a) (“The court shall deny any claim that could have been
3 In his opening brief, Carbajal superficially suggests that his
burglary conviction raises equal protection and Eighth Amendment concerns as well. Because he does not develop those arguments, we do not address them. See People v. Liggett, 2021 COA 51, ¶ 53 (appellate courts do not address undeveloped arguments).
15 presented in an appeal . . . or postconviction proceeding previously
brought except . . . [a]ny claim based on events that occurred after
initiation of the defendant’s prior appeal or postconviction
proceeding.”). Even so, we reject these claims on the merits.
¶ 32 In 2008, Carbajal was convicted of criminal trespass in
Jefferson County Case No. 08CR267 (Jefferson County conviction).
¶ 33 In 2011, Carbajal filed a pretrial motion to collaterally attack
and suppress his prior convictions, including the Jefferson County
conviction, seeking to preclude their use at trial in the underlying
case for the purpose of impeachment.4 On the morning of the first
day of trial, the district court heard initial arguments on Carbajal’s
motion. The court recognized that “for [Carbajal] to make an
intelligent decision about whether or not he will . . . testify,” it
needed to determine whether the prosecution could impeach him
with the prior convictions. Three days later, before the jury was
4 Carbajal’s motion also sought to prevent the use of his prior
convictions as predicates for habitual criminal sentencing, but the district court bifurcated the habitual criminal counts and addressed only Carbajal’s impeachment-related arguments during the first phase of the trial.
16 scheduled to return, the court held an evidentiary hearing on
Carbajal’s motion, during which Carbajal testified. The court
denied the motion, ruling that two of the prior convictions
challenged in the motion, including the Jefferson County conviction
for which an appeal remained pending, were “available to the
prosecution to use for purposes of impeachment” under section
13-90-101, C.R.S. 2024. The court found that Carbajal failed to
make a prima facia showing that the Jefferson County conviction
was constitutionally infirm.
¶ 34 Carbajal chose not to testify at trial, but the prosecution
briefly questioned his mother about the Jefferson County
conviction, and she said she did not recall it.5
¶ 35 In 2019, after years of appeals and postconviction
proceedings, the felony Jefferson County conviction was vacated
and reduced to a misdemeanor.
5 Although Carbajal asserts that the prosecution “repeatedly used
this trespass conviction to impeach” him, he does not support that assertion with record citations. See Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (“[I]t is not the duty of the reviewing court to search the record for evidence to support bald assertions.”), aff’d, 940 P.2d 348 (Colo. 1997).
17 ¶ 36 In the postconviction motion before us now, Carbajal argued
that the district court’s ruling that the Jefferson County conviction
could be used to impeach him at trial violated his due process
rights and his right to testify because the conviction was ultimately
found to be unconstitutional. At the January 7, 2022, hearing, the
district court rejected Carbajal’s contention, reasoning that “at the
time [the Jefferson County conviction] was still a felony, so I can’t
find any error there.”
b. The District Court Did Not Violate Carbajal’s Due Process Rights or His Right to Testify by Ruling that the Prosecution Could Use His Jefferson County Conviction for Impeachment
¶ 37 Carbajal contends that because the Jefferson County
conviction was vacated in 2019, the district court’s ruling that the
conviction could be used to impeach him during the 2011 trial
violated (1) his due process right to a fair trial and (2) his right to
testify because the court’s ruling convinced him not to take the
stand. See Watkins v. People, 655 P.2d 834, 837 (Colo. 1982) (“A
prior conviction obtained in violation of a constitutional right of the
accused cannot be used in a subsequent criminal proceeding to
support guilt or to enhance punishment.”). The People argue that
the use of the Jefferson County conviction was proper at the time of
18 the 2011 trial, so the court’s ruling did not violate Carbajal’s
constitutional rights. They argue that People v. McNeely, 68 P.3d
540 (Colo. App. 2002), is dispositive. Although McNeely does not
dispose of this issue entirely, we agree that its reasoning applies.
¶ 38 In McNeely, the defendant argued that the trial court erred by
permitting the prosecution to impeach his credibility with a
conviction that was pending on direct appeal. 68 P.3d at 543. A
division of this court disagreed, reasoning that “[t]he credibility of
any witness may be called into question by showing that the
witness has been convicted of a felony.” Id. (citing § 13-90-101).
The division explained that “[a] person is convicted when the trial
court enters a judgment of conviction after either a verdict or plea of
guilty has been entered.” Id. Thus, the division concluded that
when “the trial court has entered a judgment of conviction, the
conviction may be used for purposes of impeachment at a later
proceeding even if the appeal of that conviction is pending.” Id.
¶ 39 At the time of Carbajal’s 2011 trial, the Jefferson County
conviction was on appeal but had yet to be declared
unconstitutional (and would not be so declared on direct appeal).
At that time, McNeely was dispositive, and the district court
19 correctly ruled that the prosecution could use the Jefferson County
conviction for impeachment purposes under section 13-90-101.
See McNeely, 68 P.3d at 543.
¶ 40 But the Jefferson County conviction was later vacated, a
circumstance not addressed in McNeely. Even so, its rationale
holds. Because the conviction was valid at the time it was used for
impeachment purposes, its use did not offend Carbajal’s due
process right to a fair trial. It follows logically that, because the
conviction was properly available for impeachment purposes, the
court did not misadvise Carbajal regarding his right to testify.
Accordingly, we perceive no constitutional violations and therefore
no reason to reverse Carbajal’s convictions.
D. Challenges to the Newly Imposed Sentence
¶ 41 Carbajal contends that (1) the mittimus entered following his
resentencing was entered without jurisdiction and illegally
increased his sentence; (2) the district court misapprehended the
minimum sentence it could have imposed during his resentencing;
and (3) his newly imposed sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment.
We reject each contention.
20 1. Challenges to the Mittimus
¶ 42 Carbajal contends that the district court acted without
jurisdiction and altered his newly imposed sentence by entering a
mittimus after the resentencing hearing that purportedly increased
his sentence from thirty-six years to fifty-two years. We conclude
that the court had jurisdiction to enter the mittimus and that the
mittimus accurately reflects the DOC sentences the court
pronounced on January 7, 2022.
a. The District Court Had Jurisdiction to Enter the Mittimus
¶ 43 Carbajal first contends that the district court lacked
jurisdiction to enter the mittimus on March 29, 2022, because
jurisdiction had already transferred to this court when he filed a
notice of appeal a month earlier. We conclude that because the
mittimus merely memorialized the sentence pronounced at the
January 7 hearing, it was not a new order, and the court retained
jurisdiction to enter it.
¶ 44 A mittimus is an administrative document that directs the
sheriff to transport the convicted defendant to the appropriate
correctional facility for a specified term of years. See § 18-1.3-409,
C.R.S. 2024. Because a mittimus is merely a reflection of a court’s
21 previously imposed order — that is, the sentence orally imposed at
the defendant’s sentencing hearing — it is not a new order entered
by the court. See People v. Wiseman, 2017 COA 49M, ¶ 52 (“What
the judge says in sentencing a defendant takes precedence over the
written judgment.” (quoting United States v. Cephus, 684 F.3d 703,
709 (7th Cir. 2012))) (alteration omitted); see also People v. Stewart,
55 P.3d 107, 126 (Colo. 2002) (following the perfection of an appeal,
the trial court retains jurisdiction over matters that do not affect the
order or judgment on appeal).
¶ 45 The March 29 mittimus reflects that Carbajal was “originally
sentenced on 2/10/2012” and that the original sentence “is now
modified.” Immediately before setting forth the newly imposed
sentence, the mittimus makes clear that the modified sentence was
imposed on “1/7/2022.” The mittimus is not a new order but a
reflection of the new sentence entered by the district court at
Carbajal’s resentencing hearing on January 7, which predated the
commencement of this appeal. Accordingly, we reject Carbajal’s
contention that the court lacked jurisdiction to enter the mittimus.
22 b. The Mittimus Correctly Reflects the Court’s DOC Sentences
¶ 46 Carbajal next contends that the district court illegally
increased his combined sentence from thirty-six years to fifty-two
years when it entered the mittimus. Although we are unable to
follow his calculations, we understand Carbajal to argue that the
court increased the sentence it imposed on January 7 by ordering
in the March 29 mittimus that the new sentences were to run
consecutively to his sentences in Denver District Court Case Nos.
10CR1600 and 10CR1576.
¶ 47 A mittimus must accurately reflect the sentencing order
entered by the court and include “all necessary information
regarding the sentence and any information as to whether a
sentence is to be served concurrent with, or consecutive to, the
sentence for any other count or any other case.” § 18-1.3-409. Our
review of the record reveals that the mittimus accurately reflects the
DOC sentences the court imposed on January 7.
¶ 48 First, the district court made clear during the resentencing
hearing that it intended to “impose [Carbajal’s] sentences in the
same . . . manner, consecutive versus concurrent,” as had the
original sentencing judge. We understand the court’s statement to
23 mean that the newly imposed sentences would run consecutive to
or concurrent with other sentences in this and other cases as
determined by the original sentencing judge in 2012. The original
sentencing judge ordered all of Carbajal’s sentences to be served
consecutively to his sentences in Denver District Court Case Nos.
10CR1600 and 10CR1576. The March 29 mittimus accurately
reflects that order.6 It is thus consistent with — and does not
increase — the sentence pronounced on January 7.
¶ 49 Second, our line-by-line review of the transcript of the January
7 sentencing hearing and the March 29 mittimus reveals that the
mittimus accurately reflects each DOC sentence imposed.
6 As noted in Part C above, we recognize that Carbajal also
challenges the consecutive and concurrent nature of his original sentencing framework as violating his double jeopardy rights because the two stalking charges were based on identical evidence. However, the division in Carbajal II already determined that the contention is barred as successive because it could have been brought in a prior direct appeal or postconviction motion. Carbajal II, slip op. at ¶ 41; see Crim. P. 35(c)(3)(VII).
24 Accordingly, we reject Carbajal’s contention that the court illegally
increased his sentence when it entered the mittimus.7
2. The District Court Did Not Misapprehend the Statutory Minimum Sentence
¶ 50 Carbajal contends that the district court erred by concluding
that the minimum sentence it had the discretion to impose was
thirty-six years in DOC custody. We perceive no error.
¶ 51 Criminal sentencing is “an exercise of a trial court’s discretion
that is to be guided by consideration of a number of factors.”
People v. Vigil, 718 P.2d 496, 506 (Colo. 1986). While the court’s
discretion in sentencing is broad, the sentence imposed must be
permitted by statute. Vensor v. People, 151 P.3d 1274, 1275 (Colo.
2007). We will not overturn a statutorily compliant sentence absent
a showing of an abuse of discretion. People v. Howell, 64 P.3d 894,
898 (Colo. App. 2002). A sentence constitutes an abuse of
7 Although Carbajal does raise this argument, we note that the
district court orally imposed incorrect terms of mandatory parole on counts 7, 9, and 15, but the parole terms reflected in the mittimus follow the relevant sentencing statutes. See § 18-1.3-401(1)(a)(V)(A), C.R.S. 2024. Because a sentence that does not comply with the sentencing statutes is illegal, Delgado v. People, 105 P.3d 634, 637 (Colo. 2005), and may be corrected at any time, People v. Sanders, 220 P.3d 1020, 1024 (Colo. App. 2009), the court was authorized to correct the illegal parole terms when it entered the mittimus.
25 discretion if it is manifestly arbitrary, unreasonable, or unfair.
People v. Zuniga, 80 P.3d 965, 972 (Colo. App. 2003). It may be
necessary to remand a sentence for reconsideration if the trial court
misapprehended the scope of its discretion in imposing the
sentence. People v. Linares-Guzman, 195 P.3d 1130, 1137 (Colo.
App. 2008).
¶ 52 During resentencing, the district court explained that it
wanted to “undo the length of” Carbajal’s habitually enhanced
sentence, but that it “would be hard-pressed to come in [twelve]
years after [the original sentencing judge] had made the accurate
findings” and alter the framework that judge had created for how all
of Carbajal’s sentences would operate together. The court then said
that it intended to “impose the sentences in the same . . . manner,
consecutive versus concurrent,” as had the original sentencing
judge. Against this backdrop, the court explained that “a minimum
sentence in this case . . . adds up to approximately [thirty-six]
years.”
¶ 53 Carbajal contends that the district court misapprehended the
statutory minimum sentence it could impose, leading it to abuse its
discretion in imposing a combined thirty-six-year sentence.
26 Specifically, Carbajal contends that if the court intended to impose
the minimum sentence in his case, it would have (1) ordered all the
sentences to be served concurrently; and (2) imposed a sentence of
four years, the lowest possible statutory sentence permitted by the
appropriate sentencing statute. See § 18-1.3-401(1)(a)(V)(A), C.R.S.
2024.
¶ 54 The People argue that, viewed in context, the court’s comment
makes clear that it did not intend to impose the absolute minimum
sentence available in Carbajal’s case but instead intended to impose
sentences on the low end of the presumptive range while still
applying the sentencing framework — concurrent versus
consecutive — employed by the original sentencing judge. We agree
with the People’s interpretation of the court’s statements.
¶ 55 In other words, we do not read the district court’s statements
as reflecting its misunderstanding that thirty-six years was the
absolute minimum combined sentence it had the discretion to
impose in Carbajal’s case. The court made clear that it intended to
retain the concurrent versus consecutive sentencing framework the
original sentencing judge created. Working within that original
sentencing framework, the court determined that a combined
27 thirty-six-year term was the minimum sentence it intended to
impose. We perceive no error in the district court’s understanding
of its sentencing discretion.
3. Eighth Amendment Challenge
¶ 56 Finally, Carbajal contends that his newly imposed sentence is
excessive and amounts to cruel and unusual punishment under the
Eighth Amendment to the United States Constitution. See U.S.
Const. amend. VIII. Per this court’s order on May 20, 2022, this
contention is not properly before us on appeal.
¶ 57 Carbajal filed his initial notice of appeal in this matter on
February 28, 2022. On March 7, Carbajal moved the district court
to reconsider his new sentence under Crim. P. 35(b), arguing in part
that the sentence was disproportionate to the crime and constituted
cruel and unusual punishment. The court denied Carbajal’s
motion on March 16. On April 18, Carbajal filed a supplemental
notice of appeal, seeking review of the March 16 order. On May 20,
this court determined that the March 16 order was entered without
jurisdiction, struck Carbajal’s April 18 amended notice of appeal,
and dismissed without prejudice the part of the appeal relating to
28 the March 16 order. Thus, the March 16 order is not properly
before us for review.
¶ 58 To the extent Carbajal requests that we conduct a
proportionality review for the first time on appeal, we decline to do
so. See People v. Session, 2020 COA 158, ¶ 51 (while we may
conduct proportionality reviews in the first instance, we may decline
to do so as trial courts are best suited to conduct the factual
determinations they require).
III. Disposition
¶ 59 We affirm Carbajal’s sentence and the district court’s order
denying his March 2020 postconviction motion.
JUDGE J. JONES and JUDGE YUN concur.