Peo v. Fernandez

• Court: Colorado Court of Appeals
• Decided: March 6, 2025
• Docket: 23CA0899
• Status: Unpublished

Opinion

23CA0899 Peo v Fernandez 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0899 Adams County District Court No. 22CR3408 Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Steven Mark Fernandez,

Defendant-Appellant.

SENTENCE AFFIRMED

Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 After defendant, Steven Mark Fernandez, punched his

daughter in the face and threatened to stab her with a screwdriver,

he agreed to plead guilty to one count of conspiracy to commit

felony menacing. The plea agreement explained that the court

could sentence him to a maximum of three years in prison if it

found aggravating circumstances. The court found aggravating

circumstances and imposed a three-year sentence.

¶2 Fernandez appeals, arguing that the court abused its

discretion in imposing the sentence.1 We affirm.

I. Propriety of the Sentence

¶3 The trial court has broad discretion when imposing a

sentence, and we will not overturn the sentence absent a clear

abuse of that discretion. People v. Howell, 64 P.3d 894, 898 (Colo.

App. 2002). In exercising its discretion, the court must consider

the nature of the offense, the character and rehabilitative potential

of the offender, any aggravating or mitigating circumstances, the

1 We agree with the parties’ implicit acknowledgement that section

18-1-409(1), C.R.S. 2024, which precludes a defendant from challenging a sentence to which he stipulated under a plea agreement, does not apply here, because Fernandez’s plea agreement left sentencing “open” to the court. See People v. O’Dell, 53 P.3d 655, 657 (Colo. App. 2001).

1 development of respect for the law and the deterrence of crime, and

the protection of the public. Howell, 64 P.3d at 898; People v.

Eurioste, 12 P.3d 847, 850 (Colo. App. 2000). If the sentence is

within the statutory range, is “based on appropriate considerations

as reflected in the record, and is factually supported by the

circumstances of the case, an appellate court must uphold the

sentence” except “in exceptional cases.” People v. Fuller, 791 P.2d

702, 708 (Colo. 1990).

¶4 Fernandez contends that the court abused its discretion by

failing to meaningfully consider mitigating circumstances — that is,

his potential for rehabilitation, his desire for drug and alcohol

treatment, and his expressed remorse. We disagree.

¶5 The court addressed these mitigating circumstances at the

sentencing hearing, when it stated that it had reviewed and

considered

• counsel’s statement requesting a sentence to probation

so that Fernandez, who counsel said was sorry for the

incident, could seek treatment for his substance abuse

problem;

2 • the prosecutor’s statement requesting a prison sentence

based on Fernandez’s previous failure to comply with any

level of community-based supervision;

• Fernandez’s own statement, in which he apologized and

accepted responsibility for the incident and also

acknowledged that although he had “never [sought] out

any kind of treatment” for his “drug and alcohol problem”

in the past, he “realize[d] that’s something that [he] . . .

need[ed]”; and

• the presentence investigation report (PSIR), which

detailed Fernandez’s lengthy criminal history, noted that

he had “struggled with all levels of community-based

supervision,” acknowledged Fernandez’s desire for drug

and alcohol treatment, and ultimately recommended,

“with significant hesitation,” a sentence to community

corrections.

¶6 The court’s acknowledgement of this evidence and of counsel’s

arguments shows that it considered Fernandez’s potential for

rehabilitation, including his remorse about the incident and his

desire for treatment. See People v. Linares-Guzman, 195 P.3d 1130,

3 1137 (Colo. App. 2008) (noting that because the court “heard [the

defendant’s] statement expressing remorse and read the PSIR in

which defendant also expressed remorse” it had “considered those

expressions before imposing sentence”); see also People v. Torrez,

2013 COA 37, ¶ 74 (A court “need not engage in a point-by-point

discussion of every factor relevant to its sentencing decision” and “a

reasonable explanation for the sentence will suffice.”).

¶7 The record makes clear that the court did not fail to consider

mitigating circumstances; it just found that aggravating

circumstances outweighed any mitigation. “The fact that a

sentencing court finds aggravating factors to be more compelling

than any arguably mitigating factors does not constitute an abuse

of discretion or indicate that the trial court failed to consider

evidence of mitigation.” Eurioste, 12 P.3d at 851.

¶8 Here, weighing against Fernandez’s expression of remorse and

his desire to seek treatment were several aggravating

circumstances.

¶9 For one thing, as the court noted, Fernandez had an

“extensive” and “horrific” criminal history that went back more than

thirty years. That history included eight prior felony convictions

4 and more than a dozen misdemeanor convictions, many of which

involved drinking and driving. See DeHerrera v. People, 122 P.3d

992, 994 (Colo. 2005) (court may sentence the defendant in the

aggravated range based on prior convictions). The instant offense

occurred one week after Fernandez was sentenced to probation for a

drug offense.

¶ 10 The court also considered that while Fernandez requested a

probationary sentence so that he could participate in drug and

alcohol treatment, he had already had “multiple chances at

community-based supervision, as well as drug and alcohol

treatment,” and he had “simply not availed himself of any of those

opportunities.” Indeed, he was rejected from community

corrections in this case based in part on his “[p]rior community

placement failures.” And as the court pointed out, if Fernandez

wanted treatment, he could “get those resources through” the

Department of Corrections.

¶ 11 Finally, the court emphasized the seriousness of the offense.

The court found that Fernandez “beat up his daughter,” which was

“inexcusable” given that “she was trying to help him.” The

daughter’s victim impact statement described her physical injuries

5 — “cuts, scratches, and bruising” — but also the emotional distress

Fernandez’s conduct had caused.

¶ 12 Based on this record, we conclude that Fernandez’s sentence

is “within the range required by law, is based on appropriate

considerations . . . and is factually supported by the circumstances

of the case.” Fuller, 791 P.2d at 708. We therefore discern no

abuse of discretion in the court’s sentencing decision.

II. Disposition

¶ 13 The sentence is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.