Peo v. Florez-Molina

Opinion

23CA0186 Peo v Florez-Molina 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0186

Larimer County District Court No. 20CR2100

Honorable Susan Blanco, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Carlos Geovanny Florez-Molina,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE LIPINSKY

Schutz and Bernard*, JJ., concur

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

Announced July 3, 2024

Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Carlos Geovanny Florez-Molina, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 Carlos Geovanny Florez-Molina appeals the district court’s

order denying his Crim. P. 35(b) motion. We affirm.

I. Background

¶ 2 Multiple law enforcement agencies investigated thirty separate

residential burglaries in more than eighteen different jurisdictions

across the United States, including in Larimer County, that

occurred in 2019. The agencies determined that the same

individuals were responsible for the burglaries and that the group

was targeting the homes of Asian-American business owners. After

obtaining information linking Florez-Molina to the crimes, law

enforcement officers apprehended him in Florida, where he had

been arrested under an alias on unrelated charges.

¶ 3 Prosecutors in Larimer County charged Florez-Molina with one

count under section 18-17-104(3), C.R.S. 2023, of the Colorado

Organized Crime Control Act (COCCA) (conducting or participating

in an enterprise through a pattern of racketeering activity); one

count under section 18-17-104(4) of COCCA (conspiracy to violate

COCCA); twenty-four counts of second degree burglary; nineteen

counts of theft; and one count of criminal mischief. The second

2

degree burglary, theft, and criminal mischief counts were charged

as the predicate acts of the COCCA counts.

¶ 4 Florez-Molina entered into a plea agreement. In exchange for

Florez-Molina’s agreement to plead guilty to a single COCCA count

under section 18-17-104(3), a class 2 felony, and one of the theft

counts, a class 3 felony, the prosecution agreed to dismiss the

remaining forty-four counts.

¶ 5 The plea agreement that Florez-Molina signed called for “open

sentencing,” meaning that the “Court shall have full sentencing

discretion,” including the ability to sentence Florez-Molina to “the

Department of Corrections [DOC] (State Prison), Community

Corrections or Probation.” The agreement further specified that, if

the court imposed a sentence to the DOC, “the plea agreement does

permit for consecutive sentences to be imposed” and “an additional

MANDATORY period of parole as required by state law for a Class 2

Felony.” In addition, the agreement stated that Florez-Molina’s

COCCA conviction carried a presumptive sentencing range of eight

to twenty-four years, and that the theft conviction carried a

presumptive sentencing range of four to twelve years.

3

¶ 6 The court accepted Florez-Molina’s guilty pleas and ordered a

presentence investigation report (PSIR). Following submission of

the PSIR, the court sentenced Florez-Molina to ten years for the

COCCA conviction and eight years for the theft conviction, with the

sentences to run consecutively.

¶ 7 Florez-Molina was represented by counsel throughout the

proceedings.

¶ 8 Three months later, Florez-Molina’s attorney filed a timely

Crim. P. 35(b) motion. In the motion, the attorney argued that

Florez-Molina was entitled to a sentence reduction because

• he received longer sentences than those imposed on his

codefendants;

• unlike his codefendants, he provided information about

“ongoing burglaries, including identifying individuals and

cells that are currently operating within the United

States”;

• following his sentencing, he continued to provide

information to the Federal Bureau of Investigation

regarding “active burglary cells”;

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• in contrast, his codefendants “only reluctantly provided

information and only when they were specifically asked

to by law enforcement”;

• unlike his codefendants, he “will face mandatory exile

from the United States upon completion of his DOC

sentence”;

• he has three children, is well-educated, and has “no

other criminal history”; and

• he completed a rehabilitative course while incarcerated.

¶ 9 The court denied Florez-Molina’s motion, noting as follows:

• while Florez-Molina “did proffer information to aid in the

investigation,” his codefendants “volunteered information

at an earlier time than Mr. Florez-Molina did”;

• although the court “positively acknowledge[d] the courses

Mr. Florez-Molina has completed” while incarcerated, he

did not present “new evidence or additional material

factors” warranting a reduction of his sentence;

• the prosecution’s original case against Florez-Molina was

“extremely serious in nature”;

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• he “played a part in a group of individuals systematically

victimizing a total of 83 victims and what amounted to

burglarizing 26 homes”;

• while the other codefendants were not similarly situated

to Florez-Molina, his sentence was “appropriate even

though it is not the same as the others”; and

• the court had previously considered the information that

Florez-Molina proffered and it “weighed into the Court’s

initial sentencing decision.”

¶ 10 The court concluded that, although Florez-Molina “is taking

his time while incarcerated seriously, the Court is balancing the

acts which brought him before the jurisdiction of this Court and

finds a reconsideration to be inappropriate.”

¶ 11 Florez-Molina, now self-represented, appeals the denial of his

Crim. P. 35(b) motion.

II. Analysis

¶ 12 On appeal, Florez-Molina argues that the judgment entered

against him violated his right to due process under the Fifth and

Fourteenth Amendments because the court erred by not merging

his COCCA and theft convictions and, relatedly, his sentence

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violated section 18-1.3-408, C.R.S. 2023; for the same reason, his

sentence violated his constitutional right against double jeopardy;

his sentence amounted to cruel and unusual punishment, in

violation of his Eighth Amendment rights, because it is

disproportionate to the crimes to which he pleaded guilty; and the

court violated his rights to “fundamental fairness of due process”

guaranteed under the Fifth and Fourteenth Amendments because

the court sentenced him based on a “fraudulent narrative,” did not

consider his “character and rehabilitative potential,” and did not

find that he was “a risk to public safety.” (Because Florez-Molina

did not provide us with the transcript of the sentencing hearing, we

presume that the court’s findings and conclusions are correct and

that the evidence supports his sentence. People v. Tolbert, 216 P.3d

1, 3 (Colo. App. 2007).)

A. Applicable Law and Standard of Review

¶ 13 Crim. P. 35(b) permits a court to reconsider in a timely fashion

a previously imposed sentence “in light of all relevant and material

factors which may or may not have been initially considered by the

court and, in the exercise of sound judicial discretion, to resentence

the defendant to a lesser term within the statutory limits if

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warranted in the interests of justice.” People v. Fuqua, 764 P.2d 56,

60 (Colo. 1988). “A court’s review of a Crim. P. 35(b) motion focuses

on the fairness of the sentence in light of the purposes of the

sentencing laws.” People v. Dunlap, 36 P.3d 778, 780 (Colo. 2001).

¶ 14 The decision whether to grant a motion for sentence

reconsideration under Crim. P. 35(b) is committed to the sound

discretion of the district court. See id. at 782 (“Crim. P. 35(b)

affords trial judges a large amount of discretion when considering

[a] defendant’s motion.”); Ghrist v. People, 897 P.2d 809, 814 (Colo.

1995). When adjudicating a Crim. P. 35(b) motion, the district

court must consider all relevant and material factors, including

“new evidence as well as facts known at the time” the court

pronounced the original sentence. People v. Busch, 835 P.2d 582,

583 (Colo. App. 1992).

¶ 15 “We review a ruling on a Crim. P. 35(b) motion for an abuse of

discretion.” People v. Chavez, 2020 COA 80M, ¶ 8, 486 P.3d 377,

378. A district court abused its discretion in denying a Crim. P.

35(b) motion only if it refused to consider any information in

mitigation and failed to make findings in support of its decision.

8

See Mikkleson v. People, 199 Colo. 319, 321, 618 P.2d 1101, 1102

(1980); People v. Olivas, 911 P.2d 675, 677 (Colo. App. 1995).

¶ 16 “When a defendant does not raise an issue in a postconviction

motion . . . , and the postconviction court therefore does not have

an opportunity to rule on the issue, as a general rule, the issue is

not properly preserved for appeal and we will not consider it.”

People v. Huggins, 2019 COA 116, ¶ 17, 463 P.3d 294, 297. But at

least one division of this court has applied the plain error standard

of review when considering a defendant’s unpreserved arguments

for a sentence reduction under Crim. P. 35(b). See People v.

Castellano, 209 P.3d 1208, 1209 (Colo. App. 2009). “The criteria of

error that is plain and that prejudiced substantial rights can be

used to evaluate an alleged sentencing error.” People v. Tillery, 231

P.3d 36, 48 (Colo. App. 2009) (citation omitted), aff’d sub nom.

People v. Simon, 266 P.3d 1099 (Colo. 2011).

B. The Court Did Not Violate Florez-Molina’s Right

Against Double Jeopardy Because His Convictions for

COCCA and Theft Did Not Merge

¶ 17 Florez-Molina’s first two arguments are essentially the same:

that the court erred by imposing consecutive sentences for his

COCCA and theft convictions because they were premised on the

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same facts and, therefore, the court should have merged the

convictions.

¶ 18 We disagree with Florez-Molina’s contention that he preserved

his merger argument. Florez-Molina asserts that he was not

required to preserve the argument because the district court

“exceeded its jurisdiction” by denying his motion “in the absence of

Due Process of law.” But he fails to point to, and we are not aware

of, any authority holding that a district court loses subject matter

jurisdiction over a Crim. P. 35(b) motion if its ruling on that motion

allegedly violates the defendant’s right to due process. “[T]here is

no question that a trial court is authorized to hear postconviction

motions . . . .” People v. Stanley, 169 P.3d 258, 260 (Colo. App.

2007).

¶ 19 In any event, the court did not err when it imposed

consecutive sentences for Florez-Molina’s COCCA and theft

convictions. The General Assembly does not violate defendants’

double jeopardy rights by “specifying multiple punishments based

upon the same criminal conduct.” People v. Hoover, 165 P.3d 784,

798 (Colo. App. 2006). “As long as the general assembly makes

clear its intent to punish the same offense with more than one

10

conviction and sentence, it is not constitutionally prohibited from

doing so.” Id. (quoting People v. Abiodun, 111 P.3d 462, 465 (Colo.

2005)).

¶ 20 “[T]he General Assembly clearly authorized separate

punishments for COCCA and the underlying predicate offense[] of

theft . . . .” Id. at 801. For this reason, Florez-Molina’s sentence

also did not violate section 18-1-408, C.R.S. 2023, which prohibits

sentences for more than one offense under specified circumstances,

including when “[o]ne offense is included in the other.”

§ 18-1-408(1)(a).

¶ 21 Accordingly, we hold that the court did not violate

Florez-Molina’s due process rights or his constitutional protection

against double jeopardy by imposing the separate, consecutive

sentences.

C. The Court Did Not Err by Imposing Sentences

Within the Statutory Ranges for COCCA and Theft

¶ 22 Florez-Molina states that, because his counsel “raised a

constitutional challenge to his judgment,” his constitutional

challenge to the length of his sentences is preserved. But the

motion makes no reference to the constitutional prohibition against

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cruel and unusual punishment. Thus, Florez-Molina did not

preserve his Eighth Amendment argument and we review for plain

error. We conclude there was no error.

¶ 23 The sentences on the COCCA and theft counts to which

Florez-Molina pleaded guilty were consistent with the presumptive

sentencing ranges specified in the agreement. As noted above, the

agreement stated that Florez-Molina’s COCCA conviction carries a

presumptive range of eight to twenty-four years in the custody of

the DOC, and that the theft conviction carries a presumptive range

of four to twelve years.

¶ 24 Florez-Molina’s admissions and other statements in the PSIR

established his key role in the burglary ring, contrary to his

argument that the court’s conclusion that he was “the principal

actor in this racketeering activity” is “belie[d] by the record.” In the

PSIR, Florez-Molina admitted that he “was involved in many home

invasion crimes in Colorado” and other jurisdictions, including

Wyoming, California, and Washington, D.C. He conceded that his

offenses impacted “a series of persons from the immigrant

community who suffered the consequences” of his actions.

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¶ 25 The PSIR stated that one of Florez-Molina’s codefendants

explained that the group targeted “Chinese business owners”

because the group believed they “hid cash at their houses and don’t

trust banks.” The known losses from the burglaries was between

$1.3 million and $1.5 million.

¶ 26 According to the codefendant, each member of the group

“assumed specific roles and responsibilities during the burglaries”

and that Florez-Molina was one of the two individuals “who forced

entry into, and subsequently burglarized, the victims’ houses.”

Further, the codefendant described Florez-Molina as a “very

dangerous man with connections in Colombia,” who would kill the

codefendant and his family “if he found out” that the codefendant

“was implicating [him] in the burglaries.”

¶ 27 The record establishes that the court’s denial of the motion

rested on appropriate considerations. In sentencing a defendant, a

trial court “may properly consider . . . the circumstances giving rise

to other charges dismissed at the time of the plea as aggravating

factors.” People v. Zuniga, 80 P.3d 965, 972 (Colo. App. 2003). In

addition, the court possessed the discretion to rely on the

uncontroverted facts in the PSIR, even though Florez-Molina now

13

challenges them. See People v. Brosh, 251 P.3d 456, 460 (Colo.

App. 2010). Those uncontroverted facts painted a portrait of Florez-

Molina as a dangerous, key member of a group that targeted dozens

of members of a racial minority during a multi-state crime wave.

¶ 28 Contrary to Florez-Molina’s contention on appeal that he

merely “participated in a single act of theft,” and that such theft

was “isolated,” his plea to a single COCCA count and a single theft

count does not mean that the court was required to ignore the

multitude of other crimes with which Florez-Molina was charged.

¶ 29 Significantly, the court sentenced Florez-Molina within the

statutory ranges for the COCCA and theft counts to which he

pleaded guilty. Under the COCCA statute, he committed a class 2

felony, § 18-17-105(1), C.R.S. 2023, punishable by a term of

incarceration of between eight and twenty-four years,

§ 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2023 (setting forth the sentencing

ranges for class 2 felonies committed between July 1, 2018, and

June 30, 2020). The theft count to which Florez-Molina pleaded

guilty was a class 3 felony, § 18-4-401(1), (2)(i), C.R.S. 2023,

punishable by a sentence of between four and twelve years of

imprisonment, § 18-1.3-401(1)(a)(V)(A.1).

14

¶ 30 Insofar as Florez-Molina claims that his sentence was

disproportionate, such contention is preserved to the extent it

mirrors the argument in the motion that his sentence was longer

than those of the other codefendants, to whom he claims he is

similarly situated.

¶ 31 But Florez-Molina’s disproportionality argument on appeal is

premised on the incorrect assumption that theft of more than

$1 million is not a grave or serious offense for purposes of a

proportionality review. See Melton v. People, 2019 CO 89, ¶ 24, 451

P.3d 415, 420 (“Knowingly obtaining, retaining, or exercising

control, through threats, over something worth $1,000,000 owned

or possessed by another, with the intent to deprive the other person

permanently of the use or benefit of it, belongs in the same category

as per se grave or serious crimes.”). “Once a crime has been

deemed per se grave or serious, courts skip the first subpart of step

one of an abbreviated proportionality review (gravity or seriousness)

and proceed directly to the second subpart of that step (harshness

of the penalty).” Wells-Yates v. People, 2019 CO 90M, ¶ 62, 454

P.3d 191, 208-09.

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¶ 32 Florez-Molina’s sentence was not impermissibly harsh

because, as explained above, the facts he admitted and on which

the district court relied reflect the gravity and seriousness of his

crimes. See id. at ¶ 1, 454 P.3d at 195; see also People v.

Hernandez-Clavel, 186 P.3d 96, 98 (Colo. App. 2008) (“Colorado

courts are given wide discretion in determining an appropriate

sentence. This includes the discretion to consider a wide variety of

factors, including the circumstances of the offense, individual

characteristics of the offender, and prior conduct.”).

¶ 33 For these reasons, we hold that Florez-Molina’s sentence did

not amount to cruel and unusual punishment in violation of the

Eighth Amendment.

D. The Court Did Not Violate

Florez-Molina’s Due Process Rights Because

the Court Properly Considered the Relevant Facts

¶ 34 Lastly, Florez-Molina contends he was denied due process

because the court relied on “a distorted factual basis,” it

disregarded his “character and rehabilitative potential,” and the

consecutive sentences were not necessary to protect the public.

Because Florez-Molina did not raise these assertions in the motion,

they are not preserved and we review them for plain error. In any

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event, the court’s denial of the motion rested on appropriate

considerations.

¶ 35 As we explain above, in adjudicating the motion, the court had

the discretion to rely on the uncontroverted facts in the PSIR, even

though Florez-Molina now challenges them. See Part II.C above.

Those facts demonstrate that the court did not rest its denial of the

motion on a “fraudulent narrative” that characterized Florez-Molina

as the kingpin of the burglary ring. Rather, the facts described in

the PSIR established that he was a key member of a criminal

enterprise that broke into and entered dozens of homes and stole

millions of dollars of valuables.

¶ 36 Further, in denying the motion, the court acknowledged that it

had considered the seriousness with which Florez-Molina “is taking

his time while incarcerated.” Lastly, Florez-Molina provides no

support for his contention that the court erred by not assessing

whether he was a “threat to the public safety.”

¶ 37 In sum, the court did not disregard any relevant facts in

denying the motion.

III. Disposition

¶ 38 The order is affirmed.

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JUDGE SCHUTZ and JUDGE BERNARD concur.