Peo v. Gonzalez

• Court: Colorado Court of Appeals
• Decided: November 27, 2024
• Docket: 24CA0366
• Status: Unpublished

Opinion

24CA0366 Peo v Gonzalez 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0366 Crowley County District Court No. 19CR13 Honorable Samuel S. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alfredo P. Gonzalez,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE DUNN Gomez and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Alfredo P. Gonzalez, 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. 2024. ¶1 Defendant, Alfredo P. Gonzalez, appeals the postconviction

court’s order denying his Crim. P. 35(a) motion. We affirm.

I. Background

¶2 Gonzalez pleaded guilty to a class 5 felony, and the district

court sentenced him to a stipulated one-year prison sentence with

two years of mandatory parole, consecutive to any sentence

Gonzalez was already serving.

¶3 Gonzalez later filed a pro se motion to correct an illegal

sentence under Rule 35(a), arguing that the Department of

Corrections (DOC) had illegally changed his two-year parole term to

a five-year parole term. In support, Gonzalez attached a report

that, in his view, showed a five-year parole term.

¶4 The prosecution countered that (1) Gonzalez’s sentence was

legal because it was within the statutory range, and (2) the court

lacked authority to resolve a challenge to the DOC’s application of

Gonzalez’s “periods of parole.”

¶5 The postconviction court denied the motion, concluding that

Gonzalez’s one-year sentence was within the statutory range and

that the mandatory two-year parole period was required by statute.

1 II. Discussion

¶6 Gonzalez appeals the postconviction court’s order, contending

that the court misconstrued his argument. He explains that his

challenge wasn’t to the controlling sentence but to the parole term.

Gonzalez asks us to order the DOC “to apply the correct period of

parole.”

¶7 A sentence is not authorized by law, and therefore illegal,

when it’s inconsistent with the sentencing scheme established by

the legislature. People v. Bice, 2023 COA 98, ¶ 12. Illegal sentence

claims include mandatory parole challenges. See Hunsaker v.

People, 2021 CO 83, ¶ 19.

¶8 The district court sentenced Gonzalez to a mandatory two-year

parole term, and the mittimus reflects that term. Because the

mandatory parole term is entirely consistent with the statute, see

§ 18-1.3-401(1)(a)(V)(A), C.R.S. 2024, the parole term is authorized

by law and therefore legal.

¶9 To the extent Gonzalez argues that the DOC — not the

sentencing court — imposed the “wrong parole sentence,” that’s not

a challenge to the sentence. Rather, it’s a challenge to the DOC’s

actions. And a claim that the DOC is applying the wrong parole

2 term must be brought directly against the DOC (or the state parole

board). See People v. Huerta, 87 P.3d 266, 267 (Colo. App. 2004);

accord People v. Melnick, 2019 COA 28, ¶ 7. Because a challenge to

the DOC’s actions is not cognizable under Rule 35(a), we lack

authority to review this contention. See Melnick, ¶ 7.

¶ 10 And, finally, insofar as Gonzalez raises issues that he did not

raise to the postconviction court — for example, those grounded in

his political views — we decline to address them for the first time on

appeal. See People v. Cali, 2020 CO 20, ¶ 34 (“[A]lthough we will

broadly construe a pro se litigant’s pleadings to effectuate the

substance, rather than the form, of those pleadings, we will not

consider issues not raised before the district court in a motion for

postconviction relief.”).

III. Disposition

¶ 11 We affirm the order.

JUDGE GOMEZ and JUDGE HAWTHORNE concur.