23CA0412 Peo v Hagan 07-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0412 Adams County District Court No. 21CR1519 Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tyler James Hagan,
Defendant-Appellant.
APPEAL DISMISSED IN PART AND SENTENCE AFFIRMED
Division II Opinion by JUDGE FOX Harris and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 3, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Andrew Gargano, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Tyler James Hagan, appeals the district court’s
sentencing order. We dismiss the appeal in part and otherwise
affirm the sentence.
I. Background
¶2 Hagan, a man in his late twenties, had sexual intercourse with
his underage niece, E.H., many times over several years. E.H.
became pregnant when she was fourteen years old, and she
delivered Hagan’s child. Hagan was later charged with four
felonies, including one count of sexual assault on a child (SAOC) as
part of a pattern of sexual abuse — a class 3 felony. In exchange
for dismissal of the remaining charges, he pleaded guilty to one
count of attempted SAOC and one added count of second degree
assault — class 5 and class 4 felonies, respectively.
¶3 Although Hagan’s convictions carry an aggregate statutory
sentencing range of five to twenty-two years in the custody of the
Department of Corrections (DOC), the parties stipulated to a
sentencing range of five to sixteen years. See §§ 18-3-203(1)(g), 18-
3-405(1), 18-2-101, 18-1.3-401(1)(a)(V)(A)-(A.1), (6), (8)(a)(I),
(10)(b)(XII), 18-1.3-406(2)(a)(II)(c), C.R.S. 2024. The district court
imposed a fifteen-year DOC sentence.
1 ¶4 Hagan appeals, contending that when the district court crafted
his sentence, it improperly (1) emphasized aggravating over
mitigating sentencing factors and (2) considered inaccurate and
inapplicable information. The People argue that Hagan’s first
contention is not reviewable because he was sentenced within the
range specified in his negotiated plea agreement and that the record
refutes his second contention. We agree with the People.
II. Sentencing Factors
¶5 Section 18-1-409(1), C.R.S. 2024, guarantees a person
convicted of a felony offense the right to one appellate review of “the
propriety of the sentence, having regard to the nature of the offense,
the character of the offender, and the public interest.” A review of
the propriety of the sentence “involves the intrinsic fairness or
appropriateness of the sentence itself.” People v. Malacara, 606
P.2d 1300, 1302-03 (Colo. 1980). But “if the sentence is within a
range agreed upon by the parties pursuant to a plea agreement, the
defendant shall not have the right of appellate review of the
propriety of the sentence.” § 18-1-409(1). This exception to the
right to appellate review is referred to as the “plea proviso.” Sullivan
v. People, 2020 CO 58, ¶ 1.
2 ¶6 Hagan alleges that the district court improperly emphasized
his criminal history and noncompliance with previous court orders,
while discounting that this was his first felony conviction; he has
support in the community; and he had recently been compliant
with probation, protection orders, and treatment. This challenge to
the court’s consideration of sentencing factors is, at its core, a
challenge to the weight accorded various sentencing factors, which
implicates the “intrinsic fairness or appropriateness” of his
sentence. See Malacara, 606 P.2d at 1302-03; Sullivan, ¶ 13; see
also People v. Carey, 701 P.2d 89, 90 (Colo. App. 1984)
(Considerations such as “the gravity of the offense, the defendant’s
history of prior criminal conduct, the likelihood of future
criminality, and the prospects of rehabilitation . . . go to the
appropriateness of the sentence itself.”).
¶7 Because Hagan’s first contention challenges the propriety of
his sentence, which is within the range contemplated by the plea
agreement, we conclude that the plea proviso bars our review of this
contention. See People v. Scofield, 74 P.3d 385, 386-87 (Colo. App.
2002) (dismissing the appeal under section 18-1-409(1) because the
3 defendant sought review of the propriety of her sentence, which was
within the agreed-upon range in the plea agreement).
III. Information Considered
¶8 Next, Hagan contends that the district court improperly used
two types of information in deciding his sentence. First, he argues
that the court relied on inaccurate findings about his criminal
history. And second, he argues that it used information about a
separate crime as a basis for his sentence, violating his
constitutional right against double jeopardy. We reject both
arguments because the record demonstrates that the district court
crafted Hagan’s sentence based on accurate information and
appropriate considerations.
A. Applicable Law and Standard of Review
¶9 Although the plea proviso in section 18-1-409(1) limits our
review of the propriety of the sentence itself under the
circumstances of this case, it permits our review of “the manner in
which the sentence was imposed, including the sufficiency and
accuracy of the information on which it was based.” In other
words, it permits our review of the propriety of the sentencing
proceeding. Sullivan, ¶ 4. A review of the manner in which the
4 sentence was imposed “involves the extrinsic factors and
procedures which affect the determination of the sentence.”
Malacara, 606 P.2d at 1303.
¶ 10 A district court has broad discretion when imposing a
sentence, and we will not overturn the sentence imposed absent a
clear abuse of that discretion. People v. Fuller, 791 P.2d 702, 708
(Colo. 1990). Sentencing determinations must be based on reliable
evidence, not speculation or unfounded allegations. People v. Tuffo,
209 P.3d 1226, 1231 (Colo. App. 2009). A court may, however,
“consider conduct for which the offender was never charged,
conduct for which charges were filed but later dismissed as part of
a plea agreement, or even conduct for which the offender was
charged and subsequently acquitted.” People v. Tallwhiteman, 124
P.3d 827, 837 (Colo. App. 2005).
¶ 11 “If the sentence is within the range required by law, 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.” Fuller, 791 P.2d at 708.
5 B. Hagan’s Criminal History
¶ 12 Hagan challenges the district court’s finding that he had
“consistent law enforcement contact and convictions and a lack of
compliance.” He suggests that this finding is inaccurate because (1)
for four years, he had only traffic and protection-order-related
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23CA0412 Peo v Hagan 07-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0412 Adams County District Court No. 21CR1519 Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tyler James Hagan,
Defendant-Appellant.
APPEAL DISMISSED IN PART AND SENTENCE AFFIRMED
Division II Opinion by JUDGE FOX Harris and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 3, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Andrew Gargano, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Tyler James Hagan, appeals the district court’s
sentencing order. We dismiss the appeal in part and otherwise
affirm the sentence.
I. Background
¶2 Hagan, a man in his late twenties, had sexual intercourse with
his underage niece, E.H., many times over several years. E.H.
became pregnant when she was fourteen years old, and she
delivered Hagan’s child. Hagan was later charged with four
felonies, including one count of sexual assault on a child (SAOC) as
part of a pattern of sexual abuse — a class 3 felony. In exchange
for dismissal of the remaining charges, he pleaded guilty to one
count of attempted SAOC and one added count of second degree
assault — class 5 and class 4 felonies, respectively.
¶3 Although Hagan’s convictions carry an aggregate statutory
sentencing range of five to twenty-two years in the custody of the
Department of Corrections (DOC), the parties stipulated to a
sentencing range of five to sixteen years. See §§ 18-3-203(1)(g), 18-
3-405(1), 18-2-101, 18-1.3-401(1)(a)(V)(A)-(A.1), (6), (8)(a)(I),
(10)(b)(XII), 18-1.3-406(2)(a)(II)(c), C.R.S. 2024. The district court
imposed a fifteen-year DOC sentence.
1 ¶4 Hagan appeals, contending that when the district court crafted
his sentence, it improperly (1) emphasized aggravating over
mitigating sentencing factors and (2) considered inaccurate and
inapplicable information. The People argue that Hagan’s first
contention is not reviewable because he was sentenced within the
range specified in his negotiated plea agreement and that the record
refutes his second contention. We agree with the People.
II. Sentencing Factors
¶5 Section 18-1-409(1), C.R.S. 2024, guarantees a person
convicted of a felony offense the right to one appellate review of “the
propriety of the sentence, having regard to the nature of the offense,
the character of the offender, and the public interest.” A review of
the propriety of the sentence “involves the intrinsic fairness or
appropriateness of the sentence itself.” People v. Malacara, 606
P.2d 1300, 1302-03 (Colo. 1980). But “if the sentence is within a
range agreed upon by the parties pursuant to a plea agreement, the
defendant shall not have the right of appellate review of the
propriety of the sentence.” § 18-1-409(1). This exception to the
right to appellate review is referred to as the “plea proviso.” Sullivan
v. People, 2020 CO 58, ¶ 1.
2 ¶6 Hagan alleges that the district court improperly emphasized
his criminal history and noncompliance with previous court orders,
while discounting that this was his first felony conviction; he has
support in the community; and he had recently been compliant
with probation, protection orders, and treatment. This challenge to
the court’s consideration of sentencing factors is, at its core, a
challenge to the weight accorded various sentencing factors, which
implicates the “intrinsic fairness or appropriateness” of his
sentence. See Malacara, 606 P.2d at 1302-03; Sullivan, ¶ 13; see
also People v. Carey, 701 P.2d 89, 90 (Colo. App. 1984)
(Considerations such as “the gravity of the offense, the defendant’s
history of prior criminal conduct, the likelihood of future
criminality, and the prospects of rehabilitation . . . go to the
appropriateness of the sentence itself.”).
¶7 Because Hagan’s first contention challenges the propriety of
his sentence, which is within the range contemplated by the plea
agreement, we conclude that the plea proviso bars our review of this
contention. See People v. Scofield, 74 P.3d 385, 386-87 (Colo. App.
2002) (dismissing the appeal under section 18-1-409(1) because the
3 defendant sought review of the propriety of her sentence, which was
within the agreed-upon range in the plea agreement).
III. Information Considered
¶8 Next, Hagan contends that the district court improperly used
two types of information in deciding his sentence. First, he argues
that the court relied on inaccurate findings about his criminal
history. And second, he argues that it used information about a
separate crime as a basis for his sentence, violating his
constitutional right against double jeopardy. We reject both
arguments because the record demonstrates that the district court
crafted Hagan’s sentence based on accurate information and
appropriate considerations.
A. Applicable Law and Standard of Review
¶9 Although the plea proviso in section 18-1-409(1) limits our
review of the propriety of the sentence itself under the
circumstances of this case, it permits our review of “the manner in
which the sentence was imposed, including the sufficiency and
accuracy of the information on which it was based.” In other
words, it permits our review of the propriety of the sentencing
proceeding. Sullivan, ¶ 4. A review of the manner in which the
4 sentence was imposed “involves the extrinsic factors and
procedures which affect the determination of the sentence.”
Malacara, 606 P.2d at 1303.
¶ 10 A district court has broad discretion when imposing a
sentence, and we will not overturn the sentence imposed absent a
clear abuse of that discretion. People v. Fuller, 791 P.2d 702, 708
(Colo. 1990). Sentencing determinations must be based on reliable
evidence, not speculation or unfounded allegations. People v. Tuffo,
209 P.3d 1226, 1231 (Colo. App. 2009). A court may, however,
“consider conduct for which the offender was never charged,
conduct for which charges were filed but later dismissed as part of
a plea agreement, or even conduct for which the offender was
charged and subsequently acquitted.” People v. Tallwhiteman, 124
P.3d 827, 837 (Colo. App. 2005).
¶ 11 “If the sentence is within the range required by law, 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.” Fuller, 791 P.2d at 708.
5 B. Hagan’s Criminal History
¶ 12 Hagan challenges the district court’s finding that he had
“consistent law enforcement contact and convictions and a lack of
compliance.” He suggests that this finding is inaccurate because (1)
for four years, he had only traffic and protection-order-related
offenses that resulted in fines; and (2) during certain windows of
time, he “did well” on probation.
¶ 13 We discern ample evidence in the record to support the
challenged finding. The district court relied on the Presentence
Investigation Report (PSIR), which Hagan did not dispute. The PSIR
shows that Hagan was charged with criminal misdemeanors, a drug
felony, and a felony in eight other cases in 2015, 2017, 2020, 2021
and 2022. In four of the cases, the charges included violation of a
protection order, establishing a lack of compliance with court
orders. Hagan pleaded guilty in five cases, and in three of them he
was sentenced to probation. His probation was revoked multiple
times, establishing a history of noncompliance with probation.
C. Double Jeopardy
¶ 14 Next, Hagan speculates that the district court “effectively
imposed a harsher sentence upon him in this case as a means to
6 indirectly punish him” for a harassment conviction in a separate
case. He points to the following facts:
• Hagan’s probation revocation resentencing hearing for the
harassment case was combined with the sentencing hearing in
this case.
• The victim in the harassment case, N.B., who was also the first
person to report Hagan’s sexual assault of E.H. to police,
spoke at the hearing.
• During her statement, N.B. described her harassment-related
experiences with Hagan, in addition to the circumstances of
E.H.’s disclosure that Hagan was the father of her baby and
how she reported the disclosure to police.
• N.B. noted that she had witnessed Hagan “be given leniency”
by the courts and yet he repeatedly violated protection orders
and probation conditions.
• N.B. asked the court to give Hagan the maximum prison
sentence.
• The district court imposed a sentence that was close to the
maximum of the stipulated range.
7 ¶ 15 The record refutes Hagan’s argument that the district court
inappropriately considered facts from the harassment case in
imposing a sentence for this case. The court explicitly stated that
although it had “heard about more facts” than those in this case, it
found “very aggravating facts . . . just in considering the facts as it
relates to the victim in this case.” The court then listed the
aggravating facts related only to this case: Hagan’s ongoing
manipulation of E.H., E.H.’s youth, the years-long duration of
sexual assaults, Hagan’s position of trust role, and the fact that
Hagan impregnated E.H. It said nothing to suggest that facts from
the harassment case factored into its sentence for this case.
¶ 16 Because Hagan’s sentence is legal, based on appropriate
considerations in the record, and factually supported, we will not
disturb it. See id.
IV. Disposition
¶ 17 The appeal is dismissed in part, and the sentence is affirmed.
JUDGE HARRIS and JUDGE SCHUTZ concur.