Peo v. Livingston

• Court: Colorado Court of Appeals
• Decided: March 19, 2026
• Docket: 24CA1026
• Status: Unpublished

Opinion

24CA1026 Peo v Livingston 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1026 City and County of Denver District Court No. 23CR2270 Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael M. Livingston,

Defendant-Appellant.

APPEAL DISMISSED

Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 19, 2026

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

Megan A. Ring, Colorado State Public Defender, Chloe Sovinee-Dyroff, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael M. Livingston, appeals the sentence

imposed following his guilty plea to retaliation against a judge.

Because his guilty plea precludes his challenge, we dismiss the

appeal.

I. Background

¶2 A municipal court judge held Livingston in direct contempt

during a sentencing hearing in a harassment case. The court

sentenced him to two days in jail for contempt in addition to one

year of unsupervised probation for the harassment conviction.

Eighteen months later, Livingston was charged with one count of

retaliation against a judge based on allegations that he threw large

rocks, with the words, “Fuck You Peter,” at the home of the

municipal court judge who had sentenced him, causing property

damage.

¶3 Livingston pleaded guilty as charged. As part of a plea

agreement, he stipulated to a sentencing range of not more than

four years in the custody of the Department of Corrections (DOC),

with probation as an available sentencing alternative.

¶4 Before the sentencing hearing, defense counsel submitted to

the district court the transcript of the sentencing hearing from the

1 municipal court case as well as letters from Livingston’s father,

mother, and sister.

¶5 At the sentencing hearing, the district court indicated that it

had reviewed the documents provided by defense counsel. After

hearing from the parties, Livingston, the municipal court judge, and

the municipal court judge’s wife, the district court imposed a four-

year DOC sentence. The court said that it “appreciate[d]”

Livingston’s comments and apologies. But it observed that this was

not “just a criminal mischief type [of] case.” To the contrary, the

court stated, this was “a very aggravated case” where “eighteen

months went by before retaliation occurred which suggest[ed] that

there was a long period of time thinking about . . . [and] plotting

this.” Considering the totality of the circumstances, the court

found that the “serious community safety concerns” created by

Livingston’s conduct warranted a prison sentence.

II. Discussion

¶6 Livingston asserts that, in fashioning his sentence, the district

court erred by failing to consider all the purposes of sentencing

contemplated in the sentencing statute. The People counter that

2 Livingston challenges the propriety of his sentence, which, on these

facts, we may not review. We agree with the People.

A. Legal Authority

¶7 Section 18-1-409(1), C.R.S. 2025, 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).

¶8 Section 18-1-409(1) also provides for one appellate review of

“the manner in which the sentence was imposed, including the

sufficiency and accuracy of the information on which it was based.”

A review of the manner in which the sentence was imposed

“involves the extrinsic factors and procedures which affect the

determination of the sentence.” Malacara, 606 P.2d at 1303.

¶9 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

3 to as the “plea proviso.” Sullivan v. People, 2020 CO 58, ¶ 1. If the

plea proviso applies, it bars review of the propriety of the sentence,

but it does not bar review of the manner in which the sentence was

imposed. Id. at ¶ 26.

¶ 10 When imposing a sentence, a district court must consider the

nature and elements of the offense, the character and rehabilitative

potential of the offender, any aggravating or mitigating

circumstances, the development of respect for the law, the need for

deterrence, and the protection of the public. People v. Leske, 957

P.2d 1030, 1043 (Colo. 1998); see also § 18-1-102.5, C.R.S. 2025

(listing the purposes of the criminal code with respect to

sentencing).

B. Analysis

¶ 11 Livingston contends that the district court failed to consider

all the purposes of sentencing set out in section 18-1-102.5,

including his rehabilitative potential, low risk of re-offending, and

personal characteristics, including his mental health concerns.

Instead, he argues, the court focused “exclusively on the

seriousness of the offense.” He argues that his appeal should not

4 be barred by the plea proviso because his arguments implicate the

manner in which the sentence was imposed.

¶ 12 We are not convinced. Livingston’s challenge to the adequacy

of the district court’s consideration of the sentencing factors is, at

its core, a challenge to the weight accorded to various sentencing

factors, which implicates the intrinsic fairness or appropriateness of

his sentence. Sullivan, ¶ 13 (“‘[T]he propriety of the sentence,’

implicates ‘the intrinsic fairness or appropriateness of the sentence

itself taking into account “the nature of the offense, the character of

the offender, and the public interest.’” (quoting Malacara, 606 P.2d

at 1302-03)); 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.”); cf. People v. Garcia, 55 P.3d 243, 244 (Colo.

App. 2002) (concluding that the plea proviso in section 18-1-409(1)

barred the defendant’s appellate contention that the district court

abused its discretion by emphasizing punishment to the exclusion

of other sentencing factors).

5 ¶ 13 Moreover, despite Livingston’s assertion that his challenge is

to the sufficiency and accuracy of the information on which the

sentence was based, he fails to explain why the information

provided to the court (which contained evidence of his rehabilitative

potential, risk of reoffending, mental health concerns, and

character) was insufficient or inaccurate. The district court

expressly considered the parties’ arguments and the victims’

statements but also considered the presentence investigation report

and the letters and transcript that defense counsel submitted.

¶ 14 Therefore, because Livingston’s sentence did not exceed the

four-year sentencing cap the parties agreed to in the plea

agreement, we conclude that the plea proviso bars our review of this

appeal. See People v. Scofield, 74 P.3d 385, 386-87 (Colo. App.

2002) (dismissing the appeal under section 18-1-409(1) because the

defendant sought review of the propriety of her sentence, which was

within the range agreed upon by the parties in the plea agreement).

III. Disposition

¶ 15 The appeal is dismissed.

JUDGE YUN and JUDGE SCHOCK concur.