Peo v. Lockard

• Court: Colorado Court of Appeals
• Decided: April 10, 2025
• Docket: 22CA2113
• Status: Unpublished

Opinion

22CA2113 Peo v Lockard 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2113 Arapahoe County District Court Nos. 20CR1426 & 20CR1481 Honorable Elizabeth Weishaupl, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brandon Joseph Lockard,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, for Defendant-Appellant ¶1 Brandon Joseph Lockard appeals the district court’s denial of

his Crim. P. 32(d) motion to withdraw his guilty pleas. We affirm.

I. The District Court Proceedings

¶2 This case has a long, tortured procedural history in the district

court, due in large part to Lockard’s failure to attend many hearings

in the case.

¶3 In May 2020, the People charged Lockard with three counts of

second degree burglary and one count of criminal mischief in

Arapahoe County District Court case number 20CR1426. A week

later, the People charged Lockard with one count each of robbery

and theft in Arapahoe County District Court case number

20CR1481.

¶4 In May 2021, the parties entered into plea agreements

resolving both cases. Under the agreements, (1) Lockard would

plead guilty to class 5 felony counts of criminal mischief in

20CR1426 and attempted robbery in 20CR1481; (2) the remaining

counts in those cases would be dismissed; and (3) two other

criminal cases brought against Lockard would also be dismissed.

The parties stipulated to concurrent sentences of three years of

1 supervised probation, with the condition that Lockard successfully

complete three years in the community corrections Peer I program.

¶5 At the providency hearing, the district court clarified with

Lockard that the two class 5 felony convictions each carried a

presumptive sentencing range of one to three years in the

Department of Corrections (DOC), with two years on parole. See

§ 18-1-401(1)(a)(V)(A.1), C.R.S. 2024. Lockard pleaded guilty to

both counts and the court accepted his pleas. In June 2021, the

court imposed the stipulated concurrent sentences of three years of

supervised probation, with the condition that Lockard successfully

complete three years in Peer I.

¶6 However, four days after sentencing, Lockard’s probation

officer filed a report informing the court that “Peer I will not accept

condition of probation sentences. [Lockard] would need to be

sentenced directly to Community Corrections for Peer I to complete

a screen for acceptance.”

¶7 In August 2021, the court resentenced Lockard to a three-year

direct sentence to the community corrections Peer I program.

¶8 A month and a half later, in October 2021, the same probation

officer filed another report informing the court that Lockard “was

2 denied placement with Peer One . . . [because he] refus[ed] to have

contact with Peer One to complete a screen for the program.” In an

attachment to the filing, a Peer I staff member reported that

Lockard had “self-reject[ed] placement for the Peer I program.”

¶9 Because Lockard was no longer eligible for a Peer I sentence,

the case was set for resentencing on January 10, 2022. See

§ 18-1.3-301(1)(d), C.R.S. 2024 (“If an offender is rejected by a

community corrections board or a community corrections program

before placement in a program, the court shall promptly resentence

the offender.”).

¶ 10 Before the scheduled resentencing hearing, however, Lockard

filed a Crim. P. 32(d) motion to withdraw his guilty pleas. In the

motion, he alleged that his pleas were invalid because, at the

August 2021 hearing during which the court imposed a direct

sentence to community corrections, he was not readvised of his

rights under Crim. P. 11 nor advised of the consequences of a

rejection from Peer I. He said he was unaware that, unlike a

probationary sentence, which, if not successfully completed,

resulted in revocation, a direct sentence to community corrections,

3 if not successfully completed, would result in a resentencing to a

term of imprisonment.

¶ 11 The court ordered the prosecution to file a response to

Lockard’s Rule 32(d) motion by January 20, 2022. However, at the

January 10 hearing, which Lockard attended in person, Lockard’s

counsel reported that the parties were in discussions regarding “a

proposed alternative resolution,” and counsel agreed that the

prosecution need not file a response to the Rule 32(d) motion by the

January 20 deadline.

¶ 12 Then, in late January 2022, the parties filed a new plea

agreement stipulating to concurrent sentences of two years in the

DOC.

¶ 13 Notwithstanding the new plea agreement, at a June 2022

hearing, the court agreed that Lockard could withdraw his guilty

pleas. The court then set a trial date in October 2022, and a

motions hearing in September 2022. The prosecutor did not object

and agreed with the new dates.

¶ 14 Shortly before the scheduled motions hearing, the prosecution

filed a response to Lockard’s Rule 32(d) motion filed in December

2021. The prosecution argued that the Rule 32(d) motion remained

4 pending because the district court had never ruled on it. It asked

the court to deny the motion because, among other reasons,

Lockard had not demonstrated a fair and just reason to withdraw

his guilty pleas.

¶ 15 Lockard’s counsel filed a reply arguing, among other things,

that the district court had already allowed Lockard to withdraw his

guilty pleas at the June 2022 hearing; and because the prosecution

did not object at that hearing, it had voluntarily abandoned and

waived its current objection.

¶ 16 At the scheduled motions hearing, at which Lockard failed to

appear, the court made clear that Lockard’s Rule 32(d) motion

remained pending and was now fully briefed, and that it could rule

on the motion in Lockard’s absence. The court rescheduled the

next hearing for mid-September 2022.

¶ 17 Lockard failed to appear at the next hearing. The court

announced that, at that next scheduled hearing, it would rule on

Lockard’s fully briefed Rule 32(d) motion. The court ruled that it

would treat the prosecution’s response to Lockard’s Rule 32(d)

motion as a motion to reconsider the court’s decision at the June

2022 hearing allowing Lockard to withdraw his guilty pleas.

5 Lockard’s counsel said that she did not object to the court ruling on

the Rule 32(d) motion based on the pleadings, but counsel again

emphasized that the court had already allowed Lockard to withdraw

his guilty pleas at the June 2022 hearing.

¶ 18 At the final hearing in October 2022, the court granted the

prosecution’s motion to reconsider and, accordingly, denied

Lockard’s December 2021 Rule 32(d) motion to withdraw his guilty

pleas. In doing so, the court explained that Lockard had not

presented a fair or just reason for withdrawing his pleas. The court

explained that it was not obligated to advise Lockard of any

differences between failing to complete a probationary sentence and

failing to complete a direct sentence to Peer I because they

amounted to collateral consequences of his pleas.1 The court

further held that, to the extent Lockard was raising an ineffective

assistance claim based on his counsel’s failure to advise him of any

1 See People v. Birdsong, 958 P.2d 1124, 1128 (Colo. 1998) (“[T]he

trial court must advise the defendant of the direct consequences of the conviction to satisfy the due process concerns that a plea be made knowingly and with a full understanding of the consequences thereof. . . . Accordingly, a guilty plea is not rendered invalid by a trial court’s failure to warn a defendant of the collateral consequences of his guilty plea.”) (citations omitted).

6 such differences, he could not show prejudice on the claim because

the differences were “not significant enough to undermine

confidence that the Defendant would have pleaded guilty

regardless.”

¶ 19 In addressing Lockard’s argument that both his probationary

sentence and his direct sentence to community corrections became

impossibilities after his rejection from Peer I, the court ruled that

the Defendant was rejected from Community Corrections because he refused to have contact with the program for screening. That is the Defendant’s own actions and inactions which caused his rejection from the direct sentence to Community Corrections, not a flaw in the plea agreement or the actions of others. The Defendant cannot show that it is fair and just to withdraw his guilty pleas because he refuses to cooperate with the terms of his sentence. Because the Defendant cannot show a fair and just reason for withdrawing his guilty pleas, the Defendant’s request to withdraw his guilty pleas is denied upon reconsideration.

¶ 20 The court clarified that it was going to proceed with

resentencing Lockard on his guilty pleas. After the court gave

Lockard’s counsel time to discuss the matter with Lockard, counsel

told the court, “We are prepared to proceed with sentencing today

maintaining our objections, and I believe the Prosecution would be

7 requesting two years [in the DOC] today. That would be our request

as well.” The prosecutor confirmed that the parties had agreed to a

two-year DOC sentence in the January 2022 plea agreement. The

court then sentenced Lockard to concurrent two-year DOC

sentences with two years of mandatory parole, while saying that it

was sentencing Lockard “in accordance with” the January 2022

plea agreement.

II. Lockard’s Rule 32(d) Motion Was Not Untimely

¶ 21 On appeal, the People reassert an argument they made in the

district court that Lockard’s December 2021 Rule 32(d) motion was

untimely because such a motion must be filed “before sentence is

imposed,” but Lockard had already been sentenced at the August

2021 resentencing hearing.

¶ 22 We are not persuaded. Between the time that (1) the court

imposed the direct sentence to community corrections in August

2021, and (2) Lockard filed his Rule 32(d) motion in December

2021, Lockard was rejected from community corrections in October

2021. As we’ve already explained, when Lockard was rejected from

community corrections before placement in the Peer I program, the

district court was required to resentence him under

8 section 18-1.3-301(1)(d). So, the hearings that the district court

held in November 2021 (which Lockard did not attend) were

resentencing hearings. Because Lockard filed his Rule 32(d) motion

before the court successfully held a resentencing hearing in

Lockard’s presence, Lockard’s Rule 32(d) motion was filed before

that resentencing and was therefore timely. See People v. Hodge,

205 P.3d 481, 483 (Colo. App. 2008) (“[C]ontrary to the Attorney

General’s argument on appeal, the Crim. P. 32(d) motion is timely

because it was filed before resentencing.”).

III. The District Court Did Not Abuse its Discretion in Denying Lockard’s Rule 32(d) Motion to Withdraw His Guilty Pleas

A. Applicable Law and Standard of Review

¶ 23 In a Crim. P. 32(d) motion, the defendant has the burden of

establishing a “fair and just” reason for withdrawing a guilty plea,

and a district court has discretion to determine whether the

defendant met that burden. Crumb v. People, 230 P.3d 726, 730

(Colo. 2010) (quoting People v. Chippewa, 751 P.2d 607, 609 (Colo.

1988)). An appellate court will not overturn a district court’s denial

of a Crim. P. 32(d) motion unless the court abused its discretion.

Id. To determine that, we consider a non-exclusive list of factors,

9 including these three: (1) whether the prosecution would be

prejudiced by the withdrawal of the guilty plea, (2) whether the

defendant promptly moved to withdraw the guilty plea, and

(3) whether the defendant has shown that justice will be subverted

if the motion is denied (the Crumb factors). Id.; see also People v.

Allen, 310 P.3d 83, 85 (Colo. App. 2010) (a district court abuses its

discretion in denying a Crim. P. 32(d) motion if its decision is

manifestly arbitrary, unreasonable, or unfair), aff’d, 2013 CO 44.

B. Analysis

¶ 24 In determining whether the district court abused its discretion

in denying Lockard’s Rule 32(d) motion to withdraw his guilty pleas,

we first address Lockard’s suggestion that his convictions were

entered on the January 2022 plea agreement, not the May 2021

plea agreement. For example, Lockard asserts that “the court

sentenced him in accordance with [the January 2022] plea

agreement,” but then argues that he was not present in court “for a

plea colloquy” on that January 2022 plea agreement.

¶ 25 We are not persuaded. The record clearly indicates that the

district court’s ultimate imposition of the two-year DOC sentence

was based on Lockard’s original guilty pleas entered in May 2021,

10 after Lockard had been rejected from community corrections in

October 2021. The convictions entered in this case are based on

Lockard’s guilty pleas in May 2021. The court’s mention at the

October 2022 hearing that it was sentencing him “in accordance

with” the January 2022 plea agreement merely confirmed the

parties’ agreement at the October 2022 hearing that a two-year

DOC sentence was appropriate on the May 2021 convictions.

¶ 26 We now turn to address two procedural quirks and nuances in

this case. The first is the fact that Lockard filed his Rule 32(d)

motion in late December 2021, but the prosecution did not file its

response to the motion until August 2022. Importantly, though, at

the hearing on January 10, 2022, the parties informed the court

that they were negotiating a proposed alternative disposition, and

Lockard’s counsel specifically agreed — in Lockard’s presence —

that, because of the continued negotiations, the People would not

need to file a response to the Rule 32(d) motion by the January 20,

2022, deadline. The case then languished for months because

Lockard failed to appear at hearings between January and June of

2022. Further, the filing of the new January 2022 plea agreement,

which had been initialed and signed by Lockard, suggests that, at

11 that point, Lockard was no longer pursuing his December 2021

Rule 32(d) motion to withdraw his May 2021 guilty pleas.

¶ 27 The second procedural nuance involves the court’s

announcement at the June 27, 2022, hearing that it was allowing

Lockard to withdraw his guilty pleas. However, the court ultimately

reconsidered that decision after (1) the prosecution filed its

response to the Rule 32(d) motion in August 2022, and (2) Lockard

failed to appear for the motions hearings in September 2022. It is

well settled that “[a] trial court has inherent authority to reconsider

its own rulings” and “may exercise this authority any time before it

enters a final judgment.” Graham v. Zurich Am. Ins. Co., 2012 COA

188, ¶ 18. Under the circumstances here, we discern no abuse of

discretion in the court’s ruling reconsidering its decision at the

June 27, 2022, hearing by instead ruling on the pleadings on the

fully briefed December 2021 Rule 32(d) motion.

¶ 28 Finally, we agree with the district court that Lockard did not

present a fair and just reason for withdrawing his May 2021 guilty

pleas. See Crumb, 230 P.3d at 730. As the People point out,

regardless of whether Lockard was sentenced to Peer I as a

condition of probation (as he was in June 2021), or whether he

12 received a direct sentence to Peer I (as he did in August 2021), his

sentences required him to successfully complete three years in Peer

I. And notably, Lockard’s own counsel argued at the August 2021

resentencing hearings that the court should simply change

Lockard’s sentence from community corrections as a condition of

probation to a direct sentence to community corrections.

¶ 29 But Lockard self-rejected from Peer I by declining to

participate in the intake process. True, the record suggests he may

have done so because of health issues that he believed would

prevent him from successfully completing three years in Peer I. But

Lockard has not cited, and we are not aware of, any authority

indicating that unforeseen events that hamper a defendant’s ability

to serve a stipulated sentence justify allowing the defendant to

withdraw his guilty plea.

¶ 30 Further, during plea negotiations, Lockard could have

attempted to include language in the plea agreement allowing him

to withdraw from the plea agreement in the event he was rejected

from Peer I. But no such language appears in the plea agreement.

Where the district court accepted Lockard’s guilty pleas and

imposed the parties’ stipulated sentence to Peer I, but where

13 Lockard was later rejected from Peer I before being accepted into

the program, the law required resentencing, not invalidating the

pleas. See § 18-1.3-301(1)(d).

¶ 31 Significantly, Lockard was clearly advised at the original

providency hearing in May 2021 that each of his convictions carried

a presumptive sentencing range of one to three years in the DOC

with two years of parole. And again, Lockard’s counsel informed

the court at a scheduled resentencing hearing in November 2021

that Lockard had been “fully apprised of what happens if he’s

rejected from Community Corrections.”

¶ 32 For these reasons, we discern no abuse of discretion in the

district court’s ruling denying Lockard’s December 2021 Rule 32(d)

motion to withdraw his guilty pleas.

IV. Disposition

¶ 33 The judgment is affirmed.

JUDGE HARRIS and JUDGE PAWAR concur.