23CA1370 Peo v McDonald 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1370 Jefferson County District Court No. 22CR1193 Honorable Lindsay Van Gilder, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nicholas McDonald,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII Opinion by JUDGE LUM Lipinsky and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Evan W. Jones, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Nicholas McDonald, appeals his four-year prison
sentence imposed on a jury verdict finding him guilty of felony
menacing. We affirm.
I. Background
¶2 A jury found McDonald guilty of felony menacing, carrying a
concealed weapon, theft, and false reporting of identifying
information to law enforcement. The district court sentenced him
to four years in community corrections on the felony menacing
conviction and to concurrent jail terms on the other convictions.
But McDonald was later rejected from community corrections when
the facility learned that he was on parole at the time he committed
the underlying offenses and was consequently facing a parole
violation proceeding. At a resentencing hearing, the court
sentenced McDonald to four years in the custody of the Department
of Corrections (DOC) on the felony menacing count.
II. Legal Authority and Standard of Review
¶3 A person convicted of a felony “shall have 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.” § 18-1-409(1), C.R.S. 2024.
1 ¶4 “In Colorado, our legislature has established that the purposes
of sentencing include: punishment, deterrence, the prevention of
crime and the promotion of respect for the law, reduction of the
potential that the offender will engage in criminal conduct after
completion of his sentence, and rehabilitation.” Sharrow v. People,
2019 CO 25, ¶ 42 n.7 (citing § 18-1-102.5(1), C.R.S. 2024). Thus,
in exercising its sentencing discretion, the 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
deterrence of crime, and the protection of the public. People v.
Herrera, 2014 COA 20, ¶ 17; People v. Maestas, 224 P.3d 405, 409
(Colo. App. 2009); People v. Thoro Prods. Co., 45 P.3d 737, 748
(Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003).
¶5 “On appellate review of a sentence, the decision of the
sentencing court must be accorded deference because of that
court’s familiarity with the circumstances of the case.” People v.
Howell, 64 P.3d 894, 898 (Colo. App. 2002); see also People v.
Kirby, 2024 COA 20, ¶ 65. It is this familiarity that places the court
“in the best position to fix a sentence that reflects a balance of the
2 relevant considerations.” People v. Vigil, 718 P.2d 496, 507 (Colo.
1986); see also Kirby, ¶ 65.
¶6 Accordingly, a district court has broad discretion when
imposing a sentence. Allman v. People, 2019 CO 78, ¶ 22. We will
not overturn a sentence in the absence of a clear abuse of that
discretion. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990). “A
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair.” Herrera, ¶ 16.
¶7 “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.
III. Analysis
¶8 At the resentencing hearing, McDonald presented mitigating
information and requested a two-year DOC sentence. The
prosecution requested a four-year DOC sentence, based on the
nature of the underlying incident, the fact that McDonald was on
parole when he committed the offense, his “concerning criminal
history,” his “combative” nature, and his failure to “show[] remorse
or accountability for his offense.”
3 ¶9 When imposing the sentence, the district court stated that it
had reviewed the presentence investigation report and that it
recalled the facts of the underlying incident from the jury trial. The
court acknowledged McDonald’s military service and his struggles
with housing instability. But the court determined that a four-year
DOC sentence was warranted due to the nature of McDonald’s
underlying conduct and his lengthy criminal history. The court
further expressed concern regarding McDonald’s bond violations
and failures to appear for hearings in this matter and noted that the
presentence investigation report deemed him to be a “higher risk for
community safety issues.”
¶ 10 On this record, we are not convinced that the district court’s
sentencing decision was manifestly arbitrary, unreasonable, or
unfair. See Vigil, 718 P.2d at 507 (“[W]hile the sentencing judge’s
discretion is not without limits, only in truly exceptional situations
will this court substitute its judgment as to an appropriate sentence
for the judgment of the trial court.”); People v. Martinez, 32 P.3d
582, 584 (Colo. App. 2001) (“Sentencing is by its very nature
discretionary, and the trial court, because of its greater familiarity
4 with the defendant and the circumstances of the case, is a better
arbiter of the facts than an appellate court.”).
¶ 11 The record reflects that the court properly considered the
sentencing factors and determined that the nature of the offense
and McDonald’s criminal history warranted a prison sentence in the
middle, rather than the minimum, of the applicable aggravated
sentencing range. See § 18-1.3-401(1)(a)(V.5)(A), (8)(a)(II), C.R.S.
2024 (a defendant convicted of a class 5 felony that was committed
while the defendant was on parole for another felony is subject to
an aggravated sentencing range of two to six years in the DOC);
Fuller, 791 P.2d at 708; Herrera, ¶ 17 (“A sentence that is within the
range required by law and based upon appropriate facts in the
record will be upheld.”); see also People v. Wise, 2014 COA 83, ¶ 33
(“[T]he court need not discuss each [sentencing] consideration[]
when imposing a sentence; a reasonable explanation of the
sentence suffices.”); People v. Torrez, 2013 COA 37, ¶ 74 (“A trial
court may properly find certain factors to be more compelling than
others . . . .”); People v. Myers, 45 P.3d 756, 757 (Colo. App. 2001)
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23CA1370 Peo v McDonald 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1370 Jefferson County District Court No. 22CR1193 Honorable Lindsay Van Gilder, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nicholas McDonald,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII Opinion by JUDGE LUM Lipinsky and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Evan W. Jones, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Nicholas McDonald, appeals his four-year prison
sentence imposed on a jury verdict finding him guilty of felony
menacing. We affirm.
I. Background
¶2 A jury found McDonald guilty of felony menacing, carrying a
concealed weapon, theft, and false reporting of identifying
information to law enforcement. The district court sentenced him
to four years in community corrections on the felony menacing
conviction and to concurrent jail terms on the other convictions.
But McDonald was later rejected from community corrections when
the facility learned that he was on parole at the time he committed
the underlying offenses and was consequently facing a parole
violation proceeding. At a resentencing hearing, the court
sentenced McDonald to four years in the custody of the Department
of Corrections (DOC) on the felony menacing count.
II. Legal Authority and Standard of Review
¶3 A person convicted of a felony “shall have 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.” § 18-1-409(1), C.R.S. 2024.
1 ¶4 “In Colorado, our legislature has established that the purposes
of sentencing include: punishment, deterrence, the prevention of
crime and the promotion of respect for the law, reduction of the
potential that the offender will engage in criminal conduct after
completion of his sentence, and rehabilitation.” Sharrow v. People,
2019 CO 25, ¶ 42 n.7 (citing § 18-1-102.5(1), C.R.S. 2024). Thus,
in exercising its sentencing discretion, the 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
deterrence of crime, and the protection of the public. People v.
Herrera, 2014 COA 20, ¶ 17; People v. Maestas, 224 P.3d 405, 409
(Colo. App. 2009); People v. Thoro Prods. Co., 45 P.3d 737, 748
(Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003).
¶5 “On appellate review of a sentence, the decision of the
sentencing court must be accorded deference because of that
court’s familiarity with the circumstances of the case.” People v.
Howell, 64 P.3d 894, 898 (Colo. App. 2002); see also People v.
Kirby, 2024 COA 20, ¶ 65. It is this familiarity that places the court
“in the best position to fix a sentence that reflects a balance of the
2 relevant considerations.” People v. Vigil, 718 P.2d 496, 507 (Colo.
1986); see also Kirby, ¶ 65.
¶6 Accordingly, a district court has broad discretion when
imposing a sentence. Allman v. People, 2019 CO 78, ¶ 22. We will
not overturn a sentence in the absence of a clear abuse of that
discretion. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990). “A
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair.” Herrera, ¶ 16.
¶7 “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.
III. Analysis
¶8 At the resentencing hearing, McDonald presented mitigating
information and requested a two-year DOC sentence. The
prosecution requested a four-year DOC sentence, based on the
nature of the underlying incident, the fact that McDonald was on
parole when he committed the offense, his “concerning criminal
history,” his “combative” nature, and his failure to “show[] remorse
or accountability for his offense.”
3 ¶9 When imposing the sentence, the district court stated that it
had reviewed the presentence investigation report and that it
recalled the facts of the underlying incident from the jury trial. The
court acknowledged McDonald’s military service and his struggles
with housing instability. But the court determined that a four-year
DOC sentence was warranted due to the nature of McDonald’s
underlying conduct and his lengthy criminal history. The court
further expressed concern regarding McDonald’s bond violations
and failures to appear for hearings in this matter and noted that the
presentence investigation report deemed him to be a “higher risk for
community safety issues.”
¶ 10 On this record, we are not convinced that the district court’s
sentencing decision was manifestly arbitrary, unreasonable, or
unfair. See Vigil, 718 P.2d at 507 (“[W]hile the sentencing judge’s
discretion is not without limits, only in truly exceptional situations
will this court substitute its judgment as to an appropriate sentence
for the judgment of the trial court.”); People v. Martinez, 32 P.3d
582, 584 (Colo. App. 2001) (“Sentencing is by its very nature
discretionary, and the trial court, because of its greater familiarity
4 with the defendant and the circumstances of the case, is a better
arbiter of the facts than an appellate court.”).
¶ 11 The record reflects that the court properly considered the
sentencing factors and determined that the nature of the offense
and McDonald’s criminal history warranted a prison sentence in the
middle, rather than the minimum, of the applicable aggravated
sentencing range. See § 18-1.3-401(1)(a)(V.5)(A), (8)(a)(II), C.R.S.
2024 (a defendant convicted of a class 5 felony that was committed
while the defendant was on parole for another felony is subject to
an aggravated sentencing range of two to six years in the DOC);
Fuller, 791 P.2d at 708; Herrera, ¶ 17 (“A sentence that is within the
range required by law and based upon appropriate facts in the
record will be upheld.”); see also People v. Wise, 2014 COA 83, ¶ 33
(“[T]he court need not discuss each [sentencing] consideration[]
when imposing a sentence; a reasonable explanation of the
sentence suffices.”); People v. Torrez, 2013 COA 37, ¶ 74 (“A trial
court may properly find certain factors to be more compelling than
others . . . .”); People v. Myers, 45 P.3d 756, 757 (Colo. App. 2001)
(“The fact that a sentencing court finds aggravating factors to be
more compelling than mitigating factors does not constitute an
5 abuse of discretion or indicate that the trial court failed to consider
evidence of mitigation.”).
¶ 12 We are not otherwise persuaded by McDonald’s arguments
that the district court’s four-year DOC sentence was an abuse of
discretion because (1) his parole status was known at the time the
court originally sentenced him to community corrections; (2) the
court based the prison sentence on the same factors on which it
relied to impose the more lenient community corrections sentence;
(3) the court failed to take into consideration the unfairness of his
rejection from community corrections and need for resentencing;
and (4) his requested two-year prison sentence, when combined
with the mandatory two years on parole, would be similar to the
original four-year community corrections sentence.
¶ 13 Because McDonald was rejected from community corrections
and was not eligible for probation, the district court’s only option
was to sentence him to prison. See § 18-1.3-104(1), C.R.S. 2024.
And the court was statutorily authorized to impose any sentence it
could have imposed in the original sentencing. See Romero v.
People, 179 P.3d 984, 986-87 (Colo. 2007).
6 ¶ 14 Given this change in circumstances, we are not convinced that
the court’s decision to impose a four-year (rather than a two-year)
DOC sentence was an abuse of discretion, even if it was based on
the same factors that the court considered in imposing the original
sentence. See Herrera, ¶¶ 20, 22-23 (concluding that the district
court did not abuse its discretion when it converted a six-year
community corrections sentence to a six-year DOC sentence “in
light of the factors it originally considered” and rejecting the
defendant’s assertion that the DOC sentence was “too severe”
because the sentence “was based on appropriate considerations and
[wa]s within the applicable sentencing range” and because
mandatory parole is separate from, and does not constitute an
increase to, a DOC sentence).
IV. Disposition
¶ 15 The sentence is affirmed.
JUDGE LIPINSKY and JUDGE PAWAR concur.