22CA2203 Peo v Merriweather 07-17-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2203 Weld County District Court No. 20CR714 Honorable Allison J. Esser, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Devonte Jordan Merriweather,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Brown and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 17, 2025
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Devonte Jordan Merriweather, appeals the order
denying his Crim. P. 35(a) motion to correct an illegal sentence. We
reverse the order and remand the case with directions.
I. Background
¶2 In 2020, Merriweather pleaded guilty to attempted second
degree assault in this case — Weld County Case No. 20CR714 (the
Weld case). The district court sentenced him to four years in
community corrections.
¶3 Merriweather’s community corrections placement was later
terminated based on violations of the terms of his placement,
including new charges filed in Larimer County Case No. 21CR1916
(the Larimer case).
¶4 In April 2022, Merriweather pleaded guilty in the Larimer case
and stipulated to an eight-year sentence in the custody of the
Department of Corrections (DOC), to “run consecutive” to his
sentence in the Weld case. In May 2022, the Larimer district court
sentenced him to an eight-year DOC sentence, consecutive to the
sentence in the Weld case, as stipulated in the plea agreement.
¶5 A few months later, in July 2022, the district court
resentenced Merriweather in the Weld case. It imposed a four-year
1 DOC sentence and ordered the sentence to run concurrent with the
sentence in the Larimer case. Merriweather immediately began
serving his sentence.
¶6 After the DOC sought clarification about Merriweather’s
sentence, the Weld district court ordered a new sentencing hearing.
At that hearing , the court concluded that because Merriweather
had stipulated to a consecutive sentence in the Larimer case, it
didn’t “have any discretion” to run the sentence in the Weld case
concurrent to the sentence in the Larimer case. The court then
issued an amended mittimus running the sentence in the Weld case
consecutive to the sentence in the Larimer case.
¶7 Merriweather filed a Rule 35(a) motion challenging the legality
of the consecutive sentence. The court denied the motion.
II. Discussion
¶8 Merriweather appeals the order denying his Rule 35(a) motion,
arguing that the Weld district court had no authority to increase his
concurrent sentence to a consecutive sentence.
2 A. Standard of Review
¶9 We review de novo the legality of a sentence and the summary
denial of a Rule 35(a) motion. People v. Tennyson, 2023 COA 2, ¶ 9,
aff’d, 2025 CO 31.
B. The Concurrent Sentence Was Legal
¶ 10 First, we consider whether the Weld district court had
authority to impose a concurrent sentence when it resentenced
Merriweather in the Weld case in July 2022.
¶ 11 A sentencing court generally “has discretion to impose a
sentence to be served concurrently with or consecutively to a
sentence already imposed” in another case. People v. Flower, 644
P.2d 64, 65 (Colo. App. 1981), aff’d, 658 P.2d 266 (Colo. 1983); see
also People v. Lucero, 772 P.2d 58, 59 n.1 (Colo. 1989) (approving
this language from Flower). Indeed, unless a statute strips a court
of its discretion “to sentence either concurrently or consecutively,” a
court is “required to exercise that discretion.” Marquez v. People,
2013 CO 58, ¶ 21.
¶ 12 The Weld district court was not statutorily stripped of its
discretion when it resentenced Merriweather in July 2022. To the
contrary, the district court was statutorily authorized to “consider
3 any sentencing alternative originally available” when resentencing
Merriweather after his termination from community corrections.
§ 18-1.3-301(1)(g), C.R.S. 2024. Thus, the Weld district court acted
within its discretion when it resentenced Merriweather in the Weld
case and ran that sentence concurrent to the sentence in the
Larimer case.
¶ 13 We are not persuaded otherwise by the People’s argument that
the plea stipulation in the Larimer case somehow divested the Weld
district court of its discretion when it resentenced Merriweather.
Sentencing courts are not bound by stipulations in a plea
agreement, let alone a plea agreement in a separate case in another
jurisdiction. See People v. Mazzarelli, 2019 CO 71, ¶ 20 (noting that
a sentencing court “is free to accept or reject” sentence
recommendations and that a court must “exercise independent
judgment in imposing a sentence” under a plea agreement). Thus,
the Larimer plea agreement did not restrict the district court’s
sentencing discretion in the Weld case.
¶ 14 We are equally unpersuaded by the People’s argument that
this case is analogous to People v. Spoto, 865 P.2d 907 (Colo. App.
1993). Spoto doesn’t apply because, in that case, the sentencing
4 court was not stripped of its discretion by the terms of a plea
agreement; rather, it was stripped of its discretion by the escape
statute that mandated a consecutive sentence when the defendant
was later resentenced for his original offense. Id. at 909. The
People point to no statute — and we are aware of none — that
limited the district court’s sentencing discretion in the Weld case.
¶ 15 Because the district court had discretion to impose a
concurrent sentence in the Weld case, we conclude that the
concurrent sentence imposed in July 2022 was legal.
C. The Court Lacked Jurisdiction to Increase the Sentence
¶ 16 We next consider whether the Weld district court had
jurisdiction to change the concurrent sentence to a consecutive
sentence.
¶ 17 During the July 2022 resentencing hearing, the parties agreed
that the sentence in the Weld case should run concurrent to the
sentence in the Larimer case. Indeed, the prosecutor confirmed
that the sentences were concurrent and said, “[W]e’re not asking to
revisit that.”
¶ 18 The People now argue that the concurrent sentence was based
on this “erroneous assumption.” While that may be true, when a
5 district court imposes a valid sentence, it loses jurisdiction to
change the sentence, except under limited circumstances specified
in Rule 35. People v. Wiedemer, 692 P.2d 327, 329 (Colo. App.
1984) (citing Smith v. Johns, 532 P.2d 49, 50 (Colo. 1975)),
abrogated on other grounds by Woo v. El Paso Cnty. Sheriff’s Off.,
2022 CO 56, ¶¶ 41-42; see also People v.
Free access — add to your briefcase to read the full text and ask questions with AI
22CA2203 Peo v Merriweather 07-17-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2203 Weld County District Court No. 20CR714 Honorable Allison J. Esser, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Devonte Jordan Merriweather,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Brown and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 17, 2025
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Devonte Jordan Merriweather, appeals the order
denying his Crim. P. 35(a) motion to correct an illegal sentence. We
reverse the order and remand the case with directions.
I. Background
¶2 In 2020, Merriweather pleaded guilty to attempted second
degree assault in this case — Weld County Case No. 20CR714 (the
Weld case). The district court sentenced him to four years in
community corrections.
¶3 Merriweather’s community corrections placement was later
terminated based on violations of the terms of his placement,
including new charges filed in Larimer County Case No. 21CR1916
(the Larimer case).
¶4 In April 2022, Merriweather pleaded guilty in the Larimer case
and stipulated to an eight-year sentence in the custody of the
Department of Corrections (DOC), to “run consecutive” to his
sentence in the Weld case. In May 2022, the Larimer district court
sentenced him to an eight-year DOC sentence, consecutive to the
sentence in the Weld case, as stipulated in the plea agreement.
¶5 A few months later, in July 2022, the district court
resentenced Merriweather in the Weld case. It imposed a four-year
1 DOC sentence and ordered the sentence to run concurrent with the
sentence in the Larimer case. Merriweather immediately began
serving his sentence.
¶6 After the DOC sought clarification about Merriweather’s
sentence, the Weld district court ordered a new sentencing hearing.
At that hearing , the court concluded that because Merriweather
had stipulated to a consecutive sentence in the Larimer case, it
didn’t “have any discretion” to run the sentence in the Weld case
concurrent to the sentence in the Larimer case. The court then
issued an amended mittimus running the sentence in the Weld case
consecutive to the sentence in the Larimer case.
¶7 Merriweather filed a Rule 35(a) motion challenging the legality
of the consecutive sentence. The court denied the motion.
II. Discussion
¶8 Merriweather appeals the order denying his Rule 35(a) motion,
arguing that the Weld district court had no authority to increase his
concurrent sentence to a consecutive sentence.
2 A. Standard of Review
¶9 We review de novo the legality of a sentence and the summary
denial of a Rule 35(a) motion. People v. Tennyson, 2023 COA 2, ¶ 9,
aff’d, 2025 CO 31.
B. The Concurrent Sentence Was Legal
¶ 10 First, we consider whether the Weld district court had
authority to impose a concurrent sentence when it resentenced
Merriweather in the Weld case in July 2022.
¶ 11 A sentencing court generally “has discretion to impose a
sentence to be served concurrently with or consecutively to a
sentence already imposed” in another case. People v. Flower, 644
P.2d 64, 65 (Colo. App. 1981), aff’d, 658 P.2d 266 (Colo. 1983); see
also People v. Lucero, 772 P.2d 58, 59 n.1 (Colo. 1989) (approving
this language from Flower). Indeed, unless a statute strips a court
of its discretion “to sentence either concurrently or consecutively,” a
court is “required to exercise that discretion.” Marquez v. People,
2013 CO 58, ¶ 21.
¶ 12 The Weld district court was not statutorily stripped of its
discretion when it resentenced Merriweather in July 2022. To the
contrary, the district court was statutorily authorized to “consider
3 any sentencing alternative originally available” when resentencing
Merriweather after his termination from community corrections.
§ 18-1.3-301(1)(g), C.R.S. 2024. Thus, the Weld district court acted
within its discretion when it resentenced Merriweather in the Weld
case and ran that sentence concurrent to the sentence in the
Larimer case.
¶ 13 We are not persuaded otherwise by the People’s argument that
the plea stipulation in the Larimer case somehow divested the Weld
district court of its discretion when it resentenced Merriweather.
Sentencing courts are not bound by stipulations in a plea
agreement, let alone a plea agreement in a separate case in another
jurisdiction. See People v. Mazzarelli, 2019 CO 71, ¶ 20 (noting that
a sentencing court “is free to accept or reject” sentence
recommendations and that a court must “exercise independent
judgment in imposing a sentence” under a plea agreement). Thus,
the Larimer plea agreement did not restrict the district court’s
sentencing discretion in the Weld case.
¶ 14 We are equally unpersuaded by the People’s argument that
this case is analogous to People v. Spoto, 865 P.2d 907 (Colo. App.
1993). Spoto doesn’t apply because, in that case, the sentencing
4 court was not stripped of its discretion by the terms of a plea
agreement; rather, it was stripped of its discretion by the escape
statute that mandated a consecutive sentence when the defendant
was later resentenced for his original offense. Id. at 909. The
People point to no statute — and we are aware of none — that
limited the district court’s sentencing discretion in the Weld case.
¶ 15 Because the district court had discretion to impose a
concurrent sentence in the Weld case, we conclude that the
concurrent sentence imposed in July 2022 was legal.
C. The Court Lacked Jurisdiction to Increase the Sentence
¶ 16 We next consider whether the Weld district court had
jurisdiction to change the concurrent sentence to a consecutive
sentence.
¶ 17 During the July 2022 resentencing hearing, the parties agreed
that the sentence in the Weld case should run concurrent to the
sentence in the Larimer case. Indeed, the prosecutor confirmed
that the sentences were concurrent and said, “[W]e’re not asking to
revisit that.”
¶ 18 The People now argue that the concurrent sentence was based
on this “erroneous assumption.” While that may be true, when a
5 district court imposes a valid sentence, it loses jurisdiction to
change the sentence, except under limited circumstances specified
in Rule 35. People v. Wiedemer, 692 P.2d 327, 329 (Colo. App.
1984) (citing Smith v. Johns, 532 P.2d 49, 50 (Colo. 1975)),
abrogated on other grounds by Woo v. El Paso Cnty. Sheriff’s Off.,
2022 CO 56, ¶¶ 41-42; see also People v. Heredia, 122 P.3d 1041,
1043 (Colo. App. 2005).
¶ 19 More specifically, under Rule 35, a court may correct an illegal
or unconstitutional sentence. See Crim. P. 35(a), (c)(2)(I). But a
court “may not increase a lawful sentence after the defendant has
begun serving it.” People v. Sandoval, 974 P.2d 1012, 1015 (Colo.
App. 1998). And “[c]hanging a sentence from concurrent to
consecutive constitutes an increase in the sentence.” Id.; cf. Crim.
P. 35(b) (permitting a court to reduce a sentence on its own
initiative). Such a sentence increase “is impermissible even if the
court alters the sentence solely to conform to or clarify its original
intent.” Sandoval, 974 P.2d at 1015; accord People v. Sellers, 2022
COA 102, ¶ 35, aff’d on other grounds, 2024 CO 64; cf. People v.
Wood, 2019 CO 7, ¶ 43 (noting that a district court may not
substantively amend a sentence under Crim. P. 36).
6 ¶ 20 Because the Weld district court imposed a legal concurrent
sentence in July 2022, and because Merriweather was serving that
sentence, the district court did not have jurisdiction to later change
the concurrent sentence to a consecutive sentence. We therefore
must reverse the order denying Merriweather’s Rule 35(a) motion.
People v. Dillon, 655 P.2d 841, 844 (Colo. 1982) (“[A]ny action taken
by a court when it lacked jurisdiction is a nullity.”).
III. Disposition
¶ 21 The order is reversed, and the case is remanded to the district
court to vacate the consecutive sentence and reinstate the
concurrent sentence.
JUDGE BROWN and JUDGE SCHOCK concur.