Peo v. Wakefield

• Court: Colorado Court of Appeals
• Decided: December 19, 2024
• Docket: 24CA0340
• Status: Unpublished

Opinion

24CA0340 Peo v Wakefield 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0340 City and County of Denver District Court No. 14CR1513 Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Wakefield,

Defendant-Appellant.

ORDER AFFIRMED

Division VII Opinion by JUDGE PAWAR Tow and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Timothy Wakefield, Pro Se ¶1 Defendant, Timothy Wakefield, appeals the district court’s

order denying his Crim. P. 35(b) motions for reduction of his

sentence. We affirm.

I. Background

¶2 Wakefield fatally shot his longtime friend, Christopher

Demarco, who was visiting from out of state. Although Wakefield

insisted that he was acting in self-defense and that he didn’t mean

to shoot Demarco, multiple eyewitnesses disputed his version of the

shooting. The prosecution charged him with first degree murder.

¶3 At Wakefield’s first trial in 2015, a jury convicted him of the

lesser included offense of second degree murder. The district court

imposed the maximum sentence in the aggravated range — forty-

eight years in the custody of the Department of Corrections (DOC).

See § 18-1.3-401(1)(a)(V)(A), (8)(a), C.R.S. 2024. On appeal, a

division of this court reversed Wakefield’s conviction and remanded

the case for a new trial due to the district court’s failure to instruct

the jury on self-defense. People v. Wakefield, 2018 COA 37, ¶ 44;

see id. at ¶ 16 (listing the evidence at trial supporting such an

instruction).

1 ¶4 At Wakefield’s second trial in 2019, a jury rejected the self-

defense theory and again convicted him of second degree murder. A

different judge presided over the second trial, but the court reached

the same conclusion regarding Wakefield’s sentence — it, too,

imposed a forty-eight-year DOC sentence. A division of this court

affirmed the judgment. People v. Wakefield, (Colo. App. No.

19CA1493, Nov. 23, 2022) (not published pursuant to C.A.R. 35(e)).

¶5 In two separate and nearly simultaneous motions, both

Wakefield and his appointed counsel timely moved for a reduction

of sentence under Crim. P. 35(b). Both motions generally argued

that Wakefield was a worthy candidate for sentence reduction due

to his progress in prison, his lack of a significant criminal record,

and his allegedly low risk for recidivism. The district court — a

third judge to consider Wakefield’s sentence — requested a

response from the prosecutor. After considering the court file,

motions, supporting materials (including several exhibits

demonstrating Wakefield’s progress in prison), and the applicable

law, the court denied the motions in a written order.

2 II. Discussion

¶6 Wakefield, representing himself, contends that the district

court abused its discretion by failing to consider the fairness of his

sentence, mitigation evidence, and whether the sentence was

consistent with People v. Opana, 2017 CO 56, ¶ 3. We perceive no

abuse of discretion.

A. Standard of Review and Applicable Law

¶7 We review the district court’s denial of a Crim. P. 35(b) motion

for an abuse of discretion. See People v. Dunlap, 36 P.3d 778, 782

(Colo. 2001). A court abuses its discretion when it misconstrues or

misapplies the law. People v. Hunsaker, 2013 COA 5, ¶ 25, aff’d,

2015 CO 46.

¶8 An order denying a Crim. P. 35(b) motion doesn’t require

findings of fact; rather, the district court “should provide a

statement of the basic reasons in support of its ruling.” Dunlap, 36

P.3d at 782. “Only if the [district] court has refused to consider any

information in mitigation and fails to make findings in support of its

decision is there a failure by the [district] court to exercise its

judicial discretion.” People v. Busch, 835 P.2d 582, 583 (Colo. App.

1992). When reviewing the denial of a Crim. P. 35(b) motion, we do

3 not consider the propriety of the sentence. Id.; People v. Barnett,

2020 COA 167, ¶ 31.

B. Application

¶9 As we read the district court’s order, the court explained its

sentencing decision with the following findings. The court found

the nature of Wakefield’s crime to be grave and serious because it

was an inexplicable and unprovoked deadly act perpetrated against

a friend. The court found an aggravating circumstance, in that

Wakefield did not call 911 or attempt to aid Demarco after shooting

him. It applauded Wakefield’s efforts in prison but disagreed with

Wakefield’s assertion that his criminal record was so insignificant

as to be unconcerning. And it observed that Wakefield has never

accepted full responsibility for second degree murder; he continues

to characterize the shooting as an accident or as justified by self-

defense.

¶ 10 Considering these findings, the court concluded that

Wakefield’s forty-eight-year DOC sentence continues to be fair, just,

and appropriate, even in light of his exemplary conduct in prison

since that time. The court’s order reflects an evaluation of the

fairness of Wakefield’s sentence and consideration of the mitigating

4 information. We conclude that the district court properly exercised

its discretion.

¶ 11 We do not consider Wakefield’s argument that his sentence is

inconsistent with the sentence the defendant received in Opana.

This argument was not presented to the district court in either of

his Crim. P. 35(b) motions. See DePineda v. Price, 915 P.2d 1278,

1280 (Colo. 1996) (“Issues not raised before the district court in a

motion for postconviction relief will not be considered on appeal of

the denial of that motion.”).

III. Disposition

¶ 12 The order is affirmed.

JUDGE TOW and JUDGE SCHUTZ concur.