Peo v. Whistler

• Court: Colorado Court of Appeals
• Decided: September 18, 2025
• Docket: 24CA0596
• Status: Unpublished

Opinion

24CA0596 Peo v Whistler 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0596 El Paso County District Court No. 20CR6522 Honorable David Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy John Whistler,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE J. JONES Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025

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

Westerhorstmann Law, LLC, Kristin Westerhorstmann, Grand Junction, Colorado, for Defendant-Appellant ¶1 Defendant, Timothy John Whistler, appeals the district court’s

order revoking his probation and resentencing him to prison. We

affirm.

¶2 In August 2021, Whistler pleaded guilty to vehicular eluding in

exchange for the dismissal of other charges in this case, the

dismissal of a separate criminal case, and a stipulated sentence of

thirty-six months on probation. Two months later, Whistler’s

probation officer filed a complaint to revoke his probation, alleging

that Whistler had violated his probation conditions. On May 4,

2023, Whistler agreed to admit the violations in exchange for the

revocation and reimposition of the thirty-six-month probation

sentence.

¶3 On May 15, 2023, the probation officer filed another complaint

to revoke Whistler’s probation. The officer alleged that Whistler had

violated his probation conditions by being charged with felony

offenses in case number 23CR2169. The court appointed alternate

defense counsel (ADC) to represent Whistler in both the probation

revocation matter in this case and in 23CR2169. Eventually, the

probation officer withdrew the May 15, 2023, revocation complaint

1 because Whistler allegedly committed the new offenses in

23CR2169 prior to his May 4, 2023, revocation and resentencing.

¶4 In October 2023, the probation officer filed another complaint

to revoke Whistler’s probation, alleging that Whistler had violated

his probation conditions. At a providency hearing, ADC advised the

district court that, as part of a global disposition, Whistler agreed to

admit the probation violation allegations in this case and to plead

guilty to a felony offense in 23CR2169.1 In exchange, the

prosecution agreed to dismiss another case and to stipulate that, in

this case, Whistler would receive a two-year sentence to be served

concurrently with the sentence imposed in 23CR2169. The court

advised Whistler that, pursuant to the agreement, his probation

sentence in this case would be revoked. The court then answered

Whistler’s questions regarding the resentencing options after

revocation.

¶5 At the sentencing hearing, the district court revoked Whistler’s

probation sentence and, despite the stipulated two-year sentence,

1 We take judicial notice of the plea agreement in 23CR2169. See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).

2 resentenced him to one year in prison to be served concurrently

with the four-year prison sentence imposed in 23CR2169.

¶6 Whistler contends that the district court erred by failing to (1)

provide him with the statutorily required advisements for probation

revocation proceedings, see §§ 16-7-207, 16-11-206, C.R.S. 2024;

(2) formally appoint ADC to represent him in the underlying

revocation proceeding; and (3) ask him whether he admitted or

denied violating his probation conditions. He argues that “the

failure to provide [him] with virtually any of the procedural

protections he was entitled to by statute and due process of law

substantially undermines confidence in the fairness of the

probation proceeding.”

¶7 Because Whistler didn’t raise these issues in the district court,

we will only reverse if the alleged error was plain. See Hagos v.

People, 2012 CO 63, ¶ 14; People v. Hernandez, 2019 COA 111, ¶

11 (unpreserved due process claim reviewed for plain error). Plain

error is error that is obvious and substantial. Hagos, ¶ 14. “An

error is obvious if it is ‘so clear-cut’ that ‘a trial judge should be able

to avoid it without benefit of objection.’” People v. Ramcharan, 2024

COA 110, ¶ 63 (quoting People v. Crabtree, 2024 CO 40M, ¶ 42). To

3 be substantial in this context, the error must have so undermined

the fundamental fairness of the proceeding as to cast serious doubt

on the reliability of the revocation. See People v. Buckner, 2022

COA 14, ¶ 43.

¶8 Assuming that the district court erred and that the errors were

obvious, we aren’t persuaded by Whistler’s bald assertion that the

errors, by themselves, substantially undermine confidence in the

fairness of the revocation proceeding. See Hagos, ¶ 10 (Only

“structural errors . . . require automatic reversal without

individualized analysis of how the error impairs the reliability of the

judgment of conviction.”).

¶9 Whistler doesn’t assert that, had he been properly advised, he

wouldn’t have agreed to admit to the probation violation allegations

as a term of his global disposition and would have instead

requested a hearing on the revocation complaint. Nor does he

explain why the lack of a formal reappointment of counsel in this

matter undermined the fundamental fairness of the revocation

proceeding. Indeed, the record reflects that, despite the lack of a

formal appointment of counsel, ADC secured a global disposition in

4 all of Whistler’s cases and that Whistler was satisfied with counsel’s

representation.

¶ 10 Finally, we acknowledge that, during the hearings that

disposed of Whistler’s three pending cases, the court didn’t

explicitly ask Whistler whether he wanted to admit or deny the

probation violation allegations in this case. It appears that the

court relied on the parties’ representation that, as a term of the

global disposition, Whistler would admit the probation violation

allegations. But Whistler doesn’t allege that, had the court asked

him whether he admitted or denied the probation violation

allegations, he would have breached that term of the global

disposition and denied violating his probation conditions.

¶ 11 Accordingly, we conclude that Whistler hasn’t established that

the court’s asserted errors so undermined the fundamental fairness

of the revocation proceeding as to cast serious doubt on the

reliability of the revocation.

¶ 12 The order is affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.