People v. Heredia

122 P.3d 1041, 2005 WL 1176067
CourtColorado Court of Appeals
DecidedNovember 7, 2005
Docket04CA0115
StatusPublished
Cited by104 cases

This text of 122 P.3d 1041 (People v. Heredia) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Heredia, 122 P.3d 1041, 2005 WL 1176067 (Colo. Ct. App. 2005).

Opinions

TAUBMAN, J.

Defendant, Jose Albert Heredia, appeals the trial court’s order granting the People’s Crim. P. 35(a) motion to correct Heredia’s sentence to impose consecutive terms of mandatory parole. We vacate the order and remand.

I. Background

In 1999, Heredia was sentenced to three years in the Department of Corrections (DOC) for first degree criminal trespass and a consecutive two years in DOC for possessing a dangerous weapon. The applicable mandatory parole period was two years. Heredia served his time in DOC and was released on parole.

[1043]*1043In September 2001, Heredia failed to report to a shelter as required by the terms of his parole. In December 2001, the state charged him with escape from custody, pursuant to §§ 17-27.5-104 and 18-8-208(2), C.R.S.2004, a class three felony.

In August 2001, before Heredia’s parole violation, a division of this court held that sentencing a defendant to two periods of mandatory parole violated § 18-1.3-401(l)(a)(V)(E), C.R.S.2004 (formerly § 18-l-105(l)(a)(V)(E)), which governs consecutive sentences, and therefore, the mandatory parole period imposed on an escape charge should be served concurrently with the mandatory parole period remaining on the underlying charge. People v. Luther, 43 P.3d 660 (Colo.App.2001)(Lwífeer I), rev’d, 58 P.3d 1013 (Colo.2002)(Lwífeer II). Certiorari was granted in Luther I on March 18,2002.

In May 2002, while certiorari was pending in Luther I, Heredia pleaded guilty to attempted escape pursuant to § 18-8-208.1, C.R.S.2004. In the plea agreement, Heredia stipulated to a sentence of one year in DOC with no reconsideration to be served consecutively to any sentence he was currently serving. The offense was a class four felony and carried a mandatory parole period of three years.

Heredia filed a Crim. P. 35(c) motion to amend the mittimus to reflect concurrent mandatory parole terms in compliance with Luther I. In October 2002, the trial court granted the motion and amended the mitti-mus to direct that Heredia’s mandatory parole sentence for the attempted escape charge was to be served concurrently with the remainder of his mandatory parole for the underlying charge. The People did not appeal this modification.

In November 2002, the supreme court reversed the decision in Luther I, holding that a parole revocation reincarceration was not a period of mandatory parole or a sentence that carried parole, and therefore, § 18-1.3-401(l)(a)(V)(E) did not apply. Luther II, supra.

In September 2003, the People filed a Crim. P. 35(a) motion to correct an illegal sentence based upon Luther II. In December 2003, the trial court granted the motion and ordered Heredia to serve his underlying sentence, his mandatory parole revocation period, his sentence for attempted escape, and finally, the period of mandatory parole associated with the attempted escape charge.

Heredia appealed in January 2004, and the following day, he objected in the trial court to its ruling based on Luther II.

II. Jurisdiction

Heredia contends that the trial court lacked jurisdiction to reinstate his original sentence because the modification of his sentence under Luther I was legal, and therefore, the trial court lost jurisdiction because the modification became a final judgment. The People assert that Heredia’s sentence based on Luther I became illegal as a result of Luther II, and thus, the trial court was correct in modifying the sentence pursuant to Crim. P. 35(a). We agree with Heredia, but on slightly different grounds.

We first consider and reject the People’s assertion that we should not address Heredia’s claims because they were not raised in the trial court before Heredia filed his notice of appeal. Jurisdictional issues may be raised at any time, including for the first time on appeal. People v. Torkelson, 22 P.3d 560 (Colo.App.2000)(citing People v. Hinchman, 196 Colo. 526, 589 P.2d 917 (1978)).

“[A] trial court loses jurisdiction upon imposition of a valid sentence except under circumstances specified in Crim. P. 35.” People v. Mortensen, 856 P.2d 45, 47 (Colo.App.1993). Thus, we must determine whether Heredia’s sentence was valid, and, if so, whether the People are entitled to relief under Crim. P. 35.

A. Validity of Heredia’s Sentence

We conclude that under Mortensen, Heredia’s sentence was valid.

In Mortensen, the defendant received a deferred judgment and sentence. Subsequently, the deferred judgment and sentence were revoked, and the defendant was resen-tenced to four years in a community corree-[1044]*1044tions facility. After serving approximately fourteen months in the facility, he was transferred to a nonresidential program. Ultimately, his sentence to community corrections was revoked, and the court resentenced him to four years incarceration.

The defendant spent a total of 468 days in the community corrections program, which included both residential and nonresidential time. He argued that he should be given presentence confinement credit for all 468 days under People v. Hoecher, 804 P.2d 230 (Colo.App.1990)(holding that defendant was entitled to credit for both residential and nonresidential community corrections time), rev’d, 822 P.2d 8 (Colo.1991).

Subsequently, the supreme court reversed Hoecher. The People moved to modify the defendant’s sentence, and the trial court granted the motion. The trial court issued an order reducing the defendant’s presen-tence confinement credits from 468 to 198 days.

On appeal, a division of this court concluded that the trial court lost jurisdiction once it imposed a valid sentence, and therefore, the trial court had exceeded its jurisdiction when it modified the defendant’s otherwise valid sentence. Mortensen, supra; see also People v. Janice, 852 P.2d 1271 (Colo.App.1992)(where trial court’s order granting defendant’s Crim. P. 35(c) motion became final, it did not retain jurisdiction to reconsider its ruling based upon subsequent court of appeals decision; trial court’s final order could only be amended by motion under C.R.C.P. 59 or 60).

Here, Heredia’s underlying convictions for criminal trespass and possession of a dangerous weapon were valid. The People did not assert in their Crim. P. 35(a) motion that Heredia’s sentences for the underlying convictions were illegal in any way.

Similarly, neither Heredia nor the People asserted that Heredia’s sentence for attempted escape was illegal. As noted, Heredia pleaded guilty to attempted escape pursuant to § 18-8-208.1, a class four felony with a presumptive sentencing range of two to six years and a three-year period of mandatory parole. Section 18-1.3-401(l)(a)(V)(A). Therefore, the mitigated sentence that Here-dia stipulated to in his plea agreement, a consecutive one-year term in DOC and three years of mandatory parole, was consistent with his plea and complied with the statutory presumptive sentencing range. See

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People v. Heredia
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Cite This Page — Counsel Stack

Bluebook (online)
122 P.3d 1041, 2005 WL 1176067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-heredia-coloctapp-2005.