The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY October 10, 2024
2024COA111
No. 23CA0521, People v. Hernandez-Escajeda — Criminal Law — Appeals — Resentencing on Remand
A division of the court of appeals holds that a district court
generally has the inherent authority to resentence on a defendant’s
remaining convictions on remand following the vacatur of a
conviction that resulted in a reduced aggregate sentence. The
division also concludes that a district court has the authority to
take actions on remand that are not specifically directed by the
appellate mandate but do not contravene the mandate. COLORADO COURT OF APPEALS 2024COA111
Court of Appeals No. 23CA0521 Jefferson County District Court No. 17CR2800 Honorable Russell Klein, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Octavio Hernandez-Escajeda,
Defendant-Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE NAVARRO Dunn and Gomez, JJ., concur
Announced October 10, 2024
Alexis King, District Attorney, Rebecca A. Adams, Senior Appellate Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee ¶1 The prosecution appeals the district court’s order concluding
that it lacked authority to resentence defendant, Octavio
Hernandez-Escajeda, because of the remand instructions in People
v. Hernandez-Escajeda, (Colo. App. No. 19CA1519, July 7, 2022)
(not published pursuant to C.A.R. 35(e)) (Hernandez-Escajeda I).
We disagree with the district court and, in doing so, address a
district court’s inherent authority to resentence on remand absent
contrary directions from an appellate court. Therefore, we reverse
the order and remand for further proceedings consistent with this
opinion.
I. Background
¶2 The prosecution initially charged Hernandez-Escajeda with
twenty-four counts — including burglary, kidnapping, and
assault — involving three victims. The prosecution later added two
sexual assault charges.
¶3 In exchange for the dismissal of all those counts, Hernandez-
Escajeda pleaded guilty to added counts of first degree burglary,
first degree assault, and a crime of violence sentence enhancer that
applied to both the burglary and assault counts. Hernandez-
Escajeda affirmed that, among other things, he understood that
1 (1) the sentencing range for each of the two substantive counts was
ten to thirty-two years in the custody of the Department of
Corrections (DOC), and (2) those two sentences would run
consecutively. Hernandez-Escajeda I, slip op. at ¶ 2.
¶4 The district court sentenced Hernandez-Escajeda to two
consecutive DOC sentences of twenty-two years each, for an
aggregate sentence of forty-four years.
¶5 Hernandez-Escajeda did not directly appeal the judgment of
conviction. Instead, he filed a Crim. P. 35(b) motion for sentence
reconsideration, which the court denied, explaining that
“sentencing decisions are made very carefully after full
consideration of all relevant circumstances. The [c]ourt finds that
circumstances have not changed sufficiently since the time of
sentencing until the present date to warrant this [c]ourt to
reconsider the previously imposed sentence.”
¶6 Later, Hernandez-Escajeda filed a pro se Crim. P. 35(c) motion
for postconviction relief. The district court appointed counsel for
him, and postconviction counsel filed two supplemental
postconviction motions on his behalf. As relevant here, Hernandez-
Escajeda claimed that (1) his convictions and consecutive sentences
2 for first degree burglary and first degree assault violated his
constitutional right to be free from double jeopardy, and (2) his
convictions and sentences on those two counts were illegal because
they were supported by identical facts.
¶7 The district court summarily denied the postconviction
motion. But on appeal, a division of this court concluded that
Hernandez-Escajeda’s convictions for first degree burglary and first
degree assault must merge. Hernandez-Escajeda, ¶¶ 37-41.
Consequently, the division affirmed in part, reversed in part, and
remanded with directions. In the portion of the opinion containing
the remand instructions, the division “remanded to the district
court with directions to vacate Hernandez-Escajeda’s conviction for
first degree assault and correct the mittimus accordingly.” Id. at
¶ 42.
¶8 On remand, the district court set a hearing to consider the
division’s opinion and mandate. In response (and before that
hearing), the prosecution requested resentencing in accordance
with People v. Johnson, 2015 CO 70. Hernandez-Escajeda objected,
asserting that the court could not resentence him on the remaining
substantive count (first degree burglary) but could only perform the
3 actions specifically mentioned in the remand language in
Hernandez-Escajeda I.
¶9 At a hearing on the issue, the district court discussed Johnson
but ultimately agreed with the defense’s position. Specifically, the
court emphasized that the division in Hernandez-Escajeda I did not
remand for “resentencing” but instead remanded with directions to
vacate the first degree assault conviction and “correct the mittimus
accordingly.” Therefore, the court believed that the only action it
could take on remand was to correct the mittimus by vacating the
first degree assault conviction.
¶ 10 The court then issued an amended mittimus merging
Hernandez-Escajeda’s first degree assault conviction into his first
degree burglary conviction. So all that remains on the mittimus is
the first degree burglary conviction, the crime of violence sentence
enhancer, and the twenty-two-year DOC sentence on the first
degree burglary conviction.
II. Analysis
¶ 11 We have jurisdiction to hear the prosecution’s appeal because,
as both parties recognize, whether the district court had authority
to resentence Hernandez-Escajeda on remand from
4 Hernandez-Escajeda I presents a question of law. See
§ 16-12-102(1), C.R.S. 2024; People v. Madrid, 2023 CO 12, ¶ 37.
¶ 12 We review questions of law de novo. Madrid, ¶ 37. We
conclude that reversal is warranted. In our analysis, we address
the following issues: (1) whether, as a rule, a district court has the
inherent authority to resentence a defendant under circumstances
similar to those here; (2) if so, whether the court’s authority was
limited by the fact that the successful appeal in
Hernandez-Escajeda I occurred in the postconviction context; and
(3) the impact of the particular remand instructions in
A. The District Court’s Inherent Authority to Resentence On Remand
¶ 13 When moving for resentencing, the prosecution relied on the
supreme court’s decision in Johnson, which addressed a district
court’s resentencing authority following an appellate remand.
There, a jury found the defendant guilty of sexual assault, first
degree kidnapping, and possession of a controlled substance.
Johnson, ¶ 4. He was sentenced to concurrent DOC sentences of,
respectively, twenty years to life, twenty years, and six years (for an
5 aggregate sentence of twenty years to life). Id. On direct appeal, a
division of this court concluded that the district court had erred by
rejecting, after first accepting, a plea agreement under which the
defendant had pleaded guilty to only the possession charge. Id. at
¶ 5. The division reversed the convictions, vacated the sentences,
and remanded for the district court to reinstate the defendant’s
guilty plea to possession of a controlled substance and to sentence
him on that conviction. Id. at ¶¶ 1, 5.
¶ 14 On remand, the district court imposed a sentence of twelve
years for possession of a controlled substance — double the original
sentence on that conviction. Id. at ¶ 6. The defendant appealed
again, claiming, among other things, that the increased sentence
violated his due process rights. Id. at ¶ 7. Agreeing with him, a
division of this court applied a presumption of vindictiveness to the
increased sentence and (because no new information justified the
new sentence) concluded that there was a reasonable likelihood
that the sentence was the result of actual vindictiveness for the
defendant’s successful first appeal. Id.
¶ 15 The supreme court granted review to address the scope of the
district court’s resentencing authority under these circumstances —
6 that is, to consider “whether the [district] court violated [the
defendant’s] statutory and constitutional rights by increasing his
sentence on the remaining conviction on remand following his
successful appeal on his other convictions.” Id. at ¶ 1. The
supreme court pointed out that, “[a]s a general matter, [district]
court judges possess significant discretion in determining an
appropriate sentence,” including “during a resentencing on
remand.” Id. at ¶ 21. Therefore, to protect a district court’s
discretion during a resentencing on remand, “the presumption of
vindictiveness is a narrow one.” Id.
¶ 16 The supreme court adopted the “aggregate approach,” under
which the presumption of vindictiveness applies “where changes to
the defendant’s sentence on remand cause the aggregate total
sentence to increase as compared to the original aggregate
sentence.” Id. at ¶ 25 (emphasis added). See generally id. at ¶¶ 24-
37. In approving that approach, the supreme court relied in part on
People v. Woellhaf, 199 P.3d 27 (Colo. App. 2007), a case where the
supreme court had concluded that some of the defendant’s
convictions must merge and remanded for resentencing, after which
the defendant argued in a second appeal that the new sentence
7 violated his due process rights. See Johnson, ¶¶ 27-28. A division
of this court held that the presumption of vindictiveness did not
apply to the new sentence because the aggregate period of
incarceration did not increase from the original sentence to the new
sentence on remand. See Woellhaf, 199 P.3d at 31-32.
¶ 17 The supreme court also discussed with approval an opinion
from the Fifth Circuit Court of Appeals, in which that court said,
“the aggregate approach best reflects the realities faced by district
court judges who sentence a defendant on related counts of an
indictment. Sentencing is a fact-sensitive exercise that requires
district [court] judges to consider a wide array of factors when
putting together a ‘sentencing package.’” Johnson, ¶ 28 (quoting
United States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997)).
¶ 18 The supreme court explained that the presumption of
vindictiveness did not apply in Johnson because the defendant’s
aggregate sentence after resentencing did not exceed his original
aggregate sentence. Id. at ¶ 39. The court then concluded that the
defendant failed to prove that the district court acted out of actual
vindictiveness. Id. at ¶¶ 42-43.
8 ¶ 19 Although the supreme court ultimately resolved a due process
claim alleging vindictive resentencing, we conclude that its
reasoning recognizes that, following a defendant’s “successful
appeal on his other convictions,” a district court has the inherent
authority to resentence the defendant on convictions that remain on
remand, at least where the defendant’s initial appeal results in a
reduced aggregate sentence. Id. at ¶¶ 1, 37. True, the remand
instructions at issue in Johnson had directed the district court to
resentence, but we see nothing in the supreme court’s analysis that
makes this fact essential to a district court’s resentencing
authority.1 (We say more on this point below in Part II.B.)
Consistent with our view, a division of this court has cited Johnson
for the proposition that, “[i]n multicount cases, judges typically
craft sentences on the various counts as part of an overall
sentencing scheme, but when a count is vacated and that scheme
unravels, they should have the discretion to reevaluate the
1 We note that resentencing was necessary in People v. Johnson,
2015 CO 70, because the first division of this court had reversed and vacated the entire judgment arising from the jury verdicts, including all the sentences. For this reason, we presume, the division explicitly addressed resentencing.
9 underlying facts and sentences on the remaining counts.” People v.
Johnson, 2016 COA 15, ¶ 25 (involving a different defendant with
the surname Johnson).
¶ 20 We are not persuaded otherwise by Hernandez-Escajeda’s
suggestion that, absent a successful postconviction proceeding, a
district court’s resentencing authority is necessarily extinguished
after a conviction and sentence have become final. He says his
sentence for first degree burglary is “not subject to resentencing on
remand” because it is final and valid, and he cites People v. Heredia
for the proposition that “a [district] court loses jurisdiction upon
imposition of a valid sentence except under circumstances specified
in Crim. P. 35.” 122 P.3d 1041, 1043 (Colo. App. 2005) (alteration
omitted) (quoting People v. Mortensen, 856 P.2d 45, 47 (Colo. App.
1993)). This proposition is consistent with the general rule that a
judgment of conviction and sentence becomes final (1) if a
defendant does not pursue a direct appeal or (2) on the conclusion
of a direct appeal affirming the judgment. See Hunsaker v. People,
2021 CO 83, ¶¶ 28, 36.
¶ 21 As Heredia recognizes, however, a Rule 35 motion may disturb
the finality of a judgment, and it did so here. When the division in
10 Hernandez-Escajeda I vacated one of Hernandez-Escajeda’s
convictions and remanded for correction of the mittimus, the
mittimus reflecting the original judgment of conviction could no
longer stand. See Woellhaf, 199 P.3d at 31 (“Where, as here, a
defendant challenges his or her judgment of conviction and entire
sentencing plan, the defendant loses any expectation of finality of
his or her sentences.”). As part of the remand proceedings, the
prosecution requested resentencing on the remaining substantive
conviction, and the district court addressed this request before
amending the mittimus. In other words, the prosecution’s request
was part and parcel of the postconviction proceedings, the related
appeal, and the remand.
¶ 22 Our conclusion is supported by federal case law indicating
that, in the context of a successful postconviction motion to vacate
a conviction, a district court retains the discretion to resentence the
defendant on any remaining convictions. See United States v.
Mixon, 115 F.3d 900, 901-03 (11th Cir. 1997); United States v.
Harrison, 113 F.3d 135, 137 (8th Cir. 1997); United States v. Davis,
112 F.3d 118, 123 (3d Cir. 1997); United States v. Hillary, 106 F.3d
1170, 1171-73 (4th Cir. 1997).
11 B. The Remand Instructions in Hernandez-Escajeda I
¶ 23 Having concluded that a district court generally has inherent
authority to resentence on remaining convictions after an appellate
mandate vacates a conviction, we now address whether, in this
case, the district court’s authority on remand was limited solely to
taking the actions specifically directed by the Hernandez-Escajeda I
division — namely, correcting the mittimus by vacating the first
degree assault conviction. We conclude that it was not.
¶ 24 The division’s direction in Hernandez-Escajeda I to perform a
particular action did not amount to a prohibition on any other
action that the district court had the authority to perform on
remand, provided that such other action did not conflict with the
remand instructions. See Oster v. Baack, 2015 COA 39, ¶ 15
(“Although a district court must follow the appellate court mandate
in subsequent proceedings on remand, it may entertain additional
motions that do not, expressly or by necessary implication,
contravene the mandate.”) (citation omitted). That the division in
Hernandez-Escajeda I did not expressly direct the district court to
resentence Hernandez-Escajeda on the remaining substantive count
did not limit the court’s authority to do so. Based on the reasoning
12 in Johnson, 2015 CO 70, we conclude that the district court had
that inherent authority. Moreover, federal cases support our
conclusion. See United States v. Hicks, 146 F.3d 1198, 1202 (10th
Cir. 1998) (“[A]fter we vacate a count of conviction that is part of a
multi-count indictment, a district court ‘possesses the inherent
discretionary power’ to resentence a defendant on the remaining
counts de novo unless we impose specific limits on the court’s
authority to resentence.”) (citation omitted); United States v. Shue,
825 F.2d 1111, 1114 (7th Cir. 1987) (“[D]espite the previous panel’s
failure to vacate explicitly the sentencing package and remand for
resentencing, we hold that the district court had the authority to
reevaluate the sentencing package in light of the changed
circumstances and resentence the defendant . . . .”).
¶ 25 In arguing to the contrary, Hernandez-Escajeda relies on other
cases, like Hernandez-Escajeda I, in which Colorado appellate
courts (1) concluded that merger was required on certain
convictions and (2) remanded for correction of the mittimus without
mentioning the possibility of resentencing. For two reasons, we
think his reliance on those cases is misplaced.
13 ¶ 26 First, the question whether resentencing on the remaining
convictions could occur on remand was neither asked nor answered
in those cases. Hence, those cases do not inform our resolution of
the issue here.
¶ 27 Second, in those cases, the merger did not affect the
defendant’s total aggregate sentence. See, e.g., Whiteaker v. People,
2024 CO 25, ¶¶ 4, 30 (reversing and remanding for the district
court to amend the mittimus to reflect the merger of two
convictions, without mentioning resentencing, where the three-year
probationary sentences on each count were imposed concurrently);
Friend v. People, 2018 CO 90, ¶¶ 7-8, 49 (reversing and remanding
for the district court to amend the mittimus to reflect the merger of
convictions, without mentioning resentencing, where the merger did
not affect the defendant’s operative sentence of life in prison
without the possibility of parole).
¶ 28 In this case, however, the district court imposed two
consecutive DOC sentences of twenty-two years each, resulting in
an aggregate sentence of forty-four years. The result in
Hernandez-Escajeda I affected Hernandez-Escajeda’s aggregate
sentence because he now has only one conviction with a
14 twenty-two-year sentence. We conclude that the district court has
the discretion to resentence Hernandez-Escajeda on the remaining
conviction if it deems resentencing appropriate.
¶ 29 On the last point, we disagree with the prosecution that the
district court on remand is required to resentence
Hernandez-Escajeda. The prosecution relies on People v. Lacallo,
2014 COA 78, overruled on other grounds by McCoy v. People, 2019
CO 44, but there, the division vacated the defendant’s “entire
sentence” on numerous counts and remanded for resentencing. Id.
at ¶¶ 39-43. So the defendant’s convictions remained, but
resentencing was required on those convictions. Here, in contrast,
the division in Hernandez-Escajeda I vacated only one of
Hernandez-Escajeda’s convictions and sentences. On his
conviction for first degree burglary, he still has a legal sentence. So
resentencing on that count is not required. Instead, the district
court has the discretion to decide whether to resentence
Hernandez-Escajeda on that count.
¶ 30 The prosecution also cites language from Johnson that,
according to the prosecution, holds that a district court is required
to reassess the sentence and exercise its sentencing discretion
15 following a reversal of one of multiple convictions. See Johnson,
2015 CO 70, ¶ 42 (recognizing that the reversal of some convictions
“caused th[e] sentencing scheme to unravel, thus requiring the
[district] court to reassess Johnson’s sentence and exercise its
sentencing discretion under new and different circumstances”). In
that discussion, however, the supreme court simply concluded that
the district court’s reasoning for imposing a longer sentence on
remand did not show actual vindictiveness:
The [district] court’s statements explaining why it did not initially consider the facts pertaining to the sexual assault when sentencing Johnson on the possession of a controlled substance conviction, and why it felt it necessary to consider those facts after the court of appeals vacated the kidnapping and sexual assault convictions evidence a non- vindictive reason to modify Johnson’s sentence and increase the possession of a controlled substance sentence from six years to twelve years.
Id. (emphasis added).2 The supreme court did not hold that
resentencing is required every time a conviction is vacated in a
multi-count case. Indeed, adopting the prosecution’s position
2 In addition, recall that resentencing was necessary in Johnson
because the first division of this court had vacated the original judgment entirely.
16 would clash with a dominant theme of the Johnson decision — the
district court has wide discretion in sentencing matters. See 2015
CO 70, ¶¶ 16, 21-22, 26, 37.
¶ 31 Given all this, we conclude that nothing in
Hernandez-Escajeda I precluded the district court from
resentencing Hernandez-Escajeda on his first degree burglary
conviction and associated crime of violence conviction. On remand
from this appeal, the district court has the discretion to resentence
Hernandez-Escajeda if it so chooses. The court also has the
discretion to decide whether to hold a resentencing hearing.
III. Conclusion
¶ 32 The order is reversed, and the case is remanded for further
proceedings consistent with this opinion.
JUDGE DUNN and JUDGE GOMEZ concur.