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 February 27, 2025
2025COA25
No. 23CA1350, People v. Rojas — Criminal Law — Appeals — Resentencing on Remand; Constitutional Law — Fifth Amendment — Double Jeopardy — Fourteenth Amendment — Due Process
In this proceeding, a division of the court of appeals reviews
the propriety of new sentences imposed after the defendant’s
original sentences were vacated on appeal.
First, the division considers whether the district court’s
decision to resentence the defendant conflicted with the mandate
from the previous appeal. Relying on People v.
Hernandez-Escajeda, 2024 COA 111, the division concludes that
the mandate that directed the district court to “impose concurrent
sentences” did not limit the court’s authority to resentence the
defendant. Second, the division concludes that double jeopardy did not
bar the imposition of increased sentences on remand because the
defendant’s original sentences were illegal and subject to review and
revision, and therefore the defendant did not have a legitimate
expectation of finality in them.
Third, the division rejects the defendant’s due process
argument that the new sentences were the product of
vindictiveness. The division holds that when two aggregate
sentences have identical prison terms, the one with a later parole
eligibility date is more severe for due process purposes. But, relying
on Texas v. McCullough, 475 U.S. 134 (1986), the division also
holds that there is no reasonable likelihood that actual
vindictiveness played a part in resentencing when, without more, a
judge who did not impose the original sentences imposes more
severe sentences.
Finally, the division concludes that the district court did not
plainly err by relying on a presentence investigation report that
misclassified the defendant’s prior felony conviction because the
error was not obvious and did not substantially impact the
resentencing proceeding. For all these reasons, the division affirms the new sentences. COLORADO COURT OF APPEALS 2025COA25
Court of Appeals No. 23CA1350 Jefferson County District Court No. 16CR7283 Honorable Robert Lochary, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Thomas Rojas,
Defendant-Appellant.
SENTENCES AFFIRMED
Division IV Opinion by JUDGE YUN Harris and Kuhn, JJ., concur
Announced February 27, 2025
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Thomas Rojas appeals the district court’s new sentences
imposed after a division of this court vacated his original sentences.
He contends, among other things, that the district court violated his
right to due process by imposing more severe sentences on remand.
¶2 In People v. Johnson, 2015 CO 70, the Colorado Supreme
Court emphasized that “[d]ue process of law . . . requires that
vindictiveness against a defendant for having successfully attacked
his first conviction must play no part in the sentence he receives
after a new trial.” Id. at ¶ 18 (alterations in original) (quoting North
Carolina v. Pearce, 395 U.S. 711, 725 (1969)). To guard against the
possibility that the “judge may have sought to punish the defendant
for appealing the original decision,” a rebuttable presumption of
vindictiveness arises if “(1) the new sentence on remand is more
severe than the original sentence, and (2) there is a reasonable
likelihood that actual vindictiveness played a part in the
resentencing.” Id. at ¶¶ 18, 22.
¶3 In addressing Rojas’s due process argument, we encounter two
questions of apparent first impression in Colorado. First, are new
sentences with the same aggregate prison term as the original
sentences but a later parole eligibility date more severe for due
1 process purposes? In line with the majority of jurisdictions that
have considered the question, we conclude that they are. Second,
is there a reasonable likelihood of actual vindictiveness when,
without more, a judge who did not impose the original sentences
imposes more severe sentences following a successful appeal?
Relying on the United States Supreme Court’s holdings in Texas v.
McCullough, 475 U.S. 134 (1986), we conclude that there is not.
Accordingly, Rojas’s due process argument fails.
¶4 Because we also reject Rojas’s other contentions, we affirm his
new sentences.
I. Background
¶5 In 2019, a jury convicted Rojas of attempted first degree
murder and first degree assault. The jury found that Rojas caused
serious bodily injury in both crimes, rendering them crimes of
violence.
¶6 At the sentencing hearing, Rojas and the People both agreed
that the district court could impose concurrent sentences. But the
court disagreed and found that, because the convictions were for
crimes of violence, the sentences were required by statute to run
consecutively. The court thus sentenced Rojas to consecutive
2 sentences of eighteen years for attempted murder and fourteen
years for assault, resulting in a total sentence of thirty-two years in
the custody of the Department of Corrections. Thereafter,
anticipating an appeal, the court said, “If for some reason the
appellate court determines that . . . the violent crimes statute does
not apply to this case,” meaning the sentences were not required to
run consecutively, “[this court] will specifically find that a sentence
of the length of [thirty-two] years is necessary and appropriate to
reflect [Rojas’s] conduct here as well as his criminal history.”
¶7 A division of this court affirmed Rojas’s convictions. See
People v. Rojas, (Colo. App. No. 19CA0694, May 26, 2022) (not
published pursuant to C.A.R. 35(e)) (Rojas I). But the division
concluded that the convictions were supported by identical evidence
and therefore their sentences were required to run concurrently. Id.
at ¶¶ 59-63. Accordingly, the division “vacate[d] the sentences and
remand[ed] the case to the [district] court with directions to impose
concurrent sentences.” Id. at ¶ 64.
¶8 On remand, the People asked the district court to reimpose the
thirty-two-year aggregate prison term by resentencing Rojas to
thirty-two years for his attempted murder conviction and running
3 that sentence concurrently to the sentence for his assault
conviction. Rojas, on the other hand, argued that “the mandate of
the appellate court was to impose concurrent sentences” and any
other changes to the sentences would “not comply with the specific
directions of the Court of Appeals.”
¶9 The district court — a different judge than the one who
originally sentenced Rojas — disagreed with Rojas and held a
resentencing hearing. After hearing statements on behalf of the
victim and from Rojas, reviewing the trial exhibits, and addressing
the relevant sentencing factors, the court concluded that “thirty-two
years is an appropriate” prison term. However, the court chose to
implement the prison term by imposing concurrent thirty-two-year
sentences for both the attempted murder and assault convictions.
¶ 10 Although Rojas’s new sentences have the same aggregate
prison term as his original sentences, the other differences between
his new and old sentences affect his parole eligibility. For his
attempted murder conviction, Rojas must serve 50% of his prison
term before becoming eligible for parole. See § 17-22.5-403(1),
C.R.S. 2024. And for his assault conviction, he must serve 75% of
4 his prison term before becoming eligible for parole. See
§ 17-22.5-403(2.5)(a).
¶ 11 The tables below illustrate the differences in Rojas’s parole
eligibility calculations under his original consecutive sentences and
the new concurrent sentences:
Original Consecutive Sentences
Prison % of Prison Term Eligible for Conviction Term Required to Serve Parole After
Attempted 9 Years First Degree 18 Years 50% (18 x 0.50) Murder
First Degree 10.5 Years 14 Years 75% Assault (14 x 0.75)
Total 32 Years 60.9% 19.5 Years1
1 When multiple prison terms run consecutively, the time required
to become eligible for parole for each term is calculated individually, and then those individual calculations are added together to determine the final parole eligibility date. See Owens v. Carlson, 2022 CO 33, ¶¶ 44-45.
5 New Concurrent Sentences
Prison % of Prison Term Eligible for Conviction Term Required to Serve Parole After
Attempted 16 Years First Degree 32 Years 50% (32 x 0.50) Murder
First Degree 24 Years 32 Years 75% Assault (32 x 0.75)
Total 32 Years 75% 24 Years ¶ 12 Under Rojas’s new concurrent sentences, his first degree
assault sentence will govern his parole eligibility. See Thiret v.
Kautzky, 792 P.2d 801, 808 (Colo. 1990) (“[T]he ‘governing’
sentence is the longest sentence . . . , and the relevant parole
provisions of that sentence apply to the entire ‘composite’
sentence.”). Thus, Rojas will now be eligible for parole after serving
twenty-four years of his thirty-two-year prison term for assault,
meaning his parole eligibility date has been pushed back by four
and a half years.2
2 The People’s answer brief uses the same inputs but calculates a
delay of 3.5 years. We believe this is a miscalculation and not a factual dispute. In any event, the difference between 3.5 and 4.5 years would not alter our analysis.
6 ¶ 13 Rojas appeals the new sentences.
II. Analysis
¶ 14 Rojas contends that the district court reversibly erred by
(1) disobeying the instructions in the Rojas I mandate; (2) increasing
his sentences, thereby violating his right to be free from double
jeopardy; (3) punishing him for successfully appealing his original
sentences, thereby violating his right to due process; and (4) relying
on incorrect information during resentencing. We consider and
reject each contention in turn.
A. The Rojas I Mandate Did Not Prohibit the Court from Resentencing Rojas
¶ 15 Rojas first contends that the mandate from Rojas I, ¶ 66,
which “remand[ed] the case to the [district] court with directions to
impose concurrent sentences,” prohibited the district court from
doing anything other than making his prior sentences concurrent.
We are not persuaded.
1. Standard of Review and Applicable Law
¶ 16 We review de novo whether the district court complied with an
appellate mandate. Thompson v. Catlin Ins. Co. (UK), 2018 CO 95,
¶ 20.
7 ¶ 17 “[A] lower court must follow the law of the case as laid out by
an appellate tribunal.” Id. at ¶ 21. This includes the appellate
court’s “[c]onclusions . . . on issues presented to it as well as
rulings logically necessary to sustain such conclusions.” Owners
Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 24 (first
alteration in original) (citation omitted). But the district court “may
entertain additional motions that do not, expressly or by necessary
implication, contravene the mandate.” Oster v. Baack, 2015 COA
39, ¶ 15.
2. Discussion
¶ 18 In the recently announced case People v. Hernandez-Escajeda,
2024 COA 111, a division of this court considered and rejected the
same argument Rojas puts forth — that the appellate mandate
precluded resentencing — under a similar factual scenario.
¶ 19 In Hernandez-Escajeda, the defendant was originally
sentenced to two consecutive prison terms of twenty-two years
each, resulting in an aggregate forty-four-year sentence. Id. at ¶ 4.
On appeal from the summary denial of a Crim. P. 35(c) motion, an
earlier division of this court had concluded that the two convictions
must merge. Id. at ¶ 7. Consequently, that division “remanded to
8 the district court with directions to vacate” one of the defendant’s
convictions. Id. (citation omitted). On remand, the prosecution
requested a resentencing hearing, and the defendant objected,
“asserting that the court could not resentence him on the remaining
substantive count . . . but could only perform the actions
specifically mentioned in the remand language.” Id. at ¶ 8. The
district court agreed with the defendant and “believed that the only
action it could take on remand was to correct the mittimus by
vacating the . . . conviction.” Id. at ¶ 9.
¶ 20 On appeal of that decision, the Hernandez-Escajeda division
disagreed with the district court and concluded that (1) “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”; and (2) the appellate
mandate’s “direction . . . 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.” Id. at ¶¶ 19,
24 (quoting Johnson, ¶ 1).
9 ¶ 21 Applying Hernandez-Escajeda to this case, the district court
had the authority on remand to resentence Rojas unless doing so
conflicted with the Rojas I mandate’s “directions to impose
concurrent sentences.” Rojas I, ¶ 66. We conclude that it did not.
Nothing in the mandate prohibited the district court from imposing
new sentences on the two convictions so long as they ran
concurrently, and the fact that the mandate “did not expressly
direct the district court to resentence [Rojas] . . . did not limit the
court’s authority to do so.” Hernandez-Escajeda, ¶ 24.
¶ 22 Thus, we agree with the district court that, under the Rojas I
mandate, it “ha[d] to impose concurrent sentences, but [it] still
ha[d] authority as it normally would to use its discretion and
impose the appropriate sentences.”
B. Double Jeopardy Did Not Preclude the Court from Increasing Rojas’s Sentences
¶ 23 Rojas next argues that his original sentences were “legally
valid,” and therefore the constitutional proscription on double
jeopardy prohibited the district court from increasing them. We
disagree.
10 1. Standard of Review and Applicable Law
¶ 24 We review constitutional challenges to sentencing
determinations de novo. Johnson, ¶ 9.
¶ 25 “The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused from being twice
punished for the same offense.” People v. Evans, 2015 COA 156,
¶ 24 (first citing U.S. Const. amends. V, XIV; and then citing Colo.
Const. art. II, § 18). Accordingly, the district court “is prohibited
from increasing a legal sentence once it has been imposed and the
defendant has begun serving it.” People v. Reed, 43 P.3d 644, 646
(Colo. App. 2001).
¶ 26 But “when an original sentence is illegal, resentencing does
not constitute double jeopardy . . . even if the subsequent sentence
is longer than the original, and even though the defendant has
begun serving the original sentence.” People v. Dist. Ct., 673 P.2d
991, 997 (Colo. 1983); see People v. Bassford, 2014 COA 15, ¶ 29.
This is because “double jeopardy does not bar the imposition of an
increased sentence if the defendant lacked a legitimate expectation
of finality in the sentence,” Romero v. People, 179 P.3d 984, 989
(Colo. 2007), and “[a] defendant can have no legitimate expectation
11 of finality in a sentence that, by statute, is subject to further review
and revision,” People v. Castellano, 209 P.3d 1208, 1209 (Colo. App.
2009) (alteration in original) (quoting People v. Chavez, 32 P.3d 613,
614 (Colo. App. 2001)). Therefore, “[w]here appellate review of the
sentences at issue is clearly allowed, a defendant cannot claim any
expectation of finality in his or her original sentencing.” People v.
Woellhaf, 199 P.3d 27, 30 (Colo. App. 2007).
¶ 27 On appeal, the Rojas I division concluded that Rojas’s
convictions were based on identical evidence and vacated the
original sentences. Rojas I, ¶¶ 57, 63. The sentences could not
stand because the imposition of consecutive prison terms for two
convictions based on identical evidence results in illegal sentences.
See People v. Torrez, 2013 COA 37, ¶ 49. Thus, Rojas had no
expectation of finality in the original sentences, and resentencing
did not violate his rights against double jeopardy “even if the
subsequent sentence[s] [are] longer than the original [sentences].”
Dist. Ct., 673 P.2d at 997; see People v. Smith, 121 P.3d 243, 251
(Colo. App. 2005).
12 C. The Presumption of Vindictiveness Does Not Arise and Rojas Did Not Show Actual Vindictiveness
¶ 28 Rojas next contends that the district court violated his due
process rights when it imposed new sentences on remand because
his new sentences delayed his parole eligibility date. We disagree.
1. Preservation and Standard of Review
¶ 29 As an initial matter, the People contend that this issue is
unpreserved and should therefore be reviewed for plain error.
Regardless of whether it is preserved, we review legal issues de
novo. People v. Thames, 2019 COA 124, ¶ 71 (“The alleged violation
of a defendant’s double jeopardy rights is a legal question we review
de novo.”). Because we conclude that there was no error, we need
not decide whether plain error applies. See Cardman v. People,
2019 CO 73, ¶ 19 (“[P]lain error occurs when there is (1) an error,
(2) that is obvious, and (3) that so undermines the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
of the judgment of conviction.”).
2. Applicable Law
¶ 30 “[T]he right to appeal a criminal conviction is a fundamental
and indispensable mechanism to protect a defendant’s rights and
13 correct reversible trial court error.” Johnson, ¶ 17. To preserve this
right, “[d]ue process of law . . . requires that vindictiveness against
a defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.” Id.
at ¶ 18 (alterations in original) (quoting Pearce, 395 U.S. at 725).
Thus, “[i]f a defendant wins on appeal and the [district] court
subsequently imposes a more severe sentence for a conviction on
remand, the increased sentence raises concerns that the . . . judge
may have sought to punish the defendant for appealing the original
decision.” Id.
¶ 31 To guard against this possibility, a rebuttable presumption of
vindictiveness arises if (1) the new sentence is more severe than the
original and (2) there is a reasonable likelihood that actual
vindictiveness played a part in the new sentence. Id. at ¶¶ 18, 22.
However, “even if the ‘presumption of vindictiveness’ arises, the
prosecution may rebut it by identifying ‘objective information in the
record justifying the increased sentence.’” Id. at ¶ 19 (quoting
United States v. Goodwin, 457 U.S. 368, 374 (Colo. 1982)). If the
prosecution successfully rebuts the presumption, the burden
returns to the defendant to “prove that the sentencing judge
14 violated his due process rights by imposing a harsher sentence out
of actual vindictiveness.” Id. “If the prosecution is unable to rebut
the presumption of vindictiveness, the new sentence is invalid.” Id.
¶ 32 And in cases where the presumption does not apply, the
defendant can still prevail on the due process claim by affirmatively
proving “actual vindictiveness.” Id. at ¶ 41.
3. A Sentence with an Identical Prison Term but Delayed Parole Eligibility Is More Severe
¶ 33 Rojas acknowledges that the Colorado Supreme Court has
adopted an aggregate approach to determine whether new
sentences are more severe than the original sentences. See id. at
¶ 37. Under this approach, the presumption of vindictiveness may
arise only “where changes to the defendant’s sentence[s] on remand
cause the aggregate total sentence to increase as compared to the
original aggregate sentence.” Id. at ¶ 25. Nevertheless, Rojas
contends that his new sentences of the same aggregate length are
more severe than his original sentences because his parole
eligibility is delayed.
¶ 34 No reported Colorado decision has squarely addressed this
issue. But nearly every jurisdiction to consider it has concluded
15 that, “[a]lthough a later sentence imposed by a judge is for an
identical term of imprisonment as the initial one, it is nevertheless
more severe for purposes of due process if it provides for parole
consideration later than the initial sentence.” United States v. Bello,
767 F.2d 1065, 1068 (4th Cir. 1985); see United States v. Steele,
988 F.2d 998, 999 (9th Cir. 1993); United States v.
Pimienta-Redondo, 874 F.2d 9, 15 (1st Cir. 1989); United States v.
Gilliss, 645 F.2d 1269, 1283 (8th Cir. 1981); United States v.
Hawthorne, 532 F.2d 318, 323-24 (3d Cir. 1976); State v. Thomas,
214 A.3d 132, 145-46 (Md. 2019); see also United States v. Barash,
428 F.2d 328, 331 (2d Cir. 1970) (The presumption of
vindictiveness applies to an increased punishment “regardless of
the form of punishment, whether it is imprisonment, suspended
sentence with probation, fine, or any other corrective measure the
court may provide.”) (emphasis added) (citation omitted); State v.
Soco, 508 So. 2d 915, 917-18 (La. Ct. App. 1987) (holding that a
sentence of thirty-five years without parole eligibility was a “harsher
sentence” than the original sentence of ninety-nine years with
parole eligibility after thirty-three years). But see State v. Semrad,
794 N.W.2d 760, 763-64 (S.D. 2011) (holding that “parole eligibility
16 is not part of a defendant’s sentence” and therefore delays in parole
eligibility “do not increase a defendant’s sentence”); Keawe v. State,
901 P.2d 481, 489-90 (Haw. 1995) (because parole eligibility is
determined by the executive branch, not the judicial branch, of the
Hawaiian government, it is irrelevant when determining if a new
sentence is more severe).
¶ 35 We agree with this majority view. The Maryland Court of
Appeals may have summed it up the best:
From a common-sense perspective, a sentence of [eighteen] years imprisonment with a parole eligibility date of nine years is “more severe” than a sentence of [eighteen] years imprisonment with a parole eligibility date of seven years and six months. No doubt, ten out of ten inmates would agree with that proposition.
Thomas, 214 A.3d at 141; accord Bello, 767 F.2d at 1068 (“We have
no doubt that the subsequent sentence is more severe than the
original one.”).
¶ 36 The People rely on People v. Montgomery, 737 P.2d 413 (Colo.
1987), and State v. Smith, 481 P.2d 995 (Kan. 1971), for the
proposition that “[t]he granting of parole is a matter of grace, not a
matter of right,” and therefore should not be considered part of
17 Rojas’s sentence. Montgomery, 737 P.2d at 416. But these cases
are distinguishable because, in each, the defendant’s delay in
parole eligibility resulted from a resentencing from life
imprisonment to a definite term. See id. at 414-15; Smith, 481 P.2d
at 996. Thus, the supreme court in Montgomery held that a
“sentence to a term of twenty-five to fifty years . . . is not a more
severe sentence than life imprisonment,” even though it delayed
parole eligibility, because “[a]n inmate’s parole eligibility date,
although not without some significance, is neither the exclusive nor
controlling consideration in determining the relative severity of
alternative sentences.” Montgomery, 737 P.2d at 416 (emphasis
added). Indeed, we think Montgomery supports our conclusion
given that the court explicitly considered the effect of parole in
determining the severity of the defendant’s sentences. See id.
(“When all the features of these two sentences are examined, we are
satisfied that a sentence to a term of twenty-five to fifty years is not
harsher than a sentence to life imprisonment.”) (emphasis added);
People v. Wieghard, 743 P.2d 977, 979 (Colo. App. 1987)
(considering parole eligibility to determine that the defendant’s
sentence on remand was increased).
18 ¶ 37 Accordingly, we conclude that, for due process purposes, when
two aggregate sentences have identical prison terms, the one with a
later parole eligibility date is more severe.
4. There Is No Reasonable Likelihood of Actual Vindictiveness
¶ 38 Having concluded that Rojas’s new sentences are more severe
than his original sentences, we now turn to whether there is a
reasonable likelihood that actual vindictiveness played a part in the
new sentences to create the rebuttable presumption. See Johnson,
¶ 22. We conclude that there is not such a reasonable likelihood.
¶ 39 The United States Supreme Court has made clear that the
presumption of vindictiveness “do[es] not apply in every case where
a convicted defendant receives a higher sentence” after a successful
appeal. McCullough, 475 U.S. at 138. Rather, “the presumption of
vindictiveness should apply only where its objectives — to deter
actual vindictive sentencing and to prevent a chilling effect on
defendants exercising their right to appeal — are ‘most efficaciously
served.’” Johnson, ¶ 22 (quoting Alabama v. Smith, 490 U.S. 794,
799 (1989)).
¶ 40 One situation where the presumption of vindictiveness does
not apply is where different sentencing judges “assessed the varying
19 sentences that [a defendant] received.” McCullough, 475 U.S. at
140. This is because “the presumption derives from the judge’s
‘personal stake in the prior conviction,’” which does not exist when
the original sentence was imposed by a different judge. Id. at
140 n.3 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973));
see United States v. Newman, 6 F.3d 623, 630 (9th Cir. 1993)
(“When different courts impose different sentences, . . . there is no
presumption of vindictiveness . . . .”); Bowser v. State, 441 P.3d
540, 544 (Nev. 2019) (“[T]he presumption [of vindictiveness] does
not apply where a different judge imposes a higher sentence . . .
than the first judge.”).
¶ 41 Rojas’s new sentences were imposed by a different judge than
the judge who imposed his original sentences, and we do not see
anything in the record that otherwise suggests a reasonable
likelihood of actual vindictiveness. Therefore, the presumption of
vindictiveness does not apply.
5. There Is No Evidence of Actual Vindictiveness
¶ 42 Even without the presumption of vindictiveness, Rojas could
still prevail on his due process claim by affirmatively proving “actual
vindictiveness.” See Johnson, ¶ 41. However, he makes no attempt
20 to do so. He does not even respond to the People’s argument that
no evidence suggests “the resentencing judge was motivated by
vindictiveness against him for successfully challenging his original
sentence[s].” Instead, the record shows that the resentencing judge
was attempting to reimpose Rojas’s original aggregate prison term
and, in doing so, did not consider the impact of the new sentences
on Rojas’s parole eligibility. Because Rojas has not presented any
evidence of actual vindictiveness, and we do not discern any such
evidence from the record, his due process argument fails.
D. The District Court Did Not Plainly Err by Relying on Incorrect Sentencing Information
¶ 43 Rojas last contends that the district court erred by considering
incorrect information during resentencing. Specifically, he argues
that the court relied on a presentence investigation report (PSIR)
that incorrectly stated that Rojas had previously pleaded guilty to
second degree assault against an at-risk person (a class 3 felony)
when he was actually convicted of second degree assault —
drugging the victim (a class 4 felony). We conclude that the district
court did not plainly err by relying on the PSIR.
21 1. Preservation and Standard of Review
¶ 44 Because Rojas did not object to the PSIR at either of the
sentencing hearings, including when the resentencing court
referred to the prior felony as it was listed in the PSIR, we review his
contention for plain error. See People v. Linares-Guzman, 195 P.3d
1130, 1135 (Colo. App. 2008) (applying plain error standard to
unpreserved claim that the sentencing court erred by considering
information outside the record). We must reverse only if the error
was obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14.
An error is “obvious” if it is so clear cut that the judge should have
been able to avoid it without the benefit of an objection. Scott v.
People, 2017 CO 16, ¶ 16. An error is “substantial” if it “so
undermined the fundamental fairness of the sentencing proceeding
as to cast serious doubt on the reliability of the sentence.” People v.
Banark, 155 P.3d 609, 611 (Colo. App. 2007).
¶ 45 Even assuming, without deciding, that the district court erred
by considering the incorrect classification of the prior felony, the
error was neither obvious nor substantial.
22 ¶ 46 First, the error was not obvious. Rojas’s attorney was
provided with the PSIR before the original sentencing hearing, and
Rojas had the opportunity at both sentencing hearings to object to
the information in the PSIR. Indeed, at the original sentencing
hearing, Rojas expressly disclaimed that he had any corrections or
additions to the PSIR. And at the resentencing hearing, Rojas again
made no efforts to correct the PSIR, nor did he object when the
court stated that “he has a prior felony for a conviction for [second
degree] assault on an at risk person, a [c]lass 3 felony.” See
People v. Padilla, 907 P.2d 601, 609 (Colo. 1995) (“[A] defendant has
a right to be heard regarding the accuracy of matters in his
[PSIR] . . . .”). Colorado case law has established that an
uncontested PSIR has “some measure of reliability, and ‘[c]ourts
resolving sentencing matters may rely on uncontroverted facts set
forth in a [PSIR].’” People v. Fritts, 2014 COA 103, ¶ 33 (alterations
in original) (quoting People v. Tuffo, 209 P.3d 1226, 1231 (Colo.
App. 2009)). Under these circumstances, we cannot see how the
district court could have avoided relying on this information without
an objection. See Scott, ¶ 16.
23 ¶ 47 Second, the error was not substantial. During resentencing,
the district court emphasized “the severe damage that Mr. Rojas’[s]
assault did on this victim” in this case, and it is clear from the
record that that was the dominant factor behind the court’s
sentences. The court mentioned the incorrect classification for
Rojas’s prior felony only once in passing, and the classification of
the prior offense as a class 3 felony as opposed to a class 4 felony
did not affect the sentencing range available to the court. Apart
from alleging that the information was wrong, Rojas does not
explain how the court’s brief mention of the offense substantially
influenced the sentencing proceeding. See People v. Conyac, 2014
COA 8M, ¶ 54 (noting that it is the defendant’s burden to establish
plain error).
¶ 48 We are not persuaded otherwise by Rojas’s contention that
Rosales-Mireles v. United States, 585 U.S. 129 (2018), requires us to
vacate his sentences “under any applicable standard.”
Rosales-Mireles involved an unnoticed error that increased the
applicable sentencing range — a type of error that “can, and most
often will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Id. at 139 (quoting
24 Molina-Martinez v. United States, 578 U.S. 189, 198 (2016)). In
contrast, the error alleged here did not affect the sentencing range
and does not contain the same inherent probability.
¶ 49 Consequently, we conclude that there was no plain error
warranting reversal of the sentences. See Banark, 155 P.3d at 611.
III. Disposition
¶ 50 Rojas’s new sentences are affirmed.
JUDGE HARRIS and JUDGE KUHN concur.