v. Villela

2019 COA 95

• Court: Colorado Court of Appeals
• Decided: June 27, 2019
• Docket: 16CA2178, People
• Status: Published

Opinion

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 Date June 27, 2019

2019COA95

No. 16CA2178, People v. Villela — Criminal Law — Plea Agreements — Sentencing — Probation — Revocation — Resentencing

A division of the court of appeals considers whether a plea

agreement limited the trial court’s discretion in sentencing the

defendant not only initially, but also following the revocation of

probation. Utilizing the rule of construction espoused in People v.

Griego, 207 P.3d 870, 872 (Colo. App. 2008), the division concludes

that the plea agreement did not limit the court in re-sentencing the

defendant to the range of imprisonment originally contemplated in

the agreement.

The division also determines that the trial court properly re-

sentenced the defendant to an aggravated range sentence based on

its finding that extraordinary circumstances were present. COLORADO COURT OF APPEALS 2019COA95

Court of Appeals No. 16CA2178 Boulder County District Court No. 14CR490 Honorable Patrick D. Butler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Danny Lee Villela,

Defendant-Appellant.

SENTENCE AFFIRMED

Division II Opinion by JUDGE DAILEY Pawar and Carparelli*, J., concur

Announced June 27, 2019

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Cox, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 Defendant, Danny Lee Villela, appeals the sentence imposed

following termination of his probation. We affirm.

I. Background

A. Plea and First Probation Revocation

¶2 Defendant was originally charged with, among other things,

menacing and six counts of child abuse after he threatened and

physically abused his wife and their children. Pursuant to a written

plea agreement, he pleaded guilty to menacing and child abuse. In

the agreement, the parties agreed that the sentence to be imposed

would be at the discretion of the court, but that, if the district court

sentenced defendant to the custody of the Department of

Corrections (DOC), the sentences would be in the presumptive

range of one to three years and would run concurrently to each

other.

¶3 Defendant requested a sentence to probation, and the district

court sentenced him to five years of probation. The next year,

following a violation of the probation terms, the court revoked and

reinstated defendant’s probation.

1 B. Second Probation Revocation

¶4 A year later, the People again moved to revoke defendant’s

probation after he escaped from his program, contacted the victim

in violation of a protection order, took her truck, and fled the

jurisdiction.

¶5 The court revoked defendant’s probation. At the resentencing

hearing, defendant argued that the court could impose presumptive

range DOC sentences of no more than three years for each of his

class 5 felonies, because he had “specifically pled guilty to the

presumptive range” and his plea documents did not state “what the

aggravating range was” for these crimes. However, he

acknowledged that the original stipulations set forth in the plea

agreement were no longer operative:

I am fully aware of the fact that when somebody is sentenced, [if] they violate the sentence, that things like stip to no prison, stip to, you know, stip to probation, that those things do not carry over if someone violates.

¶6 The prosecutor noted that the plea documents set forth the

potential for an aggravated range sentence, and that defendant had

2 several prior felonies that were Blakely-exempt factors.1 The

prosecutor also asserted the applicable sentencing statutes

permitted the court to “re-sentence[] the Defendant at its discretion”

upon a probation violation. The court agreed and found that the

plea agreement advised defendant of the potential for an aggravated

range sentence.

¶7 The prosecutor then asked the court to impose a

four-and-a-half-year aggravated range DOC sentence. In support,

the prosecutor noted, among other things, defendant’s numerous

prior felony convictions; that defendant had pleaded guilty to a new

criminal violation that involved contacting the victim and fleeing to

another state while still on probation; the sadistic, violent

circumstances of the original crimes; and the number of child

victims involved in the original crimes. The court imposed

concurrent four-year terms in the DOC on each count.

1 In Blakely v. Washington, 542 U.S. 296, 201 (2004), the United States Supreme Court had held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

3 ¶8 Defendant appealed his DOC sentence, contending that the

district court erred in imposing an aggravated range sentence

because (1) it violated the stipulated sentencing range set forth in

the original plea agreement; and (2) the sentence was aggravated in

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 542 U.S. 296 (2004). We disagree with both

contentions.

II. Terms of Plea Agreement

¶9 Defendant first argues that the court erred by imposing an

aggravated range sentence when his probation was revoked because

the original plea agreement mandated a presumptive range

sentence for his crimes. We disagree.

A. Standard of Review

¶ 10 A plea agreement’s meaning is a legal question that we review

de novo. See People v. Johnson, 999 P.2d 825, 829 (Colo. 2000).

B. Applicable Law and Discussion

¶ 11 It is well established that when a defendant’s probation is

revoked, the trial court may then “impose any sentence . . . which

might originally have been imposed,” regardless of any sentencing

concession in the original plea agreement. § 16-11-206(5), C.R.S.

4 2018; People v. McDaniels, 844 P.2d 1257, 1258 (Colo. App. 1992)

(section 16-11-206(5) permits any sentence “which may originally

have been imposed as concerning the statutory limits of the

sentence unaffected by any plea bargain”), cited with approval in

Montoya v. People, 864 P.2d 1093, 1095 (Colo. 1993).

¶ 12 Thus, “in the absence of language expressly addressing the

contingency of revocation [or termination] of a conditional sentence,

a sentencing stipulation will not be construed as limiting the court’s

discretion in the event that the defendant fails to comply with the

terms of the conditional sentence originally imposed.” People v.

Griego, 207 P.3d 870, 872 (Colo. App. 2008); see McDaniels, 844

P.2d at 1258.

¶ 13 The facts in McDaniels are similar to the facts in this case. In

McDaniels, the defendant was sentenced to a three-year term of

incarceration following probation revocation, even though the

original plea bargain provided that, if he were sentenced to

incarceration, his sentence would not exceed two years. A division

of this court held that, in resentencing defendant to prison, the

court was not bound by the two-year sentencing cap. The court

reasoned that the defendant received the benefit of his plea

5 agreement at the time of the initial sentencing and, following his

probation violations, a “different factual predicate existed upon

which sentence was imposed.” 844 P.2d at 1258.2

¶ 14 In Griego, another division agreed with the analysis in

McDaniels, concluding that a plea agreement’s sentencing cap for

imprisonment did not apply if the defendant received and then

violated a conditional sentence. Griego, 207 P.3d at 872.

¶ 15 Defendant argues that McDaniels and Griego were wrongly

decided, but he cites to no cases that disagree with their reasoning.

Further, these cases have been cited with approval in a long line of

2 That “different factual predicate” includes the circumstance(s) underlying the offender’s probation violation(s). See Montoya v. People, 864 P.2d 1093, 1096-97 (Colo. 1993). And in resentencing the defendant, the court could consider not only the circumstances existing in the record or known to the court at the time the defendant was originally sentenced, but also any relevant circumstance that occurred or arose after the defendant’s initial sentencing. See Villanueva v. People, 199 P.3d 1228, 1237 (Colo. 2008) (in determining the appropriate sentence after probation has been revoked, a court may consider a defendant’s actions while on probation); Montoya, 864 P.2d at 1095 (“When a sentencing judge can identify events that occur after the time of the original penalty and justify a more severe penalty, the district judge can impose a sentence which is longer than the original sentence.”); People v. Smith, 183 P.3d 726, 728-29 (Colo. App. 2008) (stating that on revocation of probation, the court may resentence the defendant to a longer term based on events that occurred after the original sentence).

6 decisions. See Montoya, 864 P.2d at 1095 (citing McDaniels for the

proposition that section 16-11-206(5)’s language on any sentence

“which might originally have been imposed or granted” refers to the

statutory limits and not those in the plea bargain); People v. Nance,

221 P.3d 428, 433 (Colo. App. 2009) (same and concluding that the

McDaniels holding was correct); People v. Smith, 183 P.3d 726,

728-29 (Colo. App. 2008) (citing McDaniels and rejecting argument

that the aggravated prison sentence was not one that “might

originally have been imposed”); People v. Santana, 961 P.2d 498,

500 (Colo. App. 1997) (citing McDaniels).

¶ 16 In addition, this reasoning is consistent with cases construing

the court’s broad authority to resentence an offender under section

16-11-206(5) following revocation or termination of a conditional

sentence. See Romero v. People, 179 P.3d 984, 987, 989 (Colo.

2007) (court may increase an offender’s sentence on resentencing);

People v. Adams, 128 P.3d 260, 262 (Colo. App. 2005) (same); see

also Fierro v. People, 206 P.3d 460, 461 (Colo. 2009) (upon

revocation of probation, the court was not bound to impose the

original suspended sentence).

7 ¶ 17 Here, the plea agreement prescribed the sentence to be

imposed following defendant’s guilty plea, but the stipulation did

not expressly address the sentence to be imposed after the initial

sentencing. Given the well-established case law, defendant could

have bargained for specific language to cover this contingency, but

he did not. See Griego, 207 P.3d at 872 (discussing need for

express language addressing contingency of revocation).

¶ 18 We reject the assertion that the plea agreement is ambiguous

or still applies because defendant requested and received a

probation sentence rather than a DOC sentence. See McDaniels,

844 P.2d at 1258 (rejecting similar argument). In interpreting an

agreement, we must determine the meaning a reasonable person

would have attached under the circumstances. See Craig v. People,

986 P.2d 951, 960, 962 (Colo. 1999) (the court cannot read into the

agreement a term that lacks evidentiary support in the record).

Probation is a privilege, not a right, and may be revoked if the

probationer violates any condition. See Byrd v. People, 58 P.3d 50,

55 (Colo. 2002); People v. Ickler, 877 P.2d 863, 864 (Colo. 1994). In

the absence of language to the contrary, we cannot assume that the

parties intended that defendant would be granted a significant

8 sentence concession at his initial sentencing and then be given the

same concession after serving part of his probation and violating its

conditions. See Romero, 179 P.3d at 987 (“[I]t is reasonable that the

legislature would give courts flexibility to increase a sentence when

the circumstances merit it.”).

¶ 19 We also reject defendant’s assertion that he is entitled to

specific performance of the plea agreement as he understood it.

Before pleading guilty, defendant signed a written advisement that

acknowledged that he understood the possibility that, if the court

found aggravating circumstances, it could impose an aggravated

range sentence of up to six years on each count. A defendant’s

“plea is not invalid merely because the defendant was not warned

that upon violation of the terms of his probation, he would be

subject to resentencing to anything to which he could have

originally been sentenced.” People v. Marez, 39 P.3d 1190, 1194

(Colo. 2002); see Montoya, 864 P.2d at 1096-97 (determining that

the defendant was aware that the court could increase his sentence

by finding aggravating circumstances, even if he was not specifically

aware that a probation violation could result in the expansion of his

original sentence).

9 ¶ 20 We conclude that the applicable law and the record do not

support defendant’s contentions. Thus, after revoking defendant’s

probation, the district court was free to resentence defendant to any

sentence authorized by statute, including an aggravated prison

sentence.

III. Apprendi and Blakely Claims

¶ 21 Next, we conclude that the district court properly sentenced

defendant in the aggravated range based on its finding that

extraordinary aggravating circumstances were present.

¶ 22 Defendant concedes that he did not raise this issue in the

district court and that plain error review applies. Plain error

addresses error that is both obvious and substantial. People v.

Miller, 113 P.3d 743, 750 (Colo. 2005).

¶ 23 In Blakely, the court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” 542 U.S. at 301 (quoting

Apprendi, 530 U.S. at 490). The statutory maximum for purposes

10 of Apprendi is the maximum sentence a trial court may impose

solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant. Id. at 303.

¶ 24 As part of the plea agreement, defendant waived his Blakely

rights and agreed to judicial factfinding as to facts that could result

in an aggravated range sentence. See Villanueva v. People, 199 P.3d

1228, 1235 (Colo. 2008) (“[A] defendant is free to waive his Blakely

rights . . . .”).

¶ 25 Specifically, the plea agreement provided:

I understand that by pleading guilty and giving up my right to have a trial, I give up the right to have a jury determine, beyond a reasonable doubt, if there are aggravating facts in my case. I specifically agree that a judge and not a jury can determine the existence of aggravating facts in my case that could be used by a judge to impose a sentence to prison that is greater than the presumptive prison sentence range for the offense(s) included within this plea agreement.

¶ 26 Thus, defendant stipulated to judicial factfinding to support

aggravated sentencing pursuant to section 18-1.3-401(6), C.R.S.

2018. See Lopez v. People, 113 P.3d 713, 719-20 (Colo. 2005).

And, as noted previously, the plea agreement indicated that with a

11 finding of exceptional circumstances, the court could impose an

aggravated range DOC sentence of up to six years.

¶ 27 Defendant’s Blakely waiver was not invalidated because he

violated his probation terms and was resentenced. See Nance, 221

P.3d at 432-33 (“McDaniels simply stands for the correct

proposition that the sentence imposed upon revocation is not

limited by a cap in a plea agreement” and “should not be

interpreted so broadly to apply to all aspects of a plea agreement.”);

Smith, 183 P.3d at 728-29 (rejecting argument that because the

original sentencing court did not find extraordinary aggravation, the

aggravated prison sentence was not one that “might originally have

been imposed” and violated Blakely).

¶ 28 Defendant argues that his consent to judicial factfinding for

the purposes of Blakely was limited to factual findings concerning

his original crimes. Specifically, he contends that he did not admit,

and the court could not consider for Blakely purposes, that he

absconded to Texas. He also appears to contend that the court did

not aggravate his sentence based on his criminal record.

¶ 29 Even accepting these assertions as true, the district court,

while noting that it could aggravate his sentence because of his

12 “new offense” and because he absconded to Texas, also relied on the

extraordinary aggravating circumstances of the original crimes to

aggravate his sentence. See § 18-1.3-401(6).

¶ 30 “[O]ne Blakely-compliant or Blakely-exempt factor is sufficient

to support an aggravated sentence,” even if the court also

considered factors that were not Blakely-compliant or

Blakely-exempt. People v. Huber, 139 P.3d 628, 634 (Colo. 2006)

(quoting Lopez, 113 P.3d at 731). And the court’s reliance on the

circumstances of the original crimes was sufficient to support the

aggravated range DOC sentence.

¶ 31 Further, “independent of any concern about the adequacy of

advisements or admitted facts, a court may constitutionally impose

an aggravated range sentence based on a defendant’s other

convictions,” including prior, subsequent, and “concurrent”

convictions that enter prior to sentencing. People v. Misenhelter,

214 P.3d 497, 502 (Colo. App. 2009), aff’d, 234 P.3d 657 (Colo.

2010); see Lopez, 113 P.3d at 723.

¶ 32 “The timing of the underlying crime is irrelevant so long as the

conviction itself, with all its attendant procedural protections, is

entered before being used to aggravate a sentence.” Misenhelter v.

13 People, 234 P.3d 657, 661 (Colo. 2010); Smith, 183 P.3d at 729

(rejecting Blakely challenge on resentencing and noting that

violation of terms of probation may constitute an extraordinary

aggravating circumstance under section 18-1.3-401(6)).

¶ 33 Here, the prosecution argued at sentencing that defendant’s

prior felony convictions were a Blakely-exempt factor, and the court

appeared to conclude that they exposed defendant to an aggravated

range sentence. This provides a Blakely-exempt factor. Therefore,

the trial court properly resentenced defendant to an aggravated

IV. Disposition

¶ 34 The sentence is affirmed.

JUDGE PAWAR and JUDGE CARPARELLI concur.