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Disciplinary Self-Help Litigation Manual

Colorado Supreme Court: Plea Proviso in § 18-1-409(1) Doesn’t Bar Appeal on Manner in Which Sentence Imposed

he Supreme Court of Colorado held that the “plea provisio [in Colo Rev. Stat. § 18-1-409(1) (2019)] does not preclude an appeal related to the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which the sentence was imposed.”

Before the Court was the appeal of Christopher David Sullivan. He accepted a plea agreement that provided he plead guilty to 40 substantive charges, including first degree burglary, aggravated robbery, aggravated motor theft, menacing with a deadly weapon, first degree assault, resisting arrest, and possession of weapon by a previous offender. The charges stemmed from a lengthy chase following a routine traffic stop. The district court sentenced him to 77 years’ imprisonment, which was within the 70- to 85-year range of the plea agreement.

During sentencing, the court misstated the statutory range on count 15, aggravated motor theft in the first degree, as three to 12 years instead of two to six years. No one caught the error at sentencing. On appeal, Sullivan argued that the district court had chosen the low end of what it believed to be the applicable range, but it had in fact sentenced him to the midpoint of the correct sentencing range. He urged that had the court been properly advised that it would have imposed a lower sentence on that count.

The court of appeals affirmed. At issue was the applicability of § 18-1-409(1), which creates a right for every defendant convicted of a felony and not sentenced to death to “one appellate review of the propriety of the sentence.” The statute includes a plea provision that bars an appeal “if the sentence is within the range agreed upon by the parties pursuant to a plea agreement.” The appellate court ruled that the plea provisio barred Sullivan’s appeal because the appeal involved the manner in which the sentence was imposed, not the “propriety of the sentence.”

The Colorado Supreme Court granted review of the question of whether §18-1-409(1) precludes nonconstitutional challenges in the manner in which a legal felony sentence within the stipulated range from a plea agreement is imposed.

It noted that the statutory phrase “propriety of the sentence” was first addressed in its opinion in People v. Malacara, 606 P.2d 1300 (Colo. 1980). In Malacara, the Supreme Court interpreted § 18-1-409(1) to be understood as providing the right of one appellate review of “(1) the propriety of the sentence, having regard to the nature of the offense, character of the offender, and public interest, and (2) the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.”

The Court recognized that the legislature used the term “propriety of the sentence” when it created the plea proviso in 1999. There was no basis to conclude the General Assembly ascribed a different meaning to that phrase than the one the Supreme Court had ascribed to it in Malacara and that legislative body is presumed to have acted in full knowledge of the Supreme Court’s interpretation of the phrase in Malacara.

The appellate court relied on People v. Bloom, 251 P.3d 482 (Colo. App. 2010) (which the Supreme Court noted in the present case “followed Lassek without analysis”), and People v. Lassek, 122 P.3d. 1029 (Colo. App. 2005), to support its ruling. According to Lassek, since the cases cited in Malacara “involve[d] constitutional issues,” the Supreme Court concluded that only constitutional challenges to the propriety of the sentencing proceeding may be brought under § 18-1-409(1).

The Court flatly rejected this position, stating, “But nothing in Malacara corroborates this view.” In fact, the Court announced: “Because the decisions of the court of appeals in Bloom and Lassek are inconsistent with [the Supreme Court’s determination in Malacara], we now overrule them.”

The Court held “that the plea proviso does not preclude an appeal related to the manner in which the sentence is imposed, including the sufficiency and accuracy of the information on which the sentence was based.” It ruled that although “Sullivan’s sentence on count 15 fell within the range included in his plea agreement, his appeal is not barred by the plea proviso.”

Accordingly, the Court reversed the judgment of the court of appeals and remanded the case so that the court of appeals can consider the merits of Sullivan’s claim. See: Sullivan v. People, 465 P.3d 25 (Colo. 2020). 

Related legal case

Sullivan v. People

 

 

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