People v. Dawson

Citations: 89 P.3d 447; 2003 Colo. App. LEXIS 1376; 2003 WL 22019832Docket: 02CA1171

Court: Colorado Court of Appeals; August 28, 2003; Colorado; State Appellate Court

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Lonny W. Dawson appeals the denial of his postconviction relief motion, as well as his conviction and sentence for two counts of attempted sexual assault on a child, entered via a plea agreement. The original charges were dismissed. The record lacks a written plea agreement, and the prosecution's position on sentencing was not clearly stated in the advisement form. During the providency hearing, the prosecutor indicated no request for discretionary aggravating circumstances, but later suggested that the case might deserve such consideration. The trial court, however, found extraordinary aggravating circumstances and imposed consecutive sentences exceeding the presumptive range without offering Dawson an opportunity to withdraw his plea. Dawson's timely motion for reconsideration acknowledged the prosecutor's stance but contested the court's decision to sentence him in the aggravated range without a chance to affirm or withdraw his plea. The trial court denied this motion without a hearing but invited Dawson to file a motion to withdraw his plea, which he eventually did after appointing counsel. This motion was also denied following a hearing. Dawson contends that the sentences contradict the plea agreement, arguing that he should have been allowed to withdraw his plea under Crim. P. 32(d) before sentencing. However, it was noted that a motion to withdraw a plea can only be made before sentencing. The court addressed the merits of Dawson's motion, as the prosecution did not contest the withdrawal request based on the earlier proceedings.

Crim. P. 32(d) states that if a court decides not to include certain concessions from a plea agreement, it must inform the defendant and the district attorney, allowing the defendant to affirm or withdraw their plea. The defendant contends that the prosecutor's agreement not to pursue an aggravated sentence qualifies as a sentence concession under Crim. P. 32(d), but the court disagrees. Crim. P. 11(f) allows the district attorney to agree not to oppose favorable sentence recommendations if the defendant pleads guilty or nolo contendere. The court interprets "sentence concessions" in Crim. P. 32(d) as referring specifically to the prosecution's favorable recommendations, as it references Crim. P. 11(f) without further definition. Previous case law, particularly People v. Wright, confirmed that a favorable recommendation by the prosecution is a sentence concession, necessitating the opportunity for a defendant to withdraw a plea if the court does not follow that recommendation. However, in this case, the prosecutor merely agreed not to recommend an aggravated sentence without offering any favorable sentence recommendation for the defendant. The defendant did not cite any Colorado case supporting his argument, and the court found no authority for such a plea agreement under Crim. P. 32(d). The court concluded that the trial court complied with Crim. P. 32(d) and did not need to address whether the providency court met its obligations regarding sentencing promises. Additionally, the court rejected the defendant's claim of ineffective assistance of counsel at the sentencing hearing, noting that this argument was not raised in the trial court.

Defendant's claim that the prosecutor breached an agreement by suggesting the case deserved an aggravated sentence was rejected. The trial court found that the prosecutor clarified she was not advocating for an aggravated sentence, indicating no misunderstanding of her position. The court's thorough reasoning for the aggravated sentence was upheld, and the appellate review of this issue will not be disturbed. Regarding the defendant's appeal on sentencing discretion, the court noted that the defendant failed to file a timely notice of appeal as required by statute, precluding review of this matter. Lastly, the mittimus must be amended to indicate that the defendant is subject to discretionary parole, not mandatory parole, due to the timing of the crimes. The appeal of the conviction and sentence is dismissed, the motion to withdraw pleas is affirmed, and the case is remanded for mittimus correction.

Justice BENDER supports examining whether the district attorney's statements during the sentencing hearing constituted enforceable concessions within a plea agreement, which would allow the petitioner to withdraw from that agreement upon the court's failure to adhere to those concessions. However, according to C.R.S. § 18-1-409(2), an appellate court cannot review a sentence unless a written notice of intent to appeal is filed within 45 days of sentencing, stating the grounds for the appeal. In this case, the defendant was sentenced on March 8, 2000, and failed to file his notice of appeal until June 13, 2002, which falls outside the statutory deadline and thus bars appellate review of the sentencing issue. Additionally, the mittimus must be amended to indicate that the defendant is subject to discretionary parole, not mandatory parole, due to the timing of the crimes committed. The appeal of the conviction and sentence is dismissed, the denial of the motion to withdraw pleas is affirmed, and the case is remanded for the correction of the mittimus. Judges CASEBOLT and METZGER concur.