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.
A. Standard of Review
¶ 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).
B. Applicable Law and Discussion
¶ 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
range sentence.
IV. Disposition
¶ 34 The sentence is affirmed.
JUDGE PAWAR and JUDGE CARPARELLI concur.
14
