People v. Rojas

     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

                                

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, 

, 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, 

 (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                                          

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, 

, 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, 

 (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, 

 (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,
  

, ¶¶ 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, 

 (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), 

.



                                       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, 

 (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, 

.

                             2.    Discussion

¶ 18   In the recently announced case People v. Hernandez-Escajeda,

  

, 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, 

,

  ¶ 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, 

  (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., 

, 997 (Colo. 1983); see People v. Bassford, 

.

  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, 

  (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, 

 (Colo. App.

  2009) (alteration in original) (quoting People v. Chavez, 

 (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, 

 (Colo. App. 2007).

                             2.    Discussion

¶ 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, 

. 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, 

  (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, 

 (“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,

  

 (“[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, 

).

  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.” 

¶ 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, 

 (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.” 

 “If the prosecution is unable to rebut

  the presumption of vindictiveness, the new sentence is invalid.” 

¶ 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,

 (4th Cir. 1985); see United States v. Steele,

 (9th Cir. 1993); United States v.

Pimienta-Redondo, 

 (1st Cir. 1989); United States v.

Gilliss, 

 (8th Cir. 1981); United States v.

Hawthorne, 

 (3d Cir. 1976); State v. Thomas,

, 145-46 (Md. 2019); see also United States v. Barash,

 (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, 

 (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,

 (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,

  

 (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, 

 (“We have

  no doubt that the subsequent sentence is more severe than the

  original one.”).

¶ 36   The People rely on People v. Montgomery, 

 (Colo.

  1987), and State v. Smith, 

 (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, 

. 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 

; Smith, 

. 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, 

 (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 

(“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, 

 (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, 

. 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, 

 (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, 

. 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. 

 at

  140 n.3 (quoting Chaffin v. Stynchcombe, 

 (1973));

  see United States v. Newman, 

 (9th Cir. 1993)

  (“When different courts impose different sentences, . . . there is no

  presumption of vindictiveness . . . .”); Bowser v. State, 

 (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, 

 (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, 

.

  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, 

. 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, 

 (Colo. App. 2007).

                             2.    Discussion

¶ 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, 

 (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, 

, ¶ 33 (alterations

  in original) (quoting People v. Tuffo, 

 (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, 

 (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, 

 (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.” 

 at 139 (quoting


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  Molina-Martinez v. United States, 

, 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, 

.

                            III.   Disposition

¶ 50   Rojas’s new sentences are affirmed.

       JUDGE HARRIS and JUDGE KUHN concur.




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