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 11, 2021
2021COA13
No. 18CA1360, People v. Propst — Criminal Law — Sentencing
— Probation — Revocation — Resentencing
A division of the court of appeals considers whether a district
court must impose a prison sentence, which was suspended as a
condition of probation, upon a finding that the defendant violated
probation. The division holds, contrary to the division in People v.
Frye, 997 P.2d 1223 (Colo. App. 1999), but consistent with Fierro v.
People,
206 P.3d 460 (Colo. 2009), that section 16-11-206(5), C.R.S.
2020, provides a sentencing court with the discretion to continue
probation, revoke probation, or impose any sentence that it might
originally have imposed. Accordingly, the sentence is vacated and
the case is remanded for resentencing.
COLORADO COURT OF APPEALS
2021COA13
Court of Appeals No. 18CA1360
City and County of Denver District Court No. 17CR4675
Honorable Michael J. Vallejos, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Elisa M. Propst,
Defendant-Appellant.
SENTENCE VACATED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE FREYRE
Fox and Lipinsky, JJ., concur
Announced February 11, 2021
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey M. Klekas, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this sentence appeal, we are asked to decide whether a
sentencing court, after accepting a plea agreement and imposing a
suspended prison sentence conditioned on the successful
completion of probation, has discretion to continue or revoke
probation after finding a violation of probation.
¶2 Another division considered this question in People v. Frye,
997 P.2d 1223 (Colo. App. 1999) (relying on People v. Seals,
899
P.2d 359 (Colo. App. 1995)). That case held that the suspended
sentence was the original sentence and that upon finding a
violation of probation, the court was required to impose the
suspended sentence. Id. at 1226. We respectfully disagree with the
Frye division and hold that section 16-11-206(5), C.R.S. 2020, and
our supreme court’s holding in Fierro v. People,
206 P.3d 460 (Colo.
2009), provide a sentencing court with the discretion to continue
probation, revoke probation, or impose any sentence that it might
originally have imposed. We further hold that, under such
circumstances, a sentencing court’s decision not to impose a
suspended sentence does not breach the parties’ plea agreement.
¶3 Defendant, Elisa M. Propst, appeals her prison sentence
following the court’s finding of a probation violation. She contends
1
that the court was not required to impose the suspended prison
sentence (1) because of the plea agreement and (2) because the
court retained the discretion to continue her on probation, reinstate
probation with new terms, or sentence her to any sentence that it
could originally have imposed. Because we agree, we vacate the
sentence and remand the case for resentencing. On remand, the
court should exercise its discretion to determine whether to
continue probation, revoke and reinstate probation, or impose any
other permitted sentence, including the suspended prison sentence.
I. Background
¶4 The State originally charged Propst with one count of second
degree assault and six counts of child abuse. The prosecutor and
Propst negotiated a plea agreement allowing Propst to plead guilty
to the assault charge in exchange for dismissal of the remaining
charges. The parties also agreed to the following sentence
concession: “Count 1 Assault in Second Degree + 90d DCJ w/
referral to RISE as condition of probation + 2y probation + 6y DOC
suspended (no prior incarceration credit toward 90 days DCJ).” The
district court accepted the plea agreement and sentenced Propst
accordingly.
2
¶5 After completing her jail sentence, Propst reported to the
Denver Probation Department. She appeared for her second
probation appointment on January 11, 2018, and was told that her
intake appointment was scheduled for January 17, 2018. Although
she explained that she lived in Pueblo, probation advised her that
she needed to attend the intake meeting in Denver before her
probation could be transferred to Pueblo. Lacking the funds to
retrieve her car from impound or secure a ride to Denver, Propst did
not appear for the original or rescheduled intake appointments.
Consequently, the probation department filed a complaint alleging
that Propst failed to comply with the following condition of her
probation: “I will report to my probation officer for appointments, as
directed by the court or the probation office. I understand that my
probation officer can visit me at reasonable times at home or
elsewhere. I will provide probation safe access to my residence.”
The probation department recommended that Propst’s probation be
revoked and that the suspended six-year prison sentence be
imposed.
¶6 At the revocation hearing, Propst admitted missing the
intake appointment. She explained that she lived in Pueblo, was
3
indigent, and had no place to stay in Denver. She testified that her
ride to Denver for the intake appointment fell through at the last
minute. She did not have a vehicle or a driver’s license, which
precluded her from borrowing a car, and she could not find another
ride to Denver. She also testified that she attempted to contact the
probation department to reschedule her appointment, but she could
not get ahold of anyone.
¶7 The sentencing court held multiple hearings to determine
whether it had discretion to continue probation or was required to
impose the suspended sentence. The prosecutor argued that the
sentencing court was bound by the terms of the plea agreement
that mandated imposition of the suspended prison sentence.
¶8 The defense argued that the court had discretion to
continue probation for three reasons. First, the plea agreement did
not require the suspended sentence to be imposed after the first
violation. Second, Fierro held there was “no express limitation on
the sentencing court’s discretion in granting or imposing conditions
for continued suspension.” 206 P.3d at 462. And third, the
revocation hearing statute, section 16-11-206(5), required the
court, within seven days of the hearing, to revoke or continue
4
probation and permitted it, upon revocation, to impose any
sentence or grant any probation that could originally have been
imposed.
¶9 The court agreed with the prosecutor and reasoned that
“when the Court accepts a plea agreement that has a suspended
sentence that’s negotiated with the parties, then the Court is bound
by that agreement as well.” It further believed that failing to impose
the suspended sentence would violate the plea agreement and
would allow the prosecutor to withdraw from that agreement. The
court was not persuaded by Fierro because that case did not involve
a plea agreement. It then sentenced Propst to six years in the
custody of the Department of Corrections.
II. Sentencing Discretion
¶ 10 Propst contends the sentencing court legally erred by finding
that it lacked the discretion to impose a sentence other than the
suspended sentence, upon finding a probation violation. We agree.
A. Standard of Review and Applicable Law
¶ 11 The interpretation of a plea agreement is a legal question that
we review de novo. People v. Villela, 2019 COA 95, ¶ 10.
5
¶ 12 Crim. P. 11 permits a defendant to plead guilty under an
agreement with the prosecution. The sentencing court retains the
ultimate discretion to accept or reject any sentence concessions in
the plea agreement. People v. Mazzarelli, 2019 CO 71, ¶ 24. Once
the sentencing court formally accepts the plea agreement and is
satisfied the defendant understands its terms, the court, like the
defendant and the prosecutor, is “bound by the terms of the
agreement and [cannot], absent proof of fraud or breach of the plea
bargain, set the agreement aside.” People v. Roy,
109 P.3d 993,
995-96 (Colo. App. 2004) (quoting United States v. Ritsema,
89 F.3d
392, 402 (7th Cir. 1996)).
¶ 13 A defendant accused of violating probation is entitled to a
hearing. See § 16-11-206. Upon a finding that the defendant
violated a condition of probation, the court may “revoke or continue
the probation. If probation is revoked, the court may then impose
any sentence or grant any probation . . . which might originally
have been imposed or granted.” § 16-11-206(5).
¶ 14 A plea agreement may include a conditional sentence
suspending the “imposition or execution of [a] sentence for such
period and upon such terms and conditions as [the sentencing
6
court] may deem best.” § 18-1.3-401(11), C.R.S. 2020. Colorado
courts often apply general contract principles to interpret plea
agreements. See Mazzarelli, ¶ 3. However, absent express
language “addressing the contingency of revocation . . . 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).
B. Analysis
¶ 15 Propst does not dispute that she violated a condition of her
probation. Rather, she contends the sentencing court
misapprehended the scope of its discretion in resentencing her.
Propst relies on Mazzarelli and Fierro to argue that the court had
discretion under section 16-11-206(5) to continue her probation or
to revoke and reinstate probation.
¶ 16 To begin, we find Mazzarelli distinguishable from this case. In
Mazzarelli, the defendant pleaded guilty under a plea agreement,
and the court accepted the plea. Mazzarelli, ¶ 9. However, the
court then rejected the parties’ sentence agreement and imposed a
more lenient sentence. Id. at ¶¶ 10-11. Under these
7
circumstances, the supreme court found the application of general
contract law principles inapplicable in analyzing the plea
agreement. Id. at ¶ 26. It held that “when the [sentencing] court
rejects a sentence concession in a plea agreement after accepting
the defendant’s guilty plea, the statute and rules do not permit the
People to withdraw from the agreement.” Id.
¶ 17 Unlike Mazzarelli, where the court accepted the defendant’s
plea but rejected the parties’ sentence concession by imposing a
more lenient sentence, the sentencing court here accepted Propst’s
guilty plea and followed the plea agreement. Thus, we reject
Propst’s reliance on Mazzarelli to argue that the sentencing court
had the discretion to impose a different sentence. See id. at ¶ 3 n.2
(“Nothing in this opinion should be viewed as passing judgment on
the appropriate remedy, if any, when a party breaches a plea
agreement after the defendant has pled guilty.”).
¶ 18 Nevertheless, we conclude that Fierro provided the sentencing
court with the discretion to continue probation, revoke and
reinstate probation, or revoke probation and impose any sentence
that the court might originally have imposed. In Fierro, the district
court imposed two suspended prison sentences on the condition
8
that the defendant successfully complete three years of probation.
206 P.3d at 461. Three years later, the court revoked the
defendant’s probation and resentenced her to three years in a
community corrections program, rather than imposing the
suspended prison sentences.
Id. A division of this court reversed
the sentence and found that the district court was required to
impose the suspended prison sentence.
Id. at 460. Our supreme
court granted certiorari to consider whether this court erred by
remanding for imposition of the original prison sentence.
Id. at
461.
¶ 19 After a lengthy discussion detailing the history of the statutory
interplay between probation and suspended prison sentences, the
supreme court held, under section 18-1.3-401(11), that “the power
to suspend a sentence complements, rather than supplants, a
sentence to probation.”
Id. at 465. And “any requirements upon
which the suspension of a sentence is conditioned must conform to
the statutory requirements of and for probation; both revocation for
violation of probationary conditions and resentencing upon such
revocation are governed by the statutory provisions governing
revocation of probation.”
Id. (citing § 16-11-206(5)). The court then
9
held that section 16-11-206(5) granted the district court the
discretion to sentence the defendant to community corrections
because that was a sentence the court could originally have
imposed. Id. at 465-66.
¶ 20 As in Fierro, the sentencing court imposed a suspended six-
year prison sentence on the condition that Propst successfully
complete two years of probation. By imposing a sentence with a
suspended prison term, the court did not cede its discretion to
consider all the available sentencing options upon finding a
violation of probation. Instead, the suspended sentence served to
“notify [Propst] of the sentence that would be imposed but for the
alternative of probation and to which [she] remain[ed] subject in the
event of a violation of probationary conditions, without
simultaneously rendering the sentence illegal and void.” Id. at 465.
Thus, the sentencing court had broad discretion to resentence
Propst under section 16-11-206(5) and after finding she violated a
condition of her probation. See Villela, ¶ 16.
¶ 21 We are not persuaded otherwise by the People’s reliance on
Frye. In Frye, the district court sentenced the defendant, under a
plea agreement, to sixteen years in prison, suspended on the
10
condition of his successful completion of twenty-five years of
probation. 997 P.2d at 1224. Following a revocation hearing, the
district court revoked probation and imposed the suspended
sentence.
Id. at 1225. On appeal, the defendant challenged the
legality of the suspended sentence under section 16-11-101(1),
C.R.S. 1999, and he argued that section 16-11-206(5) gave the
court discretion to impose any sentence that could originally have
been imposed. Frye,
997 P.2d at 1225. The division rejected his
arguments and held that the suspended sentence constituted the
original and final sentence and, thus, that the court was required to
impose the suspended sentence.
Id. at 1226-27 (relying on Seals,
899 P.2d at 361). It then found section 16-11-206(5) inapplicable
where probation was imposed as a condition of a suspended
sentence. Id. at 1226.
¶ 22 While Frye technically remains good law, Fierro called its
holding into doubt. Fierro,
206 P.3d at 464. In discussing the
sentencing statutes, the supreme court found it difficult to discern
any legislative intent in the language of sections 18-1.3-401(11) and
16-11-206(5) that would allow “sentencing courts on their own
initiative, or defendants and prosecutors through plea negotiations,
11
to limit the court’s obligation to fairly consider all available
sentencing options, at the time of a violation of conditions of
probation.” Id. at 464-65 (emphasis added). It reasoned that in
cases where probation is a permissible alternative, “little purpose
could be served by construing suspension as a sentencing
alternative separate and distinct from probation.”
Id. at 465.
¶ 23 Because the supreme court’s reasoning is equally applicable
here, we hold, contrary to Frye, that section 16-11-206(5) apply
where probation is imposed as a condition of a suspended sentence.
We further hold that it is inconsequential whether the suspended
sentence was imposed under a plea agreement. The plea agreement
here contains no specific language that addresses the probation
violation contingency. Absent such language, the court retained
broad discretion to resentence Propst to any sentence that it could
originally have imposed under section 16-11-206(5). See Griego,
207 P.3d at 872; People v. McDaniels,
844 P.2d 1257, 1258 (Colo.
App. 1992).
¶ 24 Finally, the People contend that if the sentencing court is
permitted to impose a sentence other than the suspended six-year
prison sentence, such sentence would breach the plea agreement
12
and allow them to withdraw from the plea agreement and reinstate
the original charges. We are not persuaded.
¶ 25 The prosecution may only withdraw from a plea agreement
and reinstate the original charges when there is a material and
substantial breach of the agreement. Keller v. People, 29 P.3d 290,
298 (Colo. 2000). But because we have concluded that section 16-
11-206(5) grants the court the discretion to impose any sentence
that could originally have been imposed upon a probation
revocation, the imposition of a lawful sentence other than prison
would not constitute a material and substantial breach of the plea
agreement.
¶ 26 Accordingly, we conclude the sentencing court legally erred by
finding that it lacked the discretion to impose any sentence other
than the suspended six-year prison sentence.
III. Conclusion
¶ 27 The sentence is vacated, and the case is remanded for
resentencing on the probation violation.
JUDGE FOX and JUDGE LIPINSKY concur.
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