Montoya v. People
| Decision Date | 06 December 1993 |
| Docket Number | No. 92SC236,92SC236 |
| Parties | John Louis MONTOYA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Lowery and Lowery, P.C., Philip E. Lowery, Spero A. Leon, Denver, for petitioner.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for respondent.
An eight-count information was filed against the petitioner, John Louis Montoya (Montoya), as the result of his participation in a series of sham investment schemes. Montoya pleaded guilty to two of the counts and was sentenced to probation. Montoya subsequently violated his probation and was resentenced to a term beyond the presumptive range. He appealed his sentence to the court of appeals which upheld the district court's sentence. We granted certiorari to review whether the court of appeals erred in upholding the district court's finding that aggravating circumstances were present to justify a sentence beyond the presumptive range provided by statute. Montoya v. People, No. 90CA1518 (Colo.App. Feb. 13, 1992). We affirm the court of appeals.
On September 2, 1983, an eight-count information was filed charging Montoya with the following: two counts of felony theft; two counts of fraudulent and other prohibited practices; two counts relating to the registration of brokers, dealers, principals, and financial representatives; and two counts related to the registration of securities in connection with a series of sham investment schemes. On May 28, 1985, pursuant to a plea agreement with the prosecution, Montoya pleaded guilty to a count relating to the registration of brokers, dealers, principals, and financial representatives 1 and to an additional count for failure to comply with the security registration requirements. 2
In exchange for Montoya's plea of guilty to the two counts, the prosecution agreed to dismiss all remaining counts. The prosecution also stipulated to a four-year concurrent probationary sentence. In order to achieve the concurrent sentence, the prosecution planned to prove aggravation. 3 During the four-year probationary term, Montoya was to perform 400 hours of community service and pay a total of $44,000 in restitution to his victims.
When the district judge questioned what particular facts supported aggravation, the prosecution withdrew the request for aggravation and asked for the imposition of two consecutive two-year probationary terms. The new sentence recommendation required Montoya to perform the same four years of probation as the prior recommendation, but did not require a finding of aggravating circumstances.
During the course of the providency hearing, Montoya was informed that he could still be subject to sentences beyond the presumptive range if a court were to find extraordinary aggravating circumstances. Montoya was advised that if aggravating circumstances were found, a court could double the maximum presumptive range and thereby impose a four-year sentence for each of the two counts. Montoya acknowledged this possibility when he entered his plea of guilty to the two counts.
Montoya advised the judge at the providency hearing that if the judge accepted the plea agreement, Montoya would pay the restitution over the four-year probationary period. The court accepted the plea and sentenced Montoya to two years on each count to run consecutively. The judge then suspended the sentence and placed Montoya on probation for a four-year period during which time he was to perform community service and make restitution in accordance with the terms of the plea agreement.
Montoya failed to meet the restitution and community service requirements of probation. On September 20, 1988, Montoya was convicted of violating his probation and his probation was revoked. On November 10, 1988, a different district court judge found aggravating circumstances and imposed consecutive four-year sentences on both counts.
The court of appeals vacated the sentences because a presentence report had not been provided to Montoya in a timely fashion, and then remanded to the district court for resentencing. Thereafter, on June 26, 1990, the prosecution asserted that the initial sentence was illegal and that the district court, upon resentencing, was not restricted to the length of the suspended sentence imposed by that judge. Montoya claimed that if the initial sentence was illegal, he should be permitted to withdraw his guilty pleas because the illegal sentence was an "integral part" of the plea agreement.
Upon resentencing, the district court held that the initial sentence imposed was "illegal and void ab initio." 4 The district court, however, found that although the initial sentence was illegal, Montoya received exactly what he had bargained for--four years of probation. Therefore, Montoya was not allowed to withdraw his pleas. In resentencing Montoya, the district court found aggravating circumstances and imposed two consecutive four-year sentences based on Montoya's violation of probation as well as his actions prior to the imposition of the initial sentence.
The court of appeals affirmed the order and sentence of the district court. The court of appeals also affirmed the district court's denial of Montoya's request to withdraw his guilty pleas and finding of aggravating circumstances.
Although the district court's suspension of Montoya's prison sentence and imposition of probation was invalid, the plea agreement supports the sentence of probation. As the court of appeals noted, Montoya got exactly what he bargained for--four years of probation.
Because the record contains sufficient facts to establish Montoya's violation of the terms of probation, the court of appeals properly affirmed the trial court's ruling that circumstances existed which justified a sentence beyond the presumptive range.
We agree with the court of appeals holding that the district court did not abuse its discretion in finding aggravating circumstances. We hold that the record is sufficient to support the trial court's finding of aggravating circumstances. The court of appeals properly affirmed the aggravated sentence imposed by the district court.
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. Wieghard, 743 P.2d 977 (Colo.App.1987).
Although a substantially increased sentence raises a presumption of vindictiveness, both the events subsequent to the sentencing, and the fact that a different judge imposed the more severe sentence, are evidence which can refute the presumption of vindictiveness. Id.; see also, Rock v. Zimmerman, 959 F.2d 1237 (3d Cir.1992) (). Sentencing is a discretionary process based on a totality of the circumstances before the court. Flower v. People, 658 P.2d 266 (Colo.1983).
In this case, the original plea agreement between Montoya and the State required Montoya to perform 400 hours of community service and to pay a total of $44,000 in restitution. The agreement, which was accepted on May 28, 1985, was included in the probationary order and directed Montoya to fulfill his obligations over the four-year probationary period. As of September 20, 1988, when his probation was revoked, Montoya had not made any significant restitution and had not performed any community service. When probation is revoked, the trial court may impose any sentence "which might originally have been imposed or granted." § 16-11-206(5), 8A C.R.S. (1986). See People v. McDaniels, 844 P.2d 1257, 1258 (Colo.App.1992) ().
The district court found specific evidence to justify aggravation. The district court judge stated on November 10, 1988:
The Court having...
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