People v. Calderon, Court of Appeals No. 13CA0828

• Decision Date: 23 October 2014
• Docket Number: Court of Appeals No. 13CA0828
• Citation: 356 P.3d 993,2014 COA 144
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Joel Antonio CALDERON, Defendant–Appellant.
• Court: Colorado Court of Appeals

356 P.3d 993

2014 COA 144

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Joel Antonio CALDERON, Defendant–Appellant.

Court of Appeals No. 13CA0828

Colorado Court of Appeals, Div. VI.

Announced October 23, 2014

Rehearing Denied November 26, 2014

John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE FOX

¶ 1 Defendant, Joel Antonio Calderon, appeals the district court's orders (1) revoking his probation and (2) denying his motion for reconsideration. We reverse and remand the case for further proceedings.

I. Background

¶ 2 In 2010, defendant pleaded guilty to attempted first degree trespass of an automobile with the intent to commit a crime, and the court sentenced him to two years of intensive supervised probation, with ninety days in jail.

¶ 3 A few months later, defendant's probation officer filed a probation revocation complaint. At the revocation hearing, the probation officer testified that she never had a chance to meet with defendant because he had been released from jail directly to the custody of Immigration Customs Enforcement (I.C.E.).

¶ 4 After the hearing, the district court found that defendant had violated the terms of his probation. The court revoked his probation and resentenced him to two years of intensive supervised probation.

¶ 5 Defendant then filed a motion for reconsideration, arguing that the prosecution (1) failed to establish his identity as the individual who violated probation and (2) only presented hearsay evidence to prove that he had been deported.

¶ 6 The district court denied the motion, finding that (1) the motion did not raise any arguments that had not been raised and considered during the hearing and (2) its ruling that defendant had violated the terms of his probation was proper.

II. Mootness

¶ 7 Initially, we reject the People's argument that the appeal should be dismissed as moot because defendant has been deported.

“Whether an appeal is moot is a question of law that we decide de novo.” People v. Garcia, 2014 COA 85, ¶ 8, ––– P.3d ––––.

¶ 9 “A case is moot when a judgment, if rendered, would have no practical legal effect on an existing controversy.” Warren v. People, 192 P.3d 477, 478 (Colo.App.2008). Generally, an appellate court will decline to render an opinion on the merits of an appeal if the issue is moot. See People v. McMurrey, 39 P.3d 1221, 1223 (Colo.App.2001).

¶ 10 A division of this court has dismissed as moot an appeal of a defendant's sentence to probation based on the defendant's deportation while the appeal was pending. See People v. Garcia, 89 P.3d 519, 519–20 (Colo.App.2004). The division reasoned that the outcome of the appeal would have no practical effect on the defendant because he (1) had been permanently barred from re-entry into the United States based on the nature of his conviction (sexual assault on a minor by one in a position of trust) and (2) had only appealed his sentence (and not the conviction that could alter the status of his ability to re-enter the country). See id . at 520 ; see also Garcia, ¶ 12 (concluding that the appeal was moot based on his deportation because the defendant (1) had already served his sentence; (2) was not contesting his conviction; and (3) was permanently barred from re-entering the United States based on his conviction).

¶ 11 Here, the record contains a 2013 pretrial release services bond report, stating that (1) certain databases showed that defendant's alien status was inadmissible; (2) defendant had self-reported an illegal re-entry into the United States; and (3) defendant had been incarcerated in West Virginia for two and a half years. But, unlike in Garcia, 89 P.3d at 520, the record here does not show that defendant is permanently barred from re-entry into the country.

¶ 12 The People rely on the bond report and argue that defendant is barred from re-entry under 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2012), which provides that an alien is, in general, inadmissible if he “has been ordered removed under section 1225(b)(1) of this title, section 1229a of this title, or any other provision of law, and who enters or attempts to re-enter the United States without being admitted.” However, that statute has an exception for an alien seeking admission more than ten years after the date of his last departure from the United States. See § 1182(a)(9)(C)(ii). Therefore, even if section 1182(a)(9)(C) applies, it does not follow that defendant is permanently barred from re-entry.

¶ 13 Because the record does not establish that defendant is permanently barred from re-entry into the country, we cannot say that the disposition of this appeal would not have a practical legal effect on him. Defendant's probation officer has filed another probation revocation complaint, and there is an outstanding warrant for his arrest. The appeal is therefore not moot. See Warren, 192 P.3d at 478.

¶ 14 The dissent, however, maintains that the appeal is moot and relies, in part, on the following cases: United States v. Mercurris, 192 F.3d 290 (2d Cir.1999) ; United States v. Vera–Flores, 496 F.3d 1177 (10th Cir.2007) ; and United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir.2007). We find these cases to be distinguishable.

¶ 15 In Mercurris, a defendant charged with illegal re-entry into the United States challenged the district court's determination that his earlier convictions for selling marijuana were “aggravated felonies” for sentencing purposes. Mercurris, 192 F.3d at 292. Under federal sentencing guidelines, a prior conviction for an “aggravated felony” enhanced the defendant's maximum potential sentence from one year to more than six years. Id . By the time the challenge reached the Second Circuit, however, the defendant had already served his entire sentence and been deported. Id . at 293. Thus, there was no continuing injury or collateral consequence resulting from the conviction that could have been redressed by a favorable judicial decision. Id. at 293.

¶ 16 Defendant, unlike the defendant in Mercurris, has not completed his sentence and faces a real possibility that his probation could be revoked again in the future. And, as indicated above, there is nothing in the record to indicate that he is permanently barred from re-entry. If he re-enters the country, the consequences of that revocation will constitute a “concrete and continuing injury” that could be redressed by a favorable judicial decision. See id. at 293–94.

¶ 17 In Vera–Flores, the Tenth Circuit addressed whether a criminal case was moot as a result of the defendant's deportation. Vera–Flores, 496 F.3d at 1180–83. The defendant in Vera–Flores had been sentenced to a year in prison, to be followed by three years' supervised release. Id . at 1179. He completed his term of incarceration, was released, and was deported. Id . at 1180. He challenged his sentence, and the Tenth Circuit concluded that the appeal was moot. Id . at 1182. While the defendant was out of the country, the court reasoned, he was unaffected by any sentencing error and the likelihood that the defendant would lawfully re-enter the country while his sentence was still in effect was extremely remote. Id. at 1180–81. Therefore, the defendant's liberty was “in no way affected by any sentencing error,” and he had no injury that could be redressed by a favorable judicial decision. Id . at 1181.

¶ 18 Here, however, the consequences of defendant's probation revocation are not limited in time. If defendant decides to lawfully re-enter the United States—which, as noted, the record does not show that he is permanently barred from doing—a probation revocation and the resulting consequences remain active.

¶ 19 Finally, in Rosenbaum-Alanis, the court declared the case moot because the defendant, who asked that his case be remanded for resentencing, had already completed his term of imprisonment and been deported. 483 F.3d at 382–83. Therefore, even if the court ruled in his favor and remanded the case for resentencing, the defendant could not have been present for resentencing as required by Federal Rule of Criminal Procedure 43. Id . ; Fed.R.Crim.P. 43(a).

¶ 20 Here, however, defendant will not be eligible for a new sentence on remand from a favorable appellate ruling. The court can only reinstate his original sentence, for which he was physically present in accordance with Crim. P. 43. Pursuant to the rule, his presence is not therefore required. See People v. Renfrow, 199 Colo. 101, 103, 605 P.2d 915, 916 (1980) (concluding that the defendant is entitled to be present when the sentence is reduced); see also People v. Nelson, 9 P.3d 1177, 1178–79 (Colo.App.2000) (permitting the trial court to correct a mittimus to include the mandatory period of parole without the defendant's presence because the court would not be imposing a new sentence to take the place of the original one).

¶ 21 We therefore conclude that this appeal is not moot.

III. Probation Revocation

¶ 22 Defendant contends that the district court violated his right to due process when it revoked his probation based on a violation of a condition of probation, where he did not receive (1) notice of the probation conditions when he was sentenced to probation or (2) written notice of those conditions in the revocation complaint. We agree.

A. Standard of Review

¶ 23 We review de novo whether there was a violation of defendant's right to due process. See Quintano v. People, 105 P.3d 585, 592 (Colo.2005) (reviewing de novo whether a defendant was denied due process because it is a question of law); People v. Nave, 689 P.2d 645, 647 (Colo.App.1984) (concluding that the existence of a due process violation is a question of law).

B. Notice of the Conditions of Probation

¶ 24 A defendant must be given written notice of the conditions of his probation. See §...