Walker v. Arries
| Decision Date | 02 November 1995 |
| Docket Number | No. 95CA0246,95CA0246 |
| Citation | 908 P.2d 1180 |
| Parties | Gary WALKER, Plaintiff-Appellant, v. William ARRIES, County Court Judge for Weld County, Colorado, Defendant-Appellee. . III |
| Court | Colorado Court of Appeals |
Dickson and Dickson, P.C., Charles B. Dickson, Greeley, for Plaintiff-Appellant.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Alesia M. McCloud-Chan, Assistant Attorney General, Denver, for Defendant-Appellee.
Opinion by Judge JONES.
Plaintiff, Gary Walker, appeals the district court's dismissal of his complaint under C.R.C.P. 106(a)(4). We affirm.
The following facts are not in dispute. In 1994, plaintiff was charged in the Weld County Court under § 42-4-1202, C.R.S. (1993 Repl.Vol. 17), now recodified at § 42-4-1301, C.R.S. (1995 Cum.Supp.), with one count of driving under the influence of alcohol and a second count of driving with excessive alcohol content. At a pre-trial conference, a plea agreement was negotiated and thereafter presented to the county court. The terms of the agreement were that, in consideration for dismissal of count two, plaintiff would plead guilty to the first count. The agreement made reference to plaintiff's alcohol level and specified plaintiff had "no priors."
Without further information, the county court proceeded to immediate sentencing. The plaintiff was placed on probation, ordered to perform useful public service, referred to the probation department for an alcohol evaluation, fined, and assessed various court costs.
Later in the day, the county court discovered that, in 1993, plaintiff had pled guilty to driving while ability impaired, and had received a deferred sentence. A meeting the next day with the deputy district attorney and plaintiff's attorney disclosed that they had agreed that the present offense would not result in the revocation of plaintiff's deferred sentence and that, consequently, neither party believed the 1993 plea constituted a prior conviction for sentencing purposes.
Subsequent to this meeting, defendant here, county court Judge William Arries, ordered the parties to appear for resentencing. Plaintiff then initiated this action in the district court, pursuant to C.R.C.P. 106(a)(4), contending that the order was in excess of the county court's jurisdiction. The county judge filed a motion to dismiss the complaint. Following a hearing, the district court granted the motion and this appeal followed.
Plaintiff's sole contention is that the district court erred in dismissing his C.R.C.P. 106(a) claim. The crux of plaintiff's argument is that the original sentence imposed by the county judge was valid and, hence, that judge lost jurisdiction to reconsider whether, in light of the 1993 plea and deferred sentence, a different sentence would be more appropriate. We disagree with plaintiff.
The district court's scope of review in a C.R.C.P. 106(a)(4) proceeding is strictly limited to determining whether defendant exceeded his jurisdiction or abused his discretion. Pueblo v. Fire & Police Pension Ass'n, 827 P.2d 597 (Colo.App.1992). On appeal, this court is governed by the same standard as the district court.
If the original sentence imposed by a trial court is valid, that court is without jurisdiction subsequently to revise or alter the sentence. People ex rel. Dunbar v. District Court, 180 Colo. 107, 502 P.2d 420 (1972). If, on the other hand, the original sentence is invalid, that is, the sentence entered was illegal or imposed in an illegal manner, then the court has the "right and duty" to set the sentence aside. Smith v. Johns, 187 Colo. 388, 532 P.2d 49 (1975); People v. Emig, 177 Colo. 174, 177, 493 P.2d 368, 369 (1972). See also Crim.P. 35(a).
The dispositive issue before us is, thus, whether the original sentence entered by the county judge was valid. We conclude that it was not.
The pertinent statutory provisions, now codified as § 42-4-1301(9)(a) & (b), C.R.S. (1995 Cum.Supp.), define alcohol and drug-related offenses and set forth a mandatory sentencing scheme upon conviction thereof. Of critical significance is § 42-4-1301(9)(e)(I), C.R.S. (1995 Cum.Supp.) which provides in pertinent part:
The court shall consider the alcohol and drug evaluation required pursuant to subsection (5) of this section prior to sentencing; except that the court may proceed to immediate sentencing without...
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