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People v. Herrera

Court of Appeals of Colorado, First Division

March 13, 2014

The People of the State of Colorado, Plaintiff-Appellee,
v.
Arturo Cutberto Herrera, Defendant-Appellant

Jefferson County District Court No. 11CR718. Honorable Dennis J. Hall, Judge.

John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant.

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

Opinion by JUDGE DUNN. Taubman and Furman, JJ., concur.

OPINION

DUNN, JUDGE

Page 1013

[¶1] Defendant, Arturo Cutberto Herrera, appeals his sentence on three grounds. He argues that the district court: (1) erred in resentencing him after he was rejected from placement in a community corrections program without first holding a hearing; (2) failed to exercise its discretion when it converted his six-year community corrections sentence to a Department of Corrections (DOC) sentence; and (3) in the alternative, abused its discretion when it resentenced him to six years in DOC. We reject these arguments and affirm.

I. Background

[¶2] Herrera pleaded guilty to third degree assault, resisting arrest, and second degree burglary. Before his sentencing hearing, the county corrections board screening committee accepted Herrera for placement in a community corrections program. Based on this preliminary acceptance and the probation department's recommendation, the district court sentenced Herrera to six years in community corrections. A month after the sentencing hearing, the recommended community corrections program rejected Herrera before he was actually placed in the program because of mental health concerns.

[¶3] Four days after the program rejected Herrera, the probation department requested that the district court resentence Herrera, because " community corrections is no longer an option." That same day, without holding a resentencing hearing, the district court converted Herrera's community corrections sentence to a six-year DOC sentence followed by three years of mandatory parole.

II. No Resentencing Hearing Was Required

[¶4] Herrera argues that the district court erred in converting his community corrections sentence to a DOC sentence without first holding a resentencing hearing. We conclude that the district court was not required to hold a resentencing hearing, and, thus committed no error.

A. Governing Standards

[¶5] Both parties acknowledge that the determination of whether a resentencing hearing was necessary requires us to construe section 18-1.3-301(1)(d), ...


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