Jefferson County District Court No. 11CR2082 Honorable Dennis Hall, Judge
Cynthia H. Coffman, Attorney General, Rebecca L. Williams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Zachariah Clark Dobler, appeals the sentence imposed following his plea of guilty to vehicular homicide and leaving the scene of an accident involving death. We affirm.
¶2 While on probation for a separate felony conviction, defendant, under the influence of alcohol, sped through an accident scene, hitting and killing a tow truck driver. Defendant then fled, only to be apprehended by police several blocks away.
¶3 Defendant pleaded guilty to vehicular homicide and leaving the scene of an accident involving death in exchange for the dismissal of charges of aggravated motor vehicle theft, violation of bail bond conditions, driving under the influence, evading or circumventing an ignition interlock device, reckless driving, and violation of a protective order.
¶4 After an emotional sentencing hearing at which many members of law enforcement who were at the scene of the accident when the victim was killed testified, the sentencing court sentenced defendant to forty-eight years in the custody of the Department of Corrections (DOC), the maximum sentence available under his plea agreement.
¶5 Defendant contends the sentencing judge was biased, depriving him of his constitutional right to have an impartial judge determine his sentence. He argues the following two statements demonstrate the judge was so partial that reversal is required. First, at a hearing on a related matter, the court stated:
I think you can imagine how I feel about this, [defense counsel]. If I hadn't reconsidered this man's sentence, [the victim] would be alive today, and I can't tell you how that makes a judge feel.
And then, at defendant's sentencing, the court observed:
[Defendant], I took a chance on you when I reconsidered that sentence. And now a man is dead. And that's something that's going to haunt me, just like this haunts these other people who were at the scene.
We reject the contention.
¶6 Defendant failed to file a motion to disqualify the judge in the district court. The People argue this failure precludes review of his contention on appeal, while defendant argues this issue may be raised for the first time on appeal because a biased judge cannot preside over a case in which he is prejudiced. Compare People v. Taylor, 131 P.3d 1158, 1167 (Colo.App. 2005) (failure to supply affidavits prevented review of defendant's request for disqualification); People v. Thoro Prods. Co., 45 P.3d 737, 747 (Colo.App. 2001) ("Defendants further claim they were relieved of their duty to file a timely motion because the judge had a duty to recuse on his own motion. We reject that claim. To hold otherwise would obviate the time limit completely and encourage litigants to shop for judges."), with People in Interest of A.G., 262 P.3d 646, 651 (Colo. 2011) ("[T]here is no provision to waive disqualification when actual bias is the concern."); § 16-6-201(1) (d), C.R.S. 2014 ("A judge of a court of record shall be disqualified to hear or ...