Weld County District Court No. 13CR642 Honorable Shannon Douglas Lyons, Judge
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Ruchi Kapoor, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant
¶ 1 The firmly established rule from Blakely v. Washington, 542 U.S. 296 (2004), as applied to Colorado's sentencing scheme in Lopez v. People, 113 P.3d 713 (Colo. 2005), also applies to a direct sentence to community corrections in Colorado. That is clear from the Blakely rule, the Colorado community corrections statute, and Colorado case law. The district court therefore plainly erred in aggravating the community corrections sentence of defendant, Alfred Gabriel Sandoval, based on facts that were neither Blakely-compliant nor Blakely-exempt. We vacate defendant's sentence and remand for resentencing.
¶ 2 According to the affidavit of probable cause for arrest, defendant went to the victim's apartment to collect a drug debt. When the victim did not pay the debt, defendant took out a handgun and shot him in the knee. The People charged defendant with first degree assault, a class 3 felony, and possession of a weapon by a previous offender.
¶ 3 The parties ultimately entered into a plea agreement to a reduced charge of felony menacing, a class 5 felony, and the original charges were dismissed. The plea agreement notified defendant of the "possible penalties" to which he could be sentenced. Those possible penalties included "1 to 3 years confinement in the Colorado Department of Corrections [DOC]; sufficient mitigating circumstances may reduce the minimum to 6 months; sufficient aggravating circumstances may increase the maximum to 6 years; a sentence to the [DOC] requires an additional mandatory parole period of 2 years." See also § 18-1.3-401(1)(a)(V)(A), C.R.S. 2015 (stating that the "presumptive range of penalties" for a class 5 felony is between one year and three years of "imprisonment, " with a two-year period of mandatory parole); § 18-1.3-401(6) (allowing for mitigated or aggravated sentencing based on extraordinary circumstances).
¶ 4 However, the parties stipulated in the plea agreement that "defendant will receive a non-DOC sentence." Further, nothing in the plea agreement or the providency hearing transcript indicated that defendant consented to judicial factfinding for purposes of sentencing. And at the providency hearing, defendant waived the establishment of a factual basis for his guilty plea to the reduced charge of menacing.
¶ 5 At the sentencing hearing, the prosecutor argued for a community corrections sentence, and defense counsel requested a sentence to probation. Neither side recommended a sentence of any particular length.
¶ 6 The district court then asked defendant what happened during the underlying incident, stating, "[A]t this point I'm essentially deciding the length of the term for community corrections[, ] and so I would like to know what happened." In response, defendant stated that it was the victim who pulled out the gun, and that the gun discharged during a struggle.
¶ 7 The district court then imposed a sentence of six years in community corrections, explaining:
[T]his case presents a situation of who[m] to believe. The victim isn't the most believable individual because he gave several different stories [to police]. The defendant's version, quite frankly, is no more credible. So the Court is left with what the crime that was pled guilty to is and some of the underlying facts, ...