El Paso County District Court No. 13CR3800 Honorable Barney Iuppa, Judge
Daniel H. May, District Attorney, Deborah F. Pearson, Senior Deputy District Attorney, Jennifer Darby, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant
Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee
¶ 1 The People appeal the final sentencing order of the trial court entered on a plea agreement of defendant, Christopher Anthon Mazzarelli. We affirm.
¶ 2 Mazzarelli was charged with child abuse in violation of section 18-6-401(1)(a), C.R.S. 2015, a class three felony as charged under section 18-6-401(7)(a)(III). The People and Mazzarelli reached a plea agreement providing that Mazzarelli would plead guilty to a reduced charge of class four felony child abuse in exchange for a stipulated sentencing range:
The sentence will be a Department of Corrections Sentence (DOC) within the Extraordinary Risk Crime Range of 2 to 8 years. Both sides are free to argue as to actual amount of incarceration the Court should impose.
I understand that any sentence imposed by the judge must conform to that agreement. If, after I plead guilty, the judge decides not to accept the sentence recommendation or limitation, I will have the right to withdraw my guilty plea and have a trial.
¶ 3 The plea agreement did not contain a similar provision allowing the People to withdraw from it.
¶ 4 On April 4, 2014, at an initial hearing, the trial court reviewed the plea agreement with Mazzarelli. The court accepted the plea and set a date for another hearing so it could review the presentence report before sentencing.
¶ 5 On June 26, 2014, at the second hearing, the prosecution proposed a five-year sentence. The prosecution argued:
This is a case where Mr. Mazzarelli was frustrated that a child was crying. And interrupting his ability to play video games. That is what he was doing. He was playing video games.
His wife was at work. Supporting the family. The Defendant was not working at the time. He was to take care of the child. He was playing video games. And a child was inconveniencing him by crying. Upset.
Mazzarelli did not object. The trial court, which was also presiding over Mazzarelli's dependency and neglect (D&N) proceeding, concluded it would be detrimental to the child if his father, Mazzarelli, were imprisoned and rejected the sentence recommendation, stating, "Not only do I not like it, I am not going to accept the plea agreement." The court gave the People the option to withdraw from the plea agreement and set the case for trial or go forward with open sentencing. The People requested time to respond.
¶ 6 On July 17, 2014, Mazzarelli filed a motion for appointment of a special prosecutor. He alleged that the People made "blatantly false statements" to the court during sentencing arguments, focusing on Mazzarelli being unemployed at the time of the incident and stating that he had abused the victim because the child's crying interrupted his playing video games.
¶ 7 On July 18, 2014, at the third hearing, the People clarified their misstatements from the previous hearing:
The two misstatements are, specifically, the defendant was unemployed. He was employed. He was employed at Borriello Brothers. He was working nights while the mother of the victim was working during the day. He was not at work that day, but that ...