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People v. Sosa

Court of Appeals of Colorado, Fourth Division

June 16, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Alejandro Armando Sosa, Defendant-Appellant.

         Arapahoe County District Court No. 11CR2138 Honorable Christopher C. Cross, Judge

          Cynthia H. Coffman, Attorney General, Michael D. McMaster, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Defendant-Appellant

          TERRY JUDGE

         ¶ 1 When a defendant pleads guilty and receives a deferred judgment as part of the plea, does the court of appeals have jurisdiction to hear an appeal challenging the denial of a Crim. P. 32(d) motion for withdrawal of the plea before the judgment is entered and the defendant is sentenced? Despite the unfortunate consequences that a defendant will incur even before sentence is imposed, we conclude that the answer to this question is "no."

         ¶ 2 Defendant, Alejandro Armando Sosa, entered into a plea agreement to a deferred judgment. He later filed a motion seeking to withdraw his guilty plea to attempted contributing to the delinquency of a minor under Crim. P. 35(c), and to withdraw his guilty plea to patronizing a prostituted child under Crim. P. 32(d). After he filed an appeal of the order denying that motion, the People filed a motion to dismiss the appeal for lack of jurisdiction, and defendant responded. Because we conclude that this court lacks jurisdiction to consider the appeal of his Crim. P. 32(d) motion, we dismiss that portion of the appeal without prejudice and do not reach the merits. And for reasons discussed below, we affirm the denial of his Crim. P. 35(c) motion.

         I. Background

         ¶ 3 In late 2012, law enforcement officers discovered defendant, who was thirty-six years old at the time, leaving a hotel room with a fifteen-year-old girl (the victim). The victim informed the police that defendant had had sex with her and had provided her with marijuana. The police searched the hotel room and recovered a used condom, which contained both defendant's and the victim's DNA. Defendant was charged with three counts: (1) contributing to the delinquency of a minor; (2) sexual assault; and (3) possession of marijuana.

         ¶ 4 As part of a plea agreement, defendant pleaded guilty to an amended count of attempted contributing to the delinquency of a minor (Count 1) and was sentenced to three years of probation on that count. He also agreed to allow an added count of patronizing a prostituted child (Count 4), and in exchange for his guilty plea to that charge, he was given a deferred judgment and sentence, and was ordered to complete sex offender intensive supervised probation.

         ¶ 5 The probation department later filed a complaint seeking to revoke the deferred judgment, alleging that defendant had been unsuccessfully discharged from his sex offender treatment program and had failed to comply with the terms of his probation. While that complaint was pending, defendant filed a motion to withdraw his guilty plea to Count 1 - apparently relying on Crim. P. 35(c) - and to withdraw his guilty plea to Count 4 - apparently relying on Crim. P. 32(d). He asserted that his pleas were not voluntary and knowing because he was denied effective assistance of counsel when his plea counsel failed to adequately advise him of the collateral consequences of entering those pleas. He also asserted that plea counsel failed to inform him of his likely inability to comply with the terms and conditions of probation and a deferred judgment.

         ¶ 6 The district court held an evidentiary hearing and denied the motion. After defendant filed this appeal, the district court granted a continuance of the hearing on the probation department's revocation motion, pending the outcome of this appeal.

         II. Motion to Dismiss

         ¶ 7 The People assert that we must dismiss this appeal. They contend that no final, appealable judgment exists because defendant's deferred judgment has not yet been revoked and he has not been sentenced. With respect to the appeal of the district court's denial of defendant's Crim. P. 32(d) motion, we agree. As noted below, we do not dismiss the appeal of the denial of defendant's motion under Crim. P. 35(c).

         A. Legal Standards

         ¶ 8 "Every court has authority to hear and decide the question of its own jurisdiction." In re Water Rights of Elk Dance Colo., LLC, 139 P.3d 660, 670 (Colo. 2006). Under section 13-4-102, C.R.S. 2015, the court of appeals has initial appellate jurisdiction over all final judgments entered by district courts of the state. See also C.A.R. 1(a)(1). A final judgment is "one that ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to ...


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