County District Court No. 11CR2138 Honorable Christopher C.
Cynthia H. Coffman, Attorney General, Michael D. McMaster,
Assistant Attorney General, Denver, Colorado, for
Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for
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.
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
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.
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