Boulder County District Court No. 14CR490 Honorable Patrick
D. Butler, Judge
Philip
J. Weiser, Attorney General, John T. Lee, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Brian Cox, Deputy
State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
DAILEY, JUDGE
¶
1 Defendant, Danny Lee Villela, appeals the sentence imposed
following termination of his probation. We affirm.
I.
Background
A.
Plea and First Probation Revocation
¶
2 Defendant was originally charged with, among other things,
menacing and six counts of child abuse after he threatened
and physically abused his wife and their children. Pursuant
to a written plea agreement, he pleaded guilty to menacing
and child abuse. In the agreement, the parties agreed that
the sentence to be imposed would be at the discretion of the
court, but that, if the district court sentenced defendant to
the custody of the Department of Corrections (DOC), the
sentences would be in the presumptive range of one to three
years and would run concurrently to each other.
¶
3 Defendant requested a sentence to probation, and the
district court sentenced him to five years of probation. The
next year, following a violation of the probation terms, the
court revoked and reinstated defendant's probation.
B.
Second Probation Revocation
¶
4 A year later, the People again moved to revoke
defendant's probation after he escaped from his program,
contacted the victim in violation of a protection order, took
her truck, and fled the jurisdiction.
¶
5 The court revoked defendant's probation. At the
resentencing hearing, defendant argued that the court could
impose presumptive range DOC sentences of no more than three
years for each of his class 5 felonies, because he had
"specifically pled guilty to the presumptive range"
and his plea documents did not state "what the
aggravating range was" for these crimes. However, he
acknowledged that the original stipulations set forth in the
plea agreement were no longer operative:
I am fully aware of the fact that when somebody is sentenced,
[if] they violate the sentence, that things like stip to no
prison, stip to, you know, stip to probation, that those
things do not carry over if someone violates.
¶
6 The prosecutor noted that the plea documents set forth the
potential for an aggravated range sentence, and that
defendant had several prior felonies that were
Blakely-exempt factors.[1] The prosecutor also asserted
the applicable sentencing statutes permitted the court to
"re-sentence[] the Defendant at its discretion"
upon a probation violation. The court agreed and found that
the plea agreement advised defendant of the potential for an
aggravated range sentence.
¶
7 The prosecutor then asked the court to impose a
four-and-a-half-year aggravated range DOC sentence. In
support, the prosecutor noted, among other things,
defendant's numerous prior felony convictions; that
defendant had pleaded guilty to a new criminal violation that
involved contacting the victim and fleeing to another state
while still on probation; the sadistic, violent circumstances
of the original crimes; and the number of child victims
involved in the original crimes. The court imposed concurrent
four-year terms in the DOC on each count.
¶
8 Defendant appealed his DOC sentence, contending that the
district court erred in imposing an aggravated range sentence
because (1) it violated the stipulated sentencing range set
forth in the original plea agreement; and (2) the sentence
was aggravated in violation of Apprendi v. New
Jersey, 530 U.S. 466 ...