2021 CO 51
Colo.2021Background
- Lowe was charged with five felony counts arising from sex-related conduct; he pleaded guilty to two class 3 felonies (soliciting for child prostitution and patronizing a prostituted child) under a plea agreement.
- The plea agreement recommended 8 years determinate prison for solicitation followed by a consecutive indeterminate Sex Offender Intensive Supervision Probation (SOISP) term (minimum ~20 years) for patronizing.
- After this court decided Allman v. People (prohibiting consecutive prison-and-probation sentences in multi-count cases), the district court, interpreting Allman broadly, vacated Lowe’s guilty pleas, sentences, and judgment and reinstated the original charges.
- Lowe sought relief by C.A.R. 21; the Colorado Supreme Court exercised original jurisdiction because an appeal would be inadequate and the issue presented recurring public importance.
- The Supreme Court, relying on its companion decision in People v. Manaois, held that Allman’s ban on consecutive prison/probation sentences does not apply where SOLSA/SOISP governs the consecutive SOISP sentence; it reversed the district court’s vacatur and directed reinstatement of Lowe’s pleas, sentences, and judgment, and remand to resolve postconviction motions.
Issues
| Issue | People’s Argument | Lowe’s Argument | Held |
|---|---|---|---|
| Whether Allman’s prohibition on imposing prison for some counts and probation for others bars a consecutive prison sentence followed by SOISP under SOLSA | Allman bars any consecutive prison+probation sentence in a multi-count case, so Lowe’s sentence is illegal | SOLSA is a distinct sentencing scheme that authorizes consecutive SOISP after prison; Allman does not apply | Court held Allman does not apply to a prison sentence followed by SOISP under SOLSA (following Manaois); Lowe’s sentences were not illegal and the district court erred in vacating them |
| Whether reinstating Lowe’s charges after vacatur violated double jeopardy | (People) Reinstatement and further prosecution were permissible; dismissal unwarranted | (Lowe) Reinstatement violated Double Jeopardy | Court declined to resolve the double jeopardy claim on the merits and did not rule for Lowe; it left the district court’s refusal to dismiss intact and remanded for reinstatement and further proceedings |
Key Cases Cited
- Allman v. People, 451 P.3d 826 (Colo. 2019) (held district courts lack authority under general sentencing statutes to impose prison for some counts and probation for others in multi-count cases)
- People v. Lucy, 467 P.3d 332 (Colo. 2020) (explains narrow scope of C.A.R. 21 and reasons to exercise original jurisdiction)
- People v. Rosas, 459 P.3d 540 (Colo. 2020) (discusses standards for exercising original jurisdiction under C.A.R. 21)
- Sinclair Transp. Co. v. Sandberg, 350 P.3d 924 (Colo. App. 2014) (undeveloped and unsupported claims may be waived)
- United States v. Brocksmith, 991 F.2d 1363 (7th Cir. 1993) (undeveloped and unsupported claims are waived)