266 P.3d 424
Colo. Ct. App.2011Background
- Ortega pled guilty to child abuse resulting in serious bodily injury under a written plea agreement with a 15–20 year DOC sentencing range.
- Ortega signed a Crim. P. 11 advisement form acknowledging the elements and full penalties, including a 10–32 year mandatory range.
- The court accepted the plea as knowing, voluntary, and intelligent, and sentenced Ortega to 19 years in the DOC.
- Ortega unsuccessfully moved for Crim. P. 85(b) reconsideration of sentence and then filed a Crim. P. 85 motion seeking relief and counsel.
- Ortega argued the 19-year sentence exceeded the maximum presumptive sentence for a class three felony and was illegal.
- The court denied the Crim. P. 85 motion, and the opinion affirms the decision on multiple grounds, including Apprendi-based challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentence was legal or illegal under the statutory scheme | Ortega contends the 19-year term exceeds presumptive limits. | Ortega argues the sentence is not authorized by law. | Not illegal; proper calculation within expanded presumptive range. |
| Whether Apprendi/Blakely requires jury fact-finding for enhancement | Ortega claims aggravated sentence exceeds statutory maximum due to non-admitted factors. | Enhancement facts were elements proven by guilty plea. | Sentence upheld; no Apprendi/Blakely violation. |
| Whether the plea was knowing, voluntary, and intelligent given alleged illegal sentence | Plea induced by illegal sentence and lack of awareness of extraordinary risk aggravator. | Plea was voluntary; sentence within agreed range and mandatory terms were acknowledged. | Plea valid; record shows awareness of mandatory sentencing and agreed range. |
| Whether counsel or court failed to ensure knowing voluntariness or provided ineffective assistance | Counsel failure to object to alleged illegal sentence; ineffective assistance. | Courts and record negate claims; issues not raised in the Crim. P. 35 motion are not reviewable. | Claims abandoned or not raised; no relief for ineffective assistance. |
| Whether the district court properly denied a hearing and appointment of counsel | Motion warranted an evidentiary hearing due to asserted legal flaws. | Record shows no entitlement to relief or hearing. | Denial of hearing affirmed; no appointment of counsel. |
Key Cases Cited
- People v. Eppens, 979 P.2d 14 (Colo.1999) (affirmation of basis for ruling on legality of sentence)
- People v. Wenzinger, 155 P.3d 415 (Colo.App.2006) (framework for determining if sentence is authorized by law)
- Greymountain, 952 P.2d 829 (Colo.App.1997) (extraordinary risk of harm enhancement affects presumptive range)
- Hoefer, 961 P.2d 563 (Colo.App.1998) (applies Greymountain reasoning to extraordinary risk offenses)
- Lopez v. People, 113 P.3d 713 (Colo.2005) (statutory maximum equals maximum in presumptive range unless other statutes apply)
- People v. Hogan, 114 P.3d 42 (Colo.App.2004) (presumptive range concepts for class felony sentences)
- Duran v. Price, 868 P.2d 375 (Colo.1994) (no right to counsel at Crim. P. 35 hearing when not warranted)
- People v. Flagg, 18 P.3d 792 (Colo.App.2000) (review limits for postconviction relief proceedings)
- People v. Goldman, 923 P.2d 374 (Colo.App.1996) (claims not raised in the motion are not properly before the court)
- People v. Rodriguez, 914 P.2d 230 (Colo.1996) (concerning procedural abandonment of claims)