Veith v. People, 2017 CO 19

Austin Veith pleaded guilty to one count of theft and one count of securities fraud under a plea agreement allowing the court to impose prison or probation (prison capped at 12 years).
Before sentencing, Veith asked the court to impose probation instead of incarceration and submitted a proposed set of 25 probation conditions tailored to economic crimes.
At sentencing the trial court imposed 10 years’ incarceration on the theft count and 25 years of supervised probation on the securities fraud count, including Veith’s proposed 25 conditions plus three additional conditions the court added.
Veith did not sign a probation order accepting the conditions and filed a Crim. P. 35(a) motion arguing the court lacked authority to impose probation because he had not consented to the imposed sentence. The trial court denied the motion.
The court of appeals held Veith had consented to probation by requesting it but had not consented to the three added conditions; it remanded to remove those conditions. The Colorado Supreme Court granted certiorari.

Issue	Veith's Argument	People’s Argument	Held
Whether a court may impose probation without the defendant’s consent when the court also imposes a term of incarceration	Veith argued he consented only to probation in lieu of incarceration; the court’s addition of a 10‑year prison term exceeded his consent so probation could not be imposed	The People argued Veith’s prior request for probation and failure to object at sentencing constituted acquiescence/consent to the mixed sentence	A court cannot impose probation without the defendant’s consent; imposing incarceration in addition to probation exceeded Veith’s consent, so the probationary sentence was invalid

Misenhelter v. People, 234 P.3d 657 (Colo. 2010) (sentence legality reviewed de novo)
People v. Smith, 318 P.3d 472 (Colo. 2014) (defendant must accept court’s probation terms; probation is a privilege)
Holdren v. People, 452 P.2d 28 (Colo. 1969) (probation suspends a harsher judgment; not a right)
People v. Rollins, 771 P.2d 32 (Colo. App. 1989) (trial court lacks power to impose probation without defendant’s consent)
People v. Martinez, 844 P.2d 1203 (Colo. App. 1992) (consent required for probation)
Delgado v. People, 105 P.3d 634 (Colo. 2005) (illegal sentence requires correction unless all components comply with sentencing statutes)
Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997 (2012) (use of dictionaries to determine ordinary meaning)
Smith v. United States, 508 U.S. 223 (1993) (consulting ordinary meaning when statute lacks definition)