Peo v AckerPeo v Acker
Division IV
Opinion by JUDGE SCHOCK
Welling and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO
Announced July 30, 2026
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
I. Background
¶ 2 Acker was charged with two counts of sexual assault (of the same victim), second degree kidnapping, aggravated robbery, and a crime of violence sentence enhancer. According to the arrest warrant affidavit, Acker got in the victim‘s car, forced her at gunpoint to drive to an alley and then a parking garage, sexually assaulted her at each location, and stole her phone.
¶ 3 Under a plea agreement, Acker pleaded guilty to the second degree kidnapping and crime of violence counts, with a stipulated sentencing cap of thirty years in prison. The plea agreement specified that the mandatory minimum sentence was sixteen years.
¶ 4 At sentencing, the district court heard from (1) the prosecutor, who requested a thirty-year sentence; (2) Acker‘s counsel, who requested a sixteen-year sentence; (3) Acker‘s sister, who asked for leniency and spoke about his positive qualities, including that he
¶ 5 In imposing the sentence, the district court acknowledged Acker‘s family members’ reasons for requesting leniency but emphasized the “shock[ing]” nature of Acker‘s offenses and his criminal history, including that he had previously been charged with similar conduct against another woman. The court explained that if Acker had gone to trial and been found guilty, the court would have imposed the maximum possible consecutive sentences totaling “in the hundreds of years.” The court therefore concluded that Acker had already been shown leniency by the prosecutor‘s agreement to a thirty-year cap, which would allow Acker the possibility of parole in his lifetime. The court then sentenced Acker to thirty years in prison.
II. Scope of Appeal and Standard of Review
¶ 6 Because Acker‘s thirty-year sentence did not exceed the stipulated sentencing cap, Acker may not challenge the propriety of his sentence — that is, “the intrinsic fairness or appropriateness of
¶ 7 But he may challenge “the manner in which the sentence was imposed.”
¶ 8 We review the district court‘s sentencing decision for an abuse of discretion. People v. Hunsaker, 2013 COA 5, ¶ 25, aff‘d, 2015 CO 46. A district court necessarily abuses its discretion when it misconstrues or misapplies the law. Id.
¶ 9 Acker first argues that the district court “failed to give meaningful weight to mitigation and rehabilitation evidence,” focusing instead on the severity of the offense. To the extent this is a challenge to how the district court weighed these competing sentencing considerations, it is a challenge to the propriety of the sentence, which we cannot review. See People v. Bloom, 251 P.3d 482, 483 (Colo. App. 2010) (holding that argument that the district court “did not properly weigh the statutory sentencing factors” was a challenge to the propriety of the sentence, which could not be reviewed), overruled on other grounds by, Sullivan, ¶¶ 17-18.
¶ 10 To the extent Acker contends that the district court did not consider mitigation or rehabilitation evidence at all, we are not persuaded. See People v. Dominguez, 2021 COA 76, ¶ 11 (holding that a claim that the district court ignored statutory considerations in forming the sentence was a challenge to the manner in which the sentence was imposed). In imposing its sentence, the district court expressly addressed (and credited) Acker‘s family members’ statements about Acker‘s character and his potential for rehabilitation, saying: “[Y]our family is here, they tell me that you
¶ 11 But the court determined that any mitigating factors were outweighed by the severity of the crime, Acker‘s criminal history, and the danger he posed to the community. That was the district court‘s prerogative. See People v. Vigil, 718 P.2d 496, 507 (Colo. 1986) (“[T]he circumstances of the crime alone may justify the imposition of a lengthy sentence.“); People v. Hernandez-Luis, 879 P.2d 429, 430 (Colo. App. 1994) (“[T]he fact that a sentencing court finds aggravating factors to be more compelling than mitigating factors does not constitute an abuse of discretion or indicate that the trial court failed to consider evidence of mitigation.“).
¶ 12 Acker also contends that the district court improperly relied on his parole eligibility. But contrary to Acker‘s characterization of the court‘s comments, nothing in the record suggests that the court imposed a longer sentence than it otherwise would have because Acker might later be released on parole. Instead, the court was simply contrasting the sentence it was imposing with the sentence it would have imposed after trial — multiple consecutive sentences
IV. Disposition
¶ 13 The sentence is affirmed.
JUDGE WELLING and JUDGE LUM concur.