Peo v. Brown

22CA0960 Peo v Brown 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0960
Logan County District Court No. 18CR161
Honorable Stephanie M. G. Gagliano, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Devien Patrick Brown,

Defendant-Appellant.

SENTENCE AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Lane Towery, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Devien Patrick Brown appeals the aggravated range prison

sentence imposed upon resentencing after he admitted violating a

condition of his sex offender intensive supervision probation

(SOISP). We affirm.

I. Background

¶2 Based on evidence that Brown reached into a shower, touched

an eight-year-old girl’s vagina, and tried to insert his finger, the

prosecution charged him with sexual assault on a child (SAOC), a

class 4 felony. At the time, Brown was twenty-four years old and

had no criminal convictions. He pleaded guilty to attempted SAOC,

a class 5 felony, in exchange for dismissal of the original charge in

this case and dismissal of a separate case charging two counts of

SAOC with a thirteen-year-old victim. The plea agreement included

no sentencing concessions. And the amended information listed

only the eight-year-old victim, T.L.

¶3 At the providency hearing, the district court advised Brown

that by pleading guilty, he was giving up the constitutional right to

two jury trials and many specific rights intrinsic to his jury trial

right. Brown stated that he understood his rights, the charge, and

the possible sentences, and then pleaded guilty. Brown’s counsel

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waived the establishment of a factual basis for the plea. The court

found that an affidavit in the court file provided a factual basis; that

Brown’s waiver of his right to a jury trial was knowing, voluntary,

and intelligent; and that Brown understood the elements of the

charge to which he was pleading guilty.

¶4 The district court followed the probation department’s

recommendation and sentenced Brown to ten years of SOISP. After

about two years, the department alleged that Brown had violated

three conditions of SOISP, and the court approved additional

probation conditions as a sanction. Six weeks later, the department

alleged that a search of Brown’s home had revealed nine additional

violations. Brown was unsuccessfully discharged from offense-

specific treatment, and the department filed a complaint to revoke

his probation.

¶5 A different judge presided at Brown’s probation revocation

hearing, where he pleaded guilty to violating one of his SOISP

conditions: unapproved use of the internet. The court revoked

Brown’s SOISP sentence.

¶6 Before resentencing Brown, the district court reviewed the

existing court file and an updated presentence investigation report

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(PSIR), and it heard statements from both of Brown’s victims. The

court expressed serious concern about Brown’s noncompliance with

sex offender treatment. It found “exceptional circumstances” under

section 18-1.3-401(8)(f), C.R.S. 2024, noting “the crimes that did

take place, the age difference, the coercion, the manipulation, the

age of these victims, [and] the status of [Brown] in relation to each

of these named victims.” The court found “exceptional aggravation

in this matter. And on the Attempted Sex Assault of a Child by a

Person in a Position of Trust with a victim such as these victims’

ages were, you are going to be sentenced to the Department of

Corrections [(DOC)] for a period of six years.”

II. Discussion

¶7 Brown challenges his aggravated range DOC sentence. He

contends that the sentence violates his constitutional right to a jury

trial under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and

Blakely v. Washington, 542 U.S. 296, 303 (2004). He also contends

that the district court erred by misapprehending the offense to

which he pleaded guilty. We perceive no reversible error.

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A. Standard of Review

¶8 We review constitutional challenges to sentencing

determinations de novo. Lopez v. People, 113 P.3d 713, 720 (Colo.

2005). Ordinarily, nonconstitutional sentencing challenges are

reviewed for an abuse of discretion. Id. But when, as in this case,

a defendant fails to preserve a sentencing issue, we will reverse only

for plain error. See People v. Sandoval, 2018 CO 21, ¶ 11. Because

Brown did not object to his sentence on any basis at his sentencing

hearing, we will reverse his sentence only if any error was both

obvious and substantial — so undermining the fundamental

fairness of the sentencing hearing as to cast serious doubt on the

reliability of the sentence. See People v. Banark, 155 P.3d 609, 611

(Colo. App. 2007).

B. No Obvious Apprendi/Blakely Error

¶9 Brown contends that his sentence is unconstitutional because

the district court found extraordinary aggravating circumstances

based on improper judicial factfinding under Apprendi and Blakely.

We disagree.

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1. Applicable Law

¶ 10 A person commits attempted SAOC, a class 5 felony, when

that person knowingly engages in conduct constituting a

substantial step toward any sexual contact with a victim less than

fifteen years of age, and the person is at least four years older than

the victim. See § 18-3-405(1)-(2), C.R.S. 2024; § 18-2-101(4),

C.R.S. 2024. The maximum presumptive range sentence for

attempted SAOC is three years in the DOC. See

§ 18-1.3-401(1)(a)(V)(A). If the court finds extraordinary aggravating

circumstances, it may impose a DOC sentence of up to six years.

§ 18-1.3-401(6).

¶ 11 Under Apprendi and Blakely, there are four types of facts that

are valid to support criminal penalties above the presumptive range

maximum: (1) facts admitted by the defendant; (2) facts found by a

jury, as reflected in its verdict; (3) facts found by a court after the

defendant stipulates to judicial factfinding; and (4) the fact of a

prior conviction. Lopez, 113 P.3d at 723. The first type of fact,

relevant here, and the second and third type, are “Blakely-

compliant,” while the fourth type is “Blakely-exempt.” Id.

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¶ 12 When a defendant pleads guilty, he ordinarily admits that he

committed the crime charged against him. People v. Medina, 2021

COA 124, ¶ 22, aff’d on other grounds, 2023 CO 46. But “a

sentencing court may not use a defendant’s admissions to sentence

him in the aggravated range unless the defendant knowingly,

voluntarily and intelligently waives his Sixth Amendment right to

have a jury find the facts that support the aggravated sentence.”

People v. Isaacks, 133 P.3d 1190, 1192 (Colo. 2006).

¶ 13 One Blakely-compliant fact is sufficient to support an

aggravated sentence. Lopez, 113 P.3d at 731. Once a sentencing

court identifies a single Blakely-compliant fact and determines that

the fact constitutes an extraordinary aggravating circumstance, the

legal sentencing range “widens . . . up to a ceiling of double the

presumptive maximum.” Id.; see § 18-1.3-401(6). At that point, the

sentencing judge has full discretion to sentence within this widened

range “even if the sentencing judge also considered factors that

were not Blakely-compliant or Blakely-exempt.” Lopez, 113 P.3d at

731.

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2. Application

¶ 14 The relevant dispute is a narrow one. It is undisputed that

Brown knowingly, voluntarily, and intelligently waived his right to

have a jury find the facts he admitted as part of his plea agreement.

See Isaacks, 133 P.3d at 1192. Brown agreed to a possible

sentence in the aggravated range, and it was within the court’s

discretion to consider the victim’s age as an extraordinary

aggravating circumstance. See, e.g., People v. Bass, 155 P.3d 547,

555 (Colo. App. 2006) (holding that the trial court did not err by

imposing an aggravated sentence based on the victim’s advanced

age). The parties agree that the court considered facts that were

not Blakely-compliant or Blakely-exempt in imposing an aggravated

range sentence. Our resolution of this issue rests on the answer to

one dispositive question: Did Brown admit, as part of his plea

agreement, one aggravating fact considered by the court — that T.L.

was only eight years old at the time of the pleaded offense? We

conclude that he did.

¶ 15 As relevant here, Brown initialed the following provisions in

his written advisement:

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• “I wish to plead GUILTY to: Added Count One – ATTEMPTED

SEXUAL ASSAULT ON A CHILD – VICTIM LESS THAN 15 –

C.R.S. 18-3-405(1) and 18-2-101, C.R.S., a class 5 felony. See

attachment for elements of this charge.” (Emphasis added.)

• “The elements of the charge(s) to which I am pleading guilty

have been explained to me (per Attachment). I understand

fully everything the prosecutor would have had to prove

beyond a reasonable doubt to each and every member of a 12-

person jury before I could have been convicted.” (Emphases

added.)

¶ 16 Brown’s opening brief concedes that his written advisement

“referred to the Amended Information which set forth the elements”

of attempted SAOC. The order and dates of the documents in the

record support this concession, as does the plain language of the

advisement. The advisement states that Brown pleaded guilty to

“Added Count One” — which was defined by the Amended

Information — and repeatedly references the elements of the charge

(rather than statutory elements of the crime). See Black’s Law

Dictionary 265 (9th ed. 2009) (defining “charge” as “[a] formal

accusation of an offense as a preliminary step to prosecution”).

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¶ 17 The amended information charges “Count One – ATTEMPTED

SEXUAL ASSAULT ON A CHILD – VICTIM LESS THAN 15 (F5),”

with a description including T.L.’s age at the time of the offense, as

follows:

Between and including August 1, 2017 and
September 30, 2017, by engaging in conduct
constituting a substantial step toward the
commission of sexual assault on a child,
DEVIEN PATRICK BROWN unlawfully,
feloniously, and knowingly attempted to
subject T.L. (D.O.B. 03/20/2009), not his
spouse, to sexual contact and the victim was
less than fifteen years of age and the defendant
was at least four years older than the victim; in
violation of sections 18-3-405(1) and 18-2-101,
C.R.S.

¶ 18 A division of this court addressed an analogous situation in

People v. Watts, 165 P.3d 707, 711 (Colo. App. 2006). Like Brown,

the defendant in Watts pleaded guilty to an amended charge and

acknowledged that the elements of the offense were attached to his

written advisement; the attached document contained a fact (two

victims) outside the statutory elements of the crime. See id. at 712.

In Watts, the division concluded that the defendant had admitted

the fact that his crime involved two victims. Id. Accordingly, it held

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that the defendant’s aggravated sentence was proper under

Apprendi and Blakely. Id. at 710-12.

¶ 19 Considering the foregoing, we conclude that when Brown

pleaded guilty to the charge in his amended information, he

admitted the fact of T.L.’s age. We perceive no obvious error in

imposing an aggravated sentence based on the Blakely-compliant

fact that T.L. was well below the statutorily required age of less

than fifteen at the time of the offense. See Mountjoy v. People, 2018

CO 92M, ¶ 13 (To aggravate a defendant’s sentence under a scheme

such as section 18-1.3-401(6), “the trial court must rely on facts

outside of the elements of the crime itself.”).

¶ 20 In light of this conclusion, we need not reach Brown’s

argument that section 18-1.3-401(8)(f) could be unconstitutionally

construed to allow an aggravated sentence based solely on the

statutory elements of a crime and nothing more.

3. Reply Brief Argument

¶ 21 In his reply brief, Brown attempts to rescind his concession

that his written advisement referred to the amended information

and argues that it is unclear which document was attached to the

plea agreement. We reject this argument for three reasons.

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¶ 22 First, we generally do not consider arguments raised for the

first time in a reply brief. See People v. Grant, 174 P.3d 798, 803

(Colo. App. 2007). It would be unfair to accept Brown’s change of

position here, where the People’s answer brief relies in substantial

part on Brown’s concession that the plea agreement incorporates

the amended information by reference.

¶ 23 Second, the record indicates that the amended information

was attached to the plea agreement. In the appellate court file, as

well as in the “Plea Agreement” filed with the district court, the

amended information is the first page that describes the elements of

the charged offense after the signed plea agreement and

advisement. See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004)

(Appellate courts may “take judicial notice of court records in a

related proceeding.”); see also CRE 201(c) (We may take such

notice, “whether requested or not.”). Moreover, the submission date

of the amended information matches the date the plea agreement

was signed.

¶ 24 Third, because no Blakely objection was raised below, we need

only decide whether any error the district court made in imposing

an aggravated range sentence was plain. “To qualify as plain error,

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the error must be one that ‘is so clear-cut, so obvious,’ a trial judge

should be able to avoid it without benefit of objection.” People v.

Ujaama, 2012 COA 36, ¶ 42 (citation omitted). Brown’s opening

brief concession demonstrates that his written advisement did not

obviously refer to a different document than the one suggested by

the record. Thus, any error in considering T.L.’s age to be a

Blakely-compliant fact was not an obvious one requiring reversal.

C. No Nonconstitutional Plain Error

¶ 25 Next, Brown contends that the district court plainly erred by

sentencing him to six years in the DOC because it stated that it was

sentencing Brown for attempted SAOC “by a person in a position of

trust” (a class 4 felony with a presumptive sentencing range of up to

six years) when he actually pleaded guilty to attempted SAOC (a

class 5 felony with a presumptive range of up to three years). We

reject this contention.

¶ 26 First, the record does not support Brown’s assertion that the

district court misapprehended the applicable class of felony and

presumptive sentencing range. Even though the existing mittimus

incorrectly showed that Brown was convicted of attempted SAOC by

one in a position of trust, it correctly classified the conviction as a

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class 5 felony. At the probation revocation hearing, the court

ordered an updated PSIR and set the matter “for resentencing on

the underlying class 5 felony.” Before the sentencing hearing, the

court reviewed the case file and updated PSIR, which named the

correct offense and correct class of felony multiple times. The

prosecutor asked the court “to aggravate [Brown’s] sentence” to six

years in the DOC or community corrections, and the court found

“exceptional aggravation” before imposing a six-year DOC sentence.

This record demonstrates that the district court properly

understood that it was sentencing Brown for a class 5 felony with a

presumptive sentencing range of up to three years.

¶ 27 Second, while the district court may have misstated the

applicable statute and offense, its error in doing so was not obvious

and substantial. It was not an obvious error because the existing

mittimus supported that statement. And any error was not

substantial because even if the court misunderstood the applicable

elements of the pleaded offense, it acted within its discretion in

aggravating Brown’s sentence based on one Blakely-compliant fact.

Moreover, to the extent the court referenced “the status of [Brown]

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in relation to each of these named victims,” the record supported

that reference.

¶ 28 For these reasons, we cannot conclude that the district court’s

erroneous statement that it was sentencing Brown for attempted

SAOC by one in a position of trust so undermined the fundamental

fairness of the sentencing hearing as to cast serious doubt on the

reliability of his sentence. See Banark, 155 P.3d at 611.

III. Correction of the Mittimus

¶ 29 As discussed in Part II.C, the mittimus incorrectly reflects that

Brown pleaded guilty to attempted SAOC by one in a position of

trust – victim fifteen to eighteen years old under section

18-3-405.3(1), C.R.S. 2024. The mittimus should be corrected to

show that he pleaded guilty to attempted SAOC under sections

18-3-405(1) and 18-2-101. See People v. Brown, 2014 COA

155M-2, ¶ 40.

IV. Disposition

¶ 30 The sentence is affirmed, and the case is remanded for

correction of the mittimus.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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