Peo v. Price

23CA1418 Peo v Price 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1418
Montezuma County District Court No. 23CR18
Honorable Todd Jay Plewe, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dino House Price,

Defendant-Appellant.

APPEAL DISMISSED IN PART
AND SENTENCE AFFIRMED

Division II
Opinion by JUDGE GOMEZ
Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 30, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Claire Pakis, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Dino House Price, appeals the district court’s

sentencing order. We dismiss the appeal in part and otherwise

affirm the sentence.

I. Background

¶2 Price pleaded guilty to felony driving under the influence

(DUI) – fourth or subsequent offense in exchange for the dismissal

of the remaining charges and a stipulated sentencing cap of two

years in prison. The plea agreement provided that, if Price was

accepted into DUI court, the prosecution would recommend a

probationary sentence. The parties agreed that, regardless of

Price’s acceptance into DUI court and the prosecution’s sentencing

recommendation, the court would retain the discretion to impose

any sentence subject to the sentencing cap. Price was later

accepted into DUI court, and he and the prosecution requested the

imposition of a probationary sentence.

¶3 Nonetheless, the district court imposed a two-year prison

sentence. The court stated that it believed Price was sincere in his

statement that he wanted to turn his life around and acknowledged

that he had serious health problems. But the court noted that

Price had nine prior convictions involving driving under the

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influence and that his previous non-prison sentences had failed to

rehabilitate him and prevent him from recidivating. The court

found that a prison sentence was therefore appropriate because

Price was a danger to the community and was incapable of

rehabilitation. This appeal follows.

II. Legal Authority and Standard of Review

¶4 Section 18-1-409(1), C.R.S. 2024, guarantees a person

convicted of a felony offense the right to one appellate review of “the

propriety of the sentence, having regard to the nature of the offense,

the character of the offender, and the public interest.” A review of

the propriety of the sentence “involves the intrinsic fairness or

appropriateness of the sentence itself.” People v. Malacara, 606

P.2d 1300, 1302-03 (Colo. 1980).

¶5 Section 18-1-409(1) also provides for one appellate review of

“the manner in which the sentence was imposed, including the

sufficiency and accuracy of the information on which it was based.”

A review of the manner in which the sentence was imposed

“involves the extrinsic factors and procedures which affect the

determination of the sentence.” Malacara, 606 P.2d at 1303.

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¶6 But “if the sentence is within a range agreed upon by the

parties pursuant to a plea agreement, the defendant shall not have

the right of appellate review of the propriety of the sentence.”

§ 18-1-409(1). This exception to the right to appellate review is

referred to as the “plea proviso.” Sullivan v. People, 2020 CO 58,

¶ 1. While the plea proviso, if applicable, bars review of the

propriety of the sentence, it doesn’t bar review of the manner in

which the sentence was imposed. Id. at ¶ 26.

¶7 When imposing a sentence, a district court must consider the

nature and elements of the offense, the character and rehabilitative

potential of the offender, any aggravating or mitigating

circumstances, the development of respect for the law, the

deterrence of crime, and the protection of the public. People v.

Maestas, 224 P.3d 405, 409 (Colo. App. 2009); People v. Thoro

Prods. Co., 45 P.3d 737, 748 (Colo. App. 2001), aff’d, 70 P.3d 1188

(Colo. 2003). Also, before a court can sentence a defendant to

prison on a felony DUI conviction under section 42-4-1301(1)(a),

C.R.S. 2024, the court “must determine that incarceration is the

most suitable option given the facts and circumstances of the case,

including the defendant’s willingness to participate in treatment”

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and “shall consider whether all other reasonable and appropriate

sanctions and responses to the violation that are available to the

court have been exhausted, do not appear likely to be successful if

tried, or present an unacceptable risk to public safety.” § 42-4-

1307(6.5)(e), C.R.S. 2024; see also § 42-4-1307(6.5)(a), (d).

¶8 Generally, however, a district court has broad discretion when

imposing a sentence. Allman v. People, 2019 CO 78, ¶ 22. We

won’t overturn a sentence imposed in the absence of a clear abuse

of that discretion. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990).

A court abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair. People v. Herrera, 2014 COA 20, ¶ 16.

III. Analysis

¶9 Price contends that the district court abused its discretion by

failing to “adequately consider[]” or “properly value” the parties’

recommended probationary sentence, his rehabilitative needs, his

physical health, his commitment to change, and his success with

pretrial supervision requirements. He also asserts that the court

failed to consider the factors in section 42-4-1307(6.5)(e). Price

argues that his appeal shouldn’t be barred by the plea proviso

because “the court’s failure to apply the appropriate criteria in

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selecting his sentence at the sentencing proceeding” implicates the

manner in which the sentence was imposed.

¶ 10 We are not convinced that Price’s challenges to the adequacy

of the district court’s consideration of the sentencing factors and to

the exercise of its discretion relate to the sentencing proceeding or

the sufficiency and accuracy of the information on which the

sentence was based. Rather, we conclude that his challenges

implicate his sentence’s propriety, or its intrinsic fairness or

appropriateness. See Sullivan, ¶ 13; Malacara, 606 P.2d at 1302-

03; see also People v. Watkins, 613 P.2d 633, 635 (Colo. 1980) (The

defendant’s assertion that his sentence was excessive in light of “his

willingness to lead a productive life and to rehabilitate himself by

ending his long dependence on drugs” was cognizable as a

challenge to the propriety of the sentence.); People v. McCulloch, 198

P.3d 1264, 1268 (Colo. App. 2008) (a challenge to the intrinsic

fairness of a sentence includes whether the particular sentence was

a wise exercise of discretion).

¶ 11 Thus, because Price’s sentence on his felony DUI conviction

didn’t exceed the two-year sentencing cap the parties agreed to in

the plea agreement, we conclude that the plea proviso bars our

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review of this claim. See People v. Scofield, 74 P.3d 385, 386-87

(Colo. App. 2002); cf. People v. O’Dell, 53 P.3d 655, 657 (Colo. App.

2001) (The plea proviso didn’t apply because the “plea agreement

[didn’t] include[] any type of agreed sentencing range or cap.”).

¶ 12 As to Price’s other argument that the court failed to consider

the statutory requirements of section 42-4-1307(6.5)(e), he asserts

that this claim is a challenge to the manner in which the sentence

was imposed because, without considering these factors, the

sentence was based on insufficient and inaccurate information.

¶ 13 Initially, we note that this argument isn’t adequately developed

in Price’s opening brief and is more thoroughly discussed in his

reply brief. Generally, we wouldn’t consider such an argument.

See People v. Houser, 2020 COA 128, ¶ 24 (we won’t consider a bald

legal argument presented without any development); People v.

Grant, 174 P.3d 798, 803 (Colo. App. 2007) (we won’t address

arguments raised for the first time in a reply brief).

¶ 14 Nevertheless, assuming that a court’s failure to consider

sentencing factors implicates the manner in which a sentence was

imposed, and that this claim is thus not barred by the plea proviso,

we aren’t persuaded by Price’s argument. He asserts that the

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district court failed to consider his willingness to participate in

treatment through the DUI court, his success with other treatment

programs, and whether all other reasonable and appropriate

sanctions have been exhausted. He also asserts that the court’s

finding that he was unlikely to be successful in treatment was

manifestly arbitrary. We disagree.

¶ 15 When imposing the prison sentence, the district court noted

that, in Price’s most recent previous DUI case, he’d been given a

deferred judgment and probation and “[he] completed it.” The court

also acknowledged the sincerity of Price’s request for the court to

“[j]ust give [him] a chance” because he was “ready to turn [his] life

around.” But the court noted that Price had expressed similar

sentiments during sentencing in the most recent case and that he

hadn’t changed his life and was back in court on his tenth DUI only

a year later. The court found that Price’s criminal history showed

that he was “a danger to this community, and at this point the time

for rehabilitation [wa]s in the past.”

¶ 16 We conclude that these findings are sufficient to demonstrate

that, when imposing the sentence, the district court considered

Price’s willingness to participate in treatment, his success (or lack

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thereof) with prior treatment, and other potential sanctions, and

that the court determined that other sanctions either appeared

unlikely to be successful or presented an unacceptable risk to

public safety. See People v. Linares-Guzman, 195 P.3d 1130, 1137

(Colo. App. 2008) (“It is sufficient that the record contains . . .

information that permits the conclusion that the sentencing court

considered all essential factors.”). And Price’s assertion that the

court’s finding that he was unlikely to be successful in treatment

was manifestly arbitrary is a challenge to the sentence’s propriety,

which the plea proviso bars. See Watkins, 613 P.2d at 635;

McCulloch, 198 P.3d at 1268.

IV. Disposition

¶ 17 The appeal is dismissed in part, and the sentence is affirmed.

JUDGE FOX and JUDGE LUM concur.

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