Peo v. Carbajal

22CA0338 Peo v Carbajal 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0338
City and County of Denver District Court No. 10CR3824
Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dean Carbajal,

Defendant-Appellant.

ORDER AND SENTENCE AFFRIMED

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Dean Carbajal, Pro Se
¶1 Defendant, Dean Carbajal, appeals the district court’s orders

denying his most recent postconviction motion and resentencing

him following the vacatur of his habitual criminal sentence. We

affirm.

I. Background

¶2 In 2011, a jury found Carbajal guilty of multiple counts of

violation of a protection order, multiple counts of violation of bail

bond conditions, multiple counts of second degree burglary,

multiple counts of first degree trespass, multiple counts of stalking,

and one count of second degree kidnapping. In 2012, the trial

court adjudicated Carbajal a habitual offender and sentenced him

to a total of one hundred fifty-one and a half years in the custody of

the Department of Corrections (DOC).

¶3 A division of this court affirmed Carbajal’s convictions and

sentences on direct appeal. People v. Carbajal, (Colo. App. No.

12CA0410, June 30, 2016) (not published pursuant to C.A.R. 35(e))

(Carbajal I). The court issued the mandate on April 27, 2017.

¶4 In 2017, Carbajal filed his first pro se motion for

postconviction relief pursuant to Crim. P. 35, which the district

court denied. Carbajal appealed, and another division of this court

1
affirmed in part, reversed in part, and remanded the case for

further proceedings concerning Carbajal’s challenge to the

proportionality of his habitual criminal sentence. People v.

Carbajal, (Colo. App. No. 17CA2337, Mar. 25, 2021) (not published

pursuant to C.A.R. 35(e)) (Carbajal II). The court issued the

mandate on May 28, 2021.

¶5 Meanwhile, in 2019, one of the felony convictions that served

as a predicate for Carbajal’s habitual criminal sentence was

vacated. As a result, in March 2020, while his postconviction

appeal in Carbajal II was still pending, Carbajal filed a second pro

se postconviction motion challenging the legality of his habitual

criminal sentence and contending, among other things, that the use

of the now-vacated predicate conviction for impeachment at his trial

violated his constitutional rights. The People conceded that

Carbajal was entitled to be resentenced but opposed the other

claims raised in his motion.

¶6 On January 7, 2022, after the mandate was issued in Carbajal

II, the district court held a hearing to consider the claims raised in

Carbajal’s second postconviction motion and to resentence him.

2
The court denied Carbajal’s postconviction claims and resentenced

him to a combined thirty-six years in DOC custody.

¶7 In this single appeal, Carbajal directly appeals his new

sentence, appeals the court’s denial of his postconviction motion,

and raises new challenges to the court’s jurisdiction. We first

address the challenges to Carbajal’s underlying conviction, which

include arguments that the court lacked jurisdiction and erred by

denying his second postconviction motion. We then address

Carbajal’s challenges to his new sentence.

II. Challenges to the Underlying Conviction

¶8 Carbajal challenges the underlying judgment of conviction,

contending that the district court (1) lacked subject matter

jurisdiction and (2) erred by denying his second postconviction

motion. We disagree.

A. Crim. P. 35(c)

¶9 Crim. P. 35(c) permits postconviction review of alleged

constitutional errors in criminal proceedings. People v. Sherman,

172 P.3d 911, 915-16 (Colo. App. 2006). A postconviction court

may summarily deny a Crim. P. 35(c) motion if “the motion, the

files, and the record clearly establish that the allegations in the

3
motion lack merit and do not entitle the defendant to relief.”

Kazadi v. People, 2012 CO 73, ¶ 17. With exceptions that are not

applicable in this case, the rule requires that the court “deny any

claim that was raised and resolved in a prior appeal or

postconviction proceeding on behalf of the same defendant.” Crim.

P. 35(c)(3)(VI). The rule also bars claims “that could have been

presented in an appeal . . . or postconviction proceeding previously

brought” except claims based on events that occurred after

initiation of the defendant’s prior appeal or claims that the

sentencing court lacked subject matter jurisdiction. Crim. P.

35(c)(3)(VII).

¶ 10 While Crim. P. 35(c) is designed to prevent injustices after

conviction and sentencing, it is “not intended to establish a

procedure which would allow continuing review of issues previously

decided against the defendant.” People v. Hubbard, 519 P.2d 945,

947 (Colo. 1974); see also People v. Rodriguez, 914 P.2d 230, 249-

50 (Colo. 1996). In cases like this one, in which “a defendant has

already directly appealed his conviction and lost, and has likewise

failed to obtain postconviction relief upon application to the trial

court and review by an appellate court,” the rule does not provide

4
the defendant with another chance to collaterally attack his

conviction, even following a resentencing. People v. Dunlap, 222

P.3d 364, 369 (Colo. App. 2009) (“Because defendant would seek to

attack his conviction, not just his sentence, we decline to allow a

new appeal, which would effectively open his entire case to

relitigation, contrary to finality principles.”); see also Hunsaker v.

People, 2021 CO 83, ¶¶ 21-26 (“A defendant who successfully

corrects an illegal sentence may thereafter collaterally attack their

conviction, but they may only raise arguments addressing how the

illegality in the sentence potentially affected the original

conviction.”).

¶ 11 We review a district court’s ruling on a Crim. P. 35(c) motion

following an evidentiary hearing as a mixed question of fact and

law. People v. Sharp, 2019 COA 133, ¶ 12. We defer to the district

court’s factual findings if they have record support and review de

novo its legal conclusions. Id.

B. Jurisdictional Contentions

¶ 12 Carbajal contends that the district court lacked subject matter

jurisdiction to enter his judgment of conviction because (1) the

charges in the underlying case had already been brought and

5
dismissed in other cases; (2) the case was improperly bound over

from the county court to the district court, and the prosecution

failed to file an information in the district court; and (3) several

charges brought in the underlying case were based on a repealed

statute. None of these contentions demonstrate a jurisdictional

defect.

1. Subject Matter Jurisdiction

¶ 13 “Subject matter jurisdiction concerns a court’s authority to

deal with the class of cases in which it renders judgment.” People v.

Sims, 2019 COA 66, ¶ 14. A court has subject matter jurisdiction

“where it has been empowered to entertain the type of case before it

by the sovereign from which the court derives its authority.” Wood

v. People, 255 P.3d 1136, 1140 (Colo. 2011). Article VI, section 9(1),

of the Colorado Constitution vests the district court with original

jurisdiction in all criminal cases. Sims, ¶ 14.

¶ 14 In addition to a court’s general authority to hear a case,

subject matter jurisdiction must also be properly invoked before the

district court can act. Id. at ¶ 15. In criminal matters, a court’s

jurisdiction is invoked by the filing of a legally sufficient complaint,

information, or indictment. Id.

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¶ 15 Jurisdictional defects may be raised at any time, People v.

Torkelson, 971 P.2d 660, 661 (Colo. App. 1998), but “prior relevant

rulings made in the same case are to be followed unless such

application would result in error or unless the ruling is no longer

sound due to changed conditions,” People v. Dunlap, 975 P.2d 723,

758 (Colo. 1999). We review de novo whether the district court had

subject matter jurisdiction. Dodge v. Padilla, 2023 COA 67, ¶ 9.

2. Duplicative Filing of Charges

¶ 16 As best we understand, Carbajal contends that when the

prosecution initially charged him, it filed the fourteen charges

across “numerous shell cases” — namely, Denver County Court

Case No. 10M10759 and Denver District Court Case Nos.

10CR3823, 10CR3825, 10CR3859, and 10CR3875 — in addition to

the underlying case, Denver District Court Case No. 10CR3824.

According to Carbajal, the prosecution “refused to prosecute these

shell cases,” and they were “dismissed . . . for failure to prosecute,”

but “before these cases were dismissed, the prosecution illegally

refiled each of the respective charges that were filed in the five

subject cases . . . into case 10CR3824.” As a result, he argues, the

charges “remained sub judice and jurisdiction remained with the

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original filings,” depriving the district court in this case of

jurisdiction over those charges. The People counter that because

Carbajal did not raise this contention in the district court, we

should deny it without further consideration.

¶ 17 To the extent Carbajal challenges the district court’s subject

matter jurisdiction, he may raise that challenge at any time,

including for the first time on appeal. See Torkelson, 971 P.2d

at 661. But Carbajal’s contention does not implicate the court’s

subject matter jurisdiction; at most, it implicates Carbajal’s

constitutional right against double jeopardy. See People v.

Arzabala, 2012 COA 99, ¶ 21 (“Double jeopardy is commonly

implicated where multiple counts are charged and multiple

punishments imposed for the same criminal conduct.”).

¶ 18 A claim that Carbajal’s conviction was obtained in violation of

his constitutional rights must be raised in accordance with Crim. P.

35(c). See Sherman, 172 P.3d at 915-16. And because this claim

“could have been presented in an appeal . . . or postconviction

proceeding previously brought,” and Carbajal has not asserted,

much less shown, that any relevant exceptions apply, it is barred as

successive. Crim. P. 35(c)(3)(VII).

8
3. Bind Over and Information

¶ 19 Carbajal contends that the district court lacked jurisdiction

because (1) the charges brought against him in county court were

improperly bound over to the district court, and (2) the prosecution

failed to file a valid information in the district court.

¶ 20 Carbajal made the same arguments in his direct appeal in

Carbajal I. There, the division understood him to argue “that the

prosecution filed charges in county court, which improperly

transferred venue and joined the charges into one case in the

district court — all without dismissing the charges in the county

court or filing a valid information in the district court.” Carbajal I,

slip op. at 21-22. Ultimately, the Carbajal I division determined

that “the district court had jurisdiction over the case, and the

prosecution properly consolidated the case.” Id. at 21.

¶ 21 Because these claims were raised and resolved in Carbajal I,

they must be denied. See Crim. P. 35(c)(3)(VI) (mandating that a

court “shall deny any claim that was raised and resolved in a prior

appeal” and providing no exception for claims alleging jurisdictional

defects); see also People v. McDowell, 219 P.3d 332, 335 (Colo. App.

2009) (“A defendant cannot use a Crim. P. 35 proceeding to

9
relitigate matters that were fully and finally resolved in an earlier

appeal.”).

4. Repealed Stalking Statutes

¶ 22 Carbajal contends that his stalking convictions are “void for

want of jurisdiction” because the district court “impos[ed] judgment

under a repealed stalking statute in absence of [d]ue [p]rocess of

law.” We disagree.

a. Additional Background

¶ 23 The prosecution filed its complaint and information against

Carbajal in September 2010, charging him with seventeen counts,

including one count of stalking (count 17) under section

18-3-602(1)(c), (5), C.R.S. 2010. In January 2011, the district court

granted the prosecution’s motion to amend count 17 to reference

section 18-9-111(4)(b)(I), (5)(b), C.R.S. 2010, and to add a second

stalking count (count 18) under section 18-9-111(4)(b)(III), (5)(b),

C.R.S. 2010. Both stalking counts charged a date range of May 12,

2010, to August 28, 2010.

¶ 24 In 2010, the legislature enacted House Bill 10-1233, which

repealed, reenacted, and relocated former section 18-9-111(4)(b)

and (5) to new section 18-3-602(1) and (3), C.R.S. 2010. Ch. 88,

10
secs. 1, 10, § 18-3-602(1), (3), 2010 Colo. Sess. Laws 294-97. The

bill took effect on August 11, 2010. Id. at 297.

b. The Relocated Statutory Provisions Do Not Impact the District
Court’s Jurisdiction

¶ 25 Carbajal contends that because the amended complaint and

information reflected the repealed, reenacted, and relocated version

of the stalking statute, the trial court lacked jurisdiction to convict

him on counts 17 and 18. Specifically, he argues that “[b]ecause

this stalking charge did not exist under section 18-9-111, C.R.S.,

the extant stalking convictions are void.”

¶ 26 During the January 7, 2022, hearing, the district court

considered and denied this claim, reasoning that Carbajal had

identified a “notice requirement” rather than a jurisdictional

contention and that there was “no indication that Mr. Carbajal

didn’t know that he was protecting himself from a stalking charge.”

The court also explained that Carbajal’s contention “could have

been raised on the first appeal [but] it wasn’t. It’s being raised now

as a jurisdictional argument because jurisdiction can always be

argued.” We agree with the district court’s analysis.

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¶ 27 Had the relevant stalking provision been repealed prior to

Carbajal’s illegal conduct and not been reenacted at the time of his

conviction, his contention might have merit. See People v. Wetter,

985 P.2d 79, 80 (Colo. App. 1999) (“[A] a defendant may not be

convicted of a crime where . . . the General Assembly has expressly

repealed the statute defining that crime.”). But those are not our

facts. Instead, the statute was simultaneously repealed, reenacted,

and relocated, constituting a continuation of the existing law. See

§ 2-4-208, C.R.S. 2024 (“A statute which is reenacted, revised, or

amended is intended to be a continuation of the prior statute and

not a new enactment, insofar as it is the same as the prior

statute.”); see also Sec. Life & Accident Co. v. Heckers, 495 P.2d

225, 227 (Colo. 1972) (“[T]he provisions of any law or statute which

is reenacted, amended or revised, so far as they remain the same,

are to be construed as a continuation of such laws and not as new

enactments.”). Because the law criminalized Carbajal’s conduct at

the time he engaged in it, the district court had jurisdiction to

12
adjudicate the criminal charges against him based on that

conduct.1

¶ 28 Carbajal’s contention does not implicate the court’s

jurisdiction to hear his case but rather implicates Carbajal’s due

process right to notice of the charges against him. See People v.

Cooke, 525 P.2d 426, 428 (Colo. 1974) (“The right of an accused to

notice of the charges which have been made against him . . . lies at

the foundation of due process of law.”). This due process claim

could have been brought in a prior proceeding and is now barred.

See Crim. P. 35(c)(3)(VII).

C. Collateral Attacks on Underlying Conviction

¶ 29 Carbajal contends that the district court erred by denying his

postconviction claims collaterally attacking his underlying

conviction on the following grounds: (1) the two stalking convictions

were “illegal under the rubric of C.R.S. § 18-1-408[, C.R.S. 2024],”

because they were based on identical evidence; (2) the two stalking

1 We also note that the statute cited in the amended complaint and

information was in effect during at least part of the date range
charged in the stalking counts, and Carbajal fails to explain how
the court lacked jurisdiction over his conduct occurring prior to
August 11, 2010.

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convictions violate double jeopardy because they are multiplicitous;

(3) the two burglary convictions based on the predicate offense of

trespass with the intent to violate a protection order violate double

jeopardy; and (4) the use of a now-vacated felony conviction for

impeachment at his trial violated his constitutional rights to due

process and to testify. We conclude that his first three claims are

successive, and his last lacks merit.

1. Successive Challenges

¶ 30 The People argue that we should not address several of

Carbajal’s contentions because they were or could have been raised

in his direct appeal or in his first postconviction proceeding. See

Crim. P. 35(c)(3)(VI), (VII); McDowell, 219 P.3d at 335. We agree and

conclude that the following claims are barred as successive:

• claims that Carbajal’s stalking convictions were based on

identical evidence or that his consecutive sentences on

those convictions are illegal for that reason;2

2 The division in Carbajal II already held that “arguments that

Carbajal’s convictions were based on identical evidence” could have
been raised in Carbajal’s direct appeal and were barred as
successive under Crim. P. 35(c)(3)(VII). People v. Carbajal, slip op.
at ¶ 41 (Colo. App. No. 17CA2337, Mar. 25, 2021) (not published
pursuant to C.A.R. 35(e)) (Carbajal II).

14
• the claim that Carbajal’s stalking convictions are

multiplicitous and violate double jeopardy; and

• the claim that Carbajal’s convictions for burglary based

on trespass with intent to violate a protection order

violate double jeopardy.3

2. Use of a Vacated Conviction for Impeachment

¶ 31 Carbajal contends that the district court violated (1) his right

to due process by ruling that the prosecution could use a prior

felony conviction that was later vacated to impeach him and (2) his

right to testify by misadvising him regarding the prosecution’s

ability to impeach him with that felony. Although these claims

collaterally attack the underlying conviction, they are not

successive because the event on which they are based — the prior

felony being vacated in 2019 — occurred after Carbajal’s prior

appeal and postconviction motion were filed. See Crim. P.

35(c)(3)(VII)(a) (“The court shall deny any claim that could have been

3 In his opening brief, Carbajal superficially suggests that his

burglary conviction raises equal protection and Eighth Amendment
concerns as well. Because he does not develop those arguments,
we do not address them. See People v. Liggett, 2021 COA 51, ¶ 53
(appellate courts do not address undeveloped arguments).

15
presented in an appeal . . . or postconviction proceeding previously

brought except . . . [a]ny claim based on events that occurred after

initiation of the defendant’s prior appeal or postconviction

proceeding.”). Even so, we reject these claims on the merits.

a. Additional Background

¶ 32 In 2008, Carbajal was convicted of criminal trespass in

Jefferson County Case No. 08CR267 (Jefferson County conviction).

¶ 33 In 2011, Carbajal filed a pretrial motion to collaterally attack

and suppress his prior convictions, including the Jefferson County

conviction, seeking to preclude their use at trial in the underlying

case for the purpose of impeachment.4 On the morning of the first

day of trial, the district court heard initial arguments on Carbajal’s

motion. The court recognized that “for [Carbajal] to make an

intelligent decision about whether or not he will . . . testify,” it

needed to determine whether the prosecution could impeach him

with the prior convictions. Three days later, before the jury was

4 Carbajal’s motion also sought to prevent the use of his prior

convictions as predicates for habitual criminal sentencing, but the
district court bifurcated the habitual criminal counts and addressed
only Carbajal’s impeachment-related arguments during the first
phase of the trial.

16
scheduled to return, the court held an evidentiary hearing on

Carbajal’s motion, during which Carbajal testified. The court

denied the motion, ruling that two of the prior convictions

challenged in the motion, including the Jefferson County conviction

for which an appeal remained pending, were “available to the

prosecution to use for purposes of impeachment” under section

13-90-101, C.R.S. 2024. The court found that Carbajal failed to

make a prima facia showing that the Jefferson County conviction

was constitutionally infirm.

¶ 34 Carbajal chose not to testify at trial, but the prosecution

briefly questioned his mother about the Jefferson County

conviction, and she said she did not recall it.5

¶ 35 In 2019, after years of appeals and postconviction

proceedings, the felony Jefferson County conviction was vacated

and reduced to a misdemeanor.

5 Although Carbajal asserts that the prosecution “repeatedly used

this trespass conviction to impeach” him, he does not support that
assertion with record citations. See Brighton Sch. Dist. 27J v.
Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996)
(“[I]t is not the duty of the reviewing court to search the record for
evidence to support bald assertions.”), aff’d, 940 P.2d 348 (Colo.
1997).

17
¶ 36 In the postconviction motion before us now, Carbajal argued

that the district court’s ruling that the Jefferson County conviction

could be used to impeach him at trial violated his due process

rights and his right to testify because the conviction was ultimately

found to be unconstitutional. At the January 7, 2022, hearing, the

district court rejected Carbajal’s contention, reasoning that “at the

time [the Jefferson County conviction] was still a felony, so I can’t

find any error there.”

b. The District Court Did Not Violate Carbajal’s Due Process
Rights or His Right to Testify by Ruling that the Prosecution
Could Use His Jefferson County Conviction for Impeachment

¶ 37 Carbajal contends that because the Jefferson County

conviction was vacated in 2019, the district court’s ruling that the

conviction could be used to impeach him during the 2011 trial

violated (1) his due process right to a fair trial and (2) his right to

testify because the court’s ruling convinced him not to take the

stand. See Watkins v. People, 655 P.2d 834, 837 (Colo. 1982) (“A

prior conviction obtained in violation of a constitutional right of the

accused cannot be used in a subsequent criminal proceeding to

support guilt or to enhance punishment.”). The People argue that

the use of the Jefferson County conviction was proper at the time of

18
the 2011 trial, so the court’s ruling did not violate Carbajal’s

constitutional rights. They argue that People v. McNeely, 68 P.3d

540 (Colo. App. 2002), is dispositive. Although McNeely does not

dispose of this issue entirely, we agree that its reasoning applies.

¶ 38 In McNeely, the defendant argued that the trial court erred by

permitting the prosecution to impeach his credibility with a

conviction that was pending on direct appeal. 68 P.3d at 543. A

division of this court disagreed, reasoning that “[t]he credibility of

any witness may be called into question by showing that the

witness has been convicted of a felony.” Id. (citing § 13-90-101).

The division explained that “[a] person is convicted when the trial

court enters a judgment of conviction after either a verdict or plea of

guilty has been entered.” Id. Thus, the division concluded that

when “the trial court has entered a judgment of conviction, the

conviction may be used for purposes of impeachment at a later

proceeding even if the appeal of that conviction is pending.” Id.

¶ 39 At the time of Carbajal’s 2011 trial, the Jefferson County

conviction was on appeal but had yet to be declared

unconstitutional (and would not be so declared on direct appeal).

At that time, McNeely was dispositive, and the district court

19
correctly ruled that the prosecution could use the Jefferson County

conviction for impeachment purposes under section 13-90-101.

See McNeely, 68 P.3d at 543.

¶ 40 But the Jefferson County conviction was later vacated, a

circumstance not addressed in McNeely. Even so, its rationale

holds. Because the conviction was valid at the time it was used for

impeachment purposes, its use did not offend Carbajal’s due

process right to a fair trial. It follows logically that, because the

conviction was properly available for impeachment purposes, the

court did not misadvise Carbajal regarding his right to testify.

Accordingly, we perceive no constitutional violations and therefore

no reason to reverse Carbajal’s convictions.

D. Challenges to the Newly Imposed Sentence

¶ 41 Carbajal contends that (1) the mittimus entered following his

resentencing was entered without jurisdiction and illegally

increased his sentence; (2) the district court misapprehended the

minimum sentence it could have imposed during his resentencing;

and (3) his newly imposed sentence violates the Eighth

Amendment’s prohibition against cruel and unusual punishment.

We reject each contention.

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1. Challenges to the Mittimus

¶ 42 Carbajal contends that the district court acted without

jurisdiction and altered his newly imposed sentence by entering a

mittimus after the resentencing hearing that purportedly increased

his sentence from thirty-six years to fifty-two years. We conclude

that the court had jurisdiction to enter the mittimus and that the

mittimus accurately reflects the DOC sentences the court

pronounced on January 7, 2022.

a. The District Court Had Jurisdiction to Enter the Mittimus

¶ 43 Carbajal first contends that the district court lacked

jurisdiction to enter the mittimus on March 29, 2022, because

jurisdiction had already transferred to this court when he filed a

notice of appeal a month earlier. We conclude that because the

mittimus merely memorialized the sentence pronounced at the

January 7 hearing, it was not a new order, and the court retained

jurisdiction to enter it.

¶ 44 A mittimus is an administrative document that directs the

sheriff to transport the convicted defendant to the appropriate

correctional facility for a specified term of years. See § 18-1.3-409,

C.R.S. 2024. Because a mittimus is merely a reflection of a court’s

21
previously imposed order — that is, the sentence orally imposed at

the defendant’s sentencing hearing — it is not a new order entered

by the court. See People v. Wiseman, 2017 COA 49M, ¶ 52 (“What

the judge says in sentencing a defendant takes precedence over the

written judgment.” (quoting United States v. Cephus, 684 F.3d 703,

709 (7th Cir. 2012))) (alteration omitted); see also People v. Stewart,

55 P.3d 107, 126 (Colo. 2002) (following the perfection of an appeal,

the trial court retains jurisdiction over matters that do not affect the

order or judgment on appeal).

¶ 45 The March 29 mittimus reflects that Carbajal was “originally

sentenced on 2/10/2012” and that the original sentence “is now

modified.” Immediately before setting forth the newly imposed

sentence, the mittimus makes clear that the modified sentence was

imposed on “1/7/2022.” The mittimus is not a new order but a

reflection of the new sentence entered by the district court at

Carbajal’s resentencing hearing on January 7, which predated the

commencement of this appeal. Accordingly, we reject Carbajal’s

contention that the court lacked jurisdiction to enter the mittimus.

22
b. The Mittimus Correctly Reflects the Court’s DOC Sentences

¶ 46 Carbajal next contends that the district court illegally

increased his combined sentence from thirty-six years to fifty-two

years when it entered the mittimus. Although we are unable to

follow his calculations, we understand Carbajal to argue that the

court increased the sentence it imposed on January 7 by ordering

in the March 29 mittimus that the new sentences were to run

consecutively to his sentences in Denver District Court Case Nos.

10CR1600 and 10CR1576.

¶ 47 A mittimus must accurately reflect the sentencing order

entered by the court and include “all necessary information

regarding the sentence and any information as to whether a

sentence is to be served concurrent with, or consecutive to, the

sentence for any other count or any other case.” § 18-1.3-409. Our

review of the record reveals that the mittimus accurately reflects the

DOC sentences the court imposed on January 7.

¶ 48 First, the district court made clear during the resentencing

hearing that it intended to “impose [Carbajal’s] sentences in the

same . . . manner, consecutive versus concurrent,” as had the

original sentencing judge. We understand the court’s statement to

23
mean that the newly imposed sentences would run consecutive to

or concurrent with other sentences in this and other cases as

determined by the original sentencing judge in 2012. The original

sentencing judge ordered all of Carbajal’s sentences to be served

consecutively to his sentences in Denver District Court Case Nos.

10CR1600 and 10CR1576. The March 29 mittimus accurately

reflects that order.6 It is thus consistent with — and does not

increase — the sentence pronounced on January 7.

¶ 49 Second, our line-by-line review of the transcript of the January

7 sentencing hearing and the March 29 mittimus reveals that the

mittimus accurately reflects each DOC sentence imposed.

6 As noted in Part C above, we recognize that Carbajal also

challenges the consecutive and concurrent nature of his original
sentencing framework as violating his double jeopardy rights
because the two stalking charges were based on identical evidence.
However, the division in Carbajal II already determined that the
contention is barred as successive because it could have been
brought in a prior direct appeal or postconviction motion. Carbajal
II, slip op. at ¶ 41; see Crim. P. 35(c)(3)(VII).

24
Accordingly, we reject Carbajal’s contention that the court illegally

increased his sentence when it entered the mittimus.7

2. The District Court Did Not Misapprehend the Statutory
Minimum Sentence

¶ 50 Carbajal contends that the district court erred by concluding

that the minimum sentence it had the discretion to impose was

thirty-six years in DOC custody. We perceive no error.

¶ 51 Criminal sentencing is “an exercise of a trial court’s discretion

that is to be guided by consideration of a number of factors.”

People v. Vigil, 718 P.2d 496, 506 (Colo. 1986). While the court’s

discretion in sentencing is broad, the sentence imposed must be

permitted by statute. Vensor v. People, 151 P.3d 1274, 1275 (Colo.

2007). We will not overturn a statutorily compliant sentence absent

a showing of an abuse of discretion. People v. Howell, 64 P.3d 894,

898 (Colo. App. 2002). A sentence constitutes an abuse of

7 Although Carbajal does raise this argument, we note that the

district court orally imposed incorrect terms of mandatory parole on
counts 7, 9, and 15, but the parole terms reflected in the mittimus
follow the relevant sentencing statutes. See § 18-1.3-401(1)(a)(V)(A),
C.R.S. 2024. Because a sentence that does not comply with the
sentencing statutes is illegal, Delgado v. People, 105 P.3d 634, 637
(Colo. 2005), and may be corrected at any time, People v. Sanders,
220 P.3d 1020, 1024 (Colo. App. 2009), the court was authorized to
correct the illegal parole terms when it entered the mittimus.

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discretion if it is manifestly arbitrary, unreasonable, or unfair.

People v. Zuniga, 80 P.3d 965, 972 (Colo. App. 2003). It may be

necessary to remand a sentence for reconsideration if the trial court

misapprehended the scope of its discretion in imposing the

sentence. People v. Linares-Guzman, 195 P.3d 1130, 1137 (Colo.

App. 2008).

¶ 52 During resentencing, the district court explained that it

wanted to “undo the length of” Carbajal’s habitually enhanced

sentence, but that it “would be hard-pressed to come in [twelve]

years after [the original sentencing judge] had made the accurate

findings” and alter the framework that judge had created for how all

of Carbajal’s sentences would operate together. The court then said

that it intended to “impose the sentences in the same . . . manner,

consecutive versus concurrent,” as had the original sentencing

judge. Against this backdrop, the court explained that “a minimum

sentence in this case . . . adds up to approximately [thirty-six]

years.”

¶ 53 Carbajal contends that the district court misapprehended the

statutory minimum sentence it could impose, leading it to abuse its

discretion in imposing a combined thirty-six-year sentence.

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Specifically, Carbajal contends that if the court intended to impose

the minimum sentence in his case, it would have (1) ordered all the

sentences to be served concurrently; and (2) imposed a sentence of

four years, the lowest possible statutory sentence permitted by the

appropriate sentencing statute. See § 18-1.3-401(1)(a)(V)(A), C.R.S.

2024.

¶ 54 The People argue that, viewed in context, the court’s comment

makes clear that it did not intend to impose the absolute minimum

sentence available in Carbajal’s case but instead intended to impose

sentences on the low end of the presumptive range while still

applying the sentencing framework — concurrent versus

consecutive — employed by the original sentencing judge. We agree

with the People’s interpretation of the court’s statements.

¶ 55 In other words, we do not read the district court’s statements

as reflecting its misunderstanding that thirty-six years was the

absolute minimum combined sentence it had the discretion to

impose in Carbajal’s case. The court made clear that it intended to

retain the concurrent versus consecutive sentencing framework the

original sentencing judge created. Working within that original

sentencing framework, the court determined that a combined

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thirty-six-year term was the minimum sentence it intended to

impose. We perceive no error in the district court’s understanding

of its sentencing discretion.

3. Eighth Amendment Challenge

¶ 56 Finally, Carbajal contends that his newly imposed sentence is

excessive and amounts to cruel and unusual punishment under the

Eighth Amendment to the United States Constitution. See U.S.

Const. amend. VIII. Per this court’s order on May 20, 2022, this

contention is not properly before us on appeal.

¶ 57 Carbajal filed his initial notice of appeal in this matter on

February 28, 2022. On March 7, Carbajal moved the district court

to reconsider his new sentence under Crim. P. 35(b), arguing in part

that the sentence was disproportionate to the crime and constituted

cruel and unusual punishment. The court denied Carbajal’s

motion on March 16. On April 18, Carbajal filed a supplemental

notice of appeal, seeking review of the March 16 order. On May 20,

this court determined that the March 16 order was entered without

jurisdiction, struck Carbajal’s April 18 amended notice of appeal,

and dismissed without prejudice the part of the appeal relating to

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the March 16 order. Thus, the March 16 order is not properly

before us for review.

¶ 58 To the extent Carbajal requests that we conduct a

proportionality review for the first time on appeal, we decline to do

so. See People v. Session, 2020 COA 158, ¶ 51 (while we may

conduct proportionality reviews in the first instance, we may decline

to do so as trial courts are best suited to conduct the factual

determinations they require).

III. Disposition

¶ 59 We affirm Carbajal’s sentence and the district court’s order

denying his March 2020 postconviction motion.

JUDGE J. JONES and JUDGE YUN concur.

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