v. Propst

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 11, 2021

2021COA13

No. 18CA1360, People v. Propst — Criminal Law — Sentencing

— Probation — Revocation — Resentencing

A division of the court of appeals considers whether a district
court must impose a prison sentence, which was suspended as a
condition of probation, upon a finding that the defendant violated
probation. The division holds, contrary to the division in People v.
Frye, 997 P.2d 1223 (Colo. App. 1999), but consistent with Fierro v.
People, 206 P.3d 460 (Colo. 2009), that section 16-11-206(5), C.R.S.
2020, provides a sentencing court with the discretion to continue
probation, revoke probation, or impose any sentence that it might
originally have imposed. Accordingly, the sentence is vacated and
the case is remanded for resentencing.
COLORADO COURT OF APPEALS 2021COA13

Court of Appeals No. 18CA1360
City and County of Denver District Court No. 17CR4675
Honorable Michael J. Vallejos, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Elisa M. Propst,

Defendant-Appellant.

SENTENCE VACATED AND CASE
REMANDED WITH DIRECTIONS

Division A
Opinion by JUDGE FREYRE
Fox and Lipinsky, JJ., concur

Announced February 11, 2021

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey M. Klekas, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this sentence appeal, we are asked to decide whether a

sentencing court, after accepting a plea agreement and imposing a

suspended prison sentence conditioned on the successful

completion of probation, has discretion to continue or revoke

probation after finding a violation of probation.

¶2 Another division considered this question in People v. Frye,

997 P.2d 1223 (Colo. App. 1999) (relying on People v. Seals, 899

P.2d 359 (Colo. App. 1995)). That case held that the suspended

sentence was the original sentence and that upon finding a

violation of probation, the court was required to impose the

suspended sentence. Id. at 1226. We respectfully disagree with the

Frye division and hold that section 16-11-206(5), C.R.S. 2020, and

our supreme court’s holding in Fierro v. People, 206 P.3d 460 (Colo.

2009), provide a sentencing court with the discretion to continue

probation, revoke probation, or impose any sentence that it might

originally have imposed. We further hold that, under such

circumstances, a sentencing court’s decision not to impose a

suspended sentence does not breach the parties’ plea agreement.

¶3 Defendant, Elisa M. Propst, appeals her prison sentence

following the court’s finding of a probation violation. She contends

1
that the court was not required to impose the suspended prison

sentence (1) because of the plea agreement and (2) because the

court retained the discretion to continue her on probation, reinstate

probation with new terms, or sentence her to any sentence that it

could originally have imposed. Because we agree, we vacate the

sentence and remand the case for resentencing. On remand, the

court should exercise its discretion to determine whether to

continue probation, revoke and reinstate probation, or impose any

other permitted sentence, including the suspended prison sentence.

I. Background

¶4 The State originally charged Propst with one count of second

degree assault and six counts of child abuse. The prosecutor and

Propst negotiated a plea agreement allowing Propst to plead guilty

to the assault charge in exchange for dismissal of the remaining

charges. The parties also agreed to the following sentence

concession: “Count 1 Assault in Second Degree + 90d DCJ w/

referral to RISE as condition of probation + 2y probation + 6y DOC

suspended (no prior incarceration credit toward 90 days DCJ).” The

district court accepted the plea agreement and sentenced Propst

accordingly.

2
¶5 After completing her jail sentence, Propst reported to the

Denver Probation Department. She appeared for her second

probation appointment on January 11, 2018, and was told that her

intake appointment was scheduled for January 17, 2018. Although

she explained that she lived in Pueblo, probation advised her that

she needed to attend the intake meeting in Denver before her

probation could be transferred to Pueblo. Lacking the funds to

retrieve her car from impound or secure a ride to Denver, Propst did

not appear for the original or rescheduled intake appointments.

Consequently, the probation department filed a complaint alleging

that Propst failed to comply with the following condition of her

probation: “I will report to my probation officer for appointments, as

directed by the court or the probation office. I understand that my

probation officer can visit me at reasonable times at home or

elsewhere. I will provide probation safe access to my residence.”

The probation department recommended that Propst’s probation be

revoked and that the suspended six-year prison sentence be

imposed.

¶6 At the revocation hearing, Propst admitted missing the

intake appointment. She explained that she lived in Pueblo, was

3
indigent, and had no place to stay in Denver. She testified that her

ride to Denver for the intake appointment fell through at the last

minute. She did not have a vehicle or a driver’s license, which

precluded her from borrowing a car, and she could not find another

ride to Denver. She also testified that she attempted to contact the

probation department to reschedule her appointment, but she could

not get ahold of anyone.

¶7 The sentencing court held multiple hearings to determine

whether it had discretion to continue probation or was required to

impose the suspended sentence. The prosecutor argued that the

sentencing court was bound by the terms of the plea agreement

that mandated imposition of the suspended prison sentence.

¶8 The defense argued that the court had discretion to

continue probation for three reasons. First, the plea agreement did

not require the suspended sentence to be imposed after the first

violation. Second, Fierro held there was “no express limitation on

the sentencing court’s discretion in granting or imposing conditions

for continued suspension.” 206 P.3d at 462. And third, the

revocation hearing statute, section 16-11-206(5), required the

court, within seven days of the hearing, to revoke or continue

4
probation and permitted it, upon revocation, to impose any

sentence or grant any probation that could originally have been

imposed.

¶9 The court agreed with the prosecutor and reasoned that

“when the Court accepts a plea agreement that has a suspended

sentence that’s negotiated with the parties, then the Court is bound

by that agreement as well.” It further believed that failing to impose

the suspended sentence would violate the plea agreement and

would allow the prosecutor to withdraw from that agreement. The

court was not persuaded by Fierro because that case did not involve

a plea agreement. It then sentenced Propst to six years in the

custody of the Department of Corrections.

II. Sentencing Discretion

¶ 10 Propst contends the sentencing court legally erred by finding

that it lacked the discretion to impose a sentence other than the

suspended sentence, upon finding a probation violation. We agree.

A. Standard of Review and Applicable Law

¶ 11 The interpretation of a plea agreement is a legal question that

we review de novo. People v. Villela, 2019 COA 95, ¶ 10.

5
¶ 12 Crim. P. 11 permits a defendant to plead guilty under an

agreement with the prosecution. The sentencing court retains the

ultimate discretion to accept or reject any sentence concessions in

the plea agreement. People v. Mazzarelli, 2019 CO 71, ¶ 24. Once

the sentencing court formally accepts the plea agreement and is

satisfied the defendant understands its terms, the court, like the

defendant and the prosecutor, is “bound by the terms of the

agreement and [cannot], absent proof of fraud or breach of the plea

bargain, set the agreement aside.” People v. Roy, 109 P.3d 993,

995-96 (Colo. App. 2004) (quoting United States v. Ritsema, 89 F.3d

392, 402 (7th Cir. 1996)).

¶ 13 A defendant accused of violating probation is entitled to a

hearing. See § 16-11-206. Upon a finding that the defendant

violated a condition of probation, the court may “revoke or continue

the probation. If probation is revoked, the court may then impose

any sentence or grant any probation . . . which might originally

have been imposed or granted.” § 16-11-206(5).

¶ 14 A plea agreement may include a conditional sentence

suspending the “imposition or execution of [a] sentence for such

period and upon such terms and conditions as [the sentencing

6
court] may deem best.” § 18-1.3-401(11), C.R.S. 2020. Colorado

courts often apply general contract principles to interpret plea

agreements. See Mazzarelli, ¶ 3. However, absent express

language “addressing the contingency of revocation . . . of a

conditional sentence, a sentencing stipulation will not be construed

as limiting the court’s discretion in the event that the defendant

fails to comply with the terms of the conditional sentence originally

imposed.” People v. Griego, 207 P.3d 870, 872 (Colo. App. 2008).

B. Analysis

¶ 15 Propst does not dispute that she violated a condition of her

probation. Rather, she contends the sentencing court

misapprehended the scope of its discretion in resentencing her.

Propst relies on Mazzarelli and Fierro to argue that the court had

discretion under section 16-11-206(5) to continue her probation or

to revoke and reinstate probation.

¶ 16 To begin, we find Mazzarelli distinguishable from this case. In

Mazzarelli, the defendant pleaded guilty under a plea agreement,

and the court accepted the plea. Mazzarelli, ¶ 9. However, the

court then rejected the parties’ sentence agreement and imposed a

more lenient sentence. Id. at ¶¶ 10-11. Under these

7
circumstances, the supreme court found the application of general

contract law principles inapplicable in analyzing the plea

agreement. Id. at ¶ 26. It held that “when the [sentencing] court

rejects a sentence concession in a plea agreement after accepting

the defendant’s guilty plea, the statute and rules do not permit the

People to withdraw from the agreement.” Id.

¶ 17 Unlike Mazzarelli, where the court accepted the defendant’s

plea but rejected the parties’ sentence concession by imposing a

more lenient sentence, the sentencing court here accepted Propst’s

guilty plea and followed the plea agreement. Thus, we reject

Propst’s reliance on Mazzarelli to argue that the sentencing court

had the discretion to impose a different sentence. See id. at ¶ 3 n.2

(“Nothing in this opinion should be viewed as passing judgment on

the appropriate remedy, if any, when a party breaches a plea

agreement after the defendant has pled guilty.”).

¶ 18 Nevertheless, we conclude that Fierro provided the sentencing

court with the discretion to continue probation, revoke and

reinstate probation, or revoke probation and impose any sentence

that the court might originally have imposed. In Fierro, the district

court imposed two suspended prison sentences on the condition

8
that the defendant successfully complete three years of probation.

206 P.3d at 461. Three years later, the court revoked the

defendant’s probation and resentenced her to three years in a

community corrections program, rather than imposing the

suspended prison sentences. Id. A division of this court reversed

the sentence and found that the district court was required to

impose the suspended prison sentence. Id. at 460. Our supreme

court granted certiorari to consider whether this court erred by

remanding for imposition of the original prison sentence. Id. at

461.

¶ 19 After a lengthy discussion detailing the history of the statutory

interplay between probation and suspended prison sentences, the

supreme court held, under section 18-1.3-401(11), that “the power

to suspend a sentence complements, rather than supplants, a

sentence to probation.” Id. at 465. And “any requirements upon

which the suspension of a sentence is conditioned must conform to

the statutory requirements of and for probation; both revocation for

violation of probationary conditions and resentencing upon such

revocation are governed by the statutory provisions governing

revocation of probation.” Id. (citing § 16-11-206(5)). The court then

9
held that section 16-11-206(5) granted the district court the

discretion to sentence the defendant to community corrections

because that was a sentence the court could originally have

imposed. Id. at 465-66.

¶ 20 As in Fierro, the sentencing court imposed a suspended six-

year prison sentence on the condition that Propst successfully

complete two years of probation. By imposing a sentence with a

suspended prison term, the court did not cede its discretion to

consider all the available sentencing options upon finding a

violation of probation. Instead, the suspended sentence served to

“notify [Propst] of the sentence that would be imposed but for the

alternative of probation and to which [she] remain[ed] subject in the

event of a violation of probationary conditions, without

simultaneously rendering the sentence illegal and void.” Id. at 465.

Thus, the sentencing court had broad discretion to resentence

Propst under section 16-11-206(5) and after finding she violated a

condition of her probation. See Villela, ¶ 16.

¶ 21 We are not persuaded otherwise by the People’s reliance on

Frye. In Frye, the district court sentenced the defendant, under a

plea agreement, to sixteen years in prison, suspended on the

10
condition of his successful completion of twenty-five years of

probation. 997 P.2d at 1224. Following a revocation hearing, the

district court revoked probation and imposed the suspended

sentence. Id. at 1225. On appeal, the defendant challenged the

legality of the suspended sentence under section 16-11-101(1),

C.R.S. 1999, and he argued that section 16-11-206(5) gave the

court discretion to impose any sentence that could originally have

been imposed. Frye, 997 P.2d at 1225. The division rejected his

arguments and held that the suspended sentence constituted the

original and final sentence and, thus, that the court was required to

impose the suspended sentence. Id. at 1226-27 (relying on Seals,

899 P.2d at 361). It then found section 16-11-206(5) inapplicable

where probation was imposed as a condition of a suspended

sentence. Id. at 1226.

¶ 22 While Frye technically remains good law, Fierro called its

holding into doubt. Fierro, 206 P.3d at 464. In discussing the

sentencing statutes, the supreme court found it difficult to discern

any legislative intent in the language of sections 18-1.3-401(11) and

16-11-206(5) that would allow “sentencing courts on their own

initiative, or defendants and prosecutors through plea negotiations,

11
to limit the court’s obligation to fairly consider all available

sentencing options, at the time of a violation of conditions of

probation.” Id. at 464-65 (emphasis added). It reasoned that in

cases where probation is a permissible alternative, “little purpose

could be served by construing suspension as a sentencing

alternative separate and distinct from probation.” Id. at 465.

¶ 23 Because the supreme court’s reasoning is equally applicable

here, we hold, contrary to Frye, that section 16-11-206(5) apply

where probation is imposed as a condition of a suspended sentence.

We further hold that it is inconsequential whether the suspended

sentence was imposed under a plea agreement. The plea agreement

here contains no specific language that addresses the probation

violation contingency. Absent such language, the court retained

broad discretion to resentence Propst to any sentence that it could

originally have imposed under section 16-11-206(5). See Griego,

207 P.3d at 872; People v. McDaniels, 844 P.2d 1257, 1258 (Colo.

App. 1992).

¶ 24 Finally, the People contend that if the sentencing court is

permitted to impose a sentence other than the suspended six-year

prison sentence, such sentence would breach the plea agreement

12
and allow them to withdraw from the plea agreement and reinstate

the original charges. We are not persuaded.

¶ 25 The prosecution may only withdraw from a plea agreement

and reinstate the original charges when there is a material and

substantial breach of the agreement. Keller v. People, 29 P.3d 290,

298 (Colo. 2000). But because we have concluded that section 16-

11-206(5) grants the court the discretion to impose any sentence

that could originally have been imposed upon a probation

revocation, the imposition of a lawful sentence other than prison

would not constitute a material and substantial breach of the plea

agreement.

¶ 26 Accordingly, we conclude the sentencing court legally erred by

finding that it lacked the discretion to impose any sentence other

than the suspended six-year prison sentence.

III. Conclusion

¶ 27 The sentence is vacated, and the case is remanded for

resentencing on the probation violation.

JUDGE FOX and JUDGE LIPINSKY concur.

13