Peo v. Merriweather

22CA2203 Peo v Merriweather 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2203
Weld County District Court No. 20CR714
Honorable Allison J. Esser, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Devonte Jordan Merriweather,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Brown and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, 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 Defendant, Devonte Jordan Merriweather, appeals the order

denying his Crim. P. 35(a) motion to correct an illegal sentence. We

reverse the order and remand the case with directions.

I. Background

¶2 In 2020, Merriweather pleaded guilty to attempted second

degree assault in this case — Weld County Case No. 20CR714 (the

Weld case). The district court sentenced him to four years in

community corrections.

¶3 Merriweather’s community corrections placement was later

terminated based on violations of the terms of his placement,

including new charges filed in Larimer County Case No. 21CR1916

(the Larimer case).

¶4 In April 2022, Merriweather pleaded guilty in the Larimer case

and stipulated to an eight-year sentence in the custody of the

Department of Corrections (DOC), to “run consecutive” to his

sentence in the Weld case. In May 2022, the Larimer district court

sentenced him to an eight-year DOC sentence, consecutive to the

sentence in the Weld case, as stipulated in the plea agreement.

¶5 A few months later, in July 2022, the district court

resentenced Merriweather in the Weld case. It imposed a four-year

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DOC sentence and ordered the sentence to run concurrent with the

sentence in the Larimer case. Merriweather immediately began

serving his sentence.

¶6 After the DOC sought clarification about Merriweather’s

sentence, the Weld district court ordered a new sentencing hearing.

At that hearing , the court concluded that because Merriweather

had stipulated to a consecutive sentence in the Larimer case, it

didn’t “have any discretion” to run the sentence in the Weld case

concurrent to the sentence in the Larimer case. The court then

issued an amended mittimus running the sentence in the Weld case

consecutive to the sentence in the Larimer case.

¶7 Merriweather filed a Rule 35(a) motion challenging the legality

of the consecutive sentence. The court denied the motion.

II. Discussion

¶8 Merriweather appeals the order denying his Rule 35(a) motion,

arguing that the Weld district court had no authority to increase his

concurrent sentence to a consecutive sentence.

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A. Standard of Review

¶9 We review de novo the legality of a sentence and the summary

denial of a Rule 35(a) motion. People v. Tennyson, 2023 COA 2, ¶ 9,

aff’d, 2025 CO 31.

B. The Concurrent Sentence Was Legal

¶ 10 First, we consider whether the Weld district court had

authority to impose a concurrent sentence when it resentenced

Merriweather in the Weld case in July 2022.

¶ 11 A sentencing court generally “has discretion to impose a

sentence to be served concurrently with or consecutively to a

sentence already imposed” in another case. People v. Flower, 644

P.2d 64, 65 (Colo. App. 1981), aff’d, 658 P.2d 266 (Colo. 1983); see

also People v. Lucero, 772 P.2d 58, 59 n.1 (Colo. 1989) (approving

this language from Flower). Indeed, unless a statute strips a court

of its discretion “to sentence either concurrently or consecutively,” a

court is “required to exercise that discretion.” Marquez v. People,

2013 CO 58, ¶ 21.

¶ 12 The Weld district court was not statutorily stripped of its

discretion when it resentenced Merriweather in July 2022. To the

contrary, the district court was statutorily authorized to “consider

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any sentencing alternative originally available” when resentencing

Merriweather after his termination from community corrections.

§ 18-1.3-301(1)(g), C.R.S. 2024. Thus, the Weld district court acted

within its discretion when it resentenced Merriweather in the Weld

case and ran that sentence concurrent to the sentence in the

Larimer case.

¶ 13 We are not persuaded otherwise by the People’s argument that

the plea stipulation in the Larimer case somehow divested the Weld

district court of its discretion when it resentenced Merriweather.

Sentencing courts are not bound by stipulations in a plea

agreement, let alone a plea agreement in a separate case in another

jurisdiction. See People v. Mazzarelli, 2019 CO 71, ¶ 20 (noting that

a sentencing court “is free to accept or reject” sentence

recommendations and that a court must “exercise independent

judgment in imposing a sentence” under a plea agreement). Thus,

the Larimer plea agreement did not restrict the district court’s

sentencing discretion in the Weld case.

¶ 14 We are equally unpersuaded by the People’s argument that

this case is analogous to People v. Spoto, 865 P.2d 907 (Colo. App.

1993). Spoto doesn’t apply because, in that case, the sentencing

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court was not stripped of its discretion by the terms of a plea

agreement; rather, it was stripped of its discretion by the escape

statute that mandated a consecutive sentence when the defendant

was later resentenced for his original offense. Id. at 909. The

People point to no statute — and we are aware of none — that

limited the district court’s sentencing discretion in the Weld case.

¶ 15 Because the district court had discretion to impose a

concurrent sentence in the Weld case, we conclude that the

concurrent sentence imposed in July 2022 was legal.

C. The Court Lacked Jurisdiction to Increase the Sentence

¶ 16 We next consider whether the Weld district court had

jurisdiction to change the concurrent sentence to a consecutive

sentence.

¶ 17 During the July 2022 resentencing hearing, the parties agreed

that the sentence in the Weld case should run concurrent to the

sentence in the Larimer case. Indeed, the prosecutor confirmed

that the sentences were concurrent and said, “[W]e’re not asking to

revisit that.”

¶ 18 The People now argue that the concurrent sentence was based

on this “erroneous assumption.” While that may be true, when a

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district court imposes a valid sentence, it loses jurisdiction to

change the sentence, except under limited circumstances specified

in Rule 35. People v. Wiedemer, 692 P.2d 327, 329 (Colo. App.

1984) (citing Smith v. Johns, 532 P.2d 49, 50 (Colo. 1975)),

abrogated on other grounds by Woo v. El Paso Cnty. Sheriff’s Off.,

2022 CO 56, ¶¶ 41-42; see also People v. Heredia, 122 P.3d 1041,

1043 (Colo. App. 2005).

¶ 19 More specifically, under Rule 35, a court may correct an illegal

or unconstitutional sentence. See Crim. P. 35(a), (c)(2)(I). But a

court “may not increase a lawful sentence after the defendant has

begun serving it.” People v. Sandoval, 974 P.2d 1012, 1015 (Colo.

App. 1998). And “[c]hanging a sentence from concurrent to

consecutive constitutes an increase in the sentence.” Id.; cf. Crim.

P. 35(b) (permitting a court to reduce a sentence on its own

initiative). Such a sentence increase “is impermissible even if the

court alters the sentence solely to conform to or clarify its original

intent.” Sandoval, 974 P.2d at 1015; accord People v. Sellers, 2022

COA 102, ¶ 35, aff’d on other grounds, 2024 CO 64; cf. People v.

Wood, 2019 CO 7, ¶ 43 (noting that a district court may not

substantively amend a sentence under Crim. P. 36).

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¶ 20 Because the Weld district court imposed a legal concurrent

sentence in July 2022, and because Merriweather was serving that

sentence, the district court did not have jurisdiction to later change

the concurrent sentence to a consecutive sentence. We therefore

must reverse the order denying Merriweather’s Rule 35(a) motion.

People v. Dillon, 655 P.2d 841, 844 (Colo. 1982) (“[A]ny action taken

by a court when it lacked jurisdiction is a nullity.”).

III. Disposition

¶ 21 The order is reversed, and the case is remanded to the district

court to vacate the consecutive sentence and reinstate the

concurrent sentence.

JUDGE BROWN and JUDGE SCHOCK concur.

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