People v. Rojas

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 27, 2025

2025COA25

No. 23CA1350, People v. Rojas — Criminal Law — Appeals —
Resentencing on Remand; Constitutional Law — Fifth
Amendment — Double Jeopardy — Fourteenth Amendment —
Due Process

In this proceeding, a division of the court of appeals reviews

the propriety of new sentences imposed after the defendant’s

original sentences were vacated on appeal.

First, the division considers whether the district court’s

decision to resentence the defendant conflicted with the mandate

from the previous appeal. Relying on People v.

Hernandez-Escajeda, 2024 COA 111, the division concludes that

the mandate that directed the district court to “impose concurrent

sentences” did not limit the court’s authority to resentence the

defendant.
Second, the division concludes that double jeopardy did not

bar the imposition of increased sentences on remand because the

defendant’s original sentences were illegal and subject to review and

revision, and therefore the defendant did not have a legitimate

expectation of finality in them.

Third, the division rejects the defendant’s due process

argument that the new sentences were the product of

vindictiveness. The division holds that when two aggregate

sentences have identical prison terms, the one with a later parole

eligibility date is more severe for due process purposes. But, relying

on Texas v. McCullough, 475 U.S. 134 (1986), the division also

holds that there is no reasonable likelihood that actual

vindictiveness played a part in resentencing when, without more, a

judge who did not impose the original sentences imposes more

severe sentences.

Finally, the division concludes that the district court did not

plainly err by relying on a presentence investigation report that

misclassified the defendant’s prior felony conviction because the

error was not obvious and did not substantially impact the

resentencing proceeding.
For all these reasons, the division affirms the new sentences.
COLORADO COURT OF APPEALS 2025COA25

Court of Appeals No. 23CA1350
Jefferson County District Court No. 16CR7283
Honorable Robert Lochary, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas Rojas,

Defendant-Appellant.

SENTENCES AFFIRMED

Division IV
Opinion by JUDGE YUN
Harris and Kuhn, JJ., concur

Announced February 27, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Thomas Rojas appeals the district court’s new sentences

imposed after a division of this court vacated his original sentences.

He contends, among other things, that the district court violated his

right to due process by imposing more severe sentences on remand.

¶2 In People v. Johnson, 2015 CO 70, the Colorado Supreme

Court emphasized that “[d]ue process of law . . . requires that

vindictiveness against a defendant for having successfully attacked

his first conviction must play no part in the sentence he receives

after a new trial.” Id. at ¶ 18 (alterations in original) (quoting North

Carolina v. Pearce, 395 U.S. 711, 725 (1969)). To guard against the

possibility that the “judge may have sought to punish the defendant

for appealing the original decision,” a rebuttable presumption of

vindictiveness arises if “(1) the new sentence on remand is more

severe than the original sentence, and (2) there is a reasonable

likelihood that actual vindictiveness played a part in the

resentencing.” Id. at ¶¶ 18, 22.

¶3 In addressing Rojas’s due process argument, we encounter two

questions of apparent first impression in Colorado. First, are new

sentences with the same aggregate prison term as the original

sentences but a later parole eligibility date more severe for due

1
process purposes? In line with the majority of jurisdictions that

have considered the question, we conclude that they are. Second,

is there a reasonable likelihood of actual vindictiveness when,

without more, a judge who did not impose the original sentences

imposes more severe sentences following a successful appeal?

Relying on the United States Supreme Court’s holdings in Texas v.

McCullough, 475 U.S. 134 (1986), we conclude that there is not.

Accordingly, Rojas’s due process argument fails.

¶4 Because we also reject Rojas’s other contentions, we affirm his

new sentences.

I. Background

¶5 In 2019, a jury convicted Rojas of attempted first degree

murder and first degree assault. The jury found that Rojas caused

serious bodily injury in both crimes, rendering them crimes of

violence.

¶6 At the sentencing hearing, Rojas and the People both agreed

that the district court could impose concurrent sentences. But the

court disagreed and found that, because the convictions were for

crimes of violence, the sentences were required by statute to run

consecutively. The court thus sentenced Rojas to consecutive

2
sentences of eighteen years for attempted murder and fourteen

years for assault, resulting in a total sentence of thirty-two years in

the custody of the Department of Corrections. Thereafter,

anticipating an appeal, the court said, “If for some reason the

appellate court determines that . . . the violent crimes statute does

not apply to this case,” meaning the sentences were not required to

run consecutively, “[this court] will specifically find that a sentence

of the length of [thirty-two] years is necessary and appropriate to

reflect [Rojas’s] conduct here as well as his criminal history.”

¶7 A division of this court affirmed Rojas’s convictions. See

People v. Rojas, (Colo. App. No. 19CA0694, May 26, 2022) (not

published pursuant to C.A.R. 35(e)) (Rojas I). But the division

concluded that the convictions were supported by identical evidence

and therefore their sentences were required to run concurrently. Id.

at ¶¶ 59-63. Accordingly, the division “vacate[d] the sentences and

remand[ed] the case to the [district] court with directions to impose

concurrent sentences.” Id. at ¶ 64.

¶8 On remand, the People asked the district court to reimpose the

thirty-two-year aggregate prison term by resentencing Rojas to

thirty-two years for his attempted murder conviction and running

3
that sentence concurrently to the sentence for his assault

conviction. Rojas, on the other hand, argued that “the mandate of

the appellate court was to impose concurrent sentences” and any

other changes to the sentences would “not comply with the specific

directions of the Court of Appeals.”

¶9 The district court — a different judge than the one who

originally sentenced Rojas — disagreed with Rojas and held a

resentencing hearing. After hearing statements on behalf of the

victim and from Rojas, reviewing the trial exhibits, and addressing

the relevant sentencing factors, the court concluded that “thirty-two

years is an appropriate” prison term. However, the court chose to

implement the prison term by imposing concurrent thirty-two-year

sentences for both the attempted murder and assault convictions.

¶ 10 Although Rojas’s new sentences have the same aggregate

prison term as his original sentences, the other differences between

his new and old sentences affect his parole eligibility. For his

attempted murder conviction, Rojas must serve 50% of his prison

term before becoming eligible for parole. See § 17-22.5-403(1),

C.R.S. 2024. And for his assault conviction, he must serve 75% of

4
his prison term before becoming eligible for parole. See

§ 17-22.5-403(2.5)(a).

¶ 11 The tables below illustrate the differences in Rojas’s parole

eligibility calculations under his original consecutive sentences and

the new concurrent sentences:

Original Consecutive Sentences

Prison % of Prison Term Eligible for
Conviction
Term Required to Serve Parole After

Attempted
9 Years
First Degree 18 Years 50%
(18 x 0.50)
Murder

First Degree 10.5 Years
14 Years 75%
Assault (14 x 0.75)

Total 32 Years 60.9% 19.5 Years1

1 When multiple prison terms run consecutively, the time required

to become eligible for parole for each term is calculated individually,
and then those individual calculations are added together to
determine the final parole eligibility date. See Owens v. Carlson,
2022 CO 33, ¶¶ 44-45.

5
New Concurrent Sentences

Prison % of Prison Term Eligible for
Conviction
Term Required to Serve Parole After

Attempted
16 Years
First Degree 32 Years 50%
(32 x 0.50)
Murder

First Degree 24 Years
32 Years 75%
Assault (32 x 0.75)

Total 32 Years 75% 24 Years
¶ 12 Under Rojas’s new concurrent sentences, his first degree

assault sentence will govern his parole eligibility. See Thiret v.

Kautzky, 792 P.2d 801, 808 (Colo. 1990) (“[T]he ‘governing’

sentence is the longest sentence . . . , and the relevant parole

provisions of that sentence apply to the entire ‘composite’

sentence.”). Thus, Rojas will now be eligible for parole after serving

twenty-four years of his thirty-two-year prison term for assault,

meaning his parole eligibility date has been pushed back by four

and a half years.2

2 The People’s answer brief uses the same inputs but calculates a

delay of 3.5 years. We believe this is a miscalculation and not a
factual dispute. In any event, the difference between 3.5 and 4.5
years would not alter our analysis.

6
¶ 13 Rojas appeals the new sentences.

II. Analysis

¶ 14 Rojas contends that the district court reversibly erred by

(1) disobeying the instructions in the Rojas I mandate; (2) increasing

his sentences, thereby violating his right to be free from double

jeopardy; (3) punishing him for successfully appealing his original

sentences, thereby violating his right to due process; and (4) relying

on incorrect information during resentencing. We consider and

reject each contention in turn.

A. The Rojas I Mandate Did Not Prohibit the Court from
Resentencing Rojas

¶ 15 Rojas first contends that the mandate from Rojas I, ¶ 66,

which “remand[ed] the case to the [district] court with directions to

impose concurrent sentences,” prohibited the district court from

doing anything other than making his prior sentences concurrent.

We are not persuaded.

1. Standard of Review and Applicable Law

¶ 16 We review de novo whether the district court complied with an

appellate mandate. Thompson v. Catlin Ins. Co. (UK), 2018 CO 95,

¶ 20.

7
¶ 17 “[A] lower court must follow the law of the case as laid out by

an appellate tribunal.” Id. at ¶ 21. This includes the appellate

court’s “[c]onclusions . . . on issues presented to it as well as

rulings logically necessary to sustain such conclusions.” Owners

Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 24 (first

alteration in original) (citation omitted). But the district court “may

entertain additional motions that do not, expressly or by necessary

implication, contravene the mandate.” Oster v. Baack, 2015 COA

39, ¶ 15.

2. Discussion

¶ 18 In the recently announced case People v. Hernandez-Escajeda,

2024 COA 111, a division of this court considered and rejected the

same argument Rojas puts forth — that the appellate mandate

precluded resentencing — under a similar factual scenario.

¶ 19 In Hernandez-Escajeda, the defendant was originally

sentenced to two consecutive prison terms of twenty-two years

each, resulting in an aggregate forty-four-year sentence. Id. at ¶ 4.

On appeal from the summary denial of a Crim. P. 35(c) motion, an

earlier division of this court had concluded that the two convictions

must merge. Id. at ¶ 7. Consequently, that division “remanded to

8
the district court with directions to vacate” one of the defendant’s

convictions. Id. (citation omitted). On remand, the prosecution

requested a resentencing hearing, and the defendant objected,

“asserting that the court could not resentence him on the remaining

substantive count . . . but could only perform the actions

specifically mentioned in the remand language.” Id. at ¶ 8. The

district court agreed with the defendant and “believed that the only

action it could take on remand was to correct the mittimus by

vacating the . . . conviction.” Id. at ¶ 9.

¶ 20 On appeal of that decision, the Hernandez-Escajeda division

disagreed with the district court and concluded that (1) “following a

defendant’s ‘successful appeal on his other convictions,’ a district

court has the inherent authority to resentence the defendant on

convictions that remain on remand”; and (2) the appellate

mandate’s “direction . . . to perform a particular action did not

amount to a prohibition on any other action that the district court

had the authority to perform on remand, provided that such other

action did not conflict with the remand instructions.” Id. at ¶¶ 19,

24 (quoting Johnson, ¶ 1).

9
¶ 21 Applying Hernandez-Escajeda to this case, the district court

had the authority on remand to resentence Rojas unless doing so

conflicted with the Rojas I mandate’s “directions to impose

concurrent sentences.” Rojas I, ¶ 66. We conclude that it did not.

Nothing in the mandate prohibited the district court from imposing

new sentences on the two convictions so long as they ran

concurrently, and the fact that the mandate “did not expressly

direct the district court to resentence [Rojas] . . . did not limit the

court’s authority to do so.” Hernandez-Escajeda, ¶ 24.

¶ 22 Thus, we agree with the district court that, under the Rojas I

mandate, it “ha[d] to impose concurrent sentences, but [it] still

ha[d] authority as it normally would to use its discretion and

impose the appropriate sentences.”

B. Double Jeopardy Did Not Preclude the Court from Increasing
Rojas’s Sentences

¶ 23 Rojas next argues that his original sentences were “legally

valid,” and therefore the constitutional proscription on double

jeopardy prohibited the district court from increasing them. We

disagree.

10
1. Standard of Review and Applicable Law

¶ 24 We review constitutional challenges to sentencing

determinations de novo. Johnson, ¶ 9.

¶ 25 “The Double Jeopardy Clauses of the United States and

Colorado Constitutions protect an accused from being twice

punished for the same offense.” People v. Evans, 2015 COA 156,

¶ 24 (first citing U.S. Const. amends. V, XIV; and then citing Colo.

Const. art. II, § 18). Accordingly, the district court “is prohibited

from increasing a legal sentence once it has been imposed and the

defendant has begun serving it.” People v. Reed, 43 P.3d 644, 646

(Colo. App. 2001).

¶ 26 But “when an original sentence is illegal, resentencing does

not constitute double jeopardy . . . even if the subsequent sentence

is longer than the original, and even though the defendant has

begun serving the original sentence.” People v. Dist. Ct., 673 P.2d

991, 997 (Colo. 1983); see People v. Bassford, 2014 COA 15, ¶ 29.

This is because “double jeopardy does not bar the imposition of an

increased sentence if the defendant lacked a legitimate expectation

of finality in the sentence,” Romero v. People, 179 P.3d 984, 989

(Colo. 2007), and “[a] defendant can have no legitimate expectation

11
of finality in a sentence that, by statute, is subject to further review

and revision,” People v. Castellano, 209 P.3d 1208, 1209 (Colo. App.

2009) (alteration in original) (quoting People v. Chavez, 32 P.3d 613,

614 (Colo. App. 2001)). Therefore, “[w]here appellate review of the

sentences at issue is clearly allowed, a defendant cannot claim any

expectation of finality in his or her original sentencing.” People v.

Woellhaf, 199 P.3d 27, 30 (Colo. App. 2007).

2. Discussion

¶ 27 On appeal, the Rojas I division concluded that Rojas’s

convictions were based on identical evidence and vacated the

original sentences. Rojas I, ¶¶ 57, 63. The sentences could not

stand because the imposition of consecutive prison terms for two

convictions based on identical evidence results in illegal sentences.

See People v. Torrez, 2013 COA 37, ¶ 49. Thus, Rojas had no

expectation of finality in the original sentences, and resentencing

did not violate his rights against double jeopardy “even if the

subsequent sentence[s] [are] longer than the original [sentences].”

Dist. Ct., 673 P.2d at 997; see People v. Smith, 121 P.3d 243, 251

(Colo. App. 2005).

12
C. The Presumption of Vindictiveness Does Not Arise and Rojas
Did Not Show Actual Vindictiveness

¶ 28 Rojas next contends that the district court violated his due

process rights when it imposed new sentences on remand because

his new sentences delayed his parole eligibility date. We disagree.

1. Preservation and Standard of Review

¶ 29 As an initial matter, the People contend that this issue is

unpreserved and should therefore be reviewed for plain error.

Regardless of whether it is preserved, we review legal issues de

novo. People v. Thames, 2019 COA 124, ¶ 71 (“The alleged violation

of a defendant’s double jeopardy rights is a legal question we review

de novo.”). Because we conclude that there was no error, we need

not decide whether plain error applies. See Cardman v. People,

2019 CO 73, ¶ 19 (“[P]lain error occurs when there is (1) an error,

(2) that is obvious, and (3) that so undermines the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction.”).

2. Applicable Law

¶ 30 “[T]he right to appeal a criminal conviction is a fundamental

and indispensable mechanism to protect a defendant’s rights and

13
correct reversible trial court error.” Johnson, ¶ 17. To preserve this

right, “[d]ue process of law . . . requires that vindictiveness against

a defendant for having successfully attacked his first conviction

must play no part in the sentence he receives after a new trial.” Id.

at ¶ 18 (alterations in original) (quoting Pearce, 395 U.S. at 725).

Thus, “[i]f a defendant wins on appeal and the [district] court

subsequently imposes a more severe sentence for a conviction on

remand, the increased sentence raises concerns that the . . . judge

may have sought to punish the defendant for appealing the original

decision.” Id.

¶ 31 To guard against this possibility, a rebuttable presumption of

vindictiveness arises if (1) the new sentence is more severe than the

original and (2) there is a reasonable likelihood that actual

vindictiveness played a part in the new sentence. Id. at ¶¶ 18, 22.

However, “even if the ‘presumption of vindictiveness’ arises, the

prosecution may rebut it by identifying ‘objective information in the

record justifying the increased sentence.’” Id. at ¶ 19 (quoting

United States v. Goodwin, 457 U.S. 368, 374 (Colo. 1982)). If the

prosecution successfully rebuts the presumption, the burden

returns to the defendant to “prove that the sentencing judge

14
violated his due process rights by imposing a harsher sentence out

of actual vindictiveness.” Id. “If the prosecution is unable to rebut

the presumption of vindictiveness, the new sentence is invalid.” Id.

¶ 32 And in cases where the presumption does not apply, the

defendant can still prevail on the due process claim by affirmatively

proving “actual vindictiveness.” Id. at ¶ 41.

3. A Sentence with an Identical Prison Term but Delayed Parole
Eligibility Is More Severe

¶ 33 Rojas acknowledges that the Colorado Supreme Court has

adopted an aggregate approach to determine whether new

sentences are more severe than the original sentences. See id. at

¶ 37. Under this approach, the presumption of vindictiveness may

arise only “where changes to the defendant’s sentence[s] on remand

cause the aggregate total sentence to increase as compared to the

original aggregate sentence.” Id. at ¶ 25. Nevertheless, Rojas

contends that his new sentences of the same aggregate length are

more severe than his original sentences because his parole

eligibility is delayed.

¶ 34 No reported Colorado decision has squarely addressed this

issue. But nearly every jurisdiction to consider it has concluded

15
that, “[a]lthough a later sentence imposed by a judge is for an

identical term of imprisonment as the initial one, it is nevertheless

more severe for purposes of due process if it provides for parole

consideration later than the initial sentence.” United States v. Bello,

767 F.2d 1065, 1068 (4th Cir. 1985); see United States v. Steele,

988 F.2d 998, 999 (9th Cir. 1993); United States v.

Pimienta-Redondo, 874 F.2d 9, 15 (1st Cir. 1989); United States v.

Gilliss, 645 F.2d 1269, 1283 (8th Cir. 1981); United States v.

Hawthorne, 532 F.2d 318, 323-24 (3d Cir. 1976); State v. Thomas,

214 A.3d 132, 145-46 (Md. 2019); see also United States v. Barash,

428 F.2d 328, 331 (2d Cir. 1970) (The presumption of

vindictiveness applies to an increased punishment “regardless of

the form of punishment, whether it is imprisonment, suspended

sentence with probation, fine, or any other corrective measure the

court may provide.”) (emphasis added) (citation omitted); State v.

Soco, 508 So. 2d 915, 917-18 (La. Ct. App. 1987) (holding that a

sentence of thirty-five years without parole eligibility was a “harsher

sentence” than the original sentence of ninety-nine years with

parole eligibility after thirty-three years). But see State v. Semrad,

794 N.W.2d 760, 763-64 (S.D. 2011) (holding that “parole eligibility

16
is not part of a defendant’s sentence” and therefore delays in parole

eligibility “do not increase a defendant’s sentence”); Keawe v. State,

901 P.2d 481, 489-90 (Haw. 1995) (because parole eligibility is

determined by the executive branch, not the judicial branch, of the

Hawaiian government, it is irrelevant when determining if a new

sentence is more severe).

¶ 35 We agree with this majority view. The Maryland Court of

Appeals may have summed it up the best:

From a common-sense perspective, a sentence
of [eighteen] years imprisonment with a parole
eligibility date of nine years is “more severe”
than a sentence of [eighteen] years
imprisonment with a parole eligibility date of
seven years and six months. No doubt, ten
out of ten inmates would agree with that
proposition.

Thomas, 214 A.3d at 141; accord Bello, 767 F.2d at 1068 (“We have

no doubt that the subsequent sentence is more severe than the

original one.”).

¶ 36 The People rely on People v. Montgomery, 737 P.2d 413 (Colo.

1987), and State v. Smith, 481 P.2d 995 (Kan. 1971), for the

proposition that “[t]he granting of parole is a matter of grace, not a

matter of right,” and therefore should not be considered part of

17
Rojas’s sentence. Montgomery, 737 P.2d at 416. But these cases

are distinguishable because, in each, the defendant’s delay in

parole eligibility resulted from a resentencing from life

imprisonment to a definite term. See id. at 414-15; Smith, 481 P.2d

at 996. Thus, the supreme court in Montgomery held that a

“sentence to a term of twenty-five to fifty years . . . is not a more

severe sentence than life imprisonment,” even though it delayed

parole eligibility, because “[a]n inmate’s parole eligibility date,

although not without some significance, is neither the exclusive nor

controlling consideration in determining the relative severity of

alternative sentences.” Montgomery, 737 P.2d at 416 (emphasis

added). Indeed, we think Montgomery supports our conclusion

given that the court explicitly considered the effect of parole in

determining the severity of the defendant’s sentences. See id.

(“When all the features of these two sentences are examined, we are

satisfied that a sentence to a term of twenty-five to fifty years is not

harsher than a sentence to life imprisonment.”) (emphasis added);

People v. Wieghard, 743 P.2d 977, 979 (Colo. App. 1987)

(considering parole eligibility to determine that the defendant’s

sentence on remand was increased).

18
¶ 37 Accordingly, we conclude that, for due process purposes, when

two aggregate sentences have identical prison terms, the one with a

later parole eligibility date is more severe.

4. There Is No Reasonable Likelihood of Actual Vindictiveness

¶ 38 Having concluded that Rojas’s new sentences are more severe

than his original sentences, we now turn to whether there is a

reasonable likelihood that actual vindictiveness played a part in the

new sentences to create the rebuttable presumption. See Johnson,

¶ 22. We conclude that there is not such a reasonable likelihood.

¶ 39 The United States Supreme Court has made clear that the

presumption of vindictiveness “do[es] not apply in every case where

a convicted defendant receives a higher sentence” after a successful

appeal. McCullough, 475 U.S. at 138. Rather, “the presumption of

vindictiveness should apply only where its objectives — to deter

actual vindictive sentencing and to prevent a chilling effect on

defendants exercising their right to appeal — are ‘most efficaciously

served.’” Johnson, ¶ 22 (quoting Alabama v. Smith, 490 U.S. 794,

799 (1989)).

¶ 40 One situation where the presumption of vindictiveness does

not apply is where different sentencing judges “assessed the varying

19
sentences that [a defendant] received.” McCullough, 475 U.S. at

140. This is because “the presumption derives from the judge’s

‘personal stake in the prior conviction,’” which does not exist when

the original sentence was imposed by a different judge. Id. at

140 n.3 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973));

see United States v. Newman, 6 F.3d 623, 630 (9th Cir. 1993)

(“When different courts impose different sentences, . . . there is no

presumption of vindictiveness . . . .”); Bowser v. State, 441 P.3d

540, 544 (Nev. 2019) (“[T]he presumption [of vindictiveness] does

not apply where a different judge imposes a higher sentence . . .

than the first judge.”).

¶ 41 Rojas’s new sentences were imposed by a different judge than

the judge who imposed his original sentences, and we do not see

anything in the record that otherwise suggests a reasonable

likelihood of actual vindictiveness. Therefore, the presumption of

vindictiveness does not apply.

5. There Is No Evidence of Actual Vindictiveness

¶ 42 Even without the presumption of vindictiveness, Rojas could

still prevail on his due process claim by affirmatively proving “actual

vindictiveness.” See Johnson, ¶ 41. However, he makes no attempt

20
to do so. He does not even respond to the People’s argument that

no evidence suggests “the resentencing judge was motivated by

vindictiveness against him for successfully challenging his original

sentence[s].” Instead, the record shows that the resentencing judge

was attempting to reimpose Rojas’s original aggregate prison term

and, in doing so, did not consider the impact of the new sentences

on Rojas’s parole eligibility. Because Rojas has not presented any

evidence of actual vindictiveness, and we do not discern any such

evidence from the record, his due process argument fails.

D. The District Court Did Not Plainly Err by Relying
on Incorrect Sentencing Information

¶ 43 Rojas last contends that the district court erred by considering

incorrect information during resentencing. Specifically, he argues

that the court relied on a presentence investigation report (PSIR)

that incorrectly stated that Rojas had previously pleaded guilty to

second degree assault against an at-risk person (a class 3 felony)

when he was actually convicted of second degree assault —

drugging the victim (a class 4 felony). We conclude that the district

court did not plainly err by relying on the PSIR.

21
1. Preservation and Standard of Review

¶ 44 Because Rojas did not object to the PSIR at either of the

sentencing hearings, including when the resentencing court

referred to the prior felony as it was listed in the PSIR, we review his

contention for plain error. See People v. Linares-Guzman, 195 P.3d

1130, 1135 (Colo. App. 2008) (applying plain error standard to

unpreserved claim that the sentencing court erred by considering

information outside the record). We must reverse only if the error

was obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14.

An error is “obvious” if it is so clear cut that the judge should have

been able to avoid it without the benefit of an objection. Scott v.

People, 2017 CO 16, ¶ 16. An error is “substantial” if it “so

undermined the fundamental fairness of the sentencing proceeding

as to cast serious doubt on the reliability of the sentence.” People v.

Banark, 155 P.3d 609, 611 (Colo. App. 2007).

2. Discussion

¶ 45 Even assuming, without deciding, that the district court erred

by considering the incorrect classification of the prior felony, the

error was neither obvious nor substantial.

22
¶ 46 First, the error was not obvious. Rojas’s attorney was

provided with the PSIR before the original sentencing hearing, and

Rojas had the opportunity at both sentencing hearings to object to

the information in the PSIR. Indeed, at the original sentencing

hearing, Rojas expressly disclaimed that he had any corrections or

additions to the PSIR. And at the resentencing hearing, Rojas again

made no efforts to correct the PSIR, nor did he object when the

court stated that “he has a prior felony for a conviction for [second

degree] assault on an at risk person, a [c]lass 3 felony.” See

People v. Padilla, 907 P.2d 601, 609 (Colo. 1995) (“[A] defendant has

a right to be heard regarding the accuracy of matters in his

[PSIR] . . . .”). Colorado case law has established that an

uncontested PSIR has “some measure of reliability, and ‘[c]ourts

resolving sentencing matters may rely on uncontroverted facts set

forth in a [PSIR].’” People v. Fritts, 2014 COA 103, ¶ 33 (alterations

in original) (quoting People v. Tuffo, 209 P.3d 1226, 1231 (Colo.

App. 2009)). Under these circumstances, we cannot see how the

district court could have avoided relying on this information without

an objection. See Scott, ¶ 16.

23
¶ 47 Second, the error was not substantial. During resentencing,

the district court emphasized “the severe damage that Mr. Rojas’[s]

assault did on this victim” in this case, and it is clear from the

record that that was the dominant factor behind the court’s

sentences. The court mentioned the incorrect classification for

Rojas’s prior felony only once in passing, and the classification of

the prior offense as a class 3 felony as opposed to a class 4 felony

did not affect the sentencing range available to the court. Apart

from alleging that the information was wrong, Rojas does not

explain how the court’s brief mention of the offense substantially

influenced the sentencing proceeding. See People v. Conyac, 2014

COA 8M, ¶ 54 (noting that it is the defendant’s burden to establish

plain error).

¶ 48 We are not persuaded otherwise by Rojas’s contention that

Rosales-Mireles v. United States, 585 U.S. 129 (2018), requires us to

vacate his sentences “under any applicable standard.”

Rosales-Mireles involved an unnoticed error that increased the

applicable sentencing range — a type of error that “can, and most

often will, be sufficient to show a reasonable probability of a

different outcome absent the error.” Id. at 139 (quoting

24
Molina-Martinez v. United States, 578 U.S. 189, 198 (2016)). In

contrast, the error alleged here did not affect the sentencing range

and does not contain the same inherent probability.

¶ 49 Consequently, we conclude that there was no plain error

warranting reversal of the sentences. See Banark, 155 P.3d at 611.

III. Disposition

¶ 50 Rojas’s new sentences are affirmed.

JUDGE HARRIS and JUDGE KUHN concur.

25