Peo v. Bonsell

23CA0637 Peo v Bonsell 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0637
Adams County District Court No. 22CR313
Honorable Sharon Holbrook, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Fermin David Bonsell,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Gomez and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

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

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Fermin David Bonsell, appeals the district court’s

order denying his motion to withdraw his guilty plea under Crim. P.

32(d). We affirm the order.

I. Background

¶2 Adams County charged Bonsell with first degree arson (a class

3 felony), felony menacing (a class 5 felony), and three

misdemeanors, based on evidence that he entered his ex-wife G.A.’s

apartment, held a razor to her neck, removed two smoke detectors,

set two piles of clothing on fire, and left with her cell phone. On

February 25, 2022, Bonsell agreed to plead guilty to attempted

second degree arson (a class 5 felony) in exchange for dismissal of

the original charges in this case plus three other pending cases.

The district court accepted Bonsell’s plea. It ordered a presentence

investigation (PSI) and set the sentencing hearing for April 20,

2022. Bonsell posted bond, and he was released from jail.

¶3 Bonsell failed to report to the probation department for his

PSI. And he was unable to appear at the scheduled sentencing

hearing because he was confined in the Arapahoe County jail. He

had been charged with, among other offenses, the attempted second

degree murder of G.A. on April 11, 2022.

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¶4 At Bonsell’s second scheduled sentencing hearing on July 18,

2022, his public defender told the district court that Bonsell wished

to withdraw his guilty plea. The court ordered that any motion to

withdraw the plea must be filed within thirty days and set a

sentencing hearing for September 21, 2022.

¶5 Bonsell did not move to withdraw his plea by that deadline.

And due to various writ errors, he did not appear at the next three

scheduled sentencing hearings in September, October, and

November. Bonsell’s public defender was present at each of these

hearings, but she made no record about withdrawing Bonsell’s

guilty plea.

¶6 At the sixth scheduled sentencing hearing on November 30,

2022, Bonsell’s public defender was unable to appear. A covering

public defender asked the district court to continue the hearing and

reorder the PSI, which had not been completed. Counsel also told

the court that Bonsell “wanted to discuss this, potentially

withdrawing the plea.” The court declined to make any decisions

based on a possible plea withdrawal because Bonsell had not filed

the ordered motion. It reordered the PSI and set the next

sentencing hearing for March 1, 2023. The probation department

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sent Bonsell a PSI packet on December 1, 2022, but he did not

complete it.

¶7 At a bond hearing on January 9, 2023, Bonsell was once again

represented by a public defender covering for his original counsel.

Bonsell told the district court that he was withdrawing his guilty

plea and wanted to go to trial. The court told Bonsell it would

address a written motion to withdraw the guilty plea if one was

filed.

¶8 On January 26, 2023, a jury in the Arapahoe County case

found Bonsell guilty of three counts of attempted second degree

murder, one count of first degree assault, and one count of second

degree assault. Sentencing in that case was set for March 24,

2023.

¶9 Finally, on February 17, 2023, Bonsell filed a motion to

withdraw his guilty plea. He alleged the following relevant facts:

• G.A. had admitted to two third parties — a woman

named Vikki Skinner and her husband — that she

herself had set the clothes on fire.

• Bonsell alerted his public defender to this new evidence

“after being charged in the Arapahoe County case.”

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• On September 26, 2022, an investigator interviewed

Vikki Skinner, who confirmed that G.A. had admitted to

setting the clothes on fire.

¶ 10 The district court denied the motion in a written order. The

court generally found that (1) Bonsell’s guilty plea had been

knowing, voluntary and intelligent; and (2) the motion was

pretextual and filed for the purpose of delaying a conviction, so as

not to aggravate his sentence in the Arapahoe County case.

¶ 11 At the sentencing hearing, the court heard further argument

about the plea withdrawal request. Defense counsel argued that

Bonsell had originally agreed to plead guilty “to put the criminal

episode behind him,” but he wished to change his plea because

“we’re in a different position now.” The defense also argued that the

late filing was a result of Bonsell’s confinement in Arapahoe County

and “further investigation.” The district court considered these

arguments and the corroborating evidence for Bonsell’s menacing

and arson charges before deciding that it was comfortable

proceeding with sentencing pursuant to Bonsell’s guilty plea. It

then imposed the maximum presumptive range sentence — three

years in the custody of the Department of Corrections.

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II. Discussion

¶ 12 Bonsell does not challenge the finding that his plea was

knowing, voluntary, and intelligent. Rather, he contends that the

district court abused its discretion in denying his motion because it

unreasonably faulted him for delays in filing the motion and

erroneously found that his alleged new evidence did not provide a

viable defense. We are not persuaded.

A. Governing Law and Standard of Review

¶ 13 Crim. P. 32(d) allows a defendant to file a motion to withdraw

a guilty plea before a sentence is imposed. Kazadi v. People, 2012

CO 73, ¶ 14. However, a defendant does not have an absolute right

to withdraw a guilty plea. People v. Boling, 261 P.3d 503, 504 (Colo.

App. 2011); see United States v. Gonzalez, 970 F.2d 1095, 1100 (2d

Cir. 1992) (A defendant’s “change of heart” prompted by his

reevaluation of the case against him “is not a sufficient reason to

permit withdrawal of a plea.”); People v. Weed, 830 P.2d 1095, 1098

(Colo. App. 1991) (upholding the denial of a Crim. P. 32(d) motion

when the defendant asserted that he was “pressured” into pleading

guilty); People v. Jones, 33 P.3d 1258, 1259 (Colo. App. 2001)

(upholding the denial of a Crim. P. 32(d) motion when the defendant

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misunderstood that his sentence could run consecutive to another

sentence). To warrant plea withdrawal, the defendant bears the

burden of establishing a “fair and just reason.” Kazadi, ¶ 14

(quoting People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988)).

¶ 14 A court should consider the following non-exclusive list of

factors to determine whether a defendant has shown a fair and just

reason to withdraw his plea: “whether the prosecution would be

prejudiced by the withdrawal of the guilty plea, whether the

defendant promptly moved to withdraw the guilty plea, and whether

the defendant has shown that ‘justice will be subverted’ if the

motion is denied.” Crumb v. People, 230 P.3d 726, 733 (Colo. 2010)

(citations omitted). Justice could be subverted by denying a Rule

32(d) motion when the guilty plea was entered involuntarily, when

the defendant was surprised or influenced into a plea when he had

a defense, when the plea was entered by mistake, or when the plea

was provoked by “fear, fraud, or official misrepresentation.” Maes v.

People, 396 P.2d 457, 459 (Colo. 1964); accord People v. Chavez,

730 P.2d 321, 327 (Colo. 1986).

¶ 15 The district court has broad discretion to determine whether

the defendant has demonstrated a fair and just reason to withdraw

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a guilty plea, and we will not reverse the court’s denial of a Rule

32(d) motion unless the court abused its discretion. Kazadi, ¶ 15.

A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or when it applies an incorrect

legal standard. People v. Rodriguez, 2022 COA 98, ¶ 12.

B. Analysis

¶ 16 Applying the Crumb factors, we perceive no abuse of discretion

in the district court’s finding that Bonsell failed to show a fair and

just reason to withdraw his guilty plea. Only the first factor is

favorable to Bonsell because the prosecution did not argue that it

would be prejudiced by Bonsell’s withdrawal of his plea.

¶ 17 As to the second factor, Bonsell’s motion to withdraw his plea

was by no measure prompt. It was filed nearly a year after his plea;

six months after the court-ordered filing deadline; nearly four

months after an investigator allegedly confirmed G.A.’s admission to

a third party; and thirty-nine days after Bonsell clearly reiterated

that he wanted to go to trial. Cf. Crumb, 230 P.3d at 733

(concluding that the defendant’s motion to withdraw his guilty plea

was not prompt when it was filed forty-nine days after he entered

the plea). The filing delay was protracted even excluding any delay

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related to faulty writs, which do not directly impact a written

motion. Ultimately, Bonsell delayed filing until shortly after his

conviction in the Arapahoe County case — when, as he argued, he

was “in a different position.” We cannot conclude that the district

court arbitrarily, unfairly, or unreasonably faulted Bonsell for the

timing of his motion.

¶ 18 As to the third factor, we find record support for the district

court’s implicit finding that Bonsell failed to show that justice

would be subverted by denying his motion. See Maes, 396 P.2d at

459 (There must be some showing that justice will be subverted to

“warrant the exercise of discretion favorable to a defendant

concerning a change of plea.”). Bonsell did not allege, either in his

motion or at his sentencing hearing, that he was “surprised or

influenced” into making his plea despite a defense that he didn’t set

the fires. See id. at 460. He merely alleged that he had discovered

a partial oral confession (to arson) by G.A. to two third parties. As

discussed in the previous paragraph, the timing of Bonsell’s motion

supports the court’s finding that Bonsell sought delay rather than

justice. Delaying a conviction is not a fair and just reason to

withdraw a guilty plea.

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¶ 19 To the extent the district court’s ultimate finding relies on its

finding that Bonsell did not allege a viable defense, we find record

support for this, too. As previously noted, Bonsell alleged only a

partial defense. Moreover, the district court correctly observed that

Bonsell did not allege any facts suggesting that G.A.’s hearsay

statement would be admissible at a trial. See CRE 804(b)(3)

(permitting hearsay statements against interest when the declarant

is unavailable); see also CRE 807 (permitting hearsay statements

with circumstantial guarantees of trustworthiness). The court also

correctly noted that there was significant evidence corroborating

G.A.’s allegations for the charged crimes, including that her smoke

detectors had been removed, she had been cut with a razor blade,

and her cell phone was missing.

¶ 20 We conclude that the district court acted within its discretion

when it denied Bonsell’s motion to withdraw his guilty plea.

III. Disposition

¶ 21 The order is affirmed.

JUDGE GOMEZ and JUDGE BERNARD concur.

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