Peo v. Brach

23CA0768 Peo v Brach 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0768
Mesa County District Court Nos. 22CR1121 & 22CR1226
Honorable Jeremy L. Chaffin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nathan Dominic Brach,

Defendant-Appellant.

SENTENCES AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE MEIRINK
Freyre and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Nathan Dominic Brach, pleaded guilty to

possession of a weapon by a previous offender (POWPO) and to

third degree assault in Mesa County Case No. 22CR1121 and to one

count of POWPO in Mesa County Case No. 22CR1226.

¶2 In Case No. 22CR1121, the district court sentenced Brach to

364 days in county jail for the assault charge and fifteen years of

probation for the POWPO charge — with the sentences to run

consecutively. In Case No. 22CR1226, the district court sentenced

Brach to fifteen years of probation, to be served concurrently with

the probationary sentence in Case No. 22CR1121. This appeal

followed. We reverse the sentence imposed in Case No. 22CR1121

and remand for resentencing, and we affirm the sentence imposed

in Case No. 22CR1226.

I. Background

¶3 In August 2022, Brach and his girlfriend, E.M., were watching

a movie at E.M.’s home. Brach became agitated and asked E.M.

whom she was texting. E.M. handed Brach her phone, and he

threw it against the wall. E.M. told officers that Brach grabbed her

by the throat, strangled her, and pushed her against a wall and

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then to the ground. Brach then struck her head with a cordless

drill, knocking her unconscious.

¶4 According to the affidavit in support of a warrantless arrest,

when E.M. woke up, she claimed that she was wrapped in a blue

plastic mattress cover. She could hear Brach on the phone talking

to someone. E.M. heard Brach leave, and she broke out of the

plastic. E.M. locked the front door, ran into her bedroom, and

called 911. E.M. said she could hear Brach knocking on and

kicking the front door. Eventually, Brach kicked in the front door

and entered E.M.’s home. The police arrived soon after.

¶5 When the police searched the apartment, they found

numerous bullets throughout the home. During interviews, E.M.

confirmed that Brach owned firearms, despite prior convictions

prohibiting him from possessing weapons. Brach was charged in

Case No. 22CR1121 with attempt to commit second degree murder,

two counts of second degree assault, felony menacing, false

imprisonment, criminal mischief, and three crime of violence

sentence-enhancer counts.

¶6 Officers later learned that Brach owned a fifth-wheel camper,

which was parked on E.M.’s brother’s property, and that there were

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guns in the camper. When officers searched the camper, they

found numerous firearms, ammunition, and apparent explosives.

Based on the possession of those weapons, the People charged

Brach with six counts of POWPO in Case No. 22CR1226.

¶7 Brach reached a global plea agreement with the prosecution.

In Case No. 22CR1121, Brach agreed to plead guilty to an added

POWPO count and an added third degree assault count in exchange

for dismissal of the remaining charges. In Case No. 22CR1226,

Brach agreed to plead guilty to one POWPO count in exchange for

dismissal of the remaining charges.

¶8 After accepting Brach’s guilty pleas, the district court

sentenced Brach as mentioned above.

II. Analysis

¶9 Brach argues that (1) the district court erred in sentencing

him to imprisonment on one charge and probation on another

charge in Case No. 22CR1121; (2) the district court erred by

imposing probation without his consent; (3) his guilty pleas are

invalid because they were not made knowingly, intelligently, and

voluntarily; and (4) his fifteen-year probationary sentence for a

POWPO offense is disproportionate and constitutes cruel and

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unusual punishment. We agree with Brach’s first contention and

disagree with his remaining contentions.

A. The Sentence Imposed in Case No. 22CR1121 Violates Allman
v. People

¶ 10 Brach first argues that his sentence in Case No. 22CR1121 is

illegal because he was sentenced to imprisonment for the third

degree assault charge and probation for the POWPO charge in

violation of Allman v. People, 2019 CO 78, which requires courts to

choose either incarceration or probation when sentencing a

defendant to multiple sentences in the same case.

1. Standard of Review and Applicable Law

¶ 11 Whether a district court has the authority to impose a specific

sentence is a question of statutory interpretation, which we review

de novo. Snow v. People, 2025 CO 32, ¶ 19.

¶ 12 A district court’s sentencing authority derives entirely from

statute. Allman, ¶ 28. Section 18-1.3-202(1)(a), C.R.S. 2025, gives

district courts discretion to grant probation as an alternative to a

prison sentence. See Allman, ¶ 34 (recognizing that the probation

statute “requires a choice between prison and probation).” The

“legislature intended to allow courts to choose only one or the

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other.” Id. When “a court sentences a defendant for multiple

offenses in the same case, it may not impose imprisonment for

certain offenses and probation for others.” Id. at ¶ 40.

2. Discussion

¶ 13 The district court sentenced Brach to 364 days in county jail

for the third degree assault charge to be followed by fifteen years of

probation for the POWPO charge.

¶ 14 Allman clarified that section 18-1.3-202 gives district courts

discretion to choose between imprisonment and probation within

the same case, but the statutory scheme does not “allow a court to

impose sentences of imprisonment and probation for different

counts in the same case.” Allman, ¶ 38. Here, the district court

acknowledged that the “options in this case are probation or

prison,” but it nevertheless imposed a fifteen-year probation

sentence following a 364-day imprisonment sentence. This is

incompatible with Allman and the probation statute.

¶ 15 Accordingly, we reverse the sentence imposed in Case No.

22CR1121 and remand the case to the district court for

resentencing consistent with Allman and section 18-1.3-202.

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B. Brach Consented to Fifteen-Year Probationary Sentences

¶ 16 Brach contends that his fifteen-year probationary sentences

are illegal because he did not accept such lengthy terms. We

disagree.

1. Standard of Review and Applicable Law

¶ 17 We review the legality of a sentence de novo. Veith v. People,

2017 CO 19, ¶ 12.

¶ 18 Probation is an alternative to a prison sentence. People v.

Smith, 2014 CO 10, ¶ 8. A prison sentence is primarily punitive,

but probation is intended to be rehabilitative. Id. Because

probation is an opportunity for a defendant to avoid serving a

harsher sentence of incarceration, a defendant must apply for it,

and receipt of probation is a privilege, not a right. Id.; see also

§ 18-1.3-202(1)(a) (probation is a request that the court “may grant”

or deny). An offender must choose to accept the court’s terms; the

court may not impose a sentence of probation without the offender’s

consent. Smith, ¶ 8; see also People v. Rollins, 771 P.2d 32, 33

(Colo. App. 1989) (recognizing that probation “is accorded only to a

defendant who seeks or is willing to accept it as a sentence”). If the

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offender “rejects probation, the court may sentence the offender to

imprisonment under section 18-1.3-104.” Smith, ¶ 8.

2. Discussion

¶ 19 Brach contends that because he did not consent to fifteen

years of probation, his sentences are illegal and must be vacated.

Brach claims he did not consent for two reasons. First, while the

district court indicated that it could sentence him to incarceration,

Brach asserts that the court never raised the possibility of a fifteen-

year probationary sentence before it sentenced him. Second, Brach

claims that the district court never mentioned that he had to

consent or that he could reject probation after hearing its terms.

We are unpersuaded and address each of Brach’s arguments in

turn.

¶ 20 First, based on the record, we cannot say that Brach’s fifteen-

year probationary sentences were a surprise. Consistent with

section 18-1.3-201, C.R.S. 2025, Brach requested probation. At the

sentencing hearing, defense counsel argued that prison time was

not appropriate for Brach, “given the facts of this case, . . . Brach’s

low risk assessment, . . . [and] the fact that Mr. Brach has already

served 184 days in jail.” Counsel also noted that Brach had a lot of

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family support; he owned a welding business; and, if placed on

probation, his “intent [wa]s to work with probation to do an

interstate compact to Texas, and reside with his mom, and get his

business up and running.”

¶ 21 Under section 18-1.3-202(1)(a), a court has broad discretion to

grant probation “upon such terms and conditions as it deems best.”

Further, the length of probation is “subject to the discretion of the

court and may exceed the maximum period of incarceration

authorized for the classification of the offense of which the

defendant is convicted.” Id.

¶ 22 At the sentencing hearing, the court mentioned that, when

compared to the time Brach could spend in prison, a probationary

sentence could be for an extended or indefinite length of time. As

the court explained, Brach was facing a “presumptive range

sentence of up to three years in prison,” but “[i]f [the court] were to

sentence Mr. Brach to probation, [it] c[ould] sentence him to any

term including forever, the rest of his life.” The court also described

its reasoning for imposing a probationary sentence over

incarceration:

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[A]s easy as it would be to send you to prison
today, Mr. Brach, I don’t think that just
sending you to prison is going to address those
issues. I don’t think the community is going to
be safer if I just sent you to prison, and then in
three years no one’s keeping an eye on you. I
don’t think that sending you to prison where
you aren’t going to go through substance
abuse treatment, where you aren’t going to get
mental health treatment, where you aren’t
going to go through domestic violence
treatment is going to make [E.M.] safer or the
community safer. And so I am not going to
send you to prison on the felony charges . . . .

¶ 23 Thus, there is ample evidence in the record demonstrating

that the court and parties discussed probation extensively,

including the fact that a probationary term could be lengthy, and

that the district court granted probation because Brach required

long-term supervision and treatment.

¶ 24 Second, the record shows that Brach consented to his

probationary sentences. While Brach did not object at the time the

court pronounced his sentences, he was given multiple

opportunities to object, but he did not. Moreover, when the court

was finished sentencing him, it asked Brach if he had “any further

record [he would] like to make,” and he declined to do so.

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¶ 25 Brach claims that his failure to object does not amount to

consent or acquiescence to his probation. In support, he relies on

Veith for the proposition that “a trial court cannot impose a

sentence of probation without the defendant’s consent.” Veith, ¶ 4.

We agree that consent is required but conclude that Brach’s

reliance on Veith is misplaced.

¶ 26 In Veith, the defendant pleaded guilty to theft and securities

fraud. Id. at ¶ 2. Veith requested probation but was sentenced to a

ten-year term of incarceration plus parole for the theft count and

twenty-five years of probation for the securities fraud charge. Id.

Like Brach, Veith did not object when the judge sentenced him. Id.

But unlike Brach, Veith did not sign any form acknowledging and

accepting the terms and conditions of the probationary sentence.

Id. at ¶ 9. Because Veith did not “sign the probation order that

provided the specific terms and conditions of the probationary

sentence,” the court held that Veith did not consent and that “the

court lacked the power to impose that sentence.” Id. at ¶¶ 18-19.

¶ 27 Brach’s situation is distinguishable. Brach signed and

initialed the probation order and form outlining the standards and

conditions of probation on April 19, 2023 — nearly a month after

10
the sentencing hearing and after having ample time to review and

challenge the terms. Considered collectively, Brach’s request for

probation, his failure to object at sentencing, and his signing the

sentencing order demonstrate Brach’s consent to his fifteen-year

probationary sentences.

C. The District Court Properly Advised Brach of the Possible
Sentencing Range

¶ 28 Alternatively, Brach argues that his guilty pleas were invalid

because they were not made knowingly, intelligently, and

voluntarily. We disagree.

¶ 29 The People contend that a guilty plea may be challenged and

withdrawn before a defendant is sentenced under Crim. P. 32(d) or

after a defendant is sentenced in a postconviction proceeding under

Crim. P. 35(c). See People v. Kirk, 221 P.3d 63, 64-65 (Colo. App.

2009). Because Brach did not file a motion to withdraw his guilty

pleas under Crim. P. 32(d), the People contend that Brach may only

challenge the validity of his guilty pleas in a Crim. P. 35(c) motion

and not on direct appeal.

¶ 30 Brach clarifies that his argument is not whether his attorney

failed to advise him or incorrectly advised him on the sentencing

11
range, which he acknowledges requires development of the factual

record and can only be accomplished in a postconviction

proceeding. Rather, his argument is that the sentencing court failed

to properly advise him of the possible sentencing range, and,

therefore, his guilty pleas were not “knowing and intelligent.”

¶ 31 Assuming Brach’s argument is properly before us, we are not

persuaded. Crim. P. 11 requires that a defendant be advised of,

among other things, the “possible penalty or penalties” associated

with entering a guilty plea. Crim. P. 11(b)(4). Our supreme court

has construed this requirement as “charging the courts with a duty

to describe the ‘direct consequences’ of the resulting conviction.”

Craig v. People, 986 P.2d 951, 963 (Colo. 1999) (quoting People v.

Birdsong, 958 P.2d 1124, 1128 (Colo. 1998)).

¶ 32 During the plea hearing, Brach was informed of the potential

penalties for his guilty pleas, including any aggravating or

mitigating factors, and Brach informed the court he understood.

Brach was also informed that the court would sentence him as it

deemed appropriate, and Brach did not object or ask clarifying

questions when given the opportunity. Moreover, the court

mentioned that, once it reviewed the presentence investigation

12
report and community corrections screening, the court might

determine that it was not bound by the limitation on concurrent or

consecutive sentencing and that it would give Brach the

opportunity to withdraw his guilty pleas.

¶ 33 Finally, when Brach entered his guilty pleas, he was informed

that sentencing for both cases was “open to the [c]ourt” and signed

the plea agreements anyway. Brach’s signed plea agreements state

that he previously reviewed and discussed the specifications with

his attorney and that he fully understood and accepted the terms.

Accordingly, Brach’s claim that the district court failed to advise

him of the possible sentencing range and that he did not enter his

pleas knowingly, intelligently, and voluntarily is without merit.

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D. Brach’s Sentence Was Not Disproportionate1

¶ 34 Lastly, Brach argues that his fifteen-year probation sentence is

disproportionate and violates the bar against cruel and unusual

punishment.2 We disagree.

1. Standard of Review and Applicable Law

¶ 35 We review constitutional challenges to sentencing de novo.

Misenhelter v. People, 234 P.3d 657, 660 (Colo. 2010). Whether a

sentence is constitutionally proportionate is a question of law that

we review de novo. Rutter v. People, 2015 CO 71, ¶ 12.

¶ 36 Both the United States and Colorado Constitutions prohibit

“grossly disproportionate” sentences. Wells-Yates v. People, 2019

CO 90M, ¶¶ 5, 10. Proportionality is a “foundational ‘precept of

1 Because we are reversing and remanding the sentence imposed in

Case No. 22CR1121, we address Brach’s argument in this section
only as it applies to Case No. 22CR1226.

2 In footnote 3 of their answer brief, the People mention that they

are “unaware of authority addressing a proportionality challenge to
a probation sentence” and that it is “not clear that such a claim is
valid given that a defendant, such as Brach, is free to reject a
probation sentence.” Because the People do not develop their claim,
however, we do not address it. See People v. Hill, 228 P.3d 171, 176
(Colo. App. 2009) (declining to consider a conclusory assertion that
was inadequately presented); see also People v. Simpson, 93 P.3d
551, 555 (Colo. App. 2003) (declining to consider “a bald legal
proposition presented without argument or development”).

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justice’” that “dictates that the punishment should fit the crime.”

Id. at ¶ 1 (quoting Weems v. United States, 217 U.S. 349, 367

(1910)). The inquiry must consider “the evolving standards of

decency that mark the progress of a maturing society.” Id. at ¶ 46

(quoting Graham v. Florida, 560 U.S. 48, 58 (2010)).

¶ 37 When a defendant challenges the proportionality of a sentence,

the court must conduct an abbreviated proportionality review,

which has two steps. Id. at ¶¶ 10-11.

¶ 38 At step one, the court will “consider the gravity or seriousness

of the offense” for which the defendant was convicted. Id. at ¶ 12.

For crimes that are not “per se” grave or serious, courts look at the

facts and circumstances of the offense to determine their gravity or

seriousness. See id. at ¶ 13. Crimes are only “per se” grave or

serious if the crime would be grave or serious in “every potential

factual scenario.” Id. at ¶ 63. Thus, step one generally requires “a

consideration of the harm caused or threatened to the victim or

society and the culpability of the offender.” People v. Session, 2020

COA 158, ¶ 33.

¶ 39 At step two, the court must compare the gravity of the

defendant’s offense with the harshness of the sentence imposed for

15
that offense. Wells-Yates, ¶ 14. This includes a consideration of

the length of the sentence as well as parole eligibility. Id.; Session,

¶ 37. Whether a defendant is parole eligible is relevant during an

abbreviated proportionality review because parole can reduce the

actual period of confinement and render the penalty less harsh.

Wells-Yates, ¶ 14.

2. Discussion

¶ 40 Brach argues that his fifteen-year probationary sentence for

POWPO is disproportionate and violates the bar against cruel and

unusual punishment. We disagree.

¶ 41 POWPO is not a per se grave or serious crime. See People v.

Wright, 2021 COA 106, ¶¶ 73, 77 (recognizing that POWPO does not

present a sufficient level of harm or threat of harm such that it

could be considered inherently grave or serious). But “some, if not

most, factual permutations of POWPO may indeed be considered

grave or serious,” so it is necessary to consider the factual

circumstances associated with the charge and the harm caused or

threatened to the victim. Id. at ¶ 78.

¶ 42 Here, police were dispatched to E.M.’s home because she was

scared that Brach was going to kill her. After his initial arrest,

16
Brach made a recorded jail phone call to his mother, where he

spoke about his “artillery” in his fifth-wheel camper on E.M.’s

brother’s property. Police obtained a warrant to search the camper,

where they found a large compartment under the bed. The

compartment contained numerous firearms, ammunition, and

related items, and police discovered firearms and ammunition

throughout the camper and property.

¶ 43 In addition to the facts and circumstances, we must also

consider “aggravating or mitigating information, including other

charges dismissed at the time of [a] plea, in order to best balance

the competing sentencing goals of punishment, deterrence,

rehabilitation, and protection of society.” People v. Austin, 799 P.2d

408, 413 (Colo. App. 1990) (quoting People v. Lowery, 642 P.2d 515,

518 (Colo. 1982)).

¶ 44 Brach was charged with six counts of POWPO in Case No.

22CR1226 but ultimately pleaded guilty to only one count in

exchange for dismissal of the other five counts as part of his plea

deal. During the sentencing hearing and in a letter to the court,

E.M. detailed her tumultuous relationship with Brach, his history of

violence, his use of firearms and weapons, and her fear that Brach

17
“will come after [her] when he is released.” Further, the record

demonstrates that Brach has been involved with the criminal

justice system for over twenty years, and his offenses have

escalated in severity and violence:

• In 2000, Brach had four alcohol-related misdemeanor traffic

violations.

• In 2006, Brach was convicted of assault and was sentenced to

eighteen months of probation.

• In 2012, Brach was convicted of felony menacing alongside a

misdemeanor charge of criminal mischief and was sentenced

to five years’ probation. Brach also received a five-year

probationary sentence for an assault committed later in 2012.

• In 2020, Brach was charged with domestic violence assault

and was ordered to complete a family violence class.

¶ 45 Considering Brach’s criminal history, his risk of reoffending if

he does not address his “criminogenic needs,” and the original six

POWPO charges against him, we conclude Brach’s POWPO offense

was grave and serious.

¶ 46 We next address the harshness of the sentence imposed.

Brach faced a three-year prison sentence for the POWPO charge.

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He would have been eligible for parole or community corrections

after serving fifty to seventy-five percent of his sentence. With

parole eligibility, Brach could have spent a year and a half in

custody, then two years on parole. However, Brach requested and

was granted a probationary sentence.

¶ 47 Brach contends that the length of probation makes his

sentence too harsh. We are unpersuaded. As previously

mentioned, “probation is an opportunity for an offender to avoid

serving a harsher sentence.” Smith, ¶ 8. Through probation, Brach

has received more freedom than he would have received with a

prison sentence, including the possibility of transferring his

probation to another state. Moreover, the district court granted

probation because Brach needed to participate in supervised

rehabilitation and treatment services, which are less harsh than

serving prison time. Finally, under section 18-1.3-204(4)(a), C.R.S.

2025, it’s possible that “[f]or good cause shown . . . the judge may

reduce . . . the term of probation or alter the conditions or impose

new conditions.”

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¶ 48 Under these circumstances, we conclude Brach’s fifteen-year

probationary sentence does not give rise to an inference of gross

disproportionality.

III. Disposition

¶ 49 We reverse the district court’s sentence in Case No. 22CR1121

and remand for resentencing consistent with this opinion. We

affirm the district court’s sentence in Case No. 22CR1226.

JUDGE FREYRE and JUDGE GOMEZ concur.

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