COLORADO COURT OF APPEALS                                        2016COA93


Court of Appeals No. 14CA1865
Arapahoe County District Court No. 11CR2138
Honorable Christopher C. Cross, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alejandro Armando Sosa,

Defendant-Appellant.


                         APPEAL DISMISSED IN PART
                           AND ORDER AFFIRMED

                                 Division IV
                          Opinion by JUDGE TERRY
                        Hawthorne and Fox, JJ., concur

                          Announced June 16, 2016


Cynthia H. Coffman, Attorney General, Michael D. McMaster, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for
Defendant-Appellant
¶1    When a defendant pleads guilty and receives a deferred

 judgment as part of the plea, does the court of appeals have

 jurisdiction to hear an appeal challenging the denial of a Crim. P.

 32(d) motion for withdrawal of the plea before the judgment is

 entered and the defendant is sentenced? Despite the unfortunate

 consequences that a defendant will incur even before sentence is

 imposed, we conclude that the answer to this question is “no.”

¶2    Defendant, Alejandro Armando Sosa, entered into a plea

 agreement to a deferred judgment. He later filed a motion seeking

 to withdraw his guilty plea to attempted contributing to the

 delinquency of a minor under Crim. P. 35(c), and to withdraw his

 guilty plea to patronizing a prostituted child under Crim. P. 32(d).

 After he filed an appeal of the order denying that motion, the

 People filed a motion to dismiss the appeal for lack of jurisdiction,

 and defendant responded. Because we conclude that this court

 lacks jurisdiction to consider the appeal of his Crim. P. 32(d)

 motion, we dismiss that portion of the appeal without prejudice

 and do not reach the merits. And for reasons discussed below,

 we affirm the denial of his Crim. P. 35(c) motion.




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                             I. Background

¶3    In late 2012, law enforcement officers discovered defendant,

 who was thirty-six years old at the time, leaving a hotel room with

 a fifteen-year-old girl (the victim). The victim informed the police

 that defendant had had sex with her and had provided her with

 marijuana. The police searched the hotel room and recovered a

 used condom, which contained both defendant’s and the victim’s

 DNA. Defendant was charged with three counts: (1) contributing

 to the delinquency of a minor; (2) sexual assault; and (3)

 possession of marijuana.

¶4    As part of a plea agreement, defendant pleaded guilty to an

 amended count of attempted contributing to the delinquency of a

 minor (Count 1) and was sentenced to three years of probation on

 that count. He also agreed to allow an added count of patronizing

 a prostituted child (Count 4), and in exchange for his guilty plea

 to that charge, he was given a deferred judgment and sentence,

 and was ordered to complete sex offender intensive supervised

 probation.

¶5    The probation department later filed a complaint seeking to

 revoke the deferred judgment, alleging that defendant had been


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 unsuccessfully discharged from his sex offender treatment

 program and had failed to comply with the terms of his probation.

 While that complaint was pending, defendant filed a motion to

 withdraw his guilty plea to Count 1 — apparently relying on Crim.

 P. 35(c) — and to withdraw his guilty plea to Count 4 —

 apparently relying on Crim. P. 32(d). He asserted that his pleas

 were not voluntary and knowing because he was denied effective

 assistance of counsel when his plea counsel failed to adequately

 advise him of the collateral consequences of entering those pleas.

 He also asserted that plea counsel failed to inform him of his

 likely inability to comply with the terms and conditions of

 probation and a deferred judgment.

¶6    The district court held an evidentiary hearing and denied the

 motion. After defendant filed this appeal, the district court

 granted a continuance of the hearing on the probation

 department’s revocation motion, pending the outcome of this

 appeal.

                         II. Motion to Dismiss

¶7    The People assert that we must dismiss this appeal. They

 contend that no final, appealable judgment exists because


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 defendant’s deferred judgment has not yet been revoked and he

 has not been sentenced. With respect to the appeal of the district

 court’s denial of defendant’s Crim. P. 32(d) motion, we agree. As

 noted below, we do not dismiss the appeal of the denial of

 defendant’s motion under Crim. P. 35(c).

                          A. Legal Standards

¶8    “Every court has authority to hear and decide the question

 of its own jurisdiction.” In re Water Rights of Elk Dance Colo.,

 LLC, 139 P.3d 660, 670 (Colo. 2006). Under section 13-4-102,

 C.R.S. 2015, the court of appeals has initial appellate jurisdiction

 over all final judgments entered by district courts of the state.

 See also C.A.R. 1(a)(1). A final judgment is “one that ends the

 particular action in which it is entered, leaving nothing further for

 the court pronouncing it to do in order to completely determine

 the rights of the parties involved in the proceedings.” People v.

 Guatney, 214 P.3d 1049, 1051 (Colo. 2009).

¶9    In a criminal case, there is no final judgment until “the

 defendant is acquitted, the charges are dismissed, or the

 defendant is convicted and sentence is imposed.” People v.




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  Gabriesheski, 262 P.3d 653, 657 (Colo. 2011) (quoting Guatney,

  214 P.3d at 1051).

                              B. Application

¶ 10   Defendant asserts that because his counsel’s performance

  was constitutionally deficient during the plea agreement process,

  he should be permitted to withdraw his guilty plea under Crim. P.

  32(d). As we understand his pleadings and the record, this

  argument pertains to Count 4, to which he pleaded guilty in

  exchange for a deferred judgment and sentence.

¶ 11   A deferred judgment is authorized by statute.

  § 18-1.3-102(1), C.R.S. 2015; People v. Carbajal, 198 P.3d 102,

  105 (Colo. 2008). Once a defendant pleads guilty to a felony, the

  statute allows the district court to continue the defendant’s case

  without entering a judgment of conviction. § 18-1.3-102(1).

  Sentencing may be deferred for up to four years from the date of

  the plea, and probation-like supervision conditions may be

  imposed. § 18-1.3-102(2); Carbajal, 198 P.3d at 105.

¶ 12   Under section 16-7-206(3), C.R.S. 2015, the court’s

  acceptance of a guilty plea is a “conviction” for the offense the

  defendant pleaded guilty to, even if the defendant is given a


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  deferred judgment for that offense. But the supreme court held

  in Carbajal, 198 P.3d at 105, that “[a] deferred judgment is not a

  final judgment, and thus may not be subject to either Crim. P. 35

  review or direct appellate review until revoked.” See also Kazadi

  v. People, 2012 CO 73, ¶ 18 (determining that “Carbajal is

  precedent for [its] ruling”).

¶ 13   Because the revocation hearing is still pending, defendant

  will not be sentenced on Count 4 unless the district court

  determines that his deferred judgment should be revoked. If the

  court does make this determination, the court must enter a

  judgment of conviction, and sentence defendant, before the

  judgment becomes final. People v. Wiedemer, 899 P.2d 283, 284

  (Colo. App. 1994); see also Crim. P. 32(b)(3)(I) (A “judgment of

  conviction shall consist of a recital of the plea, the verdict or

  findings, the sentence, the finding of the amount of presentence

  confinement, and costs,” among other things.) (emphasis added).

¶ 14   In the absence of a judgment of conviction and a sentence,

  there is no final judgment, and for that reason this court lacks

  jurisdiction to hear the appeal. Carbajal, 198 P.3d at 105;

  Wiedemer, 899 P.2d at 284 (“A guilty plea alone . . . cannot


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  constitute a judgment . . . ; according to [what is now Crim. P.

  32(b)(3)(I)], there can be no judgment unless a sentence

  accompanies the recital of the plea.”).

¶ 15   Because defendant cannot obtain the relief he seeks based

  on a non-final judgment, we dismiss his appeal of his Crim. P.

  32(d) motion for lack of jurisdiction. In dismissing this portion of

  the appeal, we do so without prejudice and note that defendant

  may refile his appeal if the district court revokes his deferred

  judgment.

                                C. Kazadi

¶ 16   We recognize that the result we reach is somewhat

  anomalous, given that the supreme court held in Kazadi, ¶ 1,

  that a defendant who has pleaded guilty in return for a deferred

  judgment and sentence can seek to withdraw his guilty plea

  under Crim. P. 32(d). However, the supreme court in Kazadi did

  not address the appealability of such an order to us. And

  because that court earlier held that a deferred judgment is not a

  final judgment, see Carbajal, 198 P.3d at 105, we must conclude

  that the denial of a Crim. P. 32(d) motion to withdraw such a

  non-final judgment is not subject to appeal.


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¶ 17   Our analysis is unaffected by either People v. Espino-Paez,

  2014 COA 126, ¶¶ 10-16 (cert. granted Sept. 8, 2015), or People v.

  Corrales-Castro, 2015 COA 34M, ¶¶ 31-36 (cert. granted Sept. 8,

  2015), because in each of those cases, the defendant did not file

  his Crim. P. 32(d) motion to withdraw his guilty plea until after he

  had successfully completed his deferred judgment.

       D. Fairness and Chief Justice Bender’s Dissent in Kazadi

¶ 18   Despite our conclusion that we lack jurisdiction, we

  recognize the harshness of our decision, which was well

  expressed in Chief Justice Bender’s dissent in Kazadi. He said

  that it seems “incongruous that a defendant who has received the

  privilege and benefit of a more lenient deferred judgment would

  have a more limited right of postconviction review to this

  constitutional claim than a defendant who has received a more

  traditional sentence to prison, jail, or probation.” Kazadi, ¶ 25

  (Bender, C.J., dissenting).

¶ 19   As his dissent notes, a defendant who pleads guilty to an

  offense in return for a deferred judgment is still considered to be

  convicted of that offense for many purposes and will suffer the

  collateral consequences of that conviction. See id. at ¶ 26 n.4


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  (stating that collateral consequences of a plea of guilty in

  Colorado can, depending on the offense, include the loss of a

  driver’s license, the loss of the right to possess firearms, the

  inability to adopt a child, the inability to change one’s name, the

  inability to obtain — or the revocation of — certain professional

  licenses, and the inability to obtain a United States passport). We

  share the dissent’s concern about these consequences to

  defendant.

¶ 20   Defendant asserts that he faces one such collateral

  consequence because the terms of his probation essentially

  prohibit him from living with his partner. His inability to obtain

  appellate review of the denial of his Crim. P. 32(b) motion will

  prolong that and other adverse consequences.

¶ 21   While we recognize the harshness of this result, this court is

  powerless to create jurisdiction where none exists by statute or

  court rule. See Espino-Paez, ¶ 16. We commend this case to the

  attention of the General Assembly and the Colorado Supreme

  Court Advisory Committee on the Rules of Criminal Procedure to

  consider creation of a mechanism to allow appeal in cases such

  as this.


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              III. Appeal of Denial of Crim. P. 35(c) Motion

¶ 22   Defendant also purports to appeal the denial of his Crim. P.

  35(c) motion. Because he could not yet seek postconviction relief

  under that rule for his guilty plea to Count 4, see Kazadi, ¶ 1, we

  construe his motion as applying only to his conviction for Count 1

  (attempted contributing to the delinquency of a minor). And

  because he has already been sentenced for Count 1, his Crim. P.

  35(c) motion was ripe for decision by the district court.

¶ 23   But defendant has raised no argument on appeal with

  respect to his Crim. P. 35(c) motion. Therefore, we will not

  consider his appellate claim for reversal of the district court’s

  order as it pertains to that motion. See People v. Diefenderfer,

  784 P.2d 741, 752 (Colo.1989) (a defendant must inform an

  appellate court as to the specific errors relied upon and as to the

  grounds, supporting facts and authorities therefor); Denver U.S.

  Nat’l Bank v. People ex rel. Dunbar, 29 Colo. App. 93, 98, 480

  P.2d 849, 851 (1970) (“[T]he rule is universally recognized that an

  appellate court will consider only those questions properly raised

  by the appealing parties.” (quoting Eggert v. Pac. States Sav. &

  Loan Co., 136 P.2d 822, 829 (Cal. Dist. Ct. App. 1943))).


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                             IV. Conclusion

¶ 24   The appeal of defendant’s Crim. P. 32(d) motion is dismissed

  without prejudice. The portion of the district court’s order

  denying defendant’s Crim. P. 35(c) motion is affirmed.

       JUDGE HAWTHORNE and JUDGE FOX concur.




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