     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
                                                         Date June 27, 2019

                                2019COA95

No. 16CA2178, People v. Villela — Criminal Law — Plea
Agreements — Sentencing — Probation — Revocation —
Resentencing

     A division of the court of appeals considers whether a plea

agreement limited the trial court’s discretion in sentencing the

defendant not only initially, but also following the revocation of

probation. Utilizing the rule of construction espoused in People v.

Griego, 207 P.3d 870, 872 (Colo. App. 2008), the division concludes

that the plea agreement did not limit the court in re-sentencing the

defendant to the range of imprisonment originally contemplated in

the agreement.

     The division also determines that the trial court properly re-

sentenced the defendant to an aggravated range sentence based on

its finding that extraordinary circumstances were present.
COLORADO COURT OF APPEALS                                          2019COA95


Court of Appeals No. 16CA2178
Boulder County District Court No. 14CR490
Honorable Patrick D. Butler, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Danny Lee Villela,

Defendant-Appellant.


                            SENTENCE AFFIRMED

                                 Division II
                         Opinion by JUDGE DAILEY
                       Pawar and Carparelli*, J., concur

                           Announced June 27, 2019


Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Cox, 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. 2018.
¶1    Defendant, Danny Lee Villela, appeals the sentence imposed

 following termination of his probation. We affirm.

                             I. Background

                 A. Plea and First Probation Revocation

¶2    Defendant was originally charged with, among other things,

 menacing and six counts of child abuse after he threatened and

 physically abused his wife and their children. Pursuant to a written

 plea agreement, he pleaded guilty to menacing and child abuse. In

 the agreement, the parties agreed that the sentence to be imposed

 would be at the discretion of the court, but that, if the district court

 sentenced defendant to the custody of the Department of

 Corrections (DOC), the sentences would be in the presumptive

 range of one to three years and would run concurrently to each

 other.

¶3    Defendant requested a sentence to probation, and the district

 court sentenced him to five years of probation. The next year,

 following a violation of the probation terms, the court revoked and

 reinstated defendant’s probation.




                                     1
                    B. Second Probation Revocation

¶4    A year later, the People again moved to revoke defendant’s

 probation after he escaped from his program, contacted the victim

 in violation of a protection order, took her truck, and fled the

 jurisdiction.

¶5    The court revoked defendant’s probation. At the resentencing

 hearing, defendant argued that the court could impose presumptive

 range DOC sentences of no more than three years for each of his

 class 5 felonies, because he had “specifically pled guilty to the

 presumptive range” and his plea documents did not state “what the

 aggravating range was” for these crimes. However, he

 acknowledged that the original stipulations set forth in the plea

 agreement were no longer operative:

            I am fully aware of the fact that when
            somebody is sentenced, [if] they violate the
            sentence, that things like stip to no prison,
            stip to, you know, stip to probation, that those
            things do not carry over if someone violates.

¶6    The prosecutor noted that the plea documents set forth the

 potential for an aggravated range sentence, and that defendant had




                                    2
 several prior felonies that were Blakely-exempt factors.1 The

 prosecutor also asserted the applicable sentencing statutes

 permitted the court to “re-sentence[] the Defendant at its discretion”

 upon a probation violation. The court agreed and found that the

 plea agreement advised defendant of the potential for an aggravated

 range sentence.

¶7    The prosecutor then asked the court to impose a

 four-and-a-half-year aggravated range DOC sentence. In support,

 the prosecutor noted, among other things, defendant’s numerous

 prior felony convictions; that defendant had pleaded guilty to a new

 criminal violation that involved contacting the victim and fleeing to

 another state while still on probation; the sadistic, violent

 circumstances of the original crimes; and the number of child

 victims involved in the original crimes. The court imposed

 concurrent four-year terms in the DOC on each count.




 1 In Blakely v. Washington, 542 U.S. 296, 201 (2004), the United
 States Supreme Court had held that “[o]ther than the fact of a prior
 conviction, any fact that increases the penalty for a crime beyond
 the prescribed statutory maximum must be submitted to a jury,
 and proved beyond a reasonable doubt.”

                                    3
¶8     Defendant appealed his DOC sentence, contending that the

  district court erred in imposing an aggravated range sentence

  because (1) it violated the stipulated sentencing range set forth in

  the original plea agreement; and (2) the sentence was aggravated in

  violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

  Blakely v. Washington, 542 U.S. 296 (2004). We disagree with both

  contentions.

                       II. Terms of Plea Agreement

¶9     Defendant first argues that the court erred by imposing an

  aggravated range sentence when his probation was revoked because

  the original plea agreement mandated a presumptive range

  sentence for his crimes. We disagree.

                         A. Standard of Review

¶ 10   A plea agreement’s meaning is a legal question that we review

  de novo. See People v. Johnson, 999 P.2d 825, 829 (Colo. 2000).

                   B. Applicable Law and Discussion

¶ 11   It is well established that when a defendant’s probation is

  revoked, the trial court may then “impose any sentence . . . which

  might originally have been imposed,” regardless of any sentencing

  concession in the original plea agreement. § 16-11-206(5), C.R.S.


                                    4
  2018; People v. McDaniels, 844 P.2d 1257, 1258 (Colo. App. 1992)

  (section 16-11-206(5) permits any sentence “which may originally

  have been imposed as concerning the statutory limits of the

  sentence unaffected by any plea bargain”), cited with approval in

  Montoya v. People, 864 P.2d 1093, 1095 (Colo. 1993).

¶ 12   Thus, “in the absence of language expressly addressing the

  contingency of revocation [or termination] of a conditional sentence,

  a sentencing stipulation will not be construed as limiting the court’s

  discretion in the event that the defendant fails to comply with the

  terms of the conditional sentence originally imposed.” People v.

  Griego, 207 P.3d 870, 872 (Colo. App. 2008); see McDaniels, 844

  P.2d at 1258.

¶ 13   The facts in McDaniels are similar to the facts in this case. In

  McDaniels, the defendant was sentenced to a three-year term of

  incarceration following probation revocation, even though the

  original plea bargain provided that, if he were sentenced to

  incarceration, his sentence would not exceed two years. A division

  of this court held that, in resentencing defendant to prison, the

  court was not bound by the two-year sentencing cap. The court

  reasoned that the defendant received the benefit of his plea


                                    5
  agreement at the time of the initial sentencing and, following his

  probation violations, a “different factual predicate existed upon

  which sentence was imposed.” 844 P.2d at 1258.2

¶ 14   In Griego, another division agreed with the analysis in

  McDaniels, concluding that a plea agreement’s sentencing cap for

  imprisonment did not apply if the defendant received and then

  violated a conditional sentence. Griego, 207 P.3d at 872.

¶ 15   Defendant argues that McDaniels and Griego were wrongly

  decided, but he cites to no cases that disagree with their reasoning.

  Further, these cases have been cited with approval in a long line of


  2
   That “different factual predicate” includes the circumstance(s)
  underlying the offender’s probation violation(s). See Montoya v.
  People, 864 P.2d 1093, 1096-97 (Colo. 1993). And in resentencing
  the defendant, the court could consider not only the circumstances
  existing in the record or known to the court at the time the
  defendant was originally sentenced, but also any relevant
  circumstance that occurred or arose after the defendant’s initial
  sentencing. See Villanueva v. People, 199 P.3d 1228, 1237 (Colo.
  2008) (in determining the appropriate sentence after probation has
  been revoked, a court may consider a defendant’s actions while on
  probation); Montoya, 864 P.2d at 1095 (“When a sentencing judge
  can identify events that occur after the time of the original penalty
  and justify a more severe penalty, the district judge can impose a
  sentence which is longer than the original sentence.”); People v.
  Smith, 183 P.3d 726, 728-29 (Colo. App. 2008) (stating that on
  revocation of probation, the court may resentence the defendant to
  a longer term based on events that occurred after the original
  sentence).

                                    6
  decisions. See Montoya, 864 P.2d at 1095 (citing McDaniels for the

  proposition that section 16-11-206(5)’s language on any sentence

  “which might originally have been imposed or granted” refers to the

  statutory limits and not those in the plea bargain); People v. Nance,

  221 P.3d 428, 433 (Colo. App. 2009) (same and concluding that the

  McDaniels holding was correct); People v. Smith, 183 P.3d 726,

  728-29 (Colo. App. 2008) (citing McDaniels and rejecting argument

  that the aggravated prison sentence was not one that “might

  originally have been imposed”); People v. Santana, 961 P.2d 498,

  500 (Colo. App. 1997) (citing McDaniels).

¶ 16   In addition, this reasoning is consistent with cases construing

  the court’s broad authority to resentence an offender under section

  16-11-206(5) following revocation or termination of a conditional

  sentence. See Romero v. People, 179 P.3d 984, 987, 989 (Colo.

  2007) (court may increase an offender’s sentence on resentencing);

  People v. Adams, 128 P.3d 260, 262 (Colo. App. 2005) (same); see

  also Fierro v. People, 206 P.3d 460, 461 (Colo. 2009) (upon

  revocation of probation, the court was not bound to impose the

  original suspended sentence).




                                    7
¶ 17   Here, the plea agreement prescribed the sentence to be

  imposed following defendant’s guilty plea, but the stipulation did

  not expressly address the sentence to be imposed after the initial

  sentencing. Given the well-established case law, defendant could

  have bargained for specific language to cover this contingency, but

  he did not. See Griego, 207 P.3d at 872 (discussing need for

  express language addressing contingency of revocation).

¶ 18   We reject the assertion that the plea agreement is ambiguous

  or still applies because defendant requested and received a

  probation sentence rather than a DOC sentence. See McDaniels,

  844 P.2d at 1258 (rejecting similar argument). In interpreting an

  agreement, we must determine the meaning a reasonable person

  would have attached under the circumstances. See Craig v. People,

  986 P.2d 951, 960, 962 (Colo. 1999) (the court cannot read into the

  agreement a term that lacks evidentiary support in the record).

  Probation is a privilege, not a right, and may be revoked if the

  probationer violates any condition. See Byrd v. People, 58 P.3d 50,

  55 (Colo. 2002); People v. Ickler, 877 P.2d 863, 864 (Colo. 1994). In

  the absence of language to the contrary, we cannot assume that the

  parties intended that defendant would be granted a significant


                                    8
  sentence concession at his initial sentencing and then be given the

  same concession after serving part of his probation and violating its

  conditions. See Romero, 179 P.3d at 987 (“[I]t is reasonable that the

  legislature would give courts flexibility to increase a sentence when

  the circumstances merit it.”).

¶ 19   We also reject defendant’s assertion that he is entitled to

  specific performance of the plea agreement as he understood it.

  Before pleading guilty, defendant signed a written advisement that

  acknowledged that he understood the possibility that, if the court

  found aggravating circumstances, it could impose an aggravated

  range sentence of up to six years on each count. A defendant’s

  “plea is not invalid merely because the defendant was not warned

  that upon violation of the terms of his probation, he would be

  subject to resentencing to anything to which he could have

  originally been sentenced.” People v. Marez, 39 P.3d 1190, 1194

  (Colo. 2002); see Montoya, 864 P.2d at 1096-97 (determining that

  the defendant was aware that the court could increase his sentence

  by finding aggravating circumstances, even if he was not specifically

  aware that a probation violation could result in the expansion of his

  original sentence).


                                    9
¶ 20   We conclude that the applicable law and the record do not

  support defendant’s contentions. Thus, after revoking defendant’s

  probation, the district court was free to resentence defendant to any

  sentence authorized by statute, including an aggravated prison

  sentence.

                    III. Apprendi and Blakely Claims

¶ 21   Next, we conclude that the district court properly sentenced

  defendant in the aggravated range based on its finding that

  extraordinary aggravating circumstances were present.

                         A. Standard of Review

¶ 22   Defendant concedes that he did not raise this issue in the

  district court and that plain error review applies. Plain error

  addresses error that is both obvious and substantial. People v.

  Miller, 113 P.3d 743, 750 (Colo. 2005).

                   B. Applicable Law and Discussion

¶ 23   In Blakely, the court held that “[o]ther than the fact of a prior

  conviction, any fact that increases the penalty for a crime beyond

  the prescribed statutory maximum must be submitted to a jury,

  and proved beyond a reasonable doubt.” 542 U.S. at 301 (quoting

  Apprendi, 530 U.S. at 490). The statutory maximum for purposes


                                    10
  of Apprendi is the maximum sentence a trial court may impose

  solely on the basis of the facts reflected in the jury verdict or

  admitted by the defendant. Id. at 303.

¶ 24    As part of the plea agreement, defendant waived his Blakely

  rights and agreed to judicial factfinding as to facts that could result

  in an aggravated range sentence. See Villanueva v. People, 199 P.3d

  1228, 1235 (Colo. 2008) (“[A] defendant is free to waive his Blakely

  rights . . . .”).

¶ 25    Specifically, the plea agreement provided:

               I understand that by pleading guilty and giving
               up my right to have a trial, I give up the right
               to have a jury determine, beyond a reasonable
               doubt, if there are aggravating facts in my
               case. I specifically agree that a judge and not
               a jury can determine the existence of
               aggravating facts in my case that could be
               used by a judge to impose a sentence to prison
               that is greater than the presumptive prison
               sentence range for the offense(s) included
               within this plea agreement.

¶ 26    Thus, defendant stipulated to judicial factfinding to support

  aggravated sentencing pursuant to section 18-1.3-401(6), C.R.S.

  2018. See Lopez v. People, 113 P.3d 713, 719-20 (Colo. 2005).

  And, as noted previously, the plea agreement indicated that with a




                                      11
  finding of exceptional circumstances, the court could impose an

  aggravated range DOC sentence of up to six years.

¶ 27   Defendant’s Blakely waiver was not invalidated because he

  violated his probation terms and was resentenced. See Nance, 221

  P.3d at 432-33 (“McDaniels simply stands for the correct

  proposition that the sentence imposed upon revocation is not

  limited by a cap in a plea agreement” and “should not be

  interpreted so broadly to apply to all aspects of a plea agreement.”);

  Smith, 183 P.3d at 728-29 (rejecting argument that because the

  original sentencing court did not find extraordinary aggravation, the

  aggravated prison sentence was not one that “might originally have

  been imposed” and violated Blakely).

¶ 28   Defendant argues that his consent to judicial factfinding for

  the purposes of Blakely was limited to factual findings concerning

  his original crimes. Specifically, he contends that he did not admit,

  and the court could not consider for Blakely purposes, that he

  absconded to Texas. He also appears to contend that the court did

  not aggravate his sentence based on his criminal record.

¶ 29   Even accepting these assertions as true, the district court,

  while noting that it could aggravate his sentence because of his


                                    12
  “new offense” and because he absconded to Texas, also relied on the

  extraordinary aggravating circumstances of the original crimes to

  aggravate his sentence. See § 18-1.3-401(6).

¶ 30   “[O]ne Blakely-compliant or Blakely-exempt factor is sufficient

  to support an aggravated sentence,” even if the court also

  considered factors that were not Blakely-compliant or

  Blakely-exempt. People v. Huber, 139 P.3d 628, 634 (Colo. 2006)

  (quoting Lopez, 113 P.3d at 731). And the court’s reliance on the

  circumstances of the original crimes was sufficient to support the

  aggravated range DOC sentence.

¶ 31   Further, “independent of any concern about the adequacy of

  advisements or admitted facts, a court may constitutionally impose

  an aggravated range sentence based on a defendant’s other

  convictions,” including prior, subsequent, and “concurrent”

  convictions that enter prior to sentencing. People v. Misenhelter,

  214 P.3d 497, 502 (Colo. App. 2009), aff’d, 234 P.3d 657 (Colo.

  2010); see Lopez, 113 P.3d at 723.

¶ 32   “The timing of the underlying crime is irrelevant so long as the

  conviction itself, with all its attendant procedural protections, is

  entered before being used to aggravate a sentence.” Misenhelter v.


                                     13
  People, 234 P.3d 657, 661 (Colo. 2010); Smith, 183 P.3d at 729

  (rejecting Blakely challenge on resentencing and noting that

  violation of terms of probation may constitute an extraordinary

  aggravating circumstance under section 18-1.3-401(6)).

¶ 33   Here, the prosecution argued at sentencing that defendant’s

  prior felony convictions were a Blakely-exempt factor, and the court

  appeared to conclude that they exposed defendant to an aggravated

  range sentence. This provides a Blakely-exempt factor. Therefore,

  the trial court properly resentenced defendant to an aggravated

  range sentence.

                            IV. Disposition

¶ 34   The sentence is affirmed.

       JUDGE PAWAR and JUDGE CARPARELLI concur.




                                   14
