People v. Sosa

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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