concurring in part and dissenting in part:
I concur with the majority that the court of appeals erred in not applying a “clearly erroneous” standard in reviewing whether the plea agreement was breached. However, I disagree with the majority’s decision to remand this case for an express determination as to whether the prosecution breached the plea agreement. In my view, remand is unnecessary because the trial court implicitly determined that the agreement was not breached. Furthermore, this determination was not clearly erroneous. Accordingly, I concur in part and dissent in part.
I.
In 1991, defendant pled guilty to felony theft by receiving and felony attempted possession of a vehicle without a vehicle identification number. In return for defendant’s plea, the prosecution made certain promises regarding sentencing in a written plea agreement:
[T]he [prosecution] agrees not to advocate a sentence to the Department of Corrections; nor a sentence of probation; nor a sentence to Community Corrections. However, this stipulation shall not in any manner prevent the prosecution from placing all of the appropriate facts before the Court for consideration.
At the sentencing hearing, the defense presented mitigating factors to the court, and the prosecution responded by recounting the defendant’s criminal history.12 The trial court sentenced the defendant to a total of twenty years in the Department of Corrections.13 The defendant then filed a motion pursuant to Crim. P. 35(c), arguing that the prosecution breached the plea agreement because its comments at the sentencing hearing “advocated a sentence.” The trial court denied the motion, stating that “[a]fter considering the totality of the circumstances ... this Court is persuaded that the sentence is appropriate and should not be modified.” The court of appeals affirmed.
II.
The majority remands this case because it concludes that the trial court made no determination as to whether the prosecution *1035breached the plea agreement. I disagree. In my view, the trial court implicitly determined that the prosecution did not breach the agreement when it denied defendant’s Crim. P. 35(e) motion. This motion raised only one issue: whether the prosecution breached the plea agreement. Thus, in denying the motion, the trial court simultaneously rejected defendant’s contention that the prosecution breached the agreement.
The majority concludes, however, that in the absence of an express finding on the issue of breach, we cannot apply the clearly erroneous standard. I disagree. To apply the clearly erroneous standard, we need only judge whether the record supports the trial court’s determination that the prosecution did not breach the plea agreement. See People v. D.F., 933 P.2d 9, 14 (Colo.1997) (explaining that the “clearly erroneous” standard has been met if the trial court’s findings are supported by the record). In the plea agreement, the prosecution promised “not to advocate a sentence.” According to the majority, this provision means that the prosecution could not advocate a particular sentence. The record is devoid of any evidence that the prosecution advocated a particular sentence for the defendant.14 Moreover, the agreement provides that it “shall not in any manner prevent the prosecution from placing all the appropriate facts before the Court for consideration.” Thus, contrary to the defendant’s assertions, the prosecution was free to recount defendant’s criminal history during the sentencing hearing. Because the record supports the trial court’s determination that the prosecution did not breach the agreement, this determination was not clearly erroneous.
III.
In my view, remand is unnecessary. By denying defendant’s Crim. P. 35(c) motion, the trial court implicitly determined that the prosecution did not breach the plea agreement. Furthermore, it is possible to review this determination using the “clearly erroneous” standard because the record contains all the evidence considered by the trial court. Remanding for an express finding would not provide any additional evidence; it would only force the trial court to restate its conclusion and unnecessarily consume judicial resources. Accordingly, I concur in part and dissent in part.
I am authorized to say that Justice MULLARKEY joins in this concurrence and dissent.
. The prosecution made the following comments at the sentencing hearing:
Your Honor, the defendant’s criminal history runs from basically when he was 18 years old until the present date. Now, it's a continuous criminal history, time after time after time after time, he commits crimes....
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I paint a different picture of Mr. St. James [than the one presented by defense counsel]. I paint a picture of Mr. St. James that he is a consummate con artist, and he knows precisely what he's done. He’s very smart at what he's doing, he’s done it so often. And, yet, he only walks away with so few convictions.
[[Image here]]
And does he pay for [the cars involved in the charges]? No, he doesn’t pay a thing for them. And, yet, a few years later, in between the time he pled guilty in this case and the time he is here today, he does the same thing again. He cons women' or convinces these women that they should be involved in these insurance scams....
. Defendant’s sentence was later reduced.
. Defendant did not seek an evidentiary hearing on his Crim. P. 35(c) motion, nor did he present any extrinsic evidence of breach. Instead, the defendant relied solely on the transcript of the sentencing hearing to support his allegation. This transcript is fully reproduced in the record.