COLORADO COURT OF APPEALS
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Court of Appeals No. 10CA0398
City and County of Denver District Court No. 08CR3965
Honorable Michael A. Martinez, Judge
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The People of the State of Colorado,
Plaintiff-Appellee,
v.
Louis C. Ortega,
Defendant-Appellant.
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ORDER AFFIRMED
Division I
Opinion by JUDGE TAUBMAN
Román and Booras, JJ., concur
Announced October 13, 2011
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John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Louis C. Ortega, Pro Se
Defendant, Louis C. Ortega, appeals the district court’s order
denying his motion for postconviction relief. We affirm.
I. Background
Pursuant to a written plea agreement, Ortega pleaded guilty to
child abuse, knowingly or recklessly causing serious bodily injury to
the child. In the plea agreement, Ortega stipulated to a sentencing
range of fifteen to twenty years in the Department of Corrections
(DOC). He also signed and initialed a Crim. P. 11 advisement form,
acknowledging that he was aware of the elements of the crime to
which he was pleading guilty, and that he understood the full range
of potential penalties, including a mandatory sentencing range of
ten to thirty-two years in the DOC. The court accepted his plea as
knowing, voluntary, and intelligent; found that he understood the
elements of the offense and the penalties associated with his plea;
and sentenced him in accordance with the agreement to nineteen
years in the DOC.
Ortega filed an unsuccessful Crim. P. 35(b) motion for
reconsideration of his sentence. Thereafter, Ortega filed the Crim.
P. 35 motion at issue here, seeking to correct an “illegal sentence”
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and requesting appointment of counsel and an evidentiary hearing.
The court denied the motion by written order.
II. “Illegal” Sentence Claim
Ortega first claims that the nineteen-year sentence imposed on
his conviction exceeded the maximum presumptive sentence for his
class three felony. The district court rejected Ortega’s contention,
relying in part on a finding that he had been convicted of a crime of
violence. While we perceive no error in the court’s ultimate
conclusion, we decline to rely on the crime of violence statutes, and
affirm on a different basis. See People v. Eppens, 979 P.2d 14, 22
(Colo. 1999) (appellate court may affirm the court’s rulings on any
basis supported by the record).
A sentence is “not authorized by law” under Crim. P. 35(a) if it
is inconsistent with the statutory scheme outlined by the
legislature. People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.
2006). Such a sentence may be corrected at any time. See Crim. P.
35(a).
Here, Ortega was convicted of felony child abuse resulting in
serious bodily injury, § 18-6-401(1)(a), (7)(a)(III), C.R.S. 2011, a
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class three felony. The offense is both an extraordinary risk crime
and a crime for which the court must sentence a defendant to not
less than the midpoint of the presumptive range and not more than
twice the presumptive maximum. See §§ 18-1.3.-401(10)(b)(X), 186-401(7.5), C.R.S. 2011 (if a defendant is convicted of the class
three felony of child abuse under section 18-6-401(7)(a)(III), “the
court shall sentence the defendant in accordance with section 181.3-401(8)(d)[, C.R.S. 2011]”); see also § 18-1.3-401(8)(d)(I), C.R.S.
2011 (if a defendant is convicted of class three felony child abuse
under section 18-6-401(7)(a)(III), “the court shall be required to
sentence the defendant to the department of corrections for a term
of at least the midpoint in the presumptive range but not more than
twice the maximum term authorized in the presumptive range” for
that class felony).
Here, we conclude that the presumptive range is first
increased in accordance with the extraordinary risk of harm
statute, and section 18-1.3-401(8)(d) is then applied to the
expanded presumptive range. In reaching this holding, we rely on
People v. Greymountain, 952 P.2d 829, 830-31 (Colo. App. 1997),
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where a division of this court recognized that the General Assembly
modified the presumptive sentencing ranges for those offenses
enumerated as “extraordinary risk of harm” crimes. See id.
(concluding that the maximum presumptive sentence applicable to
the defendant's offense was to be increased based on the
“extraordinary risk of harm” enhancement before application of the
crime of violence sentence enhancement statute).
We find the reasoning of Greymountain persuasive and see no
reason why the same analysis should not apply when, as here, a
defendant is convicted of an extraordinary risk of harm crime and
subject to the mandatory sentencing provisions of section 18-1.3401(8)(d). See People v. Hoefer, 961 P.2d 563, 568 (Colo. App. 1998)
(applying the reasoning of Greymountain to cases where a defendant
is convicted of an “extraordinary risk of harm” crime and
adjudicated as a habitual criminal).
Thus, we conclude the court properly calculated Ortega’s
sentence by increasing the maximum presumptive range sentence
to sixteen years and then applying the mandatory language of
section 18-1.3-401(8)(d), which requires a sentence of between ten
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years (the midpoint between four and sixteen) and thirty-two years
(twice the maximum of sixteen) in the DOC.
Accordingly, because the nineteen-year sentence was within
the sentencing range authorized by statute, it was not “illegal”
within the meaning of Crim. P. 35(a).
III. Apprendi Claim
Ortega next argues that the court erred in imposing an
aggravated sentence because he did not (1) admit in open court to
any aggravating factors or (2) waive his right to have a jury
determine the existence of any aggravating factors. We disagree.
Other 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. Apprendi v. New Jersey, 530 U.S. 466, 488-90
(2000). Under Apprendi and Blakely v. Washington, 542 U.S. 296
(2004), the statutory maximum is “the maximum authorized by the
facts established by a plea of guilty or a jury verdict.” Lopez v.
People, 113 P.3d 713, 727 (Colo. 2005) (quoting United States v.
Booker, 543 U.S. 220, 244 (2005)); see People v. Hogan, 114 P.3d
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42, 59 (Colo. App. 2004) (the statutory maximum is the maximum
in the presumptive range for the class of felony, unless “other
statutes are applicable that automatically increase the range of
sentence for particular crimes”).
Here, enhancement of Ortega’s sentence did not require proof
of any fact other than the elements of the crime, which were
necessarily proved beyond a reasonable doubt when he pleaded
guilty to the charged offense. To the extent Ortega contends that he
did not admit to the facts underlying his conviction, we note that a
guilty plea waives the right to a jury trial on the issue of guilt of the
crime. See Lopez, 113 P.3d at 726-27. Further, Ortega specifically
admitted to each of the elements of the crime, and he stipulated to
the sentencing range.
Thus, Ortega’s sentence was not impermissibly aggravated,
and the trial court did not err when it sentenced him to nineteen
years confinement in the DOC.
IV. Voluntary Plea
Ortega next claims that his plea was not knowing, voluntary,
and intelligent because it “included the inducement of an illegal
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sentence” and because his plea agreement did not include, and he
did not understand, the penalties of the “extraordinary risk of
harm” aggravator. He also contends his counsel was ineffective in
failing to object to imposition of the illegal sentence and that the
court and counsel “ambushed” him into pleading guilty to a “longer
sentence than agreed to as part and parcel of the plea agreement.”
We are not persuaded for two reasons.
First, as noted above, Ortega’s sentence was not illegally
aggravated.
Second, the record refutes his claim that the sentence imposed
was longer than the sentence to which he agreed. Although the
plea agreement incorrectly referred to the crime as a crime of
violence, it also correctly noted that Ortega was subject to
mandatory aggravated sentencing. Ortega specifically initialed
paragraphs demonstrating his understanding that he was subject
to a mandatory minimum sentence of ten years and a maximum of
thirty-two years. Further, Ortega’s signature appeared on the page
of the plea agreement noting that the parties had stipulated to a
sentencing range of fifteen to twenty years in the DOC. Also, the
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record demonstrates that the court imposed sentence in the
stipulated range.
To the extent Ortega contends that (1) the court failed to
adequately advise him prior to accepting his plea, or failed to
ensure his plea was knowing, voluntary, or intelligent; or (2) his
counsel was otherwise ineffective, Ortega did not raise these claims
in his motion, and we decline to address them on appeal. See
People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996)
(“Allegations not raised in a Crim. P. 35(c) motion or during the
hearing on that motion and thus not ruled on by the trial court are
not properly before this court for review.”).
We also deem abandoned any additional contentions which
Ortega raised in his postconviction motion and which have not been
pursued on appeal. See People v. Rodriguez, 914 P.2d 230, 249
(Colo. 1996) (defendant’s “failure to specifically reassert on this
appeal all of the claims which the district court disposed of . . .
constitutes a conscious relinquishment of those claims which he
does not reassert”).
V. Hearing and Counsel
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Finally, because the motion, files, and record clearly establish
that Ortega is not entitled to relief, we also conclude that the
district court correctly denied his motion without a hearing and
without appointing counsel. See Duran v. Price, 868 P.2d 375, 379
(Colo. 1994); People v. Flagg, 18 P.3d 792, 795 (Colo. App. 2000).
The order is affirmed.
JUDGE ROMÁN and JUDGE BOORAS concur.
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