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People v. Lassek4/21/2005
SENTENCE AND ORDER AFFIRMED
Graham and Ney, JJ., concur
Defendant, Hilary Lassek, appeals the sentence imposed and restitution order entered following his guilty plea to leaving the scene of an accident involving death, § 42-4-1601(1), C.R.S. 2004; leaving the scene of an accident involving serious bodily injury, § 42-4-1601(1); tampering with physical evidence, § 18-8-610(1)(a), C.R.S. 2004; and two counts of careless driving, § 42-4-1402(1), C.R.S. 2004. We affirm.
The charges arose from an accident in which the car defendant was driving struck two Air Force Academy cadets, killing one and injuring the other.
The plea agreement provided for a sentencing cap of twelve years in the Department of Corrections. The trial court sentenced defendant to consecutive terms of six years imprisonment for leaving the scene of an accident resulting in death and three years imprisonment for leaving the scene of an accident resulting in serious bodily injury, plus concurrent terms for the other offenses. The court also ordered defendant to pay $10,784.80 in restitution.
I.
Defendant contends that when imposing sentence, the trial court improperly relied on evidence regarding the background and character of the deceased victim, consisting primarily of his accomplishments at the Air Force Academy. We disagree.
Section 18-1-409(1), C.R.S. 2004, permits appellate review of "the propriety of the sentence," except when the sentence imposed is "within a range agreed upon by the parties pursuant to a plea agreement."
Several divisions of this court have treated the plea agreement proviso as a complete bar to appellate review where the sentence does not exceed the agreed cap. See People v. Scofield, 74 P.3d 385 (Colo. App. 2002); People v. Garcia, 55 P.3d 243 (Colo. App. 2002)(defendant's claim that court emphasized punishment and refused to consider community corrections barred because his sentence did not exceed the agreed cap); People v. Prophet, 42 P.3d 61 (Colo. App. 2001)(defendant's claim that trial court abused its discretion by sentencing him to the maximum term under his plea agreement barred).
However, in People v. Misenhelter, ___ P.3d ___ (Colo. App. No. 02CA2090, Dec. 30, 2004), the division held that § 18-1-409(1) does not bar appeals contesting "the propriety of the sentencing proceeding." The Misenhelter division quoted extensively from People v. Malacara, 199 Colo. 243, 247 n.4, 606 P.2d 1300, 1303 (1980)), including the statement that a limitation on appellate review of sentencing proceedings which implicated due process "would likely be unconstitutional." Misenhelter, supra, ___ P.3d at ___. The division also referred to a statement in the legislative history of the plea agreement proviso that "the proviso's limitation did not go beyond precluding an appeal to review the propriety of the sentence." Misenhelter, supra, ___ P.3d at ___.
The division then vacated the defendant's aggravated range sentence, which had not exceeded the cap in his plea agreement, as a violation of his Sixth Amendment rights. The division concluded that, under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the sentence "could not have been imposed by the court without a jury determination of the existence of aggravating circumstances." Misenhelter, supra, ___ P.3d at ___.
Here, in contrast, defendant was sentenced below the sentencing cap in his plea agreement and within the presumptive range for each conviction. See § 18-1.3-401(1)(a)(V)(A), C.R.S. 2004. Although the proviso cannot preclude review of a constitutional flaw in a sentencing proceeding, People v. Mala
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