People v. Hernandez-Escajeda.
2024 COA 111. No. 23CA0521. Appeals—Vacatur of Conviction That Results in Reduced Aggregate Sentence—Resentencing on Remand—District Court Discretion.
October 10, 2024
The prosecution charged Hernandez-Escajeda with 24 counts involving three victims. The initial charges included burglary, kidnapping, and assault, and the prosecution later added two sexual assault charges. In exchange for dismissal of all counts, Hernandez-Escajeda pleaded guilty to first degree burglary, first degree assault, and a crime of violence sentence enhancer that applied to both the burglary and assault counts. As relevant here, he subsequently filed a pro se Crim. P. 35(c) motion for postconviction relief. The district court appointed counsel, who filed two supplemental postconviction motions alleging that (1) the convictions and consecutive sentences for first degree burglary and first degree assault violated Hernandez-Escajeda’s double jeopardy rights, and (2) the convictions and sentences on those two counts were illegal because they were supported by identical facts. The district court summarily denied the postconviction motion. But the court of appeals concluded that his convictions for first degree burglary and first degree assault must merge. The court affirmed in part, reversed in part, and remanded with directions “to vacate Hernandez-Escajeda’s conviction for first degree assault and correct the mittimus accordingly.” Before the district court’s hearing to consider the division’s opinion and mandate, the prosecution requested resentencing in accordance with People v. Johnson, 2015 CO 70. Hernandez-Escajeda objected, asserting that the court could only perform the actions specifically mentioned in the remand language and could not resentence him on the remaining substantive first degree burglary count. The court agreed and issued an amended mittimus merging the first degree assault conviction into the first degree burglary conviction. Therefore, the mittimus only contains the first degree burglary conviction, the crime of violence sentence enhancer, and the 22-year sentence on the first degree burglary conviction.
The prosecution appealed the district court’s order concluding that it lacked authority to resentence Hernandez-Escajeda because of the remand instructions. Given the context of a successful postconviction motion to vacate a conviction, the court concluded that a district court generally has inherent authority, as part of the remand proceedings, to resentence on remaining convictions after an appellate mandate vacates a conviction. Here, as part of the remand proceedings, the prosecution requested resentencing on the remaining substantive conviction, and the district court addressed this request before amending the mittimus; thus the prosecution’s request was part of the postconviction proceedings, the related appeal, and the remand. Further, the division’s direction in Hernandez-Escajeda I to perform a particular action did not prohibit any other action that the district court had the authority to perform on remand. Thus, while the district court on remand is not required to resentence Hernandez-Escajeda, it has discretion to resentence him on his first degree burglary conviction and associated crime of violence conviction and to decide whether to hold a resentencing hearing.
The order was reversed and the case was remanded for further proceedings.