People v. Rojas.
2025 COA 25. No. 23CA1350. Appeals—Resentencing on Remand—Fifth Amendment—Double Jeopardy—Fourteenth Amendment—Due Process.
February 27, 2025
A jury convicted Rojas of attempted first degree murder and first degree assault. Rojas and the People agreed that the district court could impose concurrent sentences, but the court found that because the convictions were for crimes of violence, the sentences were required by statute to run consecutively. The court sentenced Rojas to consecutive sentences of 18 years for attempted murder and 14 years for assault, resulting in a total sentence of 32 years in the custody of the Department of Corrections. A court of appeals division affirmed Rojas’s convictions but concluded that because the convictions were supported by identical evidence, their sentences were required to run concurrently. Accordingly, the division vacated the sentences and remanded the case with directions to impose concurrent sentences. On remand, a different district court judge held a resentencing hearing and imposed concurrent 32-year sentences for both the attempted murder and assault convictions.
On appeal, Rojas argued that the district court reversibly erred by disobeying the mandate instructions, because the mandate prohibited the district court from doing anything other than making his prior sentences concurrent. Relying on People v. Hernandez-Escajeda, 2024 COA 111, which considered and rejected the same argument Rojas made, the court concluded that the mandate that directed the district court to “impose concurrent sentences” did not limit the court’s authority to resentence the defendant. Accordingly, the district court did not err by imposing new concurrent sentences on the two convictions.
Rojas also argued that his original sentences were “legally valid,” so double jeopardy prohibited the district court from increasing them. Double jeopardy does not bar an increased sentence if the defendant did not have a legitimate expectation of finality in the original sentence, and a defendant has no such legitimate expectation where appellate review of the sentence at issue is clearly allowed. Here, the court determined that Rojas’s original sentences could not stand because they were illegal. Rojas thus had no expectation of finality in the original sentences, and resentencing did not violate his rights against double jeopardy.
Rojas further contended that the district court violated his due process rights by imposing new sentences on remand because his new sentences delayed his parole eligibility date by four and a half years. Due process prohibits vindictiveness against a defendant for having successfully attacked his first conviction. A rebuttable presumption of vindictiveness arises if (1) the new sentence is more severe than the original and (2) a reasonable likelihood exists that actual vindictiveness played a part in the new sentence. But the presumption does not apply where different sentencing judges assessed the defendant’s sentences because the subsequent judge has no personal stake in the prior conviction. The court first concluded that Rojas’s new sentences are more severe than his original sentences. But Rojas’s new sentences were imposed by a different judge than the judge who imposed his original sentences, and the record does not suggest a reasonable likelihood of actual vindictiveness. Therefore, the presumption of vindictiveness does not apply, and there was no due process violation.
Lastly, Rojas asserted that the district court erred by incorrectly relying on a presentence investigation report (PSR) that incorrectly stated that Rojas had previously pleaded guilty to second degree assault against an at-risk person (a class 3 felony) when he was actually convicted of second degree assault—drugging the victim (a class 4 felony). Reviewing for plain error, the court assumed, without deciding, that the district court erred by considering the incorrect classification of the prior felony. The court concluded that the error was not obvious, because Rojas’s attorney had the PSR before the original sentencing hearing, and Rojas had the opportunity at both sentencing hearings to object to the PSR information but failed to do so. The error was also not substantial, because during resentencing, the court mentioned the incorrect classification for Rojas’s prior felony only once in passing, and the classification of the prior offense as a class 3 felony as opposed to a class 4 felony did not affect the sentencing range. Therefore, the district court did not plainly err by relying on the PSR.
The new sentences were affirmed.