Opinion
22CA0717
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Orlando F. Knight, Defendant-Appellant.
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Arapahoe County District Court No. 20CR1986 Honorable Ben L. Leutwyler III, Judge
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
OPINION
HAWTHORNE JUDGE. [*]
¶ 1 Defendant, Orlando F. Knight, appeals his ten-year prison sentence. We affirm.
I. Background
¶ 2 Knight was accused of stealing a vehicle, operating it while intoxicated, and driving the car toward A.S., who was on a motorcycle. Pursuant to a plea agreement, he pleaded guilty to misdemeanor driving under the influence - two or more prior offenses, and felony second degree assault - recklessly causing serious bodily injury with a deadly weapon against A.S. The parties agreed that the "[s]entence [was] open to the court," meaning that the court "may sentence [defendant] to any lawful sentence for the class of crime to which [he had] pleaded guilty, including the Department of Corrections (DOC)."
¶ 3 The presentence investigation report (PSIR) noted Knight's recalling the underlying incident, in which he at some point "ran into the two people who said they were scared to death of [him]." The PSIR also detailed his mental health issues.
¶ 4 The probation officer reported that Knight was deemed to be a maximum risk to reoffend and that he required a maximum level of supervision. Knight's recidivism risk level was based on, among other things, his lengthy criminal history and prior noncompliance with supervised probation.
¶ 5 The probation officer stated that Knight "continued to put the community at risk by continuing his substance use, driving while impaired, and continuing to commit new offenses" and that "[l]eaving [Knight] in the community could possibly continue to put society at risk and it could potentially result in new victims." But the officer recommended Knight be sentenced to community corrections, where he could address his substance abuse and mental health issues.
¶ 6 A public defender's office social worker also detailed Knight's mental health history in a sentencing memorandum. The memorandum reported that, "over the years," Knight had received multiple mental health diagnoses and prescriptions for numerous "psychotropic medications." It also noted that, when medicated, his mental health status would stabilize.
¶ 7 The social worker recognized the severity of Knight's charges and "the very real concerns that th[e] court ha[d] regarding public safety and the need for accountability." But she recommended that Knight be sentenced to community corrections to allow him to address his substance abuse and mental health issues.
¶ 8 At sentencing, the prosecutor asked the court to impose a prison sentence because Knight was designated as a maximum risk to reoffend and community corrections could not accommodate the care he needed. He argued that "Knight either lack[ed] the interest or the willingness to address how much mental health affects him and those around him" and that he had not earned the necessary trust to be successful at a community corrections facility. The prosecutor also noted that Knight's criminal history showed that he had been placed on probation multiple times but had failed to successfully complete the sentence.
¶ 9 Defense counsel argued that, despite Knight being designated as a maximum risk to reoffend, the PSIR recommended that he be placed in community corrections where his mental health issues could be addressed.
¶ 10 And as to the offenses' seriousness, defense counsel presented photographs of the damage caused to A.S.'s motorcycle and asserted that "it look[ed] more to [him] as if the bike had fallen over, rather than was the victim of . . . an extremely severe wreck or mutilation of the metal." Counsel did not suggest that Knight did not commit a serious offense but argued that the court should take into account that the motorcycle was not severely damaged.
¶ 11 Defense counsel said that he personally rode motorcycles and acknowledged "how tremendously terrifying it is to be on the road as a motorcyclist . . . [a]nd how there isn't a lot to keep you from getting into a very significant accident." And he recognized that A.S. must have experienced "a tremendous fear."
¶ 12 Defense counsel also noted Knight's acknowledgment that, because of his actions, "[s]everal people were very scared and felt threatened, felt vulnerable" and that he "caused them trauma."
¶ 13 The court said it had read the information detailing Knight's mental health issues and noted that his history reflected a "troubling," "life-long issue." And it questioned why, according to the presentence reports, he was not taking medications for his condition. Defense counsel responded that Knight was "looking for the correct treatment . . . [a]nd fe[lt] that he ha[d]n't had the appropriate treatment and . . . medications." He said that Knight "[wa]s hoping for a more sincere level of treatment that he may be able to receive through Community Corrections and a dedicated dual diagnosis program."
¶ 14 In rebuttal, the prosecutor disputed defense counsel's reliance on the damage to the motorcycle to minimize the risk to A.S.
¶ 15 In reaching its sentencing decision, the trial court said it had reread portions of the PSIR, the offense-specific evaluation, and the social worker's sentencing memorandum. And it also considered the parties' arguments.
¶ 16 The court commented that it rode motorcycles as well and that other drivers' actions could make the experience "quite scary." It noted that "[defense counsel] maybe said terrifying and it's not short of that." It also said that it had seen motorcycle deaths and the damage to the motorcycle in those cases was "almost always minor."
¶ 17 The court said it "really struggled" with the challenge that mental health issues pose for the criminal justice system. And it acknowledged that resources were severely underfunded and unavailable. But it noted that Knight had been in jail for over a year and a half pending his criminal case's resolution and that he did not take advantage of the resources there. The court commented that, while mental health can explain a person's conduct, it does not excuse it.
¶ 18 The court said that it was trying to figure out the right balance. In doing so, it found that, "ultimately, when [it] consider[ed] [Knight's] . . . prior convictions and then sentences, sometimes to [p]robation where probation [wa]s revoked, [it] c[ould not] justify . . . a [c]ommunity [c]orrections sentence." Thus, the court sentenced Knight to ten years in prison on the felony count and to a concurrent 365 days in jail on the misdemeanor count, with credit for time served.
II. Due Process Violation
¶ 19 Knight first contends that the trial court violated his constitutional due process rights when it relied on information outside of the record - its personal motorcycle-riding experience - without affording him the requisite notice and opportunity to be heard. See People v. Pourat, 100 P.3d 503, 505 (Colo.App. 2004) (although a defendant's due process rights are limited at a sentencing hearing, a defendant should be provided with notice of information a court is to consider and an opportunity to contest the information).
¶ 20 Even if the court's consideration of such evidence implicated Knight's due process rights, we conclude that any error does not require reversal.
¶ 21 An unpreserved due process claim is reviewed for plain error. See Hagos v. People, 2012 CO 63, ¶ 14; People v. Miller, 113 P.3d 743, 749 (Colo. 2005); People v. Hernandez, 2019 COA 111, ¶ 11. Plain error is obvious and substantial. Hagos, ¶ 14. "[W]e will not vacate a sentence for plain error unless the error so undermined the fundamental fairness of the sentencing proceeding as to cast serious doubt on the reliability of the sentence." People v. Banark, 155 P.3d 609, 611 (Colo.App. 2007); see also Hagos, ¶ 14.
¶ 22 The discussion about the dangers of riding a motorcycle was initiated by defense counsel. Counsel acknowledged that riding a motorcycle was a "tremendously terrifying" experience and that A.S. must have had "a tremendous fear." He also mentioned Knight's recognition that A.S. was "very scared and felt threatened." In referencing its motorcycle-riding experiences, the court was responding to, and in fact agreeing with, these comments. So we do not perceive how Knight's lack of notice of this information impermissibly affected the proceeding.
¶ 23 Also, we note that the record does not indicate that the court imposed a ten-year prison sentence based on its motorcycle-riding experiences or on the fear presumably felt by A.S. during the underlying incident. As noted above, the court imposed the sentence based on Knight's criminal history and prior failures to comply with community-based sentences.
¶ 24 Thus, we are not convinced that Knight's alleged lack of notice of, and opportunity to be heard on, the court's motorcycle-riding experiences so undermined the sentencing hearing's fundamental fairness as to cast serious doubt on the sentence's reliability. See Hagos, ¶ 23 ("Plain error review allows the opportunity to reverse convictions in cases presenting particularly egregious errors, but reversals must be rare.").
III. Sentencing Decision
¶ 25 Knight also contends that the trial court abused its discretion by improperly penalizing him for his mental health condition and not considering it to be a mitigating factor.
¶ 26 Initially, we address the parties' disagreement as to whether section 18-1-409(1), C.R.S. 2023, bars us from considering this claim.
¶ 27 Section 18-1-409(1) permits a defendant to challenge a sentence's propriety and the manner in which it was imposed. But "if the sentence is within a range agreed upon by the parties pursuant to a plea agreement, the defendant shall not have the right of appellate review of the propriety of the sentence." § 18-1-409(1). This exception to the right to appellate review has been referred to as the "plea proviso." Sullivan v. People, 2020 CO 58, ¶ 1. While the plea proviso, if applicable, bars review of the sentence's propriety, it does not bar review of the manner in which the sentence was imposed. Id. at ¶ 26.
¶ 28 Because the plea agreement here left sentencing "open" and did not contain "a range agreed upon by the parties," the plea proviso does not bar our review of the propriety of Knight's sentence. See People v. O'Dell, 53 P.3d 655, 657 (Colo.App. 2001) (The plea proviso did not apply because "[t]he plain language of [section] 18-1-409(1) requires an agreement by the parties to a sentencing range," and, "although [the] defendant was advised of the penalties applicable to the offenses to which he was pleading guilty, there is no indication in the record that his plea agreement included any type of agreed sentencing range or cap."); but see People v. Scofield, 74 P.3d 385, 386-87 (Colo.App. 2002) (the plea proviso did apply where the parties "expressly agreed upon" a sentencing range, even though that range was the same as the statutory aggravated sentencing range).
¶ 29 We are not otherwise persuaded by the People's bald assertion that Knight's plea agreement that he could be sentenced to prison constituted an agreed-upon range such that the plea proviso applies to bar our review of his sentence. See People v. Houser, 2020 COA 128, ¶ 24 ("We will not consider a bald legal proposition presented without argument or development.").
¶ 30 As to the merits of Knight's argument, we conclude that the trial court did not clearly abuse its broad discretion in considering Knight's mental health issues when imposing a prison sentence.
¶ 31 "On appellate review of a sentence, the decision of the sentencing court must be accorded deference because of that court's familiarity with the circumstances of the case." People v. Howell, 64 P.3d 894, 898 (Colo.App. 2002). It is this familiarity that places the trial court "in the best position to fix a sentence that reflects a balance of the relevant considerations." People v. Vigil, 718 P.2d 496, 507 (Colo. 1986).
¶ 32 A trial court has broad discretion when imposing a sentence. Allman v. People, 2019 CO 78, ¶ 22. We will not overturn an imposed sentence absent a clear abuse of that discretion. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990). "A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair." People v. Herrera, 2014 COA 20, ¶ 16.
¶ 33 "In Colorado, our legislature has established that the purposes of sentencing include: punishment, deterrence, the prevention of crime and the promotion of respect for the law, reduction of the potential that the offender will engage in criminal conduct after completion of his sentence, and rehabilitation." Sharrow v. People, 2019 CO 25, ¶ 42 n.7 (citing § 18-1-102.5(1), C.R.S. 2023). In exercising its sentencing discretion, the trial court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating circumstances, the development of respect for the law, the deterrence of crime, and the protection of the public. People v. Maestas, 224 P.3d 405, 409 (Colo.App. 2009); People v. Thoro Prods. Co., 45 P.3d 737, 748 (Colo.App. 2001), aff'd, 70 P.3d 1188 (Colo. 2003).
¶ 34 "[T]he discretion implicit in the sentencing decision is not an unrestricted discretion devoid of reason or principle" but, instead, "should reflect a rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process." People v. Watkins, 200 Colo. 163, 166, 613 P.2d 633, 636 (1980).
¶ 35 "A trial court may properly find certain factors to be more compelling than others" and may conclude that "the circumstances of the crime alone . . . justify the imposition of a particularly harsh sentence." People v. Torrez, 2013 COA 37, ¶ 74. However, "[t]he court may not unduly emphasize one factor to the exclusion of the others." Id. at ¶ 73.
¶ 36 The record shows that the trial court did not rely on Knight's mental health in deciding that a community corrections sentence was not justified. Rather, it based its decision on his criminal history and his failure to successfully complete prior probation sentences, which were also cited as bases for his designation as a maximum risk to reoffend.
¶ 37 We agree with Knight that the record does not disclose the mental health resources the court believed were available to him while in jail. Even so, we are convinced that the court's statements reflect in their entirety that it properly considered Knight's troubling, life-long mental health issues and the extent of his desire to address those concerns. Indeed, the social worker's sentencing memorandum detailed Knight's mental health diagnoses, the medications he had been prescribed, and the success he had in stabilizing his mental health when taking the medications. But defense counsel's response to the court's inquiry into Knight's medication use indicated that Knight had declined to take medications while in jail and, instead, opted to wait for some unspecified "appropriate treatment and . . . medications."
¶ 38 So we are not persuaded that the trial court's sentencing decision was manifestly arbitrary, unreasonable, or unfair. See Fuller, 791 P.2d at 708 ("If the sentence is within the range required by law, is based on appropriate considerations as reflected in the record, and is factually supported by the circumstances of the case, an appellate court must uphold the sentence."); Vigil, 718 P.2d at 507 ("[W]hile the sentencing judge's discretion is not without limits, only in truly exceptional situations will this court substitute its judgment as to an appropriate sentence for the judgment of the trial court.").
IV. Disposition
¶ 39 The sentence is affirmed.
JUDGE WELLING and JUDGE SCHOCK concur.
[*]Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023