The last time we had occasion to discuss this question, President Jimmy Carter was still in the Oval Office and our nation remained awestruck after witnessing the "Miracle on Ice" in the Winter Olympics in Lake Placid, New York. SeePeople v. Malacara , 199 Colo. 243, 606 P.2d 1300 (1980). Of course, a lot of water has flowed under the bridge since. In fact, the plea proviso had not even seen the light of day when we penned Malacara . Today, after a four-decade hiatus, we revisit our analysis of section 18-1-409(1) in Malacara .

However, in People v. Misenhelter, 121 P.3d 230, 2004 WL 3246112 (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, 121 P.3d at 233.

On appeal of the denial of his Crim. P. 35(c) motion, the court of appeals vacated the sentence, concluding that the district court abused its discretion because there was an insufficient basis upon which to sentence the defendant to a term that was twice the statutory maximum. We view this case as an effort to obtain a second appellate review of the propriety of the defendant's sentence which is prohibited by People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980), and therefore reverse. In Malacara, we delineated two distinct types of issues which can be raised on an appellate review of a sentence.

It was only in 1999 that the proviso was added to say: "except that, 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." Colo. Sess. Laws 1999, ch. 215, § 18-1-409(1) at 799 (emphasis supplied). In 1980, some years before the addition of this proviso, the supreme court in People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980), had construed the existing statute as contemplating two separate and distinct types of reviews of sentences: It must be recognized that when one seeks review of his sentence, there are two fundamental and distinct issues which can be raised.

[3] Second, we have recently held that "a defendant has no right to appeal a denial of his Crim. P. 35(a) motion where the issue before the appellate court is the propriety of the sentence." People v. Malacara, 199 Colo. 243, ___, 606 P.2d 1300, 1303 (1980). The trial court in the instant case reduced the defendant's sentence after hearing his Crim. P. 35(a) motion.

Juhl v. People, 172 P.3d 896, 901 (Colo. 2007) (internal quotations omitted) (quoting People v. Malacara, 199 Colo. 243, 247, 606 P.2d 1300, 1302-03 (1980)). Sentencing courts retain broad discretion, but this discretion "`is not carte blanche.'"

Section 18–1–409(1) states that defendants who receive a felony conviction have the right to “one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based....” See alsoPeople v. Malacara, 199 Colo. 243, 606 P.2d 1300, 1302–03 (1980) (summarizing the “propriety” of a sentence as the “intrinsic fairness or appropriateness of the sentence”). When a defendant appeals a sentence under the statute, the appellate reviewing court may “affirm the sentence under review, substitute for the sentence under review any penalty that was open to the sentencing court other than granting probation or other conditional release, or remand the case for any further proceedings ... and for resentencing on the basis of such further proceedings.”

" We have previously interpreted a review of the propriety of the sentence to involve a review of the "intrinsic fairness or appropriateness of the sentence itself taking into account the nature of the offense, the character of the offender, and the public interest." People v. Malacara, 199 Colo. 243, 247, 606 P.2d 1300, 1302-03 (1980) (quoting § 18-1-409(1)). The question of whether the trial court was statutorily prohibited from imposing consecutive rather than concurrent sentences is not a matter of the intrinsic fairness or appropriateness of the sentence, but rather of whether the trial court exceeded its statutory authority in determining the sentence.

In People v. Malacara, 199 Colo. 243, 247-48, 606 P.2d 1300, 1302-03 (1980), we held that a defendant appealing a denial of a Crim. P. 35(b) motion for reduction of sentence has a right to appellate review of the propriety of the sentencing proceeding, but has no right to review of the propriety of the sentence. Here, Issues 15, 16, and 18 challenge the propriety of the proceeding in which the district court denied Rodriguez' Crim. P. 35(b) motion and do not challenge the propriety of the sentence.

On their face, these claims are questions of law implicating the propriety of the proceeding itself and we proceed to resolve them on their merits. Cf. Mikkleson v. People, 199 Colo. 319, 321, 618 P.2d 1101, 1102 (1980) (while a defendant cannot obtain appellate review of the trial court's exercise of discretion in denying resentencing under Crim. P. 35(b), "where the trial court has refused to consider any information in mitigation and did not make findings in support of its decision, . . . the error is sufficient to invoke appellate jurisdiction" because such defects implicate the propriety of the proceeding itself under People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980)). II.