"The plain language of [section] 18–1–409(1) requires an agreement by the parties to a sentencing range." People v. O'Dell, 53 P.3d 655, 657 (Colo. App. 2001) ; see People v. Scofield, 74 P.3d 385, 386 (Colo. App. 2002).¶ 30 Here, defendant seeks to review the propriety of a sentence imposed within the limits for which he bargained.
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 seePeople 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.
Although the postconviction court found that defendant's dissatisfaction with her sentence should have alerted counsel that she wished to appeal the sentence, it correctly held that such an appeal was barred by section 18–1–409(1), C.R.S.2015. SeePeople v. Scofield, 74 P.3d 385, 387 (Colo.App.2002). Moreover, plea counsel addressed defendant's dissatisfaction with her sentence by filing a motion to reconsider under Crim. P. 35(b).
¶ 16Section 18–1–409(1), C.R.S.2012, provides that every defendant has the right to have his sentence reviewed by an appellate court, “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.” SeePeople v. Scofield, 74 P.3d 385, 386-87 (Colo.App.2002); People v. Garcia, 55 P.3d 243, 244 (Colo.App.2002). ¶ 17 Here, the parties stipulated to a sentencing range of eight to twenty-four years in the plea agreement.
The argument is a challenge to the propriety of the sentence, which we cannot review. See Lassek, 122 P.3d at 1033; see also People v. Scofield, 74 P.3d 385, 386-87 (Colo.App. 2002) (dismissing appeal pursuant to section 18-1-409(1)); People v. Prophet, 42 P.3d 61, 62 (Colo.App. 2001) (same). The appeal is dismissed.
The statute precludes defendants from challenging the intrinsic fairness of sentences within the range agreed to in a plea agreement. People v. Scofield, 74 P.3d 385, 386 (Colo.App. 2002); People v. Garcia, 55 P.3d 243, 244 (Colo.App. 2002). But an Eighth Amendment challenge is of a different magnitude than a statutory challenge.
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, 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."