Colo. R. Crim. P. 32
If the court decides that the final disposition should not include the charge or sentence concessions contemplated by a plea agreement, as provided in Rule 11(f) of these Rules, the court shall so advise the defendant and the district attorney and then call upon the defendant to either affirm or withdraw the plea of guilty or nolo contendere.
The conditions of probation shall be as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant to do so. The court shall provide as an explicit condition of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation.
Colo. R. Crim. P. 32
Annotation I. General Consideration. Law reviews. For article, "Insanity and the Law", see 39 Dicta 325 (1962). For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a recent case relating to increased sentences after retrial, see 15 Colo. Law. 1604 (1986). This rule is not unconstitutional because notice of a right to review is given to criminal defendants except in cases where judgment of conviction has been entered following a plea of guilty or nolo contendere. The reasonableness of the classification of defendants who have entered guilty pleas has been upheld in cases dealing with the federal counterpart. People v. Smith, 190 Colo. 449, 548 P.2d 603 (1976). A violation of this rule does not entitle defendant to a late appeal in the absence of prejudice. In order for the defendant to bring a claim alleging he or she was deprived of the right to appeal because the court failed to comply with this rule, the defendant must bring a timely postconviction action under Crim. P. 35(c) and request a remedy of a new appeal. People v. Boespflug, 107 P.3d 1118 (Colo. App. 2004). Applied in McClendon v. People, 175 Colo. 451, 488 P.2d 556 (1971); People v. Banks, 190 Colo. 295, 545 P.2d 1356 (1976); People v. District Court, 191 Colo. 558, 554 P.2d 1105 (1976); People v. Houpe, 41 Colo. App. 253, 586 P.2d 241 (1978); People v. Palmer, 42 Colo. App. 460, 595 P.2d 1060 (1979); People v. Baca, 44 Colo. App. 167, 610 P.2d 1083 (1980); People v. Horton, 628 P.2d 117 (Colo. App. 1980); People v. Quintana, 634 P.2d 413 (Colo. 1981); People v. Lawson, 634 P.2d 1019 (Colo. App. 1981); Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984); People v. Anderson, 703 P.2d 650 (Colo. App. 1985). II. Presentence or Probation Investigation. Even where evidence has been illegally seized, its use in a presentence hearing following a guilty plea is not error. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). III. Sentence. Equal protection requirements. In the context of sentencing for criminal offenses, equal protection requires only that those who have committed the same offense shall be subject to the same criminal sanctions in effect at the time the offense was committed. People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974). Imposition of sentence requires judicial discretion. The imposition of a criminal sentence in each individual case requires the exercise of judicial judgment, and it includes consideration of mitigating and aggravating circumstances, the power to impose an indeterminate sentence, and the right to suspend sentence, or the discretion to grant probation in appropriate cases. People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972). Which does not deny equal protection. The exercise of the judge's discretionary power in sentencing does not deny an accused equal protection of the law. People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972). Substance of American Bar Association standards deemed "authorized by law". The substance of the principles articulated in the American Bar Association Standards Relating to Sentencing Alternatives and Procedures § 3.5, insofar as they are consistent with the stated general purposes of the Colorado code of criminal procedure, may be deemed to be "authorized by law" within the meaning of section (b). People v. Lewis, 193 Colo. 203, 564 P.2d 111 (1977). Nothing requires court to assign reasons for imposing a sentence. People v. Pauldino, 187 Colo. 61, 528 P.2d 384 (1974). A sentencing court is required to state on the record the basic reasons for the imposition of sentence. The failure to do so creates a burdensome obstacle to effective and meaningful appellate review. People v. Luu, 983 P.2d 15 (Colo. App. 1998). A judgment of conviction is not final until sentence is imposed. Absent a specific finding that the victim did not suffer a pecuniary loss, restitution is a mandatory part of a sentence. Thus, absent such a finding, sentencing is not final until restitution is ordered. People v. Rosales, 134 P.3d 429 (Colo. App. 2005). Discretion to impose concurrent or consecutive sentence. A sentencing court has discretion to impose a sentence to be served concurrently with or consecutively to a sentence already imposed upon the defendant. People v. Garcia, 658 P.2d 1383 (Colo. App. 1983); People v. Cullen, 695 P.2d 750 (Colo. App. 1984). Delaying final sentencing on non-capital convictions until after sentencing on class 1 felony is appropriate where a court must sentence both for a class 1 felony and for other felonies. People v. Davis, 794 P.2d 159 (Colo. 1990). Six-year delay between defendant's conviction and legal sentencing did not divest court of jurisdiction or cause unreasonable delay, where the sentence was promptly imposed following defendant's conviction, but subsequent appeal and the defendant's election to invoke the discretionary procedure under the Sex Offender's Act of 1968 delayed the proceedings. People v. Wortham, 928 P.2d 771 (Colo. App. 1996). When court delays sentencing so that another case against defendant may be resolved that would allow the court to increase the sentence in case before the court, the court violates the requirement to impose sentence without "unreasonable delay". The delay in this case allowed the court to double the defendant's sentence which was substantial error that undermined the fundamental fairness of defendant's sentencing. People v. Sandoval-Candelaria, __ P.3d __ (Colo. App. 2011). Single sentence for more than one conviction does not constitute reversible error, although the preferable practice is to have a separate sentence for each conviction. People v. Pleasant, 182 Colo. 144, 511 P.2d 488 (1973). Reliance by court on probation report at time sentence imposed does not abuse the defendant's rights. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). Judge may consider truthfulness of voluntary statements. It is not a denial of due process for a judge, in connection with sentencing procedure, to consider the truthfulness of voluntary statements made by the defendant at a presentence hearing. People v. Quarles, 182 Colo. 321, 512 P.2d 1240 (1973). Deferred prosecution is relevant consideration in determining the sentence. People v. Lichtenwalter, 184 Colo. 340, 520 P.2d 583 (1974). There is no difference between plea of nolo contendere and plea of guilty for sentencing purposes. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). There is no requirement that codefendants be given equal sentences. People v. Martin, 670 P.2d 22 (Colo. App. 1983). Sentencing court should tailor sentence to defendant, keeping in mind past record, potential for rehabilitation, and protection of the public as well. People v. Alvarez, 187 Colo. 290, 530 P.2d 506 (1975). Sentencing court should attempt to tailor the sentence to the defendant. To achieve this goal, the court should be aware of defendant's entire record including his past encounters with the criminal justice system. People v. Lichtenwalter, 184 Colo. 340, 520 P.2d 583 (1974). Defendant must be notified when sentence will be pronounced. He has a right to be present in the court with legal counsel at that time, and he has a right of allocution before sentence is handed down which cannot be withheld from him. The failure of the court to properly insure these rights of a defendant renders invalid a sentence pronounced under those circumstances. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972). No right to evidentiary hearing. During a discretionary sentencing proceeding, rule does not require an evidentiary hearing on the validity of any prior conviction contained in a presentence report. People v. Padilla, 907 P.2d 601 (Colo. 1995). Prior to sentencing, the court must grant the defendant an opportunity to make a statement on his or her own behalf. The proper remedy for failing to allow the defendant to make a statement is resentencing. People v. Marquantte, 923 P.2d 180 (Colo. App. 1995). Effect of denial of allocution limited. Denial of the right of allocution under section (b) has no effect on the validity of the jury's determination of guilt. People v. Doyle, 193 Colo. 332, 565 P.2d 944 (1977). Relief from denial is resentencing. The defendant's relief from a denial of the right of allocution under section (b) is resentencing after being afforded his right to allocution. People v. Doyle, 193 Colo. 332, 565 P.2d 944 (1977). Where the presentence report is issued to counsel immediately prior to sentencing, and the trial court's refusal to continue the sentencing hearing to another day unduly abridges the defendant's rights to present evidence in rebuttal to the information and recommendations contained in the report, his sentence must be vacated and the case remanded for resentencing after a full sentencing hearing. People v. Wright, 672 P.2d 518 (Colo. 1983). However, the right of allocution is a statutory right, not a constitutional one, and reversal is not required if the failure to provide the defendant an opportunity to make a statement prior to sentencing is harmless. If a trial court imposes the minimum sentence permitted and does not have discretion to impose a lesser sentence, the lack of statement in allocution does not affect the sentence and is harmless. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003). Sentencing must occur without unreasonable delay. Although the general assembly has prescribed no specific time within which sentence must be imposed, section (b) requires that sentencing occur without unreasonable delay. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981). Although sentencing was delayed for eight years, delay was excusable because the majority of it was attributable to defendant's own actions. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). Although resentencing was delayed for 29 months, delay was excusable because of the timely imposition of defendant's original sentence, the substantial reduction of the original sentence upon resentencing, the consequent lack of prejudice resulting from the sentence imposed on remand, and the fact that all of the period of delay would be credited against the present sentence. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Despite six-year delay, state had no duty to set defendant's probation revocation hearing until after termination of defendant's incarceration in another jurisdiction. People v. Smith, 183 P.3d 726 (Colo. App. 2008). One-year deferral of sentence imposition is unreasonable delay. Absent a legally justifiable reason, a one-year deferral of imposition of sentence constitutes an unreasonable delay in sentencing contrary to section (b). People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981). Sentence imposed within statutory limits will not be disturbed. Ordinarily if a sentence imposed is within limits fixed by statute, it will not be disturbed on review. People v. Lutz, 183 Colo. 312, 516 P.2d 1132 (1973). Choice of place of confinement is within the sound discretion of the court. People v. Weihs, 187 Colo. 124, 529 P.2d 317 (1974). Length of term of imprisonment is within the discretion of the court. People v. Weihs, 187 Colo. 124, 529 P.2d 317 (1974). Sentencing judge is empowered to set the minimum sentence. Guerin v. Fullerton, 154 Colo. 142, 389 P.2d 84 (1964). Parole board has no authority to refuse to carry out the plain meaning of a sentence legally imposed by the sentencing judge. Guerin v. Fullerton, 154 Colo. 142, 389 P.2d 84 (1964). There is no constitutional right to credit of presentence jail time against sentence imposed. People v. Coy, 181 Colo. 393, 509 P.2d 1239 (1973); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973). Presumption that court gave credit for presentence confinement. It will be conclusively presumed that the trial court gave credit for presentence time spent in confinement where the sentence imposed plus the prior time in confinement do not exceed the maximum possible sentence. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972). Or otherwise acted properly. Where sentencing judge states only that he is taking time spent in jail prior to sentencing into consideration and thereafter gives the maximum, it must be presumed that he acted properly; that is, that he took the time spent into consideration and determined, as he had the right to do, not to grant the credit. People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973). But "giving credit" without applying it to sentence improper. Where the trial court in sentencing gives credit to the defendant for his presentence jail time but does not apply it to the maximum sentence, the court is, in fact, extending the sentence beyond the statutory limits. People v. Regan, 176 Colo. 59, 489 P.2d 194 (1971). Credit should be reflected in record. Trial judges would be well advised to follow the practice of causing the actual time spent by the defendant in jail prior to the imposition of sentence to be reflected in the record at the time sentence is imposed. People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971). Cancellation of deferred sentence does not affect conviction. Where the trial court withdrew or cancelled the imposition of the deferred sentence, its order affected only the sentence, and did not touch the conviction. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980). Defendant's absence from the state was by virtue of his own conduct and was justifiable reason for delay in sentencing. Defendant was incarcerated in another state for a probation violation. People v. Gould, 844 P.2d 1273 (Colo. App. 1992). Two and one-half month delay in sentencing following defendant's return to state was not unreasonable. People v. Gould, 844 P.2d 1273 (Colo. App. 1992). IV. Judgment. Intent of section (c). The intent behind section (c) is to establish some minimum guarantee that knowledge of the appellate process will be conveyed to defendants. People v. Boivin, 632 P.2d 1038 (Colo. App. 1981). Burden to show that defendant was advised of appellate rights. Once there is sufficient reason to believe that the trial court has not advised a defendant of his appellate rights, including the special rights of an indigent defendant, the burden falls upon the state to demonstrate that he was so advised. People v. Boivin, 632 P.2d 1038 (Colo. App. 1981). No "finality" standard for double jeopardy purposes. Section (c) does not provide a standard of "finality" for purposes of the constitutional prohibition against being twice placed in jeopardy for the same offense. People v. District Court, 663 P.2d 616 (Colo. 1983). For purposes of retroactive application of a new rule of law, a judgment of conviction in Colorado cannot be considered final so long as a defendant may directly appeal the conviction or sentence. People v. Sharp, 143 P.3d 1047 (Colo. App. 2005). Oral order does not become final judgment until order signed and entered in the judgment record. People v. Ganatta, 638 P.2d 268 (Colo. 1981). When judgment final for purposes of appeal. The final judgment was entered, for purposes of appeal, when trial court reversed its previous order imposing costs on the defendant, and therefore state's appeal, taken more than 30 days after sentencing was proper. People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975). For purposes of § 16-5-402 and post-conviction review, a conviction occurs when the trial court enters judgment and sentence is imposed, if there is no appeal. The limitations of § 16-5-402 are applicable to a proportionality review of a sentence imposed pursuant to the habitual criminal statutes. People v. Talley, 934 P.2d 859 (Colo. App. 1996). Judgment in a criminal case is not final until after sentencing. Hellman v. Rhodes, 741 P.2d 1258 (Colo. 1987). An order of restitution becomes part of the sentence which, in accordance with section (c) of this rule, is part of the judgment of conviction. When a court orders a defendant, over his objection, to pay restitution to the victim or the victim's family as part of the judgment of conviction for a felony, the order of restitution is appealable pursuant to the statutory procedures applicable to the appellate review of a felony sentence. People v. Johnson, 780 P.2d 504 (Colo. 1989). Restitution component satisfied once ordered, even though specific amount not set until two years after sentence imposed. Once restitution ordered, although not set, judgment of conviction became final and appealable, even though district court retained jurisdiction to determine restitution amount. Sanoff v. People, 187 P.3d 576 (Colo. 2008). Post-final judgment orders void when court denied defendant's motion for new trial and imposed valid sentence. People v. Campbell, 738 P.2d 1179 (Colo. 1987). Constitutionality of imposing liability for costs. Statutes imposing liability for costs on a convicted defendant have been uniformly held to be constitutional. People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975). For effect of rule on habitual criminal act, see Swift v. People, 174 Colo. 259, 488 P.2d 80 (1971). V. Withdrawal of Plea of Guilty or Nolo Contendere. A. In General. There is no ambiguity in this rule. Glaser v. People, 155 Colo. 504, 395 P.2d 461 (1964). No right to withdraw guilty plea. One may not, as a matter of right, have his plea of guilty withdrawn or changed. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); McConnell v. People, 157 Colo. 235, 402 P.2d 75 (1965). Defendant does not have an absolute right to withdraw his guilty plea at any time before the court imposes sentence. People v. Riley, 187 Colo. 262, 529 P.2d 1312 (1975). Defendant not permitted to withdraw plea of nolo contendere. Defendant's assertion of innocence at the time his plea of nolo contendere was entered does not force the court to permit him to withdraw his plea of nolo contendere. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). Withdrawal of plea with court's discretion. An application for the withdrawal or change of such plea is addressed to the discretion of the trial court. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); Bradley v. People, 175 Colo. 146, 485 P.2d 875 (1971). And court's ruling on such an application will not be reversed, except where there is a clear abuse of discretion. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); Bradley v. People, 175 Colo. 146, 485 P.2d 875 (1971); People v. Miller, 685 P.2d 233 (Colo. App. 1984). Showing required to permit change of plea. To warrant the exercise of discretion favorable to a defendant concerning a change of plea, there must be some showing that justice will be subverted by a denial thereof, such as where a defendant may have been surprised or influenced into a plea of guilty when he had a defense, or where a plea of guilty was entered by mistake or under a misconception of the nature of the charge, or where such plea was entered through fear, fraud, or official misrepresentation, or where it was made involuntarily for some reason. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); Crumb v. People, 230 P.3d 726 (Colo. 2010). Defendant is entitled to withdraw plea of guilty where, at time plea was entered, neither court nor counsel was aware of defendant's parole status so defendant was improperly advised as to the minimum sentence, and where defendant promptly moved to withdraw guilty plea when parole status became known. People v. Chippewa, 751 P. 607 (Colo. 1988). Court should not consider sentence it intends to impose as a reason for denying motion to withdraw a guilty plea where plea was entered when neither court nor counsel was aware of defendant's parole status so that defendant was improperly advised as to minimum sentence. People v. Chippewa, 751 P.2d 607 (Colo. 1988). Defendant's motion to withdraw guilty plea must be granted where trial judge participated in plea negotiations. Because trial judge stepped out of his role as a neutral and impartial arbiter of justice by advising defendant and making other inappropriate remarks to influence defendant to agree to plea bargain, defendant has a fair and just reason to withdraw his plea. Crumb v. People, 230 P.3d 726 (Colo. 2010). Defendant was entitled to a hearing on motion to withdraw guilty plea where court understated minimum sentence that could be imposed and defendant's plea agreement was not in evidence. On remand, defendant must establish that his asserted belief that he would receive a sentence below the minimum sentence stated by the court was objectively reasonable. People v. Hodge, 205 P.3d 481 (Colo. App. 2008). Right to allocution not denied where extensive pretrial inquiry did not support defendant's last minute assertion of inability to speak in English at sentencing hearing. People v. Garcia, 752 P.2d 570 (Colo. 1988). When a defendant enters a plea agreement that includes a recommendation for a particular sentence, the fact that the sentence is rejected by the court removes the basis upon which the defendant entered his guilty plea and draws into question the voluntariness of the plea. Chae v. People, 780 P.2d 481 (Colo. 1989). Case must be remanded to allow defendant the opportunity to affirm or withdraw his guilty plea where the trial court's rejection of the sentence recommendation contained in the plea agreement calls into question the voluntariness of that plea and the defendant had no opportunity to affirm or withdraw that plea. People v. Walker, 46 P.3d 495 (Colo. App. 2002). When a defendant enters into a plea agreement that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence. Chae v. People, 780 P.2d 481 (Colo. 1989). Where there is a valid plea agreement but an illegal sentence imposed to enforce the valid and legal plea, the proper remedy is to modify the sentence to effect the intent of the plea agreement. People v. Antonio-Antimo, 29 P.3d 298 (Colo. 2000). It is not an abuse of the court's discretion to deny a motion pursuant to this rule even though the defendant is influenced by alcohol at the time of entry of a plea of guilty if the court finds that the defendant still has the mental capacity to understand the entry of a plea of guilty. People v. Lewis, 849 P.2d 855 (Colo. App. 1992). For a court to permit a defendant to withdraw his or her plea, there must be a fair and just reason. In this case, defendant's allegation of sentence misapprehension was contradicted by the record and the testimony of counsel, so there was no abuse of discretion in prohibiting defendant from withdrawing his plea. People v. Allen, __ P.3d __ (Colo. App. 2010). A claim of ineffective assistance of counsel that is conclusory or contradicted by the record is not a fair and just reason for withdrawing a guilty plea. People v. Lopez, 12 P.3d 869 (Colo. App. 2000). Fair and just reason for withdrawal of guilty plea is established where, immediately upon learning of the potential deportation consequences, the defendant filed a motion to withdraw his guilty plea before sentencing and where prosecution did not allege any prejudice arising from the withdrawal. People v. Luna, 852 P.2d 1326 (Colo. App. 1993). Defendant's motion to withdraw his guilty plea prior to sentencing without a hearing was duly denied, where defendant's expectation of a deferred sentence and judgment was merely a "wish and hope" that his counsel was unable to effectuate. People v. DiGuglielmo, 33 P.3d 1248 (Colo. App. 2001). Defendant's postconviction motion based on the voluntariness of his guilty plea as it related to the quality of his counsel was properly denied as successive under Crim. P. 35(c)(3)(VII), where lengthy evidentiary hearing was held on defendant's section 32(d) motion claiming that his plea was not knowing, voluntary, and intelligent due to ineffective assistance of counsel. People v. Vondra, 240 P.3d 493 (Colo. App. 2010). B. Sentence Concessions. Section (e) of this rule implements § 16-7-302(2) . People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). Rule not limited to court-approved concessions. This rule, by its terms, is not limited to those situations where the court has first concurred in, or approved of, the sentence concessions. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). A sentence recommendation is a sentence concession whether or not the court approves or concurs. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). It is true that the district attorney has no authority to determine the sentence. However, sentence concessions must be equated with sentence recommendations; to hold otherwise would render the reference to sentence concessions in section (e) meaningless. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). The district attorney's agreement to recommend probation was a sentence concession contemplated by the plea agreement. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). But not all sentence concessions by the prosecution are sentence recommendations. People v. Dawson, 89 P.3d 447 (Colo. App. 2003). "Sentence concessions" must refer only to the prosecution's making or not opposing favorable recommendations due to specific reference to Crim. P. 11(f). Prosecutor's agreement not to seek a sentence in the aggravated range does not constitute a sentence concession. People v. Dawson, 89 P.3d 447 (Colo. App. 2003). Court must comply with section (e). Merely informing the defendant, pursuant to Crim. P. 11(b)(5) that the court will not be bound by any recommendation or representation by anyone concerning sentencing or probation does not obviate the necessity of its complying with section (e). People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). Court is not bound by a recommendation; in its discretion it may refuse to grant the district attorney's sentence concession. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). When plea bargain rejected, plea is not voluntary. When the trial judge rejects the plea bargain he removes it as the basis for the sentence. When this occurs, the plea can hardly be characterized as voluntary. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978). And defendant may withdraw plea. A defendant is permitted to withdraw his guilty plea where the trial court chooses not to follow the prosecutor's sentence recommendation, regardless of whether the prosecution has promised that the court will follow the recommendation. People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978). VI. Revocation of Probation. Power to alter sentence at time of revocation of probation is explicitly recognized in subsection (f)(5) of this rule, Crim. P. 35(a), and § 16-11-206(5). People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977). Review of probation revocation order. Probation revocation orders are not reviewable only via Crim. P. 35, but may be reviewed by direct appeal. People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974). Issue preclusion does not apply to bar the right of a defendant to a trial where defendant had been charged with the crime of driving with a revoked license, which constituted both a violation of his probation and a new criminal act. Defendant did not have a full and fair opportunity to litigate the issue in the probation revocation hearing. A determination of guilt or innocence in a probation revocation hearing would undermine the function of the criminal trial process. Byrd v. People, 58 P.3d 50 (Colo. 2002). Probation revocation hearings are held for different purposes, governed by different procedures, and do not protect a defendant's rights as does a criminal trial. Byrd v. People, 58 P.3d 50 (Colo. 2002).