SUMMARY February 11, 2021
**2021COA13**
**No. 18CA1360,**  **People v. Propst**
**— Criminal Law** 
**— S**  **entencing**

**— Probation** 
**— Revocation** 
**— Resentencing**  A division of the court of appeals considers whether a district court must impose a prison sentence, which was suspended as a condition of probation, upon a finding that the defendant violated probation. T he division holds, contrary to the division in People v. Frye , 997 P.2d 1223 (Colo. App. 1999), but consistent with Fierro v. People , 206 P.3d 460 (Colo. 2009), that section 16

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- 206(5), C.R.S. 2020, provides a sentencing court with the discretion to cont inue probation, revoke probation, or impose any sentence that it might originally have imposed. Accordingly, the sentence is vacated and the case is remanded for resentencing. The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.COLORADO COURT OF APPEALS **2021COA13**
Court of Appeals No. 18CA1360 City and County of Denver District Court No. 17CR4675 Honorable Michael J. Vallejos , Judge
The People of the State of Colorado, Plaintiff

- Appell ee ,

v. Elisa M. Propst , Defendant

- Appell ant

.

SENTENCE VACATED AND CASE RE MANDED WITH DIRECTIONS
Division A Opinion by JUDGE FREYRE Fox and Lipinsky , JJ., concur Announced February 11 , 2021
Philip J. Weiser , Attorney General, John T. Lee , Senior Assistant Attorney General, Denver, Colorado, for Plaintiff

- Appell ee Megan A. Ring , Colorado State Public Defender, Casey M. Klekas , Deputy State Public Defender, Denver, Colorado, for Defendant

- Appell ant1 ¶ 1 In this sentence appeal, we are asked to decide whether a sentencing court, after acce pting a plea agreement and imposing a suspended prison sentence conditioned on the successful completion of probation, has discretion to continue or revoke probation after finding a violation of probation. ¶ 2 Another division considered this question in People v. Frye , 997 P.2d 1223 (Colo. App. 1999 ) (relying on People v. Seal s , 899 P.2d 359 (Colo. App. 1995) )

. That case held that the suspended
sentence wa s the original sentence and that upon finding a violation of p robation, the court was required to impose the suspended sentence

. Id

. at 1226. We respectfully disagree with the Frye division and hold that section 16

- 11

- 206(5), C.R.S. 2020, and our supreme court’s holding in Fierro v. People , 20 6 P.3d 460 (Colo.
2009 ) , provide a sentencing court with the discretion to continue probation, revoke probation, or impose any sentence that it might originally have imposed. We further hold that , under such circumstances, a sentencing court’s decision not to impose a suspende d sentence does not breach the parties’ plea agreement. ¶ 3 Defendant, Elisa M. Propst, appeals her prison sentence following the court’s finding of a probation violation . She contends2 that the court was not required to impose the suspended prison
sentence (1) because of the plea agreement and (2) because the court retained the discretion to continue her on probation, reinstate probation with new terms , or sentence her to any sentence that it could originally have imposed. Bec ause we agree, we vacate the sentence and remand the case for resentencing. On remand, the
court should exercise its discretion to determine whether to continue probation , revoke and reinstate probation , or impose any other permitted sentence, including t he suspended prison sentence.
I. Background ¶ 4 The S tate originally charged Propst with one count of second degree assault and six counts of child abuse. The prosecutor and Propst negotiated a plea agreement allowing Pro ps t to plead guilty to the assault char ge in exchange for dismissal of the rem ain ing charges

. The parties also agreed to the following sentence concession: “Count 1 Assault in Second Degree + 90d DCJ w/ referral to RISE as condition of probation + 2y probation + 6y DOC suspended (no prior inca rceration credit toward 90 days DCJ ) .” The district court accepted the plea agreement and sentenc ed Propst accordingly

.3 ¶ 5 After completing her jail sentence, Propst reported to the Denver Probation Department. She appeared for her second probation appointment on January 11, 2018, and was told that her intake appointment was scheduled for January 17, 2018. Although

s he explained that she lived in Pueblo , p robation advised her that she needed to attend the intake meeting in Denver before her probation could be transferred to Pueblo. Lacking the funds to retrieve her car from impound or secure a ride to Denver, Propst did
not appear for the original or rescheduled intake appointments. Consequently, t he probation department filed a complaint alleging that Propst failed to comply with the following condition of her probation: “ I will report to my probation officer for appointments, as directed by the court or the probation office. I understand that my probation off icer can visit me at reasonable times at home or elsewhere. I will provide probation safe access to my residence. ” The probation department recommended that Propst’s probation be revoked and that the suspended six

- year prison sentence be imposed. ¶ 6 At the revocation hearing, Propst admitted missing the intake appointment. She explained that she lived in Pueblo, was4 indigent, and had no place to stay in Denver

. She testified that her ride to Denver for the intake appointment fell through at the last
minut e. She did not have a vehicle or a driver’s license, which precluded her from borrowing a car, and she could not find a nother ride to Denver. She also testified that she attempted to contact the probation department to reschedu le her appointment, but she could not get ahold of anyone

. ¶ 7 The sentencing court held multiple hearings to determine whether it had discretion to continue probation or was required to impose the suspended sentence

. The prosecut or argued that the sentencing cour t was bound by the terms of the plea agreement that mandated imposition of the suspended prison sentence

. ¶ 8 The defense argued th at the court had discretion to continue probation for t hree reasons. First, the plea agreement did
not require the suspended s entence to be imposed after the first violation. Second, Fierro held th ere was “ no express limitation on the sentencing court’s discretion in granting or imposing conditions for continued suspension.” 206 P.3d at 462. And third, the revocation hearing statute, section 16

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- 206(5) , required the
court , within seven days of the hearing, to revoke or continue5 probation and permitted it , upon revocation , to impose any sentence or grant any probation that could originally have been imposed

. ¶ 9 The court agreed with the prosecutor and reasoned that “when the Court accepts a plea agreement that has a suspended sentence that’s negotiated with the parties, then the Court is bound by that agreement as well.” It further believed that f ailing to impose the suspended sentence would violate the plea agreement and would allow the prosecutor to withdraw from that agreement. The court was not persuaded by Fierro because that case did not involve

a plea agreement. It then sentenced Propst to six years in the custody of the Department of Co r rections.
II. Sentencing Discretion ¶ 10 Propst contends the sentencing court legally erred by finding that it lacked the discretion to impose a sentence other than the suspended sentence , upon finding a probation violation

. We agree.
A. Standard of Review and Applicable Law ¶ 11 The interpretation of a plea agreement is a legal question that we review de novo. People v. Villela , 2019 COA 95, ¶ 10.6 ¶ 12 Crim. P. 11 permits a defendant to plead guilty under an agreement with the prosecution

. The sentencing court retains the ultimate discretion to accept or rejec t any sentence concessions in the plea agreement. People v. Mazzarelli , 2019 CO 71, ¶ 24

. O nce the sentencing court formally accepts the plea agreement and is satisfied the defendant understands its terms , the court , like the defendant and the prosecut or , is “bound by the terms of the agreement and [cannot], absent proof of fraud or breach of the plea bargain, set the agreement aside. ” People v. Roy , 109 P.3d 993,
995

- 96 (Colo. App. 2004) (quoting United States v. Ritsema , 89 F.3d 392, 402 (7th Cir. 1996) )

. ¶ 13 A defendant accused of violating probation is entitled to a hearing

. See § 16

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- 206. Upon a finding that the defendant violated a condition of probation, the court may “ revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation

. . . which might originally have been imposed or granted. ” § 16

- 11

- 206(5 )

. ¶ 14 A plea agreement may include a conditional sentence suspending the “imposition or execution of [a] sentence for such period and upon such terms and conditions as [the sentencing7 court] may deem best.” § 18

- 1.3

- 401(11), C.R.S. 2 020. Colorado courts often apply general contract principles to interpret plea agreements. See Mazzarelli , ¶ 3. However, a bsent express language “addressing the contingency of revocation . . . of a conditional sentence, a sentencing stipulation will not be construed as limiting the court’s discretion in the event that the defendant fails to comply wit h the terms of the conditional sentence originally imposed.” People v. Griego , 207 P.3d 870, 872 (Colo. App. 2008).
B. Analysis ¶ 15 Propst does not dispute that she violated a condition of her probation . Rather, she contends the sentencing court misapprehended the scope of its discretion in resentencing her. Propst relies on Mazzarelli and Fierro to argue that the court had discretion under section 16

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- 206(5) to continue her probation or to revoke and rei nstate probation. ¶ 16 To begin, we find Mazzarelli distinguishable from this case. I n Mazzarelli , the defendant pleaded guilty under a plea agreement, and the court accepted the plea. Mazzarelli , ¶ 9. However , the
court then rejected the parties’ sentenc e agreement and imposed a more lenient sentence. Id

. at ¶¶ 10

- 11. Under th e se8 circumstances, t he supreme court found the application of general contract law principles inapplicable in analyz ing th e plea agreement. Id

. at ¶ 26. It held that “when the [ sentencing ] court rejects a sentence concession in a plea agreement after accepting the defendant’s guilty plea, the statute and rules do not permit the People to withdraw from the agreement.” Id

. ¶ 17 Unlike Mazzarelli , where the court accepted the defendant’s plea but rejected the parties’ sentence concession by imposing a more lenient sentence, the sentencing court here accepted Propst’s guilty plea and followed the plea agreement. Thus, we reject
Pr opst’s reliance on Mazzarelli to argue that the sentencing court had the discretion to impose a different sentence. See id. at ¶ 3 n.2 ( “ N othing in this opinion should be viewed as passing judgment on the appropriate remedy, if any, when a party breaches a plea agreement after the defendant has pled guilty .”)

. ¶ 18 Nevertheless , we conclude that Fierro provided the sentencing
court with the discretion to continue probation , revoke and
reinstate probation , or revoke probation and impose any sentence that the cou rt might originally have imposed. In Fierro , the district court imposed two suspended prison sentences on the condition9 that the defendant successfully complete three year s of probation. 206 P.3d at 461. Three years later, the court revoked the defendant’s probation and resentenced her to three years in a community corrections program , rather than impos ing the suspended prison sentences. Id

. A division of this court reversed the sentence and found that the district court was required to impose the suspended prison sentence. Id

. at 460. Our supreme court granted certiorari to consider whether this court erred by remanding for imposition of the original prison sentence. Id

. at 461. ¶ 19 After a lengthy disc ussion detailing the history of the statutory interplay between probation and suspended prison sentences, the
supreme court held , under section 18

- 1.3

- 401(11) , that “the power to suspend a sentence complements, rather than supplants, a sentence to probatio n.” Id

. at 465. And “any requirements upon which the suspension of a sentence is conditioned must conform to the statutory requirements of and for probation; both revocation for violation of probationary conditions and resentencing upon such
revocation a re governed by the statutory provisions governing revocation of probation

. ” Id

. (citing § 16

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- 206(5)). The c ourt then10 held that section 16

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- 206(5) granted the district court the discretion to sentence the defendant to community corrections because that was a sentence the court could originally have imposed. Id

. at 465

- 66. ¶ 20 As in Fie r ro , the sentencing court imposed a suspended six

year prison sentence on th e condition that Propst successfully complete two years of probation. By imposing a sentence with a suspended prison term , the court did not cede i ts discretion to consider all the available sentencing options upon finding a violation of probation. Inste ad, the suspended sentence served to

“ notify [Propst] of the sentence that would be imposed but for the alternative of probation and to which [she] remain [ed] subject in the event of a violation of probationary conditions, without simultaneously rendering the sentence illegal and void. ” Id

. at 465. Thus, the sentencing court had broad discretion to resentence Propst under section 16

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- 206(5) and after finding she violated a condition of her probation. See Villela , ¶ 16. ¶ 21 We are not persuaded otherwise by the People’s reliance on Frye

. In Frye , the district court sentenced the defendant, under a plea agreement, to sixteen years in prison, suspen ded on the11 condition of his successful completion of twenty

- five years of probation. 997 P.2d at 1224. Following a revocation hearing, the district court revoked probation and imposed the suspended
sentence. Id

. at 1225. On appeal, the defendant challe nged t he legality of the suspended sentence under section 16

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- 101(1),
C.R.S. 1999 , and he argued that section 16

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- 206(5) gave the court discretion to impose any sentence that could originally have been imposed. Frye , 997 P.2d at 1225. The division re jected his arguments and held that the suspended sentence constituted the original and final sentence and , thus, that the court was required to impose the suspended sentence. Id

. at 1226

- 27 (relying on Seals , 899 P.2d at 361 )

. It then found section 16

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- 206(5) i napplicable where probation was imposed as a condition of a suspended
sentence. Id

. at 1226. ¶ 22 While Frye technically remains good law, Fierro called its holding into doubt. Fierro , 206 P.3d at 464. In discussing the sentencing statutes, the supreme court found it difficult to discern any legislative intent in the langu age of section s 18

- 1.3

- 401(11) and
16

- 11

- 206(5) t hat would allow “sentencing courts on their own initiative, or defendants and prosecutors through plea negotiations ,12 to limit the court’s obligation to fairly consider all available sentencing options, at the time of a violation of conditions of probation. ” Id

. at 464

- 65 ( e mphasis added). It reasoned that i n cases where probation is a permissible alternative, “little purpose could be served by construing suspension as a sentencing alternative separate and distinct from probation. ” Id

. at 465. ¶ 23 Because the supreme court’s reasoning is equally applicable her e, we hold , contrary to Frye , that section 16

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- 20 6 ( 5 ) apply where probation is imposed as a condition of a suspended sentence

. We further hold that i t is inconsequential whether the suspended
sentence was imposed under a plea agreement

. T he plea agreem ent here contains no specific language that addresses the probation violation contingency. Absent such language, the court retained broad discretion to resentence Propst to any sentence that it could originally have imposed under section 16

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- 206(5)

. Se e Griego , 207 P.3d at 872; People v. McDaniels , 844 P.2d 1257, 1258 (Colo. App. 1992). ¶ 24 Finally , the People contend that if the sentencing court is permitted to impose a s entence other than the suspended six

- year prison sentence, such sentence would breach the plea agreement13 and allow the m to withdraw from the plea agreement and reinstate th e original charges. We are not persuaded. ¶ 25 The prosecution may only withdraw from a plea agreement and reinstate the original charges whe n there is a material and substantial breach of the agreement. Keller v. People , 29 P.3d 290, 298 (Colo. 2000). But because we have concluded that section 16

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- 206(5) grants the court the discretion t o impose any sentence that could originally have been imposed upon a probation
revocation , the imposition of a lawful sentence other than prison would not constitute a material and substantial breach of the plea agreement. ¶ 26 Accordingly, we conclude the se ntencing court legally erred by finding that it lacked the discretion to impose any sentence other than the suspended six

- year prison sentence

. III. Conclusion ¶ 27 The sentence is vacated, and the case is remanded for resentencing on the probation violation

. JU DGE FOX and JUDGE LIPINSKY concur.