SUMMARY

May 21, 2020

2020COA80

No. 17CA1304, People v. Chavez — Criminal Procedure —

Postconviction Remedies — Reduction of Sentence; Criminal 

Law — Sentencing — Punishment for Habitual Criminals —

Mandatory Sentences for Violent Crimes

Defendant, Nehemiah Felipe Chavez, appeals the district 

court’s order denying his Crim. P. 35(b) motion for sentence 

reconsideration. He contends that the court should not have 

imposed consecutive sentences under the crime of violence statute 

because he was sentenced under the habitual criminal statute.

Applying the principles of statutory construction set forth in 

People v. Adams, 2016 CO 74, a division of the court of appeals 

agrees with the trial court and concludes, like an earlier division —

see People v. Pena, 794 P.2d 1070 (Colo. App. 1990), overruled on 

other grounds by Robles v. People, 811 P.2d 804 (Colo. 1991) — that 

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.
there is no conflict between the two provisions. Thus, the division 

concludes that (1) both provisions applied to Chavez and (2) they 

required the district court to impose Chavez’s two habitual offender 

sentences to run consecutively. 
COLORADO COURT OF APPEALS 2020COA80

Court of Appeals No. 17CA1304

Weld County District Court No. 11CR378

Honorable Shannon D. Lyons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nehemiah Felipe Chavez,

Defendant-Appellant.

ORDER AFFIRMED

Division IV

Opinion by JUDGE FURMAN

Welling and Pawar, JJ., concur

Announced May 21, 2020

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Heather Wong, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Nehemiah Felipe Chavez, appeals the district

court’s order denying his Crim. P. 35(b) motion for sentence 

reconsideration. He contends that the court should not have 

imposed consecutive sentences under the crime of violence statute 

because he was sentenced under the habitual criminal statute. We 

disagree and, therefore, affirm the order.

I. Chavez’s Sentence

¶ 2 A jury found Chavez guilty of two counts of attempted second 

degree murder and one count of attempted manslaughter. The jury 

also found that Chavez’s two convictions for attempted second 

degree murder were crimes of violence. 

¶ 3 The district court found that Chavez had three prior felonies 

and adjudicated him a habitual criminal. 

¶ 4 On each conviction for attempted second degree murder, the 

court sentenced Chavez to sixty-four years in the custody of the 

Department of Corrections (DOC) — the mandatory sentence under 

the habitual criminal statute. See § 18-1.3-801(2)(a)(I), (2)(a)(I)(A), 

C.R.S. 2019. Then, the court applied the crime of violence statute’s 

consecutive sentencing requirement, which provides that a “court 

shall sentence a person convicted of two or more separate crimes of 
2

violence arising out of the same incident so that his or her 

sentences are served consecutively rather than concurrently.”

§ 18-1.3-406(1)(a), C.R.S. 2019. Because Chavez’s two convictions 

were crimes of violence arising out of the same incident, the court 

ordered Chavez’s two sentences to run consecutively. The court 

also imposed a concurrent twelve-year sentence on the attempted 

manslaughter conviction. All told, Chavez received an aggregate 

sentence of 128 years.

¶ 5 On direct appeal, a division of this court affirmed the 

judgment of conviction. See People v. Chavez, (Colo. App. No. 

12CA1774, Dec. 17, 2015) (not published pursuant to C.A.R. 35(f)). 

¶ 6 Chavez then filed a Crim. P. 35(b) motion and a supplemental 

brief in which he contended that the court should impose all three 

of his sentences to run concurrently. He claimed that section

18-1.3-406(1)(a)’s consecutive sentencing requirement should not 

apply where a defendant is sentenced under the habitual criminal 

statute, section 18-1.3-801.

¶ 7 The district court denied Chavez’s motion, concluding that the 

crime of violence statute required it to impose consecutive 
3

sentences on his two convictions for attempted second degree 

murder.

II. Standard of Review

¶ 8 We review a ruling on a Crim. P. 35(b) motion for an abuse of 

discretion. People v. Rodriguez, 914 P.2d 230, 288 (Colo. 1996). A 

court abuses its discretion if it misinterprets or misapplies the law. 

People v. Henson, 2013 COA 36, ¶ 9. The proper interpretation of a 

sentencing statute presents a question of law, which we review de 

novo. People v. Adams, 2016 CO 74, ¶ 12. So, here, we review de 

novo whether the district court misinterpreted or misapplied the 

sentencing statutes.

III. Analysis

¶ 9 Chavez does not dispute that his two convictions for attempted 

second degree murder constituted “separate crimes of violence 

arising out of the same incident” under section 18-1.3-406(1)(a). 

Thus, the crime of violence statute required the district court to 

impose consecutive sentences on those two convictions.

¶ 10 But Chavez contends that the consecutive sentencing 

requirement in the crime of violence statute does not apply when a

defendant is sentenced under the habitual criminal statute. 
4

¶ 11 A division of this court previously addressed the same issue

we now face. See People v. Pena, 794 P.2d 1070, 1071-72 (Colo. 

App. 1990), overruled on other grounds by Robles v. People, 811 

P.2d 804, 806-07 (Colo. 1991). In Pena, the division recognized 

that the habitual criminal statute preempts one provision in the 

crime of violence statute. See id. The first sentence of section 

18-1.3-406(1)(a) requires that the length of a sentence for a crime of 

violence be “at least the midpoint in, but not more than twice the 

maximum of, the presumptive range provided for such offense in 

section 18-1.3-401(1)(a), [C.R.S. 2019].” That provision is 

incompatible with, for example, the habitual criminal statute 

requiring a sentence of either three times or four times the 

maximum of the presumptive range. See § 18-1.3-801(1.5), (2). So,

the Pena division held that the habitual criminal statute preempts 

incompatible provisions of the crime of violence statute. 794 P.2d 

at 1071-72; see also People v. Hoefer, 961 P.2d 563, 568-69 (Colo. 

App. 1998) (same).

¶ 12 But Pena held that “the preemptive scope of the habitual 

criminal statute does not extend so far as to preclude the 

mandatory consecutive sentencing requirement for multiple crimes 
5

of violence arising out of the same incident.” 794 P.2d at 1072. We 

agree with Pena.

¶ 13 The habitual criminal statute says nothing about whether 

multiple habitual criminal sentences should be imposed 

consecutively or concurrently. See generally § 18-1.3-801. And the 

provision in the habitual criminal statute under which Chavez was 

sentenced says nothing about the situation of triggering offenses 

being crimes of violence. See § 18-1.3-801(2). Because the crime of 

violence statute’s consecutive sentencing requirement does not 

conflict with the habitual criminal statute, we must give effect to 

both. 

¶ 14 Adams is persuasive authority on the issue. There, the 

supreme court faced “the intersection of two sources of sentence 

enhancement”: section 18-1.3-401(8)(a)(IV), which requires an 

aggravated sentence range, and section 18-3-203(1)(f), C.R.S. 2019, 

which requires consecutive sentences. Adams, ¶¶ 2, 13-17. The 

court concluded there was no conflict between these provisions. Id.

at ¶ 11. It explained,

The plain language of these two statutes 

permits us to give effect to both provisions. A 

specific or local provision may apply to the 
6

exclusion of a general provision, but that rule 

only applies where “the conflict between the 

provisions is irreconcilable.” § 2-4-205[, 

C.R.S. 2019] . . . . Here, there is no such 

conflict. A defendant can be sentenced to a 

greater number of years based on the general 

aggravator, and he can be made to serve that 

sentence [consecutively] following completion 

of his other sentences. We therefore apply 

both provisions.

Id. at ¶ 16; see also People v. Opana, 2017 CO 56, ¶ 11 (“If a statute 

is clear and unambiguous, and is not in conflict with another 

statute, it must simply be applied as written.”).

¶ 15 Likewise, we conclude there is no conflict between the habitual 

criminal statute and the crime of violence statute’s consecutive 

sentencing requirement. So, we must give effect to both.

¶ 16 But wait, says Chavez. His interpretation of the statutory 

scheme avoids the unjust and unreasonable result that the 

habitual offender sentence enhancements could mandate a harsher 

sentence for an individual who commits multiple crimes of violence 

arising out of a single occasion than one who does so through 

separate and distinct criminal episodes. But we see nothing unjust 

or unreasonable about this result. The legislature has mandated a

harsher, consecutive, sentence for crimes of violence arising out of a 
7

single incident and has not done so for crimes of violence arising 

out of separate incidents.

¶ 17 Chavez also contends that we should construe the statutory 

scheme to preserve district courts’ sentencing discretion. See, e.g., 

People v. Padilla, 907 P.2d 601, 609-10 (Colo. 1995) (“We decline to 

interpret [a particular statute and rule of criminal procedure] in a 

manner that compromises the effectiveness of discretionary 

sentencing.”). But the legislature has removed this discretion in 

cases such as the present one.

¶ 18 Chavez also asks us to consider the statutory construction

aids enumerated in section 2-4-203, C.R.S. 2019, along with the 

rule of lenity. See People v. Thoro Prods. Co., 70 P.3d 1188, 1198 

(Colo. 2003) (“[A]mbiguity in the meaning of a criminal statute must 

be interpreted in favor of the defendant under the rule of lenity.”). 

But these principles apply only where a statutory scheme is 

ambiguous. § 2-4-203(1); Thoro Prods. Co., 70 P.3d at 1198. We 

discern no ambiguity in the fact that both section 18-1.3-801(2) and 

the last sentence of section 18-1.3-406(1)(a) apply. So, we need not 

rely on these principles.
8

¶ 19 That this is an appeal of the district court’s order denying 

Chavez’s Crim. P. 35(b) motion does not change the analysis. 

“Under Crim. P. 35(b), the court’s discretion is constrained by 

applicable statutory limits.” People v. Dunlap, 36 P.3d 778, 781 

(Colo. 2001). “Crim. P. 35(b) cannot expand the trial court’s 

authority in resentencing beyond that which it had initially.” Id. 

“The same statutes that governed the original sentencing limit the 

trial court’s authority on resentencing.” Id. 

¶ 20 At oral argument, Chavez argued for the first time that the 

district court had the discretion in a Crim. P. 35(b) proceeding to 

change consecutive sentences to concurrent sentences under the 

provision in section 18-1.3-406(1)(a) allowing a court to modify a 

sentence “in a case which it considers to be exceptional and to 

involve unusual and extenuating circumstances.” Because Chavez 

did not raise this argument in the district court to preserve it for 

appeal, we will not consider it. See People v. Huggins, 2019 COA 

116, ¶ 17 (“When a defendant does not raise an issue in a 

postconviction motion or during the hearing on that motion, and 

the postconviction court therefore does not have an opportunity to 
9

rule on the issue, as a general rule, the issue is not properly 

preserved for appeal and we will not consider it.”).

¶ 21 We recognize that Chavez’s aggregate DOC sentence is lengthy. 

But reviewing the applicable sentencing statutes de novo, we 

conclude that they required the district court to impose consecutive 

sentences on Chavez’s two convictions for attempted second degree 

murder. Thus, the court did not abuse its discretion in denying 

Chavez’s Crim. P. 35(b) motion.

IV. Conclusion

¶ 22 The order is affirmed.

JUDGE WELLING and JUDGE PAWAR concur.