CO Code § 18-1-409 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1 - Provisions Applicable to Offenses Generally|Part 4 - Rights of Defendant|§ 18-1-409. Appellate Review of Sentence for a Felony

  When a sentence is imposed upon any person following a conviction of any felony, other than a class 1 felony in which a death sentence is automatically reviewed pursuant to section 18-1.3-1201 (6) for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 (6) for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 (6), the person convicted shall 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; 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. The procedures employed in the review shall be provided by supreme court rule.    No appellate court shall review any sentence which is imposed unless, within forty-nine days from the date of the imposition of sentence, a written notice is filed in the trial court to the effect that review of the sentence will be sought; said notice must state the grounds upon which it is based. (2.1) and (2.2) Repealed.    The reviewing court shall have power to 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 that could have been conducted prior to the imposition of the sentence under review, and for resentencing on the basis of such further proceedings. No sentence in excess of the one originally imposed shall be given unless matters of aggravation in addition to those known to the court at the time of the original sentence are brought to the attention of the court during the hearing conducted under this section. If the court imposes a sentence in excess of the one first given, it shall specifically identify the additional aggravating facts considered by it in imposing the increased sentence.     History. Source: L. 71: R&RE, p. 401, § 1. C.R.S. 1963: § 40-1-509 . L. 76: (2) R&RE, p. 549, § 8, effective July 1. L. 79: (2.1) repealed and (2.2) R&RE, pp. 670, 672, §§ 17, 24, effective July 1; (1) amended, p. 675, § 2, effective August 1. L. 81: (2.2) repealed, p. 969, § 2, effective July 1. L. 91, 2nd Ex. Sess.: (1) amended, p. 14, § 2, effective September 20; (1) amended, p. 22, § 2, effective October 11. L. 93: (2) amended, p. 1460, § 4, effective June 6. L. 99: (1) amended, p. 799, § 21, effective July 1. L. 2002: (1) amended, p. 1510, § 179, effective October 1. L. 2002, 3rd Ex. Sess.: (1) amended, pp. 33, 34, §§ 29, 30, effective July 12. L. 2012: (2) amended,(SB 12-175), ch. 208, p. 862, § 102, effective July 1. L. 2020: (1) amended,(SB 20-100), ch. 61, p. 208, § 8, effective March 23.    Cross references:    For the supreme court rule concerning appellate review of felony sentences, see rule C.A.R. 4(c).    For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsection (1), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.     ANNOTATION   Law reviews. For article, “Colorado Felony Sentencing”, see 11 Colo. Law. 1478 (1982).   The power to declare by statute what punishment may be assessed against those convicted of crime is legislative and not judicial. If the statute is not in violation of the constitution, then any punishment assessed by a court within the limits fixed thereby cannot be adjudged excessive. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).   This section is constitutional. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).   Not improper exercise of commutation reserved to executive. Appellate review of sentences by supreme court, before finality of judgment of conviction, as allowed by this section, is a proper judicial function and not an improper exercise of the power of commutation reserved to the executive department. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).   This section is a constitutionally permitted expansion of appellate jurisdiction by the general assembly. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).   And does not amount to a legislative grant of additional original jurisdiction to the supreme court. It is exactly what it expressly purports to be -- an appellate review of sentencing -- clearly within the jurisdiction of the supreme court under § 2 of art. VI, Colo. Const.People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).   This section sets the parameters for an appellate court's review of a defendant's sentence. People v. Williams, 916 P.2d 624 (Colo. App. 1996).   But this section does not limit sentencing following new trial, as opposed to remand after review of sentence. Where defendant did not seek a review of his sentence but, rather, appealed the judgment of conviction, this section did not bar sentencing of defendant as an habitual criminal. People v. Williams, 916 P.2d 624 (Colo. App. 1996).   Defendant cannot appeal sentence imposed following his plea of guilty to vehicular homicide and leaving the scene of an accident involving death because his claim that the sentencing judge was biased, depriving him of his constitutional right to have an impartial judge determine his sentence, was not filed in a timely manner. By failing to file his claim in a timely manner, he waived his argument that the sentencing judge should have recused himself based on an appearance of partiality. People v. Dobler, 2015 COA 25 , 369 P.3d 686.   This section does not preclude review of constitutional challenges. An eighth amendment challenge is of a different magnitude than a statutory challenge. The issue is not whether a particular sentence was a wise exercise of discretion, but whether it was so disproportionate as to constitute cruel and unusual punishment. People v. McCulloch, 198 P.3d 1264 (Colo. App. 2008).   Jurisdiction to review propriety of sentence. Neither the court of appeals nor the supreme court of Colorado has jurisdiction to review the propriety of a sentence except on direct appeal from the initial sentence and then only under the limitations established in § 18-1-409 and C.A.R. 4(c)(I). Mikkleson v. People, 199 Colo. 319 , 618 P.2d 1101 (1980).   Good cause standard under C.A.R. 26(b) for an enlargement of time to file appeal encompasses the statutory deadline in this section. People v. Hill, 296 P.3d 121 (Colo. App. 2011).   Propriety of imposing a consecutive sentence is reviewable on appeal under subsection (1) even though defendant's plea was subject to a sentencing cap. Review of the propriety of a sentence involves 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. 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. Thus, subsection (1) does not preclude review of defendant's appeal. Juhl v. People, 172 P.3d 896 (Colo. 2007).   Filing of notice of appeal is jurisdictional prerequisite for appellate review of a lower court decision to deny a Crim. P. 35(a) motion. People v. Silvola, 198 Colo. 228 , 597 P.2d 583 (1979); People v. Boespflug, 107 P.3d 1118 (Colo. App. 2004).   Review of denial of Crim. P. 35(b) motion. It is only in situations where the trial court has refused to consider any information in mitigation and does not make findings in support of its decision, that an error in denying a Crim. P. 35(b) motion is sufficient to invoke appellate jurisdiction. Mikkleson v. People, 199 Colo. 319 , 618 P.2d 1101 (1980).   Only exception to rule that relief from sentence imposed lies only with executive. People v. Spann, 37 Colo. App. 152, 549 P.2d 427 (1975), rev'd on other grounds, 193 Colo. 53 , 561 P.2d 1268 (1977).   Mandates appellate court correction. This section not only permits but also directs the appellate court to mandate the correction of a sentence excessive in length, having due regard for the protection of the public interest, the nature of the offense, and the character of the offender as it relates to the probability of his rehabilitation. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).   A sentencing hearing is a critical stage of a criminal proceeding. However, hearsay is admissible because of the substantial difference between the sentencing hearing and the trial itself. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).   Sentencing decision should reflect rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).   Proper and fair sentence is one that can be reasonably explained. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).   A trial court has wide discretion in the imposition of a sentence. Rochon v. People, 134 Colo. 448 , 306 P.2d 1080 (1957).   The choice of place of confinement is within the sound discretion of the court, just as is the length of term of imprisonment. People v. Weihs, 187 Colo. 124 , 529 P.2d 317 (1974).   Of necessity the trial judge has wide latitude in imposing sentence. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976); People v. Cohen, 617 P.2d 1205 (Colo. 1980).   Sentencing by its very nature is a discretionary decision which requires the weighing of various factors and striking a fair accommodation between the defendant's need for rehabilitation or corrective treatment and society's interest in safety and deterrence. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).   A sentencing judge has wide discretion in selecting the appropriate disposition. People v. Horne, 619 P.2d 53 (Colo. 1980).   The trial court has wide discretion in sentencing and, absent a finding of abuse of discretion, an appellate court will not substitute its judgment for that of the trial judge. People v. Madonna, 651 P.2d 378 (Colo. 1982).   Sentencing discretion reposes in court. It is the court, however, and not the probation department, in whom sentencing discretion is reposed. People v. Edwards, 198 Colo. 52 , 598 P.2d 126 (1979).   Cause may be remanded for proper sentence. Where specifications of error principally stressed the question of whether punishment may be decreed properly for both rape and kidnapping offenses upon the theory that the evidence showed no more than a single continuous act, it was held that where sentence for kidnapping was excessive, the cause should be remanded to the district court for the imposition of a proper sentence for the kidnapping offense within the limits of the proper section. Abeyta v. People, 112 Colo. 49 , 145 P.2d 884 (1944).   Or correction may be made in appellate court. An erroneous judgment of the district court sentencing one guilty of second degree murder to confinement in the penitentiary at hard labor for the remainder of his natural life may be corrected by appeal or other like proceeding in the appellate court. People ex rel. Best v. District Court, 115 Colo. 240 , 171 P.2d 774 (1946).   Appellate court should not modify sentence imposed by trial judge unless record exhibits clear abuse of discretion by the trial judge in his determination. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).   The supreme court of Colorado should not modify a sentence unless it appears that the trial court has failed to give appropriate consideration to both the needs of the defendant and those of society. People v. Cameron, 200 Colo. 279 , 613 P.2d 1312 (1980).   Guidelines for appellate review. The appellate court's determination of whether a sentence is intrinsically unfair or excessive requires consideration of its propriety or fairness within the context of the nature of the offense, the character of the offender, and the public interest. People v. Piro, 671 P.2d 1341 (Colo. App. 1983).   Sentencing error where extraordinary aggravating circumstances not found. Judge erred in sentencing a 19-year old beyond the presumptive range because extraordinary aggravating circumstances justifying the sentence were not found even though the defendant was accused of committing five felonies in a nine-month period, including an arrest while on probation. People v. Jenkins, 674 P.2d 981 (Colo. App. 1983).   Guidelines for the determination of a sentence involve weighing several factors, including the nature of the offense, the character of the offender, rehabilitation of the defendant, the development of respect for law and deterrence of crime, and the protection of the public. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975); People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980); People v. Cohen, 617 P.2d 1205 (Colo. 1980); People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Magee, 626 P.2d 1139 (Colo. 1981).   In deciding what sentence is most appropriate, the trial judge must attempt to work out a fair accommodation between the need to protect society at large and to deter potential offenders, to punish the convicted offender, and to rehabilitate him. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976); People v. Cameron, 200 Colo. 279 , 613 P.2d 1312 (1980).   The sentencing judge properly may consider the public interest in safety and deterrence in sentencing an offender, especially in crimes of serious personal violence. People v. Self, 200 Colo. 406 , 615 P.2d 693 (1980).   Before imposing sentence, the trial court should consider the nature of the offense, the character of the offender, and the public interest in safety and deterrence. People v. Hunt, 632 P.2d 572 (Colo. 1981).   In reviewing the district court's imposition of sentence, the supreme court is to consider the following factors: The nature of the offense, the character of the offender, the public interest in safety and deterrence, and the sufficiency and accuracy of the information on which the sentence was based. People v. Mattas, 645 P.2d 254 (Colo. 1982).   Trial judge held to have properly considered evidence of the defendant's improved conduct while in prison, the nature of the offense, the character of the offender and the public interest in safety and deterrence in arriving at the decision to reduce the defendant's sentence. People v. Bridges, 662 P.2d 161 (Colo. 1983).   All factors to be considered in imposition of sentence. Although a sentencing court may consider a defendant's false testimony as probative of his rehabilitative potential, the fact that defendant may have lied under oath is insufficient justification, standing alone, to warrant the imposition of a maximum sentence. Equal weight must be given to all factors which comprise the goals of sentencing. People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979).   Although the absence of a prior felony conviction or significant criminal involvement, by itself, certainly may constitute a mitigating factor worthy of consideration, it is only one factor and is not conclusive on the sentencing decision. People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980).   Sentence must be supported by reasons in record. In felony convictions involving the imposition of a sentence to a correctional facility, the sentencing judge must state on the record the basic reasons for the imposition of sentence. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).   Particularly where sentence involves restrictive form of deprivation. Requirement that sentencing judge state on the record the basic reasons for imposing a sentence is particularly essential in those cases where the sentence involves a very restrictive form of deprivation, such as a term of confinement to a correctional facility. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).   A sentence for an extended term must be clearly justified in the record. People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980); People v. Cohen, 617 P.2d 1205 (Colo. 1980).   Where a sentence of an extended duration is imposed, the record must establish a clear justification for the trial judge's action. People v. Horne, 619 P.2d 53 (Colo. 1980).   When sentence is within presumptive range without regard to crime of violence-bodily injury aggravator, defendant is not prejudiced by jury's finding that victim suffered bodily injury as to each count even though there was no evidence of bodily injury on one of the counts. People v. Anderson, 183 P.3d 649 (Colo. App. 2007).   Failure to state reasons creates obstacle to appellate review. The failure of a sentencing judge to state on the record the basic reasons for the selection of a particular sentence creates a burdensome obstacle to effective and meaningful appellate review of sentences. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).   Sentence may not be based on speculation. Speculation or conjecture regarding possible future facts is not accurate information upon which a sentence may be crafted. People v. Flower, 644 P.2d 64 (Colo. App. 1981), aff'd, 658 P.2d 266 (Colo. 1983).   Consideration of trauma of witnesses is not proper factor. Any consideration of the trauma to the victims caused by their having to testify in determining the length of sentence would be error in light of defendant's fundamental right to require the prosecution to prove every element of the case. People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979).   In sentencing, the court's responsibility is to individualize a sentence and to tailor the sentence to fit the crime and the particular defendant who is before the court. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).   Presentence investigation report should always be made part of record on appeal when review of the appropriateness of a sentence is sought. People v. Horne, 619 P.2d 53 (Colo. 1980).   Any imposition of the maximum or close to the maximum penalty must be supported by sound reasons in the record for a sentence that is too long tends to reenforce the criminal tendencies of the convicted defendant. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976); People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979).   A long sentence may sometimes be justified on the basis of the depravity of the crime for which the defendant has been convicted. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).   Where a vicious or serious crime is committed by a hardened criminal, the need for a maximum or near-maximum sentence may be clearer still. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).   Or because of repeated convictions. A long or even maximum sentence may also be justified where the defendant's past record reveals repeated convictions and where the public safety can only be assured if the offender is confined. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).   Trial court acted within its discretion when it accorded substantial weight to defendant's pattern of criminal behavior and the likelihood he would commit further crimes that would endanger the public, and the court made sufficient findings to exceed the presumptive sentence range. People v. Howell, 64 P.3d 894 (Colo. App. 2002).   Judgment and sentence not final until appellate remedies exhausted. For the purposes of reviewing and granting relief from sentences validly imposed, the judgment and sentence is not final until after appellate remedies for review have been exhausted. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).   Defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes, when relief is sought before finality has attached to the judgment of conviction. People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).   Possible ameliorative benefits of an amended habitual criminal statute must be made available to a defendant notwithstanding the requirements of this section. People v. Vigil, 39 Colo. App. 371, 570 P.2d 13 (1977).   Defendant may seek such relief by direct appeal under section. A defendant, who is entitled to the benefits of amendatory legislation which mitigates penalties for crimes, when relief is sought before finality has attached to the judgment of conviction, may seek such relief by direct appeal under this section. People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).   Section limited to felonies. Where the defendant was convicted of simple assault and was sentenced to six months in jail and fined $500, all within the statutory limits, even had the present statute on review of sentences been in effect, the sentence imposed would not be subject to review, for it is limited to felonies. People v. DeJesus, 184 Colo. 230 , 519 P.2d 944 (1974).   No review for misdemeanor. There is no provision for appellate review of the propriety of a misdemeanor sentence. People v. Roberts, 668 P.2d 977 (Colo. App. 1983).   A minimum sentence is a prerequisite to appellate review. Otherwise, there is no means to determine whether the minimum given is three years greater than the minimum provided in the statute. Nugent v. District Court, 184 Colo. 353 , 520 P.2d 592 (1974) (decided prior to the 1976 amendment to this section).   This section entitled defendant to benefits of §§ 16-11-101 and 16-11-304 . Defendant, who was sentenced prior to the effective date of the 1973 amendments to §§ 16-11-101 and 16-11-304 -- which legislation provided for the imposition of indeterminate sentences for class 4 and class 5 felonies -- was entitled to the benefit of this legislation under relief sought by this section. People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).   A defendant who was sentenced to a term with a fixed minimum and fixed maximum for conviction of a class 4 felony was entitled under this section to the benefits of §§ 16-11-101 and 16-11-304 . People v. Race, 187 Colo. 204 , 529 P.2d 629 (1974).   Failure to impose equal sentences on criminal confederates not violative of equal protection. Due to the individualized nature of sentencing, there is no rule that confederates in crime must receive equal sentences, nor that failure to impose equal sentences violates equal protection of the law under the Colorado or United States Constitutions. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).   Contention that statutory penalties cruel and unusual not justifiable where sentence suspended. Where accused was given a suspended sentence and granted probation, his contention on appeal that the penalties statutorily prescribed for the offense of which he was convicted were “cruel and unusual punishments” did not present a justifiable question. People v. Summit, 183 Colo. 421 , 517 P.2d 850 (1974).   Ten- to 15-year term for assault in the first degree was not excessive in light of appellant's active participation in the planning and execution of the crimes, and the violence involved in the attempt to flee the scene of the crimes and avoid capture by law enforcement officers. People v. Campbell, 188 Colo. 79 , 532 P.2d 945 (1975).   Sentence may be imposed to run consecutively to sentence already imposed. A sentencing court has discretion to impose a sentence to be served concurrently with or consecutively to a sentence already imposed upon a defendant. People v. Flower, 644 P.2d 64 (Colo. App. 1981), aff'd, 658 P.2d 266 (Colo. 1983); People v. Cullen, 695 P.2d 750 (Colo. App. 1984); People v. Martinez, 179 P.3d 23 (Colo. App. 2007).   But not to sentence not yet imposed. A trial court may not require a sentence otherwise properly imposed to be served consecutively to some other sentence not yet imposed in another pending case. People v. Flower, 644 P.2d 64 (Colo. App. 1981), aff'd, 658 P.2d 266 (Colo. 1983).   Consecutive sentences for separate assaults not excessive. A defendant convicted by a jury on two counts of assault and sentenced on each count, the sentences to run consecutively, contended that the sentences amounted to excessive, cruel, and unusual punishment because the defendant must serve an entire term before being eligible for probation on the second consecutive term, and because the second assault following so closely upon the first assault amounted to one transaction. It was held that this was clearly not the case as the two victims were in two different places and were not assaulted contemporaneously. Harris v. People, 174 Colo. 483 , 484 P.2d 1223 (1971).   Statute inapplicable where defendant sentenced in 1969 and rehearing held in 1970. People v. Jenkins, 180 Colo. 35 , 501 P.2d 742 (1972).   Since the offense for which the defendant was sentenced was committed prior to July 1, 1972, the right of appeal under this section is not available to him. People v. Knight, 185 Colo. 364 , 525 P.2d 425 (1974).   This section applies only to offenses committed after July 1, 1972. People v. Silvola, 198 Colo. 228 , 597 P.2d 583 (1979).   Invoking fifth amendment at codefendant's trial. Where a defendant is appealing his sentence and fears that his testimony in the trial of his codefendant might be used at a subsequent hearing to enhance the sentence should it be vacated, he may invoke his fifth amendment right against self-incrimination. People v. Villa, 671 P.2d 971 (Colo. App. 1983).   Claim of unjust sentencing not allowed after plea bargain. Where trial court repeatedly reminded the defendant of what the sentence would be when it advised him, at the time of the acceptance of his plea of guilty, pursuant to Crim. P. 11, and at no time did the defendant or his counsel protest the sentence or raise an objection that the trial court was not properly exercising its discretion in imposing the sentence, the defendant could not, after benefitting from the plea bargain, claim on appeal that he has been unjustly sentenced. People v. Cunningham, 200 Colo. 303 , 614 P.2d 886 (1980).   A sentence imposed within a range agreed upon by the parties pursuant to a plea bargain precludes challenging the sentence on appeal. Subsection (1) does not require a sentencing range or cap to confer a benefit or concession on the defendant. People v. Scofield, 74 P.3d 385 (Colo. App. 2002).   Section precludes review of sentence imposed within limits of the plea agreement. People v. Garcia, 55 P.3d 243 (Colo. App. 2002).   The plea agreement proviso in subsection (1) precludes nonconstitutional challenges to a sentencing proceeding by a defendant whose sentence did not exceed the cap agreed to in the plea agreement. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005), overruled in Sullivan v. People, 2020 CO 58, 465 P.3d 25.   Statute creates single right to review the propriety of the sentence not a separate right to review of sentencing proceedings. While the manner in which the sentence was imposed is an enumerated factor that may affect the propriety of the sentence, there is no separate right to review of the manner of the sentencing. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005), overruled in Sullivan v. People, 2020 CO 58, 465 P.3d 25.   For defendants whose sentences did not exceed the agreed cap, the proviso's prohibition against appellate review of the propriety of the sentence bars review of all statutory factors that may have affected propriety, including the manner in which the sentence was imposed. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005), overruled in Sullivan v. People, 2020 CO 58, 465 P.3d 25.   “[T]he propriety of the sentence,” as that phrase is used in subsection (1), does not comprehend the manner in which a sentence was imposed. The plea proviso does not preclude an appeal related to the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which the sentence was based. Sullivan v. People, 2020 CO 58, 465 P.3d 25 (overruling People v. Lassek, 122 P.3d 1029 (Colo. App. 2005)).   The plea proviso does not preclude a defendant whose sentence did not exceed the cap agreed to in the plea agreement from raising nonconstitutional challenges to the manner in which the sentence is imposed. Sullivan v. People, 2020 CO 58, 465 P.3d 25 (overruling People v. Lassek, 122 P.3d 1029 (Colo. App. 2005)).   Review not precluded if aggravating circumstances imposed on sentence but plea bargain did not include agreement that aggravating factors existed. Defendant cannot be said to have agreed to a sentence within an aggravated range if plea agreement merely identified the number of years the sentence was not to exceed, not an acknowledgment that aggravating factors existed. People v. Misenhelter, 121 P.3d 230 (Colo. App. 2004).   Sentence in a plea agreement can be subject to appellate review if there is no indication in the record that the defendant's agreement included any type of agreed sentencing range or cap under subsection (1). People v. O'Dell, 53 P.3d 655 (Colo. App. 2001).   Refusal to grant defendant credit for presentence confinement not error. People v. Magee, 626 P.2d 1139 (Colo. 1981).   An order of restitution becomes part of the sentence which, in accordance with Crim. P. 32(c), 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).   Where a defendant agrees to make restitution when entering a plea, the defendant cannot later disavow the agreement on the basis that there was no showing that he or she had caused the victim's injury. People in Interest of A.V., 2018 COA 138 M, 446 P.3d 887.   A fine was unconstitutionally excessive where the court failed to consider the particular financial circumstances of the defendant in setting the fine and the court set the fine in an amount that was so disproportionate to the defendant's circumstances that there could be no realistic expectation that the defendant would be able to pay the fine. People v. Malone, 923 P.2d 163 (Colo. App. 1995).   Statute as basis for jurisdiction. See People v. Pacheco, 41 Colo. App. 188, 581 P.2d 741 (1978); Triggs v. People, 197 Colo. 229 , 591 P.2d 1024 (1979).   Rule of appellate review on filing notice of appeal of criminal sentence governs over conflicting statute which had not been amended after rule was changed. People v. Arevalo, 835 P.2d 552 (Colo. App. 1992).   However, the statute prevails over a conflicting supreme court rule in substantive matters. People v. Prophet, 42 P.3d 61 (Colo. App. 2001).   The prohibition on a trial court increasing a sentence on remand in subsection (3) applies only if, in the original appeal, the defendant challenged that particular sentence's propriety under the statute. People v. Johnson, 2015 CO 70, 363 P.3d 169.   Trial court violated defendant's statutory right when it imposed a harsher department of corrections sentence on resentencing than the original sentence to community corrections. The court imposed a sentence based on what it would have done if it had been the original sentencing court, in violation of subsection (3). People v. Hopkins, 190 P.3d 833 (Colo. App. 2008).   Applied in People v. Cushon, 189 Colo. 230 , 539 P.2d 1246 (1975); People v. Walker, 189 Colo. 545 , 542 P.2d 1283 (1975); People v. District Court, 196 Colo. 401 , 586 P.2d 31 (1978); People v. Edwards, 198 Colo. 52 , 598 P.2d 126 (1979); People in Interest of R.R., 43 Colo. App. 208, 607 P.2d 1013 (1979); People v. Espinosa, 200 Colo. 307 , 614 P.2d 889 (1980); People v. Foster, 200 Colo. 283 , 615 P.2d 652 (1980); People v. Martinez, 628 P.2d 608 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. District Court, 638 P.2d 65 (Colo. 1981); People v. Hamling, 634 P.2d 1023 (Colo. App. 1981); People v. Fuller, 791 P.2d 702 (Colo. 1990).