People v. Hernandez-Escajeda

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.

SUMMARY
October 10, 2024

2024COA111

No. 23CA0521, People v. Hernandez-Escajeda — Criminal
Law — Appeals — Resentencing on Remand

A division of the court of appeals holds that a district court

generally has the inherent authority to resentence on a defendant’s

remaining convictions on remand following the vacatur of a

conviction that resulted in a reduced aggregate sentence. The

division also concludes that a district court has the authority to

take actions on remand that are not specifically directed by the

appellate mandate but do not contravene the mandate.
COLORADO COURT OF APPEALS 2024COA111

Court of Appeals No. 23CA0521
Jefferson County District Court No. 17CR2800
Honorable Russell Klein, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Octavio Hernandez-Escajeda,

Defendant-Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE NAVARRO
Dunn and Gomez, JJ., concur

Announced October 10, 2024

Alexis King, District Attorney, Rebecca A. Adams, Senior Appellate Deputy
District Attorney, Golden, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 The prosecution appeals the district court’s order concluding

that it lacked authority to resentence defendant, Octavio

Hernandez-Escajeda, because of the remand instructions in People

v. Hernandez-Escajeda, (Colo. App. No. 19CA1519, July 7, 2022)

(not published pursuant to C.A.R. 35(e)) (Hernandez-Escajeda I).

We disagree with the district court and, in doing so, address a

district court’s inherent authority to resentence on remand absent

contrary directions from an appellate court. Therefore, we reverse

the order and remand for further proceedings consistent with this

opinion.

I. Background

¶2 The prosecution initially charged Hernandez-Escajeda with

twenty-four counts — including burglary, kidnapping, and

assault — involving three victims. The prosecution later added two

sexual assault charges.

¶3 In exchange for the dismissal of all those counts, Hernandez-

Escajeda pleaded guilty to added counts of first degree burglary,

first degree assault, and a crime of violence sentence enhancer that

applied to both the burglary and assault counts. Hernandez-

Escajeda affirmed that, among other things, he understood that

1
(1) the sentencing range for each of the two substantive counts was

ten to thirty-two years in the custody of the Department of

Corrections (DOC), and (2) those two sentences would run

consecutively. Hernandez-Escajeda I, slip op. at ¶ 2.

¶4 The district court sentenced Hernandez-Escajeda to two

consecutive DOC sentences of twenty-two years each, for an

aggregate sentence of forty-four years.

¶5 Hernandez-Escajeda did not directly appeal the judgment of

conviction. Instead, he filed a Crim. P. 35(b) motion for sentence

reconsideration, which the court denied, explaining that

“sentencing decisions are made very carefully after full

consideration of all relevant circumstances. The [c]ourt finds that

circumstances have not changed sufficiently since the time of

sentencing until the present date to warrant this [c]ourt to

reconsider the previously imposed sentence.”

¶6 Later, Hernandez-Escajeda filed a pro se Crim. P. 35(c) motion

for postconviction relief. The district court appointed counsel for

him, and postconviction counsel filed two supplemental

postconviction motions on his behalf. As relevant here, Hernandez-

Escajeda claimed that (1) his convictions and consecutive sentences

2
for first degree burglary and first degree assault violated his

constitutional right to be free from double jeopardy, and (2) his

convictions and sentences on those two counts were illegal because

they were supported by identical facts.

¶7 The district court summarily denied the postconviction

motion. But on appeal, a division of this court concluded that

Hernandez-Escajeda’s convictions for first degree burglary and first

degree assault must merge. Hernandez-Escajeda, ¶¶ 37-41.

Consequently, the division affirmed in part, reversed in part, and

remanded with directions. In the portion of the opinion containing

the remand instructions, the division “remanded to the district

court with directions to vacate Hernandez-Escajeda’s conviction for

first degree assault and correct the mittimus accordingly.” Id. at

¶ 42.

¶8 On remand, the district court set a hearing to consider the

division’s opinion and mandate. In response (and before that

hearing), the prosecution requested resentencing in accordance

with People v. Johnson, 2015 CO 70. Hernandez-Escajeda objected,

asserting that the court could not resentence him on the remaining

substantive count (first degree burglary) but could only perform the

3
actions specifically mentioned in the remand language in

Hernandez-Escajeda I.

¶9 At a hearing on the issue, the district court discussed Johnson

but ultimately agreed with the defense’s position. Specifically, the

court emphasized that the division in Hernandez-Escajeda I did not

remand for “resentencing” but instead remanded with directions to

vacate the first degree assault conviction and “correct the mittimus

accordingly.” Therefore, the court believed that the only action it

could take on remand was to correct the mittimus by vacating the

first degree assault conviction.

¶ 10 The court then issued an amended mittimus merging

Hernandez-Escajeda’s first degree assault conviction into his first

degree burglary conviction. So all that remains on the mittimus is

the first degree burglary conviction, the crime of violence sentence

enhancer, and the twenty-two-year DOC sentence on the first

degree burglary conviction.

II. Analysis

¶ 11 We have jurisdiction to hear the prosecution’s appeal because,

as both parties recognize, whether the district court had authority

to resentence Hernandez-Escajeda on remand from

4
Hernandez-Escajeda I presents a question of law. See

§ 16-12-102(1), C.R.S. 2024; People v. Madrid, 2023 CO 12, ¶ 37.

¶ 12 We review questions of law de novo. Madrid, ¶ 37. We

conclude that reversal is warranted. In our analysis, we address

the following issues: (1) whether, as a rule, a district court has the

inherent authority to resentence a defendant under circumstances

similar to those here; (2) if so, whether the court’s authority was

limited by the fact that the successful appeal in

Hernandez-Escajeda I occurred in the postconviction context; and

(3) the impact of the particular remand instructions in

Hernandez-Escajeda I.

A. The District Court’s Inherent Authority
to Resentence On Remand

¶ 13 When moving for resentencing, the prosecution relied on the

supreme court’s decision in Johnson, which addressed a district

court’s resentencing authority following an appellate remand.

There, a jury found the defendant guilty of sexual assault, first

degree kidnapping, and possession of a controlled substance.

Johnson, ¶ 4. He was sentenced to concurrent DOC sentences of,

respectively, twenty years to life, twenty years, and six years (for an

5
aggregate sentence of twenty years to life). Id. On direct appeal, a

division of this court concluded that the district court had erred by

rejecting, after first accepting, a plea agreement under which the

defendant had pleaded guilty to only the possession charge. Id. at

¶ 5. The division reversed the convictions, vacated the sentences,

and remanded for the district court to reinstate the defendant’s

guilty plea to possession of a controlled substance and to sentence

him on that conviction. Id. at ¶¶ 1, 5.

¶ 14 On remand, the district court imposed a sentence of twelve

years for possession of a controlled substance — double the original

sentence on that conviction. Id. at ¶ 6. The defendant appealed

again, claiming, among other things, that the increased sentence

violated his due process rights. Id. at ¶ 7. Agreeing with him, a

division of this court applied a presumption of vindictiveness to the

increased sentence and (because no new information justified the

new sentence) concluded that there was a reasonable likelihood

that the sentence was the result of actual vindictiveness for the

defendant’s successful first appeal. Id.

¶ 15 The supreme court granted review to address the scope of the

district court’s resentencing authority under these circumstances —

6
that is, to consider “whether the [district] court violated [the

defendant’s] statutory and constitutional rights by increasing his

sentence on the remaining conviction on remand following his

successful appeal on his other convictions.” Id. at ¶ 1. The

supreme court pointed out that, “[a]s a general matter, [district]

court judges possess significant discretion in determining an

appropriate sentence,” including “during a resentencing on

remand.” Id. at ¶ 21. Therefore, to protect a district court’s

discretion during a resentencing on remand, “the presumption of

vindictiveness is a narrow one.” Id.

¶ 16 The supreme court adopted the “aggregate approach,” under

which the presumption of vindictiveness applies “where changes to

the defendant’s sentence on remand cause the aggregate total

sentence to increase as compared to the original aggregate

sentence.” Id. at ¶ 25 (emphasis added). See generally id. at ¶¶ 24-

37. In approving that approach, the supreme court relied in part on

People v. Woellhaf, 199 P.3d 27 (Colo. App. 2007), a case where the

supreme court had concluded that some of the defendant’s

convictions must merge and remanded for resentencing, after which

the defendant argued in a second appeal that the new sentence

7
violated his due process rights. See Johnson, ¶¶ 27-28. A division

of this court held that the presumption of vindictiveness did not

apply to the new sentence because the aggregate period of

incarceration did not increase from the original sentence to the new

sentence on remand. See Woellhaf, 199 P.3d at 31-32.

¶ 17 The supreme court also discussed with approval an opinion

from the Fifth Circuit Court of Appeals, in which that court said,

“the aggregate approach best reflects the realities faced by district

court judges who sentence a defendant on related counts of an

indictment. Sentencing is a fact-sensitive exercise that requires

district [court] judges to consider a wide array of factors when

putting together a ‘sentencing package.’” Johnson, ¶ 28 (quoting

United States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997)).

¶ 18 The supreme court explained that the presumption of

vindictiveness did not apply in Johnson because the defendant’s

aggregate sentence after resentencing did not exceed his original

aggregate sentence. Id. at ¶ 39. The court then concluded that the

defendant failed to prove that the district court acted out of actual

vindictiveness. Id. at ¶¶ 42-43.

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¶ 19 Although the supreme court ultimately resolved a due process

claim alleging vindictive resentencing, we conclude that its

reasoning recognizes that, following a defendant’s “successful

appeal on his other convictions,” a district court has the inherent

authority to resentence the defendant on convictions that remain on

remand, at least where the defendant’s initial appeal results in a

reduced aggregate sentence. Id. at ¶¶ 1, 37. True, the remand

instructions at issue in Johnson had directed the district court to

resentence, but we see nothing in the supreme court’s analysis that

makes this fact essential to a district court’s resentencing

authority.1 (We say more on this point below in Part II.B.)

Consistent with our view, a division of this court has cited Johnson

for the proposition that, “[i]n multicount cases, judges typically

craft sentences on the various counts as part of an overall

sentencing scheme, but when a count is vacated and that scheme

unravels, they should have the discretion to reevaluate the

1 We note that resentencing was necessary in People v. Johnson,

2015 CO 70, because the first division of this court had reversed
and vacated the entire judgment arising from the jury verdicts,
including all the sentences. For this reason, we presume, the
division explicitly addressed resentencing.

9
underlying facts and sentences on the remaining counts.” People v.

Johnson, 2016 COA 15, ¶ 25 (involving a different defendant with

the surname Johnson).

¶ 20 We are not persuaded otherwise by Hernandez-Escajeda’s

suggestion that, absent a successful postconviction proceeding, a

district court’s resentencing authority is necessarily extinguished

after a conviction and sentence have become final. He says his

sentence for first degree burglary is “not subject to resentencing on

remand” because it is final and valid, and he cites People v. Heredia

for the proposition that “a [district] court loses jurisdiction upon

imposition of a valid sentence except under circumstances specified

in Crim. P. 35.” 122 P.3d 1041, 1043 (Colo. App. 2005) (alteration

omitted) (quoting People v. Mortensen, 856 P.2d 45, 47 (Colo. App.

1993)). This proposition is consistent with the general rule that a

judgment of conviction and sentence becomes final (1) if a

defendant does not pursue a direct appeal or (2) on the conclusion

of a direct appeal affirming the judgment. See Hunsaker v. People,

2021 CO 83, ¶¶ 28, 36.

¶ 21 As Heredia recognizes, however, a Rule 35 motion may disturb

the finality of a judgment, and it did so here. When the division in

10
Hernandez-Escajeda I vacated one of Hernandez-Escajeda’s

convictions and remanded for correction of the mittimus, the

mittimus reflecting the original judgment of conviction could no

longer stand. See Woellhaf, 199 P.3d at 31 (“Where, as here, a

defendant challenges his or her judgment of conviction and entire

sentencing plan, the defendant loses any expectation of finality of

his or her sentences.”). As part of the remand proceedings, the

prosecution requested resentencing on the remaining substantive

conviction, and the district court addressed this request before

amending the mittimus. In other words, the prosecution’s request

was part and parcel of the postconviction proceedings, the related

appeal, and the remand.

¶ 22 Our conclusion is supported by federal case law indicating

that, in the context of a successful postconviction motion to vacate

a conviction, a district court retains the discretion to resentence the

defendant on any remaining convictions. See United States v.

Mixon, 115 F.3d 900, 901-03 (11th Cir. 1997); United States v.

Harrison, 113 F.3d 135, 137 (8th Cir. 1997); United States v. Davis,

112 F.3d 118, 123 (3d Cir. 1997); United States v. Hillary, 106 F.3d

1170, 1171-73 (4th Cir. 1997).

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B. The Remand Instructions in Hernandez-Escajeda I

¶ 23 Having concluded that a district court generally has inherent

authority to resentence on remaining convictions after an appellate

mandate vacates a conviction, we now address whether, in this

case, the district court’s authority on remand was limited solely to

taking the actions specifically directed by the Hernandez-Escajeda I

division — namely, correcting the mittimus by vacating the first

degree assault conviction. We conclude that it was not.

¶ 24 The division’s direction in Hernandez-Escajeda I to perform a

particular action did not amount to a prohibition on any other

action that the district court had the authority to perform on

remand, provided that such other action did not conflict with the

remand instructions. See Oster v. Baack, 2015 COA 39, ¶ 15

(“Although a district court must follow the appellate court mandate

in subsequent proceedings on remand, it may entertain additional

motions that do not, expressly or by necessary implication,

contravene the mandate.”) (citation omitted). That the division in

Hernandez-Escajeda I did not expressly direct the district court to

resentence Hernandez-Escajeda on the remaining substantive count

did not limit the court’s authority to do so. Based on the reasoning

12
in Johnson, 2015 CO 70, we conclude that the district court had

that inherent authority. Moreover, federal cases support our

conclusion. See United States v. Hicks, 146 F.3d 1198, 1202 (10th

Cir. 1998) (“[A]fter we vacate a count of conviction that is part of a

multi-count indictment, a district court ‘possesses the inherent

discretionary power’ to resentence a defendant on the remaining

counts de novo unless we impose specific limits on the court’s

authority to resentence.”) (citation omitted); United States v. Shue,

825 F.2d 1111, 1114 (7th Cir. 1987) (“[D]espite the previous panel’s

failure to vacate explicitly the sentencing package and remand for

resentencing, we hold that the district court had the authority to

reevaluate the sentencing package in light of the changed

circumstances and resentence the defendant . . . .”).

¶ 25 In arguing to the contrary, Hernandez-Escajeda relies on other

cases, like Hernandez-Escajeda I, in which Colorado appellate

courts (1) concluded that merger was required on certain

convictions and (2) remanded for correction of the mittimus without

mentioning the possibility of resentencing. For two reasons, we

think his reliance on those cases is misplaced.

13
¶ 26 First, the question whether resentencing on the remaining

convictions could occur on remand was neither asked nor answered

in those cases. Hence, those cases do not inform our resolution of

the issue here.

¶ 27 Second, in those cases, the merger did not affect the

defendant’s total aggregate sentence. See, e.g., Whiteaker v. People,

2024 CO 25, ¶¶ 4, 30 (reversing and remanding for the district

court to amend the mittimus to reflect the merger of two

convictions, without mentioning resentencing, where the three-year

probationary sentences on each count were imposed concurrently);

Friend v. People, 2018 CO 90, ¶¶ 7-8, 49 (reversing and remanding

for the district court to amend the mittimus to reflect the merger of

convictions, without mentioning resentencing, where the merger did

not affect the defendant’s operative sentence of life in prison

without the possibility of parole).

¶ 28 In this case, however, the district court imposed two

consecutive DOC sentences of twenty-two years each, resulting in

an aggregate sentence of forty-four years. The result in

Hernandez-Escajeda I affected Hernandez-Escajeda’s aggregate

sentence because he now has only one conviction with a

14
twenty-two-year sentence. We conclude that the district court has

the discretion to resentence Hernandez-Escajeda on the remaining

conviction if it deems resentencing appropriate.

¶ 29 On the last point, we disagree with the prosecution that the

district court on remand is required to resentence

Hernandez-Escajeda. The prosecution relies on People v. Lacallo,

2014 COA 78, overruled on other grounds by McCoy v. People, 2019

CO 44, but there, the division vacated the defendant’s “entire

sentence” on numerous counts and remanded for resentencing. Id.

at ¶¶ 39-43. So the defendant’s convictions remained, but

resentencing was required on those convictions. Here, in contrast,

the division in Hernandez-Escajeda I vacated only one of

Hernandez-Escajeda’s convictions and sentences. On his

conviction for first degree burglary, he still has a legal sentence. So

resentencing on that count is not required. Instead, the district

court has the discretion to decide whether to resentence

Hernandez-Escajeda on that count.

¶ 30 The prosecution also cites language from Johnson that,

according to the prosecution, holds that a district court is required

to reassess the sentence and exercise its sentencing discretion

15
following a reversal of one of multiple convictions. See Johnson,

2015 CO 70, ¶ 42 (recognizing that the reversal of some convictions

“caused th[e] sentencing scheme to unravel, thus requiring the

[district] court to reassess Johnson’s sentence and exercise its

sentencing discretion under new and different circumstances”). In

that discussion, however, the supreme court simply concluded that

the district court’s reasoning for imposing a longer sentence on

remand did not show actual vindictiveness:

The [district] court’s statements explaining
why it did not initially consider the facts
pertaining to the sexual assault when
sentencing Johnson on the possession of a
controlled substance conviction, and why it felt
it necessary to consider those facts after the
court of appeals vacated the kidnapping and
sexual assault convictions evidence a non-
vindictive reason to modify Johnson’s sentence
and increase the possession of a controlled
substance sentence from six years to twelve
years.

Id. (emphasis added).2 The supreme court did not hold that

resentencing is required every time a conviction is vacated in a

multi-count case. Indeed, adopting the prosecution’s position

2 In addition, recall that resentencing was necessary in Johnson

because the first division of this court had vacated the original
judgment entirely.

16
would clash with a dominant theme of the Johnson decision — the

district court has wide discretion in sentencing matters. See 2015

CO 70, ¶¶ 16, 21-22, 26, 37.

¶ 31 Given all this, we conclude that nothing in

Hernandez-Escajeda I precluded the district court from

resentencing Hernandez-Escajeda on his first degree burglary

conviction and associated crime of violence conviction. On remand

from this appeal, the district court has the discretion to resentence

Hernandez-Escajeda if it so chooses. The court also has the

discretion to decide whether to hold a resentencing hearing.

III. Conclusion

¶ 32 The order is reversed, and the case is remanded for further

proceedings consistent with this opinion.

JUDGE DUNN and JUDGE GOMEZ concur.

17