Peo v. Vasquez

23CA0483 Peo v Vasquez 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0483
City and County of Denver District Court No. 19CR7511
Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Emelio J. Vasquez,

Defendant-Appellant.

APPEAL DISMISSED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Emelio J. Vasquez appeals the revocation and reinstatement of

his probation. We dismiss the appeal as moot.

I. Background

¶2 Vasquez pleaded guilty to attempted second degree assault

based on allegations that he assaulted his girlfriend and her

two-year-old son. The district court sentenced him to three years of

probation in June 2020. As conditions of his probation, Vasquez

agreed to “submit to drug and alcohol testing as directed by the

probation officer” and that he would “not commit any offense.”

¶3 In August 2021, the prosecution filed a complaint to revoke

Vasquez’s probation because he had failed to submit two required

urinalyses (UAs), had submitted several positive and dilute UAs,

and, while on probation, had been charged with driving under the

influence. Vasquez admitted these allegations in January 2022.

The court revoked his probation and reinstated a new eighteen-

month term of probation with forty-five days of in-home detention

as a condition of probation.

¶4 In September 2022, the prosecution filed a second complaint

to revoke Vasquez’s probation based on allegations that he had

been charged with assault and “failed to submit 10 of 17 scheduled

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[UAs].” However, the complaint specified only five dates on which

Vasquez had failed to submit UAs, saying “[t]he most recent failures

to submit” occurred on May 11, 2022; June 7, 2022; June 18,

2022; June 25, 2022; and July 2, 2022. This appeal concerns the

proceedings relating to the prosecution’s second complaint.

¶5 The prosecution called Vasquez’s probation supervisor to

testify at the December 16, 2022, hearing on the second complaint.

On cross-examination, the supervisor acknowledged that a different

probation officer had excused Vasquez’s missed UAs on June 18,

June 25, and July 2 — leaving only the May 11 and June 7 UAs

unaccounted for.

¶6 The supervisor also testified that Vasquez was required to

submit all UAs to Recovery Monitoring Solutions (RMS), an agency

with which the probation department had a UA services contract.

The defense introduced evidence that, on May 11 and June 7,

Vasquez had instead submitted negative UAs to his treatment

provider, which did not have a contract with the probation

department for UA services. The supervisor testified that Vasquez

had been told multiple times to submit his UAs to RMS and that the

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probation department would not accept UAs from his treatment

provider.

¶7 At the conclusion of the hearing, the court ruled that the new

assault charge was not a basis for revocation because it had not

resulted in a conviction. But the court found that Vasquez violated

the terms of his probation by failing to submit UAs to RMS on May

11 and June 7 as the probation department directed, even though

he had submitted them to his treatment provider. At the

sentencing hearing conducted on January 30, 2023, the court

revoked Vasquez’s probation and reinstated a new eighteen-month

term of probation.

¶8 Vasquez appeals the district court’s determination that he

violated the terms of his probation because he had not submitted

his May 11 and June 7 UAs to RMS.

¶9 The posture of this case materially changed since Vasquez

filed his appeal in March 2023. Since that time, Vasquez was

charged with child abuse, reckless endangerment, trespass, and

violation of a protection order in no fewer than four separate cases.

See Medina v. People, 2023 CO 46, ¶ 5 n.1, 535 P.3d 82, 84 n.1 (“A

court may take judicial notice of the contents of court records in a

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related proceeding.” (quoting People v. Sa’ra, 117 P.3d 51, 56 (Colo.

App. 2004))). The prosecution filed two complaints — one in

September 2023 and an addendum in April 2024 — to revoke

Vasquez’s probation based on those charges. Vasquez admitted the

new probation violations at a hearing in June 2024. The court then

revoked Vasquez’s probation and set a sentencing hearing.

¶ 10 At a sentencing hearing conducted on August 23, 2024, the

court reinstated a term of ninety days of probation, with ninety

days in jail as a condition of probation. According to the amended

mittimus reflecting the new sentence, “probation [is] to terminate

upon completion of [the] jail sentence.” Ninety days from August

23, 2024, is November 21, 2024.

¶ 11 The table below summarizes the pertinent events:

Sentences and Relevant Information
Complaints

Sentence 1 June 2020 — Vasquez sentenced to three years of
probation.

First August 2021 — Allegations of positive, dilute, and
Complaint to missed UAs and a new charge.
Revoke
Probation

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Sentences and Relevant Information
Complaints

Sentence 2 January 2022 — Probation revoked and
reinstated for term of eighteen months with
condition of forty-five days of in-home detention.

Second September 2022 — Allegations of a new charge
Complaint to and missed UAs.
Revoke
Probation

Sentence 3 January 2023 — Probation revoked and
reinstated for term of eighteen months.

Post-Appeal September 2023 and April 2024 — Allegations of
Complaints to new charges incurred in August 2023, January
Revoke 2024, and February 2024.
Probation

Sentence 4 August 23, 2024 — Probation revoked and
reinstated for term of ninety days, with ninety-day
jail sentence as a condition of probation.

Conclusion of No later than November 21, 2024 (ninety days
Vasquez’s Jail from August 23, 2024).
Sentence

¶ 12 On the same day that Vasquez was sentenced to ninety days

in jail as a condition of his probation in this case, he was also

sentenced to sixty days in jail and a year of probation in a separate

case (Denver District Court case no. 23CR4958) after he pleaded

guilty to trespass and violation of a protection order. A minute

order entered in that case reflects that the sixty-day jail sentence

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and the ninety-day jail sentence as a condition of probation in this

case were to run concurrently.

II. Mootness

¶ 13 We requested supplemental briefing on whether the

subsequent revocation and reinstatement of Vasquez’s probation

with jail as a condition of probation mooted his appeal of the court’s

January 2023 order revoking his probation. After reviewing the

parties’ supplemental briefs, we conclude that this appeal is moot.

A. Applicable Law and Standard of Review

¶ 14 “Colorado courts invoke their judicial power only when an

actual controversy exists.” DePriest v. People, 2021 CO 40, ¶ 8, 487

P.3d 658, 662 (quoting People in Interest of Vivekanathan, 2013

COA 143M, ¶ 20, 338 P.3d 1017, 1020). A case is moot when any

relief the court granted would have no practical effect on an actual

controversy. Id. “If an event occurs while a case is pending on

appeal that makes it ‘impossible for the court to grant any effectual

relief . . . to a prevailing party,’ the appeal must then be dismissed

as moot.” Id. (quoting Church of Scientology of Cal. v. United States,

506 U.S. 9, 12 (1992)). But where the parties “have a concrete

interest, however small, in the outcome of the litigation, the case is

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not moot.” Id. (quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000,

567 U.S. 298, 307-08 (2012)).

¶ 15 “Because we must always satisfy ourselves that we have

jurisdiction to hear an appeal, we may raise jurisdictional defects

sua sponte, regardless of whether the parties have raised the issue.”

People v. S.X.G., 2012 CO 5, ¶ 9, 269 P.3d 735, 737. We review

whether an appeal is moot de novo. DePriest, ¶ 8, 487 P.3d at 662.

B. This Appeal Is Moot Because Vasquez Completed His Sentence

¶ 16 In their supplemental brief, the People argue that this appeal

would become moot on November 21, 2024, when Vasquez was

scheduled to complete his sentence. We agree.

¶ 17 “[A] defendant’s appeal of an order revoking probation is

rendered moot after the defendant completes the resulting term of

imprisonment.” People v. Garcia, 2014 COA 85, ¶ 10, 356 P.3d 913,

916. Because Vasquez has completed his sentence and therefore

will not face another probation revocation in this case, any relief

this court could grant would have no practical effect on any actual

controversy. (The imposition of the jail sentence on August 23,

2024, may also have mooted this appeal because that sentence

superseded the sentence imposed in January 2023. See People v.

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Fritz, 2014 COA 108, ¶ 23, 356 P.3d 927, 931. Because this appeal

indisputably became moot no later than November 21, 2024, when

Vasquez completed his jail sentence, we resolve the appeal based on

the significance of that date.)

C. No Exceptions to the Mootness Doctrine Apply

¶ 18 Vasquez argues that we should nevertheless review the merits

of his appeal under any one of three exceptions to the mootness

doctrine.

¶ 19 He first argues that his appeal is not moot because the

challenged revocation will have collateral consequences. “Under the

collateral consequences exception to the mootness doctrine, a case

is moot ‘only if it is shown that there is no possibility that any

collateral legal consequences will be imposed on the basis of the

challenged conviction.’” DePriest, ¶ 9, 487 P.3d at 662 (quoting

Sibron v. New York, 392 U.S. 40, 57 (1968)). “Even if a sentence

has been fully served, an appeal of the underlying conviction is not

moot if there is a possibility that the conviction will give rise to

collateral consequences.” Id. at ¶ 10, 487 P.3d at 662 (emphasis

added). But where a defendant fully served his sentence, and the

appeal only concerns that sentence and not the underlying

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conviction, the appeal “may be moot” if “the relief sought cannot be

afforded through the appeal.” Id. at ¶ 11, 487 P.3d at 663.

¶ 20 Significantly, Vasquez does not challenge his underlying

attempted assault conviction. Thus, he does not point to any

collateral consequences that flow from that conviction. Instead, he

argues that two collateral consequences arising from the revocation

and reinstatement of his probation in January 2023 “preclude a

finding of mootness” — (1) the revocation “could impact a

sentencing court’s decision” if he were to face additional probation

revocation complaints in case number 23CR4958, and (2) even if he

did not face future revocations in that case, the revocation could

nonetheless “negatively impact his upcoming treatment and

supervision on probation.” But Vasquez does not identify or further

explain what those “negative impacts” could be.

¶ 21 A division of this court rejected a similar argument in Garcia.

In that case, the division concluded that the “potential impact of [a]

revocation order and sentence on possible later sentencing

proceedings does not constitute a sufficient collateral consequence

to defeat mootness.” Garcia, ¶ 10, 356 P.3d at 916 (first quoting

United States v. Meyers, 200 F.3d 715, 722 (10th Cir. 2000); then

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citing United States v. Probber, 170 F.3d 345, 347-49 (2d Cir.

1999)).

¶ 22 In Garcia and the cases on which it relied, the courts declined

to give weight to speculative collateral consequences when

considering whether the case was moot. See id. at ¶ 10, 356 P.3d

at 916; Meyers, 200 F.3d at 720; Probber, 170 F.3d at 349. For

example, we will not speculate how a served sentence could impact

the defendant if he were to violate the terms of his probation in the

future. See Spencer v. Kemna, 523 U.S. 1, 14 (1998) (“[Petitioner]

claims that the revocation could be used to his detriment in a

future parole proceeding. This possibility is no longer contingent on

petitioner’s again violating the law . . . . But it is, nonetheless, still

a possibility rather than a certainty or even a probability.”); Lane v.

Williams, 455 U.S. 624, 632 n.13 (1982) (“The parole violations that

remain a part of respondents’ records cannot affect a subsequent

parole determination unless respondents again violate state law, are

returned to prison, and become eligible for parole. Respondents

themselves are able — and indeed required by law — to prevent

such a possibility from occurring.”).

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¶ 23 Vasquez asserts that his appeal is distinguishable from those

cases because he will be placed on probation in case number

23CR4958 upon his release from jail. But the two collateral

consequences that he argues could result from his probation

revocation in this case remain speculative. First, we will not

assume that Vasquez will violate the terms of his probation, and

thereby face future revocation proceedings, in case number

23CR4958. And we will not speculate that his probation revocation

in January 2023 could impact his sentence for a future probation

violation that may never occur. See Garcia, ¶ 10, 356 P.3d at 916;

see also Lane, 455 U.S. at 633 (A sentencing judge’s discretionary

decisions “are not governed by the mere presence or absence of a

recorded violation of parole; these decisions may take into

consideration, and are more directly influenced by, the underlying

conduct that formed the basis for the parole violation.”). Second, in

his supplemental brief, Vasquez fails to explain the type of “negative

impacts” he asserts he could experience while on probation in case

number 23CR4958 as a consequence of his probation revocation in

this case. This is precisely the type of speculation that Garcia

counsels us to avoid.

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¶ 24 Vasquez next claims that we should review the merits of his

appeal because the case is capable of repetition but evading review.

“[A] court may reach the merits of an otherwise moot appeal if the

case is capable of repetition yet evading review.” Garcia, ¶ 22, 356

P.3d at 917. We agree that whether a defendant’s probation may be

revoked based on his failure to submit UAs to a probation-

department-approved facility is an issue capable of repetition. But

we disagree that the issue evades review.

¶ 25 Vasquez’s commission of new offenses led to the revocation of

the probation sentence that he challenges in this appeal and the

three-month jail sentence that he has now served. Vaquez’s

commission of new offenses was entirely within his control.

¶ 26 A future case involving a defendant who did not reoffend while

on probation could squarely present the issue of whether a

defendant’s probation may be revoked if he provided his UAs to the

wrong provider. We acknowledge that a defendant’s eighteen-

month probation term (the term that would have remained in effect

had Vasquez not reoffended) could expire during the pendency of an

appeal raising that issue. See Walton v. People, 2019 CO 95, ¶ 8,

451 P.3d 1212, 1215; People v. Brockelman, 933 P.2d 1315, 1318

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(Colo. 1997). We are also cognizant, however, that Vasquez’s

appellate counsel requested and was granted two extensions to file

the opening brief in this appeal. (The People requested and were

granted another extension of time in this appeal.) Thus, it is not a

foregone conclusion that an appeal in a case involving an eighteen-

month probation term would evade review. In any event, Vasquez

did not develop this argument in his supplemental brief. See People

v. Curtis, 2021 COA 103, ¶ 36 n.3, 498 P.3d 677, 685 n.3 (declining

to address an undeveloped argument).

¶ 27 Finally, Vasquez urges us to review the merits of his appeal

because he claims it raises a matter of public importance.

Appellate courts may review a moot case if it involves “a question of

great public importance or an allegedly recurring constitutional

violation.” Garcia, ¶ 23, 356 P.3d at 917. While the issue of

whether a defendant’s probation may be revoked based on his

failure to submit UAs to the correct facility may be important to

probationers, we are not convinced that it rises to the same level of

public importance as the issues presented in the cases applying

this exception to the mootness doctrine. See, e.g., Grossman v.

Dean, 80 P.3d 952, 960 (Colo. App. 2003) (applying the public

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importance exception to interpret a state constitutional amendment

adopted by ballot initiative); People in Interest of Yeager, 93 P.3d

589, 592 (Colo. App. 2004) (applying the exception to determine the

authority of a guardian to execute a “do not resuscitate” order on an

incapacitated person’s behalf); Bruce v. City of Colorado Springs,

971 P.2d 679, 683 (Colo. App. 1998) (invoking the exception to

determine the constitutionality of the Mail Ballot Election Act).

¶ 28 In addition, Vasquez does not allege that the probation

department’s requirement that probationers submit UAs to a

specific facility results in a recurring constitutional violation. While

he invokes his due process rights generally, the question on appeal

that could recur concerns whether the challenged condition of

probation is reasonably related to the purposes of probation, as

section 18-1.3-204, C.R.S. 2024, requires. Cf. People v. Devorss,

277 P.3d 829, 834 (Colo. App. 2011) (applying the mootness

exception to review a defendant’s contention that a condition of

probation was unconstitutionally vague as applied to him).

¶ 29 For these reasons, we conclude that Vasquez’s appeal is moot

and no exception to the mootness doctrine warrants review of his

arguments on the merits.

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III. Disposition

¶ 30 The appeal is dismissed.

JUDGE J. JONES and JUDGE SULLIVAN concur.

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