v. Villela

Citations

• 2019 COA 95

Syllabus

Defendant pleaded guilty to menacing and child abuse in a plea agreement. Pursuant to the plea agreement, the sentence to be imposed would be at the district court's discretion, but if the district court sentenced defendant to the custody of the Department of Corrections (DOC), the sentences would be in the presumptive range of one to three years and would run concurrently to each other. Defendant requested a sentence to probation, and the district court sentenced him to five years of probation. After defendant violated probation the first time, the court revoked and reinstated defendant's probation. After defendant violated probation the second time, the court revoked probation and imposed concurrent four-year terms in the DOC on each count. On appeal, defendant argued that the court erred by imposing an aggravated range sentence when his probation was revoked because the original plea agreement mandated a presumptive range sentence for his crimes. Here, the plea agreement prescribed the sentence to be imposed following defendant's guilty plea, but it did not expressly address the sentence to be imposed after the initial sentencing. Defendant could have bargained for language to cover this contingency, but he did not. After revoking defendant's probation, the district court was free to resentence defendant to any sentence authorized by statute, including an aggravated prison sentence. Defendant also argued that the sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Here, as part of the plea agreement, defendant waived his Blakely rights and agreed to judicial factfinding as to facts that could result in an aggravated range sentence, and the court could impose an aggravated range DOC sentence of up to six years on a finding of exceptional circumstances. The district court properly sentenced defendant in the aggravated range based on its finding that extraordinary aggravating circumstan