Peo v. Florez-Molina
Peo v. Florez-Molina
Peo v. Florez-Molina
Opinion
23CA0186 Peo v Florez-Molina 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0186
Larimer County District Court No. 20CR2100
Honorable Susan Blanco, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Carlos Geovanny Florez-Molina,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE LIPINSKY
Schutz and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Carlos Geovanny Florez-Molina, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Carlos Geovanny Florez-Molina appeals the district court’s
order denying his Crim. P. 35(b) motion. We affirm.
I. Background
¶ 2 Multiple law enforcement agencies investigated thirty separate
residential burglaries in more than eighteen different jurisdictions
across the United States, including in Larimer County, that
occurred in 2019. The agencies determined that the same
individuals were responsible for the burglaries and that the group
was targeting the homes of Asian-American business owners. After
obtaining information linking Florez-Molina to the crimes, law
enforcement officers apprehended him in Florida, where he had
been arrested under an alias on unrelated charges.
¶ 3 Prosecutors in Larimer County charged Florez-Molina with one
count under section 18-17-104(3), C.R.S. 2023, of the Colorado
Organized Crime Control Act (COCCA) (conducting or participating
in an enterprise through a pattern of racketeering activity); one
count under section 18-17-104(4) of COCCA (conspiracy to violate
COCCA); twenty-four counts of second degree burglary; nineteen
counts of theft; and one count of criminal mischief. The second
2
degree burglary, theft, and criminal mischief counts were charged
as the predicate acts of the COCCA counts.
¶ 4 Florez-Molina entered into a plea agreement. In exchange for
Florez-Molina’s agreement to plead guilty to a single COCCA count
under section 18-17-104(3), a class 2 felony, and one of the theft
counts, a class 3 felony, the prosecution agreed to dismiss the
remaining forty-four counts.
¶ 5 The plea agreement that Florez-Molina signed called for “open
sentencing,” meaning that the “Court shall have full sentencing
discretion,” including the ability to sentence Florez-Molina to “the
Department of Corrections [DOC] (State Prison), Community
Corrections or Probation.” The agreement further specified that, if
the court imposed a sentence to the DOC, “the plea agreement does
permit for consecutive sentences to be imposed” and “an additional
MANDATORY period of parole as required by state law for a Class 2
Felony.” In addition, the agreement stated that Florez-Molina’s
COCCA conviction carried a presumptive sentencing range of eight
to twenty-four years, and that the theft conviction carried a
presumptive sentencing range of four to twelve years.
3
¶ 6 The court accepted Florez-Molina’s guilty pleas and ordered a
presentence investigation report (PSIR). Following submission of
the PSIR, the court sentenced Florez-Molina to ten years for the
COCCA conviction and eight years for the theft conviction, with the
sentences to run consecutively.
¶ 7 Florez-Molina was represented by counsel throughout the
proceedings.
¶ 8 Three months later, Florez-Molina’s attorney filed a timely
Crim. P. 35(b) motion. In the motion, the attorney argued that
Florez-Molina was entitled to a sentence reduction because
• he received longer sentences than those imposed on his
codefendants;
• unlike his codefendants, he provided information about
“ongoing burglaries, including identifying individuals and
cells that are currently operating within the United
States”;
• following his sentencing, he continued to provide
information to the Federal Bureau of Investigation
regarding “active burglary cells”;
4
• in contrast, his codefendants “only reluctantly provided
information and only when they were specifically asked
to by law enforcement”;
• unlike his codefendants, he “will face mandatory exile
from the United States upon completion of his DOC
sentence”;
• he has three children, is well-educated, and has “no
other criminal history”; and
• he completed a rehabilitative course while incarcerated.
¶ 9 The court denied Florez-Molina’s motion, noting as follows:
• while Florez-Molina “did proffer information to aid in the
investigation,” his codefendants “volunteered information
at an earlier time than Mr. Florez-Molina did”;
• although the court “positively acknowledge[d] the courses
Mr. Florez-Molina has completed” while incarcerated, he
did not present “new evidence or additional material
factors” warranting a reduction of his sentence;
• the prosecution’s original case against Florez-Molina was
“extremely serious in nature”;
5
• he “played a part in a group of individuals systematically
victimizing a total of 83 victims and what amounted to
burglarizing 26 homes”;
• while the other codefendants were not similarly situated
to Florez-Molina, his sentence was “appropriate even
though it is not the same as the others”; and
• the court had previously considered the information that
Florez-Molina proffered and it “weighed into the Court’s
initial sentencing decision.”
¶ 10 The court concluded that, although Florez-Molina “is taking
his time while incarcerated seriously, the Court is balancing the
acts which brought him before the jurisdiction of this Court and
finds a reconsideration to be inappropriate.”
¶ 11 Florez-Molina, now self-represented, appeals the denial of his
Crim. P. 35(b) motion.
II. Analysis
¶ 12 On appeal, Florez-Molina argues that the judgment entered
against him violated his right to due process under the Fifth and
Fourteenth Amendments because the court erred by not merging
his COCCA and theft convictions and, relatedly, his sentence
6
violated section 18-1.3-408, C.R.S. 2023; for the same reason, his
sentence violated his constitutional right against double jeopardy;
his sentence amounted to cruel and unusual punishment, in
violation of his Eighth Amendment rights, because it is
disproportionate to the crimes to which he pleaded guilty; and the
court violated his rights to “fundamental fairness of due process”
guaranteed under the Fifth and Fourteenth Amendments because
the court sentenced him based on a “fraudulent narrative,” did not
consider his “character and rehabilitative potential,” and did not
find that he was “a risk to public safety.” (Because Florez-Molina
did not provide us with the transcript of the sentencing hearing, we
presume that the court’s findings and conclusions are correct and
that the evidence supports his sentence. People v. Tolbert, 216 P.3d
1, 3 (Colo. App. 2007).)
A. Applicable Law and Standard of Review
¶ 13 Crim. P. 35(b) permits a court to reconsider in a timely fashion
a previously imposed sentence “in light of all relevant and material
factors which may or may not have been initially considered by the
court and, in the exercise of sound judicial discretion, to resentence
the defendant to a lesser term within the statutory limits if
7
warranted in the interests of justice.” People v. Fuqua, 764 P.2d 56,
60 (Colo. 1988). “A court’s review of a Crim. P. 35(b) motion focuses
on the fairness of the sentence in light of the purposes of the
¶ 14 The decision whether to grant a motion for sentence
reconsideration under Crim. P. 35(b) is committed to the sound
discretion of the district court. See id. at 782 (“Crim. P. 35(b)
affords trial judges a large amount of discretion when considering
[a] defendant’s motion.”); Ghrist v. People, 897 P.2d 809, 814 (Colo.
1995). When adjudicating a Crim. P. 35(b) motion, the district
court must consider all relevant and material factors, including
“new evidence as well as facts known at the time” the court
pronounced the original sentence. People v. Busch, 835 P.2d 582,
583 (Colo. App. 1992).
¶ 15 “We review a ruling on a Crim. P. 35(b) motion for an abuse of
discretion.” People v. Chavez, 2020 COA 80M, ¶ 8, 486 P.3d 377,
378. A district court abused its discretion in denying a Crim. P.
35(b) motion only if it refused to consider any information in
mitigation and failed to make findings in support of its decision.
8
See Mikkleson v. People, 199 Colo. 319, 321, 618 P.2d 1101, 1102
(1980); People v. Olivas, 911 P.2d 675, 677 (Colo. App. 1995).
¶ 16 “When a defendant does not raise an issue in a postconviction
motion . . . , and the postconviction court therefore does not have
an opportunity to rule on the issue, as a general rule, the issue is
not properly preserved for appeal and we will not consider it.”
People v. Huggins, 2019 COA 116, ¶ 17, 463 P.3d 294, 297. But at
least one division of this court has applied the plain error standard
of review when considering a defendant’s unpreserved arguments
for a sentence reduction under Crim. P. 35(b). See People v.
Castellano, 209 P.3d 1208, 1209 (Colo. App. 2009). “The criteria of
error that is plain and that prejudiced substantial rights can be
used to evaluate an alleged sentencing error.” People v. Tillery, 231
P.3d 36, 48 (Colo. App. 2009) (citation omitted), aff’d sub nom.
People v. Simon, 266 P.3d 1099 (Colo. 2011).
B. The Court Did Not Violate Florez-Molina’s Right
Against Double Jeopardy Because His Convictions for
COCCA and Theft Did Not Merge
¶ 17 Florez-Molina’s first two arguments are essentially the same:
that the court erred by imposing consecutive sentences for his
COCCA and theft convictions because they were premised on the
9
same facts and, therefore, the court should have merged the
convictions.
¶ 18 We disagree with Florez-Molina’s contention that he preserved
his merger argument. Florez-Molina asserts that he was not
required to preserve the argument because the district court
“exceeded its jurisdiction” by denying his motion “in the absence of
Due Process of law.” But he fails to point to, and we are not aware
of, any authority holding that a district court loses subject matter
jurisdiction over a Crim. P. 35(b) motion if its ruling on that motion
allegedly violates the defendant’s right to due process. “[T]here is
no question that a trial court is authorized to hear postconviction
motions . . . .” People v. Stanley, 169 P.3d 258, 260 (Colo. App.
2007).
¶ 19 In any event, the court did not err when it imposed
consecutive sentences for Florez-Molina’s COCCA and theft
convictions. The General Assembly does not violate defendants’
double jeopardy rights by “specifying multiple punishments based
upon the same criminal conduct.” People v. Hoover, 165 P.3d 784,
798 (Colo. App. 2006). “As long as the general assembly makes
clear its intent to punish the same offense with more than one
10
conviction and sentence, it is not constitutionally prohibited from
2005)).
¶ 20 “[T]he General Assembly clearly authorized separate
punishments for COCCA and the underlying predicate offense[] of
theft . . . .” Id. at 801. For this reason, Florez-Molina’s sentence
also did not violate section 18-1-408, C.R.S. 2023, which prohibits
sentences for more than one offense under specified circumstances,
including when “[o]ne offense is included in the other.”
§ 18-1-408(1)(a).
¶ 21 Accordingly, we hold that the court did not violate
Florez-Molina’s due process rights or his constitutional protection
against double jeopardy by imposing the separate, consecutive
sentences.
C. The Court Did Not Err by Imposing Sentences
Within the Statutory Ranges for COCCA and Theft
¶ 22 Florez-Molina states that, because his counsel “raised a
constitutional challenge to his judgment,” his constitutional
challenge to the length of his sentences is preserved. But the
motion makes no reference to the constitutional prohibition against
11
cruel and unusual punishment. Thus, Florez-Molina did not
preserve his Eighth Amendment argument and we review for plain
error. We conclude there was no error.
¶ 23 The sentences on the COCCA and theft counts to which
Florez-Molina pleaded guilty were consistent with the presumptive
sentencing ranges specified in the agreement. As noted above, the
agreement stated that Florez-Molina’s COCCA conviction carries a
presumptive range of eight to twenty-four years in the custody of
the DOC, and that the theft conviction carries a presumptive range
of four to twelve years.
¶ 24 Florez-Molina’s admissions and other statements in the PSIR
established his key role in the burglary ring, contrary to his
argument that the court’s conclusion that he was “the principal
actor in this racketeering activity” is “belie[d] by the record.” In the
PSIR, Florez-Molina admitted that he “was involved in many home
invasion crimes in Colorado” and other jurisdictions, including
Wyoming, California, and Washington, D.C. He conceded that his
offenses impacted “a series of persons from the immigrant
community who suffered the consequences” of his actions.
12
¶ 25 The PSIR stated that one of Florez-Molina’s codefendants
explained that the group targeted “Chinese business owners”
because the group believed they “hid cash at their houses and don’t
trust banks.” The known losses from the burglaries was between
$1.3 million and $1.5 million.
¶ 26 According to the codefendant, each member of the group
“assumed specific roles and responsibilities during the burglaries”
and that Florez-Molina was one of the two individuals “who forced
entry into, and subsequently burglarized, the victims’ houses.”
Further, the codefendant described Florez-Molina as a “very
dangerous man with connections in Colombia,” who would kill the
codefendant and his family “if he found out” that the codefendant
“was implicating [him] in the burglaries.”
¶ 27 The record establishes that the court’s denial of the motion
rested on appropriate considerations. In sentencing a defendant, a
trial court “may properly consider . . . the circumstances giving rise
to other charges dismissed at the time of the plea as aggravating
factors.” People v. Zuniga, 80 P.3d 965, 972 (Colo. App. 2003). In
addition, the court possessed the discretion to rely on the
uncontroverted facts in the PSIR, even though Florez-Molina now
13
challenges them. See People v. Brosh, 251 P.3d 456, 460 (Colo.
App. 2010). Those uncontroverted facts painted a portrait of Florez-
Molina as a dangerous, key member of a group that targeted dozens
of members of a racial minority during a multi-state crime wave.
¶ 28 Contrary to Florez-Molina’s contention on appeal that he
merely “participated in a single act of theft,” and that such theft
was “isolated,” his plea to a single COCCA count and a single theft
count does not mean that the court was required to ignore the
multitude of other crimes with which Florez-Molina was charged.
¶ 29 Significantly, the court sentenced Florez-Molina within the
statutory ranges for the COCCA and theft counts to which he
pleaded guilty. Under the COCCA statute, he committed a class 2
felony, § 18-17-105(1), C.R.S. 2023, punishable by a term of
incarceration of between eight and twenty-four years,
§ 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2023 (setting forth the sentencing
ranges for class 2 felonies committed between July 1, 2018, and
June 30, 2020). The theft count to which Florez-Molina pleaded
guilty was a class 3 felony, § 18-4-401(1), (2)(i), C.R.S. 2023,
punishable by a sentence of between four and twelve years of
imprisonment, § 18-1.3-401(1)(a)(V)(A.1).
14
¶ 30 Insofar as Florez-Molina claims that his sentence was
disproportionate, such contention is preserved to the extent it
mirrors the argument in the motion that his sentence was longer
than those of the other codefendants, to whom he claims he is
similarly situated.
¶ 31 But Florez-Molina’s disproportionality argument on appeal is
premised on the incorrect assumption that theft of more than
$1 million is not a grave or serious offense for purposes of a
P.3d 415, 420 (“Knowingly obtaining, retaining, or exercising
control, through threats, over something worth $1,000,000 owned
or possessed by another, with the intent to deprive the other person
permanently of the use or benefit of it, belongs in the same category
as per se grave or serious crimes.”). “Once a crime has been
deemed per se grave or serious, courts skip the first subpart of step
one of an abbreviated proportionality review (gravity or seriousness)
and proceed directly to the second subpart of that step (harshness
of the penalty).” Wells-Yates v. People, 2019 CO 90M, ¶ 62, 454
P.3d 191, 208-09.
15
¶ 32 Florez-Molina’s sentence was not impermissibly harsh
because, as explained above, the facts he admitted and on which
the district court relied reflect the gravity and seriousness of his
crimes. See id. at ¶ 1, 454 P.3d at 195; see also People v.
Hernandez-Clavel, 186 P.3d 96, 98 (Colo. App. 2008) (“Colorado
courts are given wide discretion in determining an appropriate
sentence. This includes the discretion to consider a wide variety of
factors, including the circumstances of the offense, individual
characteristics of the offender, and prior conduct.”).
¶ 33 For these reasons, we hold that Florez-Molina’s sentence did
not amount to cruel and unusual punishment in violation of the
Eighth Amendment.
D. The Court Did Not Violate
Florez-Molina’s Due Process Rights Because
the Court Properly Considered the Relevant Facts
¶ 34 Lastly, Florez-Molina contends he was denied due process
because the court relied on “a distorted factual basis,” it
disregarded his “character and rehabilitative potential,” and the
consecutive sentences were not necessary to protect the public.
Because Florez-Molina did not raise these assertions in the motion,
they are not preserved and we review them for plain error. In any
16
event, the court’s denial of the motion rested on appropriate
considerations.
¶ 35 As we explain above, in adjudicating the motion, the court had
the discretion to rely on the uncontroverted facts in the PSIR, even
though Florez-Molina now challenges them. See Part II.C above.
Those facts demonstrate that the court did not rest its denial of the
motion on a “fraudulent narrative” that characterized Florez-Molina
as the kingpin of the burglary ring. Rather, the facts described in
the PSIR established that he was a key member of a criminal
enterprise that broke into and entered dozens of homes and stole
millions of dollars of valuables.
¶ 36 Further, in denying the motion, the court acknowledged that it
had considered the seriousness with which Florez-Molina “is taking
his time while incarcerated.” Lastly, Florez-Molina provides no
support for his contention that the court erred by not assessing
whether he was a “threat to the public safety.”
¶ 37 In sum, the court did not disregard any relevant facts in
denying the motion.
III. Disposition
¶ 38 The order is affirmed.
17
JUDGE SCHUTZ and JUDGE BERNARD concur.
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