Crim. P. 32

History

Source: (a)(2), (b) to (e), and (f)(2) amended and adopted September 7, 2006, effective January 1, 2007; (a)(1) amended and effective October 18, 2007; (f)(4) and (f)(5) amended and adopted December 14, 2011, effective July 1, 2012; (a), (b)(1), (b)(3), and (c) amended and (g) added and effective May 22, 2015; IP(c)(3), (c)(3)(I), (c)(3)(II) amended and (c)(3)(III) added, effective March 14, 2019. ANNOTATION I. General Consideration. II. Presentence or Probation Investigation. III. Sentence. IV. Judgment. V. Withdrawal of Plea of Guilty or Nolo Contendere. A. In General. B. Sentence Concessions. VI. Revocation of Probation. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Insanity and the Law’’, see 39 Dicta 325 (1962). For article, ‘‘Colorado Felony Sentencing’’, see 11 Colo. Law. 1478 (1982). For article, ‘‘Pronounce- ments of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986’’, which discusses a case relating to increased sentences after retrial, see 15 Colo. Law. 1604 (1986). This rule is not unconstitutional because notice of a right to review is given to criminal defendants except in cases where judgment of conviction has been entered following a plea of guilty or nolo contendere. The reasonableness of the classification of defendants who have entered guilty pleas has been upheld in cases dealing with the federal counterpart. People v. Smith, 190 Colo. 449, 548 P.2d 603 (1976). A violation of this rule does not entitle defendant to a late appeal in the absence of prejudice. In order for the defendant to bring a claim alleging he or she was deprived of the right to appeal because the court failed to com- ply with this rule, the defendant must bring a timely postconviction action under Crim. P. 35(c) and request a remedy of a new appeal. People v. Boespflug, 107 P.3d 1118 (Colo. App. 2004). Applied in McClendon v. People, 175 Colo. 451, 488 P.2d 556 (1971); People v. Banks, 190 Colo. 295, 545 P.2d 1356 (1976); People v. District Court, 191 Colo. 558, 554 P.2d 1105 (1976); People v. Houpe, 41 Colo. App. 253, 586 P.2d 241 (1978); People v. Palmer, 42 Colo. App. 460, 595 P.2d 1060 (1979); People v. Baca, 44 Colo. App. 167, 610 P.2d 1083 (1980); People v. Horton, 628 P.2d 117 (Colo. App. 1980); People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled on other grounds in People v. Porter, 2015 CO 34, 348 P.3d 922; People v. Lawson, 634 P.2d 1019 (Colo. App. 1981); Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984); People v. Anderson, 703 P.2d 650 (Colo. App. 1985). II. PRESENTENCE OR PROBATION INVESTIGATION. Even where evidence has been illegally seized, its use in a presentence hearing follow- ing a guilty plea is not error. V on Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). III. SENTENCE. Equal protection requirements. In the con- text of sentencing for criminal offenses, equal protection requires only that those who have committed the same offense shall be subject to the same criminal sanctions in effect at the time the offense was committed. People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974). Imposition of sentence requires judicial discretion. The imposition of a criminal sen- tence in each individual case requires the exer- cise of judicial judgment, and it includes con- sideration of mitigating and aggravating circumstances, the power to impose an indeter- minate sentence, and the right to suspend sen- tence, or the discretion to grant probation in appropriate cases. People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972). Which does not deny equal protection. The exercise of the judge’s discretionary power in sentencing does not deny an accused equal pro- tection of the law. People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972). Substance of American Bar Association standards deemed ‘‘authorized by law’’. The substance of the principles articulated in the American Bar Association Standards Relating to Sentencing Alternatives and Procedures § 3.5, insofar as they are consistent with the stated general purposes of the Colorado code of criminal procedure, may be deemed to be ‘‘au- thorized by law’’ within the meaning of section (b). People v. Lewis, 193 Colo. 203, 564 P.2d 111 (1977). Nothing requires court to assign reasons for imposing a sentence. People v. Pauldino, 187 Colo. 61, 528 P.2d 384 (1974). A sentencing court is required to state on the record the basic reasons for the imposi- tion of sentence. The failure to do so creates a burdensome obstacle to effective and meaning- ful appellate review. People v. Luu, 983 P.2d 15 (Colo. App. 1998). A judgment of conviction is not final until sentence is imposed. Absent a specific finding that the victim did not suffer a pecuniary loss, restitution is a mandatory part of a sentence. Thus, absent such a finding, sentencing is not final until restitution is ordered. People v. Rosales, 134 P.3d 429 (Colo. App. 2005). Discretion to impose concurrent or con- secutive sentence. A sentencing court has dis- cretion to impose a sentence to be served con- currently with or consecutively to a sentence already imposed upon the defendant. People v. Garcia, 658 P.2d 1383 (Colo. App. 1983); People v. Cullen, 695 P.2d 750 (Colo. App. 1984). Delaying final sentencing on non-capital convictions until after sentencing on class 1 felony is appropriate where a court must sen- tence both for a class 1 felony and for other felonies. People v. Davis, 794 P.2d 159 (Colo. 1990), cert. denied, 498 U.S. 1018, 111 S. Ct. 662, 112 L. Ed. 2d 656 (1991). Six-year delay between defendant’s con- viction and legal sentencing did not divest court of jurisdiction or cause unreasonable delay, where the sentence was promptly im- posed following defendant’s conviction, but subsequent appeal and the defendant’s election to invoke the discretionary procedure under the Sex Offender’s Act of 1968 delayed the pro- ceedings. People v. Wortham, 928 P.2d 771 (Colo. App. 1996). A six-month and seven-day sentencing de- lay is not presumptively prejudicial since it is substantially less than a year. The delay was not ‘‘unreasonable’’ under section (b) because the trial court imposed the delay for a legally justifiable reason, namely, to further the general assembly’s intent to require trial courts to sen- tence recidivist offenders within an aggravated range. Trial court’s sentencing delay did not violate defendant’s claimed constitutional right to speedy sentencing because defendant failed to demonstrate presumptive prejudice. People v. Sandoval-Candelaria, 2014 CO 21, 321 P.3d 487. Single sentence for more than one convic- tion does not constitute reversible error, al- though the preferable practice is to have a sepa- rate sentence for each conviction. People v. Pleasant, 182 Colo. 144, 511 P.2d 488 (1973). Reliance by court on probation report at time sentence imposed does not abuse the de- fendant’s rights. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). Judge may consider truthfulness of volun- tary statements. It is not a denial of due pro- cess for a judge, in connection with sentencing procedure, to consider the truthfulness of volun- tary statements made by the defendant at a presentence hearing. People v. Quarles, 182 Colo. 321, 512 P.2d 1240 (1973). Deferred prosecution is relevant consider- ation in determining the sentence. People v. Lichtenwalter, 184 Colo. 340, 520 P.2d 583 (1974). There is no difference between plea of nolo contendere and plea of guilty for sentencing purposes. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). There is no requirement that codefendants be given equal sentences. People v. Martin, 670 P.2d 22 (Colo. App. 1983). Sentencing court should tailor sentence to defendant, keeping in mind past record, poten- tial for rehabilitation, and protection of the pub- lic as well. People v. Alvarez, 187 Colo. 290, 530 P.2d 506 (1975). Sentencing court should attempt to tailor the sentence to the defendant. To achieve this goal, the court should be aware of defendant’s entire record including his past encounters with the criminal justice system. People v. Lichtenwalter, 184 Colo. 340, 520 P.2d 583 (1974). Defendant must be notified when sentence will be pronounced. He has a right to be pres- ent in the court with legal counsel at that time, and he has a right of allocution before sentence is handed down which cannot be withheld from him. The failure of the court to properly insure these rights of a defendant renders invalid a sentence pronounced under those circum- stances. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972). No right to evidentiary hearing. During a discretionary sentencing proceeding, rule does not require an evidentiary hearing on the valid- ity of any prior conviction contained in a presentence report. People v. Padilla, 907 P.2d 601 (Colo. 1995). Prior to sentencing, the court must grant the defendant an opportunity to make a statement on his or her own behalf. The proper remedy for failing to allow the defendant to make a statement is resentencing. People v. Marquantte, 923 P.2d 180 (Colo. App. 1995); People v. Smalley, 2015 COA 140, 369 P.3d 737. Failure to afford defendant an opportunity to speak amounts to plain error where a court does not directly address the defendant or personally invite him or her to speak. People v. Smalley, 2015 COA 140, 369 P.3d 737. The court’s inquiry whether ‘‘other people in the court’’ wanted to speak was clearly directed to the nonparties in attendance, not to the defen- dant. People v. Smalley, 2015 COA 140, 369 P.3d 737. Effect of denial of allocution limited. De- nial of the right of allocution under section (b) has no effect on the validity of the jury’s deter- mination of guilt. People v. Doyle, 193 Colo. 332, 565 P.2d 944 (1977). Relief from denial is resentencing. The de- fendant’s relief from a denial of the right of allocution under section (b) is resentencing after being afforded his right to allocution. People v. Doyle, 193 Colo. 332, 565 P.2d 944 (1977); People v. Smalley, 2015 COA 140, 369 P.3d 737. Where the presentence report is issued to counsel immediately prior to sentencing, and the trial court’s refusal to continue the sentenc- ing hearing to another day unduly abridges the defendant’s rights to present evidence in rebut- tal to the information and recommendations contained in the report, his sentence must be vacated and the case remanded for resentencing after a full sentencing hearing. People v. Wright, 672 P.2d 518 (Colo. 1983). However, the right of allocution is a statu- tory right, not a constitutional one, and re- versal is not required if the failure to provide the defendant an opportunity to make a statement prior to sentencing is harmless. If a trial court imposes the minimum sentence per- mitted and does not have discretion to impose a lesser sentence, the lack of statement in allocu- tion does not affect the sentence and is harm- less. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003). Evidence of gang affiliation is not per se inadmissible during sentencing if it is related to the nature of the offense and the defendant’s character, not merely the defendant’s abstract beliefs. People v. Tresco, 2019 COA 61, 457 P.3d 112. Sentencing must occur without unreason- able delay. Although the general assembly has prescribed no specific time within which sen- tence must be imposed, section (b) requires that sentencing occur without unreasonable delay. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981). Although sentencing was delayed for eight years, delay was excusable because the majority of it was attributable to defendant’s own ac- tions. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). Although resentencing was delayed for 29 months, delay was excusable because of the timely imposition of defendant’s original sen- tence, the substantial reduction of the original sentence upon resentencing, the consequent lack of prejudice resulting from the sentence imposed on remand, and the fact that all of the period of delay would be credited against the present sentence. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Despite six-year delay, state had no duty to set defendant’s probation revocation hearing until after termination of defendant’s incarcera- tion in another jurisdiction. People v. Smith, 183 P.3d 726 (Colo. App. 2008). One-year deferral of sentence imposition is unreasonable delay. Absent a legally justifiable reason, a one-year deferral of imposition of sentence constitutes an unreasonable delay in sentencing contrary to section (b). People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981). Sentence imposed within statutory limits will not be disturbed. Ordinarily if a sentence imposed is within limits fixed by statute, it will not be disturbed on review. People v. Lutz, 183 Colo. 312, 516 P.2d 1132 (1973). Choice of place of confinement is within the sound discretion of the court. People v. Weihs, 187 Colo. 124, 529 P.2d 317 (1974). Length of term of imprisonment is within the discretion of the court. People v. Weihs, 187 Colo. 124, 529 P.2d 317 (1974). Sentencing judge is empowered to set the minimum sentence. Guerin v. Fullerton, 154 Colo. 142, 389 P.2d 84 (1964). Parole board has no authority to refuse to carry out the plain meaning of a sentence le- gally imposed by the sentencing judge. Guerin v. Fullerton, 154 Colo. 142, 389 P.2d 84 (1964). There is no constitutional right to credit of presentence jail time against sentence im- posed. People v. Coy, 181 Colo. 393, 509 P.2d 1239 (1973); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973). Presumption that court gave credit for presentence confinement. It will be conclu- sively presumed that the trial court gave credit for presentence time spent in confinement where the sentence imposed plus the prior time in confinement do not exceed the maximum possible sentence. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972). Or otherwise acted properly. Where sen- tencing judge states only that he is taking time spent in jail prior to sentencing into consider- ation and thereafter gives the maximum, it must be presumed that he acted properly; that is, that he took the time spent into consideration and determined, as he had the right to do, not to grant the credit. People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973). But ‘‘giving credit’’ without applying it to sentence improper. Where the trial court in sentencing gives credit to the defendant for his presentence jail time but does not apply it to the maximum sentence, the court is, in fact, extend- ing the sentence beyond the statutory limits. People v. Regan, 176 Colo. 59, 489 P.2d 194 (1971). Credit should be reflected in record. Trial judges would be well advised to follow the practice of causing the actual time spent by the defendant in jail prior to the imposition of sen- tence to be reflected in the record at the time sentence is imposed. People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971). Cancellation of deferred sentence does not affect conviction. Where the trial court with- drew or cancelled the imposition of the deferred sentence, its order affected only the sentence, and did not touch the conviction. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980). Defendant’s absence from the state was by virtue of his own conduct and was justifiable reason for delay in sentencing. Defendant was incarcerated in another state for a probation violation. People v. Gould, 844 P.2d 1273 (Colo. App. 1992). Two-and-one-half month delay in sentenc- ing following defendant’s return to state was not unreasonable. People v. Gould, 844 P.2d 1273 (Colo. App. 1992). IV. JUDGMENT. Intent of section (c). The intent behind sec- tion (c) is to establish some minimum guarantee that knowledge of the appellate process will be conveyed to defendants. People v. Boivin, 632 P.2d 1038 (Colo. App. 1981). Burden to show that defendant was ad- vised of appellate rights. Once there is suffi- cient reason to believe that the trial court has not advised a defendant of his appellate rights, including the special rights of an indigent de- fendant, the burden falls upon the state to dem- onstrate that he was so advised. People v. Boivin, 632 P.2d 1038 (Colo. App. 1981). No ‘‘finality’’ standard for double jeop- ardy purposes. Section (c) does not provide a standard of ‘‘finality’’ for purposes of the con- stitutional prohibition against being twice placed in jeopardy for the same offense. People v. District Court, 663 P.2d 616 (Colo. 1983). For purposes of retroactive application of a new rule of law, a judgment of conviction in Colorado cannot be considered final so long as a defendant may directly appeal the conviction or sentence. People v. Sharp, 143 P.3d 1047 (Colo. App. 2005). Oral order does not become final judg- ment until order signed and entered in the judgment record. People v. Ganatta, 638 P.2d 268 (Colo. 1981). When judgment final for purposes of ap- peal. The final judgment was entered, for pur- poses of appeal, when trial court reversed its previous order imposing costs on the defendant, and therefore state’s appeal, taken more than 30 days after sentencing was proper. People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975). For purposes of § 16-5-402 and post-con- viction review, a conviction occurs when the trial court enters judgment and sentence is im- posed, if there is no appeal. The limitations of § 16-5-402 are applicable to a proportionality review of a sentence imposed pursuant to the habitual criminal statutes. People v. Talley, 934 P.2d 859 (Colo. App. 1996). Judgment in a criminal case is not final until after sentencing. Hellman v. Rhodes, 741 P.2d 1258 (Colo. 1987). An order of restitution becomes part of the sentence which, in accordance with section (c) of this rule, is part of the judgment of convic- tion. 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 con- viction 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). Restitution component satisfied once or- dered, even though specific amount not set until two years after sentence imposed. Once restitution ordered, although not set, judgment of conviction became final and appealable, even though district court retained jurisdiction to de- termine restitution amount. Sanoff v. People, 187 P.3d 576 (Colo. 2008). After the criminal court has lost the power to order restitution, it cannot alter the spe- cific amount set while it still maintained the power to do so. In the absence of statutory authorization to determine the specific amount of restitution, notwithstanding a judgment of conviction as defined by section (b)(3), the sen- tencing court lacks the power to increase resti- tution beyond the previously set amount. Meza v. People, 2018 CO 23, 415 P.3d 303; People v. Belibi, 2018 CO 24, 415 P.3d 301. Post-final judgment orders void when court denied defendant’s motion for new trial and imposed valid sentence. People v. Camp- bell, 738 P.2d 1179 (Colo. 1987). Constitutionality of imposing liability for costs. Statutes imposing liability for costs on a convicted defendant have been uniformly held to be constitutional. People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975). For effect of rule on habitual criminal act, see Swift v. People, 174 Colo. 259, 488 P.2d 80 (1971). V. WITHDRA W AL OF PLEA OF GUILTY OR NOLO CONTENDERE. A. In General. There is no ambiguity in this rule. Glaser v. People, 155 Colo. 504, 395 P.2d 461 (1964). No right to withdraw guilty plea. One may not, as a matter of right, have his plea of guilty withdrawn or changed. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); McConnell v. People, 157 Colo. 235, 402 P.2d 75 (1965). Defendant does not have an absolute right to withdraw his guilty plea at any time before the court imposes sentence. People v. Riley, 187 Colo. 262, 529 P.2d 1312 (1975). Defendant not permitted to withdraw plea of nolo contendere. Defendant’s assertion of innocence at the time his plea of nolo contendere was entered does not force the court to permit him to withdraw his plea of nolo contendere. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). Section (d) does not apply to request to withdraw plea of not guilty by reason of in- sanity. Section (d) plainly states that only a guilty plea and a nolo contendere plea can be withdrawn. People v. Laeke, 2018 COA 78, 431 P.3d 667. Withdrawal of plea with court’s discre- tion. An application for the withdrawal or change of such plea is addressed to the discre- tion of the trial court. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); Bradley v. People, 175 Colo. 146, 485 P.2d 875 (1971). And court’s ruling on such an application will not be reversed, except where there is a clear abuse of discretion. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); Bradley v. People, 175 Colo. 146, 485 P.2d 875 (1971); People v. Miller, 685 P.2d 233 (Colo. App. 1984). Showing required to permit change of plea. To warrant the exercise of discretion fa- vorable to a defendant concerning a change of plea, there must be some showing that justice will be subverted by a denial thereof, such as where a defendant may have been surprised or influenced into a plea of guilty when he had a defense, or where a plea of guilty was entered by mistake or under a misconception of the nature of the charge, or where such plea was entered through fear, fraud, or official misrepre- sentation, or where it was made involuntarily for some reason. Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964); Crumb v. People, 230 P.3d 726 (Colo. 2010). Defendant is entitled to withdraw plea of guilty where, at time plea was entered, nei- ther court nor counsel was aware of defen- dant’s parole status so defendant was improp- erly advised as to the minimum sentence, and where defendant promptly moved to withdraw guilty plea when parole status became known. People v. Chippewa, 751 P. 607 (Colo. 1988). Court should not consider sentence it in- tends to impose as a reason for denying mo- tion to withdraw a guilty plea where plea was entered when neither court nor counsel was aware of defendant’s parole status so that de- fendant was improperly advised as to minimum sentence. People v. Chippewa, 751 P.2d 607 (Colo. 1988). Defendant’s motion to withdraw guilty plea must be granted where trial judge par- ticipated in plea negotiations. Because trial judge stepped out of his role as a neutral and impartial arbiter of justice by advising defen- dant and making other inappropriate remarks to influence defendant to agree to plea bargain, defendant has a fair and just reason to withdraw his plea. Crumb v. People, 230 P.3d 726 (Colo. 2010). Defendant was entitled to a hearing on motion to withdraw guilty plea where court understated minimum sentence that could be imposed and defendant’s plea agreement was not in evidence. On remand, defendant must establish that his asserted belief that he would receive a sentence below the minimum sentence stated by the court was objectively reasonable. People v. Hodge, 205 P.3d 481 (Colo. App. 2008). Right to allocution not denied where exten- sive pretrial inquiry did not support defendant’s last minute assertion of inability to speak in English at sentencing hearing. People v. Garcia, 752 P.2d 570 (Colo. 1988). When a defendant enters a plea agreement that includes a recommendation for a particular sentence, the fact that the sentence is rejected by the court removes the basis upon which the defendant entered his guilty plea and draws into question the voluntariness of the plea. Chae v. People, 780 P.2d 481 (Colo. 1989). Case must be remanded to allow defen- dant the opportunity to affirm or withdraw his guilty plea where the trial court’s rejection of the sentence recommendation contained in the plea agreement calls into question the voluntariness of that plea and the defendant had no opportunity to affirm or withdraw that plea. People v. Walker, 46 P.3d 495 (Colo. App. 2002). When a defendant enters into a plea agree- ment that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defen- dant entered the plea included the impermis- sible inducement of an illegal sentence. Chae v. People, 780 P.2d 481 (Colo. 1989). Where there is a valid plea agreement but an illegal sentence imposed to enforce the valid and legal plea, the proper remedy is to modify the sentence to effect the intent of the plea agreement. People v. Antonio-Antimo, 29 P.3d 298 (Colo. 2000). It is not an abuse of the court’s discretion to deny a motion pursuant to this rule even though the defendant is influenced by alcohol at the time of entry of a plea of guilty if the court finds that the defendant still has the mental capacity to understand the entry of a plea of guilty. People v. Lewis, 849 P.2d 855 (Colo. App. 1992). For a court to permit a defendant to with- draw his or her plea, there must be a fair and just reason. In this case, defendant’s allegation of sentence misapprehension was contradicted by the record and the testimony of counsel, so there was no abuse of discretion in prohibiting defendant from withdrawing his plea. People v. Allen, 310 P.3d 83 (Colo. App. 2010), aff’d, 2013 CO 44, 307 P.3d 1102. A claim of ineffective assistance of counsel that is conclusory or contradicted by the re- cord is not a fair and just reason for with- drawing a guilty plea. People v. Lopez, 12 P.3d 869 (Colo. App. 2000). Fair and just reason for withdrawal of guilty plea is established where, immediately upon learning of the potential deportation con- sequences, the defendant filed a motion to with- draw his guilty plea before sentencing and where prosecution did not allege any prejudice arising from the withdrawal. People v. Luna, 852 P.2d 1326 (Colo. App. 1993). Defendant’s motion to withdraw his guilty plea prior to sentencing without a hearing was duly denied, where defendant’s expecta- tion of a deferred sentence and judgment was merely a ‘‘wish and hope’’ that his counsel was unable to effectuate. People v. DiGuglielmo, 33 P.3d 1248 (Colo. App. 2001). Defendant’s postconviction motion based on the voluntariness of his guilty plea as it related to the quality of his counsel was properly denied as successive under Crim. P. 35(c)(3)(VII), where lengthy evidentiary hear- ing was held on defendant’s motion under sec- tion (d) of this rule, claiming that his plea was not knowing, voluntary, and intelligent due to ineffective assistance of counsel. People v. V ondra, 240 P.3d 493 (Colo. App. 2010). Court lacks jurisdiction to award relief under section (d) where a defendant has completed his deferred sentence and the withdrawal of his guilty plea has already been granted. This rule does not contemplate relief in a case in which a deferred judgment has been successfully completed. People v. Espino-Paez, 2014 COA 126M, 410 P.3d 548, aff’d, 2017 CO 61, 395 P.3d 786. Magistrate has jurisdiction over juvenile’s Crim. P. 32(d) motion to withdraw previ- ously entered guilty plea until the proceed- ings have culminated in a final order or judg- ment. Juvenile sought to withdraw guilty plea based on ineffective assistance of counsel in delinquency action subject to deferred adjudica- tion prior to the imposition of sentence. A mag- istrate is not prohibited from reviewing prior rulings, decrees, or other decisions in a case the magistrate is properly appointed to hear until there is a final appealable order or judgment. A guilty plea, prior to sentencing and entry of a judgment or conviction, does not constitute a final judgment or order. People in Interest of J.D., 2020 CO 48, 464 P.3d 785. The plain terms of section (d) require a plea to exist in order for it to be withdrawn. When defendant successfully completed a de- ferred judgment, defendant’s plea was with- drawn and the charge was dismissed with preju- dice pursuant to § 18-1.3-102 (2). Because defendant’s plea had already been withdrawn and the case dismissed, there was no plea to be withdrawn. People v. Corrales-Castro, 2017 CO 60, 395 P.3d 778; Espino-Paez v. People, 2017 CO 61, 395 P.3d 786; Zafiro-Guillen v. People, 2017 CO 62, 395 P.3d 781; People v. Roman, 2017 CO 63, 395 P.3d 799. Because a guilty plea taken pursuant to a stipulation to defer judgment and sentence does not become a final, appealable judg- ment until the judgment of conviction enters, defendant was without any immediate right to appeal the denial of his motion to withdraw guilty plea under subsection (d). People v. Figueroa-Lemus, 2020 CO 59, 465 P.3d 565. B. Sentence Concessions. Section (e) of this rule implements § 16-7- 302 (2). People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). Rule not limited to court-approved conces- sions. This rule, by its terms, is not limited to those situations where the court has first con- curred in, or approved of, the sentence conces- sions. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). A sentence recommendation is a sentence concession whether or not the court approves or concurs. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). It is true that the district attorney has no authority to determine the sentence. However, sentence concessions must be equated with sen- tence recommendations; to hold otherwise would render the reference to sentence conces- sions in section (e) meaningless. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). The district attorney’s agreement to recom- mend probation was a sentence concession con- templated by the plea agreement. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). But not all sentence concessions by the pros- ecution are sentence recommendations. People v. Dawson, 89 P.3d 447 (Colo. App. 2003). ‘‘Sentence concessions’’ must refer only to the prosecution’s making or not opposing fa- vorable recommendations due to specific ref- erence to Crim. P. 11(f). Prosecutor’s agree- ment not to seek a sentence in the aggravated range does not constitute a sentence concession. People v. Dawson, 89 P.3d 447 (Colo. App. 2003). Court must comply with section (e). Merely informing the defendant, pursuant to Crim. P. 11(b)(5) that the court will not be bound by any recommendation or representa- tion by anyone concerning sentencing or proba- tion does not obviate the necessity of its com- plying with section (e). People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). Court is not bound by a recommendation; in its discretion it may refuse to grant the dis- trict attorney’s sentence concession. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). When plea bargain rejected, plea is not voluntary. When the trial judge rejects the plea bargain he removes it as the basis for the sen- tence. When this occurs, the plea can hardly be characterized as voluntary. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff’d, 194 Colo. 448, 573 P.2d 551 (1978). And defendant may withdraw plea. A de- fendant is permitted to withdraw his guilty plea where the trial court chooses not to follow the prosecutor’s sentence recommendation, regard- less of whether the prosecution has promised that the court will follow the recommendation. People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978). VI. REVOCATION OF PROBATION. Power to alter sentence at time of revoca- tion of probation is explicitly recognized in subsection (f)(5) of this rule, Crim. P. 35(a), and § 16-11-206 (5). People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977). Review of probation revocation order. Pro- bation revocation orders are not reviewable only via Crim. P. 35, but may be reviewed by direct appeal. People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974). Issue preclusion does not apply to bar the right of a defendant to a trial where defendant had been charged with the crime of driving with a revoked license, which constituted both a vio- lation of his probation and a new criminal act. Defendant did not have a full and fair opportu- nity to litigate the issue in the probation revo- cation hearing. A determination of guilt or inno- cence in a probation revocation hearing would undermine the function of the criminal trial pro- cess. Byrd v. People, 58 P.3d 50 (Colo. 2002). Probation revocation hearings are held for different purposes, governed by different proce- dures, and do not protect a defendant’s rights as does a criminal trial. Byrd v. People, 58 P.3d 50 (Colo. 2002).