Colorado’s second-highest court ruled last week that a Jefferson County judge subjected a man to a harsher sentence following a successful appeal because the parole eligibility date was pushed back by multiple years, but that fact alone did not mean the judge acted “vindictively.”

In 2015, the state Supreme Court noted that when a criminal defendant is granted a new sentencing on appeal and a judge imposes a more severe punishment than the original, there is a concern that the judge “may have sought to punish the defendant for appealing the original decision.” To prevent defendants from being deterred from appealing their sentences, the prosecution has the burden of showing the harsher sentence is justified.

A Jeffco jury convicted Thomas Rojas in 2019 of attempted murder and assault. The prosecution and defense told then-District Court Judge Dennis J. Hall that he could impose the sentences concurrently, but he did not believe he could. Because Hall thought he had to hand down consecutive sentences to Rojas, he looked at the “aggregate” punishment that would be appropriate.

He settled on a prison sentence of 32 years, with 18 years for attempted murder and 14 years for the assault.

In 2022, the Court of Appeals determined Hall was incorrect and Rojas’ sentences had to run concurrently. It returned the case for a resentencing with then-District Court Judge Robert C. Lochary.

Although the defense argued Lochary’s task on appeal was only to make the two sentences concurrent, Lochary believed he could resentence Rojas entirely, as long as he made the punishments concurrent.

He acknowledged the Supreme Court’s admonition against vindictive sentences, saying the logic “sure makes a lot of sense.” Lochary then imposed a 32-year sentence for each of Rojas’ two convictions, to be served simultaneously.

On appeal once again, Rojas argued the new sentence was vindictive because it was harsher than the original. A three-judge Court of Appeals panel partly agreed.

Writing in the Feb. 27 opinion, Judge David H. Yun noted the new 32-year concurrent sentences, while the same length on paper as his original 32-year consecutive sentences, were different in a key way.

Looking to Rojas’ parole eligibility date and the different thresholds for each offense, Rojas would have been eligible for parole after 19.5 years under the original decision. With both sentences now the same length — and with the assault conviction requiring more time served before parole eligibility — Rojas will now be eligible for parole after 24 years, an effective increase of 4.5 years.

Although no Colorado appellate decision had addressed whether such an increase could suggest “vindictiveness,” Yun noted other courts around the country found it could.

“We agree with this majority view,” he wrote.

Nonetheless, the panel did not believe Lochary’s sentencing was vindictive, as he did not have a “personal stake” in the original sentence. Moreover, Yun wrote, “the record shows that the resentencing judge was attempting to reimpose Rojas’s original aggregate prison term and, in doing so, did not consider the impact of the new sentences on Rojas’s parole eligibility.”

With no actual evidence of vindictiveness, the panel upheld Rojas’ new sentence.

The case is People v. Rojas.