A Cortez man sentenced to drug rehab and probation on Feb. 1 for selling a small amount of speed was re-sentenced to four years in prison Thursday after District Judge Sharon Hansen found the original sentence to be illegal.

Tony Valdez Lobato, 47, had been doing well during his four-week stint in a Grand Junction drug program before being brought back to Montezuma County last month, Public Defender Pam Brown argued during the resentencing, and should be given another chance to continue his rehabilitation.

Brown pointed out that Lobato had recently been accepted at Hilltop House, a community corrections facility in Durango, in lieu of prison if Hansen would agree to re-sentence him there.

"The court found it appropriate to trust him and see how he’d do the program," she said. "(A sentence to Hilltop House) would be a way of doing what the court originally did in a different fashion."

Brown asked Hansen what had changed in the past two months that would merit imposing the suspended prison sentence.

"The court has no reason to second-guess itself," she said. "The original sentence took his past into account. Prison was not an appropriate sentence (in February) —it never was and still is not."

However, Lobato had had a previous felony conviction within a 10-year period, and state law forbids suspending a prison sentence under those circumstances unless the district attorney specifically recommends this provision be waived.

During a jury trial last fall, Lobato was found guilty on two counts of distributing a controlled substance — methamphetamine — to a police informant in November, 1998, after an earlier attempt to convict him ended in a mistrial. The informant testified that Lobato had sold him two half-grams of speed for $50 each while he was under police surveillance.

Against the recommendations of Deputy District Attorney Caty Cabot and the probation office’s pre-sentencing report, Hansen suspended the four-year prison sentence she’d imposed at the first sentencing hearing on the condition Lobato enter and complete a Salvation Army drug-rehabilitation program in Grand Junction, adhere to strict conditions during his probation period and pay fines and fees of nearly $7,000.

However, Hansen ruled four weeks later that Lobato was ineligible for a suspended sentence because he’d had a previous conviction for attempted burglary in 1993 and ordered him returned to Montezuma County for re-sentencing.

"The court finds that such sentence was not a legal sentence," she wrote in her ruling, even though "neither the District Attorney nor the Public Defender at the time of sentencing indicated any problem to the Court."

District Attorney Mike Green argued Thursday for imposition of the four-year sentence, maintaining that Lobato’s history of drug involvment made him a danger to the community and that his past denials of any wrongdoing made him a poor candidate for less severe remedies.

"Mr. Lobato is always innocent, always framed and never did what he’s been convicted of," Green said. "He needs the message that the Department of Corrections would send out."

Lobato, who has remained in the Montezuma County Jail since early March, made a personal plea to Hansen to give him another chance short of prison.

"I know I’ve messed up in the past," he said, "and I’m willing to do all I can to straighten my life out."

But Hansen told Lobato that while she appreciated his efforts, she didn’t want him living so close to Cortez.