Robert A. LOPEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 04SC150
Supreme Court of Colorado, En Banc.
May 23, 2005.
As Modified on Denial of Rehearing June 27, 2005.
113 P.3d 713
* Justice KOURLIS, Justice RICE and Justice COATS would grant the Petition.
Our holding, however, must not be misconstrued to abrogate the requirements of
B.
Applying the aforementioned principles to the facts before us, we conclude that Peterson‘s failure to file a notice of appeal in the county court did not preclude the district court from exercising jurisdiction. Peterson satisfied the notice requirements of
III. Conclusion
We hold that filing a notice of appeal in the county court is not a jurisdictional requirement of
David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Andrea Manning, Deputy State Public Defender, Denver, for Petitioner.
John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, for Respondent.
Justice COATS concurs in the judgment only, and Justice KOURLIS and Justice RICE join in the concurrence.
HOBBS, Justice.
We review the conviction in this case because Lopez‘s case was pending on direct appeal when Blakely was announced and he is therefore entitled to its retroactive application. See United States v. Booker, — U.S. —, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005) (applying its Sixth Amendment and remedial holdings based on Apprendi and Blakely to all cases on direct review; quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ([A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.)). We reject Lopez‘s contention that his aggravated sentence under section
We expect that our holding today, implementing the Supreme Court‘s Blakely decision, will apply only to a limited number of cases. First, it will apply retroactively only to cases pending on appeal. Second, in the future, the legislature may enact a statute that responds to the United States Supreme Court‘s holdings in Apprendi, Blakely, and Booker by adopting a statute that does not place the trial court into the position of finding facts in order to aggravate sentences. Third, under the current statute, prosecutors arranging plea agreements, or trial courts considering guilty pleas, can insist that defendants admit to those facts potentially needed for aggravated sentencing. Fourth, the jury can be asked by interrogatory to determine facts potentially needed for aggravated sentencing. Fifth, and most important to the case before us, the full range of mitigated, presumptive and aggravated sentencing remains available under the statute if based on constitutionally-permissible facts, in accordance with Blakely.
Section
The trial court based Lopez‘s aggravated sentence in part on the prior conviction facts in the jury‘s vehicular homicide verdict. Because Lopez‘s sentence was aggravated on the basis of these facts, we affirm the court of appeals’ judgment but on grounds that are different from those expressed in that court‘s opinion. Accordingly, we uphold Lopez‘s sentence.
I.
Robert Lopez was arrested on October 3, 2000 and charged with possession of a schedule II controlled substance, cocaine (possession). See
Lopez entered a plea agreement with the prosecution in which he pled guilty to possession and received a deferral of his judgment and sentence for two years. Lopez initialed plea documents that listed his presumptive range sentence as two to six years plus three years of mandatory parole, and listed his minimum sentence as one year and his maximum sentence as twelve years. This minimum and maximum reflect the trial judge‘s discretion to decrease or increase the felony sentence beyond the presumptive range based on the presence of extraordinary mitigating or aggravating circumstances under section
In his Motion and Stipulation for Supervised Deferred Judgment and Sentence, Lopez stated that he was aware of the following conditions to his deferral:
3.(a) the defendant shall not commit any criminal offense against the United States of America, the State of Colorado or any other jurisdiction;
....
(d) the defendant shall refrain from use of alcohol, and any unlawful use or possession of controlled substances or have any other dangerous or abusable drug without a prescription;
....
(g) the defendant shall satisfy any other conditions reasonably related to his/her rehabilitation and the purpose of this supervisory period, as ordered by the Court;
....
5. The District Attorney may make application for entry of judgment and imposition of sentence at any time within the term of the deferred judgment ... upon a breach by the defendant of any of the conditions set forth in this stipulation....
Lopez signed a written Crim. P. 11 advisement that included the following paragraph:
I know that if I plead guilty to a felony, I may be sentenced to the custody of the Department of Corrections.... I know that if the judge found extraordinary or sentence-enhancing circumstances in my case, I could be sentenced to any term from the minimum to the maximum.... I also know that if the judge does not find extraordinary or sentence-enhancing circumstances, I would be sentenced to a definite term within the presumptive range for each offense.
The factual basis for Lopez‘s plea agreement was the probable cause affidavit and the supplemental presentence report. Neither of these documents is in the record, nor does the record indicate whether Lopez admitted to the facts contained in these documents. At the hearing on his plea agreement, the judge asked how Lopez wanted to plead to unlawfully, feloniously, and knowingly possess[ing] a Schedule Two controlled substance, to wit cocaine, and Lopez answered [g]uilty.
Lopez‘s deferral period began December 12, 2000. The district court judge told Lopez that I think you need an inpatient [drug] program at the moment. But if you can demonstrate to me that ... your [urine analysis tests (UAs)] are going to be clean, I won‘t send you there. Lopez was assigned to supervision during his deferral period.
Lopez also appeared before the drug court. The magistrate stated that a place in the inpatient drug treatment would be reserved for Lopez in the event that his UAs were not clean. The magistrate gave Lopez his oral plea advisement and accepted the plea agreement.
The record indicates that Lopez returned more than one positive, or hot, UA during the deferral period. The record also indicates that Lopez was enrolled in the drug court inpatient treatment program for approximately three months after these hot UAs, but was dismissed from treatment as unsuccessful.
On March 4, 2001, Lopez was arrested for driving his car into another passenger vehicle and killing the driver, Sally Tinoco. Lopez had been drinking. Lopez pled not guilty to all the charges for the vehicular offense and was tried to a jury.
The jury returned verdicts of guilty for: Vehicular Homicide—Reckless Driving, see
At the sentencing hearing, the court stated that it had reviewed several documents: a report from the Community Corrections Board rejecting Lopez from consideration for parole; an information sheet from the probation office[;] a presentence report[;] a variety of letters[;] and both the vehicular homicide file and the file from drug court.
Defense counsel offered mitigating evidence, including facts relating to Lopez‘s work history and his lack of prior convictions. The prosecutor introduced aggravating evidence, consisting of testimony by Mrs. Tinoco‘s family members and evidence of Lopez‘s drug treatment failures during his deferral period and his history of driving and drug problems.
The trial court engaged in a lengthy discussion on the record before imposing sentences. First, the court examined the history of the drug court and its purposes. The court stated that the purpose of [the drug court and its treatment options] is to take a person who may have an addiction problem, treat that problem and resolve it and that this effort on the part of the Court was rejected by Mr. Lopez in a most serious and tragic way.
Next, the court found a relationship between the original drug possession charge and the vehicular homicide incident involving alcohol, suggesting a pattern of conduct: Mr. Lopez, while under a deferred judgment, while having failed at treatment [for one drug problem], then uses controlled substances—alcohol.... And then he chooses to violate another one of our statutes, which is driving while under the influence of alcohol, and driving with an excessive amount of alcohol.
Third, the court expressed apparent regret that Mr. Lopez was not charged with murder, suggesting that the available sentences for vehicular homicide were not sufficiently lengthy in light of the nature of the crime. The court noted that [y]ou get drunk and you aim a vehicle at the world. That, by the way, ... is Murder One under extreme indifference.
The court then stated that it would aggravate the sentence for the vehicular homicide. The court noted that the presumptive range for the class four felony is two to six years and that the range can be doubled upon a finding of extraordinary circumstances. See
The court then turned to the sentencing for the possession charge. The court considered the following factors. First, the court found that we clearly have had [backsliding]. We‘ve had a hot UA for marijuana, hot UA for cocaine, and then we had a jury finding of driving with excessive alcohol content and [a] jury finding of vehicular homicide. Second, the court stated in one of the reports [from the various agencies involved] it says, The defendant scored a 9 on his ASUVS Driving Risk Profile, which indicates a high risk for driving. Third, the court found that the same report indicates the history of drug and alcohol involvement, which goes back to the age of 12, as near as the Court can find. Fourth, the court emphasized that [t]he Court tried to help [Lopez] with the problems. The Court tried to help the community with the problems. And in exchange for that, we have a member of the community who is now deceased. Fifth, the court opined that Mrs. Tinoco‘s death was the death of a very important person in the community.
The court found that People v. Allen, 973 P.2d 620 (Colo.1999) (Allen I), provided the authority to aggravate the possession sentence without additional advisements or procedural requirements. The court concluded:
Therefore, I find aggravation to be the same aggravation; that is to say, driving with the excessive amount of alcohol, killing another person in a vehicular homicide incident, plus the failures at the treatment program, the hot UAs that had been given before the incident which underlies this action, so I‘m finding additional grounds for a possession charge.
Based upon that, it is the judgment and sentence of this Court, that in the ... vehicular homicide [case], having found aggravation, that the defendant be sentenced to the Department of Corrections for a period of 12 years.
Based upon the plea that was entered in the [possession case], and based upon the aggravators that the Court has found here, the Court orders that the defendant be sentenced for the possession of cocaine to the Department of Corrections for the period of 12 years.
The Court orders that the two sentences be served consecutively.
Lopez appealed his twelve-year possession sentence. People v. Lopez, 97 P.3d 223 (Colo.App.2004). The court of appeals first found that the sentence did not violate double jeopardy principles because sentencing for deferred judgment violations does not impose a new sentence. The court then found that the trial court has authority under section
We granted certiorari and now affirm the court of appeals’ judgment on other grounds, thus upholding the sentence in this case.
II.
We reject Lopez‘s contention that his aggravated sentence under section
Section
The trial court based Lopez‘s aggravated sentence in part on the prior conviction facts of the jury vehicular homicide verdict. Because Lopez‘s sentence was aggravated on the basis of these facts, we affirm the court of appeals’ judgment but on grounds that are different from those expressed in the court‘s opinion. Accordingly, we uphold Lopez‘s sentence.
A. Standard of Review
A trial court has broad discretion over sentencing decisions, and will not be overturned absent a clear abuse of that discretion. See People v. Watkins, 684 P.2d 234, 239 (Colo.1984). However, reviewing courts must pay particular attention to lower courts’ applications of legal standards to the facts when defendants’ constitutional rights are at stake. People v. Al-Yousif, 49 P.3d 1165, 1169 (Colo.2002) ([A]ppellate courts have an enhanced role in examining a trial court‘s application of law to fact, particularly in the arena of constitutional rights.). Therefore, review of constitutional challenges to sentencing determinations is de novo. People v. Matheny, 46 P.3d 453, 462 (Colo.2002) (holding that law application, which involves the application of the controlling legal standard to the facts established by the evidence and found by the trial court is a matter for de novo appellate review ... where constitutional rights are concerned).
B. The Rule of Apprendi and Blakely
The United States Supreme Court holds that, except for the fact of a prior conviction, facts supporting the increase of a sentence beyond the statutory maximum must be admitted by the defendant or tried to a jury and proved beyond a reasonable
In Apprendi, the Court considered portions of New Jersey‘s sentencing statute. 530 U.S. at 468-69. The defendant fired several shots into the home of an African-American family that had recently moved into a predominantly white neighborhood in Vineland, New Jersey. He pled guilty to two counts of second-degree possession of a firearm for an unlawful purpose, which is a second-degree offense, as well as one count of unlawful possession of an antipersonnel bomb. The statutory penalty for a second-degree offense in New Jersey is five to ten years.6
A separate criminal statute, the hate crime law, provides for an extended term of imprisonment. The extended term can be
Based on testimony at a bench hearing on the issue of intent, the trial judge found by a preponderance of the evidence that the defendant had a racial intimidation purpose and therefore imposed an extended sentence of twelve years under the hate crime statute.
The New Jersey Supreme Court found aggravated sentencing under the hate crime law valid, holding that the Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor. State v. Apprendi, 159 N.J. 7, 731 A.2d 485, 494-95 (1999).
On appeal, the United States Supreme Court found that the hate crime sentence enhancement functioned as an element of a greater offense rather than a traditional factor used in sentencing determinations. Apprendi, 530 U.S. at 476. Thus, the Court found that the defendant was exposed to certain pains under the possession of a firearm statute and additional pains under the hate crime law. Id. The Court found that the jury trial right and the reasonable doubt standard must apply to facts underlying any potential penalty. Id.
The Court stated its holding thus: [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490. In determining which facts must be tried to the jury, the relevant inquiry is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict? Id. at 494.
The Court was careful to state that the ruling does not remove all discretion from sentencing judges:
nothing in this history [of sentencing procedures] suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.
Id. at 481 (emphasis in original).
In Blakely, the Supreme Court applied the rule of Apprendi to Washington‘s sentencing scheme. 542 U.S. 296. Blakely focused particularly on two lingering issues: (1) the definition of the statutory maximum sentence to which a defendant is exposed by a jury verdict or guilty plea; and (2) the distinction between elements of an offense, which must be tried to a jury, and sentencing factors, which need not be.
The defendant in Blakely kidnapped his wife at gun point, bound her and put her in his truck, and drove from Washington to Montana. The defendant pled guilty to second-degree kidnapping involving domestic violence and use of a firearm. He did not admit to other relevant facts.
In Washington, second-degree kidnapping is a class B felony. The statute provides that no person convicted of a class B felony can be sentenced to a term greater than ten years. The state‘s Sentencing Reform Act (Act) provides for standard range sentences that are determined by matching a score for the nature of the offender and a score for the nature of the offense and finding the intersecting slot on a matrix. See Blakely, 124 S.Ct. at 2535. A standard range sentence for second-degree kidnapping with a firearm is between forty-nine and fifty-three months. Id.
Under the Act, a judge can impose a sentence above the standard range if he finds substantial and compelling reasons to do
The trial judge imposed an extraordinary sentence on Blakely in part because he found, after a bench hearing, that Blakely had acted with deliberate cruelty, one of the statutorily enumerated grounds for upward departure in domestic violence cases. Id. The trial judge imposed an aggravated sentence of ninety months, which was thirty-seven months greater than the top of the standard range and thirty months less than the absolute statutory cap of ten years. Id. at 2535-36.
The United States Supreme Court applied the rule of Apprendi. As to the definition of the statutory maximum sentence for a particular crime, the Court further explained that it is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 124 S.Ct. at 2537 (emphasis in original). Thus, [w]hen a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority. Id. at 2538 (internal citations omitted). The Supreme Court applied Apprendi, despite the fact that the aggravated sentence imposed on Blakely was well below the ten-year absolute cap for class B felonies set by the Washington statute. See id. at 2535.
These rulings strongly suggest that the statutory maximum sentence is not necessarily the greatest term authorized by the state legislature. Rather, it is the longest sentence authorized by the applicable statute and the particular facts validly before the judge in the case.
On the distinction between sentencing factors and elements of crimes, the Court implicitly rejected any remaining difference for the purposes of the jury trial requirement. See Blakely, 124 S.Ct. at 2539 (rejecting the argument that the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors—no matter how much they may increase the punishment—may be found by the judge). Instead, the Court emphasized that the Apprendi rule must be strictly applied to ensur[e] that the judge‘s authority to sentence derives wholly from the jury‘s verdict. Id.
Three other aspects of Blakely are important to our analysis. First, the Court explained that the determination that certain facts are substantial and compelling under the Washington statute is not merely a question of law for the judge. The judge cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Id. at 2538 n. 8. Therefore, those underlying facts must comply with the Sixth Amendment before any legal judgment can be made.
The Court also explained that its holding did not necessarily find all determinate7 sentencing schemes unconstitutional but merely showed how they can be implemented in harmony with the Sixth Amendment.8 Id. at 2541.
Finally, the Blakely Court effectively rejected any distinction, for the purposes of Sixth Amendment analysis, between mandatory or discretionary aggravated sentencing systems based on judicial fact-finding. Under either system, facts supporting increased sentences are subject to the rule. The Court stated that [w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence. Id. at 2538 n. 8 (emphasis in original).
In 2005, the Court applied the principles of Apprendi and Blakely to the mandatory provisions of the Federal Sentencing Guidelines and found them unconstitutional as far as they required judges to find facts by a preponderance of the evidence for the imposition of aggravated sentences. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621. In Booker, the Court re-emphasized the importance of the purely functional definition of a statutory maximum sentence: “the maximum [sentence] authorized by the facts established by a plea of guilty or a jury verdict.” Id. at 756.
After this line of cases, there are at least four types of factors that are clearly valid for use in aggravated sentencing. These types of factors comply with the Apprendi-Blakely rule and the Sixth Amendment. First, the defendant might admit to the facts. Blakely, 124 S.Ct. at 2537 (statutory maximum is, in part, the sentence authorized by the facts admitted by the defendant). Second, the jury might find the facts, as reflected in its verdict. Id. (statutory maximum also measured by facts contained in a jury verdict); People v. Leske, 957 P.2d 1030, 1044 (Colo.1998) (facts related to the elements of the offense may serve as factors for aggravating a sentence as long as they are sufficiently linked to the particular defendant and the particular crime). Third, the defendant might stipulate to judicial fact-finding for sentencing purposes. Blakely, 124 S.Ct. at 2541 (the State is free to seek judicial sentence enhancements so long as
Although there is some doubt about the continued vitality of the prior conviction exception,9 we conclude that it remains valid after Blakely. See Booker, 125 S.Ct. at 756 (we reaffirm our holding in Apprendi: Any fact (other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt) (emphasis added); United States v. Orduno-Mireles, 405 F.3d 960, 2005 WL 768134 *2 (11th Cir. Apr.6, 2005) (Put another way, because the prior-conviction exception remains undisturbed after Booker, a district court does not err by relying on prior convictions to enhance a defendant‘s sentence.). We adopt a useful shorthand from the Arizona Court of Appeals; facts admitted by the defendant, found by the jury, or found by a judge when the defendant has consented to judicial fact-finding for sentencing purposes we call Blakely-compliant, and prior conviction facts we call Blakely-exempt. State v. Aleman, 210 Ariz. 232, 109 P.3d 571, 580 (Ariz.App.2005).
C. Colorado‘s Sentencing Statute—Section 18-1.3-401(6) and the Presence of Extraordinary Mitigating or Aggravating Circumstances
Colorado‘s sentencing system provides for separate classes of offenses and different sentencing options in a
Martinez v. People, 69 P.3d 1029, 1031-32 (Colo.2003) (internal citations omitted).
This case does not concern the state‘s separate statutory sentencing provisions, such as special provisions for habitual offenders or special offenders. See, e.g.,
Colorado‘s general sentencing statute provides four ways a sentence might be increased over the presumptive range. First, the minimum sentence must be raised to at least the midpoint in the presumptive range and the judge may sentence up to twice the mandatory maximum term authorized in the presumptive range if one of several offender-based, enumerated extraordinary aggravating circumstances are present.
(I) The defendant is convicted of a crime of violence under section
18-1.3-406 ;(II) The defendant was on parole for another felony at the time of the commission of the felony;
(III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony;
(IV) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another
felony at the time of the commission of a felony.
Second, the floor must again be raised to the midpoint of the presumptive range and a sentence up to double the maximum of the presumptive range is authorized if a certain type of crime is committed.
A third way in which a sentence can be increased is when the crime committed is one that the General Assembly has found present[s] an extraordinary risk of harm to society.
(IX) Aggravated robbery ...;
(X) Child abuse ...;
(XI) Unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance with the intent to sell, distribute, manufacture or dispense ...;
(XII) Any crime of violence....
The fourth type of sentencing, and the only one at issue in this case, is departure from the presumptive range based on the presence of extraordinary aggravating or mitigating circumstances under section
In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence
report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5 . If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.
In sentencing under section
Section
mandate a sentence within the aggravated range whenever any of the extraordinary aggravating circumstances specifically enumerated ... are present, and to permit a sentence outside the presumptive range whenever any extraordinary mitigating factors, or any extraordinary aggravating factors not specifically listed ... exist.
People v. Dist. Court, 713 P.2d 918, 922 (Colo.1986) (emphasis in original).
We have not characterized section
We have called our sentencing system a spectrum beginning at one-half the presumptive minimum and extending to twice the presumptive maximum. People v. Phillips, 652 P.2d 575, 581 (Colo.1982) (Lohr, J., specially concurring and Erickson, Dubofsky and Quinn, JJ., joining in the concurrence). This spectrum of sentencing effectuates an important legislative intention. In the context of the determinate sentencing system, the General Assembly intended to provide trial judges with discretion that would maximize defendants’ chances for a fair and individualized sentence. Id. The flexibility of presumptive and mitigated or aggravated sentencing effectuates the legislative intent by allowing judges to weigh the multitude of [relevant] factors in arriving at an individualized and fair sentence. Id.; see also Leske, 957 P.2d at 1044-45 (the General Assembly intended the trial judge to maintain discretion to distinguish between ordinary and extraordinary factors and exercise its independent judgment in making that distinction).
The prosecution invites us to construe Colorado‘s general sentencing statute as comprising one simple range, from one-half to double the presumptive range. Under this view, the facts used to impose a sentence anywhere within this range would not fall under the Sixth Amendment requirement of a jury determination because the jury verdict or plea agreement convicting the defendant of the crime would immediately authorize the entire range of sentencing.
The defense invites us, instead, to carefully consider whether the facts used as extraordinary aggravators in this case were permissibly considered under Apprendi and Blakely.
After close analysis of Apprendi, Blakely, and Colorado‘s statute, we are not persuaded by the prosecution‘s argument. We determine that the functional analysis required by those rulings shows that, under section
In our application of the Apprendi-Blakely rule to the aggravated sentence in this case, we first consider the effect of Lopez‘s plea advisement on the aggravation of his sentence.10 Then, we consider the prosecution‘s arguments about the nature of section
1. Effect of Plea Agreement
Lopez‘s Crim. P. 11 advisement notified him that he could be sentenced to twelve years if the judge found extraordinary aggravating circumstances present in his case. Lopez arguably received and agreed to sufficient notice that he was subject to an aggravated sentence. However, such notification alone does not satisfy the constitutional principles at issue in Blakely.
The Blakely rule is concerned specifically with defendants’ constitutional protections in criminal proceedings, particularly the right to a jury determination, beyond a reasonable doubt, that facts exist that expose the defendant to criminal penalties. The defendant must be protected from a sentence that balloon[s] based on, for example, facts extracted after trial [or plea] from a report compiled by a probation officer which arise with no warning in either his indictment or plea. Blakely, 124 S.Ct. at 2542. Thus, a defendant‘s due process rights are not sufficiently protected when he or she is informed that the sentence may be aggravated; the defendant must have the opportunity to admit in court proceedings or, in the alternative, to dispute to a jury, the actual facts on the basis of which the sentence can be aggravated. See Smylie, 823 N.E.2d at 684-85 (rejecting the state‘s argument that the statute sufficiently notified defendants that their sentences could be aggravated; to the contrary, the increase was ‘unexpected’ [because] the aggravators used to support a departure from the presumptive [were] not charged in the indictment).
Defendants may waive their Apprendi and Blakely rights. Blakely, 124 S.Ct. at 2541. However, to accomplish valid waivers, they must either admit to the relevant facts supporting the aggravated sentence or stipulate to judicial fact-finding for sentencing purposes.11 See id. A guilty plea waives the right to a jury trial on the issue of guilt but
Therefore, Lopez‘s plea agreement in this case, although notifying him of the possibility of a twelve-year sentence and admitting to certain facts, does not authorize the judge‘s use of other facts Lopez did not admit to aggravate the sentence.
2. Colorado Sentencing—Separate Ranges
We determine that the prosecution‘s attempt to characterize Colorado‘s scheme as a simple range system is foreclosed or rejected by Apprendi and Blakely.
In support of its simple range argument, the prosecution relies on the Phillips characterization of Colorado‘s sentencing scheme as a spectrum beginning at one-half the presumptive minimum and extending to twice the presumptive maximum. 652 P.2d at 581. The prosecution also argues that the determination that particular facts are extraordinary mitigating or aggravating circumstances is a legal determination that must be made by the trial court. This must be so, the prosecution argues, because the same facts that support a presumptive range sentence may be legally characterized as extraordinary to support an aggravated sentence. Furthermore, the prosecution points out that the abuse of discretion standard of review applied to sentencing decisions shows that these determinations are issues of law and not fact.
First and most importantly, despite the language in Phillips which characterizes sentencing judges’ options as one inclusive spectrum, it is apparent from Blakely that the necessary inquiry into the sentencing
When we examine the section
Furthermore, we are not persuaded by the prosecution‘s argument that the trial court must make the purely legal determination that certain facts are extraordinary mitigating or aggravating circumstances. The Supreme Court expressly rejected this argument in Blakely. The focus of the Sixth Amendment inquiry is on the process of finding those facts and whether it sufficiently complied with the defendant‘s constitutional jury trial protections. Washington State made a similar argument in support of its statute. Blakely, 124 S.Ct. at 2538 n. 8. The Court rejected the argument, explaining that the Washington judge‘s legal determination that certain facts present a compelling ground for an aggravated sentence does not change the analysis because the judge cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Id. Any such
We also note that section
For these reasons, we reject the prosecution‘s characterization of section
3. The Constitutionality of Section 18-1.3-401(6)
Our conclusion on the prosecution‘s argument requires us to consider the constitutionality of section
Since Blakely was issued, five other state supreme courts have considered statutes functionally similar to ours. See Brown, 99 P.3d at 17-18 (Arizona statute states that defendant shall receive a presumptive range sentence and that the sentence may be increased if the trial judge finds enumerated aggravating circumstances from any evidence before or during trial); Smylie, 823 N.E.2d at 683 (Indiana statute requires a given presumptive term for each class of crimes, except when the judge finds aggravating or mitigating circumstances); State v. Shattuck, 689 N.W.2d 785, 786 (Minn.2004) (Minnesota statute requires imposition of presumptive sentence unless court finds aggravating factors); State v. Dilts, 337 Or. 645, 103 P.3d 95, 99 (2004) (Oregon statute states that the sentencing judge shall impose the presumptive sentence ... unless the judge finds substantial and compelling reasons to impose a departure) (emphasis and alteration in original); State v. Hughes, 110 P.3d 192, 2005 WL 851137 *5 (Wash. Apr.14, 2005) (Washington statute provides matrix for determination of standard range sentence and exceptional sentence statute allows imposition of sentence outside the standard range if the judge finds substantial and compelling reasons).
In Smylie, the Indiana court found that its sentencing system runs afoul of the Sixth Amendment because it mandates both a fixed term and permits judicial discretion in finding aggravation or mitigating circumstances. 823 N.E.2d at 685 (emphasis in original). The court found that Blakely and the Sixth Amendment required that the judicial fact-finding portions of the statute be excised and the statute modified to require jury findings on facts in aggravation. Id.
The Minnesota court also considered excising portions of its statute, but has not yet come to a conclusion on that issue. The court found that upward departures based on judicial fact-finding are unconstitutional and requested further briefing on the proper
The Oregon, Washington, and Arizona courts did not invalidate or excise their statutes, but vacated the particular sentences imposed. The Arizona court limited itself to answering the question before the court—whether the statutory maximum was the presumptive or the aggravated sentence. The court found that the plea proceedings only authorized the presumptive term. Brown, 99 P.3d at 18. The court declined to consider other implications of Blakely in that opinion, determining that the best approach is to resolve any such questions in this dynamic area of the law in the context of a case in which the relevant issue is squarely presented, properly briefed, and addressed by the courts below. Id. at 18-19.
Similarly, the Oregon court determined that the fact that the sentencing guidelines may be applied unconstitutionally, as they were in this case, does not mean that we must reject the sentencing guidelines themselves as unconstitutional. Dilts, 103 P.3d at 100. Instead, the court found only that the sentencing guidelines were applied unconstitutionally to defendant because the aggravated sentence was imposed based on judicial findings. Id. The court concluded that its sentencing system is permissible if [it is] implemented in a way that respects the Sixth Amendment. Id. (internal citations omitted).
The Supreme Court of Washington also found that its enhanced sentencing provisions could be validly utilized when based on constitutionally permissible factors. Hughes, 110 P.3d at 200. (there is at least one way in which
Colorado‘s statutory sentencing system is functionally similar to Arizona‘s, Oregon‘s, and Washington‘s; it provides for a presumptive range and allows a judge to sentence outside that range if he or she finds extraordinary aggravating circumstances. Our sentencing statute is also similar to those state statutes because section
These facts may be present in the record of a sentencing hearing as section
In this case, the trial court aggravated the possession sentence based on two categories of factors. First, the court aggravated the sentence for Lopez‘s driving with the excessive amount of alcohol, [and] killing another person in a vehicular homicide incident. Both of these facts are reflected in the jury‘s verdicts from the vehicular homicide trial. We find that the prior conviction facts adequately support the aggravated sentence in this case. Second, the court aggravated the sentence due to the failures at the treatment program, [and] the hot UAs that had been given during the deferral period. Because the prior conviction facts adequately support the aggravated sentence, we do not analyze the uncharged conduct constituting the second factor.
a. The Vehicular Homicide Prior Convictions
As stated above, for aggravated sentencing purposes, the Supreme Court has excepted the finding of prior conviction facts from the Sixth Amendment jury requirement.
Prior conviction facts are Blakely-exempt in large part because these facts have been determined by a jury beyond a reasonable doubt or admitted by the defendant in a knowing and voluntary plea agreement. Thus, as long as the prior proceedings were not constitutionally flawed, the defendant‘s Sixth Amendment rights were adequately protected in the prior conviction proceeding. See Jones v. United States, 526 U.S. 227, 249, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees).
Whether prior convictions are extraordinary aggravating circumstances is a determination made by the judge alone. See Blakely, 124 S.Ct. at 2538 n. 8 (the sentencing judge‘s legal determinations must be based on properly received facts); see also, Watkins, 684 P.2d at 238 (abuse of discretion standard applied to sentencing determinations by sentencing judges). The critical point is that the underlying fact in a prior conviction analysis—that the defendant was previously convicted of certain crimes—is one that has passed through the safeguards of the jury right or plea proceedings, and sentencing judges may consider these facts without further jury involvement.
In this case, the trial court could permissibly aggravate Lopez‘s possession sentence based on his convictions in the vehicular homicide case. After lengthy discussion of Lopez‘s conduct during his deferral period, the court stated that he was aggravating the possession sentence for Lopez‘s driving with the excessive amount of alcohol, [and] killing another person in a vehicular homicide incident. Lopez was convicted by a jury of both of these acts.
The unique facts of this case present some question as to whether the vehicular homicide convictions are prior convictions with regard to the possession sentencing. The vehicular homicide itself occurred after the possession offense. However, the convictions for the homicide were entered before the possession sentencing.
We determine that, under the circumstances of this case, the vehicular homicide convictions are proper Blakely-exempt aggravating factors for the possession sentence because the facts are reflected in a jury‘s verdict that was entered before the possession sentence was imposed.
The trial court determined the prior convictions to be extraordinary circumstances that supported an aggravated sentence for the possession conviction. Under the Apprendi-Blakely rule, this determination could properly rest on the prior conviction facts. The legal judgment that these facts are extraordinary aggravating circumstances to the possession offense is within the trial judge‘s discretion. Leske, 957 P.2d at 1044-45; Watkins, 684 P.2d at 238.
In imposing sentence, the trial court must consider the nature and elements of the offense, the character and record of the offender, and all aggravating or mitigating circumstances, which include: unusual aspects of the defendant‘s character, past conduct, habits, health, age, the events surrounding the
b. Trial Judges’ Discretion under Section 18-1.3-401(6)
One Blakely-compliant or Blakely-exempt factor is sufficient to support an aggravated sentence. A sentencing judge can constitutionally consider any fact that was admitted by the defendant, found beyond a reasonable doubt by a jury, found by a judge after the defendant stipulated to judicial fact-finding for sentencing purposes, or related to a prior conviction. Under state law, that constitutionally permissible fact opens a wider sentencing range under section
The legislature may not require judges to impose enhanced sentences based on constitutionally impermissible judicial fact-finding. See Booker, 125 S.Ct. at 757 (it is no longer possible to maintain the judicial fact-finding that Congress thought would underpin the mandatory Guidelines system). Section
One such valid factor supporting a discretionary aggravated sentence within the broadened section
III.
Accordingly, we affirm the court of appeals’ judgment on other grounds and uphold the sentence in this case.
Justice COATS concurs in the judgment only, and Justice KOURLIS and Justice RICE join in the concurrence.
Justice COATS, concurring in the judgment only.
Although the majority affirms the defendant‘s 12-year sentence in this case, it does so only by eviscerating the presumptive sentencing regime under which we have operated for more than a quarter century. Upholding the facial validity of a statute is of little consolation if all but a sliver of its authorized applications are declared unconstitutional. Today‘s decision effectively cuts in half the highest prison sentence available to courts in the vast majority of felony cases. As the majority makes clear, it considers its holding dictated by the United States Supreme
While the majority‘s opinion is voluminous, and its constitutional analysis at times complex, my quarrel with it stems from its failure to grasp the significance of the Colorado General Assembly‘s choice of the sentencing range available upon conviction of any particular crime. See op. at 727-28. Without resort to accepted aids to statutory construction or any attempt to reconcile or distinguish our numerous prior interpretations of the sentencing scheme, the majority finds that the maximum sentence authorized for a felony conviction, for Sixth Amendment purposes, does not extend to the full range of penalties described in section
In reaching that conclusion, the majority confounds the constitutionality of sentencing beyond the legislatively prescribed statutory maximum with the legislature‘s choice of a statutory maximum in the first place. Unlike the majority, I consider it perfectly clear that unless a sentence exceeds the maximum sentence that is within the discretion of the sentencing court to impose without additional fact-finding, the constitutional sufficiency of facts considered by the sentencing court never arises. I am also convinced that nothing in the Supreme Court‘s sentencing jurisprudence can reasonably be construed to suggest an intent to interfere with our construction of the statutes of our own jurisdiction or to ascribe a different meaning to the term statutory maximum than the words themselves imply.
The Supreme Court has now made abundantly clear that a defendant is entitled to have any fact that increases his penalty for a crime beyond the prescribed statutory maximum (other than the fact of a prior convic-
Colorado‘s presumptive sentencing scheme, which became effective in 1979,2 divides felonies into various classes and establishes a presumptive range of imprisonment for each class.
While the Supreme Court has made clear that the constitution cares not whether a separate factual finding increasing the statutory maximum is labeled an element of the crime or a sentencing factor, it has never suggested that the decision whether to demand additional findings of fact for a particular sentence rests anywhere but with the legislature. Unlike the express language of the Washington statute found particularly significant by the Supreme Court in Blakely, the language of Colorado‘s statute did not require the sentencing court in this case to set forth findings of fact and conclusions of law, Blakely, 124 S.Ct. at 2535, in support of its sentence; nor did it provide for a separate review of the sentencing court‘s reasons for exceeding the presumptive range according to the clearly erroneous standard, id., generally applicable to findings of historical fact. The Colorado statute merely required the court to detail, on the record, the extraordinary circumstances upon which it relied for varying from the presumptive sentence, and it merely subjected the resulting sentence to review according to the proprietary or abuse of discretion standard applicable to prison sentences generally, whether they fall outside the presumptive range or not. See
Of perhaps even greater importance, however, the Supreme Court in Blakely accepted and relied on the Washington Supreme Court‘s interpretation of its own statute, requiring that ” [a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense.” Blakely, 124 S.Ct. at 2535 (quoting State v. Gore, 143 Wash.2d 288, 21 P.3d 262, 277 (2001)). By contrast, we have long construed our sentencing scheme to permit a sentence beyond the presumptive range based on precisely the same facts that justified the conviction. See Leske, 957 P.2d at 1044 (Thus, a sentencing court is not precluded from considering as extraordinary aggravating circumstances facts tending to establish an element of an offense—even though these elements must always exist for a conviction—as long as the court relates those facts to the particular defendant and the circumstances of the crime.); People v. Sanchez, 769 P.2d 1064, 1068 (Colo.1989) (holding that sentencing court may consider all relevant factual matters, including facts that tend to establish elements of the offense in question).
Since the earliest days of presumptive sentencing, we have held that the factors or sentencing considerations leading a court to give a more mitigated or more aggravated sentence within the presumptive range are identical to those justifying a sentence in excess of the presumptive range. See Phillips, 652 P.2d 575; see also Walker, 724 P.2d 666; Flower v. People, 658 P.2d 266 (Colo.1983) (If aggravating or mitigating circumstances exist, and if the court finds them to be extraordinary ....). There is no rigid line between aggravation and extraordinary aggravation that makes them either qualitatively or quantitatively distinguishable. See Phillips at 580 (holding that the difference between aggravating or mitigating circumstances and extraordinary mitigating or aggravating circumstances is not objectively quantifiable); id. at 582 (Lohr, J., specially concurring) (finding that it is not conceivable that the legislature was endeavoring to compartmentalize and divide precisely the ordinary and the extraordinary). We have therefore long considered it within the discretion of the sentencing court to characterize the circumstances surrounding the offense and the offender as extraordinarily mitigated or aggra-
The majority characterizes the Blakely Court as having rejected any distinction, for purposes of Sixth Amendment analysis, between mandatory or discretionary aggravated sentencing systems based on judicial fact-finding. Op. at 723. As the Supreme Court has made abundantly clear, however, at least since Booker, the constitutional limitation to which it refers concerns only sentences beyond the statutory maximum. It is constitutionally inconsequential whether the legislature has divided the full range of sentences prescribed for a particular crime into sub-ranges, with lesser maximum and minimum sentences it considers appropriate on the basis of additional, judicially-determined facts, as long as it remains within the discretion of the sentencing court to choose any term within the full statutory range established for that offense. Booker, 125 S.Ct. at 764.
This court has consistently construed Colorado‘s presumptive sentencing scheme as operating in a manner similar to (but even more discretionary than) the post-Booker federal sentencing guidelines, in effect amended by the severance of their mandatory language. Nothing more than a conviction is required to give Colorado sentencing courts the discretion to impose a sentence to imprisonment as low as one-half the minimum of the presumptive range and as high as twice the maximum of the presumptive range. The court must consider the nature of the offense, the character of the offender, and the public interest, and determine whether mitigating or aggravating circumstances are present, and if so, whether or not they are extraordinary. Unlike the federal guidelines, section
The majority, however, can be unconcerned by the discretionary nature of sentencing in the aggravated range because it understands the term statutory maximum to have a special meaning for Sixth Amendment purposes. Op. at 727. Seizing on the Supreme Court‘s explanation in Blakely that by statutory maximum it meant the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, id., the majority apparently concludes that statutory maximum refers to a sentence that is imposed solely in reliance upon the elements of the offense or admissions of the defendant. This understanding leads the majority to further conclude that the statutory maximum cannot refer to any particular term of years prescribed by statute but must refer to a sentence imposed in reliance on certain kinds of facts, or facts that were determined in a particular way. The statutory maximum, in the majority‘s view, is therefore not defined as a legislatively prescribed point below which the exercise of a sentencing court‘s discretion is not contingent upon finding additional facts, but as a sentence with regard to which the sentencing court has not actually relied on anything more than the elements of the offense or the admissions of the defendant.
As understood by the majority, the statutory maximum is both defined in terms of so-called Blakely-compliant facts and simultaneously used to determine when Blakely-compliant facts are constitutionally mandated. Apart from the circularity of this reasoning, it is clearly incompatible with the Supreme Court‘s continued endorsement of real offense sentencing, see Booker, 125 S.Ct. at 750, which contemplates the consideration of all relevant factors concerning the offense and the offender, over and above the jury verdict in the particular case, to determine precisely where within a statutorily authorized range the appropriate sentence should lie. Although the majority would prefer to limit this rationale to an aggravated circumstances analysis, see op. at 727, once the statutory maximum is no longer a matter of legislative choice, it is difficult to understand why the same reasoning does not apply to sentencing in the presumptive range, or any range for that matter.
If I felt compelled to find the vast majority of sentences permitted beyond the presumptive range to be unconstitutional, as the majority does, I would also consider it our obligation to follow the Supreme Court‘s lead, see Booker (Breyer, J., severing the mandatory aspects of the federal sentencing guidelines), and our own statutory mandate, see
I am authorized to say that Justice KOURLIS and Justice RICE join in the concurrence.
Justice COATS
SUPREME COURT JUSTICE