People v. Moon

Blakely Washington, supra. set forth conclusion, we need not ad- argument

dress defendant’s in imposing discretion

court abused its sentence. vacated, sentence is and the case is proceedings for further consistent opinion.

with this *

Judge Judge KAPELKE and PLANK

concur. Colorado, PEOPLE of State of

Plaintiff-Appellee,

Christopher MOON, John

Defendant-Appellant.

No. 03CA1107. Appeals,

Colorado Court of

Division V.

Oct.

Certiorari Granted Oct. Salazar, General, Attorney

Ken Catherine Adkisson, General, Attorney P. Assistant Denver, Colorado, Plaintiff-Appellee. Kaplan, David S. Colorado State Public Defender, O’Connell, Keyonyu Deputy X Defender, Denver, Colorado, Public Defendant-Appellant.

WEBB, J.

Defendant, Moon, Christopher ap- John peals discretionary aggravated imposed following guilty plea * 24-51-1105, Sitting by assignment of the Chief Justice under C.R.S.2003. Const, provisions VI, 5(3), of Colo. art.

attempted possession unlawful of a schedule of discretion and that the trial court erred II substance. We denying controlled vacate the sen- his motion to continue the sentenc- Later, resentencing. ing tence and remand for hearing. request, par- our ties supplemental submitted briefs address- originally charged Defendant was with validity the constitutional of defendant’s conspiracy to manufacture a schedule II con- discretionary aggravated range exchange trolled substance. In for dismissal light Blakely Washington, charge, pleaded guilty attempt- of that he to (2004). 124 S.Ct. 159 L.Ed.2d 403 possession ed unlawful of a schedule II con- There, Supreme Court struck down substance, trolled felony class five with a Washington permitted statute that judge presumptive sentencing range of one to three impose a sentence statutory above the maxi- years imprisonment. § See 18-1.3- mum on the basis of facts other than those 401(l)(a)(V)(A), C.R.S.2004. by jury found by or admitted the defen- When the court guilty took defendant’s dant. The held such plea, prosecutor neither the nor defendant sentencing violated a defendant’s addressed the factual charge. basis for the by jury under the Sixth Amendment to pleaded, After prosecutor defendant ar- the United States Constitution. bond, gued against noting release on “was, by admission, defendant just his own I. disposing of methamphet- the remnants after amine manufacturing.” Defendant did not According People, to the statute challenge this statement. in Blakely range” sets a “standard (PSI) offense, presentence investigation sentence for each criminal report while a provided separate part: statute “The defendant allows the stated he visiting “exceptional was with friends who had sentence” materials based on contend, additional methamphetamine. they make factors. He stole these while pulled items and under the by police.” jury’s was over Defen- statute verdict challenge guilty plea dant did not or a the PSI. could not have authorized a the maximum in the stan- At the hearing, prosecutor range, Colorado, dard “a defendant is ex- argued that danger defendant was a to soci- posed to full range penalties available ety, because, cleaning “He was his out — the offense original conviction of the own admission in the most favorable to charge.” him, carrying chemicals, he was around chemical residue from a meth lab or cook According to ag here the just completed.” had been gravated under allocution, said, In defendant “The circum- 18-1.3-^01(6) violated his Sixth Amend case, know, you stances of this those aren’t rights because, ment Blakely before thought circumstances. I I doing was the trial court referred to something obviously was—no matter possession defendant’s chemicals used it, I how looked at wrong.” was drugs, which, asserts, make illicit defendant he had not emphasizes admitted. Defendant court sentenced defendant to five Blakely majority’s description of the con years imprisonment, year less than the stitutionally permissible “statutory maxi maximum in range, 18- mum” as “the maximum 401(6), judge sentence a C.R.S.2004, finding “excep- after 1.3— may impose solely on the basis tional circumstances” based on defendant’s verdict or admitted “record and the offense.” With reflected Blakely Washington, su regard defendant.” 303-04, pra, 542 U.S. at observed that posses- defendant had been “in original). agree with defen substances, sion of chemicals that are used dant, but on grounds. somewhat different drugs.” the manufacture of illicit brief, opening Initially, we note to the extent the Allen, sentence was an abuse ” years tory maximum’ is ten for the class of division of this (Colo.App.2001),at least one Al pleaded. had recently to follow Allen. to which declined court has Solis-Martinez, though Washington statute set this maxi People v. 03CA1365, mum, Sept. required it (Colo.App. “[w]hen No. also WL 2004). sentence, ques- 9, Blakely, imposes exceptional we also an he must set light In viability of Allen. fact conclusions of law findings continued forth and tion the Blakely, supra, 542 U.S. at supporting it.” 18-1.3^401(6) specify Although § does 299, at 2535. the S.Ct. imposition a permit particular facts that as, statutory maximum viewed the relevant range, it presumptive above the sentence may judge “not the maximum sentence departure on imposes express an condition facts, the impose after additional range: from that any may impose without addi he (6) to incarcera- In sentence Blakely, supra, findings.” tional 542 U.S. tion, impose a definite sen- the court shall 303-04, in (emphasis origi at 2537 S.Ct. presumptive the which is within tence nal). (1) in of this ranges set forth subsection that extraordi- unless it concludes persuaded by People’s section the Nor are we Watkins, 163, nary mitigating or circum- citation to 200 Colo. (1980). present, are based on evidence recognized stances are Watkins sentencing hearing and in the record of the appellate courts “[t]he burden report, support a dif- presentence and sentencing judge to on the failure of a state which better serves ferent sentence of a record the basic reasons for the selection respect Watkins, purposes sentence,” code with to sen- particular 167, 636, tencing, as set forth section 18-1-102.5. and held Colo. extraordinary miti- incarceration, such the court involving convictions If finds it gating or court must state on the rec may impose However, a sentence which is lesser ord the reasons for the sentence. presumptive range; ex- greater than the there the defendant the exces the term of cept that no case shall of his sive nature of the sentence greater than twice the maxi- sentence be potential for The case did not rehabilitation. minimum mum than one-half the nor less discretionary aggravated range sen address range presumptive term in the authorized tences. punishment for the of the offense. Although People emphasize added.)

(Emphasis Washington and Colorado stat- identical, 18-1.3-401(7), C.R.S.2004, signifi- attach no Similarly, utes are not we cance to the between them for provides where a sentence outside differences purposes presumptive range imposed, is “the trial of a defendant’s Sixth Amendment findings rights. on the specific court shall make case, detailing specific ex- record of the Washington sentencing scheme ad traordinary which constitute circumstances sentences dresses standard varying presumptive the reasons for from statutes, separate while the Colorado stat added). People v. sentence.” See ute addresses

Blankenship, (Colo.App.2000)(va- range sentences in different subsections of cating remanding specific Nevertheless, the same statute. both states’ pre- findings explain to variation from the findings support to require statutes additional sumptive statutory lan- range). a factor guage People’s does not asser- Blakely majority distinguish used to finding of fact is tion that additional “[n]o York, 241, 69 Williams v. New 337 U.S. S.Ct. required subject before a defendant is (1949). Blakely, supra, 93 L.Ed. 1337 aggravated range pursuant (“Williams 304, 124 S.Ct. at 2538 542 U.S. provision.” to this indeterminate-sentencing regime involved an him) (but Moreover, compel majority Blakely rejected that allowed a did not the trial record in argument, that the “relevant ‘statu- on facts outside similar 466, 120 determining 2348, 147 Jersey, whether to sentence a defendant New death.”). (2000), Blakely prohibits L.Ed.2d 435 making from any additional statute, Washington reason “[a] Under justify findings above justify exceptional can offered to range. only if it be considered takes into account than which used in factors other those are statute, Under the computing the standard range, sentence above the standard Blakely, supra, the offense.” 542 U.S. at compelling must find “substantial and rea- Gore, (quoting 124 S.Ct. at 2535 justifying exceptional sons sentence.” 288, 315-16, Wash.2d 9.94A.120(2)(2000). Wash. Rev.Code (2001)). contrast, Colorado factors, aggravating statute lists several al- statute, factors considered in though they are “illustrative rather than ex- range sentencing can “ex also constitute Blakely, 299, supra, haustive.” 542 U.S. at traordinary ... aggravating circumstances” 124 S.Ct. at 18-1.3-401(6). See, e.g., People v. under Watkins, supra (presumptive range factors 18-1.3-401(6) Section identifies no factors harm person property, include the or the per extraordinary that constitute se aggrava- required culpability, the defendant’s Hence, ting a justify circumstances. sen- criminality, danger posed by the immediate aggravated range, tence in the the sentenc- the of release of the risk the ing finding court must make a preliminary criminality, prospects defendant’s future the specific that raw elevates facts to the level of rehabilitation, depreciating of and the risk of “aggravating circumstances.” Then the offense); People the of seriousness the make the finding must ultimate Leske, (Colo.1998)(upholding 957 1030 these raw elevated facts are also “extraordi- aggravated range on consid sentence based nary.” impact eration of of crime on victims In imposing at families); Moore, their Blakely, (Colo.App.1994)(upholding 366 “ cruelty,’ statutorily found ‘deliberate a enu- based on consideration ex ground departure violence, merated in domestic- helplessness, lack of treme victim’s intoxication), Blakely, supra, violence cases.” provocation, and the defendant’s 300, Hence, Washing- 124 at 2535. S.Ct. 'd, aff ton not find- court did articulate the ultimate Nevertheless, did ing compelling of “substantial and reasons not address the nature of the used to facts an As a sentence.” sentence, a aggravate but on wheth- focused result, observing while that the Sixth Amend- by er those facts were found or a requirement jury ment’s of either a verdict jury: by or an applies admission the defendant judge’s authority impose Whether “any penalty fact that increases the for a depends an finding enhanced sentence prescribed statutory maxi- crime (as specified Apprendi fact Neio Jer- [v. mum,” 300, Blakely, supra, 542 124 U.S. (as ), sey] specified several (quoting Apprendi S.Ct. at 2536 v. New Jer- Arizona]), Ring any aggravating [v. 490, sey, 530 supra, U.S. at 120 S.Ct. (as here), fact it remains the that the case 2362-63), specifically applied the Court jury’s verdict alone does not authorize the requirement supporting to “the facts judge acquires sentence. The author- cruelty].” that finding [of deliberate Blake- ity only upon finding some additional fact. 303, ly, supra, U.S. at 124 S.Ct. at 304, Blakely, U.S. at 124 S.Ct (emphasis original). Nevertheless, describing after may while the sentencing by jury as “a fundamental reservation many structure,” properly power consider factors in determin- constitutional our appropriate Blakely majority explained, the stan- car- “Apprendi within presumptive range, Apprendi design by ensuring dard or ries out this Here, authority wholly derives trial court a sentence in judge’s 18-1.3-401(6), jury’s aggravated range verdict. Without that from the striction, finding “exceptional not exercise would circumstances based underlying the Framers intended.” Blake- [defendant’s] control that record and the 304-06, 124 ly, supra, plea 542 U.S. at S.Ct. at offense.” defendant’s admitted While added); Ring see also 2538-39 not 602, Arizona, U.S. admit that this offense was an (2002)(“If circumstance, extraordinary L.Ed.2d much less an increase in a makes an defendant’s author- one. sentence violated defen- contingent finding on the punishment right. ized of dant’s Sixth Amendment fact, how that fact —no matter the State Blakely prohibited Having concluded that jury beyond aby labels it—must be found the court’s of- doubt.”). reasonable extraordinary aggrava- fense constituted 18-1.3^101(6) limits discretion to Section circumstance, ting we do not reach Peo- by ple’s argument concerning what raw facts specifying particular per raw facts that se plea or at defendant admitted sentenc- constitute ing. any such requiring that facts found to consti- aggravating

tute circumstances are further II. extraordinary. applying found be that, People The further even assert preliminary Amendment the Sixth Blakely precludes if the trial court from find finding particular aggravating raw facts as of that the offense constitutes an finding but not to the ultimate circumstance, extraordinary aggravating be extraordinary, circumstances are that those cause also the court referred to defendant’s majority’s recog- would undercut undisputed lengthy history, criminal suffrage nition “Just as ensures the aggravated range upheld. be sentence should legislative people’s ultimate control agree. We do not branches, jury trial is and executive meant to judiciary.” control Blake- ensure their People People Broga, on v. 750 ly, at supra, 542 U.S. 124 S.Ct. at 2539. (Colo.1988), states, P.2d 62 which ‘Where Accordingly, sentencing we conclude court statuto- finds several factors purposes of ry applying Ap- justifying for sentence in Blakely is prendi range, only the maximum in the of those factors need be range. legitimate support further conclude However, aggravated range that a un- decision.” unlike the case before 18-1.3-401(6) us, in Broga argue der violates the Sixth right by jury, to trial Amendment unless the his involved the confluence of a factor, permissible the trial facts found the form of his sentence, including criminality, constitutionally impermis- the ultimate (1) Rather, extraordinary: are these facts are sible factor. the defendant (2) jury’s verdict; aggra- flected were admit- that confinement could not be an purposes vating escape ted defendant for of sentenc- factor in on an con- (3) ing; prior criminality, involve viction lawful because confinement was an permitted by Apprendi. Broga extent Statutes that element of the offense. did not automatically presumptive range increase the address whether consideration of the defen- crimes, particular felon, of for 'sentence dant’s as a 18- confinement convicted (defendant 1.3^106 of charged convicted crime of vio- the time of the commission lence), identify or which particular raw facts violated the defendant’s constitution- “extraordinary Likewise, as rights. aggravating constitutionally circum- al no such see, 18-1.3-401(8)(a)(II) (de- stances,” e.g., § impermissible sentencing was at factor Walker, parole (Colo.1986), People fendant on another time v. P.2d 666 offense), are which Broga not before us. cites. Here, by finding several the trial Broga, Since divisions court erred discretionary aggravated upheld have constituted an offense ex- See, Broga. e.g., People traordinary circumstance, aggravating sentences based thus Quintano, (Colo.App.2003) violating v. 81 P.3d 1093 defendant’s Sixth Amendment (cert, 12, 2004); granted People Blakely. Jan. rights under Just as the division Campbell, (Colo.App.2002), Young, perceive we proper concluded (Colo.2003); aff'd, whether, inquiry 73 P.3d Mun as not without kus, (Colo.App.2002); People 60 P.3d court’s erroneous conclusion that the offense Eurioste, (Colo.App.2000). extraordinary None constituted cir- cumstance, these eases involved the court’s artic the same sentence would have constitutionally impermissible ulation of a imposed, been but whether the sentence ac- aggravated range reason in sen tually imposed surely was unattributable to tence. People, the court’s error. Bernal v. Cf. contrast, the division in Young, (Colo.App.1999), prior criminality While defendant’s could aggravated range vacated an sentence and justified have resentencing, “because say beyond we cannot a reasonable doubt appears have relied that the trial court’s reference to the under- remorse, express defendant’s failure to some lying extraordinary offense as an right inferred from decision to invoke his surely circumstance did not contribute to silence, sentencing.” both trial and imposition a sentence in the .of de- division concluded because the range. fendant invoked his Fifth Amendment An has both a silence, court sentencing could qualitative quantitative and a dimension. expression consider in his lack remorse qualitative The court makes a de- imposing sentence. depart presumptive range, cision to from the in Young holding The division noted the subject which is Amendment scruti- Sixth Broga, recognized that but also constitutional ny Blakely. The court then makes a generally error mandates reversal “unless quantitative decision where to sentence reviewing beyond is convinced the aggravated range, within which is not reasonable that such error doubt was harm- subject to further Amendment chal- Sixth Young, less.” 987 P.2d at 895. The lenge. These two dimensions make exclusion that, given highly division then reasoned constitutionally impermissible of a factor ar- discretionary inherently and na- multifaceted especially in ticulated of the sentencing, ture of where difficult, clearly unless the record shows that constitutionally impermissible references a this factor was considered to determine factor in range sen- aggravated range. placement within tence, the factor could be dismissed as harm- Here, the permit record does not us to less, affirmed, “only if the plea hearing The draw this conclusion. does supports clearly record the conclusion that not reflect recitation of the factual basis for would have the same pleaded. the offense to which defendant had it con- sentence even not considered the short, sentencing hearing was and the tran- stitutionally illegitimate su- Young, factor.” script provides only insight limited as to the pra, reasoning 987 P.2d 895. This is thought process exercising in court’s its balancing similar to used in test revers- within discretion sentence defendant judgment conviction where aggravated range. exposes court error to constitution- See, ally e.g., improper People Accordingly, evidence. we conclude (Colo.2004); Fry, must be vacated and ease remanded for Welsh, (Colo.App.2002),affd, resentencing. do We not address defen- Young adopt original arguments, given conclu- dant’s analysis. division’s sion. vacated, surely imposed was not attributable and the case is sentence is error. resentencing. Accordingly, I would affirm the sentence

Judge RUSSEL concurs. imposed by court. part dissents Judge concurs NIETO part. concurring part Judge NIETO

dissenting part. I, part respectfully dissent

I concur part II. the result in

from analysis used in agree

I (Colo.App.1999), ap- is Young, 987 P.2d 889 THE PEOPLE OF THE STATE here, I applied but would con- propriately COLORADO, Plaintiff- OF doubt that a reasonable clude Appellee, of the un- sentencing court’s consideration surely not contribute to derlying offense imposed. range sentence Lynn BARTON, Terry Defendant- hand, objectively viewed based On the Appellant. of the of the little known on what is No. 03CA0793. entirely it was an unre- Further, prose- neither the

markable event. Appeals, Colorado Court of court discussed the cutor nor Div. A. great for the offense detail factual basis any why the offense should be offered reason Dec. extraordinary. considered Rehearing As Modified on Denial of hand, defendant’s criminal On the other Feb. 2005.* felonies, objective- viewed of six record extraordinary, ly, be considered be could Denied Certiorari Oct. reveal and the court’s comments criminal record that it considered defendant’s told exceptional. The court

to be way too managed

“You have to accumulate

many The court also convictions.” failure to view of defendant’s

noted advantage probation and other alter-

take sentences, probation a sentence

native of scarce would be a waste resources.

here

Finally, that defendant’s the court observed history juvenile began and con-

criminal as including up “as an to and

tinued adult

present offense.” empha- court’s

Because criminal record and its

sis on defendant’s to the facts the under-

minimal reference

lying a reason- I conclude trial court would have

able doubt that the

gardless of the consideration of the Thus, my opinion,

underlying offense.

* Pierce,J., participate. does not

Case Details

Case Name: People v. Moon

Court Name: Colorado Court of Appeals

Date Published: Oct 11, 2005

Citation: 121 P.3d 218

Docket Number: 03CA1107

Court Abbreviation: Colo. Ct. App.