*1 3G Wader, 20 Cal. 5 Cal.4th
also (instruction Rptr.2d been would have intoxication voluntary theory defendant's
inconsistent say that defense not
case, court could and purpose in tactical rational had no counsel instruction). intoxication requesting
not her burden
Here, did not meet defendant an intoxication absence of that the proving in professional the result of
instruction strategic decision rather than
competence, Defen of trial counsel. purview
within strategy as to that disagreement
dant's a claim of ineffectiveness. support
will Davis, (citing People v. P.2d at 773 (Colo.1986),
Bossert, 722 P.2d 690-91, Strickland, S.Ct. 466 U.S. "virtually unchal are (strategic choices
lengeable")). is affirmed.
The order JudgeTERRY
JudgeROMAN
concur. Colorado, State
The PEOPLE
Plaintiff-Appeliee, TILLERY, Defendant-
Thomas Dean
Appellant.
No. 06CA1853. Appeals, Court of
Colorado
Div. IV. 1,2009.
Oct. 19, 2009.
Rehearing Denied Nov. *4 General, Suthers, Attorney Chris-
John W. General, Bosch, Attorney topher Y. Assistant Denver, Colorado, Plaintiff-Appellee. *5 Wilson, State Public Douglas K. Colorado Defender, Deputy Eggleston, State Elien K. Colorado, Denver, Defender, for De- Public fendant-Appellant. by Judge WEBB.
Opinion Defendant, Tillery, appeals Thomas Dean jury on a conviction entered judgment of guilty five counts of finding him of verdiet (SAOC) part of a child assault on a sexual (2)(d), 18-8-405(1), C.R.S. pattern, section 2005; on a child- of sexual assault five counts 18-8-405.8(1), (POT), of trust section position C.R.8.2009; a (2)(a), of with one count SAOC 18-3-405(1); victim, and two second section delinquency of a contributing to the counts C.R.9$.2009. 18-6-701, af- minor, We section conviction. judgment firm the con- Tillery appeals the trial court's also sixty years life under current sentences Supervi- Offender Lifetime the Colorado Sex C.R.S8.2009, Act, 18-1.3-1001, § on each sion vacate counts. We pattern and POT resentencing remand for sentences and these opinion. in accordance with counts were pattern and POT All of the sexually Tillery had based on evidence stepdaughter year old his twelve assaulted period while she was month over a seven victim also testified living him. The sexually earlier, Tillery had years that six living in Ben- they her while were assaulted Colorado, incident was nett, although this trial, charged. During prosecution intro- necessary to form a pattern of sexual recording pretextual duced a phone of a call 18-8-401(2.5). abuse as defined section by initiated the victim's mother in which now, Both then and pattern of sexual abuse having admitted to had sexual contact has been defined as "the commission of two with the victim. or more incidents of sexual contact involving a child when such offenses are committed Evidentiary
I. Issues upon an actor the same victim." Section 18- 3-401(2.5),C.R.98.2009. "A trial court has substantial discre deciding tion in admissibility evidence, prove "To pattern of abuse under ... ruling and its will not be disturbed absent an 18-3-405(2)(d), [section] prosecution McGraw, abuse of discretion." prove beyond must a reasonable doubt that "An abuse of (1) the defendant committed an charged act discretion oceurs if the trial court's evi- 18-8-405(1), under [section] ... that consti dentiary ruling manifestly arbitrary, un predicate tuted the offense for [section] 18- reasonable, or unfair." Id. 3-405(2)(d); and the other act or acts
constituting pattern of sexual abuse were A. Admissibility of the Bennett Incident committed years within ten prior to [or at any time predicate after] the offense." Peo Tillery first contends the trial court ple Kyle, 502 (Colo.App. erred admitting evidence of the Bennett 2004). 404(b) incident without satisfying CRE 16-10-8301, section C.R.9.2009. disagree. We Thus, evidence of other acts of sexual con- tact is not similar transaction evidence of- trial, Tillery Before preclude moved to un- prove scheme, fered to intent, plan, or de- charged conduct 404(b), evidence under CRE *6 sign. People Bowring, including the Bennett incident. The trial (evidence (Colo.App.1995) pattern of acts not agreed court prosecutor's with the statement subject 404(b) to CRE procedural safe- that the Bennett incident was admissible "in guards). "Rather, it is evidence that forms prove order to pattern trial," and added integral an part of the offense with which the that evidence of the Bennett incident was defendant charged, was and limiting no in- 404(b)." gestae, "res not perceive We no required." structions are Id. error, although rely we decline to on res gestae. Further, 16-10-801(5) See Eppens, section provides (Colo.1999) (appellate procedural "[the requirements can affirm the of this rulings any court's on section shall apply basis not supported by when the other acts record). presented are prove to that the offense was committed part pattern of a of sexual The former version of section 18-8- 18-8-405(2)(d)." abuse under section 405(2)(d) (ch. 322, see.8, 18-3-405(@2)(d), § Accordingly, 1582), Colo. because the Sess. Laws Bennett under incident which convicted, was years made a occurred within prior SAOC class ten predi- cate offenses felony charged three if: under section 18-8- 405(1) and was admissible as evidence of a The actor commits the part offense as a of pattern of sexual against assault the same pattern a of sexual abuse as described in victim, we conclude that the trial court did subsection of this section. specific No not err. date or alleged time must be pat- for the abuse; tern of except sexual that the acts B. Forensic Testimony Interviewer's constituting pattern of sexual abuse must have been committed years within 10 Tillery next contends the trial court erred prior any to or at time after the offense admitting testimony of a forensic inter- charged in the information or indictment. viewer allegedly vouched for the victim The charged offense in the information or and expert constituted testimony which did indictment shall constitute one of the inci- comply not with CRE reject 702. We both dents of sexual contact involving a child contentions. testimony or understanding of the witness' interviewer forensic victim told The (c) issue, a fact the determination recording of Tillery. A contact sexual technical, scientific, or other not based trial and the during played was the interview scope of knowledge within specialized it. about testified interviewer 702." Rule Vouching Improper 1. testimony proper when Such 608(a)(1) a permit « does CRE reasoning familiar process a 'results from tell victim was a child opine that witness Veren, at 137 life"" everyday par reported a child when the ing the truth Brown, S.W.2d (quoting State by a defendant. assault ticular sexual inquiry is (Tenn.1992)). critical "[TIthe (Colo. 1081, 1088 Gaffney, 769 P.2d People v. testimony upon is based whether witness's 1989). Veren, P.3d at knowledge.'" 'specialized the credi- opinion as to ... an [HJowever if that admissible bility victim is the follow Here, Tillery argues that general characteristics testimony relates CRE 701: testimony improper under ing instance, to elicit only. proper, It is @The children, qualifications general, interviewer's to whether opinion as having training; to lie about sophistication have the a sexual assault. experienced e techniques interview protocols and The interviewer; used Gillispie, 767 P.2d omitted). (citation @The App.1988) younger opinion that interviewer's suggestibility more prone to children are Here, following Tillery points to the children. than older so during by the interviewer made statements victim, which with the interview her recorded qualifications, interviewer's objection: admitted over his were protocols and tech interview training, and e the inter- the rules of explanation An testimony. opinion not constitute niques do had to tell view-including that the victim subject about basic information Certain truth; lay opinion tes seope of may fall within the discussion of timony, if more detailed ® even answers as to the victim's Responding *7 specialized require area would the same explana- needing "more or as "weird" (con Veren, P.3d at knowledge. tion"; about basic information cluding that certain victim, e "I have response to the Saying in scope lay may properly fall within drugs something, answer does you to tell police officer's testimony, although a opinion make sense to me." pseu- the amount testimony regarding opin- express an do not But these statements manufacture meth needed to doephedrine sincerity. truthfulness or on the victim's ion specialized knowl required amphetamine that the object on the basis Tillery failed to edge). victim, improperly coached comments possi- do not address and therefore we Further, training specific unlike the bility. qualifies a knowledge that specialized the interviewer's expert, an here witness as Testimony Expert younger suggestibility of about. the opinion qualify did not prosecution Because years observing her based on children was expert an under CRE interviewer reasoning that can them, "process of not on a admis turns on whether abuse of discretion only by specialists in the field." mastered be testimony was any in her opinions sion of (Colo. Rincon, 140 P.3d People v. Ver TOL. See proper under CRE People, 746 Farley v. also App.2005); see en, 131,136 (Colo.App.2005). 140P.3d (counselor (Colo.1987) em P.2d of the by Services Unit ployed the Victim if lay opinions admissible 701 makes CRE laya testified as properly "(a) police department rationally percep- based on they are very reactions were (b) that the victim's witness, witness helpful to a clear tion of the being victim); Yes, consistent with her a rape A: I girl. when awas little People Rogers, How you? old were App.1990) (permitting testify a detective to I don't remember. under range CRE 701 about the responses youDo you remember where lived? demeanor demonstrated child sexual victims). : apartment. We were in an assault And there was one time when we were in the house Accordingly, we conclude that the trial up in Bennett. by admitting court did not err testimony of the forensic interviewer.
Q: You mentioned also something about II. Trial Errors apartment. When was that? A: When I girl was a little when him and A. Motion for Mistrial my got together. mom Tillery next contends the trial court Q: happened? And what Was that before erred denying his motion for a mistrial or after the house Bennett? after the victim testified a previously about A: -Itwas before. undisclosed sexual contact with him. We discern no abuse of discretion. Q: happened What then?
A remedy Tillery objected mistrial is a drastic mistrial, and moved for a prejudice warranted asserting prejudice when both the ac and nondisclosure. cused is so substantial its effect The trial on the court denied the motion. After jury by any counsel, cannot be conferring remedied other means. instructed the Because jury: the trial court is in a position better any to evaluate adverse improper effect of [TThe court has portion stricken that testimony statements or jury, on a it has testimony of [the victim] as to an incident considerable discretion to determine whether involving she and the defendant in an James, mistrial warranted. apartment.... You must any not consider Hence, "its testimony or evidence which the court has ruling will not be disturbed absent a clear rejected. You disregard must this testi- showing of prejudice abuse discretion and mony or evidence. the defendant." Ortega, Here, unlike the Bennett incident that was 238 (Colo.App.1994). Factors rele mentioned in the taped interview, victim's in considering
vant whether a mistrial should asserts, Attorney and the General be declared include the nature of the inad deny, does not that he prior had lacked no evidence, missible weight of the admissi apartment tice of the incident. See Thomas ble guilt, evidence of and the value of a (Colo.1990) 153 n. 19 *8 cautionary People instruction. Vigil, v. 718 ("[DJue process requires that a defendant be 496, (Colo.1986). P.2d 505 advised charges against of the him so that he juryA presumed to have fol defense."). can prepare his lowed a curative disregard instruction to im Nevertheless, we discern no clear abuse of proper testimony or People statements. v. the trial court's discretion. The reference to McNeely, 540, 68 P.3d 542 (Colo.App.2002). apartment the brief, incident was unembell- Such an inadequate instruction is only when ished, promptly suppressed by the trial the improper testimony or statements are so court, and repeated again not before the prejudicial that, but for exposure, the the jury. Shreck, People 1048, See 107 P.3d jury might not have found the defendant (Colo.App.2004) 1060 (denying motion for guilty. Id. mistrial). The curative prop instruction was Here, during prosecutor's the direct exam- Tillery er and point does anything not to in ination, the victim testified as follows: suggesting the record jury the disregarded Q: Was there ever something hap- Ellis, People it. 774, See 30 P.3d 778 pened you (absent before lived in that house? (Colo.App.2001) evidence to the con-
44 disapprove Although we he had "lied." instruction that such presume
trary, must we statement, no we discern defendant). prosecutor's the any prejudice cured for reversal. basis instruc the argument Tillery's it referred because prejudicial tion was object, Tillery not did Because partic by his active is waived "the incident" only plain for error. review we Further, when asked wording. 116, Cevallos-Acosta, in ipation its 122 140 P.3d comforta court, both sides error, prose- "[alre trial To constitute App.2005). inci "flagrant or it as the just refers to must be misconduct cutorial if the court ble Valley v. object. See dent," Tillery not did tremendously improper," and so glaringly or 555,559-62, 16 441 P.2d People, 165 Colo. of the fairness the fundamental undermine ("failure object to the of counsel reliability on the serious doubt trial as to cast court, cou of the comments clarifying People v. conviction. judgment of ... awas that counsel the fact pled (Colo.App.2003). with Salyer, P.3d in further participant active or less closing argument more misconduct Prosecutorial to a waiv jury, amounts instructing of the People v. rarely plain error. constitutes er"). Weinreich, (Colo.App.2004), 98 P.3d (Colo.2005). aff'd, 119P.8d Tillery appeal, time on the first For questions con prosecutor's asserts objection a factor to an "[Llack not he did Because misconduct. stituted impact of a examining considered be below, review it issue raise this lack closing argument.... The prosecutor's error, discern none. See may demonstrate defense objection (Colo.1982). Constant, P.2d de argument, live belief that counsel's record, in a cold you spite appearance in that its "before lived prosecutor's Rodriguez, 794 damaging." People v. overly that he was did not indicate question house" (alteration (Colo.1990) origi See Peo the undisclosed incident. P.2d aware of (Colo.1984) nal). Abbott, 1263,1269 ple v. anticipated wit not have (prosecutor could rarely seript- Closing arguments are answer). Tillery also as unresponsive ness's McBride, 228 People v. precision. ed question happened then" that the "what serts 2009). prose (Colo.App. And attempting to elicit prosecutor was shows the so devices" may "employ rhetorical cutor an incident testimony regarding details of thereby "does not long prosecutor as Howev Bennett incident. distinct from the guilt jury to determine induce er, this asser failed to raise People v. prejudice." passion basis below, does not include the record tion Allee, question, explanation for that prosecutor's have been existing record could which on the Here, closing during his initial clarify the victim merely attempting to what prosecutor stated: argument, Hence, no error. we discern meant. lied, [Tillery] but both victim] [The O'Connell, are as dramatic for their lies difference be "so (Colo.App.2005) (plain error must protect tried to they victim] [The can be. clear-cut, obvious, competent district so [Tillery] lied to stepdad she loved. avoid it without be able to judge should unselfish victim's] protect [The himself. (internal quotation *9 objection.") benefit strong enough to stepdad for her was love omitted). deny safety. His love her own make her the trial Accordingly, we conclude keep his strong enough to was for himself Tillery's motion by denying did not err drunk, addicted victim year old the twelve for a mistrial. vice- cigarettes, [The and in his bed. to His les victimized. kept her tim's] lies Prosecutorial Misconduct B. satisfy- repeatedly him to continue allowed in that desires own eriminal sexual ing his during closing Tillery next contends bed. improperly stated argument, prosecutor the
Fortunately, began away 18-8-405(1) the lies to 18-8-405.8(1). fade sections and See People Alengi, away v. and fall light 114 P.3d to the of the truth. 17 (Colo.App. really 2004) began ("[In And that when [the victim] light of the overwhelming evi told mom [Tillery], her and her mom told dence of guilt, defendant's prosecutor's the everything." "she told me began The lies little, remarks any, had if effect on the relia away, fall they but didn't continue to fall bility of conviction."), aff'd, defendant's (Colo.2006). away. They were resistant. P.3d 154 Nevertheless, testify. did not pros Accordingly, we they conclude that did not may argue ecutors that a defendant's rise to the level of error. People See v. Knight, 167 P.3d out-of-court 157 (Colo.App.2006). statements were lies. See Peo (Colo. ple Trujillo, 925-26
App.1980)
(plain error
prosecutor
Unanimity
where
III.
Instruction
characterized the
pretrial
defendant's written
Tillery next contends he is entitled
lies.");
statement as "riddled with
to a new trial because
jury may
the
not have
McBride,
(plain
with to enhance his sentence of SAOC had returned cate offense after she in the again bedroom 18-8-405(2)(d). forms The verdict park. disagree. a water We from section home under so indicated. incident the Bennett Because counts were assault remaining sexual The a could not constitute uncharged, was had that three incidents on the next
based 18-8-405(2)(d). See under predicate offense (1) sleep a before in the bedroom: occurred Gholston, (Colo.App. People v. (2) sleep after the September; in late over 2000) under ("[OJuly charged [see a count (8) Halloween. over; right before and 18-38-405(1)[ean] predicate as the serve tion] explained, prosecutor the argument closing 18-8-405(2)(d)."). Nev [section] for offense indicated, that Counts forms verdict and the jury ertheless, the instructions on based incident "second on the 3 and 8 were based ground no for we discern closing argument, bedroom"; 4 and Counts contact of sexual reversal. of sexual "third incident the 9 were based bedroom"; 5 and 10 and Counts contact convicted of Tillery charged with and was of sexual incident the "fourth based on were 18-8-405(1). under section five SAOC counts then prosecutor The in bedroom." contact predicate a counts constituted Each of these a whole lot talked about jury, "she told the un enhancer pattern for a sentence offense times, that, just five those but it's more than 18-8-405(2)(d). People v. See der section times in the first four and the garage the Hoefer, 961 P.2d Hence, supporting evidence the bedroom." basis for no rational "presented counts these identify the did not jury instructions The on one act guilt jurors predicate some for predicate a offense incident as Bennett it on another." jurors based while other Rather, five the SAOC pattern the counts. 144, 155 Thomas assaults that based on sexual counts were 1990). victim was twelve when the had occurred Moreover, Tillery's pattern old, convictions above. years as discussed (2)(d), 18-8-405(1), jury section under prosecutor closing argument, During it must find he that to convict instructed was incident, if jury that the Bennett told the con- the incidents sexual "all of committed doubt, was beyond a reasonable found evidence," "unani- by the tact described Thus, the pattern of abuse. evidence of or more two mously agree that same Tillery's contention support does not record proven have been of sexual contact incidents Ben- relied on the jury improperly This instruc- beyond doubt." a reasonable any predicate for the SAOC nett incident as required safeguards complies tion pattern counts. Melillo, People v. also See Gookins. (Colo.2001) (approving of n. 10 argues Tillery the extent To instruction). unanimity similarly worded the evidence incident the Bennett without jury Accordingly, conclude pattern, we are not prove insufficient Tillery unanimously committed found introduced suffi prosecutor persuaded. alleged sup- specific acts of sexual assault beyond a reasonable prove evidence to cient 18-8-405(1), 3-5 under section port counts (1) five Tillery committed doubt section 18-3- counts 8-10 under (2)(d) and charged under section 18-8- sexual assaults 405.3(1), (2)(a), jury that the unanimous of 405(1), predicate of which constituted all contact, if acts of sexual ly agreed on other 18-3-405(@2)(d); and fenses for section pattern support it relied to any, on which years ten abuse within act of sexual another counts. predicate after these any time prior to or 14; Gholston, P.3d at see offenses. Sentencing IV. 714, 718 Honeysette, 53 P.3d also A. Predicate Offense (a of sexual as conviction (Colo.App.2002) of trust position in a one on a child convie- sault pattern his next contends § 18- offense predicate constitute prosecu- cannot must be reversed because tions
47
3-405(2)(d), but
"pattern
is evidence of a
Although
Supreme
Court has
abuse").
issue,
sexual
not addressed the
the federal circuits
to have
recently adopt
done so
Accordingly,
Tillery's
we conclude that
approach.
Lewis,
See United States v.
pattern
require
convictions do not
reversal
(11th
1219,
Cir.2007) (collect
492
1222
F.3d
because of the Bennett
incident and that
cases).
ing
persuaded
We are
adopt
supports
jury's
sufficient evidence
ver-
view for
following
reasons:
dict.
reading
eA broad
of the admonition in
Cagle would be difficultto reconcile with
Unpreserved
B.
Jeopardy
Double
Error
principle
"plain
error standards
'
apply to constitutional
Although
challenged
failed to raise double
errors
for
appeal,"
the first
time on
People
below,
v.
jeopardy
we review both his initial
Stevenson,
161,
228 P.3d
(Colo.App.
171
jeopardy argument
double
supple
and his
2009)
Miller,
(citing People v.
113 P.3d
concerning
mental assertions
People v. Si
743,
(Colo.2005)),
748-50
mon,
and the innu
(Colo.App.2009),
Veren, at 140 P.3d 140 sentencing errors. other sarily be so with not be addressed ty applied should as Gretz, 110, 111 See, 973 P.2d e.g., People "it is appeal because on time the first ordering (sentencing make without (Colo.App.1998) trial court imperative PSIA). indicates what factual record some to be unconstitution- the statute causes
al."). Separate Sentences Imposing e Acts the double for Identical Criminal before of a verdict Return here, precludes ripe, as jeopardy claim reject Tillery's contention We counselwould defense possibility under the rights his court violated the trial ob a meritorious intentionally "withhold United Jeopardy Clauses Double then, occur, to error jection, permit by impos Constitutions and Colorado States conviction, raise of a event for his convictions ing separate sentences in the appeal," first time on for the error (2)(d) 18-8-405(1), and section under section Smith, 121 obtaining a retrial. hope of 18-3-405.8(1), (2)(a), the convictions authorities). (citing P.3d at 253 criminal acts. were based identical e a rul sentencing court makes Where par jeopardy, either ing on double based punish multiple In the context of de would be appeal, and review ty could offense, jeopardy double for the same ments Stevenson, See, 228 People v. e.g., novo. the same only if of violations is violated 2009). 161, A defen (Colo.App. 168 P.3d factually distinct statutory are not offense jeopardy a double raise can also dant Abiodun, People v. one another. See from P. argument under Crim. sentencing (Colo.2005); 462, see also 111 P.3d Collier, 668, 35(c), 151 P.3d People v. ("[when 18-1-408(1)(a), any § C.R.S.2009 postconviction (Colo.App.2006),and com of a defendant establishes conduct record we on the same would rule offense, the defen than one mission of more now. have before us such offense prosecuted for each dant be difficulty apply have the same includ Nor do we ... offense is [except when] [olne ... sentencing as the other, test to of ing as defined subsection ed in the ..."). The criteria of suggests. special concurrence this section. prejudiced sub plain and that error that is a child not a assault on Sexual O'Connell, see, e.g., rights, stantial a assault on offense of sexual lesser included can be (Colo.App.2005), P.3d People v. of trust. position one in a child sentencing error. alleged used to evaluate (Colo.1998). Leske, In 957 P.2d criterion, the error remaining whether The Valdez, People v. reliability of the doubt on the serious "east[s] explained: the division App.1993), see, conviction]," e.g., People v. judgment [of (Colo.2003), 1002, 1006 Sepulveda, on a child of sexual assault To be convicted sentencing be literally to applied cannot be abuse, the pattern of a sexual part already con has been cause the defendant prove that the not have to prosecution does victed. trust, but position a was in defendant of the sexual the commission prove fit must will error] [of But "no definition other and at least one Barker, charged contact 180 Colo. every case." (1972); the same contact on incident of sexual the offense years of child within ten Cook, P.3d contrast, convicted In to be charged. pos "a underlying reasonable principle, posi- in a by one on a child sexual assault [the] sibility that the error contributed trust, does not have prosecution see, tion of conviction," People, 202 e.g., Kaufman contact, but pattern of sexual (Colo.2009), prove restated as can be position that the in a possibility that the actor was looking for prove reasonable must Hence, to the victim. respect of trust to the sentence. error contributed proof requires of these offenses neither context, would jeopardy the answer double First, than majority's the same or less all of the facts under holding, an of required repeatedly to establish the other. fender who assaulted the same subject child would be one enhanced omitted.) (Citations *13 sentence, regardless of the number of as Tillery's reliance on interpretation saults. This Woellhaf would frustrate (Colo.2005), misplaced. Al- 105 P.3d is Assembly's intent, the by General as shown though supreme the court concluded that plain language, pattern the to treat abuse as neither section 18-8-405 nor 18-8-405.3 "au- greater "of consequence social and which multiple punishments thorizes for each dis- greater punishment." merits People v. Lon crete act of sexual contact that occurs within goria, (Colo.1993); see, 862 P.2d child," single incident of sexual assault on a Court, e.g., People v. District prosecution may that pursue it also noted the (Colo.1986) (court's duty give to effect to multiple if underlying convictions the evi- intent). legislative supports factually dence distinct offenses. Second, the substantive offense SAOC. Here, 218. the evidence at describing SAOG, After the elements of clearly portrayed at least five distinct 18-3-405(2) provides section "it is a class 3 incidents of sexual contact that formed the felony if...." The antecedent of "it" is Tillery's basis convictions under both see- pattern SAOC. And the sentence enhancer 18-8-405(1) 18-8-405.3(1). tions and 18-8-405(2)(d) in section predicated offense," "the which likewise refers back to Accordingly, we conclude that the trial pattern SAOC. Neither the definition in by imposing separate did not err sen- 18-3-401(2.5), section which is entitled his tences for convictions under sections 18- "Definitions," (2)(d) any nor (2)(a). provision other 3-405(1), 18-3-405.8(1), of section, purports to establish a sub stantive offense. See CLPF-Parkridge 2. v. Simon One, Investments, Inc., L.P. v. Harwell supplemental by briefs ordered the divi (Colo.2005) (court may consid sion, Simon, parties addressed title). er statute's (Colo.App.2009). Although P.3d 789 Si Third, the sentence contemplates enhancer pattern mon dealt with the enhancer under ("the multiple acts acts constituting pat- statute, POT now section 18-3- abuse"), tern of sexual one of which shall be 405.83(2)(b), language is identical to the charged offense in the information or "Itlhe enhancer, pattern SAOC now section 18-3- Especially indictment." in a involving case 405(2)(d), Tillery under which was sentenced. multiple charges, language SAOC is con- trary majority's unitary to the approach of According Tillery, judgments "the looking conduct," at "the overall course of of conviction and sentences for all but one of Simon, 791-92, 219 P.3d at pat- in which all pattern convictions must be reversed." Iumped tern acts are together support but urging adopt While us to the dissent in Si one enhanced sentence. mon, Attorney General concedes that Fourth, Woellhaf, under 105P.3d at 218- majority opinion, Tillery under would 19, multiple sexual contacts can constitute counts, remain convicted of five POT but they different offenses if occur in different could stand pat convictedof one SAOC separated locations or are by intervening reasons, following tern count. For the we events. follow the dissent and conclude that because Tillery properly sepa convicted of five applied particular here, As to the facts offenses, was convicted of five SAOC offenses rate SAOC the sentence for each such offense be enhanced based on evi and five POT pattern offenses. The instrue pattern dence of acts. Family See Am. Mut. required tion the incidents of sexual Murakami, Ins. Co. v. "separated by contact be intervening time or (one (Colo.App.2007) ap Further, division of court of events." jury was instructed peals not bound the decision of another charges separate "[elach count division). distinct ... offense and the evidence should 5Q ambiguous language of section 18- [The uninfluenced separately, considered
be 1.3-1004(1)(a) Thus, to re- must be construed any count." other your as decision indeterminate sentence for quire convictions, above, al the POT explained act, two, three, felony and four sex of- predicate class though not evidence applies, consisting which it of an fenses to pattern of sexual constituted evidence natural upper term of the sex offender's convictions. Ho the SAOC for each of abuse a lower term of a definite number life and neysette, P.3d at years, than minimum nor not less jeopardy Therefore, no double discern pre- twice the maximum more than Tillery's enhanced sentences violation five range sumptive authorized for class *14 the counts. on SAOC felony the stands con- of which defendant victed. Tillery's Sentences Term of C. Lower added.) rationale (Emphasis The court's trial court erred
Tillery
the
next contends
apply equally to section 18-1.3-
would
sixty years for
term of
by imposing a lower
1004(1)(b),
Tillery
sen
under which
on
of
life sentences
each
his indeterminate
-
Villa,
-,
P.3d
tenced.
agree.
and POT counts. We
pattern
the
-,
(Colo.App. No.
1. Vensor felony of which the ized for the class of twenty-four defendant stands convicted": Attorney Tillery argues, General years. concedes, agree, that the trial court's and we sixty years for his indetermi lower term of Tillery's Accordingly, we conclude sentences cannot be reconciled nate life what is authorized law sentences exceeded Vensor v. remand, the trial be vacated. On and must 2007), after was sentenced. decided Tillery within these court shall sentence whether, Vensor, opinion on ranges. express no supreme concluded: We In court 18-1.8-401(1)(a), remand, impose can fense in section the trial court consecu- as modified extraordinary pursuant concurrent sentences risk crime tive rather than for 18-1.3-401(10) objectives. original sentencing (Emphasis section ...." achieve its add- ed.) contrast, 18-1.8-406(1)(b), section offenses, of Violence Enhancement applies Crime which to sexual does not 18-1.3-401(10); cross-reference section argues that remand the Tillery next Notwithstanding provisions para- of apply section 18-1.3- cannot (a) (1), graph any person of this subsection 401(10) presumptive range to increase offense, convicted of a sex as defined in of the indetermi- calculating the lower term 18-1.3-1008(5), section committed on or af- crime of nate life sentence on his violence 1, 1998, ter November that constitutes a (Counts 7). Again, convictions 1-5 and crime violence shall be sentenced to the agree. department corrections an indeter- mainate term incarceration at least Language a. Plain midpoint presumptive range in the language We first examine the 18-1.3-401(1)(a)(V)(A) specified in section *15 relevant statutes to determine whether see- up person's to a maximum of the natural 18-1.3-401(10) applies tion to crimes of vio- life, 18-1.3-1004(1). provided as in section offenses, that are sexual and conclude lence added.) (Emphasis un- together, that taken these statutes are clear. whole, Reading these statutes as a legislature cannot determine if the intended 18-1.3-401(10)(a): section Under 18-1.8-401(10) apply to section to crimes of assembly hereby that general The finds Therefore, violence are sexual offenses. para- certain crimes which are listed in legislative we turn to the intent behind see- (10) (b) present an
graph of this subsection 18-1.83-401(10). tion extraordinary society risk of harm to therefore, public safety, in the interest of Legislative History b. of 2004 for such crimes which constitute class 3 Amendments To Section felonies, pre- maximum in sentence the 18-1.3-401(10) sumptive range shall four be increased years .... Assembly passed the General repealed Bill House which section 18- added.) (Emphasis Section 18-L.3- 1.3-401(10)(c). provided: That section 401(10)(b)(XII) "[aluy includes crime of vio- respect specified With to the in offenses lence, as defined in section 18-1.3-406." (I) (VIII) subparagraphs paragraph to of 18-1.3-406(2)(b)(I) Section defines crime of (b) (10) of this subsection and sexual of- part "any violence in unlawful sexual of- violence, fenses that constitute crimes of bodily fense which the defendant caused provisions apply subsection this injury to the victim or which the defendant only prior to offenses committed to No- threat, intimidation, against used or foree vember language, Attorney victim." From HB 18-1.83-401(10) 1888 also eliminated all references to General asserts section 18-1.3-401(10)(b), sexual offenses in section applies to crimes of which violence are sexual which had included both the SAOC and POT offenses. Additionally, offenses issue here. HB (1)(a) However, (1)(b) subsections 18-1.3-406(l)(a) 1888 added to section 18-1.3-406 differentiate between crimes extraordinary reference for an "as modified violence that involve sexual offenses and pursuant risk crime to section 18-1.3- those that do not. Under section 18-1.3- 401(10)." 406(1)(a), any person convicted of a crime of sponsor provided HB The for two violence that is not a sexual offense shall explanations for these amendments: midpoint receive a sentence "of at least the in, of, extraordinary but not more than twice the maximum It removes from the list of presumptive range provided for such of- risk crimes all sexual offenses which were extraordinary reject Tilery's eu- constituting We contention of as not
described we have 1998 amendments to the mulative error. The errors [in risk crimes during changes prosecutor's were remarks sentencing These found were statute]. error, indeter- implementation closing, which did not constitute part of the sentencing, for sexual assaults and which sentencing and the error related minate the confusion about how up Further, clears the bill on remand. will be corrected Tillery's applied. sentencing right error did not affect provisions are these Welsh, to a fair trial. See extraordinary risk puts a reference It statute that sentencing provision into each applicable when it's to ... so it refers Tillery's judgment is affirmed. sen- just place in one but identified will be vacated, is remanded to tence is and the case throughout the statute.1 resentencing consistent Attorney Bill Ritter Denver District Then opinion. with this testified: legisla- regard to sexual offenses this
With
Judge
concurs.
ROMAN
...
body changed the scheme on
sexu-
tive
Judge
specially concurs.
BERNARD
sentencing so that most sexual
al offender
carry
felonies
with them
offenses
are
concurring.
Judge
specially
BERNARD
of the minimum
an indeterminate sentence
I.
Introduction
up
your life
judge
sets and
sentence
there is that outward
"There would seem to be no error
prison.
Because
they're
longer
ap
prison
end of life in
then
no
which
review would not
*16
extraordinary
Nancy
required
ply.
Wright,
..." 8B
Alan
J.
to be sentenced
Charles
Klein,
nothing King
...
in effect means
R.
Federal
risk crimes
& Susan
Practice
(Bd ed.2004).
856,
extraordinary
§
to call them
risk crimes be-
and Procedure
at 511
upper
prison.
quotation represents
life in
cause the
end is
This
the view of emi
analyzing
nent commentators who were
Fed.
legislative history
We conclude that
this
52(b).
R.Crim.P.
Because Colorado's coun
clearly
apply
indicates an intent not to
see
52(b),
identical,
P.
terpart, Crim.
is
see Peo
18-1.3-401(10) to crimes of violence that
tion
(Colo.
O'Connell,
460,
ple v.
134 P.3d
464
statute
"[al
are sexual offenses. Because
my
majority
in
App.2005),
colleagues
not be construed in a manner which
should
clearly
principled
have
reasoned and
basis
intent,"
legislative
defeats the obvious
Tacor
authority,
relying
on federal
such as
(Colo.
People,
ante v.
624 P.2d
1330
Lewis,
492 F.3d
1222
United States
1981), we further conclude that on remand
(11th Cir.2007),
that
to reach
conclusion
Tillery's
the trial court shall not enhance
unpreserved
we should
two
in
review
errors
under section
crime of violence convictions
this case.
18-1.3-401(10).
However,
deeply
I am
troubled
three
Remaining
V.
Issues
questions
respectfully sug-
I
classes of
majority's
argues
gest
inherently
Because
for the first
are
raised
First,
appeal
analysis.
doctrinal
time on
that Colorado's Sex Offender
there are
issues.
facially
that occur in
Supervision
Lifetime
Act is
unconsti Are constitutional errors
sen-
tutional,
argu
tencing,
propri-
are
we decline to address
which
unconnected to
jeopardy argument,
ety
plea
guilt,
of a
or verdict
trial errors?
ment. Unlike his double
errors,
subject
unpreserved
challenge
they
they
If
are not trial
are
facial
is barred.
(Colo.
subject
Lesney,
plain
analysis?
they
If
are
1366
error
1993);
People,
plain
analysis,
error
are the kinds of er-
Rickstrew v.
that trial error verdict, then, guilty parity reasoning, a that can be noticed under possible errors deciding plain the basis for whether to use yet has not been conclusion rule. This supreme Getting court. depends upon our error likewise of the reached effect would, suggest, face chal- point I some guilty that error on the verdict. court's consistent state- lenges light in of the recognize I that other also divisions of this applies to trial errors. ment that error court have assumed that review error at
E.g., Hodges, 158 P.3d applies sentencing proceedings, but have However, assuming that trial error is even engaged analysis questions not in an of the I merely a of the error that can be subset See, Banark, e.g., People raise here. 52(b), are, I under Crim. P. reached (Colo.App.2007); People submit, left without a stan- respectfully still Elie, assessing sentencing er- dard of review for However, cases, many of these in propriety rors that do not involve the of the Elie, cluding Banark involve claims guilty inapposite Harmless error is verdict. arising Blakely based on error from v. Wash because, errors, we are for such unconcerned ington, 542 U.S. S.Ct. jury verdict. Plain error with the does (2004), Apprendi L.Ed.2d 403 v. New apply seem to because we have no interest 466, 490, Jersey, 530 U.S. S.Ct. the trial's fundamental fairness. (2000), L.Ed.2d 435 I contend that these inseparably claims are tied to an error
My
indicates
that neither
research
occurred
trial.
United
States
Supreme
United States
Court nor our su
(3d Cir.2001)
Vazquez, 271 F.3d
preme
directly
has
court
confronted this is
(Apprendi error
consists
a trial error-
However,
respectfully
sue.
I would
submit
"failing to submit an element of the offense
that Medina v.
(Colo.2007),
jury"-and
sentencing
to the
discussing
comes the closest to
error-"im
posing
beyond
prescribed
sentence
hand,
dichotomy
analyze
I
here. On one
maximum").
statutory
provides
argument
aid and comfort to the
sentencing
trial errors
include
errors
assuming,
purposes
argument,
Even
states,
dicta,
because it
trial error
precedent
I found sufficient
to extend
includes constitutional error that occurs "at
sentencing
un
review to
errors
sentencing."
both trial and
Id. at 1141.
propriety
guilty
connected to the
ver
This statement was made based on a citation
dict,
stymied
I would remain
in this
It
case.
case,
Stevens,
to a federal
United States v.
that,
appears
appellate
to me
onee an
(3d
Cir.2000),
223 F.3d
which made
unpreserved
concludes that one of the
errors
statement,
turn,
citing,
identical
majority analyzes
in section IV
oc
has
*18
Fuiminante,
Fulminante.
the error
curred,
remedy
§
the
is automatic.
18-
See
sentencing
inextricably
interwoven with
(a
1-408(1)(a),
defendant
not
an error that
at trial.
occurred
than
if
be convicted more
one offense
"one
hand,
other");
provides sup
People
On the other
Medina
is included in
v.
offense
too,
port
my position,
Simon,
789,
for
it
(Colo.App.2009)
states
219 P.3d
793
(consecutive
deciding
apply
the basis for
whether to
sentences vacated and case re
Mintz,
depends upon
resentencing); People
harmless or structural
error
manded for
v.
(be
829,
"the effect the
guilty
(Colo.App.2007)
error had on the
verdict
165 P.3d
835-36
Medina,
in the case."
55
conduct,
axiomatic that
this court
not consider
conviction for lesser
will
division vacated
constitutional issues raised for the first time
offense).
appeal."
on
That statement was made
identified,
errors,
require an
If
once
such
analyzing
whether a defendant
course
had
remedy,
question must be
automatic
argument
preserved
appeal
for
an
that a
of review
proper
standard
raised whether
Thus,
is,
Cagle
unconstitutional.
statute was
error,
plain
error.
is structural
for them
least,
very
expression
at the
an
of the unex
now,
prepared to conclude
Although I am not
ceptional and
idea that
well-established
future,
necessarily in
the errors
or
constitutionality of statutes will not be ad
structural,
they seem to
at
here are
issue
appeal.
the first
time on
dressed for
See
errors the attribute
share with structural
(Colo
1364,
People
Lesney,
v.
855 P.2d
1366
so,
remedy.
plain
If
error
then
automatic
.1993).
allegations
This includes
that statutes
analysis
inapposite.
Griego, 19 P.3d at
applied. People
as
are unconstitutional
v.
(structural
plain
are not amenable to
7
errors
Veren,
131,
(Colo.App.2005).
140 P.3d
140
review); Bogdanov
v.
941 P.2d
error
Therefore,
my
it is
belief that
error
plain
("Structural
(Colo.1997)
247,
errors
252-53
encompass
review in Colorado does not
un-
not amenable to either
harmless error
are
preserved constitutional attacks on statutes.
analysis
error
because such errors
or
Further,
supreme
Cagle
court has cited
trial
'the framework within which the
affect
concluding
as a basis for
that a defendant
in the trial
proceeds,
and are not errors
"may only
improper
raise the
denial of his
Fulminante,
process
(quoting
itself"
499
right
speedy
ap
to a
constitutional
on
310,
1246)),
111 S.Ct.
overruled
U.S.
peal if he
in the trial court."
raised
first
7-8;
by Griego,
P.3d at
grounds
other
19
(Colo.
237,
People McMurtry,
v.
P.3d
(Colo.
Jimenez,
841,
P.3d
Scialabba,
2005);
accord
55 P.3d
("If
structural,
App.2008)
an error is
it is not
209-10
In addition to
susceptible of harmless error or
error
majority
cited
the cases
which
Dunlap,
(citing People v.
review."
upon Cagle
divisions of this court have relied
(Colo.1999),
Bogdanov);
jeopardy
to conclude that double
claims
(Utah 2005)
Cruz,
State v.
should not be
considered
the first time on
(because they
very
affect the
framework of
appeal,
Cagle
other divisions have cited
trial,
subject
structural errors are not
declining
unpreserved
the basis for
to review
analysis);
plain error
but see Johnson v.
allegations that:
States,
461, 466, 117
United
520 U.S.
S.Ct.
e
process rights
The defendant's due
were
(indicating
broader
include,
plain
step
in
to which
error review relief
the fourth
but are not
to be no error
to,
in
apply,"
miscarriage
would not be consistent
limited
errors that result
a
would not
approach.
justice, meaning
that
with Colorado's
the errors led to the
actually
conviction of a defendant who is
Further,
jeopardy issues the
the double
Olano,
innocent.
If we are authority, federal review based on plain error Appeals Tenth Cireuit Court of has importing also whether we are I wonder analysis a feder that a state court's of stated step of the fourth of courts' view federal plain al under the error standard does issue idle This concern is not plain error review. procedural act a bar to federal habeas not federal court used at least one because Mullin, Cargle corpus review. See unpreserved double step to resolve an fourth (10th Cir.2003). However, F.3d Danson, States v. jeopardy claim. United deny court could relief for what it a state (2d Cir.2004), a case Fed.Appx. recognizes or assumes to be federal er- jeopardy ar involving unpreserved double ror, petitioner's of the failure to because multiplici- the indictment was gument that pred- satisfy independent some state law in charged the same because it tous crime case, icate. In such a that non-merits counts, this issue the court resolved different indepen- predicate would constitute an step. The by applying the fourth Olano ground which dent state for decision that, erroneous "[blecause court concluded application procedural- of would warrant any, if indictment not multiplicity, did principles bar on federal habeas. imprison term of [the defendant's] affect Id. ment, seriously any error did not affect the By extending plain error review to the proceedings 115 Fed. fairness of the below." case, in this risk sorts of errors eliminat Appx. at 488. ing procedural might a bar that be available con- Interpreting plain our error standard prevent federal habeas review of them. four-step approach federal gruently with the because, plain is so without error re This First, four-step anal- could be beneficial. view, contemporaneous the failure to raise a apply courts to ysis would allow Colorado unless, objection procedural can create a bar authority. helpful persuasive federal and course, petitioner can demon of habeas Second, analysis four-step of the the use preju for the default and actual cause strate my about the could lessen some concerns Wiseman, States v. 297 F.3d dice. United expansion plain error review because (10th Cir.2002); see also reviewing ap- courts to four-step test allows Gibson, 268 F.3d McCracken discretionary brake on the review of ply Cir.2001) (10th ("We not will consider issues unpreserved that do not threaten the review 'that have been defaulted in errors habeas fairness, public reputation of our integrity, or independent adequate court on an and state judicial system. This brake would conserve procedural ground, petition unless the state resources, judicial much in the man- limited prejudice cause and or a er can demonstrate Cagle the use of conserves them. justice'" ner miscarriage (quot fundamental Gibson, ing 191 F.3d Smallwood However, apparent differ- (10th Cir.1999))). plain between our error standard and ences disagreement I in our concede counterpart, four-step au- its federal federal majority may cites raise cases thority necessarily helpful persua- procedural question whether the default rule Further, employing the dis- sive. a decision firmly established in this context has been cretionary step to decline to review an fourth followed, regularly thereby undereutting supreme our issue be reversed because efficacy independent adequate its as an step determines that the fourth does procedural grounds. See McCracken v. state Therefore, unless and not exist Colorado. Gibson, F.3d at supreme court informs us that Colo- until our contend, congruent However, nonetheless, plain rado's error standard is that we I respectfully I four-step approach, intentionally increase the reach of the federal should not expand suggest using federal cases to error rule without a careful under- standing error how such an extension would types of errors we review for procedural jurisprudence, muddying, clarifying, than our affect our default risks rather turn, and, how, jurisprudence our would jurisprudence. *21 58 corpus review. De-
affect federal habeas
plain
To increase the
of
number
errors we
already
by adding
arising
review
more
out of
viewpoint-defense
coun-
pending upon
one's
example-eliminating
unpreserved sentencing
jeopardy
sel or
for
double
prosecutor,
er
not,
may,
procedural
may
be a
this
bar
rors also seems to me to be inconsistent with
respectfully
There,
submit
that we
good
Young.
idea.
I
another admonition in
Supreme
Court stated that unwarranted ex
this
in
explication
need a full
of
issue
order
52(b)
good
a
pansion
seope
to
whether it is
idea.
decide
of Fed.R.Crim.P.
balancing
the Rule's 'careful
of our
"skew[s]
B.
Concerns
Other
encourage
participants
need
all trial
to
to
seek a fair and accurate trial
the first
time
observes,
majority correctly
citing
As the
against
around
our insistence that obvious
Smith,
243,
(Colo.App.
v.
121P.3d
injustice
promptly
Young,
be
addressed.'"
2005) (Webb, J., specially concurring), requir
15,
(quoting
U.S.
human Any one of its citizens.
innocence of encourages the rule which
procedural proceedings be as free
result that those thoroughly possible is desir-
of error as