Lopez v. People

HOBBS, Justice.

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 SupremePage 732Court's decision inBlakely v. Washington, ___ U.S. ___,124 S.Ct. 2531,159 L.Ed.2d 403(2004). Because I believe the majority misconstruesBlakelyand therefore mischaracterizes its application to the statutory sentencing scheme of this jurisdiction, I cannot join its opinion.

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.Seeop. 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 section18-1.3-401,¹but is limited according to the nature and source of the facts relied on to support any particular sentence.

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 conviction) submitted to a jury and proved beyond a reasonable doubt.Blakely,124 S.Ct. at 2536(citingApprendi v. New Jersey,530 U.S. 466,490,120 S.Ct. 2348,147 L.Ed.2d 435(2000)). By "statutory maximum" the Court explains that it means the maximum sentence that a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.United States v. Booker, ___ U.S. ___, ___,125 S.Ct. 738,747,160 L.Ed.2d 621(2005);Blakelyat 2538. In the next breath, the Supreme Court emphasizes that it has, however, never doubted the authority of a judge to exercise broad discretion in imposing a sentence within the statutory range,Bookerat 750 (citingWilliams v. New York,337 U.S. 241,246,69 S.Ct. 1079,93 L.Ed. 1337(1949)), including giving consideration to not only the conduct with which the offender was expressly charged, but also his actual conduct in committing the charged offense, his unrelated criminal conduct, and even aspects of his life that go beyond antisocial conduct.See Williams,337 U.S. at 246,69 S.Ct. 1079(upholding what has come to be referred to as "real offense" sentencing);see also People v.Newman,91 P.3d 369,372(Colo. 2004) (noting the agreement of Colorado sentencing statutes, which require consideration of "the nature of the offense, the character of the offender, and the public interest").

Colorado's presumptive sentencing scheme, which became effective in 1979,²divides felonies into various classes and establishes a presumptive range of imprisonment for each class. §18-1.3-401(1)(a)(V)(A). Among its options, a court may sentence a convicted felon to a term of incarceration ranging from one-half of the minimum term authorized in the presumptive range to twice the maximum term authorized in the presumptive range. §18-1.3-401(6). A sentence to incarceration is limited to the presumptive range "unless [the sentencing court] 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 betterPage 733serves the purposes of [the] code."Id.If the court chooses to sentence beyond the presumptive range, for reasons other than being specifically required to do so by other statutory provisions (which are not applicable to this case), the statute requires it to "make specific findings on the record of the case, detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentence." §18-1.3-401(7). This court has consistently rejected any suggestion that a sentence beyond the presumptive range may not be predicated on the facts proving the elements of the crime alone.See People v. Leske,957 P.2d 1030(Colo. 1998);Peoplev. Phillips,652 P.2d 575(Colo. 1982).

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 inBlakely, 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§18-1-409, C.R.S. (2004).

Of perhaps even greater importance, however, the Supreme Court inBlakelyaccepted 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(quotingState 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 People v. Walker,724 P.2d 666(Colo. 1986);Flowerv. 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 Phillipsat 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 aggravated.Page 734Similarly, we have long construed the statutory requirement for a statement of reasons justifying a sentence outside the presumptive range, like the required statement of reasons supporting any sentence to a correctional facility, as serving such salutary purposes as aiding appellate review of a sentence, fostering rationality and consistency in the sentencing process, and providing information beneficial to both the defendant and correctional authorities, rather than as a statement of separately reviewable findings of fact.See Walker,724 P.2d at 668.

The majority characterizes theBlakelyCourt 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 sinceBooker, 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-Bookerfederal 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, section18-1.3-401(6) does not even suggest that sentencing within particular sub-ranges becomes appropriate only upon particular factual findings by the court; and unlike the federal review of departures from the guidelines for "unreasonableness," in consideration of the statutory factors that guide sentencing, review for an abuse of discretion remains the sole review permitted for sentences exceeding the presumptive range, just as for all other felony sentences in this jurisdiction.

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 inBlakelythat by "statutory maximum" it meant "the maximum sentence a judge may imposesolely on the basis of facts reflected in the jury verdict oradmitted 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 whenBlakely-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,Page 735125 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,"seeop. 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§2-4-204, C.R.S. (2004), and preserve, by severance, as much of the scheme as would be consistent with legislative intent. Because I consider it clear, however, that a sentence in the aggravated range does not exceed the "statutory maximum" prescribed for conviction of any particular felony, I would affirm the court of appeals without finding the statute unconstitutional in any respect. I therefore concur only in the judgment of the court.

I am authorized to say that Justice KOURLIS and Justice RICE join in the concurrence.