People v. Martinez9/22/2005
ORDER AFFIRMED
Graham and Román, JJ., concur
Defendant, Charles D. Martinez, Jr., appeals the trial court's order denying his pro se motion for post-conviction relief. We affirm.
In August 2000, defendant pled guilty to vehicular assault-reckless driving, a class five felony, in exchange for the dismissal of another charge of vehicular assault-DUI.
At the January 2001 sentencing hearing, the trial court found that an aggravated range sentence, beyond the one- to three-year presumptive range for a class five felony, was warranted because defendant had committed an "offense against person" and in light of defendant's prior criminal history. That history included convictions entered on pleas of guilty to an alcohol-related offense in 1994 and to two additional alcohol-related offenses committed after the offense for which defendant was being sentenced.
The court sentenced defendant to five years in the department of corrections (DOC), the sentence to be served at community corrections, plus two years of mandatory parole. In 2003, after defendant was terminated from community corrections, he was resentenced to five years in DOC.
In 2004, defendant filed a motion for post-conviction relief pursuant to Crim. P. 35(a) and (c). He alleged that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, including Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the sentencing court had violated his Sixth Amendment rights by imposing an aggravated range sentence on the basis of facts that had not been found by a jury.
The trial court denied the motion without a hearing. It concluded that Apprendi and Blakely did not apply retroactively to defendant's case, and it also found that the aggravated sentence was appropriate based on defendant's prior criminal history, including his "substantial record of prior DUI's."
I.
We first address the parties' contentions regarding whether defendant was entitled to rely on Apprendi and Blakely in seeking post-conviction relief.
Because Apprendi established a new rule of constitutional criminal procedure, its rule applies in cases where the convictions at issue were not yet final when the decision was announced, but it does not apply retroactively to permit collateral post-conviction attacks on convictions that were final before it was announced. See Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); People v. Bradbury, 68 P.3d 494 (Colo. App. 2002). Thus, because Apprendi was announced before defendant's conviction was final, defendant was entitled to seek relief based on Apprendi, albeit under the standards applicable to constitutional claims raised for the first time in post-conviction proceedings, and the trial court erred in concluding to the contrary.
The People do not dispute the applicability of Apprendi. However, they contend that Blakely likewise set forth a new procedural rule and thus, because it was announced after defendant's conviction became final, it does not apply retroactively to defendant's case. The People cite numerous cases from other jurisdictions that have so held. In support of a contrary conclusion, defendant relies on People v. Johnson, ___ P.3d ___ (Colo. App. No. 03CA2339, Apr. 7, 2005), in which a division of this court held that Blakely simply explains and clarifies Apprendi and, therefore, it applies retroactively to the date when Apprendi established its new rule.
We do not decide the issue because we conclude that, even if Blakely and its progeny are considered, along with Apprendi, in assessing d
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