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Lopez v. People5/23/2005
JUDGMENT AFFIRMED
EN BANC
Petition for Rehearing DENIED.
JUSTICE COATS concurs in the judgment only, and JUSTICE KOURLIS and JUSTICE RICE join in the concurrence.
We granted certiorari to consider whether the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), invalidates the aggravated sentence imposed in this case. Defendant Robert A. Lopez pled guilty to possession of a controlled substance and received a two-year deferred judgment and sentence. During his deferral period, Lopez failed drug treatment, returned positive urine analysis tests for drugs, and killed another driver in a drunk driving incident. A jury convicted him of vehicular homicide and driving under the influence .
The trial court sentenced Lopez for the possession offense after the vehicular homicide conviction. It aggravated Lopez's possession sentence under section 18-1.3-401(6), C.R.S. (2004), based on extraordinary aggravating circumstances that included the vehicular homicide convictions and Lopez's conduct during the period of deferred judgment on the possession offense.
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, 125 S. Ct. 738, 769 (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 (1987)(" 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 18-1.3-401(6), C.R.S. (2004), is unconstitutional based on Apprendi and Blakely. We hold that section 18-1.3-401(6), properly applied, is constitutional. In light of Blakely, section 18-1.3-401(6) aggravated sentencing may rely on at least one of four kinds of facts: (1) facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a judge after the defendant stipulates to judicial fact-finding for sentencing purposes; and (4) facts regarding prior convictions.
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 18-1.3-401(6) does not mandate a restricted or increased sentencing range based on judicial fact-finding.
Under that section, the existence of a constitutionally-permissible aggravating or mitigating fact widens the sentencing range on both the minimum and maximum ends, to a floor of one-half the presumptive minimum up to a ceiling of double the presumptive maximum. Th
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