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Lopez v. People5/23/2005
ive 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 better serves the purposes of 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); People v. 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 in Blakely, 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 in Blakely accepted and relied on the Washington Supreme Court's interpretation of its own statute, requiring that "' 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 (quoting State v. Gore, 21 P.3d 262, 277 (Wash. 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
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