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Lopez v. People5/23/2005
e sentencing judge then has full discretion to sentence within this widened range according to traditional sentencing considerations. However, if the trial judge must find additional facts in order to impose a sentence outside of the presumptive range, the rule of Blakely applies.
The trial court based Lopez's aggravated sentence in part on the prior conviction facts in the jury's vehicular homicide verdict. Because Lopez's sentence was aggravated on the basis of these facts, we affirm the court of appeals' judgment but on grounds that are different from those expressed in that court's opinion. Accordingly, we uphold Lopez's sentence.
I.
Robert Lopez was arrested on October 3, 2000 and charged with possession of a schedule II controlled substance, cocaine (possession). See § 18-18-405(1)(a), 6 C.R.S. (2000). Possession in this instance is a class four felony. § 18-18-405(2)(a)(I). The presumptive sentence for a class four felony is two to six years of incarceration and three years of mandatory parole. § 18-1-105(1)(a)(V)(A), 6 C.R.S. (2000).
Lopez entered a plea agreement with the prosecution in which he pled guilty to possession and received a deferral of his judgment and sentence for two years. Lopez initialed plea documents that listed his "presumptive range" sentence as two to six years plus three years of mandatory parole, and listed his "minimum sentence" as one year and his "maximum sentence" as twelve years. This minimum and maximum reflect the trial judge's discretion to decrease or increase the felony sentence beyond the presumptive range based on the presence of extraordinary mitigating or aggravating circumstances under section 18-1.3-401(6), C.R.S. (2004).
In his Motion and Stipulation for Supervised Deferred Judgment and Sentence, Lopez stated that he was aware of the following conditions to his deferral:
3.(a) the defendant shall not commit any criminal offense against the United States of America, the State of Colorado or any other jurisdiction;
(d) the defendant shall refrain from use of alcohol, and any unlawful use or possession of controlled substances or have any other dangerous or abusable drug without a prescription;
(g) the defendant shall satisfy any other conditions reasonably related to his/her rehabilitation and the purpose of this supervisory period, as ordered by the Court;
5. The District Attorney may make application for entry of judgment and imposition of sentence at any time within the term of the deferred judgment . . . upon a breach by the defendant of any of the conditions set forth in this stipulation. . . .
Lopez signed a written Crim. P. 11 advisement that included the following paragraph:
I know that if I plead guilty to a felony, I may be sentenced to the custody of the Department of Corrections. . . . I know that if the judge found extraordinary or sentence-enhancing circumstances in my case, I could be sentenced to any term from the minimum to the maximum. . . . I also know that if the judge does not find extraordinary or sentence-enhancing circumstances, I would be sentenced to a definite term within the presumptive range for each offense.
The factual basis for Lopez's plea agreement was the probable cause affidavit and the supplemental presentence report. Neither of these documents is in the record, nor does the record indicate whether Lopez admitted to the facts contained in these documents. At the hearing on his plea agreement, the judge asked how Lopez wanted to plead to "unlawfully, feloniously, and knowingly possess a Schedule Two controlled substance, to wit cocaine," and Lopez answered " uilty."
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