 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Lopez v. People5/23/2005
ncing in the aggravated range because it understands the term "statutory maximum" to have a special meaning "for Sixth Amendment purposes." Slip op. at 35. Seizing on the Supreme Court's explanation in Blakely that by "statutory maximum" it meant "the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted 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 when Blakely-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, 125 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," see slip op. at 35, 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.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|