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Lopez v. People5/23/2005
ry, and proved beyond a reasonable doubt"); Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998)("recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence").
Although there is some doubt about the continued vitality of the prior conviction exception, we conclude that it remains valid after Blakely. See Booker, 125 S. Ct. at 756 ("we reaffirm our holding in Apprendi: Any fact (other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt")(emphasis added); United States v. Orduno-Mireles, 2005 WL 768134 *2 (11th Cir. Apr. 6, 2005)("Put another way, because the prior-conviction exception remains undisturbed after Booker, a district court does not err by relying on prior convictions to enhance a defendant's sentence."). We adopt a useful shorthand from the Arizona Court of Appeals; facts admitted by the defendant, found by the jury, or found by a judge when the defendant has consented to judicial fact-finding for sentencing purposes we call "Blakely-compliant," and prior conviction facts we call "Blakely-exempt." State v. Aleman, 109 P.3d 571, 580 (Ariz. App. 2005).
C. Colorado's Sentencing Statute--Section 18-1.3-401(6) and the Presence of Extraordinary Mitigating or Aggravating Circumstances
Colorado's sentencing system provides for separate classes of offenses and different sentencing options in a complex scheme of interlocking statutes, premised upon the segregation of felony offenses into six levels or classes, each with its own presumptive sentencing range. Under various circumstances, courts are permitted to sentence convicted felons in a mitigated range, as little as half the minimum presumptive sentence, or in an aggravated range, as great as twice the maximum presumptive sentence. Likewise, under various circumstances, courts may be limited to specified portions of the statutorily prescribed range for a given class of felony. Martinez v. People, 69 P.3d 1029, 1031-32 (Colo. 2003)(internal citations omitted).
This case does not concern the state's separate statutory sentencing provisions, such as special provisions for habitual offenders or special offenders. See, e.g., §§ 18-1.3-801, C.R.S. (2004)(habitual offender statute); 18-18-407, C.R.S. (2004)(special offender statute). Instead, in this case we consider only the general sentencing statute, section 18-1.3-401, C.R.S. (2004), and particularly section 18-1.3-401(6).
Colorado's general sentencing statute provides four ways a sentence might be increased over the presumptive range. First, the minimum sentence must be raised to "at least the midpoint in the presumptive range" and the judge may sentence up to "twice the mandatory maximum term authorized in the presumptive range" if one of several offender-based, enumerated extraordinary aggravating circumstances are present. § 18-1.3-401(8)(a), (9). For example, this range applies if:
(I) The defendant is convicted of a crime of violence under section 18-1.3-406;
(II) The defendant was on parole for another felony at the time of the commission of the felony;
(III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony;
(IV) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony at the time of the commissi
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