Petition for Writ of Certiorari — Christopher Anthony Mountjoy, Jr., Petitioner v. Colorado
Supreme Court briefJan 18, 2019
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APPENDIX
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APPENDIX A
The Supreme Court of the State of Colorado
2 East 14th Avenue, Denver, Colorado 80203
2018 CO 92M
Supreme Court Case No. 16SC653
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA1215
Petitioner:
Christopher Anthony Mountjoy, Jr.,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
November 19, 2018
Opinion modified, and as modified, petition
for rehearing DENIED. EN BANC.
December 3,2018
Attorneys for Petitioner:
Megan Ring, Public Defender
Jud Lohnes, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
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Cynthia H. Coffman, Attorney General
Brock J. Swanson, Assistant Attorney General
Denver, Colorado
JUSTICE BOATRIGHT delivered the Opinion of
the Court.
JUSTICE GABRIEL dissents, and JUSTICE
HART joins in the dissent.
1. Christopher Mountjoy was convicted of reckless manslaughter, illegal discharge of a firearm, and
tampering with physical evidence after he shot and
killed V.M. outside of a motorcycle clubhouse. During
sentencing, the trial court found that each crime involved extraordinary aggravating circumstances. In
doing so, the trial court relied on factual findings that
were made by the jury beyond a reasonable doubt on
the related charges as aggravating factors for the offense for which he was being sentenced. As a result,
the trial court doubled the statutory presumptive
maximum of each sentence.
2. Mountjoy appealed his sentences, arguing that
aggravating his sentences in this fashion violated his
constitutional rights to due process and trial by jury
under Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Blakely v. Washington, 542 U.S. 296 (2004). The
court of appeals avoided the question of whether Apprendi and Blakely had been satisfied and concluded
that, even assuming they were not satisfied, any error
was harmless. We granted certiorari 1 and now affirm
1
We granted certiorari to review the following issues:
1.
Whether Apprendi v. New Jersey, 530 U.S. 466
(2000), and United States v. Gaudin, 515 U.S.
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on other grounds. We hold that the trial court did not
deny Mountjoy his rights to due process and trial by
jury when it relied on facts found by the jury beyond
a reasonable doubt on charges related to the offenses
for which the aggravated sentences were imposed.
Therefore, we affirm the judgment of the court of appeals on different grounds.
I. Facts and Procedural History
3. This case arises from a shooting outside of a
Sin City Disciples motorcycle clubhouse. On the night
of the shooting, Mountjoy was working as the club’s
506 (1995), require a jury to make the ultimate
determination of “extraordinary aggravating circumstances” under Colorado’s residual sentence
aggravator, where the requisite finding presents
a mixed question of law and fact.
2.
Whether a violation of the right to jury trial on a
sentence aggravator can be harmless under
Washington v. Recuenco, 548 U.S. 212 (2006),
where the jury probably would have found the
historical facts the judge relied on in finding the
aggravator was present, but there is substantial
doubt the jury would have drawn the ultimate
conclusion that the historical facts proved the aggravator.
3.
Whether a violation of the right to a jury trial on
a sentence aggravator can be harmless under
Washington v. Recuenco, 548 U.S. 212 (2006),
where the prosecution neither charged the aggravator in the information nor gave pre-verdict
notice it sought aggravation.
Because we conclude that Mountjoy’s aggravated sentences satisfy Blakely and Apprendi, we do not address issues two and
three, which relate to harmless error.
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security. The victim of the shooting, V.M., participated in a fight and, as a result, was forced to leave
the clubhouse. V.M. drove off with a friend, but they
returned to the clubhouse shortly thereafter to reportedly retrieve a wallet he lost during the fight. In returning, the friend parked the car outside the clubhouse with the engine idling. Mountjoy testified that
he was concerned that the victim had returned to retaliate. At that point Mountjoy fired eight shots in
the direction of the car. As the shots were fired, the
car drove away from Mountjoy. One of the fired shots
struck and killed V.M. Following the shooting,
Mountjoy directed other members of the club to clean
up the area, and he deleted text messages from his
phone that mentioned the shooting. Subsequently,
the People charged Mountjoy with first-degree murder after deliberation, first-degree extreme indifference murder, robbery, illegal discharge of a weapon,
and tampering with physical evidence.
4. At trial, Mountjoy was found guilty of (1)
reckless manslaughter (the lesser included offense
to first-degree murder after deliberation and firstdegree extreme indifference murder), (2) illegal discharge of a firearm, and (3) tampering with physical
evidence. In sentencing Mountjoy, the trial court
determined that there were extraordinary aggravating circumstances that warranted doubling the
maximum presumptive range sentence for each of
Mountjoy’s three convictions under section 18-1.3401(6), C.R.S. (2018). Specifically, the court found
that the reckless manslaughter conviction was extraordinarily aggravated because Mountjoy used a
weapon, tampered with evidence, admitted to firing
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eight shots, fired into a car with two occupants, and
fired while the car was driving away. Furthermore,
the court found that the illegal discharge conviction
was extraordinarily aggravated because somebody
died and Mountjoy tampered with evidence. Finally, the court found that the tampering count was
extraordinarily aggravated because somebody died.
By aggravating the sentences, the trial court sentenced Mountjoy to twelve years in prison for the
reckless manslaughter charge, six years in prison
for the illegal discharge of the firearm charge, and
three years in prison for the tampering with physical evidence charge, each to be served consecutively,
for a total of twenty-one years in prison.
5. Mountjoy appealed the aggravated sentences, arguing, among other things, that his constitutional rights to due process and a jury trial under Blakely and Apprendi had been violated because
the trial court had issued aggravated sentences for
each count based on facts that the jury had not specifically found in connection with those particular
counts.
6. The court of appeals upheld the enhanced
sentences. People v. Mountjoy, 2016 COA 86, ¶ 55,
__ P.3d __. The majority held that even if the trial
court’s actions violated Blakely and Apprendi, the
error was harmless because the jury would have
found the facts necessary to aggravate each count
specifically in connection with each count had it
been asked to do so. Id. at ¶ 1. In a special concurrence, Judge Jones argued that no Blakely/Apprendi
error had occurred. Id. at ¶¶ 57–68. We granted
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certiorari and now affirm the court of appeals’ judgment on different grounds.
II. Standard of Review
7. We review legal questions and constitutional
challenges to sentencing schemes de novo. Misenhelter v. People, 234 P.3d 657, 660 (Colo. 2010); Lopez v.
People, 113 P.3d 713, 720 (Colo. 2005).
III. Analysis
8. We begin by examining Mountjoy’s sentencing
and Colorado’s aggravated sentencing scheme. Next,
we discuss the constitutionality of aggravated sentencing schemes under Blakely and Apprendi, and
how Colorado’s scheme has been implemented to satisfy constitutional requirements. Finally, we conclude that each of Mountjoy’s aggravated sentences
are Blakely-compliant and therefore did not deny him
his rights to due process and trial by jury.
A. Colorado’s Aggravating Circumstances
Scheme
9. Colorado’s felony sentencing statute, section
18-1.3-401, provides sentencing ranges for a trial
court, and such ranges are premised on the specific
class of felony for which a defendant is convicted. In
this case, Mountjoy was convicted of three offenses:
(1) Reckless manslaughter, a class four felony with a presumptive range of two to six
years imprisonment;
(2) Illegal discharge of a firearm, a class five
felony with a presumptive range of one to
three years imprisonment; and
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(3) Tampering with physical evidence, a class
six felony with a presumptive range of one
year to eighteen months imprisonment.
10. A trial court, however, may sentence a defendant in excess of the presumptive range if the court
concludes that extraordinary aggravating circumstances are present. In that instance, the trial court
can impose a sentence greater than the maximum in
the presumptive range; except that in no case shall
the term of the sentence exceed twice the maximum
authorized in the presumptive range. See § 18-1.3401(6). Thus, the trial court here was authorized under section 18-1.3-401(6) to sentence Mountjoy to
twelve years for reckless manslaughter, six years for
illegal discharge of a firearm, and three years for tampering with physical evidence. The trial court’s implementation of section 18-1.3-401(6), however, must
have comported with the Sixth Amendment, which
guarantees, among other rights, the right to a trial by
an impartial jury.
B. The Constitutionality of Colorado’s Aggravating Circumstances Scheme
11. In 2000, the U.S. Supreme Court decided Apprendi, which held that the Sixth Amendment right
to a jury trial prohibits courts from enhancing criminal sentences beyond the statutory maximum based
on facts other than those found by a jury beyond a
reasonable doubt. 530 U.S. at 490. The Apprendi
Court noted a narrow exception to the jury-finding requirement—the fact of a prior conviction. Id.
12. Four years later, the Court applied Apprendi
in the context of an aggravated sentencing guideline
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analogous to our section 18-1.3-401(6) in Blakely. 542
U.S. at 299, 301. Although the statute in Blakely did
not specifically use the term “aggravating circumstances,” it was functionally equivalent, providing
that “[a] judge may impose a sentence above the
standard range if he finds ‘substantial and compelling
reasons justifying an exceptional sentence.” 542 U.S.
at 299 (quoting Wash. Rev. Code § 9.94A.120(2)
(2000)). In Blakely, the defendant pleaded guilty to
the crime charged, and the judge, believing that the
crime had been committed with “deliberate cruelty,”
imposed an exceptional sentence that exceeded the
standard range. Id. at 298. The U.S. Supreme Court
reviewed the constitutionality of that sentence.
13. The Blakely Court made two significant holdings regarding aggravated sentencing statutes. First,
the Court held that for sentences based solely on the
facts reflected in a conviction, the maximum sentence
that a trial court may impose is the maximum of the
presumptive range, not the aggravated range. Id. at
303–04 (“In other words, the relevant ‘statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum
he may impose without any additional findings.”).
Thus, to aggravate a defendant’s sentence under a
sentence enhancing scheme such as the one in
Blakely or our section 18-1.3-401(6), the trial court
must rely on facts outside of the elements of the
crime itself. Second, the Blakely Court held that
any sentence beyond the presumptive range must
comply with Apprendi, i.e., any additional fact that
a trial court relies on to enhance a sentence—other
than the existence of a prior conviction—must have
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been admitted by the defendant or found by a jury
beyond a reasonable doubt. Id. at 303.
14. Applying these holdings, the Blakely Court
found that the exceptional sentence imposed on the
defendant violated Apprendi because the facts suggesting that deliberate cruelty had occurred were neither admitted by the defendant nor found by a jury.
Id. Since the defendant in Blakely had pleaded guilty
to the crime, the Court determined that the only facts
admitted by the defendant were those that constituted the elements of the crime. Id. at 304. As a result, the Court held that the trial court could not have
imposed a sentence outside of the standard range
without pointing to an additional fact, and any such
additional fact-finding would be subject to the Sixth
Amendment jury-trial guarantee. See Cunningham
v. California, 549 U.S 270, 271 (2007) (discussing
Blakely). Notably, the Court determined that it was
not the sentence enhancing scheme itself that violated Apprendi, but rather its implementation. See
Blakely, 542 U.S. at 308. Hence, a judge may rely on
facts outside of the elements of the crime itself that
she deems are important to the exercise of her sentencing discretion, so long as a jury found (or the defendant admitted to) those facts. Id. at 303, 308–09.
15. We applied Blakely and Apprendi when we
considered the constitutionality of section 18-1.3401(6) in Lopez. We held that section 18-1.3-401(6) is
constitutional under Blakely so long as an aggravated
sentence is based on a fact additional to the elements
of the crime that is 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
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after the defendant stipulates to judicial fact-finding
for sentencing purposes, or (4) the fact of a prior conviction. Lopez, 113 P.3d at 719; 2 see also Blakely, 542
U.S. at 302–10. Facts fitting into the first three categories are considered Blakely-compliant, and facts fitting into the fourth category are considered Blakelyexempt. Lopez, 113 P.3d at 723. We further held that
the trial court determines as a matter of law whether
Blakely-compliant facts and Blakely-exempt facts
constitute aggravating circumstances pursuant to
section 18-1.3-401(6). Id. at 726 n.11.
16. One type of Blakely-compliant fact includes
facts that constitute an element of a crime of a conviction—either by guilty plea or jury verdict—separate from the charge being aggravated. See People
v. Watts, 165 P.3d 707, 709–12 (Colo. App. 2006)
(holding that the facts inherent to a prior conviction
can be Blakely-compliant as admissions by the defendant); People v. Bass, 155 P.3d 547, 550, 555
(Colo. App. 2006) (holding that aggravating facts
can be found based on the element of a concurrent
conviction). Accordingly, in order for Mountjoy’s aggravated sentences to be constitutional, each sentence must be based on a fact outside of the conviction for which he was being sentenced, and that fact
must have been either admitted by Mountjoy or
2 Regarding the fourth category, we note that the Lopez court
defined category four as “facts regarding prior convictions.” 113
P.3d at 719 (emphasis added). Blakely defines category four as
“the fact of a prior conviction.” 542 U.S. at 302 (emphasis added)
(quoting Apprendi, 530 U.S. at 490). We adopt the language of
Blakely and in so doing do not express any opinion regarding the
language used in Lopez.
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found by a jury beyond a reasonable doubt. So, the
specific question presented in this case is whether a
sentence that is aggravated based on an element of
a crime that arises out of the same criminal episode
for which there is a separate conviction satisfies
Blakely and Apprendi.
C. Mountjoy’s Assertions
17. Mountjoy contends that Apprendi, read
alongside United States v. Gaudin, 515 U.S. 506
(1995), requires a jury to not only find specific facts
beyond a reasonable doubt, but to also make the specific determination of whether these same facts actually constitute “extraordinary aggravating circumstances” when sentencing outside of the presumptive
range. In Gaudin, the defendant was charged with
making false statements of material fact on Department of Housing and Urban Development (“HUD”)
loan documents. Id. at 508. At trial, the district court
instructed the jury that, although the government
had to prove that the alleged false statements were
material to HUD’s activities and decisions, the issue
of materiality was not for the jury to decide; rather
the court told the jury that the court itself would determine materiality and that “the statements charged
in the indictment are material statements.” Id. at
508. The jury then found Gaudin guilty. Id. at 509.
18. The U.S. Supreme Court held that the trial
court’s refusal to submit the question of “materiality”
to the jury, when materiality was an element of the
crime charged, was unconstitutional because the Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of
the crime charged. Id. at 522–23. Mountjoy contends
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that the “materiality” element of the crime in Gaudin
is analogous to deciding whether facts are “aggravating” under section 18-1.3-401(6) here. Thus, Mountjoy asserts that, beyond Apprendi’s requirement that
aggravating facts be found by a jury, Gaudin further
requires that the jury must also determine whether
those facts are indeed aggravating.
19. We conclude that Mountjoy’s reliance on
Gaudin is misplaced. Gaudin is fundamentally different from Mountjoy’s case. His case is about sentencing; Gaudin is about proof of guilt. The judge in
Gaudin made the determination of an actual element
of the crime charged—materiality—meaning the jury
failed to decide each and every element of the offense
charged beyond a reasonable doubt. Id. at 508, 523.
Here, “aggravation” is not an element of any of the
crimes charged. Therefore, Gaudin is inapposite.3 In
fact, if Gaudin were as far-reaching as Mountjoy asserts, the Blakely Court would have held that a jury
must determine beyond a reasonable doubt not only
that facts outside the elements of a conviction exist,
but also that those facts themselves warrant an aggravated sentence. But it did not. Instead, Blakely
held that a judge may aggravate a sentence based on
facts outside of the elements of the crime, so long as a
jury found (or the defendant admitted to) those facts.
Blakely, 542 U.S. at 303, 309. Therefore, we conclude
Our conclusion that Gaudin is inapplicable here is supported
by the fact that the U.S. Supreme Court does not reference
Gaudin in Blakely. That omission is significant because the
Blakely Court addressed a statute analogous to section 18-1.3401(6) in light of Apprendi.
3
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that Gaudin does not impact whether Mountjoy’s sentences pass constitutional muster.
20. Next, Mountjoy argues that Hurst v. Florida,
136 S. Ct. 616 (2016), has “eroded” Lopez, calling into
question the constitutionality of section 18-1.3-401(6).
We disagree.
21. In Hurst, the defendant was convicted of firstdegree murder, a capital felony, in Florida state court.
Id. at 620. In Florida, a conviction for a capital felony,
if based on no facts outside of the elements of the conviction, carried a maximum sentence of life in prison.
Id. (citing Fla. Stat. § 755.082(1) (2010)). A sentence
of life in prison, however, could be enhanced to a
death sentence following an additional sentencing
procedure. In the first phase of this procedure, the
trial judge conducted an evidentiary hearing before a
jury, and the jury rendered an advisory sentence of
either life in prison or death without specifying the
factual basis of the recommendation. Id. (citing Fla.
Stat. § 921.141(1)-(2) (2010)). Notably, the jury would
not make any factual determinations. After receiving
the advisory sentence from the jury, in the second
phase of the procedure, the trial judge would then
weigh the aggravating and mitigating circumstances
herself and decide whether to issue a death sentence
and, if so, set forth in writing the facts she relied on
for issuing the death sentence. Id. (citing Fla. Stat. §
921.141(3)).
22. In Hurst, the jury recommended the death
penalty and per Florida’s sentencing procedure did
not state the facts that formed the basis for that recommendation. In following the Florida statute, the
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trial judge made her independent finding that heinous-murder and robbery aggravators existed and,
therefore, sentenced Hurst to death. Id.
23. In reviewing that decision, the Supreme
Court held that Hurst’s death sentence violated the
Sixth Amendment since the decision to impose a
death sentence was made on factual determinations
made by the trial judge, not the jury. See id. at 622
(explaining that although in Florida the jury recommends a sentence, “it does not make specific factual
findings . . . and its recommendation is not binding on
the trial judge”). Specifically, the sentencing scheme
did “not require the jury to make the critical findings
necessary to impose the death penalty. Rather, [the
sentencing scheme] require[d] a judge to find these
facts.” Id. Mountjoy now argues that Colorado’s aggravating sentencing statute operates like the statute
in Hurst, and therefore Hurst effectively overruled
Lopez. We conclude that Hurst had no effect on Lopez.
24. Hurst did not modify Blakely and Apprendi.
Instead, it merely applied the bedrock principle of
Blakely and Apprendi that the facts relied on to aggravate a sentence must be found by a jury beyond a
reasonable doubt, and that a judge may aggravate a
sentence based on such facts. See id. at 621 (“[A]ny
fact that ‘expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict’
. . . must be submitted to a jury.” (alteration in original) (emphasis added) (quoting Apprendi, 530 U.S. at
494)). The issue in Hurst was that the jury recommendation failed to contain any factual findings, and
the judge made a death sentence determination that
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was based on judge-found facts. Contrary to Mountjoy’s argument, nowhere in Hurst does the Court state
that a jury, rather than a judge, must make the legal
determination of whether facts found by a jury beyond
a reasonable doubt warrant aggravation. If it had,
the Court would have had to overrule Blakely. It did
not. That is significant because, as previously noted,
the statute in Blakely is functionally equivalent to the
sentencing statute in question here. Accordingly, we
conclude that since Hurst did not modify Blakely it
does not influence our analysis in this case.
D. Application
25. Each of Mountjoy’s aggravated sentences is
constitutionally sound because each is based on at
least one Blakely-compliant fact. As to the conviction
for reckless manslaughter, the trial court aggravated
Mountjoy’s sentence based on two facts: that he used
a weapon and that he tampered with evidence. These
facts are category one Blakely-compliant because the
jury necessarily found them beyond a reasonable
doubt when it found Mountjoy guilty of the other two
offenses. That is, because the jury separately found
Mountjoy guilty of illegal discharge of a firearm, the
jury found beyond a reasonable doubt each element of
that crime, one of which was the discharge of a firearm. Similarly, because the jury separately found
Mountjoy guilty of the crime of tampering with evidence, it necessarily found beyond a reasonable doubt
that he tampered with evidence.
26. As to the conviction for illegal discharge of a
firearm, the trial court aggravated that conviction
based on two facts that are category one Blakely-com-
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pliant. The fact that Mountjoy’s firearm discharge resulted in a death is Blakely-compliant because the
jury found Mountjoy guilty of manslaughter and,
therefore, found each element of manslaughter beyond a reasonable doubt, including that he caused the
death of another person. Similarly, as previously
noted, because the jury found Mountjoy guilty of the
crime of tampering with evidence, it found beyond a
reasonable doubt that he tampered with evidence.
27. Lastly, the aggravated sentence for the tampering with evidence conviction was based on the fact
that the tampering was related to a death. Again, this
is category one Blakely-compliant. As previously discussed, when the jury returned a guilty verdict for
manslaughter, it found beyond a reasonable doubt
that Mountjoy caused another’s death.
28. Mountjoy points out that the jury did not specifically find these facts in connection with the crimes
whose sentences the court ultimately aggravated;
e.g., the jury did not find that Mountjoy used a gun as
it related to the manslaughter charge. This is immaterial. Lopez and Blakely only require that aggravating facts be found by a jury beyond a reasonable
doubt; they do not require any linkage between the
aggravating fact and the crime whose sentence is subsequently aggravated. 4 See Blakely, 542 U.S. at 301;
“The Blakely rule is concerned specifically with defendants’
constitutional protections in criminal proceedings, particularly
the right to a jury determination, beyond a reasonable doubt,
that facts exist that expose the defendant to criminal penalties.”
Lopez, 113 P.3d at 726. Therefore, it only matters that a fact
was determined by a jury, not that the jury found the fact with
regard to a specific conviction, or even that it was the same jury
4
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Lopez, 113 P.3d at 716.
29. Notably, two facts relied on by the trial court
to aggravate—that the vehicle had two occupants and
that it was driving away—are neither Blakely-compliant nor Blakely-exempt. This does not influence our
analysis, because the presence of one Blakely-compliant or Blakely-exempt fact renders an aggravated
sentence constitutionally sound even if the sentencing judge also considered facts that were not
Blakely-compliant or Blakely-exempt. Lopez, 113
P.3d at 731; see also Bass, 155 P.3d at 555.
IV. Conclusion
30. For the foregoing reasons, we affirm the judgment of the court of appeals on other grounds.
JUSTICE GABRIEL dissents, and JUSTICE
HART joins in the dissent.
JUSTICE GABRIEL, dissenting.
31. The majority concludes that the trial court
did not deny petitioner Christopher Mountjoy’s rights
to due process and trial by jury when it aggravated
his sentence based on facts that the jury found beyond
a reasonable doubt when it convicted him of the underlying charges. See maj. op. ¶ 2. Because I believe
that the majority’s conclusion is inconsistent with the
principles set forth in Blakely v. Washington, 542 U.S.
296 (2004), Apprendi v. New Jersey, 530 U.S. 466
(2000), and United States v. Gaudin, 515 U.S. 506
(1995), and because I cannot say that the trial court’s
who rendered the conviction. See id. at 730.
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constitutional sentencing error was harmless beyond
a reasonable doubt, I respectfully dissent.
I. Factual Background
32. The majority sets forth the pertinent facts
and procedural history, and I need not repeat its recitation here. I would add, however, that the People
never alleged in their pleadings in this case that the
crimes at issue were subject to any sentence enhancers or aggravators. Nor did the People in any way
suggest to the jurors that the existence of sentence aggravators was an issue before them. To the contrary,
the People first gave notice of their intent to seek aggravated-range sentencing after the jury had entered
its verdict. In these circumstances, it is difficult for
me to see how the aggravated-range sentences that
the trial court imposed in this case could have complied with Blakely and Apprendi, which, as pertinent
here, required the jury to find beyond a reasonable
doubt the facts supporting the sentence aggravators.
II. Analysis
33. I begin by setting forth the applicable law and
conclude that Mountjoy’s aggravated-range sentences
were imposed in violation of Blakely, Apprendi, and
Gaudin. I then address whether this constitutional
error was harmless beyond a reasonable doubt and
conclude that it was not.
A. Applicable Principles of Aggravated-Range
Sentencing
34. The Supreme Court has held that, except for
the fact of a prior conviction, “any fact that increases
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the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt,” unless the defendant has either stipulated to the relevant facts or
consented to judicial fact-finding. Blakely, 542 U.S.
at 301, 310; Apprendi, 530 U.S. at 488, 490. A “statutory maximum” is “the maximum sentence a judge
may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
Blakely, 542 U.S. at 303.
35. For purposes of this analysis, no constitutionally significant difference exists between a fact that is
an element of a crime and one that is a sentencing
factor. See S. Union Co. v. United States, 567 U.S.
343, 358–59 (2012) (noting that the Government’s argument “rest[ed] on an assumption that Apprendi and
its progeny have uniformly rejected: that in determining the maximum punishment for an offense,
there is a constitutionally significant difference between a fact that is an ‘element’ of the offense and one
that is a ‘sentencing factor’”); Washington v.
Recuenco, 548 U.S. 212, 220 (2006) (“[W]e have
treated sentencing factors, like elements, as facts that
have to be tried to the jury and proved beyond a reasonable doubt.”); Apprendi, 530 U.S. at 478, 482–84
(same).
36. Moreover, a factual question is not to be
taken away from the jury merely because it requires
the jury to apply the applicable law to the facts presented. See Gaudin, 515 U.S. at 511–12. Thus, in
Gaudin, the Supreme Court rejected the Government’s assertions that (1) “materiality” for purposes
of the charge of making material false statements in
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a matter within the jurisdiction of a federal agency is
a “legal” question for the court and (2) the requirement that the jury decide all elements of a criminal
offense applies only to the factual components of the
essential elements. Id. at 511.
37. In Gaudin, the Government had argued that
deciding whether a statement was “material” required the determination of two underlying questions
of historical fact, namely, “what statement was
made?” and “what decision was the agency trying to
make?” Id. at 512. The Government had further contended that the ultimate question in the case, i.e.,
“whether the statement was material to the decision,”
required the application of the legal standard of materiality to the historical facts. Id. The Government
asserted that the two underlying questions were to be
decided by the jury while the ultimate question was
for the court. Id.
38. The Supreme Court rejected this argument
for two reasons. First, the Court observed that “the
application-of-legal-standard-to-fact sort of question .
. . , commonly called a ‘mixed question of law and fact,’
has typically been resolved by juries.” Id. Second, the
Court stated that the Government’s position had “absolutely no historical support.” Id.
39. Turning to the facts of this case, I note that
section 18-1.3-401(6), C.R.S. (2018), sets forth the sentencing aggravator here at issue. That provision allows a court to impose a sentence greater than the
presumptive range only if the court finds “extraordinary . . . aggravating circumstances.” Id.
40. In my view, this statute makes clear that the
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sentencing enhancer at issue is the existence of “extraordinary . . . aggravating circumstances,” not, as
the majority states, whether a person died, the defendant used a weapon, or the defendant tampered
with evidence. See maj. op. ¶¶ 25–28. Accordingly,
under the principles set forth in Blakely, Apprendi,
and Gaudin, the existence of extraordinary aggravating circumstances was the fact that the jury was required to find, and it is undisputed that it did not do
so here.
41. In reaching this conclusion, I am unpersuaded by the People’s argument that the trial court
properly made the determination regarding the existence of extraordinary aggravating circumstances because the existence of such circumstances presented
a legal issue requiring the application of law to facts.
As noted above, Gaudin expressly rejected such an argument. See Gaudin, 515 U.S. at 511–12.
42. Nor am I persuaded by the People’s argument, which the majority adopts, maj. op. ¶ 19, that
Gaudin is distinguishable because it concerned an element of the offense and proof of guilt, whereas here
we are dealing with sentencing aggravation. This argument ignores the fact, noted above, that the Supreme Court has long and consistently rejected any
distinction between an element of an offense and a
sentencing factor. See, e.g., S. Union Co., 567 U.S. at
358–59; Recuenco, 548 U.S. at 220; Apprendi, 530
U.S. at 478, 482–84.
43. Finally, I recognize that, in Lopez v. People,
113 P.3d 713,726 n.11 (Colo. 2005), we concluded that
the determination of extraordinary aggravating circumstances “is a conclusion of law that remains
22a
within the discretion of the trial court if it is based on
Blakely-compliant or Blakely-exempt facts.” We so
concluded without ever mentioning Gaudin, and, for
the reasons set forth above, I believe that this conclusion was directly contrary to Gaudin and, therefore,
should be overruled.
44. For these reasons, unlike the majority, I
would conclude that Mountjoy’s aggravated-range
sentences were imposed in violation of Blakely, Apprendi, and Gaudin and that the trial court therefore
committed constitutional error in imposing those sentences.
B. Harmless Error
45. My foregoing conclusion does not end my
analysis because I must next determine whether the
constitutional error at issue was harmless.
46. We review preserved constitutional trial errors, like that at issue here, for constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11, 288
P.3d 116, 119. Such errors require reversal unless we
can say that the error was harmless beyond a reasonable doubt. Id. Accordingly, we will reverse if we conclude that there is a reasonable possibility that the
error might have contributed to the judgment. Id.
47. Here, the People did not allege in their pleadings in this case that the crimes at issue were subject
to any sentence enhancers or aggravators. Nor was
the jury given an opportunity to decide whether facts
existed to support a sentence enhancement. Instead,
the People first gave notice of their intent to seek aggravated-range sentencing after the jury had entered
its verdict. Thus, what the jury would have done had
23a
it been asked to determine the existence of a sentence
aggravator is speculative at best.
48. In addition, although the majority concludes
that extraordinary aggravating circumstances were
established by the fact that the jury found the elements of the crimes presented to them, see maj. op. ¶¶
25–28, it is not at all clear to me that the jury would
have found that mere proof of the elements of the
crimes presented would have constituted extraordinary aggravating circumstances. To me, by definition, “extraordinary” suggests something beyond
proof of the crimes themselves.
49. In perceiving reversible error in this case, I
am persuaded by the Washington Supreme Court’s
analysis in In re Personal Restraint of Hall, 181 P.3d
799, 800–03 (Wash. 2008), in which the court considered an aggravated sentencing statute like that at issue here. In Hall, the trial court sentenced the defendant to an aggravated-range sentence under a
Washington statute allowing for the imposition of an
“exceptional sentence” if the trial court found that
“substantial and compelling reasons” justified such a
sentence. See id. at 800, 802 (quoting former Wash.
Rev. Code § 9.94A.120(2) (1995), recodified and
amended as Wash. Rev. Code § 9.94A.535 (2016)).
The Hall court began by recognizing that the trial
court had violated Blakely and Apprendi when it, rather than a jury, determined that “substantial and
compelling reasons” existed for the imposition of an
exceptional sentence. Id. at 800. The court then proceeded to address whether the error was harmless
and concluded that it was not because, under the sentencing statute at issue, “no procedure existed
24a
whereby the jury could have been asked to find aggravating circumstances.” Id.
50. Here, as in Hall, the jury was never given any
opportunity to consider whether extraordinary aggravating circumstances existed to justify the imposition
of a sentence beyond the statutory maximum. As a
result, Mountjoy was denied his constitutional right
to have a jury make the finding of extraordinary aggravating circumstances to which he was entitled.
Accordingly, I cannot say that the constitutional error
here was harmless beyond a reasonable doubt.
III. Conclusion
51. For the foregoing reasons, I believe that the
aggravated-range sentences that Mountjoy received,
which sentences were imposed without ever having
had a jury consider whether extraordinary aggravating circumstances existed in this case, violated the
principles set forth in Blakely, Apprendi, and Gaudin.
I further believe that this constitutional error was not
harmless beyond a reasonable doubt. I therefore
would reverse Mountjoy’s aggravated-range sentences and remand this case for the imposition of constitutionally valid sentences.
52. Accordingly, I respectfully dissent.
I am authorized to state that JUSTICE HART
joins in this dissent.
25a
APPENDIX B
COLORADO COURT OF APPEALS
2016COA86
Court of Appeals No. 13CA1215
El Paso County District Court No. 12CR1020
Honorable William B. Bain, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Anthony Mountjoy, Jr.,
Defendant-Appellant.
SENTENCES AFFIRMED
Division III
Opinion by JUDGE WEBB
Booras, J., concurs
J. Jones, J., specially concurs
Announced June 2, 2016
1. This sentencing appeal presents a novel question in Colorado — if a trial court sentences in the aggravated range based on facts not found by a jury, can
the sentence be affirmed based on harmless error, if
the record shows beyond a reasonable doubt that a
reasonable jury would have found those facts, had the
jury been requested to do so by special interrogatory?1
Many other courts — both federal and state — have
1
The parties submitted supplemental briefing on this question.
26a
answered it in the affirmative. We now join them.
2. A jury acquitted Christopher Anthony Mountjoy, Jr., of more serious charges, but convicted him of
manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial
court imposed a sentence in the aggravated range on
each count, to be served consecutively. On appeal, he
challenges only the aggravated range sentences, primarily under Blakely v. Washington, 542 U.S. 296
(2004). We affirm.
I. Background
3. As the sergeant-at-arms of a motorcycle club,
defendant was responsible for security.
4. According to the prosecution’s evidence, the
victim was involved in a fight on the club’s premises.
The victim discovered that his wallet was missing
shortly after leaving. Then he and a companion drove
around the area pondering whether to return and demand the wallet.
5. Defendant saw the car and fired eight shots as
it drove away. Two bullets hit the car, one of which
killed the victim. After the shooting, defendant directed other club members to “clean up” the area
where the shooting occurred, and he deleted text messages related to the shooting from his cell phone.
II. Blakely Issues
6. Defendant first contends each of his aggravated range sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely. But even assuming that they did, how should we deal with the
overwhelming evidence of guilt? We conclude that
27a
based on this evidence, a jury would have found the
facts on which the trial court relied in imposing aggravated range sentences. And for this reason, we
further conclude that Apprendi/Blakely error, if any,
was harmless beyond a reasonable doubt.
A. Additional Background
7. The trial court enhanced defendant’s sentences for each of his three convictions under section
18-1.3-401(6), C.R.S. 2015. This section permits a
trial court to impose a sentence above a presumptive
range if the court makes specific findings of extraordinary aggravating circumstances. See generally People v. Kitsmiller, 74 P.3d 376, 379-80 (Colo. App. 2002)
(describing process by which trial court can enhance
sentence beyond the presumptive range under section
18-1.3-401(6)).
•
The court found that the manslaughter conviction was extraordinarily aggravated because
defendant used a weapon, tampered with evidence, admitted firing his weapon eight times,
fired into a car with two people inside, and fired
while the car was driving away.
•
In finding that the illegal discharge conviction
was extraordinarily aggravated, the court explained, “[s]omebody died,” and, after the discharge, defendant had tampered with evidence.
•
Similarly, the court deemed the tampering
count extraordinarily aggravated because
someone had died.
8. Based on these extraordinary aggravating circumstances, the trial court doubled the maximum
28a
presumptive range sentence for each conviction and
imposed sentences of twelve years for manslaughter,
six years for illegal discharge of a weapon, and three
years for tampering with evidence. Then the court ordered defendant to serve these sentences consecutively.
B. Preservation and Standard of Review
9. The Attorney General concedes that defendant
preserved his Apprendi/Blakely claim.
10. An appellate court reviews a constitutional
challenge to sentencing de novo. See Lopez v. People,
113 P.3d 713, 720 (Colo. 2005). If the sentencing court
committed constitutional error, an appellate court
must reverse unless the error is harmless beyond a
reasonable doubt. See Villanueva v. People, 199 P.3d
1228, 1231 (Colo. 2008).
C. Law
11. “Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The “statutory maximum” for
Apprendi purposes is “the maximum sentence a judge
may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
Blakely, 542 U.S. at 303.
12. Applying Apprendi and Blakely, our supreme
court has identified four types of facts that may constitutionally increase a defendant’s sentence beyond
the statutory maximum:
29a
(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.
Lopez, 113 P.3d at 716. The first three types are
“Blakely-compliant,” while a prior conviction is
“Blakely-exempt.” See id. at 723.
13. In Washington v. Recuenco, 548 U.S. 212, 222
(2006), the Supreme Court applied the constitutional
harmless error analysis of Neder v. United States, 527
U.S. 1, 15 (1999), to a Blakely sentencing error. The
Court explained that the sentencing error before it
was indistinguishable from the instructional error in
Neder because “sentencing factors, like elements . . .
have to be tried to the jury and proved beyond a reasonable doubt.” Recuenco, 548 U.S. at 220. Specifically, in both cases, the trial judge, rather than the
jury, had found the omitted element or aggravating
factors. See Medina v. People, 163 P.3d 1136, 1142 n.6
(Colo. 2007). But no Colorado appellate decision has
applied harmless error analysis in this context.
14. In cases decided both before and after
Recuenco, a majority of the federal circuits have held
Apprendi/Blakely error harmless if the record shows
beyond a reasonable doubt that a jury would have
found the fact or facts relied on to aggravate, had the
jury been asked to do so. See, e.g., United States v.
Mann, 786 F.3d 1244, 1251-52 (10th Cir. 2015);
United States v. King, 751 F.3d 1268, 1278-80 (11th
Cir. 2014); United States v. Harakaly, 734 F.3d 88, 95-
30a
97 (1st Cir. 2013); United States v. Salazar-Lopez, 506
F.3d 748, 752-56 (9th Cir. 2007); United States v.
Pittman, 418 F.3d 704, 710 (7th Cir. 2005) (applying
plain error review but also concluding the error
“would fall short under harmless error review as
well”); United States v. Matthews, 312 F.3d 652, 66567 (5th Cir. 2002); United States v. Strickland, 245
F.3d 368, 379-81 (4th Cir. 2001) (applying plain error
and concluding, “beyond a reasonable doubt, that had
the [drug] quantities been submitted to the jury, the
jury’s verdict would have been the same”).
15. Many state appellate courts have reached the
same result. See, e.g., Campos v. State, ___ So. 3d
____, No. CR-13-1782, 2015 WL 9264157, at *6 (Ala.
Crim. App. Dec. 18, 2015); Lockuk v. State, 153 P.3d
1012, 1017 (Alaska Ct. App. 2007); State v. Hampton,
140 P.3d 950, 966 (Ariz. 2006); Galindez v. State, 955
So. 2d 517, 523¬24 (Fla. 2007); People v. Nitz, 848
N.E.2d 982, 995 (Ill. 2006) (applying plain error);
Averitte v. State, 824 N.E.2d 1283, 1288 (Ind. Ct. App.
2005); State v. Reyna, 234 P.3d 761, 773 (Kan. 2010);
State v. Ardoin, 58 So. 3d 1025, 1044-45 (La. Ct. App.
2011); People v. Harper, 739 N.W.2d 523, 547-49
(Mich. 2007); State v. Dettman, 719 N.W.2d 644, 655
(Minn. 2006); State v. Payan, 765 N.W.2d 192, 204-05
(Neb. 2009); State v. Fichera, 7 A.3d 1151, 1154 (N.H.
2010); State v. McDonald, 99 P.3d 667, 669-71 (N.M.
2004); State v. Cuevas, 326 P.3d 1242, 1255-56 (Or.
Ct. App. 2014), aff’d, 361 P.3d 581 (Or. 2015); State v.
Duran, 262 P.3d 468, 473-77 (Utah Ct. App. 2011);
State v. LaCount, 750 N.W.2d 780, 797-98 (Wis. 2008).
16. Defendant’s supplemental brief does not cite
contrary authority from any jurisdiction.
31a
D. Application
17. Should we begin by considering whether any
of the extraordinary aggravating circumstances the
trial court identified in aggravating the sentences is
either Blakely-compliant or Blakely-exempt, as “[o]ne
Blakely-compliant or Blakely-exempt factor is sufficient to support an aggravated sentence”? Lopez, 113
P.3d at 731. Defendant invites us to do so and argues
that we should answer “no” because, while the jury
found some of the facts on which the court relied to
impose aggravated range sentences, the court violated Blakely and Apprendi by using facts found on
only one count to aggravate the sentence on a different count. Specifically, the jury’s determinations
were as follows:
•
By finding defendant guilty of manslaughter,
the jury concluded that he had recklessly
caused the death of another person. But the
jury’s verdict on this count did not determine
that defendant used a weapon, tampered with
evidence, fired eight times, fired into a car occupied by two people, or fired while the car was
driving away.
•
In finding the defendant guilty of illegal discharge of a weapon, the jury did not determine
that someone had died or that defendant had
tampered with evidence of the illegal discharge.
•
And the jury did not determine that someone
had died when finding defendant guilty of tampering with evidence.
18. Following this path would eventually require
32a
us to reconcile possibly inconsistent decisions of divisions of this court. Compare People v. Glasser, 293
P.3d 68, 79-80 (Colo. App. 2011) (Trial court impermissibly aggravated the defendant’s sexual assault
sentence based on jury interrogatory answer that the
defendant used a weapon to perpetrate a kidnapping,
explaining that “the jury did not find that defendant
used the deadly weapon during the kidnapping.”),
with People v. Bass, 155 P.3d 547, 554-55 (Colo. App.
2006) (upholding aggravation of “use of a stun gun”
offense based on “elderly” element of concurrent conviction for robbery of an at-risk adult).
19. Instead of picking a winner between these
cases, neither of which contains significant analysis,
we assume, but do not decide, that, for the reason defendant argues, the trial court committed an Apprendi/Blakely error. Then we consider whether this
assumed error was harmless beyond a reasonable
doubt. For the following reasons, we conclude that it
was.
20. First, uncontroverted and incontrovertible
evidence proved that the victim had died — a fact the
trial court relied on when aggravating defendant’s
sentences for illegal discharge and tampering. Indeed, defendant admitted this fact by pleading selfdefense. See People v. Roadcap, 78 P.3d 1108, 1113
(Colo. App. 2003) (“Self-defense is an affirmative defense under which a defendant admits doing the act
charged, but seeks to justify, excuse, or mitigate his
or her conduct.”). We conclude beyond a reasonable
doubt that had a special interrogatory been submitted
as to either the illegal discharge and tampering
charges, a reasonable jury would have found — in the
33a
trial court’s words at sentencing — that “[s]omebody
died.”
21. Second, overwhelming evidence showed defendant’s use of a handgun — a fact the trial court
relied on when aggravating defendant’s sentence for
manslaughter. Surveillance footage introduced by
the prosecution showed someone repeatedly firing at
a car as it drove away. During his testimony, defendant acknowledged that he had shot at the car with the
victim and another person inside. The medical examiner described the victim’s “gunshot entrance wound
to his left back.” A crime lab technician explained that
the bullet removed from the victim was “a .45-caliber
projectile or consistent with a .45-caliber projectile,”
and defendant admitted that he had fired a .45-caliber handgun the night of the shooting. Again, we conclude beyond a reasonable doubt that had a special
interrogatory been submitted as to manslaughter, a
reasonable jury would have found that defendant
fired a weapon.
22.
Third, similarly overwhelming evidence
showed defendant’s guilt of tampering — a fact the
trial court relied on when aggravating defendant’s
sentences for manslaughter and illegal discharge.
Defendant testified that after the shooting, he “told
people to go outside and clean up because we were
closing the club up.” And he testified to having deleted
text messages from his cell phone:
Q. Okay. And so you clear your phone
because you don’t want there to be evidence left behind of what happened,
right?
34a
A. Correct.
Thus, we conclude beyond a reasonable doubt that
had a special interrogatory been submitted as to either the manslaughter or the illegal discharge charge,
a reasonable jury would have found that defendant
tampered with evidence.
23. In sum, because the evidence was overwhelming on the three primary 2facts the trial court
used to aggravate defendant’s sentences — someone
died, defendant used a weapon, and defendant tampered with evidence — we conclude that the assumed
Blakely error was harmless beyond a reasonable
doubt.
III. Extraordinarily Aggravated Finding
24. Although defendant does not dispute the legal basis for this harmless error analysis, he contends
that even if the record shows the jury would have
found the aggravating facts beyond a reasonable
doubt, the jury — not the court — must also conclude
that these facts constitute extraordinary aggravated
circumstances. And because the jury did not do so, he
continues, the harmless error analysis fails. But defendant cites no supporting authority. Regardless,
and even assuming that defendant presented evidence and argument which could have persuaded the
Recall that one Blakely-compliant or Blakely-exempt fact is sufficient to aggravate a defendant’s sentence. See Lopez v. People,
113 P.3d 713, 731 (Colo. 2005). Thus, in assessing harmless error, we need not analyze all of the facts the trial court relied on
in concluding that defendant’s manslaughter conviction was aggravated.
2
35a
jury to find these facts were not extraordinarily aggravating, 3 this contention fails because it conflates
the roles of judge and jury, and it thwarts the judge’s
role in sentencing.
A. Standard of Review and Preservation
25. Defendant asserts he preserved this claim,
relying on the following statement by counsel at the
sentencing hearing: “The jury did not find any of the
facts [were] extraordinary aggravating [circumstances].” The Attorney General counters that this
statement, taken in context, referred to the
Blakely/Apprendi claim, not to defendant’s claim that
the jury must also decide whether facts are extraordinary aggravating circumstances.
26. Because counsel could have been attempting
to articulate the argument defendant develops more
thoroughly on appeal, whether this claim was preserved is a close question. Hence, we will assume that
he preserved his claim. See, e.g., People v. McMinn,
2013 COA 94, ¶ 17 (“[W]e view the preservation issue
as close, but we will assume without deciding” that
defendant preserved the claim.).
27. Based on the above-cited authorities, we review de novo and must reverse unless the error, if
any, is harmless beyond a reasonable doubt.
B. Law and Application
28. Our supreme court has rejected defendant’s
For example, defendant suggests that the jury could have concluded that manslaughter committed with a handgun was less
aggravated than manslaughter committed with a machete.
3
36a
argument that the jury must find that allegedly aggravating facts constitute extraordinarily aggravating circumstances. Lopez, 113 P.3d at 726 n.11. In
Lopez, the court explained that “this determination is
a conclusion of law that remains within the discretion
of the trial court if it is based on Blakely-compliant or
Blakely-exempt facts.” Id.; see also Bass, 155 P.3d at
555 (explaining Lopez’s holding “that a jury is not required to find that a fact is an ‘extraordinary aggravating circumstance’” (quoting Lopez, 113 P.3d at 726
n.11)).
29. Thus, we perceive no error.
IV. Void for Vagueness
30. Defendant next contends section 18-1.3401(6) is void for vagueness both on its face and as
applied to him. We conclude that this issue is not
properly before us.
A. Preservation
31. The Attorney General disputes that defendant preserved this challenge and argues that constitutional issues should not be considered for the first
time on appeal, even as plain error, citing People v.
Cagle, 751 P.2d 614, 619 (Colo. 1988).
32. Defendant concedes that he did not preserve
his facial challenge, but asks us to review this claim
because it is “likely to recur in our trial courts.” As for
the as-applied challenge, defendant asserts that he
preserved this claim by arguing to the trial court that
an aggravated range sentence would deprive him of
“due process under the United States and Colorado
constitutions.” As well, he points out that below he
37a
raised “an issue of notice” and argued that an aggravated range sentence could be based on “whatever
[the trial court] think[s] is aggravating.”
33. These assertions fall short of showing preservation. At sentencing, defendant did not articulate
“void for vagueness.” Nor did he obtain a ruling on
vagueness. See People v. Douglas, 2015 COA 155, ¶
40 (Defendant’s counsel “declined to request a ruling
on her objection, which amounts either to no objection
at all, or, worse still, to an abandonment of the objection and a waiver of any right to assert error on appeal.”). And he failed to tell the trial court how the
sentencing statute was unconstitutional as applied to
him, but not in all of its applications. See Colo. Ins.
Guar. Ass’n v. Sunstate Equip. Co., 2016 COA 64, ¶
26 (“When asserting an as-applied challenge, the
party ‘contends that the statute would be unconstitutional under the circumstances in which the [party]
has acted or proposes to act.’” (quoting Sanger v. Dennis, 148 P.3d 404, 410-11 (Colo. App. 2006))).
34. For these reasons, we cannot allow defendant
to dodge his obligation to give the trial court fair notice of — and, thus, an opportunity to make findings
on — his specific constitutional objection to the sentencing statute. See, e.g., People v. Smalley, 2015
COA 140, ¶ 81 (To preserve an issue for appeal, the
trial court must have a “meaningful chance to prevent
or correct the error.”) (citation omitted). Thus, both
defendant’s facial and his as-applied challenges are
unpreserved.
35. Even so, some cases decided since Cagle have
held that an appellate court “may, as a matter of dis-
38a
cretion, take up an unpreserved challenge to the constitutionality of a statute, but only where doing so
would clearly further judicial economy.” People v.
Houser, 2013 COA 11, ¶ 35; see also People v. Tillery,
231 P.3d 36 (Colo. App. 2009) (reviewing an unpreserved double jeopardy claim for plain error), aff’d sub
nom. People v. Simon, 266 P.3d 1099 (Colo. 2011). We
discern no reason to exercise our discretion and address either the unpreserved as-applied or facial challenges, although the latter requires a more detailed
analysis. 4
B. Unpreserved As-Applied Challenge
36. Our supreme court has rejected an as-applied
constitutional challenge because it was not preserved.
Townsend v. People, 252 P.3d 1108, 1113 (Colo. 2011)
(“On appeal, he argued instead that the statute was
unconstitutional as applied to him . . . . We will not
consider constitutional arguments raised for the first
time on appeal.”) (citation omitted). So have many divisions of this court. See People v. Veren, 140 P.3d
131, 140 (Colo. App. 2005) (declining to review unpreserved as-applied challenge). 5
37. Inadequacy of the record also disfavors addressing an as-applied challenge for the first time on
appeal. See People v. Allman, 2012 COA 212, ¶ 15
Defendant does not seek plain error review of either the asapplied or facial challenges.
4
Relying on Veren, three other divisions have declined to take
up an unpreserved as-applied constitutional challenge. See People v. Torres, 224 P.3d 268, 273 (Colo. App. 2009); People v.
Cooper, 205 P.3d 475, 477-78 (Colo. App. 2008); People v. VanMatre, 190 P.3d 770, 774 (Colo. App. 2008).
5
39a
(“Just as the absence of a sufficient record is a common basis for refusing to review unpreserved constitutional error, courts that have exercised their discretion to review such error have relied on the presence
of a sufficiently developed record as a basis for doing
so.”). As noted in Veren, 140 P.3d at 140, to support
an as-applied challenge, “it is imperative that the
trial court make some factual record that indicates
what causes the statute to be unconstitutional as applied.” See also People v. Torres, 224 P.3d 268, 273
(Colo. App. 2009) (Trial court did not make findings of
fact “concerning his due process and equal protection
claims, specifically, concerning the identification of
actual or potential victims,” which would be relevant
to an as-applied challenge.); cf. People v. Patrick, 772
P.2d 98, 100 (Colo. 1989) (“[I]t is imperative that there
be some factual record made by the trial court which
states why the evidence . . . causes the statute to be
unconstitutional as applied.”).
38. Defendant limits his as-applied argument to
asserting that because the prosecution did not identify extraordinary aggravating facts before sentencing, he “could only guess at what a sentencing court
might decide were extraordinary aggravating circumstances”; he continues, “it was ‘difficult if not impossible’ for [him] to ‘prepare a defense against’ the allegation of extraordinary aggravating circumstances.”
Had defense counsel raised these concerns before the
trial court, it could have structured the proceedings to
address them and then made appropriate findings.
But because counsel failed to do so, we have no such
findings to review.
40a
C. Unpreserved Facial Challenge
39. Whether to exercise discretion and take up
defendant’s facial challenge requires us to consider judicial economy.
40. True enough, because defendant’s constitutional claim only implicates sentencing, the trial
would have occurred regardless. This factor favors
taking up the unpreserved constitutional claim. See,
e.g., People v. Banks, 2012 COA 157, ¶ 117 (reviewing
the defendant’s unpreserved constitutional sentencing challenge in part because “the remedy for the error would be merely vacating the sentence in part and
remanding for resentencing, not reversing and ordering a retrial”), aff’d in part and rev’d in part on other
grounds by People v. Tate, 2015 CO 42.
41. But this view of judicial economy only goes so
far. And looking further, defendant’s assertion that
addressing his claim would further judicial economy
by saving the parties and the courts time and resources remains flawed in two ways.
42. First, viewed systemically, whenever appellate review of a constitutional challenge to a statute
is foreclosed because it was not raised before the trial
court, the challenge remains to be resolved in another
case. But surrendering to this view would gut the
preference for preservation and effectively require
that all such challenges be entertained on appeal. Cf.
Hagos v. People, 2012 CO 63, ¶ 23 (noting the need “to
maintain adequate motivation among trial participants to seek a fair and accurate trial the first time”
by raising the issue before the trial court).
41a
43. Second, in criminal cases, the judicial economy inquiry assesses whether the issue is “likely to
arise in a later proceeding below.” Houser, ¶ 36. As
the division in Houser explained, a likely ineffective
assistance of counsel claim is a primary consideration. Id. at ¶¶ 37-42 (“[T]he specter of an ineffective
assistance claim favors permitting flawed appeals to
proceed in the interest of judicial economy.”); see also
Estep v. People, 753 P.2d 1241, 1246 (Colo. 1988).
44. A closer look at defendant’s vagueness challenge dispels this specter because we do not see how
he could show that his trial counsel was ineffective for
failing to have raised vagueness. See People v. Phillips, 652 P.2d 575, 580 (Colo. 1982) (holding that a
predecessor to section 18-1.3-401(6) was not vague).
Thus, by declining to take up defendant’s constitutional claim now, we do not create a significant risk of
protracting the proceedings with a meritorious postconviction ineffective assistance claim.
45. Lastly, defendant’s assertion that a Supreme
Court case announced since his trial — Johnson v.
United States, ___ U.S. ___, 135 S. Ct. 2551, 2557-60
(2015) — favors addressing his unpreserved constitutional claim is unpersuasive. Johnson overturned an
increased sentence under the Armed Career Criminal
Act because the Act’s residual clause was impermissibly vague, rendering its application unpredictable
and arbitrary. But a division of this court recently
explained that Johnson does not alter Colorado’s
vagueness analysis. See People v. McCoy, 2015 COA
76M, ¶¶ 64-66.
46. For these reasons, we decline to exercise our
42a
discretion and address defendant’s unpreserved constitutional challenge to section 18-1.3-401(6). See
People v. Whitlock, 2014 COA 162, ¶¶ 39-41 (declining
to review facial and as-applied challenges because
they were not raised below); People v. Fuentes-Espinoza, 2013 COA 1, ¶ 16 (“[W]e will not consider the
unpreserved constitutional attack on the statute.”);
Tillery, 231 P.3d at 52 (declining to address an unpreserved facial challenge to a statute).
V. Consecutive Sentences
47. Finally, defendant contends the trial court
abused its discretion in sentencing him consecutively
on each conviction. We discern no abuse of discretion.
A. Standard of Review and Preservation
48. Defendant has a right to appeal “the propriety of the sentence[.]” § 18-1-409(1), C.R.S. 2015.
49. An appellate court examines the trial court’s
decision to impose consecutive sentences for an abuse
of discretion. People v. Fritts, 2014 COA 103, ¶ 39.
“Sentencing is by its very nature a discretionary function, and because the trial court is more familiar with
the defendant and the circumstances of the case, it is
accorded wide latitude in its decisions on such matters.” People v. Myers, 45 P.3d 756, 757 (Colo. App.
2001).
B. Law
50. A trial court may impose either concurrent or
consecutive sentences where a defendant is convicted
of multiple offenses. Juhl v. People, 172 P.3d 896, 899
(Colo. 2007). And when a trial court imposes consecutive sentences, an appellate court must affirm that
43a
decision “if there is any evidence in the record to support the findings that separate acts support each of
the convictions.” Fritts, ¶ 39. But when two or more
offenses are supported by identical evidence, the sentences must run concurrently. § 18-1-408(3), C.R.S.
2015.
C. Application
51. The trial court highlighted that separate acts
supported defendant’s convictions for manslaughter
and illegal discharge of a weapon:
Here, the evidence was that two bullets entered the car; one in the roof
and one into the body of the car that
killed [the victim]. So can the evidence support a reasonable inference
that the convictions were based on
separate evidence? And the answer is,
Yes. The jury very well could have decided, We are convicting on illegal discharge of a firearm for the shot into
the roof and convicted on the manslaughter for the bullet that went into
the car and killed [the victim].
52. And the illegal discharge and manslaughter
convictions were further distinct because they did not
involve the same victim: both passengers in the car
were victims of his illegal discharge conviction,
whereas only the deceased was the victim of defendant’s manslaughter conviction. Thus, we agree that
defendant’s convictions for illegal discharge and manslaughter are not supported by identical evidence and
are therefore distinct. See, e.g., People v. O’Dell, 53
44a
P.3d 655, 657 (Colo. App. 2001) (explaining that when
multiple convictions involve multiple victims, the sentencing court has discretion to impose consecutive
sentences).
53. As well, the facts supporting the tampering
with evidence conviction — defendant’s instructions
to “clean up” after the shooting and deleting his text
messages — did not involve the same acts as either
the illegal discharge or manslaughter convictions.
54. Thus, the trial court did not abuse its discretion in imposing consecutive sentences, as the record
shows each conviction was supported by distinct evidence. See, e.g., People v. Hogan, 114 P.3d 42, 58
(Colo. App. 2004) (Trial court did not abuse its discretion in imposing consecutive sentences when convictions require “proof of different elements,” and “were
supported by different evidence.”).
VI. Conclusion
55. The sentences are affirmed.
JUDGE BOORAS concurs.
JUDGE J. JONES specially concurs
45a
J. JONES, J., specially concurring.
56. I concur in the majority’s judgment affirming
defendant’s sentences. But while I agree with much
of the majority’s reasoning, I write separately to address two issues the majority declines to address.
First, I address whether the district court erred in relying on certain facts to enhance defendant’s sentence, and conclude that it did not. Second, I address
whether section 18-1.3-401(6), C.R.S. 2015, is, on its
face, void for vagueness, and conclude that it is not.
I. Apprendi/Blakely Error
57. The district court enhanced the sentences on
defendant’s three convictions based on its conclusions
that various facts of the criminal episode constituted
extraordinary aggravating circumstances. See § 181.3-401(6). As to each conviction, those facts were as
follows:
1. Manslaughter.
•
Defendant used a weapon.
•
Defendant tampered with evidence.
•
Defendant admitted firing his weapon eight
times.
•
Defendant fired into a car with two people inside.
•
Defendant fired at the car while it was driving
away.
2. Illegal discharge of a firearm.
•
Someone died.
•
Defendant tampered with evidence.
46a
3. Tampering with evidence.
•
Someone died.
58. Defendant argues that because the jury did
not find any of these aggravating facts specifically in
conjunction with the offenses to which the district
court applied them, 1the court violated his Sixth
Amendment right to a trial by jury as expressed in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. 296 (2004). The majority assumes that the district court so erred, but
holds that any such error was harmless. I agree with
the majority’s harmless error analysis, but rather
than assuming, as the majority does, that the district
court erred, I would conclude that the district court
did not err.
59. As the majority points out, “[o]ther than the
fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at
490. In this context, the “statutory maximum” is “the
maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. In
Lopez v. People, 113 P.3d 713 (Colo. 2005), the supreme court identified four types of facts that a judge
may rely on to enhance a defendant’s sentence, consistent with Apprendi and Blakely:
For example, in convicting defendant of manslaughter, the jury
did not find that he tampered with evidence.
1
47a
(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.
Id. at 716. In my view, the district court properly relied on facts falling within both the first and fourth
categories.
60. In finding defendant guilty of manslaughter,
the jury necessarily found, beyond a reasonable
doubt, that someone died. See § 18-3-104(1)(a), C.R.S.
2015 (a person commits manslaughter if he “recklessly causes the death of another person”). Just as
obviously, in finding defendant guilty of illegal discharge of a firearm and tampering with evidence, the
jury necessarily found, beyond a reasonable doubt,
that defendant used a weapon and tampered with evidence, respectively. See § 18-12-107.5(1), C.R.S. 2015
(a person illegally discharges a firearm if he “knowingly or recklessly discharges a firearm into . . . any
motor vehicle occupied by any person”); § 18-8610(1)(a), C.R.S. 2015 (a person tampers with physical evidence if “believing that an official proceeding is
. . . about to be instituted,” he “[d]estroys [or] conceals
. . . physical evidence with intent to impair its . . .
availability in the . . . prospective official proceeding,”
and does so “without legal right or authority”).
61. Thus, in enhancing defendant’s sentence for
manslaughter based on the facts that defendant used
a weapon and tampered with evidence, the district
48a
court relied on facts found by the jury beyond a reasonable doubt. Likewise, in enhancing defendant’s
sentence for illegal discharge of a firearm based on the
facts that someone died and defendant tampered with
evidence, the district court relied on facts found by a
jury beyond a reasonable doubt. And in enhancing
defendant’s sentence for tampering with evidence
based on the fact that someone died, the district court
relied on a fact found by the jury beyond a reasonable
doubt. As each enhanced sentence is supported by at
least one Blakely-compliant fact, none of the sentences runs afoul of the Sixth Amendment. Lopez, 113
P.3d at 731.
62. I am not persuaded by defendant’s argument
that a jury finding doesn’t count for Blakely purposes
unless it was made specifically in conjunction with
the offense to which the enhanced sentence is applied.
The Sixth Amendment right at issue in this context is
the right to a jury determination of facts. See Blakely,
542 U.S. at 301-02, 305-07; Apprendi, 530 U.S. at 47677. That right is fully vindicated whenever a jury
finds facts beyond a reasonable doubt.
63. The soundness of this position is evidenced
by the prior conviction exception itself. As noted, a
prior conviction may be used to enhance a sentence in
a subsequent case. Blakely, 542 U.S. at 301; Apprendi, 530 U.S. at 490; Misenhelter v. People, 234
P.3d 657, 660-61 (Colo. 2010). This is so even though
a different jury made the factual determination of
guilt (and of the elements of the offense), and did so
considering evidence of a different criminal episode.
In such a situation, the prior conviction is Blakely-ex-
49a
empt because “the underlying fact in a prior conviction analysis — that the defendant was previously
convicted of certain crimes — is one that has passed
through the safeguards of the jury right . . . .” Lopez,
113 P.3d at 730. So, too, convictions on separate
charges by the same jury have passed through the
safeguards of the jury right.
64. Courts in other jurisdictions have held that a
jury’s factual finding in conjunction with one charge
may be used to enhance a sentence on another charge
in the same case. E.g., State v. Martinez, 115 P.3d
618, 625-26 (Ariz. 2005); 2People v. Stankewitz, 24
Cal. Rptr. 3d 418, 422, 424, 426-27 (Cal. Ct. App.
2005); Robinson v. United States, 946 A.2d 334, 33539 (D.C. 2008). Another division of this court approved that practice in People v. Bass, 155 P.3d 547,
554-55 (Colo. App. 2006). To the extent the division in
People v. Glasser, 293 P.3d 68, 79-80 (Colo. App.
2011), held otherwise, I would not follow it. See People
v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008) (one
division of the court of appeals is not obligated to follow another division’s decision). 3
65. Thus, I conclude that the district court
properly aggravated defendant’s sentences based on
Other Arizona cases applying jury verdicts in this manner include State v. Patron, No. 1 CA-CR 13-0629, 2015 WL 5167661,
at *7-8 (Ariz. Ct. App. 2015) (unpublished decision), and State v.
Moore, No. 2 CA-CR 2006-0248, 2007 WL 5323085, at *4-5 (Ariz.
Ct. App. 2007) (unpublished decision).
2
3 Neither People v. Bass, 155 P.3d 547 (Colo. App. 2006), nor People v. Glasser, 293 P.3d 68 (Colo. App. 2011), analyzed this issue
in any depth.
50a
Blakely-compliant facts found by a jury beyond a reasonable doubt.
66. Further, the district court properly enhanced
the sentences based on Blakely-exempt prior convictions.
67. A conviction is considered a “prior” conviction
for Blakely purposes if it is entered before sentencing
on the different offense. Misenhelter, 234 P.3d at 66162; Lopez, 113 P.3d at 730. So even a conviction on
one charge entered at the same time as a conviction
on another charge is a prior conviction for purposes of
sentencing on the other charge. Misenhelter, 234 P.3d
at 661-62; see also Lopez, 113 P.3d at 730 (a conviction
on one charge entered after a conviction on another
charge is a prior conviction vis-à-vis the other charge
if entered before sentencing on the other charge).
68. At sentencing in this case, the district court
enhanced the sentences because defendant had used
a weapon, someone had died, and defendant had tampered with evidence. The court had previously entered convictions for illegal discharge of a firearm,
manslaughter, and tampering with evidence. I view
the district court’s references at sentencing to be to
those (prior) convictions. Thus, for this reason as
well, the district court did not violate defendant’s
Sixth Amendment right to trial by jury.
II. Void For Vagueness
69. Defendant contends that section 18-1.3401(6) is void for vagueness on its face and as applied
to him. I agree with the majority that defendant did
not preserve either claim. But I disagree with the majority that we should therefore decline to address the
51a
facial challenge. As I have written in the past, constitutional claims are reviewable on appeal for plain error so long as they do not require further development
of a record in the district court. See People v. Greer,
262 P.3d 920, 936 (Colo. App. 2011) (J. Jones, J., specially concurring).
70. Defendant’s facial challenge to the statute
does not require further development of a factual record: he contends that the statutory language provides
no discernable limit to what a sentencing court may
consider in aggravation. I would therefore review
that challenge. 4
71. In People v. Phillips, 652 P.2d 575 (Colo.
1982), the supreme court rejected a void for vagueness
challenge to the statute. The statute has not been
changed appreciably since that decision, which is
binding on this court. See People v. Allen, 111 P.3d
518, 520 (Colo. App. 2004) (the court of appeals is
bound by decisions of the supreme court); see also People v. Novotny, 2014 CO 18, ¶ 26 (The supreme court
“alone can overrule [its] prior precedents concerning
matters of state law . . . .”). Therefore, I would reject
defendant’s challenge on the merits.
I agree with the majority, however, that defendant’s unpreserved as-applied challenge is not reviewable.
4
52a
APPENDIX C
DISTRICT COURT, EL
PASO COUNTY,
STATE OF COLORADO
270 South Tejon Street
Colorado Springs, Colorado
80903
THE PEOPLE OF THE
STATE OF COLORADO,
Plaintiff,
vs.
CHRISTOPHER MOUNTJOY,
Defendant.
For the Plaintiff:
LAUREL E. HUSTON, Reg
#35534
Deputy District Attorney
105 East Vermijo Avenue,
Suite 500
Colorado Springs, Colorado
80903
(719)520-6000
For the Defendant:
CINDY K. HYATT, Reg.
#35655
KAREN C. PARROTT, Reg.
#40842
Deputy State Public Defenders
COURT USE
ONLY
Case No:
12CR1020
Division:
22
53a
19 North Tejon Street, Suite
105
Colorado Springs, Colorado
80903
(719)475-1235
REPORTER’S TRANSCRIPT
The above-entitled matter came on for hearing on
May 16, 2012, before the HONORABLE WILLIAM
BAIN, Judge of the District Court.
[2] P R O C E E D I N G S
(Whereupon, the following proceedings commenced at 11:03 a.m.)
THE COURT: All right. We’ll call the Mountjoy
matter.
MS. HYATT: Good morning, Your Honor. Mr.
Mountjoy appears in custody. And Karen Parrott is
with me from the public defender.
THE COURT: Good morning. Laurel Huston is
here for the people. Are we expecting Ms. Vellar?
MS. HUSTON: Good Morning, Your Honor. Ms.
Vellar had an emergency. She had to leave town this
morning. It will just be me. Detective Schiffelbein is
here, but he’s staying in the gallery.
THE COURT: All right. This comes on for sentencing. Did you have any corrections to the presentence report?
MS. HYATT: We didn’t. We were not happy that
54a
Mr. Mountjoy was asked about the events. We specifically asked Mr.-- or asked that probation be ordered
not to speak to Mr. Mountjoy about the circumstances
given Mr. Mountjoy’s appellate rights. Also the last
recommendation is that Mr. Mountjoy be assessed a
$45 drug and alcohol assessment fee, which -- and
maybe I am just forgetting but I don’t see where there
was any alcohol. Usually those are for drug assessments.
THE COURT: It looks to be a typo.
MS. HYATT: That’s what I was thinking. I didn’t
know if [3] he was referring to something else. But I
think those are the only changes or disagreements
with the PSIR.
ple?
THE COURT: All right. Argument from the Peo-
MS. HOUSTON: Your Honor, I believe there’s a
couple of people that would like to speak with you.
Would you like to hear the witnesses first?
THE COURT: Sure.
MS. HUSTON: Your Honor, this is Marlon
Means, the brother of Virgil Means.
THE COURT: Good morning.
MR. MEANS: As you see, my mom is not here.
Nobody else in my family is here because of all of the
injustice through all these cases that we face. My
mom can’t handle it. And I seen my mom raise five
kids on $5 by herself. That is a strong woman, and
I’ve never seen my mom ever not be able to handle
anything. She lost her son, the backbone of our body,
55a
of our family.
And it’s just sad, you know that -- to think that
this guy could just walk out of here. 16 years isn’t
even enough. You have to remember that Virgil
Means also served his country. But unlike Mr.
Mountjoy here Virgil Means came back from the military and served his community too. And what did he
get for that? A good night at a bar and killed by some
gangsters. And yet we sit here trying to find a way to
be lenient.
And not only that, but I also feel sorry for our justice system, for the cops that risk their life every day
to catch men [4] like this and for them to just watch
them walk out. You know, as a community we all
want the bad guys locked up, but we just let them
right back out.
And we’re not talking about a theft or a burglary.
We’re talking about he killed a man, a good man. The
kind of man that went to church every Sunday and
read out of the bible every day, who just went out to
have a drink; while these guys went out to hurt somebody, maybe not my brother in particular but that’s
what they did. Now I don’t have a brother. I’ll never
get my brother back. And I think we need a little justice. Can we get a little justice? Please? Thank you.
THE COURT: Thank you, Mr. Means.
Good morning. What is your name?
MS. FORDYCE: Good morning. My name is Bonnie Fordyce. F-O-R-D-Y-C-E.
THE COURT: What would you like to say?
56a
MS. FORDYCE: My good friend, Harriet, called
me to have me speak on her behalf today, and she’s a
dear friend. She’s a grieving mother. I work with her.
I’ve watched her grieve for her son. She’s tired. She’s
worn. It’s been more -- more than a year of grieving
for a son whose life was taken tragically. She grieves
for the grandchildren she’ll never know through him,
for the plans he had to help mankind, cut short by this
man’s choice to fire a weapon to kill him.
I’ve been through nearly every hour of these trials, and [5] I watched the videos. I heard the evidence. And it is dead clear to me that this is a 1 percent outlaw motorcycle gang that lives by their own
rules, their own set of rules, and has a hunger to
harm. I’ve sat through lies, cover-ups, and even intimidation by the shooter to the witnesses on the
stand.
Your Honor, this country is built on truth, justice,
and freedom. The freedom that Jason had that night
to choose to go out to drink where we wanted to and
party. But he was put at a distinct disadvantage that
night. He was not handed gang rules at the door, and
tragically he ended up dead. That’s a fact. And most
likely it was over a girl who is labeled “property” of
those gang members. How tragic.
Your Honor, it was in yesterday and today’s news
that the Waldo Canyon thieves have received decades
of prison terms. I stand before you today to plead with
you to give human life much higher value than possessions, that you impose the maximum sentence allowed by law to this dangerous criminal. Justice must
prevail in order that these things cease to happen,
Your Honor. I thank you for listening.
57a
THE COURT: Thank you.
MS. HUSTON: Your Honor, I have argument.
THE COURT: All right.
MS. HUSTON: Your Honor, for starters I just -I’d like to make clear that the People believe that
there is everything across the board from probation to
maximum prison. In this [6] particular instance, the
People will be arguing for an aggravated sentence for
the manslaughter counts that merge.
THE COURT: So you’re asking for more than six
years?
MS. HUSTON: Yes. We believe the Court has
the discretion to give up to 12 years on the manslaughter counts that merge.
THE COURT: Do you have authority for that?
MS. HUSTON: Sure. I would point the Court to
both case law and statute. 18-1.3-401 is, of course, a
sentencing statute that the Court relies on. And subsection 401(6) through (8) in particular deal with instances where the Court finds extraordinary aggravating circumstances and the only real -- there are
some qualifications to that, Your Honor.
The Court is required to make specific findings on
record as to what the circumstances are that you are
finding to justify an aggravated sentence. That’s under subsection (7). The list -- there is also a list that
we’re all familiar with under subsection (8) that lists
things like parole and crimes of violence.
But the statute is clear that that list is not exhaustive and that the Court can look to other factors.
58a
And the statute even in (8)(f) directs the Court that it
may consider circumstances such as the use of a
weapon or serious bodily injury to a victim. So that’s
how the statute lies it out.
Of course, in 2004 with the Blakely decision from
the U.S. Supreme Court, we get further guidance and,
basically, the [7] Court has to, as required -- to make
specific findings to a Blakely compliant or a Blakely
exempt fact. The People readily concede there’s not
any Blakely exempt facts for the Court to consider.
But a Blakely compliant fact can be a fact determined by the jury beyond a reasonable doubt and that
can include a fact that was determined as an element
of an offense. And it can also include a fact admitted
by the defendant or found by you after a defendant
stipulates to a judicial fact.
I think important for our particular case is that
we have a series of charges here that the Defendant
was found guilty for. And some of those charges have
elements that are certainly Blakely compliant that
you can rely on to aggravate the sentence, the most
obvious and serious of which would be the death of
Virgil Means.
There are -- Colorado law is full of case law examples where defendants have -- for example, similar to
our circumstance -- been charged with very serious
crimes including first degree murder, gone to jury
trial, and found not guilty and acquitted of the murder charge; but found guilty of lesser charges and the
Court gave aggravated sentences to those lesser
charges.
The case that I find instructive and helpful is the
59a
-- I believe it’s Lee, L-E. People v. Lee, and that is 74
P3d 431. It’s a Colorado Court of Appeals case. And
I think it’s helpful because in this particular case the
brief facts were that the defendant was charged with
first degree murder along with a whole series of other
things; solicitation, conspiracy, burglary, [8] robbery.
He went to trial, and he was found guilty of the lesser
charge but acquitted of the murder charge. The Court
in that case sentenced him in the aggravated range
for the lesser crimes.
The case went up on several points of appeal, one
of which was whether that sentence was appropriate.
And the appellate Court found it was appropriate because the Court had made the specific findings necessary under the statute and under Blakely.
But it also talked about -- it’s instructive because
it went through the role that the Court played at the
sentencing hearing in considering the aggravation,
the mitigation; all the facts of the case. And ultimately the Court’s determination that in that particular case the defendant’s actions led to the death of
somebody.
And one of the appellate issues in this particular
case was whether the fact that the prosecutor recognized and argued that, even though he was acquitted
of first degree murder, whether it was an appropriate
sentencing argument and sentencing consideration
for the Court; whether somebody who had been acquitted of first degree murder, whether the Court can
consider that. And ultimately in Le, the appellate
Court notes the Court is allowed to do that.
The Court is instructed to properly evaluate the
60a
overall circumstances of the crimes of which a defendant is convicted and the serious risks that attend
those crimes; a risk being, for example, the death of
another person or persons.
[9] THE COURT: I have not read this case, but I
plan to do that. Would that mean that other than
manslaughter there is no such thing as a presumptive
range because by definition there is a death?
MS. HUSTON: Your Honor, I think that the
Court can definitely find within the presumptive
range if the Court so desires. I mean, the presumptive
range is there, and it’s the baseline instruction for all
of us. But I do believe -- and I found no case law to
suggest otherwise -- that when you’re dealing with
manslaughter and dealing with a death, the Court
can always find that that is a Blakely compliant fact
upon which it wants to consider and rest an aggravated sentence, but you don’t have to.
And so I would argue that the Court is allowed to
consider that and extend the sentencing range, but
obviously doesn’t have to and can be guided merely by
the presumptive range for a Class 4 felony.
There are other cases that I can cite to the Court
that deal with this type of circumstance where a defendant is found guilty of a criminally negligent homicide and things of that nature. I have found no case
law that says the Court cannot do that as long as the
Court makes findings of at least a single Blakely compliant fact. Because case law is also clear that you
can consider other things and rely on other facts that
aren’t -- that aren’t and cannot be considered Blakely
compliant facts. But as long as one of the facts meets
61a
the requirement of Blakely, you [10] can get into the
aggravated range if the Court feels that that is appropriate.
And in the Trujillo and Allen cases, I think it’s
important for the Court to note that there’s a discussion of subsection (6) of the aggravated -- extraordinary aggravated circumstances language in 18-1.3401. And the Court points out that what the trial
Court -- the sentencing Court is to consider are simply
the normal circumstances that a trial Court would always consider in imposing a sentence. And these are
circumstances which become extraordinary in the
evaluation of the Court because of the their quantity
or quality.
In this instance, we’re talking about quality. The
fact that the extraordinary circumstances lead to a
death as opposed to a theft case where there were 27
victims and Court might say, I would sentence in the
presumptive range, but because of the quantity, I’ll
sentence in the aggravated range.
THE COURT: Do you have the cite for Trujillo?
MS. HUSTON: Trujillo is at 75 P3d 1133. Allen
is 78 P3d 751.
So the Court doesn’t have to look to specified facts
or considerations that we would normally fall back
and rely upon to increase a penalty or a change of classification of an offense like a full aggravator or a COV
aggravator or this is the third time a particular defendant committed a crime, so it bumps him up to a
felony. The Court merely has to consider the normal
circumstances [11] that it would in imposing a sen-
62a
tence and determine whether in this case, the circumstances of the crimes the defendant has been found
guilty of rises to the level of aggravation. It is the
People’s position that it does.
And I would candidly tell you, Your Honor, probably if I was in front of you in a different case, I would
make a similar argument. But I have to say in this
particular case I feel like the facts before the Court
are particularly supportive of an aggravated sentence, more than just the fact that somebody ultimately died.
The Court is instructed -- and I know the Court is
aware there is no set factors or number of factors that
you have to consider. And case law is full of different
things that Courts have considered. But there is a lot
of case law that talks about the Court considering
events surrounding the crime and the patterns and
the conduct which would indicate to the Court
whether the defendant is a serious danger to society.
Some of that discussion was in Leske, 957 P2d 1030.
And there is a lot of -- there is obviously many,
many cases that come before the Court where the circumstances of the crime alone can justify the imposition of a maximum sentence or an aggravated sentence. The case law is clear about that. But if we just
think about the circumstances surrounding this particular crime -- and I’d like to think about it in terms
of this language from Leske about pattern of conduct.
I know that when we normally [12] talk about pattern
of conduct, what comes to my mind is somebody who
is a repeat offender and has done this particular crime
over and over again.
63a
Here, I would like the Court to consider that the
pattern of conduct in this particular case includes Mr.
Mountjoy’s personal role in an entity, the Sin City
Deciples, which a self-avowed 1 percent outlaw motorcycle gang in which Mr. Mountjoy was not just a member or a passive participant at the club, but he was an
active leader. He was the enforcer. He was, by his
own testimony, involved in the club before it moved to
the location at which the murder occurred and at the
prior address. And he, in fact, got -- it appears from
his own testimony and the testimony of others -- that
his promotion and position within the club, was in
part because of all his dedicated service in moving
that club from one place to another.
The reason that’s important is not just because of
the activities going on at that club, but the fact that
he would have been aware of that. And it came out in
trial through testimony that there were a lot -- an
alarmingly high number of calls for service for the police at all of the club’s locations and prior locations.
The importance of that, Your Honor, is just
simply that this is a man who was the club enforcer
who dealt with problems and, certainly, who would
have been aware of the problems. That goes to his
recklessness, the conscious disregard that the jury
[13] found that he conducted that resulted in the
death of Virgil Means. Even before you get to the acts
of that night, he was aware of his circumstances and
the type of place he was hanging out.
I think that’s important because the Court has
received a lot of letters requesting leniency. And they
talk about a man who has done a lot of great things
for his community and country and sounds like a
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great kid when he was growing up. That’s different
than the man who kept going to a place where the police were called not 10 times, not a dozen times but,
you know, dozens of times to each of those locations
for assaults, for robberies, for thefts, for gun violence,
for disturbances, and ultimately for this homicide.
The Court is also instructed to consider public
safety, the public interest in safety of deterrence and
the criminal justice goal of protecting society and punishment of deterrence. And I would just point out that
I’m not trying to blame everything bad that that club
has ever done on Mr. Mountjoy. But Mr. Mountjoy’s
leadership role in it, I think lends me the ability to at
least say the Court should be aware that the crimes
continue.
I mean there’s been another homicide where another club member is a defendant, a wholly new separate homicide. During his own trial, there was an
assault and robbery where somebody was kicked out
of the club, beaten up, and had their wallet taken.
And that was over the weekend during the Defendant’s own trial. During the Defendant’s own trial,
there was an additional shooting [14] outside.
The trial does become a concern. The public
safety does become a concern for the People when
there is this repeated pattern of activity and when the
person who was the enforcer of the club has been
found guilty of a conscious disregard for safety that
resulted in the death of somebody. And, of course, the
Court is instructed to consider whether it’s a crime to
persons or property and the likelihood of depreciating
the seriousness of the offense with a lesser sentence.
And I think here all of that weighs to an aggravated
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sentence.
And to be clear, Your Honor, I’m not simply asking the Court for an aggravated sentence. I’m standing before you on behalf of the district attorney’s office, the victim’s family, the Colorado Springs Police
Department, asking that you use your maximum discretion to sentence Mr. Mountjoy to 16 1/2 years; 12
years on the manslaughter charges, which merge; and
then the maximum for the other two charges which
would be 18 months on the F6 and three years on the
F5.
THE COURT: So you’re not asking that the other
two be aggravated?
MS. HUSTON: I am not.
THE COURT: Okay. Do I have the authority to
aggravate them, do you think?
MS. HUSTON: Well, I think, Your Honor, if you
can find a Blakely compliant fact, you could and the
same fact could be used.
[15] So maybe, perhaps, I should have thought
that through more. You don’t have to find an element
of the offense. In the instance of the manslaughter,
the death is an element of the offense.
But you can use the death as a fact that the jury
found in Count 1 to aggravate the other count. That
is clearly allowed under case law. So the Court could
find an aggravated sentence on all of those counts. To
be perfectly frank, Your Honor, I hadn’t considered
that until now. So I’m going to revise my argument
and say I would like you to consider aggravation on
all them.
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THE COURT: All right.
MS. HUSTON: Your Honor, I just want to say a
couple more things about the Defendant’s role. I
know the Court has sat through two very lengthy preliminary hearings, multiple trials and hearings, a
couple of sentencing hearings and are well aware of
the facts. But I would for the record remind the Court
that the testimony that the Defendant gave himself
at his trial was that he was essentially leading events
that night. If we take the Defendant at his word, he
in fact, told the other people not do to anything and
ran forward with his gun.
The importance of that is he was directing and
leading the actual event that led to Virgil Means’
death. Not just as a leader; as the enforcer. But when
it actually went down, he is the one we see in the video
charge forward with the gun; by his own words, Taking care of it. He was the only out there that we’re
aware of that had the authority to tell the others to do
anything.
[16] And, Your Honor, he has a strong knowledge
of firearms, maybe better than most defendants that
come before you because of his military service. And
he fired a gun. Even if we believe that he was unaware that anybody else was firing or going to fire, he
fired a gun; not just at Virgil Means, but at a car with
two people in it and the freeway behind (indicated)
and all of those businesses (indicated). And the Court
has been to the scene. It’s not a long distance.
It’s a tragedy that Jason Means was killed but,
honestly, there could have been even far worse conse-
67a
quences. We heard Mark Nadeau’s testimony. Bullets came very close to him. Bullets could have hit
people even in the area. And he knows about guns.
He knew what he was doing.
Your Honor, just two other brief points. And that
is this is not the same as other Class 4 felonies. As
both Marlon Means and Bonnie Fordyce mentioned,
lots of things are Class 4; theft, criminal mischief,
drug charges. This is a wholly different category.
Death is different.
And I know that the Court is aware of this, but I
think it’s important to state on the record that I know
you’ve received letters talking about the Defendant’s
accident or mistake. There has been a guilty finding
in this case. Part of that guilty finding by the jury
was this was not an accident, not a mistake. The jury
did not find that Christopher Mountjoy was defending
himself or others. What they found is that he was
reckless and he [17] recklessly killed somebody by
consciously disregarding substantial and unjustified
risk. That’s what the jury found.
And, finally, Your Honor, I guess it goes without
saying, but I have to say that Virgil Means’ family and
friends have been here I think for every single court
appearance no matter what it was; for every five-minute setting and every three-day hearing. When Harriet Chess or Marlon Means weren’t here themselves,
Harriet’s co-workers who she works with at a nursing
home hospital facility, would come after working all
night long and sit in this courtroom having not slept,
for hours on end.
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And during every serious court proceeding, including Mr. Mountjoy’s trial, they have stood in the
hall and waited for the proceeding to be over because
they can’t stand being in the courtroom and hearing
the facts of how their loved one died. The family is
devastated. And, frankly, Your Honor it’s just too difficult for them to be here anymore and to participate
in the proceedings. And I know the Court would never
hold that against them.
But I think somebody needs to just say they’re
here in spirit. They’re never getting their loved one
back, and they’re relying on the Court to recognize
they’ve hung in as long as they can.
Your Honor, I ask the Court to please sentence in
the aggravated range for these charges, to give the
maximum sentence allowed by law and to order that
the counts be consecutive. As we [18] all know, we
have no control over how long somebody stays at the
Department of Corrections. But everybody in this
room that deals with the system is aware with a
charge like manslaughter that Mr. Mountjoy won’t
serve nearly the time he is sentenced to.
If the Court sentences him to the maximum rate,
he’s still going to serve literally a handful, perhaps
only 5 fingers, perhaps only 5 years for a 16 1/2 year
sentence. That is not fair, but that’s something we
cannot do anything about. We can, however, sentence
him to the maximum sentence allowed by law, and
that’s what I ask you to do.
THE COURT: Thank you.
Ms. Hyatt?
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MS. HYATT: Your Honor, that’s all fine argument made by Ms. Huston. All arguments that
should have been made to the jury had they wanted
to submit aggravated circumstances to the jury. They
chose not to do that, Your Honor. They cannot come
in here in the sentencing and ask you to do that for
them.
THE COURT: Well, they’re saying legally I have
the power to find in the aggravated range. Do you
have authority that is contrary to that?
MS. HYATT: I do, along with Apprendi, along
with Blakely. There may be -- the Court may not impose an aggravated sentence based solely on the fact
that the elements of the offense were proven. Leske
957 P2d at 1044, note 18. Factors that the Court can
consider are facts found by a jury beyond a reasonable
[19] doubt that were not submitted to a jury in a case.
Could have been, nothing else preventing the Prosecution to do that. But they chose not to.
THE COURT: What Ms. Huston is saying is that
the use of a firearm can be used as an aggravating
factor. Wasn’t there a finding of illegal use of a firearm?
MS. HYATT: I don’t know that there was. There
was certainly the illegal discharge.
THE COURT: Isn’t that a finding of illegal use of
a firearm?
MS. HYATT: That is finding of a firearm. And
what makes that different from any other manslaughter where there’s a gun used? If the legislature
wanted to make manslaughter a crime of violence,
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they would have done that. There is nothing special
about committing manslaughter with a gun versus
any other -- any other weapon. There is nothing extraordinary about that.
Further, in terms of facts admitted by the jury
and facts found by the Court after judicial fact finding
for sentencing and facts regarding prior convictions,
Ms. Huston has confessed there are no facts regarding
prior convictions.
And I think the other thing that the Court needs
to take into consideration is I don’t believe that the
Court can sentence him consecutively for the illegal
discharge. And that’s based on 18- -- sorry. That’s
based on 18-1-408 subsection (3). When two or more
offenses are charged as required by subsection (2) of
this [20] section and they are supported by identical
evidence, the Court upon application may require the
State to elect the counts on which the issues will be
tried. And I don’t think that’s relevant language.
But what’s relevant is if more than one guilty verdict is returned as to any defendant, the prosecution
where multiple counts are tried as defined by subsection (2) of this section, the sentences imposed shall
run concurrently, except that where multiple victims
are involved the Court may in its discretion impose
consecutive sentences. The illegal discharge and the
manslaughter are on the same evidence, the absolute
same evidence.
THE COURT: How do we know the illegal discharge of a firearm isn’t a shot into the roof?
MS. HYATT: We didn’t have the jury make that
71a
determination, so we don’t. It could be the same. Presumably it is the same because they found him guilty
of manslaughter. This is exactly what Apprendi and
Blakely were set to address.
We cannot go back after we’ve released the jury
and try to get back into their heads and see exactly
what they were trying to figure out. This is what they
found. There is a way to do that. We have interrogatories. We have ways of making the jury make those
findings beyond a reasonable doubt, which Mr.
Mountjoy is entitled to under the United States and
Colorado constitutions. Had they wanted to charge
those separately, they would have simply put in two
charges; illegal discharge, roof; and illegal discharge,
[21] Mr. Means. They didn’t do that.
The Court cannot go back now and try to parse
that out. It’s not the role of the Court or the responsibility of the Court to do that. Our position is that
Mr. Mountjoy is looking at the presumptive range of
2 to 6 years for manslaughter. The illegal discharge
has to merge based on statutes, which is based on double jeopardy principles, being punished twice for the
same act.
And as far as the tampering, I think arguably under the same statute, 18-1-408, the offense is a continuing course of conduct and the defendant’s course
of conduct was uninterrupted until the law provides a
specific period of such conduct constitutes separate offenses. And that’s subsection (1)(e), which is also -they’re all based on the double jeopardy clauses of the
constitution.
THE COURT: Isn’t tampering really a separate
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act? I mean, that’s certainly not identical evidence of
the shooting.
MS. HYATT: Not identical evidence, Your Honor,
no, but certainly a continuing course of conduct.
THE COURT: Does the statute say if it’s a continuing course of conduct, it all has to run concurrent?
MS. HYATT: I think -- frankly, Your Honor, I
think the Court has discretion to stack the F6 tampering. I do not believe the Court has discretion to
stack the F4 or aggravate the F4 or the manslaughter
conviction. That could have been determined by the
jury; it wasn’t. It could have been determined by the
legislature [22] to be a crime of violence because it involved a firearm. That wasn’t how -- the jury made
no -- absolutely no determination that this was a
crime of violence, which they are required to do if it’s
to be punished as one.
All of those things could have been done and they
weren’t. And it is inappropriate and not the Court’s
role now to go back and try to get inside the jury’s
head as to what exactly they found. And I would also
point the Court to Lopez, which is 113 P3d 713. That
case was more specifically post-Apprendi and postBlakely, Colorado case that implemented the rulings
and the findings in the United States Supreme Court
cases.
As far as -- and in terms of another endangering
of Mr. Nadeau, Mr. Mountjoy was never even charged
with attempt on Mr. Nadeau. Never charged with attempted murder, never charged with assault, never
charged with anything whatsoever having to do with
Mr. Nadeau.
73a
The Prosecution could have done that had they
wanted an enhanced penalty. They didn’t do it, Your
Honor. They chose not to do it, and that can’t be used
now to get the Court to essentially correct the error
they made in not submitting them at trial.
I note if the Court wants to look at -THE COURT: I have it. I’ve read these cases.
MS. HYATT: And we have one or two witnesses
on behalf of Mr. Mountjoy. Did the Court want to hear
the witnesses now?
[23] THE COURT: Sure.
MS. HUSTON: And, Your Honor -- I apologize to
Ms. Hyatt -- but I failed to look at a note earlier.
There is one other family member that wanted to
speak on behalf of Mr. Means, so if that would be possible. I assume the Court would like to hear that before all the witnesses for Mr. Mountjoy.
THE COURT: Yes. Why don’t I hear from this
person and then I’ll hear from Mr. Mountjoy’s witnesses.
MS. HYATT: Right.
THE COURT: All right. Come on up, ma’am.
Good morning. And remind me of your name again.
MS. WHITE: Elizabeth White.
THE COURT: What would you like to say?
MS. WHITE: I would like to say no matter what
happens today we all know that my brother can’t walk
out of the grave. But this man no matter how good he
was as a child or how well he does in the military, he
74a
made a decision to pull out his weapon and make
those shots. I don’t know if he’s been to Afghanistan
or wherever, but he knew just as well as I would know
right now if I was angry and I had a weapon of any
sort and came at you or shot at you, the consequences
of that.
There is evidence. There’s a videotape. There’s a
videotape. I’m almost going out of my mind on that.
It’s not like hearsay; he said, she said. There is a videotape showing these young men shooting at the car.
I can’t say that Mr. Mountjoy’s [24] bullet hit my
brother. I can’t say that the next young man’s bullet
hit my brother, but they all shot. They all knew what
they were doing regardless of stupid or just raging out
of their minds. I don’t care what they were thinking
at that moment, at that hour, at that time.
My brother passed away. He was 31 years old.
He passed away because of their decisions. No one
told these young men to do so. And I will be damned
if I hear one more time that I have -- what is it -- posttraumatic stress disorder. This has given me posttraumatic stress disorder. This has given my mother
and my brothers and my sisters post-traumatic stress
disorder.
I have a husband who is in the military who is a
veteran of Afghanistan and Iraq. I have a brother-inlaw who is a veteran. I have -- my brother is a veteran. No one came back from being overseas and just
started shooting people because they saw what they
saw. They saw awful things. People see awful things
but they make a difference in other people’s lives.
They don’t go back and decide to make a decision on
someone else’s. I can’t bring my brother back, and I
75a
understand that. And that is a hard, hard lesson to
learn every day when I want to speak to him. That’s
a hard lesson.
But I know one thing: That these young men
made a decision and there’s no reason and there’s no
way for them not to get what’s -- 16 years? Is that the
max? 16 years? By the time he gets out, his child probably won’t even be out of middle school. [25] With
good behavior, he will be out by six years at max. I
know this because I have friends that have gone to
prison from high school. I see them walking around
now. How did you get out? Oh, you know, the good
time, blah, blah, blah. You have a daughter. You
have a wife. They will be back. When you get out of
prison they will still be here, God willing. I’m sorry
that you made a bad decision, but we make decisions
every day.
And one thing I want to tell you, Mr. Mountjoy,
from the bottom of my heart is that you know what?
This is not the last -- regardless of what you believe,
your Buddhism, whatever -- that this is not the last
time you will stand in front of a judge. And this time
-- this next time that you actually do stand in front of
a judge, there won’t be hearsay. He’s going to ask you,
Why did you take my son? And there won’t be if this
and if that. There won’t be lies. There won’t be, Oh.
Well, God, this and this and this and this. Those
things won’t stand up to him. And I don’t know what
lies you told yourself or told your family or told this
Court, but those won’t stand up.
And I all I can do is pray for your moral soul because without -- without God I feel so bad for your
76a
family. I had to sit down and stop thinking about myself for a minute. And I had to think about the families -- not just my family that you have ripped to
shambles, but everybody else that you brought
through the wringer. You have a daughter. You
should be ashamed of yourself. And that’s all I have
to say.
[26] THE COURT: Thank you, Ms. White.
Ms. Hyatt?
MS. HYATT: Your Honor, we ask Mr. Mountjoy’s
mother-in-law to address the Court.
THE COURT: All right. And your name is?
MS. HARP: My name is Delia Harp (phonetic),
Mr. Mountjoy’s mother-in-law.
THE COURT: Good morning.
MS. HARP: My daughter is Carol Ann. And it is
hard not to talk when I heard things being said that
this is the man that Chris is. He came into my daughter’s life. He is funny. He will do everything for everybody. He helps everybody. He’s a man that -- I don’t
know how to explain it.
He knows everybody. In Fort Campbell when he
lived over there where I live in Tennessee, we would
go out in public and people -- Hey, Chris. And hugs
and, Hey, man, how are you doing? And I would be
like, Oh, is that somebody you know? Oh, no, no, no,
no. I met them at the bowling alley or at the gym;
something like that. Everybody knew him. He knew
everybody’s name.
He was there. You need some help? I’ll help you.
77a
He was one that when those babies were born -- and
not too many men can do this -- he jumped in there for
every single one of those three children, two girls and
one boy. He cut the umbilical cords. He was there for
every push. He was there for every pain. He never
backed down.
[27] He always helped anytime he came to my
house. Mom, you need fences fixed? I have horses and
stuff like that. And he wasn’t a cowboy, but he tried
and did everything, hauled hay. He did everything.
He helped everybody. There was nobody he would
ever turn his back on, that he would help.
And I’m getting kind of emotional. I’m sorry. I’m
not trying to. But it’s hard to hear that people try to
call him a murderer, and he’s not. There was circumstances that happened as far as I’m concerned. It
didn’t end up right. You know, I’m not the DA or his
defense attorney or anything like that, but I know
Chris. He did not go there to harm somebody.
He’s the one when they say “the enforcer” -- probably because he’s the guy that will listen to both sides.
He’s not the one that’s going to take somebody’s side
and say, You’re nothing. He’s the one that will listen
to both sides and take things into consideration and - what they say -- take care of it because he listens.
That’s why he was a counselor for the Wounded Warrior program. That’s why he has a good military reputation because he wasn’t and is not a person that just
goes after somebody. He’s the person there that helps
people.
And I probably should stop there because I can
ramble, so...
78a
THE COURT: All right. Good morning. And
your name is?
MS. MOUNTJOY: Good morning, Your Honor.
My name is Kathleen Mountjoy. I’m Chris Mountjoy’s
mother. I acknowledge [28] this is a travesty and a
tragedy. It’s affected so many families and so many
people.
But I can’t help but want to add -- I know you read
my letter -- that my son doesn’t have a mean bone in
his body. He’s a good and nurturing son and man.
And I think it was proved during the trial that his
bullet did not kill the victim. And, in fact, he was protecting because of a perceived -- a perceived danger.
I think that Colorado Springs and law enforcement -- I don’t understand why they would allow after-hours clubs to continue. I heard a great deal of
comments, remarks regarding the -- the crimes that
go on at these type of places. And I think that there’s
mitigating circumstances in that and mitigating factors in that these clubs are allowed to have afterhours parties. The police are well aware of them.
When I drove here from Denver last night, there
were police cars all along the freeway. Where are they
when people are drinking illegally after hours in these
private clubs where there is -- is a record of violence
or crimes? I just don’t understand why it can be allowed to go on.
As for my son and his association with the socalled 1 percent club, I was unaware of most of this
until this last 14 months. I’ve done a lot of research.
I’ve been around the block once or twice. I find this
club to be somewhat comedic. I don’t look at them as
79a
a 1 percent club.
The atmosphere. Mr. Means had been drinking
throughout [29] the night with a group of friends, like
anybody else would go out and drink. 2:00 in the
morning, that’s when you go home. These young men
went to an after-hours club. They knew the atmosphere in which they were partying. They knew that
there is a -- people are allowed to carry guns in this
place. They know that they’re patted down.
Mr. Means, it was proven that -- or it was proven
at trial that he left threatening. He came back several
times, three. And then twice, I think, in the car if I
remember correctly. He kept coming back. Why
would you come back to this type of atmosphere? That
in itself is reckless. I feel -- I just feel -- my heart goes
out to his family. I’m affected. I know they’re affected
a hundredfold more. But I really think that Mr.
Means set this incident into motion by his own actions.
And I just don’t think that it’s appropriate for my
son to receive a maximum sentence. He’s never, ever
really been in trouble before. He’s very sensitive.
He’s always been raised to put himself in other people’s shoes and to feel how they would feel, to empathize with other people. And that’s why he was a peer
counselor in school. And yes, he was a good young
man -- is a good young man.
His history is good. He’s still the same person.
Even after his deployments overseas and the horrors
that he witnessed, he has a loving and giving heart.
He would have been the first person to help Mr.
80a
Means leave safely. Mr. Means took it upon [30] himself to come back again and again, and I just think
that was foolhardy. He threatened. Mr. Means
threatened people as he was leaving the club. He was
intoxicated. I just don’t know where law enforcement
-- they just ignore this cul-de-sac. That’s just beyond
my comprehension.
Christopher has support from many, many people; many people who didn’t write letters and many
people who couldn’t be here. Our family couldn’t be
here. I’m here on behalf of my entire family requesting leniency so Chris can return to his family, become
the breadwinner that he was and continue with a good
life. He had a good life. This was a mistake.
But I don’t think that -- I think it was proven
through physics that his -- his gun didn’t shoot. He
was trying to protect people who were in fear. And he
would have done the same thing -- the same thing if
Mr. Means was standing next to him. He would have
protected him. I went on Mr. Means’ Facebook page.
He was quite like my son. The two of them were very
similar. I -- my son is still alive. I’m thankful for that.
He could have easily been killed as well.
I just want you to know that I think to impose a
maximum sentence and place him in an institution
with hardened criminals is not going to be a positive - a positive thing. I mean, he’s -- he’s not a hardened
criminal. He is -- he can contribute to society. He has
stated to me over and over and over again he will
never touch another firearm the rest of his life. He
has been [31] severely impacted by this whole incident, as he should be.
81a
I just request that -- that in your discretion that
you allow Christopher to return to society, pay his
debt back, and to become a productive member of society again and a father and a husband, and be returned to his family. They’re suffering. All of us in
this courtroom are suffering. Thank you.
THE COURT: Thank you.
MS. HYATT: Obviously, Your Honor the Court
received a number of letters. Ms. Mountjoy is here
and she wishes to stand on her letter.
THE COURT: All right. Any other argument?
MS. HYATT: Just this, Your Honor. When Mr.
Mountjoy came back from deployment, he was looking
for this club or some sort of affiliation, some sort of
brotherhood, some sort of group that resembled what
he had in the military. It’s more for that reason and
that reason alone that he joined Sin City. Mr. Mountjoy didn’t join Sin City because that would be a group
enterprise to get together and commit crimes with.
He joined it because they are a very, very tight
brotherhood. Their motto is, I am my brother’s
keeper. That part appealed to Mr. Mountjoy. He was
not a career criminal or somebody who was constantly
getting into trouble and looking for a group of people
who were like-minded so they could all commit crimes
together.
He came back and carried a gun. I think you
would be [32] hard-pressed to find veterans who have
been deployed who don’t have guns on them most of
the time. Just by virtue of that experience in that
particular type of combat and difficulty to readjusting
82a
to living here after being deployed -- and most people
like Mr. Mountjoy being deployed more than once.
The other thing I would add, Your Honor, there
was no offer in this case. And that’s the Prosecution’s
prerogative. And quite frankly, it gave me a lot less
stress. But I say that because this isn’t a case where
I had a client who refuses to negotiate, refuses to take
any responsibility. That was never the case with Mr.
Mountjoy. He wasn’t given an opportunity through
plea negotiations to do so, which was why we ended
up going to trial.
Beyond that, Your Honor, I don’t have much to
add. I think this Court knows a lot about this case
through the prelim, the two jury trials. This isn’t a
case where there’s a lot of information out there that
the Court doesn’t know about. Mr. Mountjoy’s medical records, military records were all turned over to
the district attorney and to CMHIP. There is nothing
out there, nothing hidden that the Court doesn’t know
about. This is it.
And I don’t think that the Court has any ground
to aggravate this sentence based on any reason. I
think had the Prosecution wanted that, they needed
to submit them to the jury and that would have taken
care of the issue. We can’t go back and try [33] to -do second-guessing or fact-finding for them at this
point. So we would ask the Court to impose a sentence in the presumptive range of manslaughter.
And Mr. Mountjoy just has a brief comment for
the Court.
THE COURT: Mr. Mountjoy, what would you
like to say?
83a
THE DEFENDANT: Your Honor, thank you for
your time and effort in this legal matter and for reading all the letters on behalf of myself and from my
family.
I would like to send my deepest apologies and
dearest thoughts and prayers to the Means family. I
pray that they stay strong as a family and continue to
stand proud of who they are.
This is not been easy for either side. I have let a
lot of people down, and they are still standing next to
me. Numerous people that you bring with this type
of sentence -- and I do understand that every crime
has a punishment. I ask that if you do see it’s fit to
not issue that type of punishment, it is not for me, it’s
for everyone back here in my family. Thank you, Your
Honor.
THE COURT: Thank you.
MS. HUSTON: Your Honor, if the Court is going
to review the cases, can I give you additional cites for
consideration?
THE COURT: Yes.
MS. HUSTON: Okay. I’ll give the cites. Watt,
165 P3d 707; Presiado-Flores, 466 P3d 155; Fiske, 194
P3d 495.
With regard to consecutive versus concurrent,
there’s a [34] number of annotations in the statutes,
but the Court could certainly take a look at Wieghard,
W-I-E-G-H-A-R-D; 743 P2d 977; Williams, 33 P3d
1187.
And with regard to Blakely compliant facts, just
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needing a single Blakely fact in response to some of
what Ms. Hyatt said. She gave you the Lopez cite.
There’s also Huber, which is 139 P3d 628; and DeHerrera, which is 122 P3d 992. She also directed you
to towards Leske, and I think that’s a good case to look
at as well. And I ask the Court to consider case law,
perhaps, look at those cases as well.
MS. HYATT:
thinking of it?
May I approach just while I’m
THE COURT: Yes. Just so the DA knows, this is
a motion for appointment of public defender on appeal, a motion to proceed in forma pauperis. I have
10 cases I need to read. There is a lot of people that
are here for the sentencing. But you need know that
I have read all 10 of these cases. I’ll reconvene at 1:00
for the sentence.
(A recess was taken from 12:01 p.m. until 1:02
p.m.)
THE COURT: The Court will recall the Mountjoy
case. The attorneys and Mr. Mountjoy are present.
Ms. Hyatt, my clerk tells me you indicated you
have more argument.
MS. HYATT: I do, Your Honor. We object to the
aggravated sentence -- being sentenced in the aggravated range on two separate grounds. One is due process under the United States [35] and Colorado constitutions. It’s an issue of notice. There is no notice
in the statute that requires committing -- in committing reckless manslaughter can lead to a sentence beyond the statutory maximum. The law gives a certain
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time, and to sentence beyond that is a sentence beyond what the law promises.
The jury did not find any of the facts that Ms.
Huston cited as extraordinary aggravating factors.
THE COURT: What about the use of the gun?
Isn’t that considered an aggravating factor?
MS. HYATT: They didn’t find that that was an
aggravator; they found it was use of a gun. People vs.
Watt, that was a Colorado appeals case where the defendant pled guilty and waived statutory -- waived a
jury finding of statutory aggravators or mitigators.
Presiado-Flores was pre-Blakely and Apprendi.
Fiske was -- there wasn’t any -- the Court couldn’t aggravate because of a misdemeanor prior. And even
the defendant stipulating to a prior conviction that -stipulates that a prior conviction -- there was a prior
conviction, and that was Blakely exempt and not an
admission for the purpose of being sentenced in the
extraordinary aggravating range.
Williams was also a pre-Blakely and Apprendi
case. It was -- how it -- it affirmed the -- a Court sentencing a client on escape, consecutive. Trujillo was
overruled as was Allen. DeHerrera was also a guilty
plea. Huber was a sex offender status, [36] which the
Court found was the extraordinary aggravating circumstance which required a sentence in the enhanced
range.
I would also note for the Court that -- and, of
course, jury trial and the right to jury trial, right to
jury trial determination of those factors for that enhanced sentence. I would also note in Blakely and
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Apprendi that both of those cases involved -- a defendant being convicted of multiple counts. And nowhere
in those opinions did the Supreme Court say you can
use other counts, other things that you are being convicted of as aggravators of each other. And, certainly,
they could have found that.
And I think -- I don’t think that it is -- that the
Prosecution’s argument to the Court; aggravate Mr.
Mountjoy on whatever you think, whatever you think
is aggravating. As long as you pick one Blakely compliant factor, you will not -- the appellate courts will
uphold your ruling.
I think to say that is to essentially say that Colorado Courts allow trial Courts to say, Blakely and Apprendi thought these -- it was unconstitutional to aggravate under these circumstances. They said that.
But, Judge, if you go ahead and aggravate for whatever reason you care to, just include one that’s Blakely
compliant. You’ll be all right. I don’t think that’s honoring the spirit of Blakely and Apprendi, which found
that without certain factors being present, it is unconstitutional to sentence someone in the aggravated
range. And that’s all I have.
THE COURT: All right. Thank you. Mr. Mountjoy, I’ll [37] have you stand up at the podium there.
Judgment and conviction will enter as to Counts 1
and 4, which are the manslaughter counts. Those
were merged into Count 1. They’re basically the same
conviction, so it’s just one conviction for manslaughter. Judgment and conviction will enter for Counts 5
and 6.
I have considered the arguments here today. I’ve
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considered the evidence from the trial that I sat
through and the preliminary hearing. I have reviewed all the letters that were sent to me. There
were some 40 or 50 letters that were sent on behalf of
Mr. Mountjoy.
I’ll start with the letters. Setting aside the events
from March of 2012 at the Sin City club, just set aside.
If I look at you, Mr. Mountjoy, and consider your life
prior to that date, you lived really an upstanding life,
an honorable life. You were in the military. You
served in combat. You were injured in combat. You
were married. You had three kids. I’ve got 40 or 50
letters from people talking about how wonderful a
person you are.
I have had defendants who come into court and
they’re disrespectful to their attorneys. They’re disrespectful to me. They’re disrespectful to the DAs.
And then I get defendants who are the exact opposite.
You are that exact opposite. You’ve always been courteous. You’ve always been kind. You’ve always been
respectful. So again, setting side the events tied to
these crimes, I believe you are as good a person as all
of your supporters have been telling me that you are.
[38] Then when I consider the evidence in this
case and the events of the night in question, it’s hard
to understand how a person as good as you have been
did these acts. I’m sure it’s been mind-boggling to all
of your family and your supporters and your friends.
It’s mind-boggling to me that somebody who has had
such a good life and served their country and got injured got involved in this.
But as the argument has been made, you joined a
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club that was advertising itself as an outlaw club.
You prided yourself on being a 1 percent motorcycle
gang. Your mother indicates it’s kind of a joke, but
it’s not. The evidence did show the cops are out there
all the time. You were the enforcer. You were a prime
leader of this organization. Again, I don’t know why - in light of all the great things about you -- I don’t
know why you were involved in an organization that
repeatedly had the police called out to it.
You have seen the effect that your actions had on
-- well, certainly Mr. Means -- but on the entire family. They are crushed and have been crushed for 14,
15 months now and in all likelihood will continue to
suffer for years to come.
When I consider your conviction for manslaughter, there’s been some suggestion this is Mr. Means’
fault, that maybe he shouldn’t have been at the club,
that bad things were going to happen at the club. People just need to understand that. The message needs
to be clear. This is you. You did this. This is in [39]
no way the fault of Mr. Means.
The jury flat out rejected the defense of self-defense. The testimony was that it was your bullet more
likely than not that actually caused the actual death
of Mr. Means. The evidence was pretty uncontested
that that bullet just a foot or two above in the roof was
fired from your gun. You killed this man. You killed
him. In terms of manslaughters, this is far and away
as aggravated as a manslaughter gets.
The jury listened to all the evidence. They listened to over 50 witnesses. They reviewed over 400
exhibits. They concluded this was manslaughter.
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And the presumptive range for manslaughter is 2 to
6. It can be aggravated up to 12 depending on the
legal determinations that I make. And I’ll get to that
in a second. But I’ll just say as a general matter this
is as aggravated as manslaughter gets.
As for the legal question of well, what is the sentencing range? I heard argument from both sides, and
I’ve done an hour of research on this highly complicated issue. And I acknowledge that I could be wrong
because this is such a complex area of the law. The
question is: Can I sentence Mr. Mountjoy above 6
years on Count 1 based on a finding of extraordinary
aggravating circumstances?
Again, under 18-1.3-401 (6), I’m going to impose
a sentence in the presumptive range, unless I conclude that extraordinary aggravating circumstances
are present and support a [40] different sentence
which better serves the purposes of this code with respect to sentencing as set forth in 18-1-102.5.
The purposes of the code with respect to sentencing are, A, to punish a convicted offender by assuring
the imposition of a sentence he deserves in relation to
the seriousness of his offense.
B, to assure the fair and consistent treatment of
all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed in establishing fair
procedures for the imposition of sentences.
C, to prevent crime and promote respect for the
law by providing an effective deterrent to others likely
to commit similar offenses.
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D, to promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation of the participation of convicted offenders.
E, to select a sentence length and the level of supervision that addresses the offender’s individual
characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence.
And F, to promote acceptance of responsibility
and accountability by offenders and to provide restoration and healing for victims in the community while
attempting to reduce recidivism and the cost to society by the use of restored justice practices.
If I find extraordinary aggravating circumstances, I can [41] impose a sentence that is greater
than the presumptive range but it can’t be more than
twice the maximum of the presumptive range. If I impose a sentence in the aggravated range, I must make
specific findings on the record of the case detailing the
specific extraordinary circumstances which constitute
the reasons for varying from the presumptive sentence.
As I say, this is a complicated area. Many of the
cases provided by the DA were pre-Blakely and so not
entirely clear whether they are even applicable at all.
To be compliant with Blakely, the aggravated sentence has to rely on at least one of four kinds of facts:
One, facts found by a jury beyond a reasonable doubt;
two, facts admitted by the defendant; three, facts
found by a judge after the defendant stipulated to judicial fact finding for sentencing purposes; and, four,
facts regarding prior convictions.
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I do find that there are extraordinary aggravating factors that warrants a sentence beyond the presumptive range. Under category one, are there facts
found by a jury beyond a reasonable doubt? Here, I
don’t think on a manslaughter conviction I can say,
Well, somebody is dead and, therefore, we’re going to
aggravate it. That’s an element of the crime.
But I can find based on the jury finding beyond a
reasonable doubt that what makes this extraordinarily aggravated is one, that a gun was used. Manslaughter doesn’t require that a gun was used. But
here, the jury with its determination on illegal [42]
discharge of a firearm did make a conclusion beyond
a reasonable doubt that you did fire a gun. I find that
makes this case extraordinarily aggravated.
Two, the jury found that as part of this incident
you tampered with evidence, that you helped get rid
of evidence in a case that involved a shooting.
Three, you admitted to firing your gun eight
times. Then I think I can find based on recollection of
the testimony that you admitted to firing your gun
eight times in the direction of I-25 -- Highway I-25.
Those are the facts that I’m relying on in sentencing
you in the aggravated range.
I do take into account, Mr. Mountjoy, all the positive qualities that you have as a human being. When
I consider all of the factors that I’m to consider in sentencing, I’m to consider a deterrent and I’m to consider punishment. My sentence is not for the family
of Mr. Means. My sentence is for the community. As
a judge, I speak for the community.
This is a case where in a rare circumstance the
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crime was caught on videotape. Ms. White makes a
good point. This whole crime is on videotape. And the
videotape clearly shows Mr. Means and Mr. Nadeau - in fact, let me stop there and make another finding.
Another reason I’m going to the extraordinary aggravated range is the jury made a finding that you fired
into a car occupied by two people. The elements that
were given to them were that it had to be proven you
fired a gun into a car with Virgil Means and [43] Mr.
Nadeau. And they found beyond a reasonable that
was the case.
So Mr. Nadeau and Mr. Means are in their car.
You don’t know most likely why they circled around
two times and why the car is just sitting there. But
we know now that the reason they’re sitting there is
because they’re having a discussion about Mr. Means
getting his wallet back. He wants to get his wallet
back probably because he had a card in there with
several hundred dollars. That’s why they were there.
You may not have known that, but that’s why they
were there.
What is particularly aggravated about this case
is that the car then drives away. As the car is sitting
there, you are the person who sort of directs people to
do what they do. You’re the one who comes up between the cars. You’re the one who, as that car is a
driving away after Mr. Means is persuaded by Mr.
Nadeau that this is not a good idea, that we just need
to get out of here. As they’re driving away, you were
the guy that didn’t fall back and recognize, All right.
There is not a threat here. We don’t have to worry
about you. You were the person who follows up, follows that car, walks ahead, lifts your gun and fires it
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eight times towards this car.
This car had been driving away for seven seconds.
It’s on the video. They had been driving away for
seven seconds, and they were almost at the intersection, some 50 to 75 yards away before you start firing
your gun.
As I say, the jury rejected your self-defense theory [44] because they clearly recognized how can this
be self-defense when that car is driving away. It’s 75
yards away, and there’s no evidence there are any
shots coming out of that car. Again, I do not comprehend why you made the choice that you did. In light
of everything that I know about you, I don’t comprehend it. But as I say, this is as aggravated as manslaughter gets.
With that, I am going to sentence you to 12 years
on Count 1. As to Count 5, the illegal discharge of a
firearm, there is a question about whether this has to
run consecutive or concurrent. And for this I rely on
Juhl v. People, J-U-H-L, 172 P3d 896; which in turn
cites the Muckle case, M-U-C-K-L-E, which is 107 P3d
380.
And the Juhl Court says, We have previously held
that the mere possibility that identical evidence may
support two convictions, is not sufficient to deprive
the Court of its discretion to impose consecutive sentencing. A sentencing Court is mandated to impose
concurrent sentences only when the evidence supports no other reasonable inference than the convictions were based on identical evidence. In all other
instances, the trial Court retains its sentencing discretion and its decision must be upheld unless the
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trial Court abuses it’s discretion.
Here, the evidence was that two bullets entered
the car; one in the roof and one into the body of the
car that killed Mr. Means. So can the evidence support a reasonable inference that the convictions were
based on separate evidence? And the [45] answer is,
Yes. The jury very well could have decided, We are
convicting on illegal discharge of a firearm for the shot
into the roof and convicted on the manslaughter for
the bullet that went into the car and killed Mr.
Means.
Illegal discharge of a fireman, this is a Class 5
felony. The presumptive range is one to three. But,
again, I find this extraordinarily aggravated. One, because somebody did die during this process of shooting into the car. If you had just fired into the car and
nobody was hit, nobody hurt; you would be guilty of
illegal discharge of a firearm and looking at one to
three.
But, here, the jury decided as part of this incident
you killed somebody. And so I find the death of Mr.
Means makes this extraordinarily aggravated. And,
again, I find it extraordinarily aggravated because
you then immediately after are tampering with the
evidence in the case.
The maximum sentence in the aggravated range
is 6 years. I’m going to impose a 6-year sentence for
Count 5. I am not required to run concurrent. I can
run consecutive and I am running that consecutive.
On tampering, tampering carries a presumptive
range of 1 year to 18 months. But, again, I find it is
extraordinarily aggravated for the reasons that I’ve
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stated earlier. Somebody died. You were tampering
with evidence following the death of somebody that
you were directly tied to. That’s really the primary
aggravating factor. You weren’t just tampering with
evidence; you [46] were tampering with evidence of a
crime where somebody is dead. And that to me makes
it extraordinarily aggravated. So I am imposing a
three-year sentence on the tampering count, running
consecutive to Counts 1 and 5 that.
That makes this a total of a 21-year sentence.
There will be a mandatory 3-year period of parole that
follows. I will sign the motion for appointment of public defender on appeal.
MS. HYATT: Your Honor, there are 427 days of
presentence confinement credit.
THE COURT: All right. I’ll grant you the 427
days of presentence confinement credit. We’ll keep
this and get this -MS. HYATT: There are three. If the Court
wishes to sign all three, I can just take one or two and
the Court can keep one. May I approach?
THE COURT: Yes. You just need how many?
MS. HYATT: One or two.
THE COURT: And I think there was a request
for costs or restitution we need to address.
MS. HYATT: I need to look into that a little further. I received a discovery recently on some of those
expenses. If the Court wants to allow a time for objection.
THE COURT: Why don’t I order -- I’ll sign off on
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the restitution request and the motion for reimbursement and give you 35 days to file an objection. Will
that be sufficient?
MS. HYATT: It will.
[47] THE COURT: All right. Good luck, Mr.
Mountjoy.
THE DEFENDANT: Thank you, Your Honor.
(Whereupon, the proceedings concluded at 1:28
p.m.)
REPORTER’S CERTIFICATE
The above and foregoing is a true and complete
transcription of my stenotype notes taken in my capacity as Official Reporter for the 4th Judicial District, El Paso County District Court, 270 South Tejon,
Colorado Springs, Colorado, at the time and date
above set forth.
Dated at Colorado Springs, Colorado, this 1st day
of March, 2015. My commission expires October 10,
2016.
/s/ Gerri-Jo Elliott
Gerri-Jo Elliott, RPR
Registered Professional
Reporter
Notary Public
719-452-5331
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APPENDIX D
Colorado Supreme Court
2 East 14th Avenue
Denver, CO 80203
Certiorari to the Court of Appeals, 2013CA1215
District Court, El Paso County,
2012CR1020
Petitioner:
Christopher Anthony Mountjoy,
Jr.,
DATE FILED:
December 3,
2018 CASE
NUMBER:
2016SC653
Supreme Court
Case No:
2016SC653
v.
Respondent:
The People of the State of Colorado.
ORDER OF COURT
Upon consideration of the Petition for Rehearing
filed in the above cause, and now being sufficiently
advised in the premises,
IT IS ORDERED that said Opinion Modified and
as Modified, said Petition shall be, and the same
hereby is, DENIED.
BY THE COURT, EN BANC, DECEMBER 3, 2018.
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APPENDIX E
Relevant Statutory Provisions
Colo. Rev. Stat. § 18-1.3-401
(1)(a)(I) As to any person sentenced for a felony committed after July 1, 1979, and before July 1, 1984, felonies are divided into five classes which are distinguished from one another by the following presumptive ranges of penalties which are authorized upon
conviction:
Class Presumptive Range
1
Life imprisonment or death
2
Eight to twelve years plus one year of parole
3
Four to eight years plus one year of parole
4
Two to four years plus one year of parole
5
One to two years plus one year of parole
(II) As to any person sentenced for a felony committed
on or after July 1, 1984, and before July 1, 1985, felonies are divided into five classes which are distinguished from one another by the following presumptive ranges of penalties which are authorized upon
conviction:
Class Presumptive Range
1
Life imprisonment or death
2
Eight to twelve years
3
Four to eight years
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4
Two to four years
5
One to two years
(III)(A) As to any person sentenced for a felony committed on or after July 1, 1985, except as otherwise
provided in sub-subparagraph (E) of this subparagraph (III), in addition to, or in lieu of, any sentence
to imprisonment, probation, community corrections,
or work release, a fine within the following presumptive ranges may be imposed for the specified classes
of felonies:
Class Minimum Sentence Maximum Sentence
1
No fine
No fine
2
Five thousand dollars
One million dollars
3
Three thousand dol- Seven hundred fifty
lars
thousand dollars
4
Two thousand dollars
Five hundred thousand
dollars
5
One thousand dollars
One hundred thousand
dollars
6
One thousand dollars
One hundred thousand
dollars
(A.5) Notwithstanding any provision of law to the contrary, any person who attempts to commit, conspires
to commit, or commits against an elderly person any
felony set forth in part 4 of article 4 of this title, part
1, 2, 3, or 5 of article 5 of this title, article 5.5 of this
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title, or section 11-51-603, C.R.S., shall be required to
pay a mandatory and substantial fine within the limits permitted by law. However, all moneys collected
from the offender shall be applied in the following order: Costs for crime victim compensation fund pursuant to section 24-4.1-119, C.R.S.; surcharges for victims and witnesses assistance and law enforcement
fund pursuant to section 24-4.2-104, C.R.S.; restitution; time payment fee; late fees; and any other fines,
fees, or surcharges. For purposes of this sub-subparagraph (A.5), an “elderly person” or “elderly victim”
means a person sixty years of age or older.
(B) Failure to pay a fine imposed pursuant to this subparagraph (III) is grounds for revocation of probation
or revocation of a sentence to community corrections,
assuming the defendant's ability to pay. If such a revocation occurs, the court may impose the maximum
sentence allowable in the given sentencing ranges.
(C) Each judicial district shall have at least one clerk
who shall collect and administer the fines imposed
under this subparagraph (III) and under section 181.3-501 in accordance with the provisions of sub-subparagraph (D) of this subparagraph (III).
(D) All fines collected pursuant to this subparagraph
(III) shall be deposited in the fines collection cash
fund, which fund is hereby created. The general assembly shall make annual appropriations out of such
fund for administrative and personnel costs incurred
in the collection and administration of said fines. All
unexpended balances shall revert to the general fund
at the end of each fiscal year.
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(E) Notwithstanding the provisions of sub-subparagraph (A) of this subparagraph (III), a person who has
been twice convicted of a felony under the laws of this
state, any other state, or the United States prior to
the conviction for which he or she is being sentenced
shall not be eligible to receive a fine in lieu of any sentence to imprisonment, community corrections, or
work release but shall be sentenced to at least the
minimum sentence specified in subparagraph (V) of
this paragraph (a) and may receive a fine in addition
to said sentence.
(IV) As to any person sentenced for a felony committed on or after July 1, 1985, but prior to July 1, 1993,
felonies are divided into six classes which are distinguished from one another by the following presumptive ranges of penalties which are authorized upon
conviction:
Class Minimum Sentence Maximum Sentence
1
Life imprisonment Death
2
Eight years impris- Twenty-four years imonment
prisonment
3
Four years impris- Sixteen years imprisononment
ment
4
Two years impris- Eight years imprisononment
ment
5
One year imprison- Four years imprisonment
ment
6
One year imprison- Two years imprisonment
ment
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(V)(A) Except as otherwise provided in section 18-1.3401.5 for offenses contained in article 18 of this title
committed on or after October 1, 2013, as to any person sentenced for a felony committed on or after July
1, 1993, felonies are divided into six classes that are
distinguished from one another by the following presumptive ranges of penalties that are authorized
upon conviction:
Class Minimum
Maximum
Mandatory
Sentence
Sentence
Period of
Parole
1
Life imprisonment
Death
None
2
Eight years im- Twenty-four
Five years
prisonment
years imprisonment
3
Four years im- Twelve years
prisonment
imprisonment
Five years
4
Two years imprisonment
Six years imprisonment
Three
years
5
One year imprisonment
Three years im- Two years
prisonment
6
One year imprisonment
Eighteen
One year
months imprisonment
(B) Any person who is paroled pursuant to section 17-
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22.5-403, C.R.S., or any person who is not paroled and
is discharged pursuant to law, shall be subject to the
mandatory period of parole established pursuant to
sub-subparagraph (A) of this subparagraph (V).
Such mandatory period of parole may not be waived
by the offender or waived or suspended by the court
and shall be subject to the provisions of section 1722.5-403(6), C.R.S., which permits the state board of
parole to discharge the offender at any time during
the term of parole upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision.
(C) Notwithstanding sub-subparagraph (A) of this
subparagraph (V), the mandatory period of parole for
a person convicted of a felony offense committed prior
to July 1, 1996, pursuant to part 4 of article 3 of this
title, or part 3 of article 6 of this title, shall be five
years. Notwithstanding sub-subparagraph (A) of this
subparagraph (V), and except as otherwise provided
in sub-subparagraph (C.5) of this subparagraph (V),
the period of parole for a person convicted of a felony
offense committed on or after July 1, 1996, but prior
to July 1, 2002, pursuant to part 4 of article 3 of this
title, or part 3 of article 6 of this title, shall be set by
the state board of parole pursuant to section 17-2201(5)(a.5), C.R.S., but in no event shall the term of
parole exceed the maximum sentence imposed upon
the inmate by the court.
(C.3) Deleted by Laws 2002, Ch. 48, § 1, eff. March
26, 2002.
(C.5) Notwithstanding the provisions of sub-subpara-
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graph (A) of this subparagraph (V), any person sentenced for a sex offense, as defined in section 18-1.31003(5), committed on or after November 1, 1998,
shall be sentenced pursuant to the provisions of part
10 of this article.
(C.7) Any person sentenced for a felony committed on
or after July 1, 2002, involving unlawful sexual behavior, as defined in section 16-22-102(9), C.R.S., or
for a felony, committed on or after July 1, 2002, the
underlying factual basis of which involved unlawful
sexual behavior, and who is not subject to the provisions of part 10 of this article, shall be subject to the
mandatory period of parole specified in sub-subparagraph (A) of this subparagraph (V).
(D) The mandatory period of parole imposed pursuant
to sub-subparagraph (A) of this subparagraph (V)
shall commence immediately upon the discharge of an
offender from imprisonment in the custody of the department of corrections. If the offender has been
granted release to parole supervision by the state
board of parole, the offender shall be deemed to have
discharged the offender's sentence to imprisonment
provided for in sub-subparagraph (A) of this subparagraph (V) in the same manner as if such sentence
were discharged pursuant to law; except that the sentence to imprisonment for any person sentenced as a
sex offender pursuant to part 10 of this article shall
not be deemed discharged on release of said person on
parole. When an offender is released by the state
board of parole or released because the offender's sentence was discharged pursuant to law, the mandatory
period of parole shall be served by such offender. An
offender sentenced for nonviolent felony offenses, as
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defined in section 17-22.5-405(5), C.R.S., may receive
earned time pursuant to section 17-22.5-405, C.R.S.,
while serving a mandatory parole period in accordance with this section, but not while such offender is
reincarcerated after a revocation of the mandatory period of parole. An offender who is sentenced for a felony committed on or after July 1, 1993, and paroled
on or after January 1, 2009, shall be eligible to receive
any earned time while on parole or after reparole following a parole revocation. The offender shall not be
eligible for earned time while the offender is reincarcerated after revocation of the mandatory period of
parole pursuant to this subparagraph (V).
(E) If an offender is sentenced consecutively for the
commission of two or more felony offenses pursuant
to sub-subparagraph (A) of this subparagraph (V), the
mandatory period of parole for such offender shall be
the mandatory period of parole established for the
highest class felony of which such offender has been
convicted.
(VI) Any person sentenced for a class 2, 3, 4, or 5 felony, or a class 6 felony that is the offender's second or
subsequent felony offense, committed on or after July
1, 1998, regardless of the length of the person's sentence to incarceration and the mandatory period of
parole, shall not be deemed to have fully discharged
his or her sentence until said person has either completed or been discharged by the state board of parole
from the mandatory period of parole imposed pursuant to subparagraph (V) of this paragraph (a).
(b)(I) Except as provided in subsection (6) and subsection (8) of this section and in section 18-1.3-804, a person who has been convicted of a class 2, class 3, class
106a
4, class 5, or class 6 felony shall be punished by the
imposition of a definite sentence which is within the
presumptive ranges set forth in paragraph (a) of this
subsection (1). In imposing the sentence within the
presumptive range, the court shall consider the nature and elements of the offense, the character and
record of the offender, and all aggravating or mitigating circumstances surrounding the offense and the offender. The prediction of the potential for future
criminality by a particular defendant, unless based on
prior criminal conduct, shall not be considered in determining the length of sentence to be imposed.
(II) As to any person sentenced for a felony committed
on or after July 1, 1985, a person may be sentenced to
imprisonment as described in subparagraph (I) of this
paragraph (b) or to pay a fine that is within the presumptive ranges set forth in subparagraph (III) of
paragraph (a) of this subsection (1) or to both such
fine and imprisonment; except that any person who
has been twice convicted of a felony under the laws of
this state, any other state, or the United States prior
to the conviction for which he or she is being sentenced shall not be eligible to receive a fine in lieu of
any sentence to imprisonment as described in subparagraph (I) of this paragraph (b) but shall be sentenced
to at least the minimum sentence specified in subparagraph (V) of paragraph (a) of this subsection (1) and
may receive a fine in addition to said sentence.
(II.5) Notwithstanding anything in this section to the
contrary, any person sentenced for a sex offense, as
defined in section 18-1.3-1003(5), committed on or after November 1, 1998, may be sentenced to pay a fine
107a
in addition to, but not instead of, a sentence for imprisonment or probation pursuant to section 18-1.31004.
(III) Notwithstanding anything in this section to the
contrary, as to any person sentenced for a crime of violence, as defined in section 18-1.3-406, committed on
or after July 1, 1985, a person may be sentenced to
pay a fine in addition to, but not instead of, a sentence
for imprisonment.
(IV) If a person is convicted of assault in the first degree pursuant to section 18-3-202 or assault in the
second degree pursuant to section 18-3-203(1)(c.5),
and the victim is a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, as defined in section 181.3-501(1.5)(b), notwithstanding the provisions of
subparagraph (III) of paragraph (a) of this subsection
(1) and subparagraph (II) of this paragraph (b), the
court shall sentence the person to the department of
corrections. In addition to a term of imprisonment,
the court may impose a fine on the person pursuant
to subparagraph (III) of paragraph (a) of this subsection (1).
(c) Except as otherwise provided by statute, felonies
are punishable by imprisonment in any correctional
facility under the supervision of the executive director
of the department of corrections. Nothing in this section shall limit the authority granted in part 8 of this
article to increase sentences for habitual criminals.
Nothing in this section shall limit the authority
granted in parts 9 and 10 of this article to sentence
sex offenders to the department of corrections or to
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sentence sex offenders to probation for an indeterminate term. Nothing in this section shall limit the authority granted in section 18-1.3-804 for increased
sentences for habitual burglary offenders.
(2)(a) A corporation which has been found guilty of a
class 2 or class 3 felony shall be subject to imposition
of a fine of not less than five thousand dollars nor
more than fifty thousand dollars. A corporation
which has been found guilty of a class 4, class 5, or
class 6 felony shall be subject to imposition of a fine of
not less than one thousand dollars nor more than
thirty thousand dollars.
(b) A corporation which has been found guilty of a
class 2, class 3, class 4, class 5, or class 6 felony, for
an act committed on or after July 1, 1985, shall be
subject to imposition of a fine which is within the presumptive ranges set forth in subparagraph (III) of
paragraph (a) of subsection (1) of this section.
(3) Every person convicted of a felony, whether defined as such within or outside this code, shall be disqualified from holding any office of honor, trust, or
profit under the laws of this state or from practicing
as an attorney in any of the courts of this state during
the actual time of confinement or commitment to imprisonment or release from actual confinement on
conditions of probation. Upon his or her discharge
after completion of service of his or her sentence or
after service under probation, the right to hold any office of honor, trust, or profit shall be restored, except
as provided in section 4 of article XII of the state constitution .
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(4)(a) A person who has been convicted of a class 1 felony shall be punished by life imprisonment in the department of corrections unless a proceeding held to
determine sentence according to the procedure set
forth in section 18-1.3-1201, 18-1.3-1302, or 18-1.4102, results in a verdict that requires imposition of
the death penalty, in which event such person shall
be sentenced to death. As to any person sentenced
for a class 1 felony, for an act committed on or after
July 1, 1985, and before July 1, 1990, life imprisonment shall mean imprisonment without the possibility of parole for forty calendar years. As to any person sentenced for a class 1 felony, for an act committed on or after July 1, 1990, life imprisonment shall
mean imprisonment without the possibility of parole.
(b)(I) Notwithstanding the provisions of sub-subparagraph (A) of subparagraph (V) of paragraph (a) of subsection (1) of this section and notwithstanding the
provisions of paragraph (a) of this subsection (4), as to
a person who is convicted as an adult of a class 1 felony following direct filing of an information or indictment in the district court pursuant to section 19-2517, C.R.S., or transfer of proceedings to the district
court pursuant to section 19-2-518, C.R.S., the district
court judge shall sentence the person to a term of life
imprisonment with the possibility of parole after serving a period of forty years, less any earned time
granted pursuant to section 17-22.5-405, C.R.S. Regardless of whether the state board of parole releases
the person on parole, the person shall remain in the
legal custody of the department of corrections for the
remainder of the person's life and shall not be discharged.
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(II) The provisions of this paragraph (b) shall apply to
persons sentenced for offenses committed on or after
July 1, 2006.
(c)(I) Notwithstanding the provisions of sub-subparagraph (A) of subparagraph (V) of paragraph (a) of subsection (1) of this section and notwithstanding the
provisions of paragraphs (a) and (b) of this subsection
(4), as to a person who is convicted as an adult of a
class 1 felony following a direct filing of an information or indictment in the district court pursuant to
section 19-2-517, C.R.S., or transfer of proceedings to
the district court pursuant to se
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