Lehnert v. People

• Citation: 244 P.3d 1180
• Decision Date: 13 December 2010
• Docket Number: No. 08SC961.,08SC961.
• Parties: Charity LEHNERT, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

244 P.3d 1180

Charity LEHNERT, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 08SC961.

Supreme Court of Colorado, En Banc.

Dec. 13, 2010.

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Chief Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this second appeal, we review the court of appeals' decision that affirmed the crime-of-violence mandatory sentence imposed in this case, when the jury verdict failed to contain the specific finding of fact mandated by section 18-1.3-406, C.R.S. (2010), contrary to the trial court's instructions. People v. Lehnert ( Lehnert III ), No. 02CA2186, slip op. at 5-6, 2008 WL 2374366 (Colo.App. June 12, 2008) (not selected for official publication). Charity Lehnert was convicted of attempted first degree murder and sentenced to thirty years based on the jury's finding that she committed a crime of violence, as was described in the verdict. For the relevant crime-of-violence mandatory sentence statute to apply, the jury " shall make a specific finding as to whether the accused ... possessed and threatened to use, a deadly weapon" during the eligible crime. § 18-1.3-406(4) (emphasis added). While the jury instruction contained the correct statutory definition, and directed the jury to answer whether the defendant possessed and threatened to use a deadly weapon, the verdict form did not. The jury verdict stated: "duringthe commission of the offense, the defendant [did] possess or threaten the use of a deadly weapon." (emphasis added).

The court of appeals upheld the crime-of-violence mandatory sentence. It concluded that there was "no reasonable possibility" that the mistake in the verdict form that the trial court sent to the jury affected the jury's verdict. Lehnert III, No. 02CA2186 at 5. Therefore, it held that, while plain error review applies, under either a plain error or harmless error review, the sentence was valid. Id. at 5-6. We reverse.

Like the court of appeals, we apply plain error review because the defendant failed to object at trial and because of the inconsistency between the jury instruction and the jury's verdict. The crime-of-violence statute commands that the jury "shall" make a "specific finding" that the defendant both possessed and threatened the use of a deadly weapon in order to impose the crime-of-violence mandatory sentence. According to the language of the statute, the jury must make the required, specific finding of fact, and once it does, the defendant shall be sentenced within the increased penalty range. By negative implication, the increased sentencing range may not be imposed upon a defendant if the jury does not make the required, specific finding of fact.

When the trial court properly instructs the jury regarding the required, specific finding of fact, but the verdict form fails to contain the mandatory language, the jury's resulting finding is inconclusive and inconsistent; therefore, we hold that this incongruity constitutes trial error. We apply plain error review when a defendant fails to object contemporaneously to a trial error, as happened in this case, to determine whether the error warrants reversal. Under this standard, the defendant must demonstrate that the error affected a substantial right and that the record reveals a reasonable possibility it contributed to her conviction.

Applying plain error here, the tension between the correct jury instruction and the incorrect verdict is particularly important given the facts in this case. The defendant possessed explosive or incendiary parts. The parties contested at trial whether these parts could constitute possession of a deadly weapon. Even if we assume that the jury found that the defendant threatened the use of a deadly weapon, there is still a reasonable possibility it did not unanimously believe she possessed one. This error affected the defendant's substantial rights by increasing her sentence beyond the presumptive range. Hence, while the court of appeals correctly determined that plain error review applies, we hold that it incorrectly applied that standard in this case. Therefore, we vacate the defendant's crime-of-violence mandatory sentence and remand this case to the court of appeals to be returned to the trial court for resentencing the defendant on the crime of attempted first degree murder.

II. Facts and Procedural Background

Charity Lehnert was charged with attempted first degree murder and with possession of explosive or incendiary parts, and the prosecution sought a crime-of-violence mandatory sentence to increase her sentence on the attempted first degree murder count, pursuant to section 18-1.3-406.¹

Evidence at the defendant's trial showed that she had explosive parts that were capable of being assembled to make a pipe bomb, although they were not yet put together. During a search of the defendant's apartment, the bomb unit of the Denver Police Department found, among other things, two metal pipes (that were "scored," meaning they had been weakened to increase fragmentation), two metal-end caps with drilled out center holes, two boxes of shotgun shells, two flashlight bulbs, doorbell wire, latex gloves, electrical tape, a 9-volt battery, and magnets. Gunpowder could operate as an explosive in a pipe bomb if it is retrievedfrom shotgun shells, but the shotgun shells had not been altered in any way. Likewise, broken flashlight bulbs could act to ignite an explosion, but the flashlight bulbs were not broken. Additionally, the police did not find a completed switch. When the police removed these items from the defendant's apartment, they did not need to take any safety precautions to prevent the items from detonating because they were not assembled.

The prosecution also presented evidence that the defendant intended to kill two correctional officers. On more than one occasion, the defendant told a friend that she intended to kill "two pigs" with a pipe bomb. There was also evidence that the defendant knew where one of these officers lived, had driven by his house more than once, and knew the car his family drove.

The trial court found that there was no evidence to support a conviction for possession of an explosive or incendiary "device," and it struck that definition from the instructions and verdict form. The jury convicted the defendant for possessing explosive or incendiary parts.

As to the crime-of-violence mandatory sentence statute, defense counsel argued that the defendant did not possess a deadly weapon because she did not have an incendiary device. In closing, defense counsel argued:

There's no deadly weapon. She is not even charged with possessing an incendiary device or explosive device, she is charged with parts. She is not charged with attempt to possess an incendiary device because there's only mere preparation. There's no substantial step to even make an explosive device.

The trial court used the correct statutory definition when instructing the jury on the crime-of-violence mandatory sentence: "Did the defendant possess and threaten the use of a deadly weapon during the commission of Attempt [sic] First Degree Murder?" (emphasis added). However, the jury verdict form that the trial court submitted to the jury stated: "during the commission of the offense, the defendant [did] possess or threaten the use of a deadly weapon." (emphasis added).

The jury convicted the defendant of both substantive counts and found that during the commission of the attempted first degree murder the defendant did "possess or threaten the use of a deadly weapon." (emphasis added). The trial court sentenced the defendant to thirty years based on the crime-of-violence mandatory sentence statute for the attempted first degree murder conviction and to a six-year concurrent sentence for the possession of explosive or incendiary parts conviction.² The defendant did not object at trial or at sentencing regarding the jury's failure to make the specific finding of fact necessary to sentence the defendant under the crime-of-violence mandatory sentence statute.

The defendant appealed, and the court of appeals reversed her attempted first degree murder conviction, holding that there was insufficient evidence to show that she took a substantial step toward the completion of the first degree murder. People v. Lehnert ( Lehnert I ), 131 P.3d 1104, 1108 (Colo.App.2005). This court reversed in People v. Lehnert ( Lehnert II ), holding that there was sufficient evidence at trial for the jury to conclude that the defendant took a substantial step. 163 P.3d 1111, 1112 (Colo.2007). We remanded "for consideration of any remaining issues," id. at 1116, whereupon the defendant argued for the first time to the court of appeals that the verdict on the crime-of-violence mandatory sentence statute was deficient as a matter of law.

The court of appeals held that the standard of review for the trial court's imposition of the crime-of-violence mandatory sentence, in the absence of the correct verdict form, is plain error because the defendant did not object to the verdict at trial. Lehnert III, No. 02CA2186 at 4 (citingMoore v. People, 925 P.2d 264, 268-69 (Colo.1996); People v. Dunlap, 124 P.3d 780, 793 (Colo.App.2004)). It concluded that there was "no reasonable possibility the difference in the verdict form affected the verdict," under either a plain error or harmless error standard of review because there was "undisputed" evidence that the "defendant told a friend she intended to kill two persons with pipe bombs" and because this court "concluded as a matter of law that defendant possessed an explosive device." ³Id. at 5-6. In other words, even though the wording of the verdict form was contrary to the statute and the trial court's jury instruction, this did...