Lewis v. People of State

• Decision Date: 17 October 2011
• Docket Number: No. 09SC252.,09SC252.
• Citation: 261 P.3d 480
• Parties: Gerald Dwayne LEWIS, Petitionerv.The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

261 P.3d 480

Gerald Dwayne LEWIS, Petitioner

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

No. 09SC252.

Supreme Court of Colorado, En Banc.

Sept. 12, 2011.Rehearing Denied Oct. 17, 2011.

Douglas K. Wilson, Public Defender, Andrew C. Heher, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.Justice COATS delivered the Opinion of the Court.

Lewis sought review of the court of appeals' judgment in People v. Lewis, No. 04CA2072, 2009 WL 368655 (Colo.App. Feb. 12, 2009) (not published pursuant to C.A.R. 35(f)), which affirmed his convictions and sentences for a number of offenses, including three counts each of kidnapping and sexually assaulting his kidnap victims. In accordance with our holding in People v. Henderson, 810 P.2d 1058 (Colo.1991), the trial court sentenced Lewis for sexual assault and separately sentenced him for the second degree kidnapping of each victim, elevated to the level of a class two felony because of the sexual assault. Among its other holdings, the court of appeals rejected Lewis's contention that Henderson should be overruled, and it affirmed each of his separate convictions and sentences for sexual assault and class-two-felony kidnapping.

We granted certiorari solely on the question whether Henderson should be overruled in light of the United States Supreme Court's subsequent determination, for purposes of certain constitutional guarantees, that any distinction between an “element” of an offense and a “sentencing factor” is inconsequential. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because these holdings of the Supreme Court neither undermine our prior assessment of legislative intent in Henderson nor in any way diminish the dispositive impact of legislative intent on Lewis's double jeopardy and merger claims, the judgment of the court of appeals is affirmed.

I.

Gerald Dwayne Lewis was charged with multiple kidnapping and sexual-assault-related offenses, as well as various counts of assault, burglary, theft, committing crimes of violence, and being an habitual criminal, all arising from three separate incidents, which extended over a two-week period and involved three different underage girls. In each instance, the defendant was accused of isolating his victim somewhere in a church or school; threatening, if not actually wounding, her with a knife or similar weapon; and using force to inflict vaginal or anal penetration on her. Notwithstanding his plea of not guilty by reason of insanity, the jury found twenty-four counts proven against him, and he was sentenced to more than 700 years of incarceration.

On direct appeal, the court of appeals affirmed all of the defendant's convictions and sentences. Among his assignments of error, the defendant challenged the validity of his separate convictions and sentences for both sexual assault and second degree kidnapping, where his kidnapping convictions were elevated from class four to class two felonies for the very reason that he sexually assaulted his kidnap victims. Although he acknowledged that this court had previously rejected identical challenges on the basis of double jeopardy and both judicial and statutory merger, he argued that subsequent holdings of the United States Supreme Court now require a different result. Although we denied the remainder of his petition for a writ of certiorari, we agreed to consider the limited question whether People v. Henderson should be overruled in light of the subsequent United States Supreme Court holdings in Apprendi v. New Jersey and Blakely v. Washington.

II.

The Colorado General Assembly proscribes “Sexual assault” and “Kidnapping” in separate Parts of the Criminal Code. See Title 18, Art. 3, Parts 3 and 4. In different statutory sections within Part 3, the General Assembly also separately designates and defines the crimes of “First degree kidnapping,” § 18–3–301, C.R.S. (2010), and “Second degree kidnapping,” § 18–3–302. Second degree kidnapping is statutorily classified as a class four felony unless it is accomplished in one of three specifically enumerated ways, any of which has the effect of elevating the offense to a class three felony, see § 18–3–302(4), or unless the kidnap victim is also subjected to either robbery or sexual assault, a circumstance which elevates the offense to a class two felony, see § 18–3–302(3). Whether second degree kidnapping is committed as a class two, three, or four felony, the crime of which the defendant stands convicted remains statutorily designated “Second degree kidnapping.”

In North Carolina v. Pearce, the United States Supreme Court characterized the Double Jeopardy Clause of the Fifth Amendment as protecting individuals from prosecution after either an acquittal or conviction of the same offense, and in addition, from being subjected to multiple punishments for the same offense. 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Missouri v. Hunter, however, the Court clarified this articulation of the constitutional protection, specifying that with respect to cumulative sentences imposed at a single proceeding the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. 459 U.S. 359, 366–69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); see also Whalen v. United States, 445 U.S. 684, 691–92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In 1986, this court acknowledged this clarification of Supreme Court double jeopardy jurisprudence and adopted it as the correct interpretation of Colorado's own constitutional jeopardy provision as well. People v. Haymaker, 716 P.2d 110, 116 (Colo.1986); People v. Powell, 716 P.2d 1096, 1104–05 (Colo.1986); People v. Vigil, 718 P.2d 496, 506 (Colo.1986). In the ensuing years, we have on numerous occasions reaffirmed this position with regard to multiple convictions and sentences at the same proceeding. See, e.g., Armintrout v. People, 864 P.2d 576, 578 n. 6 (Colo.1993); People v. Garcia, 940 P.2d 357, 361 (Colo.1997); People v. Leske, 957 P.2d 1030, 1034–36 (Colo.1998); Patton v. People, 35 P.3d 124, 129 (Colo.2001); Meads v. People, 78 P.3d 290, 293 (Colo.2003); People v. Abiodun, 111 P.3d 462, 465 (Colo.2005).

In Powell, we considered the very statutory scheme at issue here and, in direct reliance on our reasoning in Haymaker, held that a defendant convicted of sexual assault and class-two-felony second degree kidnapping, under section 18–3–302(3), had not been subjected to unconstitutional double punishment. 716 P.2d at 1104. In that case, we found that by structuring sexual assault as a sentence enhancement factor rather than as an element of a greater kidnapping offense, the legislature left a conviction for second degree kidnapping independent of the sexual assault factor and, in doing so, expressed its intent to authorize conviction of second degree kidnapping as a class two felony on the basis of, rather than in place of, a related conviction for sexual assault. Id. at 1105.

In Henderson, we made clear that our holding in Powell applied equally to the rule of merger as understood in this jurisdiction. After reviewing the “variety of meanings” given the term “merger” and finding the common law doctrine of that name largely meaningless and abandoned in light of both constitutional and statutory developments, 810 P.2d at 1059; see also Leske, 957 P.2d at 1035, we concluded that modern usage of the term falls generally into two categories. On the one hand, we recognized the term's use as a rule of statutory interpretation in assessing whether the legislature intends to impose multiple punishments for a single act violating several statutes; and on the other, we noted its use in reference to that aspect of double jeopardy concerned with multiple punishments as the result of a single prosecution. Henderson, 810 P.2d at 1060. Although we at times referred to “judicial merger,” or the “judicial rule of merger,” id. at 1061 (quoting Boulies v. People, 770 P.2d 1274, 1278 (Colo.1989)) ¹, and relied on reasoning from pre-statute case law, we left no doubt that the requirement of merger, whatever its source, had consistently been analyzed in this jurisdiction under double jeopardy principles and that second degree kidnapping involving sexual assault was not an offense separate and apart from second degree kidnapping, according to either statute or case law, id. at 1064, 1060 n. 6 (expressly construing § 18–1–408).

In subsequent cases, our analyses of merger have focused more expressly on the General Assembly's statutory treatment of multiple convictions and punishments for offenses charged in a single proceeding. See, e.g., Armintrout, 864 P.2d 576; Garcia, 940 P.2d 357; Leske, 957 P.2d 1030; Meads, 78 P.3d 290. Subsection (1) of section 18–1–408, C.R.S. (2010), provides that a defendant may not be convicted of more than one offense if one of the offenses in question is included in the other, and subsection (5) indicates that an offense is so included if, among other things, it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. To distinguish this formula from the included-offense tests of various other jurisdictions that take into account the actual pleadings or evidence in a particular case rather than merely comparing statutory elements, we have described it as the “statutory elements test,” or “strict elements test,” and have at times equated it with the standard articulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Garcia, 940 P.2d at 360; Lesk...