Lopez v. People

Citation113 P.3d 713
Decision Date23 May 2005
Docket NumberNo. 04SC150.,04SC150.
PartiesRobert A. LOPEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

As Modified on Denial of Rehearing June 27, 2005.1

David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Andrea Manning, Deputy State Public Defender, Denver, for Petitioner.

John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, for Respondent.

Justice COATS concurs in the judgment only, and Justice KOURLIS and Justice RICE join in the concurrence.

HOBBS, Justice.

We granted certiorari to consider whether the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), invalidates the aggravated sentence imposed in this case.2 Defendant Robert A. Lopez pled guilty to possession of a controlled substance and received a two-year deferred judgment and sentence. During his deferral period, Lopez failed drug treatment, returned positive urine analysis tests for drugs, and killed another driver in a drunk driving incident. A jury convicted him of vehicular homicide and driving under the influence. The trial court sentenced Lopez for the possession offense after the vehicular homicide conviction. It aggravated Lopez's possession sentence under section 18-1.3-401(6), C.R.S. (2004),3 based on extraordinary aggravating circumstances that included the vehicular homicide convictions and Lopez's conduct during the period of deferred judgment on the possession offense.

We review the conviction in this case because Lopez's case was pending on direct appeal when Blakely was announced and he is therefore entitled to its retroactive application. See United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005)

(applying its Sixth Amendment and remedial holdings based on Apprendi and Blakely to all cases on direct review; quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.")). We reject Lopez's contention that his aggravated sentence under section 18-1.3-401(6), C.R.S. (2004), is unconstitutional based on Apprendi and Blakely. We hold that section 18-1.3-401(6), properly applied, is constitutional. In light of Blakely, section 18-1.3-401(6) aggravated sentencing may rely on at least 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 after the defendant stipulates to judicial fact-finding for sentencing purposes; and (4) facts regarding prior convictions.

We expect that our holding today, implementing the Supreme Court's Blakely decision, will apply only to a limited number of cases. First, it will apply retroactively only to cases pending on appeal. Second, in the future, the legislature may enact a statute that responds to the United States Supreme Court's holdings in Apprendi, Blakely, and Booker by adopting a statute that does not place the trial court into the position of finding facts in order to aggravate sentences. Third, under the current statute, prosecutors arranging plea agreements, or trial courts considering guilty pleas, can insist that defendants admit to those facts potentially needed for aggravated sentencing. Fourth, the jury can be asked by interrogatory to determine facts potentially needed for aggravated sentencing. Fifth, and most important to the case before us, the full range of mitigated, presumptive and aggravated sentencing remains available under the statute if based on constitutionally-permissible facts, in accordance with Blakely.

Section 18-1.3-401(6) does not mandate a restricted or increased sentencing range based on judicial fact-finding. Under that section, the existence of a constitutionally-permissible aggravating or mitigating fact widens the sentencing range on both the minimum and maximum ends, to a floor of one-half the presumptive minimum up to a ceiling of double the presumptive maximum. The sentencing judge then has full discretion to sentence within this widened range according to traditional sentencing considerations. However, if the trial judge must find additional facts in order to impose a sentence outside of the presumptive range, the rule of Blakely applies.

The trial court based Lopez's aggravated sentence in part on the prior conviction facts in the jury's vehicular homicide verdict. Because Lopez's sentence was aggravated on the basis of these facts, we affirm the court of appeals' judgment but on grounds that are different from those expressed in that court's opinion. Accordingly, we uphold Lopez's sentence.

I.

Robert Lopez was arrested on October 3, 2000 and charged with possession of a schedule II controlled substance, cocaine (possession). See § 18-18-405(1)(a), 6 C.R.S. (2000). Possession in this instance is a class four felony. § 18-18-405(2)(a)(I). The presumptive sentence for a class four felony is two to six years of incarceration and three years of mandatory parole. § 18-1-105(1)(a)(V)(A), 6 C.R.S. (2000).

Lopez entered a plea agreement with the prosecution in which he pled guilty to possession and received a deferral of his judgment and sentence for two years. Lopez initialed plea documents that listed his "presumptive range" sentence as two to six years plus three years of mandatory parole, and listed his "minimum sentence" as one year and his "maximum sentence" as twelve years. This minimum and maximum reflect the trial judge's discretion to decrease or increase the felony sentence beyond the presumptive range based on the presence of extraordinary mitigating or aggravating circumstances under section 18-1.3-401(6), C.R.S. (2004).

In his Motion and Stipulation for Supervised Deferred Judgment and Sentence, Lopez stated that he was aware of the following conditions to his deferral:

3.(a) the defendant shall not commit any criminal offense against the United States of America, the State of Colorado or any other jurisdiction;
....
(d) the defendant shall refrain from use of alcohol, and any unlawful use or possession of controlled substances or have any other dangerous or abusable drug without a prescription;
....
(g) the defendant shall satisfy any other conditions reasonably related to his/her rehabilitation and the purpose of this supervisory period, as ordered by the Court;
....
5. The District Attorney may make application for entry of judgment and imposition of sentence at any time within the term of the deferred judgment ... upon a breach by the defendant of any of the conditions set forth in this stipulation....

Lopez signed a written Crim. P. 11 advisement that included the following paragraph:

I know that if I plead guilty to a felony, I may be sentenced to the custody of the Department of Corrections.... I know that if the judge found extraordinary or sentence-enhancing circumstances in my case, I could be sentenced to any term from the minimum to the maximum.... I also know that if the judge does not find extraordinary or sentence-enhancing circumstances, I would be sentenced to a definite term within the presumptive range for each offense.

The factual basis for Lopez's plea agreement was the probable cause affidavit and the supplemental presentence report. Neither of these documents is in the record, nor does the record indicate whether Lopez admitted to the facts contained in these documents. At the hearing on his plea agreement, the judge asked how Lopez wanted to plead to "unlawfully, feloniously, and knowingly possess[ing] a Schedule Two controlled substance, to wit cocaine," and Lopez answered "[g]uilty."

Lopez's deferral period began December 12, 2000. The district court judge told Lopez that "I think you need an inpatient [drug] program at the moment. But if you can demonstrate to me that ... your [urine analysis tests (UAs)] are going to be clean, I won't send you there." Lopez was assigned to supervision during his deferral period.

Lopez also appeared before the drug court. The magistrate stated that a place in the inpatient drug treatment would be reserved for Lopez in the event that his UAs were not clean. The magistrate gave Lopez his oral plea advisement and accepted the plea agreement.

The record indicates that Lopez returned more than one positive, or "hot," UA during the deferral period. The record also indicates that Lopez was enrolled in the drug court inpatient treatment program for approximately three months after these hot UAs, but was dismissed from treatment as unsuccessful.

On March 4, 2001, Lopez was arrested for driving his car into another passenger vehicle and killing the driver, Sally Tinoco. Lopez had been drinking. Lopez pled not guilty to all the charges for the vehicular offense and was tried to a jury.

The jury returned verdicts of guilty for: Vehicular Homicide—Reckless Driving, see section 18-3-106(1)(2)(a), 6 C.R.S. (2001);4 Driving Under the Influence and Driving with Excessive Alcohol Content, see section 42-4-1301(1)(f), (2)(a), (2)(c), 11 C.R.S. (2001);5 and Reckless Driving, see section 42-4-1401(1), 11 C.R.S. (2001).6 The prosecution filed a motion to revoke Lopez's deferred possession judgment and sentence in light of the vehicular homicide conviction. Lopez was returned to the district court for sentencing on the vehicular homicide conviction and the deferred possession judgment.

At the sentencing hearing, the court stated that it had reviewed several documents: a report from the Community Corrections Board rejecting Lopez from consideration for parole; "an information sheet from the probation office[;] ... a presentence report[;]... a variety of letters[;] and ... both the vehicular homicide file...

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