People v. Barton, 07SA58.

• Decision Date: 14 January 2008
• Docket Number: No. 07SA58.,07SA58.
• Citation: 174 P.3d 786
• Parties: The PEOPLE of the State of Colorado, Plaintiff v. Terry Lynn BARTON, Defendant.
• Court: Colorado Supreme Court

174 P.3d 786

The PEOPLE of the State of Colorado, Plaintiff v. Terry Lynn BARTON, Defendant.

No. 07SA58.

Supreme Court of Colorado, En Banc.

January 14, 2008.

John R. Newsome, District Attorney, Fourth Judicial District, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for Plaintiff.

Douglas K. Wilson, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, Attorneys for Defendant.

Justice EID delivered the Opinion of the Court.

We issued a rule to show cause to consider whether the trial court erred by allowing the prosecution to withdraw from its plea agreement with Defendant Terry Lynn Barton ("Barton"). The trial court held that Barton breached her plea agreement by appealing her aggravated sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in violation of a provision in the agreement waiving her right to appeal except for an appeal challenging an "illegal sentence later imposed by the judge." We now make our rule to show cause absolute. We hold that the plea agreement does not waive Barton's right to raise a Blakely challenge to her aggravated sentence on appeal. Because Barton did not violate her plea agreement, we hold that the prosecution cannot withdraw from it.

I.

Barton pleaded guilty to starting the Hayman Fire, the worst fire in Colorado history. The fire raged for nearly a month in 2002. It burned 137,000 acres, destroyed over 100 homes, and ruined $29 million in property. The terrible costs of the fire continue to be felt in our state today, and will be felt far into the future.

Barton, however, was not required to admit to any of these facts as part of her plea agreement, nor was she required to admit to working for the United States Forest Service when she started the fire. Indeed, Barton confessed only that she:

started a fire on federal property during a red flag day (a ban on campfires) by burning a letter in a dispersed campsite. The burning of the letter was a reckless act on my part which unfortunately caused a forest fire. The forest fire was unintentional on my part and in fact I tryed [sic] to put it out to no avail.

Barton's plea agreement provided that she would plead guilty to fourth-degree arson, a felony that carries a sentencing range of two to six years' imprisonment. The plea agreement further stated that "[i]t is understood by the parties that the People will be requesting an aggravated sentence of 12 years." However, Barton neither stipulated to any facts that would be used specifically for aggravation nor agreed to allow the trial court — rather than a jury — to determine any aggravating facts.

Under the terms of her plea agreement, Barton also acknowledged that, by pleading guilty, she waived certain rights, including, for example, her "right to have a trial to jury" and her right to remain silent. In addition, she acknowledged that by pleading guilty, "I give up my right to raise legal issues and present defenses [to guilt]." She also acknowledged that "[t]he entire matter, except for sentencing, will be settled once and for all" by the plea agreement. Finally, she acknowledged that her guilty plea would prevent her from appealing certain issues in her case. The appeal provision of the plea agreement, in its entirety, states:

G. Right to appeal. I have the right to appeal rulings by the trial judge to a higher court. The higher court could correct any rulings which are contrary to law. If I could not afford the appeal, the state would pay for it, including the costs of a lawyer to represent me. I know I surrender this right when I plead guilty, and I will not be able to appeal any error the judge has made in my case. The only thing I can appeal once I plead guilty is an illegal sentence later imposed by the judge.

(Emphasis added).

The trial court accepted Barton's plea agreement at a providency hearing in January 2003. At the hearing, the trial court asked Barton if she understood the terms of her written plea agreement, and she acknowledged that she did. The trial court then advised Barton:

Let's say you went to trial. You presented any defenses that you might have. The DA put on her witnesses, and you put on yours. If the jury felt unanimously that the DA had proven each of those elements beyond a reasonable doubt, they'd return a verdict of guilty in your case, and you'd have the absolute right to appeal that guilty verdict. And when you plead guilty, for most purposes you give up your right to appeal, because in a few minutes I'll ask you what you did that makes you guilty. Right there you're giving up your right to remain silent. And for most purposes, when you plead guilty, you give up your right to appeal the guilty verdict.

(Emphasis added). Barton acknowledged that she understood this advisement, and the trial court accepted her guilty plea.

Two months later, the trial court held a sentencing hearing, where the court received evidence and heard testimony to support aggravation of Barton's sentence beyond the presumptive range specified for fourth-degree arson. Barton objected to aggravation of her sentence on the ground that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), prohibited the trial court from making factual determinations in support of aggravation. The trial court rejected Barton's Apprendi argument and held that Barton's sentence should be aggravated because of the devastation caused by the Hayman Fire and the fact that Barton was working as a park ranger, and thus in a position of trust, when she started it. Based on these aggravating factors, the trial court sentenced Barton to twelve years' imprisonment.

Barton appealed her sentence on the ground that it was imposed in violation of the Sixth Amendment, again relying on Apprendi, because a jury had not determined the facts supporting aggravation. While Barton's sentence was on appeal, the United States Supreme Court issued its opinion in Blakely v. Washington, which applied Apprendi to a state sentencing scheme, like Colorado's, that permitted trial courts to impose aggravated sentences. 542 U.S. at 303-04, 124 S.Ct. 2531. After Blakely, a trial court could impose an aggravated sentence only if the jury determined the existence of the facts used for aggravation, the defendant admitted to the existence of the facts or agreed to allow the trial judge to determine the facts, or the facts concerned a prior conviction. See Lopez v. People, 113 P.3d 713, 716 (Colo.2005).

Before ruling on Barton's appeal, the court of appeals requested supplemental briefing from the parties in order to consider Barton's aggravated sentence in light of Blakely.¹ The court of appeals vacated Barton's sentence on the ground that the judge's imposition of the aggravated sentence violated Blakely, since the sentence was based on facts that were neither conceded by Barton as a condition of her plea nor determined by a jury. See People v. Barton, 121 P.3d 224, 227-28 (Colo.App.2004), cert. denied, 2005 WL 3066766 (Colo. Oct.11, 2005) ("2004 appeal"). In its opinion, the court of appeals remanded the case for resentencing consistent with Blakely, but did not specify the precise procedure for resentencing Barton. See id. at 230.

On remand, the trial court granted the prosecution's motion to empanel a jury for the purpose of determining the facts for the potential aggravation of Barton's sentence. Before the trial court could resentence Barton, this court issued its decision in People v. Lopez, where we held that "the law of this jurisdiction does not permit the statutory maximum sentence to which a defendant has subjected himself by pleading guilty to be increased by subsequent jury findings." 148 P.3d 121, 122 (Colo.2006). Our decision in People v. Lopez foreclosed the possibility of empanelling a jury to conduct fact-finding in order to potentially aggravate Barton's sentence.

Barton moved for the trial court to reconsider its order empanelling a jury for resentencing in light of our decision in People v. Lopez. The prosecution objected, arguing that Barton materially breached the plea agreement by appealing her sentence in violation of the appeal provision. The trial court agreed and entered an order allowing the prosecution to withdraw from the plea agreement. We then issued a rule to show cause to consider whether the prosecution is entitled to withdraw from the plea agreement.

II.

The question before us today is whether Barton waived, as part of her plea agreement, her right to appeal her sentence on Blakely grounds. If she did not, her 2004 appeal was not a breach of the agreement. Absent a breach by Barton, the prosecution cannot withdraw from its plea agreement with her. See People v. Isaacks, 133 P.3d 1190, 1196 (Colo.2006). The appeal provision of the agreement provides, "The only thing [Barton] can appeal once [she] plead[s] guilty is an illegal sentence later imposed by the judge." We thus must examine whether the Blakely challenge raised in Barton's 2004 appeal was an appeal of "an illegal sentence later imposed by the judge." The interpretation of a plea agreement "is strictly a question of law." Benavidez v. People, 986 P.2d 943, 948 (Colo.1999); accord Craig v. People, 986 P.2d 951, 960 (Colo.1999).

The prosecution argues that Barton's 2004 appeal was not an appellate challenge to "an illegal sentence later imposed by the judge." Under the version of Rule 35(a) of the Colorado Rules of Criminal Procedure in place at the time of Barton's sentencing,² an "illegal sentence" was one that was "inconsistent with the statutory scheme outlined by the legislature." People v. Rockwell, 125 P.3d 410, 414 (Colo.2005). The prosecution contends that Barton's plea agreement adopted this definition of the term "illegal sentence," and points out that Barton's twelve-year sentence is consistent with the statutory scheme applicable to aggravated class four felonies. Se...