People v. Bradbury

• Decision Date: 12 September 2002
• Docket Number: No. 01CA0541.,01CA0541.
• Citation: 68 P.3d 494
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelley L. BRADBURY, Defendant-Appellant.
• Court: Colorado Court of Appeals

68 P.3d 494

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelley L. BRADBURY, Defendant-Appellant.

No. 01CA0541.

Colorado Court of Appeals, Div. I.

September 12, 2002.

As Modified on Denial of Rehearing November 7, 2002.

Certiorari Denied April 28, 2003.

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Kelley L. Bradbury, appeals from the order denying her Crim. P. 35(a) motion for postconviction relief. We affirm.

In 1997, defendant pled guilty to one count of theft, a class four felony. The plea agreement provided that sentencing would be "open."

Because defendant was on bond in connection with other felony charges at the time of her offense, pursuant to § 18-1-105(9.5)(a), C.R.S.2001, the trial court was required to sentence her "to a term of at least the minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range." The presumptive range for defendant's offense was two to six years, and the trial court sentenced her to an eight-year term of imprisonment in November 1997.

Defendant did not appeal her conviction or sentence, which therefore became final. In 2001, she filed a "Motion to Correct Illegal Sentence Pursuant to Crim. P. 35(a)," which the trial court denied.

I.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant contends that the trial court violated her due process rights by imposing an aggravated range sentence. Specifically, she urges that her sentence is improper because the statutory aggravating factor, her bond status, was not charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Because we agree with the People that the rule announced in Apprendi does not apply retroactively to convictions that were already final when the Supreme Court issued its opinion, we find no basis for reversal.

In Apprendi, the defendant pled guilty to possession of a firearm for an unlawful purpose, a crime that carried a potential sentence of five to ten years imprisonment. After the trial court accepted the defendant's plea, but before it imposed the sentence, the prosecution filed a motion to enhance the sentence pursuant to a "hate crime" statute that permitted a sentence of ten to twenty years incarceration if the crime had been committed as a result of racial bias. Following a hearing, the trial court found, under a preponderance of the evidence standard, that the defendant's crime had been motivated by racial bias. The court then sentenced the defendant to twenty years of imprisonment.

The United States Supreme Court reversed, concluding that the New Jersey statutory sentencing scheme was unconstitutional because it allowed an increased penalty based upon a fact neither charged in the charging documents nor submitted to the jury for a finding beyond a reasonable doubt. The Court held: "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 v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

Whether the Supreme Court's holding in Apprendi applies retroactively to convictions that became final before that opinion was announced is an issue of first impression in Colorado.

The leading Supreme Court decision on retroactivity in this context is Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Court held that a new constitutional rule of criminal procedure will not apply retroactively to cases on collateral review unless the new rule falls within one of two exceptions. Relevant here is the exception permitting "watershed" rules to be retroactively applied. Such rules are those that implicate both the accuracy and fundamental fairness of criminal proceedings, and, in addition, "`alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193, 211 (1990)(quoting Teague and Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1165, 28 L.Ed.2d 404, 421 (1971) (Harlan, J., concurring)).

All the federal circuit courts of appeals that have addressed the issue have concluded that under the Teague analysis, Apprendi does not apply retroactively to cases on collateral review. See Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir.2000)

; Forbes v. United States, 262 F.3d 143 (2d Cir.2001); In re Turner, 267 F.3d 225 (3rd Cir.2001); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); In re Clemmons, 259 F.3d 489 (6th Cir.2001); Talbott v. Indiana, 226 F.3d 866 (7th Cir.2000); United States v. Moss, 252 F.3d 993 (8th Cir.2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.2000); Browning v. United States, 241 F.3d 1262 (10th Cir.2001); McCoy v. United States, 266 F.3d 1245 (11th Cir.2001).

While a few reported federal district court decisions reached the opposite conclusion, those holdings would appear to have been either expressly or implicitly overruled by later federal court of appeals decisions within the same circuit. See, e.g., Darity v. United States, 124 F.Supp.2d 355 (W.D.N.C.2000),

overruled by United States v. Sanders, supra.

Most state appellate courts that have addressed the issue have similarly held that Apprendi does not apply to collateral postconviction cases where the conviction and sentence were final when the Supreme Court announced its decision in Apprendi. See Poole v. State, 837 So.2d 885 (Ala.Crim.App. 2001)

; State v. Sepulveda, 201 Ariz. 158, 32 P.3d 1085 (Ariz.Ct.App.2001); People v. Gholston, 332 Ill.App.3d 179, 265 Ill.Dec. 509, 772 N.E.2d 880 (2002); Whisler v. State, 36 P.3d 290 (Kan.2001). But see People v. Beachem, 317 Ill.App.3d 693, 251 Ill.Dec. 308, 740 N.E.2d 389 (2000).

A.

Defendant asserts that the analysis in Teague does not apply and that Apprendi must be given retroactive effect because the Supreme Court did not pronounce a new rule of criminal procedure, but instead merely clarified existing law. We are not persuaded.

In making this argument, defendant relies on Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 113 (Colo.1992). In that civil case, the Colorado Supreme Court indicated that "[t]o establish a new rule of law, a judicial decision must either overrule clear past precedent on which the litigants may have relied or must resolve an issue of first impression not clearly foreshadowed by prior precedent."

As Justice Erickson pointed out in his concurring and dissenting opinion in Martin Marietta, however, unless they fall within one of the exceptions recognized in Teague v. Lane, supra,

new constitutional rules of criminal procedure are not applicable to cases that have become final before the new rules are announced. Martin Marietta Corp. v. Lorenz, supra, 823 P.2d at 119 n. 2 (Erickson, J., concurring in part and dissenting in part).

In Teague v. Lane, supra,

the Supreme Court explained that a "new rule" is generally one that "breaks new ground or imposes a new obligation" on the states or federal government or that requires a result "not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349.

We conclude that under either the definition in Teague or that in Martin Marietta, Apprendi established a new rule. The Apprendi Court imposed a new obligation by mandating that a jury, rather than a judge, must decide any facts (other than the fact of a prior conviction) that increase the penalty for a crime beyond the statutory maximum, and must find such facts beyond a reasonable doubt.

Before Apprendi, case law allowed various facts relevant to sentencing, including statutory penalty enhancers, to be determined by a court, rather than a jury, so long as such facts were considered to be sentencing factors as opposed to elements of the offense. See, e.g., United States v. Grimaldo, 214 F.3d 967 (8th Cir.2000)

(upholding constitutionality of procedure allowing judges to decide facts that qualified as sentencing factors).

The Apprendi decision had the effect of overriding a widespread practice of allowing judges to decide numerous sentencing factors by a preponderance of the evidence. As such, we agree with the People and the majority of courts in other jurisdictions that Apprendi established a new rule of constitutional criminal procedure. See United States v. Moss, supra; Jones v. Smith, supra; see also Poole v. State, supra

(collecting cases).

B.

We also reject defendant's assertion that the Teague analysis should not apply here because Apprendi involved a matter of substantive law, not a procedural rule.

While there appear to be no United States Supreme Court decisions adopting a different analysis for substantive criminal matters, some courts have held that if a new constitutional pronouncement is substantive, it is generally presumed to apply retroactively to cases on collateral review. See United States v. Mandanici, 205 F.3d 519, 525 (2d Cir. 2000)

.

Substantive law encompasses matters such as defining criminal conduct, while procedural law encompasses "the process by which offenders are brought to justice." Whisler v. State, supra, 36 P.3d at 296 (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as example of a profound criminal matter that may nevertheless be categorized as procedural).

The Supreme Court in Apprendi focused on the procedural aspects of the New Jersey hate crime statute under consideration:

[A]lthough the constitutionality of basing an enhanced

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