People v. Huber

• Decision Date: 24 April 2006
• Docket Number: No. 05SC40.,05SC40.
• Citation: 139 P.3d 628
• Parties: Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Michael Floyd HUBER.
• Court: Colorado Supreme Court

Page 628

139 P.3d 628

Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Michael Floyd HUBER.

No. 05SC40.

Supreme Court of Colorado, En Banc.

April 24, 2006.

As Modified on Denial of Rehearing May 30, 2006.^*

John W. Suthers, Attorney General, Wendy J. Ritz, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner.

David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, for Respondent.

Justice COATS concurring in part and concurring in the judgment.

Justice EID does not participate.

RICE, Justice.

I. Facts and Procedural History

In April 2001 Respondent, Michael Huber, was charged with sexual assault on a child by one in a position of trust, section 18-3-405.3, C.R.S. (2005);¹ attempted sexual assault on a child by one in a position of trust, section 18-2-101; and indecent exposure, section 18-7-302. Two additional counts of indecent exposure were later added to the information. The charges arose from an incident in which Huber exposed himself, masturbated and made salacious remarks in front of T.A., a minor and friend of Huber's step-daughter who was spending the night in Huber's home.

Huber reached a plea agreement with the prosecutor under which Huber would plead guilty to one count of criminal attempt to commit sexual assault on a child by one in a position of trust and one count of indecent exposure,² and the prosecutor would drop the remaining charges. As part of this plea agreement, Huber and the prosecutor agreed to a deferred judgment and sentence of four years on the charge of attempted sexual assault on a child. The parties also agreed to a sentence of four years probation on the indecent-exposure charge, which would run concurrently with the deferred judgment and sentence. As part of the plea agreement, Huber entered pleas in two other pending cases, admitting "to violation in his misdemeanor probation revocation case," and pleading guilty to harassment in another case.

On October 4, 2001, the parties presented their agreement to the trial judge in a disposition hearing. At this hearing, the trial judge explained to Huber that the presumptive sentencing range for attempted sexual assault on a child was one to three years, with a maximum possible sentence of six years. The prosecutor then explained to Huber the elements of each of the charges, informing him that he had a right to require the prosecution to prove the elements to a jury beyond a reasonable doubt. Following this exchange, the court found that Huber "freely, intelligently, voluntarily, and knowingly entered his pleas of guilty" and accepted the pleas.

The matter was set for sentencing on December 4, 2001. At the sentencing hearing, Huber's lawyer encouraged the court to accept the plea agreement, admitting that "my client has a long-standing problem with exposing himself" and that Huber was on probation at the time of the attempted sexual assault, but arguing that Huber could benefit from deferred judgment and sentence combined with treatment. The court accepted the plea agreement and placed Huber on deferred-judgment-and-sentence status for a period of four years.

On September 11, 2002, Huber's probation officer filed a Complaint for Revocation of Deferred Judgment and Sentence. The complaint alleged that Huber had violated the conditions of his deferred judgment by 1) failing to pay fees and costs as directed by the court; 2) having contact with a minor; 3) not immediately removing himself from the situation upon encountering the minor; 4) possessing pornographic images; 5) being terminated from his offense-specific treatment program; and 6) accessing the Internet.

At a hearing on July 1, 2003, Huber pleaded guilty to the Complaint for Revocation of Deferred Judgment and Sentence pursuant to a plea agreement under which Huber and the prosecution agreed to a "sentencing cap of 5 years DOC." The trial court sentenced Huber to a term of five years in the Department of Corrections, "[t]he cap pursuant to the agreement." The court noted that this sentence was in the aggravated range, and made several findings of fact to justify aggravation. Among these were the facts that Huber was "being supervised as a sex offender at the time he picked up this particular case," that Huber was terminated from his sex-offender treatment program, and that Huber had violated the terms of his deferred judgment by involving himself with pornography.

Huber contends that this sentence violates his rights under 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). The court of appeals agreed, vacated Huber's sentence, and remanded for resentencing. People v. Huber, No. 03CA1579, slip op. at 4 (Colo.App. Dec. 16, 2004). For the reasons set forth below, we conclude that Huber's Blakely and Apprendi rights were not violated, and we therefore reverse the court of appeals and uphold the sentence imposed by the trial court.

II. Analysis

In Lopez v. People, 113 P.3d 713 (Colo.2005), we applied the rule of Apprendi and Blakely to section 18-1.3-401(6), C.R.S. (2005),³ which authorizes a trial judge to impose a sentence of up to "twice the maximum . . . authorized in the presumptive range for the punishment of the offense" when the judge finds "aggravating circumstances" that justify the increased sentence. We held that a judge may increase a sentence under section 18-1.3-401(6) without running afoul of the Apprendi-Blakely rule as long as the sentencing increase is based on one of four types 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. Lopez, 113 P.3d at 719. We labeled the first three types of facts "Blakely-compliant" and the fourth type of fact "Blakely-exempt." Id. at 723.

Huber's case was on direct appeal at the time Blakely was decided; therefore, the Blakely rule applies to his case. See Lopez, 113 P.3d at 716; United States v. Booker, 543 U.S. 220, 268, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005). As explained above, Huber committed the instant offense while he was on sex-offender supervision as a result of a prior conviction. We conclude that the trial court properly sentenced Huber in the aggravated range based on this prior-conviction fact, and we therefore reverse the court of appeals and uphold the trial court's sentence.⁴

A. The Trial Court Properly Considered the Fact that Huber Committed the Instant Offense While Under Supervision for an Earlier Conviction

The trial court expressly based aggravation in part on the fact that Huber was on supervision as a sex offender at the time of his offense. Huber does not dispute that he was undergoing sex-offender treatment at the time of the offense based on his December 1998 conviction of two counts of indecent exposure.⁵ Under Blakely and Lopez, it was permissible for the trial court to consider this fact in deciding to sentence Huber in the aggravated range. See DeHerrera v. People, 122 P.3d 992, 994 (Colo.2005) (upholding aggravated sentence where trial court imposed an aggravated-range sentence because of "the short period of time between [the defendant's] release from prison and the commission of the offense in this case").

Despite the numerous statements by this court and the United States Supreme Court that affirm the validity of the prior-conviction exception to the Blakely rule,⁶ Huber maintains that it was improper for the court to aggravate his sentence because of his prior conviction. Huber's first argument on this score is that the "continued validity" of the prior-conviction exception to Blakely is "highly questionable." In support of this argument, Huber directs the court to concurring opinions of Justice Thomas in Apprendi, 530 U.S. at 521, 120 S.Ct. 2348 (Thomas, J., concurring), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring), which suggest that a majority of the Supreme Court now recognizes that the prior-conviction exception to Blakely is no longer constitutionally viable. Huber, however, points to no new legal developments that should alter our conclusion in Lopez that "[a]lthough there is some doubt about the continued vitality of the prior conviction exception, we conclude that it remains valid after Blakely." Lopez, 113 P.3d at 723. See also State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (stating that it is the "[Supreme] Court's prerogative alone to overrule one of its precedents"). Therefore, we decline to readdress this issue.

Secondly, Huber urges us to hold that the prior-conviction exception to Blakely violates the Colorado Constitution. In support of this argument, Huber reminds us of the familiar principle that nothing in our federal system of government prohibits the Colorado Constitution from offering greater protections than the federal Constitution. See People ex rel. Juhan v. District Court, 165 Colo. 253, 261, 439 P.2d 741, 745 (1968) (recognizing the authority of each state "to create protections for its citizens which might not be required under the federal concept").

Along with Juhan, Huber cites People v. Rodriguez, 112 P.3d 693 (Colo.2005), for the proposition that "the state constitutional right to jury trial may be more protective than that [of the] federal constitution." Huber's reliance on Rodriguez is not persuasive. In Rodriguez, we concluded that the Colorado Constitution grants defendants the right to a twelve-person jury in certain circumstances, despite the fact that the United States Supreme Court had declined to find such a right in the Sixth Amendment of the federal Constitution. Rodriguez, 112 P.3d at 698. The Rodriguez holding was based...