People v. Isaacks, 05SC87.

• Decision Date: 24 April 2006
• Docket Number: No. 05SC87.,05SC87.
• Citation: 133 P.3d 1190
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Nathaniel Christopher ISAACKS, Respondent.
• Court: Colorado Supreme Court

Page 1190

133 P.3d 1190

The PEOPLE of the State of Colorado, Petitioner, v. Nathaniel Christopher ISAACKS, Respondent.

No. 05SC87.

Supreme Court of Colorado, En Banc.

April 24, 2006.

Rehearing Denied May 15, 2006.^*

John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, for Respondent.

RICE, Justice.

I. Facts and Procedural History

On December 10, 2002, Respondent, Nathaniel C. Isaacks, was involved in an altercation in his home with his mother, brother, and father. This altercation led Isaacks's father to call the police, who came to the house and arrested Isaacks. According to the Affidavit in Support of Warrantless Arrest, the altercation started when Isaacks began to throw objects across the room. Isaacks's brother started to leave the home, but stayed when he saw Isaacks holding a spoon to his mother's chest and threatening to kill her. When Isaacks's brother approached, Isaacks attacked him and the two began to fight. At one point during the fight, Isaacks held a two-foot log over his head and threatened to kill his brother. Later in the altercation, Isaacks threw a different log across the room at his father. Eventually, Isaacks's brother and father managed to restrain him, and they kept him restrained until the police arrived. The Affidavit further alleged that Isaacks had bitten both his mother and his brother while his family attempted to restrain him.

Isaacks was charged with one count of felony menacing, section 18-3-206(1)(a), (b), C.R.S. (2005), and two counts of third-degree assault, section 18-3-204.¹ Pursuant to an agreement by the parties, the People moved to dismiss these charges in exchange for Isaacks's agreeing to plead guilty to conspiracy to commit felony menacing, section 18-2-201(1), 18-3-206(1)(a), (b). The conspiracy charge was not supported by facts; rather, Isaacks pleaded guilty to this charge to take advantage of the plea bargain. Isaacks, therefore, waived the establishment of a factual basis for his plea. Neither party made sentencing concessions as part of the agreement.

On March 3, 2003, a plea hearing was held at which Isaacks pleaded guilty to the conspiracy charge. The Petition to Enter a Plea of Guilty, which Isaacks signed in the presence of his lawyer, stated that Isaacks had been advised of and understood his constitutional rights, including the right to remain silent and the right to have a jury determine his guilt beyond a reasonable doubt. The Petition also listed the elements of conspiracy to commit felony menacing, and acknowledged that

[i]f the Court accepts my plea I may be sentenced to the Department of Corrections for a definite term of between 1 year and 18 months . . . . If the Court finds extraordinary aggravating circumstances. . . it may sentence me for a term greater than the presumptive range . . . to double the maximum term, making a term as long as 3 years.

Finally, the petition stated that "I expressly waive my right to trial by jury on all issues."

On April 8, 2003, Issacks appeared for the sentencing hearing. The trial judged announced that he had reviewed Isaacks's presentence report and asked the parties if they had any additions or corrections to the report. Isaacks's lawyer replied, "Judge, we do have a couple of additions — I guess — or corrections." He continued, stating that Isaacks disagreed with the assertion in the report that the reason for his being removed from a treatment program was that he had punched a wall. The second objection was that "Mr. Isaacks tells me that the statement in here that he's resistant to treatment is not correct; that he's very interested and motivated to get himself back into treatment and that's something that he wants to do."

Next, the trial judge heard sentencing recommendations from each of the parties. Issacks's counsel urged the court to sentence Isaacks to probation rather than prison. In making this argument, counsel argued that prison was inappropriate because of Isaacks's minor criminal history and the fact that he suffered from mental illness. Defense counsel further asserted that Isaacks's brother had struck the first blow in the fight; this contention directly contradicted the Affidavit in Support of Warrantless Arrest, which alleged that Isaacks had started the fight.

The trial judge sentenced Isaacks to three years in the Department of Corrections. This sentence amounted to twice the maximum in the presumptive range for the offense of conspiracy to commit felony menacing.² The judge based the aggravated sentence on a number of factors contained in the presentence report. First, the judge noted the seriousness and violent nature of Isaacks's conduct on the day of the incident. The judge also observed that the conviction "involve[d] conduct which . . . apparently has been ongoing for a significant period of time." Further, the judge noted that Isaacks had seen nine therapists and tried seven medications, and concluded that "it's a little difficult for me to say, well, let's try a tenth therapist and an eighth medication without a specific recommendation from somebody. . . ." Finally, the judge considered the fact that Isaacks's history included the abuse of six illegal drugs.

Blakely was decided while Isaacks's case was on direct appeal. In supplemental briefing in response to Blakely, Isaacks argued that "the trial court violated Blakely v. Washington by imposing a sentence in the aggravated range longer than that authorized by his guilty plea alone." People v. Isaacks, No. 03CA0967, slip op. at 3, 2004 WL 2749072 (Colo.App. December 2, 2004) (citation omitted). The court of appeals agreed, vacated Isaacks's sentence, and remanded to the district court for resentencing. Id. at 3, 8. The People petitioned for certiorari, and we affirm.

II. Analysis

In Lopez v. People, 113 P.3d 713 (Colo. 2005), we applied the holding of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to Colorado's statutory sentencing scheme and concluded that aggravated sentencing under section 18-1.3-401(6), C.R.S. (2005), is constitutionally permissible when it is based on "facts admitted by the defendant." Lopez, 113 P.3d at 716. See Blakely, 542 U.S. at 303, 124 S.Ct. 2531. The issue on which we granted certiorari in the instant case is "[w]hether a defendant's failure to make corrections or additions to his presentence report when asked by the court constitutes an admission of information not related to the elements of the crime [that] permits an aggravated sentence under Blakely v. Washington and Lopez v. People."

We conclude that a sentencing court may not use a defendant's admissions to sentence him in the aggravated range unless the defendant knowingly, voluntarily and intelligently waives his Sixth Amendment right to have a jury find the facts that support the aggravated sentence. Applying this rule to the instant case, we hold that a defendant's failure to object to facts in a presentence report does not constitute an admission for purposes of Blakely and Lopez unless the defendant makes a constitutionally sufficient waiver of his right to a jury trial on the facts contained in the report. Because Isaacks did not waive his Blakely rights with respect to the facts in the presentence report that the court used to aggravate his sentence, the sentence must be vacated.

This opinion proceeds as follows. First, we explain the scope of the Blakely jury-trial right by identifying the facts to which it applies. Second, we set forth the procedures that must accompany a sentencing court's use of the defendant's factual admissions for sentencing in the aggravated range. Third, we apply our conclusions to the facts of Isaacks's case. Finally, we set forth the appropriate relief for a sentence that violates the dictates of Blakely.

A. To Which Facts Does the Blakely Jury-Trial Right Apply?

Blakely v. Washington holds that criminal defendants have the right to a jury trial on "all the facts which the law makes essential to the punishment." 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (internal quotation marks omitted). To understand this holding and its consequences for sentencing in Colorado, it is necessary to review the facts of Blakely, as well as Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely's immediate predecessor.

In Apprendi, the Court considered the sentence of a New Jersey man who pleaded guilty to two counts of possession of a firearm for an unlawful purpose after he fired several bullets into the home of an African-American family that had recently moved into a previously all-white neighborhood. 530 U.S. at 469-70, 120 S.Ct. 2348. New Jersey law authorized a punishment of "between five years and 10 years" for the offense of possession of a firearm for an illegal purpose. Id. at 468, 120 S.Ct. 2348. On one of the counts, the trial court sentenced the defendant to twelve years' imprisonment, relying on a "hate crime" law that provided for "extended" sentences upon a finding by the trial judge by a preponderance of the evidence that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Id. at 468-69, 471, 120 S.Ct. 2348.

The Apprendi Court struck down the increased sentence, holding that "[o]ther 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." 530 U.S. at 490, 120 S.Ct. 2348. The Court explained the reason for its holding as follows:

`The law threatens certain pains if you do certain things . . . .' New Jersey threatened Apprendi with...