People v. Johnson

• Decision Date: 11 September 2006
• Docket Number: No. 05SC408.,05SC408.
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Robin M. JOHNSON, Respondent.
• Court: Colorado Supreme Court

Page 722

142 P.3d 722

The PEOPLE of the State of Colorado, Petitioner v. Robin M. JOHNSON, Respondent.

No. 05SC408.

Supreme Court of Colorado, En Banc.

September 11, 2006.

John Suthers, Attorney General, Catherine P. Adkisson, Assistant Solicitor General, Apppellate Division, Denver, Colorado, Attorney for Petitioner.

Meier & Giovanini, Doug Meier, Lakewood, Colorado, Attorney for Respondent.

Justice RICE delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' conclusion in People v. Johnson, 121 P.3d 285 (Colo.App.2005), that the rule of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to cases that were pending on direct review at the time the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We reverse the court of appeals and hold that Blakely applies only to those cases that were pending on direct review at the time Blakely was decided.

Applying the United States Supreme Court's retroactivity analysis to the instant case, we conclude that Blakely announced a new constitutional rule of criminal procedure after Respondent Johnson's conviction became final, that the rule does not fall under the exception to the general rule of nonretroactivity of new procedural rules, and that Johnson is therefore not entitled to the benefit of the Blakely rule. We remand for proceedings not inconsistent with this opinion.

I. Facts and Procedural History

Respondent Robin Johnson pleaded guilty to one count of theft in two separate cases. One case charged her with class 3 felony theft; the other charged her with class 4 felony theft. §§ 18-4-401(1)(a), (2)(c), (2)(d), C.R.S. (2005). On December 20, 2000, Johnson was convicted of the theft offenses based on her pleas and sentenced to twenty-five years in community corrections.

Nearly one year into her sentence, Johnson was rejected from the community corrections program for violation of program rules. As a result, on December 19, 2001, the trial court revoked her community corrections sentence and sentenced her to a term of twenty-four years' imprisonment in the Department of Corrections for the class 3 felony and twelve years' imprisonment in the Department of Corrections for the class 4 felony. The court ordered the sentences to run concurrently.

Each of these sentences was in the aggravated sentencing range created by section 18-1.3-401(6), C.R.S. (2005). See § 18-1.3-401(6) (authorizing trial court to impose a sentence of up to twice the maximum in the presumptive range upon the trial court's finding of aggravating circumstances); § 18-1.3-401(1)(a)(V)(A) (listing the presumptive sentencing range for class 3 felonies as four to twelve years and the presumptive range for class 4 felonies as two to six years).

Johnson filed a number of Crim. P. 35 postconviction motions, including a Crim. P. 35(c) motion to vacate her judgment of conviction and sentence because she received ineffective assistance of counsel. The trial court denied these motions, and Johnson appealed to the court of appeals.

The court of appeals, in People v. Johnson, 121 P.3d 285 (Colo.App.2005), vacated Johnson's sentence and remanded to the trial court for resentencing. Id. at 288. The court of appeals' decision was based on the United States Supreme Court's 2004 decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which struck down a Washington State sentence that was increased based on the trial court's finding that the defendant committed the offense with "deliberate cruelty." Id. at 299-300, 124 S.Ct. 2531. After raising the Blakely issue sua sponte, the court of appeals requested supplemental briefing, which the parties provided.

The court of appeals determined that the rule of Blakely should apply retroactively to all cases that were pending on direct review at the time the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Johnson, 121 P.3d at 287. As Johnson's case was still pending at the time the Supreme Court decided Apprendi, the court of appeals held that the Blakely rule should govern her postconviction appeal. Id. at 286. Applying Blakely, the court vacated Johnson's sentence and remanded for resentencing. Id. at 288. The People petitioned this court for a writ of certiorari, arguing that Johnson should not receive the benefit of the Blakely rule because her case was final when Blakely was announced. We granted the petition¹ and now reverse the court of appeals and remand for proceedings not inconsistent with this opinion.

II. Analysis

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held 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." Id. at 490, 120 S.Ct. 2348. Four years later, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303, 124 S.Ct. 2531 (emphasis in original). The sole issue presented by this case is whether defendants whose cases were final at the time Blakely was announced may assert Blakely challenges to their convictions. We conclude that they may not.

In Lopez v. People, 113 P.3d 713 (Colo. 2005), the case in which this court first applied Blakely to Colorado's sentencing scheme, we began our analysis by noting that "[w]e 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." Lopez, 113 P.3d at 716. This statement implies, without deciding, that Blakely does not apply to cases that were no longer on direct review when Blakely was decided. Today we confirm the implication of our statement in Lopez and join the overwhelming majority of courts that have addressed this issue² by holding that the Blakely rule is not to be applied to cases that were final at the time Blakely was announced.

The United States Supreme Court has held that new constitutional rules of criminal procedure generally do not apply to cases that became final before the new rule was announced. Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). There is a narrow exception to this general rule for "watershed rules of criminal procedure." Summerlin, 542 U.S. at 352, 124 S.Ct. 2519; Teague, 489 U.S. at 311, 109 S.Ct. 1060. We recently adopted the Teague analysis for determining whether a new constitutional rule of criminal procedure applies to cases on collateral review. Edwards v. People, 129 P.3d 977, 983 (Colo.2006).

For the reasons explained below, we determine that Blakely announced a new rule of criminal procedure after Johnson's conviction became final, that Teague's exception for "watershed rules of criminal procedure" does not apply, and that the Blakely rule therefore does not apply to Johnson's case. Thus, we reverse the court of appeals' decision.

A. Blakely Announced a Procedural Rule

New substantive constitutional rules generally apply to cases on direct and collateral review. Summerlin, 542 U.S. at 351, 124 S.Ct. 2519.³ New procedural rules, on the other hand, apply only to those cases that survive the three-part inquiry set forth in Teague v. Lane. See Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004); Teague, 489 U.S. at 310, 109 S.Ct. 1060; Edwards, 129 P.3d at 983. Therefore, our analysis begins with the question of whether Blakely announced a substantive or procedural rule.

In Summerlin, the United States Supreme Court described the difference between substantive and procedural rules. Substantive rules, the Court explained, "alter[ ] the range of conduct or the class of persons that the law punishes." Summerlin, 542 U.S. at 353, 124 S.Ct. 2519. Procedural rules "regulate only the manner of determining the defendant's culpability." Id. (emphasis in original). Summerlin addressed the retroactivity of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which applied Apprendi in holding that a jury, and not a judge, must find the existence of aggravating circumstances that warrant the death penalty. Observing that Ring "did not alter the range of conduct Arizona law subjected to the death penalty" but rather "altered the range of permissible methods for determining whether a defendant's conduct is punishable by death," the Summerlin Court held that rules like the one announced in Ring "are prototypical procedural rules." Summerlin, 542 U.S. at 353, 124 S.Ct. 2519.

Summerlin compels the conclusion that Blakely announced a procedural rule. Like Ring, Blakely did not alter the range of conduct that may be punished, but instead regulated the manner in which such conduct was to be proved. See Summerlin, 542 U.S. at 353, 124 S.Ct. 2519. Despite the clear parallels between Blakely and Ring, Johnson maintains that Blakely is a substantive rule. Johnson's argument seizes upon the fact that Blakely changed both the factfinder and the burden of proof, whereas Ring changed only the factfinder. (The law at issue in Ring required the judge to find the existence of aggravating factors beyond a reasonable doubt. Ring, 536 U.S. at 597, 122 S.Ct. 2428). Johnson argues that "[b]ecause there exists a risk that conduct proved under the preponderance standard was not punishable under the higher [beyond-a-reasonable-doubt] standard, the rule in Blakely warrants retroactive application as a new substantive rule."

Johnson's argument fails to distinguish her case from Summerlin...