People v. Martinez

• Decision Date: 27 September 2001
• Docket Number: No. 00CA1808.,00CA1808.
• Citation: 36 P.3d 201
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edwin MARTINEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

36 P.3d 201

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edwin MARTINEZ, Defendant-Appellant.

No. 00CA1808.

Colorado Court of Appeals, Div. II.

September 27, 2001.

As Modified on Denial of Rehearing November 1, 2001.

Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Edwin Martinez, Defendant-Appellant, pro se.

Opinion by Judge CASEBOLT.

Defendant, Edwin Martinez, appeals the order denying without a hearing his Crim. P. 35(c) motion for postconviction relief. We affirm in part, reverse in part, and remand for correction of the mittimus.

Defendant was convicted after a jury trial of being a special drug offender (count one); possession with intent to sell twenty-eight grams or more of cocaine (count two); possession with intent to sell a controlled substance, methamphetamine (count three); possession of marijuana with intent to distribute; and possession of more than eight ounces of marijuana. A division of this court affirmed defendant's convictions on direct appeal. People v. Martinez, (Colo.App. No. 96CA1574, Apr. 16, 1998)(not selected for official publication).

Defendant then filed a Crim. P. 35(c) motion for postconviction relief. The trial court denied the motion without holding a hearing or appointing counsel to assist defendant. However, the court issued an amended mittimus to reflect the twelve-year term of imprisonment it had imposed at sentencing for defendant's conviction on count three. This appeal followed.

I.

Defendant contends that his conviction for possession of twenty-eight grams of cocaine under count two must be vacated because it is not a statutory offense. Therefore, he argues, his conviction violates his rights to due process under the United States and Colorado Constitutions. We disagree. Section 18-18-405(1), C.R.S.2001, sets forth the offense of unlawful sale or possession of a controlled substance. The version of § 18-18-405(3) in effect at the time of defendant's offense prescribed a minimum penalty to be imposed if a defendant was convicted of possession with the intent to sell twenty-eight grams or more of cocaine. See Colo. Sess. Laws 1992, ch. 71, at 357. Accordingly, the amount of cocaine constituted a sentence enhancing circumstance and did not form part of the substantive offense. See People v. Ramirez, 997 P.2d 1200 (Colo.App. 1999),aff'd by an equally divided court, ___ P.3d ___, 2001 WL 1079475 (Colo. No. 99SC814, Sept. 17, 2001).

Here, defendant was charged with the substantive offense of possession with the intent to sell cocaine, a schedule II controlled substance. See § 18-18-204, C.R.S.2001. The information also charged that he had the intent to sell twenty-eight grams or more of the substance, and the jury was instructed correspondingly. Thus, the amount of controlled substance that would implicate the mandatory sentencing provision of the former § 18-18-405(3)(a) was incorrectly included as an element of the substantive charge.

However, the inclusion of the amount of cocaine in the information and the jury instruction did not violate defendant's due process rights. The instructions correctly charged the jury to determine whether defendant in fact possessed with intent to sell the controlled substance of cocaine, which was the substantive offense. Moreover, the information charged and the jury had to determine whether the circumstances to enhance any sentence existed beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)(due process is satisfied when a mandatory sentencing circumstance is charged in the information and the fact finder determines the existence of the circumstance beyond a reasonable doubt); People v. Ramirez, supra (sentence enhancers must be pleaded and proved beyond a reasonable doubt); cf. People v. Salcedo, 985 P.2d 7 (Colo.App.1998)(finding that defendant could not be convicted both for unlawful possession with intent to distribute and unlawful possession of twenty-eight grams or more of cocaine for the same offense), rev'd on other grounds, 999 P.2d 833 (Colo.2000).

Thus, defendant's contention that he was not convicted of a statutory offense under count two of the information fails.

II.

Defendant also appears to challenge his conviction as a special offender. We agree with his contention that he cannot stand convicted of the offense of special offender under count one.

Defendant was charged in count one with a class two felony of use or display of a deadly weapon during the commission of the crimes of possession with intent to sell twenty-eight grams or more of cocaine and possession with intent to sell methamphetamine. However, the special offender statute is a sentence enhancing provision, not a substantive offense. See § 18-18-407, C.R.S.2001; Vega v. People, 893 P.2d 107 (Colo.1995).

Here, the mittimus reflects a conviction and a separate sentence imposed on the special offender charge as a substantive offense in addition to conviction and sentences upon the enhanced offenses. Therefore, that conviction and sentence must be vacated.

III.

We also agree that defendant's conviction and sentence on count two, possession with intent to sell twenty-eight grams or more of cocaine, must be amended.

The applicable version of § 18-18-405(3)(a) specifically provided that the enhancement provision for possessing with intent to sell more than twenty-eight grams of cocaine would not apply if an accused was found to be a special offender under § 18-18-407, C.R.S.2001. In addition, defendant's sentence on this count may not be enhanced twice. See People v. Pineda Eriza, ___ P.3d ___, 2001 WL 199419 (Colo.App. No. 98CA0721, Mar. 1, 2001).

Therefore, on remand the trial court must enter an amended judgment of conviction on count two of possession with intent to sell cocaine, a schedule II controlled substance, as a class two felony. See §§ 18-18-405(1)(a), 18-18-405(2)(a)(II), 18-18-407(1)(f), C.R.S.2001. Because defendant must then be sentenced as a special offender, the sentence for this amended count must be twenty-four years and one day in the custody of the Department of Corrections (DOC), the minimum sentence allowed under the applicable version of § 18-18-407. See Colo. Sess. Laws 1992, ch. 71, at 361-62.

IV.

We further conclude that the sentence on count three must also be amended.

The jury was properly instructed and returned a verdict of guilty as to the special offender/deadly weapon provision relating to both counts two and three, possession with intent to sell cocaine and possession with intent to sell methamphetamine. The trial court apparently relied on the presentence investigation report prepared by the probation department in imposing a twelve-year sentence on the methamphetamine count.

However, because the jury found defendant guilty of the special offender/deadly weapon sentence enhancer as to this count as well, the trial court was required by statute to impose a minimum sentence of twenty-four years and one day on this count. See Colo. Sess. Laws 1992, ch. 71, § 18-18-407 at 361-62; People v. Dist. Court, 673 P.2d 991 (Colo.1983)(punishments are legislative prerogatives, and a court may not impose a sentence inconsistent with terms specified by statute). Accordingly, on remand, the trial court must amend the mittimus to reflect a conviction on count three of possession with intent to sell methamphetamine, a schedule II controlled substance, as a class two felony. See §§ 18-18-405(1)(a), 18-18-405(2)(a)(II), 18-18-407(1)(f), C.R.S.2001; see also Crim. P. 35(a)(the court may correct an illegal sentence at any time). The sentence for this amended count must also be twenty-four years and one day.

In light of our disposition of these issues, we necessarily reject defendant's contention that the mittimus should be corrected to reflect a twelve-year sentence for count three.

V.

Defendant contends that the provision of the special offender statute concerning a deadly weapon is unconstitutional because it fails to create a sufficient nexus between the weapon and the drug offense. We decline to address this contention.

A defendant cannot use a proceeding under Crim. P. 35 to relitigate matters fully and finally resolved in an earlier appeal. Moreover, an argument raised under Crim. P. 35 that does not precisely duplicate an issue raised on appeal will nevertheless be precluded if its review would be nothing more than a second appeal addressing the same issues on some recently contrived constitutional theory. People v. Rodriguez, 914 P.2d 230 (Colo.1996).

Here, defendant raised the issue of the special offender/deadly weapon provision prior to trial and also on direct appeal. Although couched in slightly different terms, the argument here is fundamentally the same: that federal case law requires a different nexus to be established between the weapon and the commission of the drug offense than does state case law. Cf. People v. Atencio, 878 P.2d 147 (Colo.App.1994)(disposing of same contentions adversely to defendant's position).

Therefore, because this argument was raised in the context of instructional error and resolved adversely to defendant's position on direct appeal, we will not address it again. See People v. Rodriguez, supra.

VI.

Defendant next contends that he is entitled to be resentenced under the amended version of the special offender statute. We disagree.

Defendant committed the offenses at issue here on November 10, 1995, and was sentenced on July 16, 1996. The special offender statute was subsequently amended to apply to offenses committed on or after July 1, 1997. Colo. Sess. Laws 1997, ch. 264, §§ 8, 29 at 1542, 1550. Thus, the amendment is inapplicable to defendant. See People v. Pineda-Eriza, supra (defendant not entitled to ameliorative effects of amendatory legislation if legislature has not indicated intent to require retroactive application).

Defenda...