People v. Montour, 02SA365.

• Decision Date: 23 April 2007
• Docket Number: No. 02SA365.,02SA365.
• Citation: 157 P.3d 489
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee v. Edward MONTOUR, Jr., Defendant-Appellant.
• Court: Colorado Supreme Court

157 P.3d 489

The PEOPLE of the State of Colorado, Plaintiff-Appellee v. Edward MONTOUR, Jr., Defendant-Appellant.

No. 02SA365.

Supreme Court of Colorado, En Banc.

April 23, 2007.

Rehearing Denied May 14, 2007.

Carol A. Chambers, District Attorney, Eighteenth Judicial District, John Topolnicki, Chief Deputy District Attorney, Douglas County Office, Castle Rock, Colorado, Paul Wolff, Chief Deputy District Attorney, Arapahoe County Office Centennial, Colorado, John W. Suthers, Attorney General, Susan J. Trout, Special Deputy District Attorney and First Assistant Attorney General, Denver, Colorado, Attorneys for Plaintiff-Appellee.

Judy L. Lucero, Denver, Colorado, Martinez Law, LLC, Esteban A. Martinez, Longmont, Colorado, Alternate Defense Counsel for Defendant-Appellant.

John W. Suthers, Attorney General, Paul E. Koehler, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Amicus Counsel Colorado Attorney General.

Killmer, Lane & Newman LLP, David A. Lane, Denver, Colorado, Attorneys for Amicus Curiae Colorado Criminal Defense Bar.

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, Attorneys for Amicus Curiae Colorado State Public Defender.

Colorado District Attorney's Council, David J. Thomas, Executive Director, Denver, Colorado, Scott W. Storey, District Attorney, First Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Amicus Curiae Colorado District Attorney's Council.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this appeal, we exercise our jurisdiction to conduct an independent review of the death sentence of Edward Montour, Jr. We hold that Colorado's death penalty statute cannot deprive the defendant of his Sixth Amendment jury trial right on the facts essential to the death penalty eligibility determination when that defendant pleads guilty. Here, Montour pled guilty and pursuant to the Colorado death penalty statute, his guilty plea automatically waived his right to have a jury determine his sentence. We hold that the statute unconstitutionally links the waiver of a defendant's jury sentencing right to his guilty plea. Hence, we affirm Montour's guilty plea and apply the severability clause in the death penalty statute to excise the unconstitutional language in the death penalty statute. We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea.

Montour pled guilty to the first-degree murder of a correctional officer at the Limon Correctional Facility, where he was serving a life sentence without the possibility of parole for the first-degree murder of his infant daughter. The district court judge sentenced Montour to death under subsection 18-1.3-1201(1)(a), C.R.S. (2006), which states that a capital defendant waives his right to a jury trial on sentencing facts when he pleads guilty.

We do not disturb Montour's guilty plea as he does not challenge its validity. Instead, we focus our independent review on the public interest and the manner in which the death penalty was imposed pursuant to subsection 18-1.3-1201(6)(a). Specifically, we review the sentencing procedures in subsection 18-1.3-1201(1)(a) for fundamental fairness. We hold that the provision in subsection 18-1.3-1201(1)(a) requiring a defendant to waive his Sixth Amendment right to a jury trial on all facts essential to the death penalty eligibility determination when he pleads guilty violates the Sixth Amendment. A defendant's jury trial right on these sentencing facts may not be forfeited automatically when he pleads guilty to a capital crime.

In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the United States Supreme Court clarified that the Sixth Amendment right to a jury trial on sentencing facts, recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), is a right independent of the right to a jury trial on the guilt phase. See also Lopez v. People, 113 P.3d 713 (Colo.2005) (applying the holdings of Apprendi and Blakely); Woldt v. People, 64 P.3d 256 (Colo. 2003) (applying the Ring holding). In Blakely, the Court held that the Sixth Amendment entitles a defendant to jury fact-finding on all facts essential to the punishment at sentencing even when he pleads guilty. 542 U.S. at 313-14, 124 S.Ct. 2531. Hence, the right to a jury trial on all facts essential to the punishment during sentencing is not waived automatically by the act of pleading guilty. We note that the General Assembly added the waiver provision in subsection 1201(1)(a) two years before Blakely, such that it was unaware of the independent nature of the right to a jury trial on sentencing facts when it created the waiver provision.

Under Colorado law, the facts essential to punishment in a death penalty case include the facts necessary to determine death penalty eligibility under subsection 18-1.3-1201(2)(a). Woldt, 64 P.3d at 266-67. The death penalty eligibility determination includes three steps: finding aggravating factors, finding mitigating factors, and weighing aggravating factors against mitigating factors. By the terms of subsection 18-1.3-1201(2)(a), a jury must determine death penalty eligibility and complete the fourth step— selection of a sentence—unless a defendant waives the right to a jury trial on sentencing.

While a defendant may waive the right to a jury trial on sentencing facts, this waiver must be knowing, voluntary, and intelligent. Subsection 18-1.3-1201(1)(a) is facially unconstitutional because it fails to effect a knowing, voluntary, and intelligent waiver, as the waiver is automatic when a defendant pleads guilty. In this case, although Montour understood that he was waiving his right to a jury trial on sentencing facts by entering a guilty plea, his waiver of his Sixth Amendment right was infected with the same constitutional infirmity as subsection 18-1.3-1201(1)(a)—the waiver of his Sixth Amendment right was inextricably linked to his guilty plea.

To cure this Sixth Amendment violation, we sever the unconstitutional language in section 18-1.3-1201. After severing that language, we are left with a coherent statute that says if the death sentence of a defendant who pleads guilty is held invalid, then the case shall be remanded to the district court for a new sentencing hearing before a jury unless the defendant waives his right to jury sentencing.

We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea. Only after a valid waiver may the district court conduct the sentencing hearing.

II. Jurisdiction

Subsection 18-1.3-1201(6)(a) establishes our jurisdiction over this case, providing "[w]henever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence." See also C.A.R. 4(d)(1);¹ People v. Harlan, 8 P.3d 448, 498 (Colo.2000) (conducting required independent review of a death sentence rendered after jury trial and sentencing); People v. Dunlap, 975 P.2d 723, 764 (Colo.1999) (same); People v. Davis, 794 P.2d 159, 212 (Colo.1990) (same); People v. White, 870 P.2d 424, 426-27 & n. 1 (Colo.1994) (conducting independent review of a death sentence based in part on guilty pleas). This Court's independent review serves as an additional safeguard to ensure that the death penalty is not imposed arbitrarily and capriciously in violation of the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 198, 204-06, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring).

Our duty to conduct this independent review is separate and distinct from our appellate review. See § 18-1.3-1201(6)(a) ("The supreme court shall combine its review pursuant to this subsection (6) with consideration of any appeal . . . .") (emphasis added). In Dunlap, we recognized our dual role as "an appellate court reviewing trial court proceedings and ... independent arbiters to review the propriety of the sentence." 975 P.2d at 765.

Further, subsection 18-1.3-1201(6)(a) mandates our review as independent arbiters. Subsection 18-1.3-1201(6)(a) states that the supreme court "shall review" the sentence when death is imposed. See also C.A.R. 4(d)(1) (same); Harlan, 8 P.3d at 498 (stating that "[w]e are obligated by statute to independently review"); Dunlap, 975 P.2d at 764 (recognizing that we were undertaking independent review "mandated" by the statute); Davis, 794 P.2d at 212 (acknowledging that the court "is required" to conduct the independent statutory review). Unlike direct appeal, which is a right a defendant may waive, a defendant cannot waive our independent review of his death sentence.²

Subsection 18-1.3-1201(6)(a) requires us to review "the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based." Here, we undertake the review mandated by the statute with regard to the third consideration: the public interest and the manner in which the...