People v. Palmer, Court of Appeals No. 16CA0215

• Decision Date: 22 March 2018
• Docket Number: Court of Appeals No. 16CA0215
• Citation: 433 P.3d 107
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Danielle PALMER, Defendant–Appellant.
• Court: Colorado Court of Appeals

433 P.3d 107

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Danielle PALMER, Defendant–Appellant.

Court of Appeals No. 16CA0215

Colorado Court of Appeals, Division V.

Announced March 22, 2018

Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE WELLING

¶ 1 The defendant, Danielle Palmer, was charged by information with first degree arson. After the trial was already underway, the trial court granted the prosecution’s motion to amend the information to add a crime of violence designation.

¶ 2 The amended information alleged that Palmer committed first degree arson by means of a deadly weapon. By virtue of the amendment, Palmer faced a longer prison sentence if convicted.

¶ 3 Also, during trial it came to light that the People had failed to disclose the reports of two fire investigators. This discovery violation was discovered after one of the investigators had testified but before the other had. Palmer moved for a mistrial. The trial court denied the motion, but imposed lesser sanctions.

¶ 4 On appeal, Palmer contends that the trial court erred by granting the People’s motion to amend the information during the course of trial and by denying her motion for a mistrial. We agree with her first contention, but disagree with her second. With respect to the first issue, we conclude that the addition of the crime of violence designation was a substantive amendment to the information and, therefore, pursuant to Crim. P. 7(e), could not be granted after the start of trial. With respect to the second issue, we conclude that the trial court did not abuse its discretion in imposing less severe sanctions than granting Palmer’s motion for a mistrial. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

¶ 5 When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. As a result of the fire, Palmer was charged with five counts of attempted first degree murder and one count of first degree arson.

¶ 6 The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon—a lighter and lighter fluid. The trial court sentenced Palmer to sixteen years in the custody of the Department of Corrections (DOC) for first degree arson as a crime of violence.¹

II. Analysis

¶ 7 Palmer raises two arguments on appeal. First, she contends that the trial court abused its discretion by allowing the prosecutor to amend the information. Second, she argues that the trial court should have granted her motion for a mistrial because the prosecution failed to timely disclose two fire investigators’ reports. We agree with her first contention but disagree with her second.

A. Amendment to Information

¶ 8 The attempted murder and first degree arson offenses were not originally charged as crimes of violence. The day before trial, however, the prosecutor moved to amend the information to designate each offense as a crime of violence. The trial court initially denied the motion. But on the first day of trial—after the jury had been sworn, opening statements had been delivered, and three witnesses had testified—the court sua sponte reversed its earlier ruling and allowed the prosecutor to amend the information to include the crime of violence designations.

¶ 9 Subject to an exception not applicable here, to convict a defendant for a crime of violence, the People must allege, in a separate count of the information, that they are pursuing the charge as a crime of violence.² § 18–1.3–406(3), C.R.S. 2017. The original information in this case did not include a crime of violence designation, so to pursue the arson as a crime of violence, the prosecutor needed to amend the information.

¶ 10 Under Crim. P. 7(e),

[t]he Court may permit an information to be amended as to form or substance at any time prior to trial ; the court may permit it to be amended as to form at any time before the verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

(Emphasis added.)

¶ 11 Palmer argues that the amendment to add the crime of violence designation was one of substance and therefore must have been made before trial. We agree.

¶ 12 Crim. P. 7(e) is to be liberally construed, and we will not overturn a trial court’s decision to allow the prosecution to amend an information absent a showing of an abuse of discretion. People v. Butler , 224 P.3d 380, 385 (Colo. App. 2009). A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or is based on a misapplication or misunderstanding of the law. People v. Fallis , 2017 COA 131M, ¶ 5, ––– P.3d ––––.

¶ 13 The resolution of Palmer’s argument requires us to interpret Crim. P. 7(e). We review interpretations of the rules of criminal procedure de novo. People v. Corson , 2016 CO 33, ¶ 44, 379 P.3d 288. In doing so, we first look at the rule’s plain language; if the language is clear and unambiguous, we apply the rule as written. Kazadi v. People , 2012 CO 73, ¶ 11, 291 P.3d 16.

¶ 14 The language of Crim. P. 7(e) contemplates two types of amendments: amendments as to form and amendments as to substance. The language is clear that either type of amendment can be made prior to trial, but only amendments as to form can be made once trial has begun. The rule also dictates that the trial court may reject an amendment to the form of the information during trial if the proposed amendment charges an additional or different offense or prejudices the substantial rights of the defendant.

¶ 15 Because trial was underway when the court sua sponte reconsidered its earlier decision and granted the People’s motion to amend the information, the amendment runs afoul of Crim. P. 7(e) unless it "(1) was one of form , (2) did not charge an additional or different offense, and (3) did not prejudice [the defendant’s] substantial rights." People v. Washam , 2018 CO 19, ¶ 16, 413 P.3d 1261 (citing Crim. P. 7(e) ) (emphasis added). Thus, the first step is to "determine whether the amendment was one of form or substance." Id. In order to determine whether a proposed amendment is a matter of form or substance, we evaluate the original information in the context of its surrounding circumstances to determine whether it adequately advised the defendant of the charges. People v. Butler , 929 P.2d 36, 39 (Colo. App. 1996). An amendment that charges an additional or different offense or changes the essence of a charge is one of substance. People v. Manzanares , 942 P.2d 1235, 1242 (Colo. App. 1996).

¶ 16 The original information charged Palmer with arson as a class 3 felony. See § 18–4–102(1), C.R.S. 2017. That information adequately advised Palmer of her need to defend against first degree arson, and the amended information did not charge an additional or different count of arson. But the amended information changed the essence of the arson charge in two respects.

¶ 17 First, the amendment changed Palmer’s sentencing range so that a DOC sentence was mandatory and both the minimum and maximum terms of the incarceration were higher after the amendment than before. As a class 3 felony, a first degree arson conviction carries a presumptive sentence of four to twelve years. § 18–1.3–401(1)(a)(IV), C.R.S. 2017. Had the amendment not been made and Palmer been convicted of first degree arson, she would have been eligible for probation and faced a presumptive prison sentence of four to twelve years. But, as discussed below, because she was convicted of arson as a crime of violence, Palmer faced a mandatory prison sentence with a minimum term of ten years and a maximum term of thirty-two years.

¶ 18 Once a defendant is convicted of a crime of violence, he or she faces a sentence of at least the midpoint, but no more than twice the maximum, of the presumptive range. § 18–1.3–406(1)(a). In addition, every crime of violence is an extraordinary risk crime. § 18–1.3–401(10)(b)(XII), C.R.S. 2017. Under the extraordinary risk statute, the presumptive sentence for a defendant convicted of a class 3 felony extraordinary risk crime is four to sixteen years, rather than four to twelve years. § 18–1.3–401(1)(a)(V)(A), (10)(a). Therefore, applying the crime of violence statute to the presumptive range, which was extended by the extraordinary risk statute, Palmer’s mandatory minimum sentence is ten years, the midpoint of the sentencing range, and her maximum sentence is thirty-two years, which is twice the presumptive maximum.

¶ 19 The increase in Palmer’s potential sentence is reminiscent of People v. Manyik , 2016 COA 42, 383 P.3d 77. In that case, the defendant faced a charge of aggravated robbery under subsection (1)(d) of the robbery statute, section 18–4–302, C.R.S. 2017. Manyik , ¶ 43. Under subsection (1)(d), a defendant may be convicted if the robbery is committed with the use of an item in a manner in which the victim would reasonably believe it to be a deadly weapon (i.e., a simulated deadly weapon). Id. (citing § 18–4–302(1)(d) ). After the start of trial, however, the court allowed the prosecution to amend the information to charge the defendant under subsection (1)(b), which requires proof that the defendant committed the robbery with the use of an actual deadly weapon. Id. at ¶ 44 (citing § 18–4–302(1)(b) ). The amended charge, unlike the original one, was a per se crime of violence. § 18–4–302(3). This amendment was significant because a defendant convicted of aggravated robbery as originally...