People v. Wenzinger

• Decision Date: 01 June 2006
• Docket Number: No. 04CA2322.,04CA2322.
• Citation: 155 P.3d 415
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. JoAnn WENZINGER, Defendant-Appellant.
• Court: Colorado Court of Appeals

155 P.3d 415

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. JoAnn WENZINGER, Defendant-Appellant.

No. 04CA2322.

Colorado Court of Appeals, Div. V.

June 1, 2006.

As Modified on Denial of Rehearings July 13, 2006.

John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

RUSSEL, J.

Defendant, JoAnn Wenzinger, appeals the trial court's order denying her motion for postconviction relief. We affirm.

I. Background

In 2001, Wenzinger pled guilty to harassment by stalking, a class four felony that carries a presumptive sentencing range of two to six years. Sections 18-1.3-401(1)(a)(V)(A), 18-9-111(4)(b)(III), (5)(b), C.R.S.2005. The trial court found extraordinary aggravating circumstances and sentenced her to ten years in prison. See § 18-1.3-401(6), C.R.S.2005.

Wenzinger appealed, arguing that her aggravated range sentence violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). A division of this court rejected her argument. Relying on People v. Allen, 78 P.3d 751 (Colo.App.2001), overruled by Lopez v. People, 113 P.3d 713, 729 n. 13 (Colo.2005), the division ruled that Apprendi did not apply to any sentence imposed within the maximum aggravated range. People v. Wenzinger, 2003 WL 194893 (Colo.App. No. 01CA1289, Jan. 30, 2003) (not published pursuant to C.A.R. 35(f)).

In June 2004, the Supreme Court announced Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), which held that the "statutory maximum" for purposes of Apprendi "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." Thus, under Blakely, "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely v. Washington, supra, 542 U.S. at 303-04, 124 S.Ct. at 2537.

In July 2004, Wenzinger filed a "Motion for Correction of Illegal Sentence Pursuant to Crim. P. 35(a)." She claimed that her sentence was illegal because, under Blakely, "a trial court has no authority to make findings of fact to use in discretionary aggravation of a sentence."

The trial court denied the motion, ruling that Blakely did not apply retroactively to Wenzinger's case.

II. Preliminary Issues

Because Wenzinger's motion was filed after July 1, 2004, it is governed by the recent amendments to Crim. P. 35(a) and (c). We consider two preliminary issues under the amended rules.

A. Crim. P. 35(a) or 35(c)?

First, we consider whether Wenzinger's motion stated a claim under Crim. P. 35(a). We conclude that it did not.

Before it was amended, Crim. P. 35(a) provided: "The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence."

Although the term "illegal sentence" could have been read to comprise a variety of procedural infirmities, the Colorado Supreme Court construed it narrowly. The court held that a sentence is "illegal" under Crim. P. 35(a) if it is "inconsistent with the statutory scheme outlined by the legislature." People v. Rockwell, 125 P.3d 410, 414 (Colo.2005); see also Delgado v. People, 105 P.3d 634, 635 (Colo.2005); Downing v. People, 895 P.2d 1046, 1050 (Colo.1995); People v. Dist. Court, 673 P.2d 991, 995 (Colo.1983); People v. Green, 36 P.3d 125, 126-27 (Colo.App.2001).

Accordingly, a defendant could not bring an "illegal sentence" claim under the former version of Crim. P. 35(a) if the sentence was consistent with the statutory scheme but imposed in an unconstitutional manner. Instead, the defendant was required to pursue other avenues of relief, such as a claim that sentence was "imposed in violation of the Constitution" under Crim. P. 35(c)(2)(I). See, e.g., People v. Gardner, 55 P.3d 231, 232 (Colo.App.2002) (Apprendi challenge, asserted under previous version of Crim. P. 35(a) and (c), was cognizable under Crim. P. 35(c)).

The term "illegal sentence" does not appear in the amended rule. Instead, Crim. P. 35(a) now provides: "The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence."

Like its predecessor, the phrase "not authorized by law" could be read to comprise many procedural infirmities. But we reject a broad interpretation for three reasons:

1. It would blur the distinction between sentences that are void because they were imposed in excess of the court's statutory authority, see Downing v. People, supra, and sentences that are voidable because they were "imposed in an illegal manner" or "imposed in violation of the Constitution." See People v. Gardner, supra; People v. Green, supra.

2. It would thus undermine the statute of limitations to which Crim. P. 35(c) motions have been subject since 1984. See § 16-5-402(1), C.R.S.2005; Robbins v. People, 107 P.3d 384 (Colo. 2005).

3. It would similarly undermine the 120-day limit that Crim. P. 35(a) imposes— by reference to "the time provided herein for the reduction of sentence" under Crim. P. 35(b)—on claims that sentence was "imposed in an illegal manner."

We conclude that the amended version of Crim. P. 35(a) merely codifies case law defining "illegal sentence." Accordingly, we hold that a sentence is "not authorized by law" under the amended version of Crim. P. 35(a) if it is inconsistent with the statutory scheme outlined by the legislature. See People v. Rockwell, supra; Delgado v. People, supra; People v. Green, supra. A sentence is "imposed without jurisdiction" if it lies within the range contemplated by statute but was otherwise imposed in excess of the court's subject matter jurisdiction. See People v. Harris, 934 P.2d 882, 883 (Colo.App. 1997) (sentence was illegal because the trial court lacked authority to dictate the conditions of confinement).

Because Wenzinger filed her motion more than 120 days after the end of her direct appeal, she could not claim that her sentence was "imposed in an illegal manner" under the amended Crim. P. 35(a). And because she alleged a violation of constitutional rights under Apprendi and Blakely, she failed to state a claim that her sentence was "not authorized by law" or "imposed without jurisdiction." Apprendi or Blakely error does not undermine a court's statutory authority to impose sentence or otherwise deprive the court of jurisdiction. See United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (the trial court violated Apprendi when it based an enhanced sentence on a fact that was omitted from the indictment and found by the judge, but there was no jurisdictional defect); People v. Gardner, supra.

We therefore conclude that Wenzinger's motion was not cognizable under Crim. P. 35(a) and was reviewable only under Crim. P. 35(c)(2)(l).

B. Is it Successive?

The People argue that Wenzinger's claim should be rejected as successive because it was previously litigated on direct appeal. Normally, we would resolve the People's procedural argument before addressing the merits of the trial court's ruling. Here, however, the issues are intertwined.

Crim. P. 35(c)(3)(VI) states that a court "shall deny any claim that was raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant." However, subsection (b) of Crim. P. 35(c)(3)(VI) provides an exception for "[a]ny claim based on a new rule of constitutional law that was previously unavailable, if that rule has been applied retroactively by the United States Supreme Court or Colorado appellate courts."

Because there is an exception for new constitutional rules that apply retroactively, the People's procedural argument presents the same question that underlies our review of the merits: Does Blakely apply retroactively to cases on collateral review?

We now address that question.

III. Discussion

In People v. Johnson, 121 P.3d 285, 287 (Colo.App.2005) (cert. granted Oct. 11, 2005), a division of this court held that "Blakely's interpretation of [the Apprendi] rule must necessarily apply retroactively to the date the rule was established." We acknowledge that Johnson supports Wenzinger's position, but we disagree with the holding of that case. See In re Estate of Becker, 32 P.3d 557 (Colo.App.2000) (one division of this court is not obligated to follow the precedent established by another division), aff'd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002).

As discussed further, we conclude that Blakely established a new rule of criminal procedure that does not apply retroactively to Wenzinger's case.

A. Substantive or Procedural?

As a threshold matter, we consider whether the rule in Blakely is substantive or procedural. We do this because new substantive rules generally apply retroactively to cases that are final, whereas new procedural rules do not. See Schriro v. Summerlin, 542 U.S. 348, 352-53, 124 S.Ct. 2519, 2522-23, 159 L.Ed.2d 442 (2004).

A rule is substantive if it "alters the range of conduct or the class of persons that the law punishes"; it is procedural if it regulates "the manner of determining the defendant's culpability." Schriro v. Summerlin, supra, 542 U.S. at 353, 124 S.Ct. at 2523.

The rule in Blakely does not alter the range of conduct or the class of persons punished by the law. It merely regulates the manner of determining the defendant's punishment. Therefore, like other courts that have addressed the issue, we conclude that the rule in Blakely is procedural. See United States v. Price, 400 F.3d 844, 846 (10th Cir.2005); McReynolds v....