Terry v. People

• Decision Date: 19 April 1999
• Docket Number: No. 98SC23,98SC23
• Citation: 977 P.2d 145
• Parties: 1999 CJ C.A.R. 2063 John Edward TERRY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 145

977 P.2d 145

1999 CJ C.A.R. 2063

John Edward TERRY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 98SC23.

Supreme Court of Colorado,

En Banc.

April 19, 1999.

Rehearing Denied May 24, 1999.

David F. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

Jeanne M. Smith, District Attorney, Gordon R. Denison, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

We are called upon to determine whether conspiracy to commit a per se crime of violence is itself a per se crime of violence for purposes of mandatory sentencing under section 16-11-309, 6 C.R.S. (1998). We conclude that it is.

Petitioner John Edward Terry was charged with aggravated robbery, conspiracy to commit aggravated robbery, and two crime of violence counts. After being advised by the court that the presumptive sentencing range for conspiracy to commit aggravated robbery was two to six years, Terry pled guilty to that offense in exchange for the dismissal of the other three counts. The trial court then sentenced Terry to three years imprisonment at the Department of Corrections. After the court imposed the three-year sentence, the People argued that the mandatory violent crime sentencing provisions of section 16-11-309 should apply, making five years imprisonment the minimum lawful sentence. The trial court rejected this argument and the People appealed.

Relying on this court's unrelated 1990 decision in People v. Alonzo Terry, ¹ the court of appeals ruled that a conviction for conspiracy to commit aggravated robbery as defined in section 18-4-302(1)(b), 6 C.R.S. (1998), requires automatic application of the violent crime sentencing guidelines, even if the defendant is not separately charged and convicted of committing a violent crime. See People v. John Edward Terry, 961 P.2d 500, 503 (Colo.App.1997). Because, as a crime of violence, Terry's offense was also an extraordinary risk crime, the court of appeals determined the appropriate presumptive sentencing range to be two to eight years rather than two to six years. ² The court of appeals further determined that because Terry was convicted of a crime of violence, section 16-11-309(1)(a) required the imposition of a sentence at least in the midpoint of the two-to-eight-year presumptive range, or five years. Accordingly, the court of appeals vacated Terry's sentence and remanded his case for resentencing. ³

We accepted certiorari, and we now affirm.

I.

Our inquiry turns first to the structure and evolution of Colorado's violent crimes sentencing statute. The crime of violence sentencing guidelines are contained in section 16-11-309(1)(a), which provides that "any person convicted of a crime of violence shall be sentenced ... to a term of incarceration of at least the midpoint in the presumptive range, but not more than twice the maximum term." § 16-11-309(1)(a).

The criteria and procedures for determining whether a crime qualifies as a crime of violence are set forth in subsections (2) and (4) through (7) of section 16-11-309. Subsection (2)(a)(II) lists ten types of offenses for which crime of violence sentencing may potentially apply. ⁴ Under subsections (4) and (5), prosecutors must separately plead and prove the elements of a crime of violence. These elements are that the defendant, in the commission, attempted commission, or conspiracy to commit one of the ten enumerated types of crimes: "(A) Used, or possessed and threatened the use of, a deadly weapon; or (B) Caused serious bodily injury or death to any other person except another participant." § 16-11-309(2)(a)(I)(A), (B). Thus, the People may bring a crime of violence charge against a defendant "even though the use or threatened use of such deadly weapon or infliction of serious bodily injury or death is not an essential element of the crime charged." § 16-11-309(4). However, in order for the mandatory sentencing requirements of section 16-11-309(1)(a) to apply, the finder of fact must determine specifically that the prosecution has proven the crime of violence elements. See § 16-11-309(7).

Ten years after the General Assembly originally enacted section 16-11-309, it eliminated the separate pleading and proof requirements for certain substantive crimes that are inherently violent. See ch. 138, secs. 1-9, 1986 Colo. Sess. Laws. 776-78 (HB 86-1008); see also Alonzo Terry, 791 P.2d at 374. In a 1986 omnibus crime bill, the General Assembly amended the sections defining nine substantive criminal offenses falling under the ten enumerated types of crimes in section 16-11-309(2)(a)(II). ⁵ The amendments added identical language to each of the nine offenses, mandating that any defendant who is convicted of that offense "shall be sentenced by the court in accordance with the provisions of section 16-11-309." See Ch. 138, secs. 1-9, 1986 Colo. Sess. Laws. 776-78.

This set of amendments soon led to a dispute similar both in name and substance to the one before us today. See Alonzo Terry, 791 P.2d at 374. In Alonzo Terry, the defendant was convicted of one of the nine amended offenses, second degree assault with the use of a deadly weapon. See § 18-3-203(1)(b), (2)(c), 8B C.R.S. (1986) (codified as amended at section 18-3-203(1)(b), (2)(c), 6 C.R.S. (1998)). In addition, the People initially charged him with an associated violent crime count, but later dropped that charge. Thus, the defendant was not separately charged and convicted of committing a crime of violence. Nonetheless, relying on the 1986 omnibus amendment to the second degree assault statute, ⁶ the trial court sentenced the defendant in accordance with the mandatory requirements of section 16-11-309(1)(a).

On appeal to this court, the defendant in Alonzo Terry argued that his sentence should be vacated because the General Assembly intended its generalized reference to section 16-11-309 in section 18-3-203(2)(c) simply to refer courts to the procedural requirements of section 16-11-309, not to impose mandatory violent crime sentences upon defendants convicted of second degree assault with the use of a deadly weapon. See Alonzo Terry, 791 P.2d at 376. Thus, the defendant argued that he was not subject to enhanced sentencing under section 16-11-309, because the prosecution had not separately pled and proven a violent crime count against him in accordance with section 16-11-309(4) and (5). See id.

We disagreed. We noted that the reference in section 18-3-203(2)(c) to section 16-11-309 was ambiguous, in that it was "susceptible to reasonable, alternative interpretations." Alonzo Terry, 791 P.2d at 376 (citing Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo.1989)). However, observing that "each of the [amended] statutes contains elements of bodily injury or use of a deadly weapon, the same elements necessary to impose a sentence under section 16-11-309," we held that the purpose of the amendments was to "mandate sentencing under section 16-11-309 irrespective of any allegation of a violent crime and irrespective of a specific finding by the trial court that a violent crime has been committed." Alonzo Terry, 791 P.2d at 377-78. In this regard, we noted that section 18-3-203(2)(c)'s "use of the word 'shall' signifies the legislature's directive that courts must impose a violent crime sentence pursuant to section 16-11-309." Id. at 379.

We further noted that this interpretation was supported by the legislative history to the 1986 omnibus criminal bill, which indicated that the bill's nine amendments resulted from the General Assembly's desire to avoid potential equal protection concerns in the context of section 16-11-309. See id. at 377-78. Specifically, we observed that the amendments in the 1986 bill were the General Assembly's response to a 1985 case in the court of appeals, People v. Montoya, 709 P.2d 58 (Colo.App.1985) (Montoya I ), rev'd, 736 P.2d 1208 (Colo.1987) (Montoya II ), concerning the constitutionality of the sentencing provisions in section 16-11-309. See Alonzo Terry, 791 P.2d at 377-78.

In Montoya I, the court of appeals considered whether the imposition of a crime of violence sentence violated equal protection guarantees where the defendant was convicted of first degree assault with a deadly weapon and an associated crime of violence count. See Montoya I, 709 P.2d at 60; § 18-3-202(1)(a), 8 C.R.S. (1978); § 16-11-309, 8A C.R.S. (1984 Supp.). The court of appeals noted that equal protection guarantees are "violated when identical criminal conduct is punished with disparate criminal sanctions, or when different criminal penalties are imposed for similar criminal acts, without any rational basis to distinguish the illegal conduct." See Montoya I, 709 P.2d at 60-61. Based on this standard, the court of appeals held that Montoya's convictions violated equal protection guarantees because section 16-11-309 required additional punishment without a finding of additional criminal conduct. See id. at 61. That is, the same element, use of a deadly weapon, was the basis of both the crime of violence count and the first degree assault with a deadly weapon count. See id.

As we noted in Alonzo Terry, the General Assembly intended its 1986 omnibus bill to avoid the equal protection concerns of Montoya I by imposing mandatory sentencing for defendants convicted of crimes whose elements overlapped those of section 16-11-309. To this end, the General Assembly designed the omnibus bill amendments to mandate sentencing under section 16-11-309, so that the resulting sentencing scheme operated "not as a sentence-enhancing statute but as a presumptive penalty statute." Alonzo Terry, 791 P.2d at 378.

Notably, at the same time as the General Assembly was considering the 1986 omnibus crime bill, this court was deliberating a case that would lead to the reversal of the court of appeals decision...