Villanueva v. People

• Decision Date: 15 December 2008
• Docket Number: No. 07SC954.,07SC954.
• Citation: 199 P.3d 1228
• Parties: Emanuel VILLANUEVA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

199 P.3d 1228

Emanuel VILLANUEVA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 07SC954.

Supreme Court of Colorado, En Banc.

December 15, 2008.

As Modified on Denial of Rehearing February 2, 2009.^*

Douglas K. Wilson, Colorado State Public Defender, Pamela A. Dayton, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Jonathan P. Fero, Assistant Attorney General, Appellate Division Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

We granted certiorari to review the court of appeals' decision affirming the trial court's sentence of Emanuel Villanueva to a term of confinement in the aggravated range based on Villanueva's admission to violating a condition of probation during a probation revocation hearing. People v. Villanueva, ___ P.3d ___, No. 05CA2542, 2007 WL 2728629 (Colo.App. Sept. 20, 2007).

In 2002, Villanueva pled guilty to attempted sexual assault on a child and was sentenced to a term of two years probation. He subsequently contacted the victim, violating a condition of his probation. At the revocation hearing, Villanueva confessed the contact and admitted it violated a term of his probation. The trial court determined the admission was an extraordinary aggravating circumstance under section 18-1.3-401(6), C.R.S. (2008), permitting a sentence over the presumptive range. The court therefore sentenced Villanueva to an aggravated range term of five years in the Department of Corrections ("DOC").

In order for a defendant's admission to be used to impose a sentence over the presumptive range, he must waive his Sixth and Fourteenth Amendment rights to have the facts used to aggravate his sentence be proved to a jury beyond a reasonable doubt. Because Villanueva was not advised of, and did not waive, his right to have aggravating facts proved beyond a reasonable doubt to a jury, he could not be sentenced beyond the presumptive range. Thus, we reverse the court of appeals and remand for resentencing consistent with this opinion.

II. Facts and Procedural History

On October 19, 2001 Emanuel Villanueva was charged with sexual assault on a child— pattern of abuse¹ and sexual assault on a child.² The charges arose when Villanueva's mother reported to police that he was engaged in a sexual relationship with a minor. Villanueva was twenty-two years old and the victim, his girlfriend, was thirteen. As a result of these charges, Villanueva pled guilty to an added third count of attempted sexual assault on a child³ in exchange for the dismissal of the original counts.

At the providency hearing, the trial court advised Villanueva that he could be sentenced to the DOC for the presumptive period of one to three years or for an extraordinary mitigated or aggravated period of six months to six years. The court also informed Villanueva that by pleading guilty he was "giving up various rights," including the right to have a jury determine "all issues of guilt beyond a reasonable doubt." The court further advised him that by waiving his right to a jury trial he would be "subjecting [him]self to a potential penalty within the ranges" outlined by the court. Villanueva stated he understood his rights. The prosecution recommended probation, and the court imposed a sentence of two years of probation with the condition that Villanueva complete offense specific therapy. To enroll in the required therapy, Villanueva was required to agree to certain conditions, including no contact with the victim.

The trial court twice extended Villanueva's probationary term to allow him to complete offense specific therapy. Shortly after the second extension, Villanueva's probation officer filed a complaint alleging Villanueva violated a condition of his probation by contacting the victim and threatening to kill her. The probation officer recommended a sentence to the DOC arguing Villanueva was "no longer an appropriate candidate for community supervision" due to his failure to utilize skills learned in therapy and the "risks that he presents to the victim."

At Villanueva's September 2005 probation revocation hearing, the court advised him pursuant to section 16-11-206(1), C.R.S. (2008), of his right to have the violation proved by a preponderance of the evidence to the court. Villanueva then admitted he violated the condition of his probation prohibiting contact with the victim.

At resentencing the following month, the prosecution requested a sentence in the aggravated range under section 18-1.3-103(6), C.R.S. (2008), arguing Villanueva's admission was a factor the court could properly consider to impose a sentence over the presumptive range. The court agreed, and found the admission constituted a proper "aggravated fact" justifying a sentence beyond the presumptive range. Based on that fact, Villanueva was sentenced to serve an aggravated range term of five years in the DOC plus two years of mandatory parole.

Villanueva appealed, arguing the trial court erred in using the probation violation admission as an aggravating factor. He argued this was improper because he did not knowingly, voluntarily, and intelligently waive his Sixth and Fourteenth Amendment rights to have a jury determine the facts used to support his aggravated sentence. The court of appeals rejected this argument and concluded Villanueva's admission "to the relevant facts rendered them Blakely-compliant [and] the [trial] court could properly use them to increase his sentence even if he did not first effectuate a waiver of his Blakely rights." People v. Villanueva, ___ P.3d ___, ___, No. 05CA2542, slip op. at 5, 2007 WL 2728629 (Colo.App. Sept. 20, 2007) (referring to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). The court of appeals additionally concluded Blakely did not require the district court to advise Villanueva of the right to have a jury decide whether he contacted and threatened the victim in violation of his probation because he "had no such right" at a probation revocation proceeding under the probation revocation statute. Id.; § 16-11-206(1). We granted certiorari to review that decision.⁴

III. Standard of Review

A trial court has broad discretion over sentencing decisions. People v. Watkins, 684 P.2d 234, 239 (Colo.1984). However, constitutional challenges to sentencing determinations are reviewed de novo. Lopez v. People, 113 P.3d 713, 720 (Colo.2005); People v. Matheny, 46 P.3d 453, 462 (Colo.2002). When a defendant has preserved a challenge based on Blakely v. Washington at sentencing, we first determine whether a Blakely error occurred. People v. Banark, 155 P.3d 609, 611 (Colo.App.2007). Because such an error is of constitutional dimension, the sentence must be vacated unless the error was harmless beyond a reasonable doubt. Id.

The People argue Villanueva did not preserve a Blakely-based challenge because he did not expressly object to the aggravated sentence or the trial court's use of his admission as an aggravating fact. Prior to announcing the aggravated sentence, the trial court and counsel engaged in a discussion of this court's holding in Lopez v. People. In Lopez we discussed the circumstances that, under Blakely, a trial court could consider when aggravating a sentence. 113 P.3d at 720-25.

In arguing for an aggravated sentence, the prosecution stated "under [Lopez], your honor, prior criminality is only one of the four areas on which the Court can look to on which to base an aggravated sentence. One of the other areas [is] facts that are admitted by the defendant.... [Lopez] talks about the fact that post-plea facts can be used to aggravate." The trial judge responded "the Court is familiar with [Lopez]. The Court believes given the supreme court finding in that case that the defendant's admission of fact that he threatened to kill the victim ... constitutes an aggravated fact." The judge then announced the five year aggravated sentence. Following the announcement, defense counsel declared for the record "[a]n admission was no admission to any aggravating facts. It was only an admission to the petition filed for revocation of probation." The judge said "alright," and the hearing concluded.

The People argue Villanueva's statement regarding the admission was ambiguous and not sufficient to preserve a Blakely challenge. It is true that, viewed in isolation, defense counsel's statement is vague. However, in the context of the court's discussion of Lopez, which addressed when admissions are Blakely-compliant, it is sufficiently clear the defense took the position that the admission was not Blakely-compliant. Moreover, it is beyond dispute that the issue of whether Villanueva's statement was Blakely-compliant and could be used as an aggravating factor was squarely before the court. In the Lopez discussion, the court stated it considered the admission to be a fact it could properly consider for purposes of aggravation. Thus, the court was not only aware of the restrictions Blakely and Lopez imposed on a trial court's use of certain facts for purposes of aggravation, but the court actually considered these restrictions and nonetheless found the admission to be proper. Accordingly, the issue was properly preserved and we review the matter de novo.

IV. Analysis

Courts cannot use a defendant's admissions to sentence him to an aggravated range term under section 18-1.3-401(6) unless he knowingly, voluntarily, and intelligently waives his right to have a jury determine beyond a reasonable doubt all facts that support the aggravated sentence. People v. Isaacks, 133 P.3d 1190, 1195 (Colo.2006). If the defendant does not execute a waiver, the sentencing court cannot use an admission to support an aggravated sentence. Absent at least one proper basis for the aggravation, the court cannot sentence the defendant beyond the presumptive range.

The principles that guide us today...