July 16, 2015
The People of the State of Colorado, Plaintiff-Appellee,
Gejuan Levar Lancaster, Defendant-Appellant
Paso County District Court No. 11CR1307. Honorable William B.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN
PART, AND CASE REMANDED WITH DIRECTIONS.
H. Coffman, Attorney General, Erin K. Grundy, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Nathaniel E.
Deakins, Deputy State Public Defender, Denver, Colorado, for
by JUDGE GABRIEL. Richman and Navarro, JJ., concur.
[¶1] Defendant, Gejuan Levar Lancaster,
appeals the judgment of conviction and sentence on a jury
verdict finding him guilty of kidnapping, two counts of
sexual assault, menacing, and third degree assault. We
conclude that the trial court did not err in (1) denying
Lancaster's motion to suppress a DNA profile that he
contends resulted from a violation of his rights under the
United States and Colorado Constitutions and (2) denying
without an evidentiary hearing his motion to allow evidence
that the victim had a history of making false allegations of
sexual assault. We further conclude that the record is not
sufficiently developed for us to determine whether the trial
court misperceived the applicable sentencing range for
Lancaster's sexual assault counts. Accordingly, we affirm
the judgment, vacate the sentences on the sexual assault
counts, and remand for resentencing on those counts.
[¶2] Late one evening in November 2009, a
man approached the victim on a street after the victim had
left a friend's apartment. After following her for a
time, the man walked up to the victim, wrapped his arm around
her neck, and said, " Come here girl." She
screamed, and he told her that he had a gun and that if she
did not stop screaming, he would shoot her in the head. He
then forced her into a field and sexually assaulted her.
During the assault, she felt what she thought was a gun in
the man's jacket pocket. After the man left, the victim
went to a nearby home, and the residents let her in and
called 911. A DNA swab was subsequently taken from the
victim, and the resulting DNA profile was uploaded to both a
Colorado database and the Combined DNA Index System (CODIS)
national DNA database.
[¶3] As a result of the above-described
assault, the People charged Lancaster with numerous counts of
kidnapping, sexual assault, menacing, and third degree
assault. The case proceeded to trial, where Lancaster
presented a misidentification defense. The jury convicted him
as charged, and the trial court sentenced him, as pertinent
here, to an indeterminate prison term of twenty-five years to
life on the sexual assault counts, both of which were class
[¶4] Lancaster now appeals.
[¶5] Lancaster contends that the trial court
erred in denying his motion to suppress DNA evidence that he
asserts was developed as a result of violations of his
federal and state constitutional rights. We perceive no basis
[¶6] Although the record is not entirely
clear, it appears that in October 2010, approximately one
year after the sexual assault at issue, Lancaster was
arrested on a warrant for the revocation of his deferred
sentence on a prior misdemeanor harassment charge. That
deferred sentence had been imposed as part of a plea bargain
in a case in which Lancaster was initially facing felony
charges. Apparently because Lancaster's criminal history
erroneously indicated that he had been convicted of a felony
in that case, the police took a buccal swab of
[¶7] Several months later, Lancaster was
again arrested, this time in connection with apparent traffic
violations. The police took another buccal swab at that time.
[¶8] Two days after the police took this
swab, Lancaster was arrested on a felony robbery charge.
[¶9] Subsequently, the above-described
buccal swabs were tested, and the analysis of at least the
first sample resulted in a match with the DNA profile of the
man who had sexually assaulted the victim in this case. Based
on this initial match, the police obtained an order pursuant
to Crim. P. 41.1 to collect another DNA sample from
Lancaster. They did so, and the analysis of this sample also
resulted in a match with the DNA profile of the man who had
sexually assaulted the victim.
[¶10] Prior to trial, Lancaster filed a
motion to suppress the DNA profile developed after the police
had obtained the Crim. P. 41.1 order and collected the third
DNA sample from him. He asserted that the ultimate match
resulted from a DNA sample taken in violation of (1)
Katie's Law, § § 16-23-101 to -105, C.R.S.
2014; (2) the Fourth Amendment of the United States
Constitution; and (3) article II, section 7 of the Colorado
[¶11] After a hearing, the trial court
denied this motion. Although the court found that the police
had violated Katie's Law when they took the first two
samples, it found no evidence of bad faith or malice and
further concluded that the warrantless collection of
Lancaster's DNA fell within the " special
needs" exception to the warrant requirements of the
United States and Colorado Constitutions.
[¶12] When reviewing a trial court's
order on a motion to suppress, we defer to the court's
factual findings but review de novo its ultimate legal
conclusion as to whether the defendant's constitutional
rights were violated. People v. Brunsting, 2013 CO
55, ¶ 15, 307 P.3d 1073, 1078.
[¶13] Section 16-23-103(1)(a) provides that
an arresting law enforcement agency shall, as part of its
booking process, collect a biological sample from any adult
arrested on or after September 30, 2010 for a felony offense
or for the investigation of a felony offense.
[¶14] In addition, " [t]he Fourth
Amendment to the United States Constitution and article II,
§ 7 of the Colorado Constitution protect against
unreasonable searches and seizures." People v.
Rossman, 140 P.3d 172, 174 (Colo.App. 2006). A cheek
swab to obtain a DNA sample is a search, and a search without
a warrant supported by probable cause is presumptively
unreasonable unless it falls within one of the established
exceptions to the warrant requirement. People v.
Casillas, 2015 COA 15, ¶ 23, P.3d, , *8.
[¶15] The so-called " special
needs" exception is one such exception.
Rossman, 140 P.3d at 174.
Under that exception, a warrant, probable cause, or even
individualized suspicion of wrongdoing need not be shown
where " special needs, beyond the normal need for law
enforcement" exist, and the search or seizure is found
to be " reasonable" after balancing the
government's special need against the individual's
asserted privacy interests.
Id. (quoting People v. Shreck, 107 P.3d
1048, 1052 (Colo.App. 2004)).
[¶16] DNA databases serve a number of
special needs beyond the need of law enforcement officials to
secure evidence of wrongdoing against a particular suspect.
Shreck, 107 P.3d at 1053. " By enhancing the
accuracy of the criminal justice system, DNA databases assist
in exonerating the innocent, solving past as well as future
crimes, and deterring recidivism." Id.
[¶17] Weighed against the government's
special need is the individual's asserted privacy
interests. See Rossman, 140 P.3d at 174.
[¶18] As pertinent here, the privacy
expectations of a suspect who is taken into custody are
diminished. See Maryland v. King, 133 S.Ct.
1958, 1978, 186 L.Ed.2d 1 (2013). Thus, at the station house,
police officers may search the suspect's person and the
property in his or her immediate possession. Id.
Moreover, the search of the suspect's person may be
relatively extensive, requiring, for example, some detainees
to lift their genitals or cough in a squatting position.
Id. As the United States Supreme Court has observed:
DNA identification of arrestees is a reasonable search that
can be considered part of a routine booking procedure. When
officers make an arrest supported by probable cause to hold
for a serious offense and they bring the suspect to the
station to be detained in custody, taking and analyzing a
cheek swab of the arrestee's DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that
is reasonable under the Fourth Amendment.
Id. at 1980.
[¶19] Similarly, courts have recognized that
people under the supervision of the probation department may
have diminished privacy interests. See
Casillas, ¶ ¶ 25, 27-34, P.3d at,
Id. *9-10 (considering the privacy interests of a
juvenile on a deferred adjudication); Rossman, 140
P.3d at 175-76 (considering the privacy interests of a
probationer). People under the supervision of the probation
department do not enjoy the liberty to which other citizens
are entitled but only liberty that is conditioned on the
observance of certain restrictions. See
Rossman, 140 P.3d at 175-76.
[¶20] And in considering an individual's
privacy interests, the Supreme Court has noted that "
the intrusion of a cheek swab to obtain a DNA sample is a
minimal one." King, 133 S.Ct. at 1977. It does
not break the skin and involves virtually no risk, trauma, or
pain. Id. at 1979.
[¶21] Here, DNA samples were taken from
Lancaster after he was arrested on a warrant for the
revocation of a deferred sentence on a misdemeanor harassment
charge and also when he was arrested for misdemeanor traffic
offenses. Because neither of the crimes for which Lancaster
was arrested was a felony, the parties agree, as do we, that
Katie's Law did not authorize the taking of these
samples. See § 16-23-103(1)(a). For several
reasons, however, we nonetheless conclude that these searches
did not require the suppression, under the United States or
Colorado Constitutions, of the DNA evidence that was
developed after the police had obtained a warrant.
[¶22] First, evidence seized as a result of
a statutory violation does not ordinarily require
suppression, unless the seizure was willful and recurrent.
Casillas, ¶ 19, P.3d at __. Lancaster does not
argue, nor would the record support a conclusion, that the
violation of Katie's Law was willful and recurrent.
[¶23] Second, the record and the above-cited
case law demonstrate that the government's interest in
the DNA sample was not outweighed by Lancaster's privacy
interests. This is particularly true in this case, where (1)
Lancaster was a suspect taken into custody, see
King, 133 S.Ct. at 1978; (2) he was under the
supervision of the probation department when the first sample
was taken, cf. Rossman, 140 P.3d at 175-76;
and (3) the intrusion into Lancaster's privacy resulting
from the buccal swabs was minimal and akin to booking
procedures like the fingerprinting and photographing of a
suspect, see King, 133 S.Ct. at 1977, 1980.
Accordingly, we perceive no Fourth Amendment violation here.
[¶24] Third, notwithstanding Lancaster's
assertion to the contrary, the state constitution provides
the same, not greater, protection in this area than the
Fourth Amendment. See Rossman, 140 P.3d at
176 (rejecting the defendant's argument that the Colorado
Constitution provides greater protections to probationers
than does the United States Constitution).
[¶25] Accordingly, we conclude that the
trial court did not err in denying Lancaster's motion to
suppress the DNA profile that was allegedly developed as a
result of the prior warrantless collections of DNA evidence
[¶26] We are not persuaded otherwise by
Lancaster's argument that the search here was
unconstitutional because Lancaster was only in custody for
misdemeanor offenses. Although in King, 133 S.Ct. at
1980, the Supreme Court concluded that it was constitutional
to collect DNA from a suspect detained in custody for a
" serious offense," the Court did not hold that it
is unconstitutional to take DNA from arrestees under all
other circumstances. See People v. Marquez,
No. G048762, 2015 WL 292310, at *5 (Cal. Ct.App. Jan. 21,
2015) (unpublished opinion) (" While the Supreme Court
in [ King] was addressing a statute that specified
DNA samples could be processed only after an arrestee had
been arraigned, and the court found the statutory procedure
constitutional, the court did not state that the collection
and processing of DNA samples is unconstitutional in all
other contexts." ) ( review granted Apr. 29,
2015). Moreover, as the Ninth Circuit recently observed,
" Under the Court's rationale [in King ],
the magnitude of the state's interest does not
necessarily depend on the seriousness of the crime of arrest.
As the majority [in King ] observed, 'people
detained for minor offenses can turn out to be the most
devious and dangerous criminals.'" Haskell v.
Harris, 745 F.3d 1269, 1273 (9th Cir. 2014) (quoting
King, 133 S.Ct. at 1971).
[¶27] Nor are we persuaded by
Lancaster's argument that the search here was
unreasonable because Katie's Law has the express purpose
of solving and preventing crime, while the King
Court stated that the Maryland statute at issue in that case
was concerned with processing and identifying people taken
into custody. See King, 133 S.Ct. at 1970.
The statute at issue in King did not expressly say
that identification was its sole governmental interest.
See Md. Code Ann., Pub. Safety § 2-505 (West
2015). Nor did the Supreme Court say that identification is
the only legitimate governmental interest served by
collecting DNA samples. Indeed, a division of this court
recently identified other governmental interests in
collecting DNA samples, including interests similar to those
identified in Katie's Law. Compare
Casillas, ¶ 26, P.3d at, Id. *10
(noting that the government's special needs in collecting
DNA samples from probationers include exonerating the
innocent, solving past and future crimes, deterring
recidivism, and reintegrating probationers into the
community), with § 16-23-102, C.R.S. 2014
(providing that (1) the collection and use of DNA is a
valuable tool in preventing crime; (2) the analysis of DNA
has been used to exonerate innocent individuals charged with
or convicted of crimes; and (3) the implementation of
Katie's Law will result in preventing a significant
number of violent crimes and in solving a number of unsolved
crimes in Colorado).
[¶28] And we see nothing in People v.
Williams, 192 Colo. 249, 557 P.2d 399 (1976), on which
Lancaster relies, that suggests that the Colorado
Constitution provides greater protection in this area than
the Fourth Amendment.
[¶29] Finally, we acknowledge that in
Casillas, ¶ 27, P.3d at, Id. at *10the
division concluded that a juvenile on a deferred adjudication
has a greater expectation of privacy with respect to DNA
collection than a juvenile probationer. This conclusion,
however, does not assist Lancaster, who had been arrested on
a warrant for revocation of his prior deferred sentence when
the first DNA sample was taken from him. In
Casillas, " there [was] no evidence that
Casillas' juvenile probation officer had reasonable
suspicion to believe that Casillas violated any terms of his
juvenile probation while on the deferred adjudication."
Casillas, ¶ 31, P.3d at, *11. This fact, when
read together with the juvenile DNA collection statute there
at issue, led the division to conclude that the state's
interest did not outweigh the juvenile's privacy
interest. Id. at ¶ ¶ 27-34, P.3d at __. In this
case, in contrast, it was undisputed that Lancaster had
violated the terms of his deferred sentence.
Rape Shield Evidence
[¶30] Lancaster next contends that the trial
court abused its discretion and violated his constitutional
right to present a defense when it denied without an
evidentiary hearing his motion to allow him to introduce
evidence that the victim had a history of making false
allegations of sexual assault. We are not persuaded.
[¶31] Prior to trial, Lancaster filed a
motion pursuant to Colorado's rape shield statute, §
18-3-407, C.R.S. 2014, seeking to permit him to introduce
evidence that the victim had a history of making false
allegations of sexual assault. Specifically, in an affidavit
attached to the motion, defense counsel attested that years
prior to the sexual assault at issue, the victim made two
separate reports of sexual assault, each one alleging a
[¶32] In the first report, the victim
alleged that she had been sexually assaulted by G.P. That
case was closed after the victim refused to cooperate in the
investigation of her allegations.
[¶33] In the second report, counsel asserted
that the victim had made allegations of sexual assault
against J.V.R. and that
[d]uring the investigation of this case, police received
information from an unnamed witness suggesting the
allegations made by [the victim] against [J.V.R.] were false.
The charges against [J.V.R.] were subsequently dismissed by
[¶34] The trial court denied Lancaster's
motion, concluding that as a matter of law, the motion did
not merit an evidentiary hearing.
Sufficiency of the Offer of Proof
[¶35] We review a trial court's
evidentiary rulings, including its determination of
evidence's admissibility under the rape shield statute,
for an abuse of discretion. People v. Cook, 2014 COA
33, ¶ 34, 342 P.3d 539, 547.
[¶36] Colorado's rape shield statute
" deems the prior or subsequent sexual conduct of any
alleged victim to be presumptively irrelevant to the criminal
trial." People v. Weiss, 133 P.3d 1180, 1185
(Colo. 2006). The statute, however, contains several
exceptions to this rule. See id. at
1185-86. One of these exceptions allows for the admission of
" evidence that the victim or a witness has a history of
false reporting of sexual assaults," if the procedure
specified in the statute is followed. § 18-3-407(2).
[¶37] The specified procedure requires the
moving party to file a written motion stating that he or she
has " an offer of proof of the relevancy and
materiality" of that evidence. § 18-3-407(2)(a).
This motion must be accompanied by an affidavit setting forth
the offer of proof. § 18-3-407(2)(b).
[¶38] If the court finds that the offer of
proof is sufficient, the court must notify the other parties
of this finding. § 18-3-407(2)(c). If the prosecution
stipulates to the facts in the offer of proof, then the court
must rule on the motion without a hearing. Id.
Otherwise, the court must set an in camera hearing prior to
[t]o invoke a rape shield hearing to pierce the statute,
defendant's motion must be accompanied by an offer of
proof under section 18-3-407(2)(b) sufficient to
demonstrate, by a preponderance of the evidence, at the in
camera evidentiary hearing that the alleged victim made
multiple reports of prior or subsequent sexual
assault that were in fact false. Because a prosecutor
may decline to bring charges for any number of reasons, the
fact that sexual assault reports by the victim did not result
in charges being brought is not a sufficient offer of proof
upon which a trial court may order an evidentiary hearing
pursuant to section 18-3-407(2).
Prosecutorial discretion to bring or not bring charges is
extraordinarily wide. Many considerations go into deciding
whether to file a case and, if filed, whether to continue
pursuing it. In sexual assault cases, victims must consider
the emotional price they will have to pay in placing their
most intimate personal experiences before the public, and
prosecutors may be called upon to abandon the case at the
victim's insistence or for other strategic reasons.
Weiss, 133 P.3d at 1188-89 (emphasis added).
[¶40] Here, Lancaster's offer of proof
was insufficient to demonstrate, by a preponderance of the
evidence, the falsity of the victim's second report.
Specifically, although counsel alleged that the second report
resulted in charges that were dismissed, as noted above, such
an allegation is insufficient, in and of itself, to establish
the falsity of the report. See id. Moreover,
although Lancaster alleged that the police received
information from an unnamed witness suggesting that the
victim's report was false, this information would have
been inadmissible hearsay. See id. at
1186-87 (" An 'offer of proof' typically states
. . . all the facts necessary to establish the
testimony's admissibility." ).
[¶41] Accordingly, Lancaster's offer of
proof demonstrated, at most, only one prior false report of
sexual assault. The offer was thus insufficient to warrant a
hearing under the rape shield statute. See
id. at 1188.
Right to Present a Complete Defense
[¶42] Because Lancaster did not argue to the
trial court that its ruling regarding the rape shield
evidence violated his right to present a complete defense, we
review that contention for plain error. See
People v. Clark, 2015 COA 44, ¶ 123, P.3d,
(reviewing for plain error the defendant's assertion,
made for the first time on appeal, that the admission of
evidence without a limiting instruction violated his
constitutional rights). Plain error review addresses error
that is obvious and substantial and that so undermines the
fundamental fairness of the trial itself as to cast serious
doubt on the reliability of the judgment of conviction.
People v. McMinn, 2013 COA 94, ¶ 42, P.3d, .
An erroneous evidentiary ruling may rise to the level of
constitutional error if it deprived the defendant of any
meaningful opportunity to present a complete defense. A
defendant's right to present a defense is violated only
where the defendant was denied virtually his only means of
effectively testing significant prosecution evidence.
People v. Conyac, 2014 COA 8M, ¶ 93, P.3d,
[¶43] Although Lancaster argues that the
rape shield evidence would have been material to a consent
defense, he never advanced such a defense at trial. In fact,
Lancaster consistently maintained, from his first statements
to the police through trial, that he did not even know the
[¶44] In addition, Lancaster does not
explain, nor do we perceive, how the court's ruling on
the rape shield evidence denied him the ability to present a
consent defense or of his only means of effectively testing
significant prosecution evidence. See id.
[¶45] Accordingly, we perceive no error,
much less plain error, regarding Lancaster's right to
present a complete defense.
[¶46] Finally, Lancaster contends that the
trial court misapprehended the sentencing range for sexual
assault and erroneously sentenced him outside the presumptive
range. Because the record is not sufficiently developed for
us to determine this issue, we vacate the sentences on the
sexual assault counts and remand for resentencing on those
[¶47] Lancaster was convicted of sexual
assaults as class two felonies. In connection with its
verdicts on those counts, the jury expressly found that
was armed with a deadly weapon or any article used or
fashioned in a manner to cause a person to reasonably believe
that the article was a deadly weapon or represented verbally
or otherwise that the defendant was armed with a deadly
weapon, and used the deadly weapon, article or representation
to cause submission of the victim.
[¶48] Moreover, at the sentencing hearing,
the prosecutor conceded that Lancaster " did not
actually have a weapon or produce a weapon, he just
threatened the use of it . . . ." Similarly, the
prosecutor said that Lancaster " was armed or
verbally represented that he was armed with a deadly
weapon" (emphasis added).
[¶49] The prosecutor then represented that
the sentencing range for the sexual assault counts at issue
here was an indeterminate sentence, with the lower end of the
range being sixteen to forty-eight years.
[¶50] When sentencing Lancaster, the court
did not offer its view of the proper sentencing range on the
sexual assault counts. Nor did it expressly reference "
extraordinary aggravating circumstances." The court
observed, however, that the victim was raped " in a
horrible way," that the crime had an impact " on
the entire community," and that the victim was "
psychologically damaged for who knows how long."
[¶51] Sexual assault is a class two felony
when, as pertinent here, an actor
is armed with a deadly weapon or an article used or fashioned
in a manner to cause a person to reasonably believe that the
article is a deadly weapon or represents verbally or
otherwise that the actor is armed with a deadly weapon and
uses the deadly weapon, article, or representation to cause
submission of the victim.
§ 18-3-402(5)(a)(III), C.R.S. 2014. Any person convicted
of felony sexual assault on or after November 11, 1998, under
the circumstances described in section 18-3-402, " shall
be sentenced in accordance with the provisions of part 10 of
article 1.3 of this title." § 18-3-402(6). (Section
18-3-402(6), not section 18-3-402(5)(b) on which the People
rely, applies here, because Lancaster's offense was
committed on or after November 1, 1998.)
[¶52] Part 10 of article 1.3 is part of the
Colorado Sex Offender Lifetime Supervision Act of 1998 (the
Act). As pertinent here, section 18-1.3-1004(1)(a), C.R.S.
2014, provides that the defendant shall be sentenced to
" an indeterminate term of at least the minimum of the
presumptive range specified in section 18-1.3-401 for the
level of offense committed and a maximum of the sex
offender's natural life."
[¶53] The Act requires that only the upper
end of a sentence be indeterminate. See People
v. Villa, 240 P.3d 343, 359 (Colo.App. 2009). With
respect to the lower term, the presumptive range for sexual
assault as a class two felony is sixteen years to twenty-four
years. See § § 18-1.3-401(1)(a)(V)(A),
C.R.S. 2014 (providing that the presumptive range for a class
two felony is eight to twenty-four years), 18-1.3-401(8)(e.5)
(providing that if a defendant is convicted of a class two
felony sex assault under section 18-3-402(5), the court shall
be required to sentence the defendant to an indeterminate
sentence of at least the midpoint in the presumptive range
for the punishment of that class of felony up to the
defendant's natural life). A court may, however, impose a
sentence of up to twice the maximum of that presumptive range
if aggravating factors are present. § 18-1.3-401(6).
Thus, the Act must be construed to require sentencing to an
upper term of the sex offender's natural life and a lower
term " of a definite number of years, not less than the
minimum nor more than twice the maximum of the presumptive
range authorized for the class of felony of which the
defendant stands convicted." Vensor v. People,
151 P.3d 1274, 1279 (Colo. 2007).
[¶54] In addition, section 18-1.3-1004(1)(b)
provides that when an offense subject to the Act is a crime
of violence, the court shall sentence the defendant for an
indeterminate term of at least the midpoint in the
presumptive range for the level of offense committed and a
maximum of the sex offender's natural life. As pertinent
here, sexual assault is a crime of violence when the
prosecution pleads and proves either that the defendant
" [u]sed, or possessed and threatened the use of, a
deadly weapon" or " [c]aused serious bodily injury
or death . . . ." § 18-1.3-406(2)(a)(I), (II)(E),
C.R.S. 2014. (Although the People rely on section
18-1.3-406(2)(b)(I), that section applies only to certain sex
offenses against children and is inapplicable here.) If the
defendant is convicted of sexual assault as a crime of
violence, then the lower term cannot exceed twice the maximum
of the presumptive range authorized for the class of felony
of which the defendant stands convicted. See
Hunsaker v. People, 2015 CO 46, ¶ ¶ 16-27,
351 P.3d 388, 392.
[¶55] Here, as an initial matter, we reject
the People's argument that the sexual assaults at issue
constituted crimes of violence. The jury's verdict set
forth a list of alternative findings, which included a
finding that Lancaster had used or possessed and threatened
the use of a deadly weapon. The verdict, however, did not
clarify which of the listed alternatives the jury actually
found. Thus, we cannot determine whether the jury found that
Lancaster had used or possessed and threatened the use of a
deadly weapon, which finding was necessary to support a crime
of violence determination. Indeed, at sentencing, the
prosecutor effectively conceded that the evidence did
not support such a finding, noting that (1)
Lancaster did not actually use or produce a weapon, he just
threatened the use of it; and (2) Lancaster was either armed
or verbally represented that he was.
[¶56] The question thus becomes whether the
court's sentence of twenty-five years to life on each
sexual assault count was nonetheless proper.
[¶57] Because the prosecutor incorrectly
stated at the sentencing hearing that the lower term on the
sexual assault counts was sixteen to forty-eight years, when
in fact it was sixteen to twenty-four years, the court may
have imposed a sentence of twenty-five years to life based on
a misapprehension of the applicable sentencing range. Because
the record is insufficient to allow us to determine the
court's understanding, and because a misapprehension of
the applicable sentencing range requires a remand, we
conclude that a remand for resentencing is necessary here.
See People v. Linares-Guzman, 195 P.3d
1130, 1137 (Colo.App. 2008) ( " Where a trial court
misapprehends the scope of its discretion in imposing
sentence, a remand is necessary for reconsideration of the
sentence within the appropriate sentencing range." ).
[¶58] We are not persuaded otherwise by the
People's argument that even if the presumptive sentencing
range for the lower term of Lancaster's indeterminate
sentence was no more than twenty-four years, we can still
affirm the sentence because the trial court found
extraordinary aggravating circumstances justifying an upward
departure from the presumptive sentencing range. For the
reasons set forth above, if the trial court misapprehended
the presumptive sentencing range, then we cannot affirm on
this ground because the court's misunderstanding alone
requires a remand. See id. Moreover, although at the
sentencing hearing, the court mentioned the crime's
horrible nature and the harm to the victim, the record does
not clearly indicate that the court, in fact, intended to
find any extreme aggravating circumstances, let alone one
that complied with or was exempt from the requirements of
Blakely v. Washington, 542 U.S. 296, 301-05, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Lopez v.
People, 113 P.3d 713, 731 (Colo. 2005) (concluding that
one Blakely -compliant or Blakely -exempt
factor is sufficient to support an aggravated sentence, even
if the sentencing court also considered factors that were not
Blakely -compliant or Blakely -exempt).
Conclusion and Remand Order
[¶59] For these reasons, the judgment is
affirmed, the sentences on the sexual assault counts are
vacated, and the case is remanded with directions that the
court resentence Lancaster on the sexual assault counts in
accordance with the sentencing range set forth above (i.e.,
indeterminate sentencing with the lower term being in the
range of sixteen to twenty-four years). If the court decides
to sentence Lancaster outside the presumptive range pursuant
to section 18-1.3-401(6), then the court must make specific
findings on the record, consistent with Blakely,
detailing the specific extraordinary aggravating
circumstances that constitute the reasons for varying from
the presumptive range.
RICHMAN and JUDGE NAVARRO concur.