The People of the State of Colorado, Petitioner/Cross-Respondent
Michael Johnson, Respondent/Cross-Petitioner
[Copyrighted Material Omitted]
Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 09CA2203.
In this case, the defendant originally received an aggregate sentence of twenty years to life on three convictions. After the defendant appealed and succeeded in having two of his convictions vacated, the trial court on remand resentenced the defendant to twelve years on the remaining conviction--double the original sentence for that count.
First, the supreme court concludes that section 18-1-409, C.R.S. (2015), which prohibits trial courts from increasing a sentence on remand unless it learns of matters of aggravation in addition to those known at the time of the original sentencing, only applies if, in the original appeal, the defendant challenged that particular sentence's propriety under the statute.
Second, regarding the defendant's due process claim, the supreme court holds that a sentence increases for purposes of applying the presumption of vindictiveness only if the new aggregate sentence is harsher than the original aggregate sentence. Applying the aggregate approach to this case, the supreme court concludes that the presumption of vindictiveness does not apply because the defendant's aggregate sentence decreased from an indeterminate sentence of twenty years to life to a determinate sentence of twelve years. In addition, the supreme court holds that the trial court did not act out of actual vindictiveness. For these reasons, the supreme court concludes that the trial court did not violate the defendant's due process rights.
For Petitioner/Cross-Respondent: Cynthia H. Coffman, Attorney General, John J. Fuerst III, Senior Assistant Attorney General, Denver, Colorado.
For Respondent/Cross-Petitioner: Douglas K. Wilson, Public Defender, Adam Mueller, Deputy Public Defender, Denver, Colorado.
[¶1] We granted certiorari to consider whether the trial court violated Michael Johnson's statutory and constitutional rights by increasing his sentence on the remaining conviction on remand following his successful appeal on his other convictions. The trial court initially accepted, but at sentencing rejected, a plea agreement in which Johnson would plead guilty to an added count of possession of a controlled substance and the original counts would be dismissed. Due to the trial court's rejection of the plea agreement, the case proceeded to trial where the jury found Johnson guilty of first-degree kidnapping, sexual assault, and possession of a controlled substance. The trial court subsequently sentenced him to an aggregate sentence of twenty years to life. Johnson appealed the sexual assault and kidnapping convictions on double jeopardy grounds. The court of appeals reversed and vacated those two convictions and sentences, remanding the case with instructions that the trial court reinstate the plea agreement and resentence Johnson on the remaining possession of a controlled substance conviction. On remand, the trial court imposed a twelve-year sentence for the possession of a controlled substance conviction--twice the length of the original six-year sentence for that conviction. Johnson appealed a second time, arguing that the increased sentence on the possession of a controlled substance conviction violated section 18-1-409, C.R.S. (2015), and his due process rights. The court of appeals rejected the statutory claim but
then applied the presumption of vindictiveness to the trial court's resentencing and held that the sentence violated Johnson's due process rights. People v. Johnson, No. 09CA2203, slip op. at 10-11, 17 (Colo.App. May 31, 2012) (not selected for official publication) (modified opinion on denial of rehearing).
[¶2] We now affirm in part and reverse in part. We conclude that the court of appeals correctly rejected Johnson's statutory argument, but that it erred in applying the presumption of vindictiveness to the new sentence on the possession of a controlled substance conviction. We hold that section 18-1-409 does not apply to the resentencing on remand of a count that the defendant did not challenge under that statute in the first appeal. In addition, we hold that the presumption of vindictiveness does not apply when the aggregate sentence on remand does not exceed the original aggregate sentence. In this case, Johnson's aggregate sentence was reduced from twenty years to life to a determinate term of twelve years. Hence, the presumption of vindictiveness does not apply in this case. In addition, given the absence of any evidence of actual vindictiveness, we conclude that the new sentence was not vindictive and therefore did not violate Johnson's due process rights. We thus affirm the court of appeals' judgment rejecting Johnson's statutory argument, but reverse its judgment that the presumption of vindictiveness applies and the sentence therefore violated his due process rights. We remand the case to the court of appeals for proceedings consistent with this opinion, and for the court of appeals to consider the remaining issues Johnson raised on appeal.
I. Facts and Procedural History
[¶3] In 2003, the victim's brother stole roughly one thousand dollars from Johnson. After the victim's brother fled, Johnson kidnapped the victim. He told her that she would have to prostitute herself in order to earn back the money that her brother stole. Over the course of the next two days, Johnson took the victim to various locations and forced her to have sex with him and numerous other people. During that same time period, Johnson smoked crack cocaine and coerced the victim into smoking crack cocaine as well. While Johnson was transporting the victim to a hotel room, the police pulled over Johnson's van and discovered the license plates were stolen. Johnson fled the scene, but the victim reported what he had done. The police found and arrested him nine days later. The People charged him with first-degree kidnapping, second-degree kidnapping, and sexual assault.
[¶4] Before trial, the parties reached a plea agreement whereby Johnson would plead guilty to an added charge of possession of a controlled substance, and the People would dismiss the other three charges. The trial court initially accepted the plea agreement, but at sentencing the parties disputed whether the plea agreement included allowing the court to consider the facts underlying the dismissed charges when sentencing Johnson on the possession of a controlled substance count. As a result of this disagreement, the trial court rejected the plea agreement and set the case for trial on all counts, including the possession of a controlled substance charge. At trial, the jury found Johnson guilty of first-degree kidnapping, sexual assault, and possession of a controlled substance. The trial court thereafter sentenced Johnson to twenty years for first-degree kidnapping, twenty years to life for sexual assault, and six years for possession of a controlled substance, all running concurrently. As such, the aggregate sentence was twenty years to life.
[¶5] Johnson appealed, and the court of appeals reversed the trial court, holding that the trial court violated Johnson's double jeopardy rights when it first accepted and then at sentencing rejected the plea agreement, causing Johnson to face trial on the originally dismissed kidnapping and sexual assault counts. Accordingly, the court of appeals remanded the case to the trial court
with instructions to reinstate the plea agreement and sentence Johnson on only the possession of a controlled substance count.
[¶6] At the sentencing hearing on remand, the trial court considered the factual basis for the dismissed sexual assault charge in its evaluation, found discretionary aggravation, and sentenced Johnson to twelve years for the possession of a controlled substance conviction--twice the six-year sentence originally imposed for that conviction and equal to the maximum aggravated sentence for a class 4 felony. § 18-1.3-401(1)(a)(V)(A), (6), C.R.S. (2015). In altering the original sentence, the trial court noted that when it originally sentenced Johnson on the possession of a controlled substance count, it did not take into account the factual basis for the sexual assault charge because, at that time, the court was separately sentencing Johnson on that charge. The court continued that it was " looking at a totally different situation than [it] was at the time when [Johnson] was facing a possibility of life in prison" during the initial sentencing. In addition, the trial court stated that in considering the factual basis for the sexual assault charge, it was relying not upon a bare conviction or statements from counsel about Johnson's acts, but rather on the actual evidence presented in the original trial.
[¶7] Johnson appealed a second time, arguing that the new sentence imposed on remand violated section 18-1-409(3), which prohibits increases of sentences successfully appealed under that statute except where " matters of aggravation" come to light after the original sentencing. Johnson, slip op. at 6. In addition, he claimed the increased sentence violated his due process rights. Id. at 14. The court of appeals concluded that section 18-1-409(3) did not apply to Johnson's appeal since he did not originally appeal the propriety of his possession of a controlled substance sentence. Id. at 10-11. The court of appeals went on to hold, however, that the new sentence violated Johnson's due process rights because the trial court increased his sentence for the possession of a controlled substance count, and there was a reasonable likelihood that actual vindictiveness influenced that increase. Id. at 16-17. The court applied a presumption of vindictiveness to the increased sentence for the possession of a controlled substance conviction, reasoning that no new information justifying the increase had come to light between the first and second sentencings. Id. at 14, 17. Accordingly, the court of appeals vacated Johnson's sentence and remanded the case to the trial court for it to impose a sentence of no more than six years on the possession of a controlled substance conviction. Id. at 20.
[¶8] We granted certiorari to consider whether the court of appeals erred in holding that section 18-1-409 does not apply to Johnson's case and that the presumption of vindictiveness does apply to the trial court's resentencing of Johnson's possession of a controlled substance conviction.
II. Standard of Review
[¶9] This court reviews issues of statutory construction, as well as constitutional challenges to sentencing determinations, de novo.
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