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People v. Mountjoy

Court of Appeals of Colorado, Third Division

June 2, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Christopher Anthony Mountjoy, Jr., Defendant-Appellant.

         El Paso County District Court No. 12CR1020 Honorable William B. Bain, Judge

          Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          WEBB, JUDGE

         ¶ 1 This sentencing appeal presents a novel question in Colorado - if a trial court sentences in the aggravated range based on facts not found by a jury, can the sentence be affirmed based on harmless error, if the record shows beyond a reasonable doubt that a reasonable jury would have found those facts, had the jury been requested to do so by special interrogatory?[1] Many other courts - both federal and state - have answered it in the affirmative. We now join them.

         ¶ 2 A jury acquitted Christopher Anthony Mountjoy, Jr., of more serious charges, but convicted him of manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial court imposed a sentence in the aggravated range on each count, to be served consecutively. On appeal, he challenges only the aggravated range sentences, primarily under Blakely v. Washington, 542 U.S. 296 (2004). We affirm.

         I. Background

         ¶ 3 As the sergeant-at-arms of a motorcycle club, defendant was responsible for security.

         ¶ 4 According to the prosecution's evidence, the victim was involved in a fight on the club's premises. The victim discovered that his wallet was missing shortly after leaving. Then he and a companion drove around the area pondering whether to return and demand the wallet.

         ¶ 5 Defendant saw the car and fired eight shots as it drove away. Two bullets hit the car, one of which killed the victim. After the shooting, defendant directed other club members to "clean up" the area where the shooting occurred, and he deleted text messages related to the shooting from his cell phone.

         II. Blakely Issues

         ¶ 6 Defendant first contends each of his aggravated range sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely. But even assuming that they did, how should we deal with the overwhelming evidence of guilt? We conclude that based on this evidence, a jury would have found the facts on which the trial court relied in imposing aggravated range sentences. And for this reason, we further conclude that Apprendi/Blakely error, if any, was harmless beyond a reasonable doubt.

          A. Additional Background

         ¶ 7 The trial court enhanced defendant's sentences for each of his three convictions under section 18-1.3-401(6), C.R.S. 2015. This section permits a trial court to impose a sentence above a presumptive range if the court makes specific findings of extraordinary aggravating circumstances. See generally People v. Kitsmiller, 74 P.3d 376, 379-80 (Colo.App. 2002) (describing process by which trial court can enhance sentence beyond the presumptive range under section 18-1.3-401(6)).

● The court found that the manslaughter conviction was extraordinarily aggravated because defendant used a weapon, tampered with evidence, admitted firing his weapon eight times, fired into a car with two people inside, and fired while the car was driving away.
● In finding that the illegal discharge conviction was extraordinarily aggravated, the court explained, "[s]omebody died, " and, after the discharge, defendant had tampered with evidence.
● Similarly, the court deemed the tampering count extraordinarily aggravated because someone had died.

         ¶ 8 Based on these extraordinary aggravating circumstances, the trial court doubled the maximum presumptive range sentence for each conviction and imposed sentences of twelve years for manslaughter, six years for illegal discharge of a weapon, and three years for tampering with evidence. Then the court ordered defendant to serve these sentences consecutively.

         B. Preservation and Standard of Review

         ¶ 9 The Attorney General concedes that defendant preserved his Apprendi/Blakely claim.

         ¶ 10 An appellate court reviews a constitutional challenge to sentencing de novo. See Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). If the sentencing court committed constitutional error, an appellate court must reverse unless the error is harmless beyond a reasonable doubt. See Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008).

         C. Law

         ¶ 11 "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The "statutory maximum" for Apprendi purposes 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." Blakely, 542 U.S. at 303.

         ¶ 12 Applying Apprendi and Blakely, our supreme court has identified four types of facts that may constitutionally increase a defendant's sentence beyond the statutory maximum:

(1) facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a judge after the defendant stipulates to judicial fact-finding for sentencing purposes; and (4) facts regarding prior convictions.

Lopez, 113 P.3d at 716. The first three types are "Blakely-compliant, " while a prior conviction is "Blakely-exempt." See id. at 723.

         ¶ 13 In Washington v. Recuenco, 548 U.S. 212, 222 (2006), the Supreme Court applied the constitutional harmless error analysis of Neder v. United States, 527 U.S. 1, 15 (1999), to a Blakely sentencing error. The Court explained that the sentencing error before it was indistinguishable from the instructional error in Neder because "sentencing factors, like elements . . . have to be tried to the jury and proved beyond a reasonable doubt." Recuenco, 548 U.S. at 220. Specifically, in both cases, the trial judge, rather than the jury, had found the omitted element or aggravating factors. See Medina v. People, 163 P.3d 1136, 1142 n.6 (Colo. 2007). But no Colorado appellate decision has applied harmless error analysis in this context.

         ¶ 14 In cases decided both before and after Recuenco, a majority of the federal circuits have held Apprendi/Blakely error harmless if the record shows beyond a reasonable doubt that a jury would have found the fact or facts relied on to aggravate, had the jury been asked to do so. See, e.g., United States v. Mann, 786 F.3d 1244, 1251-52 (10th Cir. 2015); United States v. King, 751 F.3d 1268, 1278-80 (11th Cir. 2014); United States v. Harakaly, 734 F.3d 88, 95-97 (1st Cir. 2013); United States v. Salazar-Lopez, 506 F.3d 748, 752-56 (9th Cir. 2007); United States v. Pittman, 418 F.3d 704, 710 (7th Cir. 2005) (applying plain error review but also concluding the error "would fall short under harmless error review as well"); United States v. Matthews, 312 F.3d 652, 665-67 (5th Cir. 2002); United States v. Strickland, 245 F.3d 368, 379-81 (4th Cir. 2001) (applying plain error and concluding, "beyond a reasonable doubt, that had the [drug] quantities been submitted to the jury, the jury's verdict would have been the same").

         ¶ 15 Many state appellate courts have reached the same result. See, e.g., Campos v. State, So.3d _, No. CR-13-1782, 2015 WL 9264157, at *6 (Ala.Crim.App.Dec. 18, 2015); Lockuk v. State, 153 P.3d 1012, 1017 (Alaska Ct. App. 2007); State v. Hampton, 140 P.3d 950, 966 (Ariz. 2006); Galindez v. State, 955 So.2d 517, 523-24 (Fla. 2007); People v. Nitz, 848 N.E.2d 982, 995 (Ill. 2006) (applying plain error); Averitte v. State, 824 N.E.2d 1283, 1288 (Ind.Ct.App. 2005); State v. Reyna, 234 P.3d 761, 773 (Kan. 2010); State v. Ardoin, 58 So.3d 1025, 1044-45 (La. Ct. App. 2011); People v. Harper, 739 N.W.2d 523, 547-49 (Mich. 2007); State v. Dettman, 719 N.W.2d 644, 655 (Minn. 2006); State v. Payan, 765 N.W.2d 192, 204-05 (Neb. 2009); State v. Fichera, 7 A.3d 1151, 1154 (N.H. 2010); State v. McDonald, 99 P.3d 667, 669-71 (N.M. 2004); State v. Cuevas, 326 P.3d 1242, 1255-56 (Or. Ct. App. 2014), aff'd, 361 P.3d 581 (Or. 2015); State v. Duran, 262 P.3d 468, 473-77 (Utah Ct. App. 2011); State v. LaCount, 750 N.W.2d 780, 797-98 (Wis. 2008).

         ¶ 16 Defendant's supplemental brief does not cite contrary authority from any jurisdiction.

          D. Application

         ¶ 17 Should we begin by considering whether any of the extraordinary aggravating circumstances the trial court identified in aggravating the sentences is either Blakely-compliant or Blakely-exempt, as "[o]ne Blakely-compliant or Blakely-exempt factor is sufficient to support an aggravated sentence"? Lopez, 113 P.3d at 731. Defendant invites us to do so and argues that we should answer "no" because, while the jury found some of the facts on which the court relied to impose aggravated range sentences, the court violated Blakely and Apprendi by using facts found on only one count to aggravate the sentence on a different count. Specifically, the jury's determinations were as follows:

● By finding defendant guilty of manslaughter, the jury concluded that he had recklessly caused the death of another person. But the jury's verdict on this count did not determine that defendant used a weapon, tampered with evidence, fired eight times, fired into a car occupied by two people, or fired while the car was driving away.
● In finding the defendant guilty of illegal discharge of a weapon, the jury did not determine that someone had died or that defendant had tampered with evidence of the illegal discharge.
● And the jury did not determine that someone had died when finding defendant guilty of tampering with evidence.

         ¶ 18 Following this path would eventually require us to reconcile possibly inconsistent decisions of divisions of this court. Compare People v. Glasser, 293 P.3d 68, 79-80 (Colo.App. 2011) (Trial court impermissibly aggravated the defendant's sexual assault sentence based on jury interrogatory answer that the defendant used a weapon to perpetrate a kidnapping, explaining that "the jury did not find that defendant used the deadly weapon during the kidnapping."), with People v. Bass, 155 P.3d 547, 554-55 (Colo.App. 2006) (upholding aggravation of "use of a stun gun" offense based on "elderly" element of concurrent conviction for robbery of an at-risk adult).

         ¶ 19 Instead of picking a winner between these cases, neither of which contains significant analysis, we assume, but do not decide, that, for the reason defendant argues, the trial court committed an Apprendi/ Blakely error. Then we consider whether this assumed error was harmless beyond a reasonable doubt. For the following reasons, we conclude that it was.

         ¶ 20 First, uncontroverted and incontrovertible evidence proved that the victim had died - a fact the trial court relied on when aggravating defendant's sentences for illegal discharge and tampering. Indeed, defendant admitted this fact by pleading self-defense. See People v. Roadcap, 78 P.3d 1108, 1113 (Colo.App. 2003) ("Self-defense is an affirmative defense under which a defendant admits doing the act charged, but seeks to justify, excuse, or mitigate his or her conduct."). We conclude beyond a reasonable doubt that had a special interrogatory been submitted as to either the illegal discharge and tampering charges, a reasonable jury would have found - in the trial court's words at sentencing - that "[s]omebody died."

         ¶ 21 Second, overwhelming evidence showed defendant's use of a handgun - a fact the trial court relied on when aggravating defendant's sentence for manslaughter. Surveillance footage introduced by the prosecution showed someone repeatedly firing at a car as it drove away. During his testimony, defendant acknowledged that he had shot at the car with the victim and another person inside. The medical examiner described the victim's "gunshot entrance wound to his left back." A crime lab technician explained that the bullet removed from the victim was "a .45-caliber projectile or consistent with a .45-caliber projectile, " and defendant admitted that he had fired a .45-caliber handgun the night of the shooting. ...

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