County District Court No. 12CR1020 Honorable William B. Bain,
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jud
Lohnes, Deputy State Public Defender, Denver, Colorado, for
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? 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.
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.
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.
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
● 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.
Preservation and Standard of Review
9 The Attorney General concedes that defendant preserved his
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).
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
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
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.
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
● 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
● 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
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. ...