Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA148
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Ryan A. Crane, Senior Assistant Attorney General Denver,
Attorneys for Respondent: Megan A. Ring, Public Defender Mark
Evans, Deputy Public Defender Denver, Colorado
"Everything has to come to an end, sometime." L.
Frank Baum, The Marvelous Land of Oz 182
(1904). Today, we hope to end this protracted habeas
litigation and settle once and for all two questions that
have plagued federal and state courts in Colorado for more
than 12 years: Did Patrick Wood suffer simultaneous
convictions for first-degree felony murder (a class 1 felony)
and second-degree murder (a class 2 felony) in 1987 for the
death of the same victim? And if so, what is the appropriate
In addressing Wood's double jeopardy claim, the United
States Court of Appeals for the Tenth Circuit answered the
first question in the affirmative and addressed the second
question by conditionally granting Wood's habeas corpus
petition. As a result, it remanded the case to the federal
district court with instructions to vacate the first-degree
murder conviction and allow the second-degree murder
conviction to remain in place, unless the state district
court decided within a reasonable time which of the two
murder convictions to vacate. Unfortunately, the Tenth
Circuit misread Wood's mittimus, and that error set in
motion a Palsgrafian chain of rippling events that ultimately
landed the case before us. Wood's mittimus actually
reflected a single murder conviction: for first-degree felony
murder. Thus, no double jeopardy error existed, and no remedy
was necessary-the only error was in believing there was an
Following an order by the federal district court effectuating
the Tenth Circuit's mandate, the People filed a motion in
state district court seeking to vacate the second-degree
murder conviction. The state district court granted the
motion and issued an amended mittimus expressly stating that
the second-degree murder conviction was
vacated. Wood appealed. In a published, unanimous
decision, a division of the state court of appeals reversed
and remanded the matter with instructions for the state
district court to vacate Wood's first-degree murder
conviction and modify the amended mittimus to leave in place
the second-degree murder conviction. We now reverse.
The division hung its hat on the Tenth Circuit's belief
that the original mittimus reflected two murder convictions
for the killing of a single victim. But the Tenth Circuit
misunderstood the original mittimus. Consistent with the
state district court's decision during the sentencing
hearing to merge the two murder convictions, the original
mittimus referenced a single murder conviction (for
first-degree murder). Therefore, there was no other murder
conviction to be vacated.
Even if the Tenth Circuit accurately understood the original
mittimus, the proper remedy was to simply correct the
clerical error pursuant to Rule 36 of the Colorado Rules of
Criminal Procedure. Since the state district court has
already amended the original mittimus, albeit based on other
authority, and the amended mittimus clearly documents that
Wood was not convicted of two counts of murder, we need not
remand this matter. The state district court's amendment
of the original mittimus was akin to a correction of a
clerical mistake pursuant to Rule 36. The amended mittimus
reflects that Wood stands convicted, as he has for more than
30 years, of a single count of murder.
Given this disposition, we decline to address the merits of
the numerous conclusions reached by the division, including
with respect to the scope of a state district court's
authority. Instead, we vacate the division's opinion in
Factual and Procedural History
While robbing a pizza delivery store in 1986, Wood shot and
killed the store's assistant manager. Following a bench
trial, the state district court found Wood guilty of
committing five offenses: Count 1, second-degree murder, a
class 2 felony naming the assistant manager as the
victim; Count 2, first-degree felony murder, a
class 1 felony naming the assistant manager as the victim and
listing aggravated robbery as the predicate felony; Count 3,
aggravated robbery, a class 3 felony naming the assistant
manager as the victim; and Counts 4 and 5, felony menacing,
class 5 felonies naming two additional victims.
During the sentencing hearing, Wood's attorney addressed
the state district court first. He stated that the
first-degree felony murder and second-degree murder
convictions "merge[d]" and that the aggravated
robbery conviction then "merge[d]" into the
felony-murder conviction because aggravated robbery was the
predicate offense of the felony-murder conviction. The
Your Honor, as to Count[s]  and , it's my
understanding that they do merge and I would ask the Court to
enter judgment on the conviction for murder in the first
degree and impose the mandatory sentence of [life
imprisonment with the possibility of parole after] forty
calendar years as required by statute.
Judge, in regards [to] . . . Count , aggravated
robbery, it's also my understanding that that does merge
with the conviction for felony murder; therefore, I
don't believe that the Court is in a position to impose a
sentence on the aggravated robbery count and I'm not
asking the Court to do that.
(Emphases added.) Defense counsel did not take issue with any
of the prosecutor's comments.
The court concurred with the parties:
Well, obviously Counts  and  on the murder counts
merge, and they merge also with the aggravated robbery
count. So there [will] only be one sentence
involving Counts , [2, ] and .
And the Court would just impose a life sentence as
provided by law . . . .
(Emphases added.) Thus, the court imposed a single sentence
(life imprisonment) on Counts 1, 2, and 3. It then imposed
prison sentences of four years on Counts 4 and 5, to be
served "concurrent with the life sentence."
Wood's sentences were reflected in the original mittimus
subsequently prepared and signed by the state district court.
The original mittimus, formally titled "JUDGMENT OF
CONVICTION: SENTENCE: AND ORDER TO SHERIFF (MITTIMUS),"
read, in pertinent part, as follows:
The Defendant was arraigned in this Court upon an . . .
Information, . . . to which the Defendant entered a plea of .
. . Not Guilty, . . . was found Guilty, . . . by the Court,
of the offense(s) of[:]
Count 1, Murder in the First Degree, (convicted of second
degree murder) F-2
Count 2, Murder in the First Degree [felony murder], both
counts 1 & 2 [as charged] are C.R.S. 18-3-102, F-1
Count 3, Aggravated Robbery, C.R.S. 18-4-302, F-3
Counts 4 & 5, Menacing, C.R.S. 18-3-206, ...