v.

JUSTICE BOATRIGHT delivered the Opinion of the Court.

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org. ADVANCE SHEET HEADNOTE Aggravated Sentences—Due Process—Jury Trial.

This case requires the court to determine if the trial court's decision to find discretionary aggravation was compliant with Blakely v. Washington, 542 U.S. 296 (2004). In this case, the trial court relied on a jury finding beyond a reasonable doubt as to elements of offenses for which there were convictions to aggravate the defendant's sentences for concurrent convictions.

The court holds that elements of an offense for which there is a conviction are Blakely-compliant facts because they were found by a jury beyond a reasonable doubt, and, therefore, a trial court can rely on such facts to aggravate a sentence for a concurrent conviction.

Accordingly, the court of appeals' judgment is affirmed on other grounds. Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA1215 Judgment Affirmed
en banc
Attorneys for Petitioner:
Megan Ring, Public Defender
Jud Lohnes, Deputy Public Defender

Denver
, Colorado Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Brock J. Swanson, Assistant Attorney General

Denver
, Colorado JUSTICE BOATRIGHT delivered the Opinion of the Court.
JUSTICE GABRIEL
dissents, and JUSTICE HART joins in the dissent. deny Mountjoy his rights to due process and trial by jury when it relied on facts found by the jury beyond a reasonable doubt on charges related to the offenses for which the aggravated sentences were imposed. Therefore, we affirm the judgment of the court of appeals on different grounds.

We granted certiorari to review the following issues:

1. Whether Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Gaudin, 515 U.S. 506 (1995), require a jury to make the ultimate determination of "extraordinary aggravating circumstances" under Colorado's residual sentence aggravator, where the requisite finding presents a mixed question of law and fact.
2. Whether a violation of the right to jury trial on a sentence aggravator can be harmless under Washington v. Recuenco, 548 U.S. 212 (2006), where the jury probably would have found the historical facts the judge relied on in finding the aggravator was present, but there is substantial doubt the jury would have drawn the ultimate conclusion that the historical facts proved the aggravator.
3. Whether a violation of the right to a jury trial on a sentence aggravator can be harmless under Washington v. Recuenco, 548 U.S. 212 (2006), where the prosecution neither charged the aggravator in the information nor gave pre-verdict notice it sought aggravation.

I. Facts and Procedural History

¶3 This case arises from a shooting outside of a Sin City Disciples motorcycle clubhouse. On the night of the shooting, Mountjoy was working as the club's security. The victim of the shooting, V.M., participated in a fight and, as a result, was forced to leave the clubhouse. V.M. drove off with a friend, but they returned to the clubhouse shortly thereafter to reportedly retrieve a wallet he lost during the fight. In returning, the friend parked the car outside the clubhouse with the engine idling. Mountjoy testified that he was concerned that the victim had returned to retaliate. At that point Mountjoy fired eight shots in the direction of the car. As the shots were fired, the car drove away from Mountjoy. One of the fired shots struck and killed V.M. Following the shooting, Mountjoy directed other members of the club to clean up the area, and he deleted text messages from his phone that mentioned the shooting. Subsequently, the People charged based on facts that the jury had not specifically found in connection with those particular counts. ¶6 The court of appeals upheld the enhanced sentences. People v. Mountjoy, 2016 COA 86, ¶ 55, ___ P.3d ___. The majority held that even if the trial court's actions violated Blakely and Apprendi, the error was harmless because the jury would have found the facts necessary to aggravate each count specifically in connection with each count had it been asked to do so. Id. at ¶ 1. In a special concurrence, Judge Jones argued that no Blakely/Apprendi error had occurred. Id. at ¶¶ 57-68. We granted certiorari and now affirm the court of appeals' judgment on different grounds.

II. Standard of Review

¶7 We review legal questions and constitutional challenges to sentencing schemes de novo. Misenhelter v. People, 234 P.3d 657, 660 (Colo. 2010); Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).

III. Analysis

¶8 We begin by examining Mountjoy's sentencing and Colorado's aggravated sentencing scheme. Next, we discuss the constitutionality of aggravated sentencing schemes under Blakely and Apprendi, and how Colorado's scheme has been implemented to satisfy constitutional requirements. Finally, we conclude that each of Mountjoy's aggravated sentences are Blakely-compliant and therefore did not deny him his rights to due process and trial by jury.

A. Colorado's Aggravating Circumstances Scheme

¶9 Colorado's felony sentencing statute, section 18-1.3-401, provides sentencing ranges for a trial court, and such ranges are premised on the specific class of felony for which a defendant is convicted. In this case, Mountjoy was convicted of three offenses:

(1) Reckless manslaughter, a class four felony with a presumptive range of two to six years imprisonment;
(2) Illegal discharge of a firearm, a class five felony with a presumptive range of one to three years imprisonment; and
(3) Tampering with physical evidence, a class six felony with a presumptive range of one year to eighteen months imprisonment.

¶10 A trial court, however, may sentence a defendant in excess of the presumptive range if the court concludes that extraordinary aggravating circumstances are present. In that instance, the trial court can impose a sentence greater than the maximum in the presumptive range; except that in no case shall the term of the sentence exceed twice the maximum authorized in the presumptive range. See § 18-1.3-401(6). Thus, the trial court here was authorized under section 18-1.3-401(6) to sentence Mountjoy to twelve years for reckless manslaughter, six years for illegal discharge of a firearm, and three years for tampering with physical evidence. The trial court's implementation of section 18-1.3-401(6), however, must have comported with the Sixth Amendment, which guarantees, among other rights, the right to a trial by an impartial jury.

B. The Constitutionality of Colorado's Aggravating Circumstances Scheme

¶11 In 2000, the U.S. Supreme Court decided Apprendi, which held that the Sixth Amendment right to a jury trial prohibits courts from enhancing criminal sentences beyond the statutory maximum based on facts other than those found by a jury beyond a reasonable doubt. 530 U.S. at 490. The Apprendi Court noted a narrow exception to the jury-finding requirement—the fact of a prior conviction. Id. ¶12 Four years later, the Court applied Apprendi in the context of an aggravated sentencing guideline analogous to our section 18-1.3-401(6) in Blakely. 542 U.S. at 299, 301. Although the statute in Blakely did not specifically use the term "aggravating circumstances," it was functionally equivalent, providing that "[a] judge may impose a sentence above the standard range if he finds 'substantial and compelling reasons justifying an exceptional sentence.'" 542 U.S. at 299 (quoting Wash. Rev. Code § 9.94A.120(2) (2000)). In Blakely, the defendant pleaded guilty to the crime charged, and the judge, believing that the crime had been committed with "deliberate cruelty," imposed an exceptional sentence that exceeded the standard range. Id. at 298. The U.S. Supreme Court reviewed the constitutionality of that sentence. ¶13 The Blakely Court made two significant holdings regarding aggravated sentencing statutes. First, the Court held that for sentences based solely on the facts reflected in a conviction, the maximum sentence that a trial court may impose is the maximum of the presumptive range, not the aggravated range. Id. at 303-04 ("In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding defendant); People v. Bass, 155 P.3d 547, 550, 555 (Colo. App. 2006) (holding that aggravating facts can be found based on the element of a concurrent conviction). Accordingly, in order for Mountjoy's aggravated sentences to be constitutional, each sentence must be based on a fact outside of the conviction for which he was being sentenced, and that fact must have been either admitted by Mountjoy or found by a jury beyond a reasonable doubt. So, the specific question presented in this case is whether a sentence that is aggravated based on an element of a crime that arises out of the same criminal episode for which there is a separate conviction satisfies Blakely and Apprendi.

Regarding the fourth category, we note that the Lopez court defined category four as "facts regarding prior convictions." 113 P.3d at 719 (emphasis added). But Blakely defines category four more narrowly as "the fact of a prior conviction." 542 U.S. at 302 (emphasis added) (quoting Apprendi, 530 U.S. at 490). We adopt the language of Blakely and in so doing recognize that the facts used to aggravate in Lopez were Blakely-compliant, not Blakely-exempt, because they were found by a jury beyond a reasonable doubt. Id. at 301.

C. Mountjoy's Assertions

¶17 Mountjoy contends that Apprendi, read alongside United States v. Gaudin, 515 U.S. 506 (1995), requires a jury to not only find specific facts beyond a reasonable doubt, but to also make the specific determination of whether these same facts actually constitute "extraordinary aggravating circumstances" when sentencing outside of the presumptive range. In Gaudin, the defendant was charged with making false statements of material fact on Department of Housing and Urban Development ("HUD") loan documents. Id. at 508. At trial, the district court instructed the jury that, although the government had to prove that the alleged false statements were material to HUD's activities and decisions, the issue of materiality was not for the jury to decide; rather the court told the jury that the court itself would determine materiality and that "the statements charged in the indictment are material statements." Id. at 508. The jury then found Gaudin guilty. Id. at 509. Contrary to Mountjoy's argument, nowhere in Hurst does the Court state that a jury, rather than a judge, must make the legal determination of whether facts found by a jury beyond a reasonable doubt warrant aggravation. If it had, the Court would have had to overrule Blakely. It did not. That is significant because, as previously noted, the statute in Blakely is functionally equivalent to the sentencing statute in question here. Accordingly, we conclude that since Hurst did not modify Blakely it does not influence our analysis in this case.

Our conclusion that Gaudin is inapplicable here is supported by the fact that the U.S. Supreme Court does not reference Gaudin in Blakely. That omission is significant because the Blakely Court addressed a statute analogous to section 18-1.3-401(6) in light of Apprendi.

D. Application

¶25 Each of Mountjoy's aggravated sentences is constitutionally sound because each is based on at least one Blakely-compliant fact. As to the conviction for reckless manslaughter, the trial court aggravated Mountjoy's sentence based on two facts: that he used a weapon and that he tampered with evidence. These facts are category one Blakely-compliant because the jury necessarily found them beyond a reasonable doubt when it found Mountjoy guilty of the other two offenses. That is, because the jury separately found Mountjoy guilty of illegal discharge of a firearm, the jury found beyond a reasonable doubt each element of that crime, one of which was the discharge of a firearm. Similarly, because the jury separately found Mountjoy guilty of the crime of tampering with evidence, it necessarily found beyond a reasonable doubt that he tampered with evidence. ¶26 As to the conviction for illegal discharge of a firearm, the trial court aggravated that conviction based on two facts that are category one Blakely-compliant. The fact that Mountjoy's firearm discharge resulted in a death is Blakely-compliant because the jury ¶29 Notably, two facts relied on by the trial court to aggravate—that the vehicle had two occupants and that it was driving away—are neither Blakely-compliant nor Blakely-exempt. This does not influence our analysis, because the presence of one Blakely-compliant or Blakely-exempt fact renders an aggravated sentence constitutionally sound even if the sentencing judge also considered facts that were not Blakely-compliant or Blakely-exempt. Lopez, 113 P.3d at 731; see also Bass, 155 P.3d at 555.

"The Blakely rule is concerned specifically with defendants' constitutional protections in criminal proceedings, particularly the right to a jury determination, beyond a reasonable doubt, that facts exist that expose the defendant to criminal penalties." Lopez, 113 P.3d at 726. Therefore, it only matters that a fact was determined by a jury, not that the jury found the fact with regard to a specific conviction, or even that it was the same jury who rendered the conviction. See id. at 730. --------

IV. Conclusion

¶30 For the foregoing reasons, we affirm the judgment of the court of appeals on other grounds. JUSTICE GABRIEL dissents, and JUSTICE HART joins in the dissent. JUSTICE GABRIEL, dissenting. ¶31 The majority concludes that the trial court did not deny petitioner Christopher Mountjoy's rights to due process and trial by jury when it aggravated his sentence based on facts that the jury found beyond a reasonable doubt when it convicted him of the underlying charges. See maj. op. ¶ 2. Because I believe that the majority's conclusion is inconsistent with the principles set forth in Blakely v. Washington, 542 U.S. 296 (2004), Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Gaudin, 515 U.S. 506 (1995), and because I cannot say that the trial court's constitutional sentencing error was harmless beyond a reasonable doubt, I respectfully dissent.

I. Factual Background

¶32 The majority sets forth the pertinent facts and procedural history, and I need not repeat its recitation here. I would add, however, that the People never alleged in their pleadings in this case that the crimes at issue were subject to any sentence enhancers or aggravators. Nor did the People in any way suggest to the jurors that the existence of sentence aggravators was an issue before them. To the contrary, the People first gave notice of their intent to seek aggravated-range sentencing after the jury had entered its verdict. In these circumstances, it is difficult for me to see how the aggravated-range sentences that the trial court imposed in this case could have complied with Blakely and Apprendi, which, as pertinent here, required the jury to find beyond a reasonable doubt the facts supporting the sentence aggravators.

II. Analysis

¶33 I begin by setting forth the applicable law and conclude that Mountjoy's aggravated-range sentences were imposed in violation of Blakely, Apprendi, and Gaudin. I then address whether this constitutional error was harmless beyond a reasonable doubt and conclude that it was not.

A. Applicable Principles of Aggravated-Range Sentencing

¶34 The Supreme Court has held that, except for 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," unless the defendant has either stipulated to the relevant facts or consented to judicial fact-finding. Blakely, 542 U.S. at 301, 310; Apprendi, 530 U.S. at 488, 490. A "statutory maximum" 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. ¶35 For purposes of this analysis, no constitutionally significant difference exists between a fact that is an element of a crime and one that is a sentencing factor. See S. Union Co. v. United States, 567 U.S. 343, 358-59 (2012) (noting that the Government's argument "rest[ed] on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an 'element' of the offense and one that is a 'sentencing factor'"); Washington v. Recuenco, 548 U.S. 212, 220 (2006) ("[W]e have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt."); Apprendi, 530 U.S. at 478, 482-84 (same). conclusion of law that remains within the discretion of the trial court if it is based on Blakely-compliant or Blakely-exempt facts." We so concluded without ever mentioning Gaudin, and, for the reasons set forth above, I believe that this conclusion was directly contrary to Gaudin and, therefore, should be overruled. ¶43 For these reasons, unlike the majority, I would conclude that Mountjoy's aggravated-range sentences were imposed in violation of Blakely, Apprendi, and Gaudin and that the trial court therefore committed constitutional error in imposing those sentences.

B. Harmless Error

¶44 My foregoing conclusion does not end my analysis because I must next determine whether the constitutional error at issue was harmless. We review preserved constitutional trial errors, like that at issue here, for constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119. Such errors require reversal unless we can say that the error was harmless beyond a reasonable doubt. Id. Accordingly, we will reverse if we conclude that there is a reasonable possibility that the error might have contributed to the judgment. Id. ¶45 Here, the People did not allege in their pleadings in this case that the crimes at issue were subject to any sentence enhancers or aggravators. Nor was the jury given an opportunity to decide whether facts existed to support a sentence enhancement. Instead, the People first gave notice of their intent to seek aggravated-range sentencing after the jury had entered its verdict. Thus, what the jury would have done had it been asked to determine the existence of a sentence aggravator is speculative at best. beyond the statutory maximum. As a result, Mountjoy was denied his constitutional right to have a jury make the finding of extraordinary aggravating circumstances to which he was entitled. Accordingly, I cannot say that the constitutional error here was harmless beyond a reasonable doubt.

III. Conclusion

¶49 For the foregoing reasons, I believe that the aggravated-range sentences that Mountjoy received, which sentences were imposed without ever having had a jury consider whether extraordinary aggravating circumstances existed in this case, violated the principles set forth in Blakely, Apprendi, and Gaudin. I further believe that this constitutional error was not harmless beyond a reasonable doubt. I therefore would reverse Mountjoy's aggravated-range sentences and remand this case for the imposition of constitutionally valid sentences. ¶50 Accordingly, I respectfully dissent. I am authorized to state that JUSTICE HART joins in this dissent.

Because we conclude that Mountjoy's aggravated sentences satisfy Blakely and Apprendi, we do not address issues two and three, which relate to harmless error.