CERTIFICATION OF WORD COUNT: 9,363
COURT OF APPEALS, STATE OF COLORADO
Colorado State Judicial Building
Two East 14th Avenue
Denver, Colorado 80203
District Court, Arapahoe County, Colorado
18th Judicial District,
Honorable James F. Macrum, Jr., Judge
97XXXX
THE PEOPLE OF THE STATE OF COLORADO
Plaintiff-Appellee
v.
ACCUSED CITIZEN
Defendant-Appellant
Esteban A. Martinez
Martinez Law, LLC
2101 Ken Pratt Blvd
Suite 200
Longmont, CO 80501
Main Office: 303-452-4031
Fax: 303-827-2473
E-mail: estebanlaw@msn.com
Atty.Reg.: #30921
COURT USE ONLY
Case Number: XXXXXX
DEFENDANT’S OPENING BRIEF
INTRODUCTION
The Defendant-Appellant, Accused Citizen (“Mr. Citizen”) was the defendant
in the trial court and will be referred to by name or as the defendant. PlaintiffAppellee, the State of Colorado, will be referred to as the state, the district attorney
and/or the prosecution. Numbers in parentheses refer to the volume and page
number of the record on appeal (e.g., v1, p. 45). Further, citations to envelope
contents of this appellate record will indicate the number or name of the envelope as
designated on each envelope and the name of the cited envelope material (e.g.,
Envelope #5, People’s Exhibit 1).
STATEMENT OF THE ISSUES PRESENTED
I.
Whether the trial court violated Mr. Citizen’s federal and and state
constitutional rights to due process and thereby commited reversible error because
it denied as successive Mr. Citizen’s postconviction motion even though (1) the
motion was timely (2) it set forth averments which, if accepted as true, provided a
basis for relief and (3) the court denying the motion as successive was incorrect
as a matter of fact and law?
II.
Whether the trial court committed reversible error when it refused to apply
Apprendi v. New Jersey1 to Mr. Citizen’s Crim. P. 35(a) petition and find his
sentence illegal, thus violating Mr. Citizen’s rights to the Sixth Amendment jury
trial guarantee and due process under the Fourteenth Amendment of the United
States Constitution and Article II, § 25 of the Colorado Constitution, even though
the basis for refusing to apply Apprendi was incorrect as a matter of fact and law?
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
STATEMENT OF THE CASE AND FACTS
Conviction and Sentencing
On March 20, 1998, a jury found Mr. Citizen guilty of 1st degree assault with a
deadly weapon2 and aggravated robbery wounding or threatening the victim3 and that
his alleged 1st degree assault and aggravated robbery were violent crimes4 (v13,
March 20, 1998, Court Reporter Marilyn Diggs, pp. 23-26). On July 24, 1998, the
court sentenced Mr. Citizen to prison for 28 years for the 1st degree assault conviction
and 30 years for the aggravated robbery conviction to run consecutively (v2, p. 339).
During the sentencing hearing the trial court stated that the crimes were “mandatory
risk” crimes which required mandatory sentencing (v14, p. 24).
Jury Deliberations
The jury struggled in reaching a consensus on Mr. Citizen’s conviction,
especially concerning the credibility of terminally ill Officer Williams – the
government’s sole eye witness whose testimony was taken via deposition and who
died prior to trial – due to the evidence of his drug intake and health conditions (as
set forth infra), at the time of the alleged crime and during his testimony (v1, pp.
242-243; v13, March 19, 1998, p. 11). In fact, jury deliberations began on
Thursday morning, March 19, 1998 and continued until about 5:00 P.M. on Friday,
March 20, 1998 (v13, March 19 and 20, 1998, pp. 1-39; 1-30; 1-7).
2
F3 in violation of § 18-3-202(1)(a), C.R.S. (1997).
F3 in violation of § 18-4-302(1)(b), C.R.S. (1997).
4
Sentence enhancer pursuant to § 16-11-309, C.R.S. (1997).
3
3
On March 19, 1998, at about 3:30 p.m., the jury wrote two notes to the court
(v1, pp. 243; 245; v13, March 19, 1998, pp. 10-11). The first requested: “May we
look at Officer Williams’ deposition testimony?” (v1, p. 243). The second stated:
We are struggling with coming to agreement with the credibility of
Officer Williams’ testimony. We have been debating this issue for
most of the day. Since this testimony is key to coming to a consensus
[sic] we believe that coming to a verdict will be difficult. Convictions
remain firm on both sides. Due to evidence provided and its
interpretation by individual jurors we are concerned that a verdict may
not be attainable.
(v1, pp. 243; v13, March 19, 1998, p. 11).
Via note, the court responded: “The court must ask you weather [sic] you
are making any progress towards a unanimous verdict or you are deadlocked?” (v1,
p. 245). The jury responded “Deadlocked” and the court called the jury in and
recited to it modified Allen5 instructions (v1, p. 245; v13, March 19, 1998, pp. 2223).
After a recess, the jury asked to “Hear taped interview of Officer Williams,
need audio equipment… Hear all three depositions of Officer Williams read, if
possible, by impartial parties” (v13, March 19, 1998, p. 24).
On Friday, March 20, 1998, jury deliberations continued with the jury
listening to the taped interview of Officer Williams (v13, March 20, 1998, pp. 1-
5
Derived from Allen v. People, 660 P. 2d 896 (Colo. 1983).
4
11). Further, the jurors were re-read Officer Williams’ depositions (v13, March
20, 1998, Court Reporter Valeri Barnes, pp. 1-7).
Prior to reaching a verdict, the jury wrote to the court another note:
Deliberations have broken down. We find ourselves attacking each
other not allowing the [sic] us to move toward a verdict. We do not
know where to go from here. We have examined all the evidence
given to us and still are deadlocked. We don’t know what else to look
at.
(v1, p. 242).
The First Appeal
On July 17, 1998 Mr. Citizen filed a timely “Appellant’s Notice of Appeal”
(v2, pp. 330-332). A panel of this Court issued its opinion on March 30, 2000
affirming Mr. Citizen’s conviction (v2, pp. 341-356). Mr. Citizen filed a petition
for writ of certiorari with the Colorado Supreme Court which was denied on
September 5, 2000 (v2, p.362). A panel of this Court issued the mandate for Mr.
Citizen’s appeal on September 15, 2000, eighty-one days after the United States
Supreme Court issued its opinion in Apprendi, supra, which was decided on June
26, 2000 (v2, p. 363).
5
The Original 35(c) Motion and Appointment of Counsel
On August 20, 2001, Mr. Citizen, via counsel, filed the “Motion for
Postconviction Relief Pursuant to Crim. P. Rule 35(c)”6 (hereinafter “Original
35(c) Motion”) which, inter alia, informed the court of the need to supplement and
amend the motion (v2, pp. 428-430). Because Mr. Citizen’s conviction became
final when the mandate for his case issued on September 15, 2000, he had until
September 15, 2003 to file his 35(c) petition (v2, pp. 363-379). C.R.S. § 16-5402(1) (1998).
Mr. Citizen’s postconviction review process was not presided over by Judge
Macrum, the trial judge, but instead by three other judges, Judge Rafferty, Judge
Sylvester and Judge White (see vv1-2). Judge Sylvester did not preside over the
matter until the summer of 2005 (v2, pp. 585-590) (v2, pp. 579-581)(see v2).
Judge White did not receive the case until it was transferred from Division 408 to
Division 401 in February 2006 (v2, pp. 614-616).
The Original 35(c) Motion raised numerous factual allegations and stated in
pertinent part as follows:
5.
This motion arises out of substantial ineffective assistance of
counsel issues . . . including . . .:
a.
The victim’s eyewitness identification was the sole
evidence against Citizen. Because of the victim’s
Attached as Appendix A for the benefit of this Court’s access given the difficulty undersigned had in reviewing it
in the flat file.
6
6
terminal illness, the victim’s testimony was
preserved by deposition. Because of the victim’s
fragility, including the ingestion of narcotics for
pain, the deposition took place over a period of
several weeks. Trial counsel failed to adequately
investigate whether the victim was competent to
testify because of his terminal illness and pain
medication.
b.
Because the alleged crimes occurred when the
victim was also ill and under the influence of
narcotics, trial counsel should have, but failed to
determine whether the victim was competent to
make a proper identification at the time of the
assault;
c.
Trial counsel should have, and failed to, consult
experts skilled in eyewitness identification and
medication and pain issues, including an
intoxication expert. . . .
e.
Trial counsel failed to pursue a viable alternate
suspect theory;
f.
Trial counsel inadequately investigated alibi
witnesses. . . .
(v2, pp. 428-430).
The state did not respond to the Original 35(c) Motion until August
31, 2005 (v2, pp. 555-557).
7
Preparation for Amended Motion and Record Review
On February 7, 2002, the trial court7 issued a minute order concerning Mr.
Citizen’s Original 35(c) Motion stating: “Defense attorney will do a notice to set”
(v2, p. 439). Between March 5, 2002 and March 5, 2004, Mr. Citizen, via counsel,
attempted to obtain the record for the purpose of supplementing the Original 35(c)
Motion (vv1-2).
On March 5, 2002, Mr. Citizen filed a “Motion to Borrow State Records for
Purposes of Preparing Supplemental Motion for Postconviction Relief Pursuant to
Crim. P. 35(c) and Motion to Set Hearing After Filing Supplemental Motion” (v2,
pp. 440-442). On March 13, 2002 the court8 issued an “Order Granting
Defendant’s Motion to Borrow State Records for Purposes of Preparing
Supplemental Motion for Postconviction Relief Pursuant to Crim. P. 35(c) and
Motion to Set Hearing After Filing Supplemental Motion” (v2, pp. 443-444).
Mr. Citizen obtained part of the record (volumes one and two) for purposes
of supplementing the Original 35(c) Motion as evinced by the “Receipt for
Volumes 1 & 2” filed on April 9, 2002 (v2, p. 447). On April 25, 2002, Mr.
Citizen filed a “Defendant’s Motion to Unseal Juror Information” and on April 26,
2002, he obtained from the district court, for the purpose of amending the Original
7
8
Judge Rafferty.
Judge Rafferty.
8
35(c) Motion, 15 transcripts as evinced by the “Receipt for 15 Transcripts” filed on
April 26, 2002 (v2, pp. 448-450)(v2, p. 549).
On June 6, 2002, Mr. Citizen filed with the court a “Motion for Extension of
Time to Borrow State Records for Purposes of Preparing Supplemental Motion for
Postconviction Relief Pursuant to Crim. P. 35(c)” (v2, pp. 458-460).
A July 10, 2002 minute order9 stated, “Orders: Def may retain the record
until close of business on 8/9/02; Motion for disclosure of juror questionnaires is
denied; Motion for disclosure of jury instructions and jury verdict is granted” (v1,
p. 28). The court granted another extension on access to the record in an August
12, 2002 minute order which stated, “Order: Record due back by court on 8/26/02”
(v1, p. 30).
The court continued to allow Mr. Citizen, via counsel, to obtain and review
the record for the purpose of amending the Original 35(c) Motion as late as March
2004 as evinced by a “Receipt for Exhibits and Transcripts” filed by the court on
March 5, 2004 (v2, p. 552).
The Amended 35(c) Motion
Mr. Citizen filed an “Amended Motion for Postconviction Relief Pursuant to
Crim. P. Rule 35(c), and Relief from Illegal Sentence Pursuant to Crim. P. 35(a)”10
(hereinafter “Amended 35(c) Motion”) on July 6, 2005 (v2, pp. 469-548). The
9
Judge Rafferty.
Attached as Appendix B for the benefit of this Court’s access given the difficulty undersigned had in reviewing it
in the flat file.
10
9
Amended 35(c) Motion completed the Original 35(c) Motion by providing expert
analysis and proffered expert testimony necessary to support the constitutional
issues of ineffective assistance of counsel and illegal sentencing (v2, pp. 469-548).
Prior to denial of Mr. Citizen’s motion for postconviction relief, he
supplemented the Amended 35(c) Motion with the “Affidavit of Hugh Furman,”11
a legal expert, who reviewed the performance of Mr. Citizen’s trial counsel and
found it “constitutionally deficient” (v2, pp. 561-574).
The Amended 35(c) Motion alleged that Mr. Citizen’s trial counsel12 was
constitutionally ineffective because he failed to: (a) conduct a sufficient pretrial
investigation of whether Officer Williams’ was competent to testify at his
deposition; (b) sufficiently investigate Officer Williams’ mental state for the
purpose of supporting the trial strategy elected by the defense; and (c) employ an
expert to assist the jury in assessing Officer Williams’ mental state. The motion
also alleged that Mr. Citizen’s appellate counsel13 was constitutionally ineffective
because she failed to raise: (a) the claim that the trial court abused its discretion in
finding Williams competent to testify; and (b) the structural error claim that the
trial court failed to acknowledge the second jury deadlock and thus deprived Mr.
Citizen of the opportunity to move for a mistrial.
11
Attached as Appendix C.
John Portman, Deputy State Public Defender.
13
Janet Youtz, Deputy State Public Appellate Defender.
12
10
Constitutionally Ineffective Trial Counsel
(a) Trial counsel failed to conduct a sufficient pretrial investigation of whether
officer Williams was competent to testify at his deposition.
Prior to trial, the prosecution, via written motion, sought to depose Officer
Williams because he was the only eyewitness to Mr. Citizen’s alleged crime and he
was terminally ill with cancer during the pre-trial investigation (v1, p. 40; v1, p. 75).
The trial court set the deposition for May 24, 1997, two days after the prosecution
filed charges (v1, pp. 34; 65-66).
The question of competency arose because Officer Williams, the
government’s only eyewitness and the alleged victim in the case, was
“experiencing, and expected to experience problems with lucidity” throughout his
deposition, which he gave in three parts on May 24, June 2, and June 14, 1997 (v1,
p. 74; v2, pp. 514-519). Mr. Citizen noted that on May 22, 1997, defense counsel
requested a determination of Officer Williams’ competency pursuant to CRE 601
and C.R.S. § 13-90-106(1)(a) (v2, p. 514). Mr. Citizen also noted that on May 24,
1997, before the deposition began, the court conducted a competency inquiry at
which Officer Williams was allowed to assess his own competency and that trial
counsel never objected to this self-assessment (v2, p. 514). The Amended 35(c)
Motion further alleged that, during the May 24, 1997 competency inquiry, Officer
Williams told the court that he had ingested two powerful narcotics, morphine and
11
Dilaudid, that he had taken those drugs every four hours for a month, that he did
not know how much of the drugs he was ingesting and that he was taking other
drugs, of which he did not know the names (v2, p. 517). The court, according to
Mr. Citizen, made no further inquiry to determine the significance of Officer
Williams’ drug statements and trial counsel made no objection or further challenge
to Officer Williams’ competency (v2, p. 517). Mr. Citizen also alleged that the
deposition was interrupted and discontinued at the request of the prosecution when
Officer Williams could not comprehend a simple question and had to stop to ingest
morphine (v2, p. 517).
The Amended 35(c) Motion also alleged that on June 2, 1997, despite
Officer Williams having informed the court and trial counsel that he had ingested
at least three drugs prior to arriving at court, the court told Officer Williams that it
was not necessary that he remember what medications he was ingesting then
allowed Officer Williams to assess his own competency for the second time (v2, p.
517). This time, according to the motion, defense counsel did not even question
Officer Williams (v2, p. 518). Further, the motion noted that the prosecution
requested to discontinue the June 2, 1997 deposition so Officer Williams could
recuperate when he became confused (v2, p. 518).
At the June 14, 1997 deposition, according to the Amended 35(c) Motion,
the court’s assessment of Officer Williams’ competency to continue his deposition
12
amounted to whether he was oriented to person, place and time and included no
question regarding whether Officer Williams was on medication (v2, pp. 518-519).
The motion further alleged that, despite having received Officer Williams’
medical records on June 2, 1997, trial counsel failed to investigate the series of
medications Officer Williams was taking, failed to employ an expert to review the
medical records and failed to make any other effort to understand the effect of
Officer Williams’ drug intake (v2, p. 519). Moreover, the motion alleged that
Officer Williams’ medical records would have revealed that he had never taken
Dilaudid or, besides morphine, any of the other drugs he testified to have taken and
that the medical records showed that, on the day of the incident in question and
throughout Officer Williams’ deposition, he was ingesting an extensive series of
Central Nervous System (CNS) drugs with known adverse side effects on normal
thinking processes and cognitive functioning (v2, pp. 519-520).
Unremarkably, the Amended 35(c) Motion alleged that Officer Williams’
drug statements alone would have alerted a reasonably competent trial attorney to
the necessity of consulting an expert, such as Dr. Morton,14 who would have
advised the court and trial counsel that “Officer Williams was undergoing a
complicated drug regimen that involved an extensive series of CNS drugs with
known adverse side effects that produced interference with memory,
14
William Alexander Morton, Jr., Pharm.D., a psychopharmacologist specializing in medication and the side effects
of medication.
13
comprehension, awareness, attention and orientation” and who attested to this via
an affidavit attached to Mr. Citizen’s Amended 35(c) Motion (v2, pp. 520-521;
546-547). The motion further alleged that Dr. Morton would have testified to the
necessity of Officer Williams being given a psychiatric evaluation prior to
testifying (v2, p. 521).
The motion also alleged that, as the deposition unfolded, Officer Williams
had trouble understanding questions, gave confusing, conflicting and contradictory
answers, and could not remember, recall or relate facts and events and that a
reasonably competent trial attorney would have objected to the court’s
determination of competency or moved for a psychiatric evaluation based on
Officer Williams’ deposition performance, but that trial counsel did neither (v2, p.
521).
Mr. Citizen concluded this part of the motion with the following allegations:
Had defense counsel investigated Williams’ competency by moving
for a psychiatric examination of Williams’ or consulting and
employing an expert to assist the court in assessing competency, there
is a reasonable probability, based on the cognitive functioning
problems he was experiencing as a result of his drug regimen and
intake, Williams would have been found incompetent to testify.
Williams was suffering from . . . interference with memory, thought
processes, calculation, perception, judgment, comprehension,
awareness, attention and orientation – all factors that go directly to the
question of competency – and, during the deposition, demonstrated
that he could not reliably relate the facts and events of May 15, 1997.
14
The prejudice to Citizen cannot be over stated. Had Williams been
found incompetent to testify, the case against Citizen would not have
proceeded to trial.
(v2, p. 521).
(b) Trial counsel failed to sufficiently investigate Officer Williams’ mental state for
the purpose of supporting the trial strategy elected by the defense.
To support the claim that his trial counsel failed to sufficiently investigate
Officer Williams’ mental state, Mr. Citizen alleged that although the trial strategy
of the defense was that Officer Williams had “misidentified Citizen as his attacker
because Williams was confused as a result of the morphine he was ingesting . . .
[trial counsel] failed to conduct any investigation into the medications Williams
was ingesting” (v2, p. 476). The motion stated:
At trial . . . defense counsel relied solely on their own inadequate lay
assessment of the effects of morphine. They went to trial with no
more information about the drug than the manufacturer’s general
cautions regarding confusion as a possible side effect of morphine. No
reasonable professional judgment can support the lack of investigation
into the medications Williams was ingesting. . . .
(v2, p. 476).
The motion concluded the discussion of trial counsel’s failure to investigate
Officer Williams’ mental state with the following:
Defense counsel had a duty to make a reasonable investigation into
Williams’ mental state. . . The defense strategy was to attack the
reliability of Williams’ identification of Citizen because he was
15
confused as a result of the morphine he [was] ingesting – but counsel
failed to conduct the investigation that was critical to the defense.
Defense counsel made the strategic choice to argue that Williams was
confused without any investigation into the relevant law and facts of
the case. The investigation that should have been done occurred to
counsel far too late to assist Citizen. During jury deliberations, after
the jurors informed the court that they could not come to agreement
about Williams’ credibility and their deliberations were deadlocked,
lead counsel turned to the defense investigator and said, “I told you
this wasn’t a slam dunk case. If we get a mistrial, we’ll get a
toxicologist and an identification expert to come in on the next one.”
(v2, p. 478).
(c) Trial counsel failed to employ an expert to assist the jury in assessing Officer
Williams’ mental state.
The third phase of Mr. Citizen’s ineffective assistance of trial counsel claim
focused on defense counsel’s failure to “[offer] an expert in medication and the
side of effects of medication to assist the jury in their required assessment of
William’s mental state” (v2, p. 478). The issue of the necessity of expert
involvement on behalf of the defense arose from: (1) trial counsel’s failure to
cross-examine the prosecution’s expert and lay witnesses on important and
persuasive facts; and, (2) trial counsel’s general ignorance of Officer Williams’
extensive drug regimen and its effects (v2, pp. 8, 10). Mr. Citizen’s motion
included detailed allegations concerning facts ignored by trial counsel during the
16
examinations of the treating physician,15 the emergency physician16 and a charge
nurse17 at Officer Williams’ hospice (v2, pp. 478-479).
First, during direct examination by the prosecution, the treating physician
noted only two medications Officer Williams was taking that, in his opinion,
“would likely” cause mental impairment (v2, p. 479). The medications he noted
were Zoloft and Haldol (v2, p. 479). On cross-examination of the treating
physician, defense counsel merely established that Haldol was an antinausea
medication (v2, p. 479). According to the Amended 35(c) Motion, trial counsel
neglected to establish that Haldol is actually a powerful tranquilizer with numerous
side effects that operates on the central nervous system (CNS) (v2, p. 479).
Second, the emergency physician testified that he used the Glasgow Coma
Scale, an assessment to determine whether a patient is neurologically impaired, on
Officer Williams and that Officer Williams received the highest score possible (v2,
p. 479). The motion noted that, on cross-examination defense counsel failed to
inquire about the limitations of the Glasgow Coma Scale in detecting problems
with mental functioning (v2, p. 479). According to Mr. Citizen, if trial counsel
would have been prepared on this point it could have established that the Glasgow
Coma Scale was universally understood by medical experts to be “insensitive to
15
Nicholas Dibella, M.D., specialist in oncology.
Peter Burke Pruett, M.D., specialist in emergency medicine.
17
Katherine G. Mackey, R.N., nurse at Hospice of Metro Denver Care Center.
16
17
subtle but significant alterations in mental function” and that further testing often
revealed significant impairment even in patients with the highest score (v2, pp.
479-480).
Third, after the emergency physician stated that Officer Williams did not
appear “intoxicated” trial counsel failed to differentiate between intoxication,
which occurs from an overdose of medication, and side effects, which occur at any
dosage (v2, p. 480).
Lastly, the charge nurse testified that Officer Williams took Ativan
regularly, that Ativan is an antianxiety agent and that it may help the morphine
work more efficiently (v2, p. 480). The Amended 35(c) Motion noted that, on
cross-examination, trial counsel failed to inquire about Ativan, a CNS drug with
numerous side effects including confusion and amnesia (v2, pp. 480-481).
Further, Mr. Citizen alleged in the motion that his defense counsel failed to
request jury instructions which would help the jury differentiate between the
expertise of the medial professionals and lay witnesses on one hand, and an expert
in medication and medication side effects on the other (v2, pp. 481-482).
According to the Amended 35(c) Motion, if Mr. Citizen’s defense counsel
had employed an expert in medications such as Dr. Morton, discussed supra, that
expert would have testified that the series of medications Officer Williams was
18
ingesting were CNS drugs which have a “significant impact on the central nervous
system – and that each of these drugs [had] a marked adverse effect on behavioral
and cognitive functioning” (v2, p. 482). According to Mr. Citizen:
Dr. Morton would have informed the jury that medications, which
have central nervous system activity, can have marked adverse effects
on cognitive functioning, which includes memory, judgment, vision,
attention, concentration, comprehension, and decision-making.
(v2, pp. 482-484).
The Amended 35(c) Motion further alleged that Dr. Morton would have
testified that as a result of the drugs Officer Williams was “ingesting, in
conjunction with the worsening condition of his colon and liver, he was operating
in a perpetually altered mental state of ‘abnormal thinking’ ” (v2, pp. 484-485).
The motion also alleged that Dr. Morton’s testimony would have concluded as
follows:
. . . that based on Williams' medical records, deposition testimony, and
facts adduced at trial, in [Dr. Morton’s] opinion, Williams could not
reliably perceive, recall or relate the events of May 15, 1997.
(v2, p. 491).
Indeed, according to the Amended 35(c) Motion, Dr. Morton would have
identified in the record no less than “94 incidents of probable adverse side effects
that in his opinion, within a reasonable medical certainty would have produced
significant changes in Officer Williams’ mental functioning including interference
19
with memory, thought processes, calculation, perception, judgment,
comprehension, awareness, attention and orientation” (v2, p. 491). Mr. Citizen
alleged:
This was not a case in which the evidence of guilt was, or would
likely remain, so strong as to preclude any reasonable probability that
the result would have [been] different. There was no physical
evidence that tied Citizen to the crime and no first-hand witness other
than Williams; there was evidence that a person who more closely fit
Williams’ initial description of the attacker was in the area; evidence
that Citizen did not appear to have engaged in an altercation or was
anxious distressed in any way; and, Citizen insisted on his innocence.
Further, testimony of witnesses as to Williams’ mental state does not
conflict with the evidence that would have been available at trial from
an expert in medications and their effects.
(v2, pp. 571; 511).
The Amended 35(c) Motion underscored the prejudice to Mr. Citizen’s case
resulting from ineffective assistance of counsel by informing the court of the
difficulty the jury had in returning a verdict (v2, p. 513). It noted that the jury had
a tremendously difficult time with Williams’ credibility, and “deadlocked twice
during their deliberations – first, just after beginning deliberations, and again just
before returning a verdict” (v2, p. 513). Further, Mr. Citizen alleged that prior to
acknowledging “deadlock” for the second time, the jury had requested and
reviewed a significant portion of the trial evidence and also requested more
guidance on reasonable doubt (v2, p. 513). This part of the Amended 35(c) Motion
concluded:
20
The question is not whether the jury found Williams credible enough
to convict, but whether they would have done so had they known the
extent and complications of his drug regimen. There is a reasonable
probability that had the jury had the benefit of Dr. Morton’s expertise
and opinion the outcome of the trial would have been different.
(v2, p. 513).
Constitutionally Ineffective Appellate Counsel
(a) Appellate counsel failed to raise the claim that the trial court abused its
discretion in finding Williams competent to testify.
To support this claim, the Amended 35(c) Motion asserted that appellate
counsel should have raised on appeal the claim that the trial court abused its
discretion in finding Officer Williams competent to testify because it never
investigated the significance of Officer Williams’ statements that he was regularly
ingesting morphine along with other narcotics (v2, pp. 525-526).
The motion alleged that the trial court’s duty, “at the very least, [was] to
determine whether a witness can reliably perceive, recall and relate facts and
events” (v2, p. 526). Mr. Citizen alleged that the trial court abused its discretion
when it: (1) limited its assessment to an inquiry of orientation as to day, time and
place; (2) ignored Officer Williams’ statement that just prior to the deposition he
had ingested two powerful narcotics, morphine and Dilaudid; (3) ignored Officer
Williams’ statements that he had been ingesting drugs every four hours for a
21
month; (4) ignored Officer Williams’ statements that he had no idea how much of
the drugs he was ingesting and did not know the names of the three other drugs he
stated he was taking; and (5) allowed Officer Williams to assess his own
competency (v2, pp. 526).
The Amended 35(c) Motion stated that reasonable professional judgment
required appellate counsel to raise the issue that the trial court abused its discretion
with respect to Officer Williams’ (v2, p. 528). Specifically, the motion alleged that
appellate counsel should have argued that “the trial court had a duty, sua sponte, to
examine the significance of Williams’ drug intake and failed to do so” (v2, p. 528).
According to Mr. Citizen, but for appellate counsel’s unprofessional errors there is
a reasonable probability that the outcome of the appeal would have been different
(v2, p. 528).
(b) Appellate counsel failed to raise the structural error claim that the trial court
failed to acknowledge the second jury deadlock and thus deprived Mr. Citizen of
the opportunity to move for a mistrial.
To support this claim, the Amended 35(c) Motion alleged that appellate
counsel failed to advise the court of appeals that significant parts of the record
were missing including a transcript indicating that the trial court acknowledged
a note from the jurors indicating a second affirmation that the jurors were
deadlocked (v2, pp. 529-530). According to the Amended 35(c) Motion:
22
This note came after the jury had already once informed the court that
it was deadlocked, and the court instructed the jury to continue
deliberating. The jury thereafter re-examined the evidence and then
informed the court that it was “still deadlocked.” Without addressing
the note, the trial court allowed the jury to continue deliberating until
it reached a verdict.
(v2, p. 529).
According to Mr. Citizen, a reasonable probability existed that this Court
would have agreed that the trial court should have declared a mistrial if this Court
knew that the trial court did not acknowledge the note from the jury (v2, p. 530). It
was further alleged that if this Court had not found reversible error in the trial
court’s failure to acknowledge the second jury deadlock and declare a mistrial, this
Court would have nonetheless reversed because Mr. Citizen was not given the
chance to move for a mistrial (apparently because the judge failed to acknowledge
the second deadlock), a fact which constituted structural error requiring automatic
reversal (v2, p. 530).
The Requests for a Postconviction Hearing and Orders of Denial
On December 27, 2005, Mr. Citizen filed a “Request for Order and Hearing
Date Re: Amended Motion for Postconviction Relief Pursuant to Crim. P. Rule
35(c), and Relief From Illegal Sentence Pursuant to Crim. P. Rule 35(a)” (v2, pp.
575-576).
23
On January 5, 2006, Judge Sylvester issued an order denying the Amended
35(c) Motion without a hearing stating that Mr. Citizen’s 35(c) petition was not
timely and that the 35(a) claim failed because Apprendi, the legal basis for the
35(a) motion, could not be retroactively applied to Citizen’s case (v2, pp. 577578).
On February 3, 2006, Mr. Citizen, with respect to Judge Sylvester’s order
denying his Amended 35(c) Motion, filed a “Motion to Vacate Order and Enter a
New Order, and Request for Ruling Hereon Forthwith” (v2, pp. 591-593). In this
motion, Mr. Citizen alleged that the Original 35(c) Motion had been timely filed,
reserved the right to supplement without objection and noted that the court had
granted the request to supplement and an evidentiary hearing upon the
supplement’s completion (v2, pp. 591-593).
On February 9, 2006, Judge Sylvester vacated his order denying Mr.
Citizen’s postconviction motions issuing the “Order Vacating Courts Order of
1/5/06” (v2, p. 597). The February 9, 2006 order stated “THIS COURT hereby
VACATES its Order of 1/5/05 [sic] as this case is assigned to division 401 in
Arapahoe County District Court. All further pleadings should be directed to
division 401. Accordingly, the Court VACATES its order of 1/5/05 [sic]” (v2, p.
597).
24
On February 16, 2006, Mr. Citizen filed a “Second Request for Order and
Hearing Date Re: Amended Motion for Postconviction Relief Pursuant to Crim. P.
Rule 35(c), and Relief from Illegal Sentence Pursuant to Crim. P. Rule 35(a)” (v2,
pp. 601-602). On April 18, 2006, he filed a “Third Request for Order and Hearing
Date Re: Amended Motion for Postconviction Relief Pursuant to Crim. P. Rule
35(c), and Relief from Illegal Sentence Pursuant to Crim. P. Rule 35(a)” (v2, pp.
599-600).
On September 19, 2006, Judge White issued an order that denied Mr.
Citizen’s 35(c) and 35(a) claims without a hearing stating that Apprendi could not
be applied retroactively and that Mr. Citizen’s 35(c) petition was “successive” (v2,
pp. 614-616). In pertinent part the court wrote:
This is Defendant’s Third Motion to Request for Order and Hearing
Date Re: Amended Motion for Postconviction Relief pursuant to
Crim. P. Rule 35(c), and Relief from Illegal Sentence Pursuant to
Crim. P. Rule 35(a). An Order as issued on January 5, 2006 denying
Defendant’s Motion for Postconviction Relief. . . .
The court need not entertain a second motion or successive motions
for similar allegations on behalf of the same prisoner. . . .
(v2, pp. 614-615)
Mr. Citizen appeals the order denying his 35(c) petition without a hearing
seeking a remand for a hearing on the claims of ineffective assistance of trial and
appellate counsel and a ruling on the merits regarding his 35(a) claim.
SUMMARY OF THE ARGUMENT
25
The trial court violated Mr. Citizen’s federal and and state constitutional
rights to due process and thereby commited reversible error because it denied as
successive Mr. Citizen’s postconviction motion even though (1) the motion was
timely (2) it set forth averments which, if accepted as true, provided a basis for
relief and (3) the court denying the motion as successive was incorrect as a matter
of fact and law.
Further, the trial court committed reversible error when it refused to apply
Apprendi v. New Jersey to Mr. Citizen’s Crim. P. 35(a) petition and find his
sentence illegal (thus violating Mr. Citizen’s rights to the Sixth Amendment jury
trial guarantee and due process under the Fourteenth Amendment of the United
States Constitution and Article II, § 25 of the Colorado Constitution) because the
basis for refusing to apply Apprendi was incorrect as a matter of fact and law.
ARGUMENT
I.
The trial court violated Mr. Citizen’s federal and and state
constitutional rights to due process and thereby commited reversible error
because it denied as successive Mr. Citizen’s postconviction motion even
though (1) the motion was timely (2) it set forth averments which, if
accepted as true, provided a basis for relief and (3) the court denying the
motion as successive was incorrect as a matter of fact and law.
A.
Standard of Review
Because the controlling facts of the record here can not be disputed, the legal
effects of those facts constitute a question of law which is subject to de novo review.
People v. Humphrey, 132 P.3d 352, 360 (Colo. 2006).
26
B.
Analysis
Postconviction proceedings have a dual purpose: “to prevent constitutional
injustice and to bring finality to judgment.” Edwards v. People, 129 P.3d 977, 982
(Colo. 2006).
Colo.R.Crim.P. 35(c)(2) (2001)18 states that “every person convicted of a
crime is entitled as a matter of right to make application for postconviction review
upon the grounds hereinafter set forth.” Under the rule, an application for
postconviction review must, in good faith, allege one or more of the following
grounds to justify a hearing thereon: “(I) That the conviction was obtained or
sentence imposed in violation of the Constitution or laws of the United States or
the constitution or laws of this state; (II) That the applicant was convicted under a
statute that is in violation of the Constitution of the United States or the
constitution of this state, or that the conduct for which the applicant was
prosecuted is constitutionally protected; (III) That the court rendering judgment
was without jurisdiction over the person of the applicant of the subject matter;
(IV) That the sentence imposed exceeded the maximum authorized by law, or is
otherwise not in accordance with the sentence authorized by law; . . . [and] (VI)
The 2001 version of the rule governed Mr. Citizen’s Original 35(c) Motion. On July 1, 2004, the rule was
amended. Because, pursuant to the United States and Colorado Constitutions, ex post facto principles prohibit the
application of criminal laws to events occurring before the enactment of those laws if those laws disadvantage the
offender, any of the 2004 changes to Colo.R.Crim.P. 35(c) which might disadvantage Mr. Citizen can apply neither
to his Original 35(c) Motion nor to his Amended 35(c) Motion. U.S. Const. art. I, § 10; Colo. Const. art. II, § 11.
Throughout this brief, he will therefore cite to the 2001 version of the rule.
18
27
Any grounds otherwise properly the basis for collateral attack upon a criminal
judgment.”
Moreover, once a defendant files a 35(c) motion, the court must hold an
evidentiary hearing unless the motion, the files, and the record of the case clearly
establish that the allegations presented in the defendant’s motion are without merit
and do not warrant post-conviction relief. Crim. P. 35(c)(3) (2001); People v.
Simpson, 69 P.3d 79, 81 (Colo. 2003); White v. Denver District Court, 766 P.2d
632, 635 (Colo. 1988); ABA Standards for Criminal Justice 22-4.6 (2d ed. 1980)
(an evidentiary hearing is required whenever there are material questions of fact
which must be resolved in order to determine the proper disposition of the
application for post-conviction relief).
A defendant need not set forth the evidentiary support for his allegations in
his initial motion; instead, a defendant need only assert facts which, if true, would
provide a basis for relief under Crim. P. 35. White, 766 P.2d at 635. People v.
Ardolino, 69 P.3d 73, 77 (Colo. 2003) (“If a criminal defendant has alleged acts or
omissions by counsel that, if true, could undermine confidence in the defendant’s
conviction or sentence, and the motion, files, and record in the case do not clearly
establish that those acts or omissions were reasonable strategic choices or
otherwise within the range of reasonably effective assistance, the defendant must
be given an opportunity to prove they were not”).
28
The Sixth Amendment guarantees an accused to the reasonably effective
assistance of an attorney acting as his diligent and conscientious advocate.
Strickland v. Washington, 466 U.S. 668, 688 (1984); People v. Norman, 703 P.2d
1261, 1272 (Colo. 1985). Under Strickland, to prevail on a claim of ineffective
assistance of trial counsel the accused must show (1) that trial counsel’s
performance was deficient and (2) that the deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687; People v. Garcia, 815 P.2d 937, 941 (Colo.
1991).
The proper measure of trial counsel performance is reasonableness under
prevailing professional norms. Strickland 466 U.S. at 688; People v. Bossert, 722
P.2d 998, 1010 (Colo. 1986); Norman, 703 P.2d at 1272. An accused is entitled to
representation which falls within the range of competence expected of lawyers
experienced in criminal law. See People v. Pozo, 746 P.2d 523, 526 (Colo. 1987);
People v. Dillon, 739 P.2d at 919, 921 (Colo. App. 1987).
With respect to prejudice, the proper measure is “whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. “While this
requirement means that the defendant must establish more than the mere possibility
that counsel’s errors affected the outcome of the proceeding, it does not require the
29
defendant to prove that counsel’s errors ‘more likely than not altered the outcome
in the case.’ ” Garcia, 815 P.2d at 941 (Colo. 1991) (quoting Strickland).
When the claim of ineffective assistance concerns a perfected appeal, a
defendant can demonstrate the first Strickland prong, that the appellate attorney’s
representation fell below an objective standard of reasonableness, by showing that
the attorney failed to raise a particular issue. Cargle v. Mullin, 317 F. 3d 1196,
1203 (10th Cir. 2003). A defendant can show deficient performance based on the
merits of the omitted issue. Id. “If the omitted issue is so plainly meritorious that
it would have been unreasonable to winnow it out even from an otherwise strong
appeal, its omission may directly establish deficient performance.” Id.
To meet the second Strickland prong, the defendant must show that the
deficient conduct so prejudiced the defendant that it substantially undermined the
integrity of the appellate process. People v. Valdez, 789 P. 2d 406, 410 (Colo.
1990). The defendant may meet this prong by showing that a reasonable
probability exists that, but for appellate counsel’s omission, he or she would have
prevailed on the appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000).
The Original 35(c) Motion
Because Mr. Citizen’s conviction became final when the mandate for his
case issued on September 15, 2000, he had until September 15, 2003 to file his
35(c) motion (v2, pp. 363-379). C.R.S. § 16-5-402(1) (1998). Because he filed
30
his Original 35(c) Motion on August 20, 2001 it was timely filed (v2, pp. 428430). Further, because the motion, as set forth in the statement of facts, supra,
asserted facts which if true would have provided a basis for relief under
Colo.R.Crim.P. 35, Mr. Citizen was entitled to a hearing. White, 766 P.2d at 635;
Ardolino, 69 P.3d at 77.
Indeed, in the Original 35(c) Motion, Mr. Citizen asserted, inter alia, that his
trial counsel failed to (1) adequately investigate whether the government’s sole
witness and alleged victim – a terminally ill person ingesting narcotics for pain –
was competent to testify at a deposition (2) determine whether the alleged victimwitness was competent to make a proper identification at the time of the assault
given that he was then also under the influence of narcotics (3) consult experts
skilled in eyewitness identification and medication and pain issues, including an
intoxication expert (4) pursue a viable alternate suspect theory and (5)
adequately investigate alibi witnesses (v2, pp. 428-430).
Given that (1) the averment that trial counsel failed to consult experts
“skilled in eyewitness identification and medication and pain issues, including an
intoxication expert” (2) the jurors had twice deadlocked on the issue of Officer
Williams’ credibility, the government’s only eye witness to the alleged crime and
(3) the fact that if trial counsel had consulted such experts, they could have, at a
minimum, provided testimony regarding the effects of Officer Williams’ drug
31
regimen which would likely have called into doubt his ability to accurately identify
his attacker and to recall what occurred on the night of the alleged assault, it is
evident that Mr. Citizen’s factual allegations warranted a hearing because, if true,
they would establish that Mr. Citizen was denied constitutionally effective
assistance of counsel guaranteed under the United States and Colorado
Constitutions because those allegations would create more than a reasonable
probability that, absent the deficient performance, the jurors would have had
reasonable doubt respecting guilt (v2, pp. 428-430). U.S. Const. amends. VI, XIV;
Colo. Const. art. II, §§ 16, 25; Gideon v. Wainwright, 372 U.S. 335 (1963).
The Amended 35(c) Motion
As evinced by the district court’s February 7, 2002 minute order stating
“defense attorney will do a notice to set,” the district court granted Mr. Citizen’s
Original 35(c) Motion which included a request to supplement that motion (v2, p.
439). The Amended 35(c) Motion elaborated upon the claims made in the Original
35(c) Motion and added new claims of ineffective assistance of appellate counsel
(v2, pp. 469-548). The elaboration upon the original claims and the addition of
new ones with respect to appellate counsel make sense given that, at the time he
filed the Original 35(c) Motion, Mr. Citizen did not have trial transcripts and other
documents necessary to fully pursue postconviction remedies (v2, p. 430).
Because Mr. Citizen sufficiently raised his claims of ineffective assistance of
32
trial counsel in his Original 35(c) Motion and addressed those claims above, he
will not “re-address” those claims insofar as he elaborated upon them in the
Amended 35(c) Motion but will address the claim of ineffective assistance of
appellate counsel based on appellate counsel’s failure to raise the structural error
claim that the trial court failed to acknowledge the jury’s second affirmation that it
was deadlocked and thereby deprived Mr. Citizen the opportunity to move for a
mistrial (v2, pp. 525-537).
To support this claim, the Amended 35(c) Motion alleged that appellate
counsel failed to advise this Court that significant parts of the record were missing
including a transcript indicating that the trial court acknowledged a note from the
jurors indicating a second affirmation that the jurors were deadlocked (v2, pp. 529530). According to the Amended 35(c) Motion:
This note came after the jury had already once informed the court that
it was deadlocked, and the court instructed the jury to continue
deliberating. The jury thereafter re-examined the evidence and then
informed the court that it was “still deadlocked.” Without addressing
the note, the trial court allowed the jury to continue deliberating until
it reached a verdict.
(v2, p. 529).
Had the appellate court been made aware that the note from the jury was not
acknowledged by the trial court, the Amended 35(c) Motion averred, a reasonable
probability would have existed that this Court would have been persuaded a
mistrial should have been declared (v2, p. 530). Mr. Citizen further alleged that
33
even if this Court had not found reversible error in the failure of the trial court to
acknowledge the second jury deadlock and declare a mistrial, it would still have
reversed because the trial court’s failure to acknowledge the second deadlock
resulted in Mr. Citizen missing a chance to move for a mistrial, a fact which
constituted structural error requiring automatic reversal (v2, p. 530).
A structural error is a “structural defect affecting the framework within
which the trial proceeds . . .” Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
“Such errors affect the entire conduct of the trial from beginning to end, or deny
the defendant a basic protection, the precise effects of which are immeasurable.”
Bogdanov v. People, 941 P.2d 247, 253 (Colo. 1997), disapproved on other
grounds by Griego v. People, 19 P.3d 1, 8 (Colo. 2001). Error committed by the
court that is structural in nature requires automatic reversal. Blecha v. People, 962
P.2d 931, 942 (Colo. 1998).
Here, Mr. Citizen, in the Amended 35(c) Motion, alleged that the trial court
knew of the jury’s second deadlock but failed to acknowledge it and thereby
deprived him of the opportunity to move for a mistrial (v2, p. 529).
A defendant has a fundamental right under the Colorado constitution “to
have counsel present ‘when the judge gives instructions to the jury or responds to
questions from the jury’ ” and a court’s ex parte communication with jurors can
constitute “error depriving the defendant of his constitutional right to counsel at a
34
critical stage of the proceedings.” Key v. People, 865 P. 2d 822, 825-825 (Colo.
1994) (quoting Leonardo v. People, 728 P. 2d 1252, 1257 (Colo. 1986). The
denial of the right to counsel constitutes structural error. People v. Dunlap, 124
P.3d 780, 818 (Colo. App. 2004); People v. Phillips, 91 P.3d 476, 479 (Colo. App.
2004); see also, Key, 865 P.2d at 824-828 (where judge, ex parte, discussed only
administrative matters with jurors and where jury was not deadlocked, absence of
defendant’s counsel constituted error requiring a mistrial).
In light of the prevailing law in Colorado, this Court surely would have
reversed Mr. Citizen’s conviction if his appellate counsel raised as structural error
that the trial court knew of the jury’s second deadlock but failed to acknowledge
it19 (v2, p. 529). Because the Amended 35(c) Motion averred this, and because the
appellate record in the case does not clearly establish that Mr. Citizen’s appellate
counsel’s failure to raise the structural error issue was a reasonable strategic choice
or within the range of reasonably effective assistance, the trial court should have
granted Mr. Citizen a postconviction hearing on the claim of ineffective assistance
of appellate counsel alone. Ardolino, 69 P. 3d at 77.
As set forth in the Amended 35(c) Motion, appellate counsel argued that “ ‘the trial court erred by instructing the
jury to continue deliberating after the jury clearly and repeatedly indicated it was deadlocked’ ” and cited to the
court the note concerning the second deadlock. (v2, p. 529). This Court, in its opinion and concerning the note,
stated: “ ‘Nor are we persuaded that the court erred . . . [by] not declaring a mistrial sua sponte’ ” (v2, p. 529).
Concerning this, in the Amended 35(c) Motion, Mr. Citizen alleged that this Court “was not aware of the timing of
the note – where it came in jury deliberations – or that there is no record that the trial court acknowledged the note,
or that Citizen and his counsel were made aware of it” (v2, p. 529).
19
35
The district court, however, never ruled on the merits of the Original 35(c)
Motion (see entire record). Instead, on September 19, 2006, it simply denied Mr.
Citizen’s postconviction motions – the Original 35(c) Motion and the Amended
35(c) Motion – as “successive” (v2, pp. 614-616).
Because the district court had previously neither ruled on Mr. Citizen’s
Original 35(c) Motion nor on his Amended 35(c) Motion, denying his collateral
attack as successive constituted reversible error as a matter of fact and as a matter
of law. People v. Billips, 652 P. 2d 1060, 1063 (Colo. 1982) (in determining
whether postconviction motion is successive the issue is “whether the defendant’s
constitutional claim has been fully and finally litigated in a prior proceeding . . .
[and] [a] claim has been fully and finally litigated when the highest state court to
which an applicant can appeal as of right has ruled on the merits of the claim”);
Medina v. Conseco Annunit Assurance Co., 121 P. 3d 345, 346 (Colo. App. 2005)
(court abuses its discretion when it relies on factual assertions not in the record).
This Court should thus reverse the order denying Mr. Citizen’s collateral attack
and remand the case to the district court for a hearing.
36
II.
The trial court committed reversible error when it refused to apply
Apprendi v. New Jersey to Mr. Citizen’s Crim. P. 35(a) petition and find his
sentence illegal (thus violating Mr. Citizen’s rights to the Sixth Amendment
jury trial guarantee and due process under the Fourteenth Amendment of the
United States Constitution and Article II, § 25 of the Colorado Constitution)
because the basis for refusing to apply Apprendi was incorrect as a matter of
fact and law.
A.
Standard of Review
Because the controlling facts of the record here can not be disputed, the legal
effects of those facts constitute a question of law which is subject to de novo review.
People v. Humphrey, 132 P.3d 352, 360 (Colo. 2006).
B.
Analysis
The grounds the trial court relied on in denying the 35(a) petition were
factually and legally incorrect. The court found that Mr. Citizen’s conviction was
final on March 31, 2000, when this Court announced its opinion on Mr. Citizen’s
first appeal (v2, pp. 577-578; 614-616). Based on this finding, it ruled that
Apprendi, the case on which Mr. Citizen relied in his 35(a) petition and which was
announced on June 26, 2000, could not be retroactively applied to Mr. Citizen’s
case (v2, pp. 577-578; 614-616).
March 31, 2000, however, was not the date on which Mr. Citizen’s
conviction became final. The conviction was not final until September, 15, 2000,
when this Court issued its final mandate following the Supreme Court’s denial of
certiorari (v2, pp. 362-379). People v. Hampton, 857 P.2d 441, 444-445 (Colo.
37
App. 1992) (“If an appeal is pursued, then the conviction is not final for purposes
of § 16-5-402 and postconviction review until the appellate process is exhausted.
Here, the ultimate status of the defendant's conviction was not determined until
January 1988, when our mandate was issued”). Mr. Citizen was thus entitled to
raise his Apprendi claim as his conviction did not become final until September 15,
2000, after Apprendi was announced (v2, pp. 362-379).
Mr. Citizen was convicted of two class 3 felonies, one count of first degree
assault, one count of aggravated robbery, both of which were found by the jury to
be violent crimes (v2, p.339). Because of the jury’s “violent crime” finding, the
court was required to sentence Mr. Citizen “to a term of incarceration of at least
the midpoint in the presumptive range, but not more than twice the maximum
term.” C.R.S. § 16-11-309(1)(a) (1997). This gave the court discretion to sentence
Mr. Citizen from 8 to 24 years on each count. C.R.S. § 16-11-309(1)(a) (1997).
Because aggravated robbery and first degree assault were crimes of violence,
however, they were also, by staturory definition, crimes of extraordinary risk under
C.R.S. § 18-1-105(9.7)(b)(XII) (1997).
Although “extraordinary risk” was not found by the jury, C.R.S. § 18-1-105
required the court to add an additional four years to the presumptive range of each
felony, increasing the maximum presumptive range for each count to sixteen years
(v2, p. 339). C.R.S. § 18-1-105(9.7)(a) (1997). The court then had discretion to
38
sentence Mr. Citizen from 8-32 years on each count for a total possible sentence of
62 years. Sixteen years of the possible sentence were based on the “extraordinary
risk” enhancer, a factor not determined by the jury (v2, p. 339).
Mr. Citizen was sentenced to 28 years on the count of first degree assault
(four years more than the maximum based on jury findings) and 30 years on the
count of aggravated robbery (six years more than the maximum based on jury
findings), each count to be served consecutively (v2, p.339). If Mr. Citizen had
been sentenced based only on the jury’s findings, he could have received no more
than 24 years on each count (totaling 48 years), 10 years less than he was actually
sentenced (v2, p. 339).
“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 v. New Jersey, 530 U.S. 466,
490 (2000).
“The relevant ‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose
without any additional findings. When a judge inflicts punishment that the jury’s
verdict alone does not allow, the jury has not found all the facts ‘which the law
makes essential to the punishment’ and the judge exceeds his proper authority.”
39
Blakely v. Washington, 542 U.S. 296, 303-304 (2004) (quoting 1 J. Bishop,
Criminal Procedure § 87, p. 55 (2d ed. 1872) ).
Here, the jury never found “extraordinary risk,” the fact upon which the
court enhanced the presumptive range from twelve years to sixteen years for each
count (v2, p. 339). Under Blakely and Apprendi, the maximum sentence the judge
could have imposed was thus twenty-four years on each count.
The Blakely court stated, “Our precedents make clear, however, that 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 (italics in original). An enhanced
sentence, therefore, violates the Sixth Amendment right to trial by jury and due
process rights unless the facts found by the trial court to support the sentence are
reflected in the jury verdict, are admitted by the defendant for purposes of
sentencing, or involve the defendant's prior criminal convictions. Apprendi, 530
U.S. at 490.
This did not happen in Mr. Citizen’s case. This Court, therefore, should
hold that his sentence was illegal and order its adjustment to no more than 24 years
on each count because the trial court’s judicial determination of “Extraordinary
risk” violated Mr. Citizen’s rights to the Sixth Amendment jury trial guarantee and
40
due process under the Fourteenth Amendment of the United States Constitution
and Article II, § 25 of the Colorado Constitution.
CONCLUSION
WHEREFORE, Mr. Citizen respectfully requests that this Court remand his
case for a hearing on the claims of ineffective assistance of trial and appellate
counsel and issue opinion on the merits regarding his 35(a) claim.
Respectfully submitted,
____________________________________
Esteban A. Martinez
Martinez Law, LLC
2101 Ken Pratt Blvd
Suite 200
Longmont, CO 80501
Office: 303-452-4031
Fax: 303-827-2473
E-mail: estebanlaw@msn.com
Atty.Reg.: #30921
41
CERTIFICATE OF SERVICE
I certify that I have duly served the within DEFENDANT’S OPENING BRIEF upon
all parties herein by depositing a copy (or copies) of same in the United states mail
this __________day of ___________________________2007 addressed as follows:
Colorado Attorney General
Appellate Division
1525 Sherman, 7th Floor
Denver, CO 80203
42