prior-conviction exception in Colorado

2015See also Lopez v. People, 113 P.3d 713, 723 (Colo.2005) (holding that the prior-conviction exception recognized in Apprendi remains valid).

2015See also Lopez v. People , 113 P.3d 713, 723 (Colo. 2005) (holding that the prior-conviction exception recognized in Apprendi remains valid).

2006See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.2005) (“Accordingly, [a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”) (internal quotation marks omitted); Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that juvenile adjudications fit within the prior-conviction exception because “[t]he main concern [of the prior-conviction exception] was whether the prior conviction’s procedural safeguards ensured a reliable result, not that there had to be

2006See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.2005) (“Accordingly, [a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”) (internal quotation marks omitted); Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that juvenile adjudications fit within the prior-conviction exception because “[t]he main concern [of the prior-conviction exception] was whether the prior conviction’s procedural safeguards ensured a reliable result, not that there had to be

2005See Booker, 125 S.Ct. at 756 (“we reaffirm our holding in Apprendi: Any fact (other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”)(emphasis added); United States v. Orduno-Mireles, 405 F.3d 960 , 2005 WL 768134 *2 (11th Cir. Apr.6, 2005)(“Put another way, because the prior-conviction exception remains undisturbed after Booker, a district court does not err by relying on prior convictions to enhance

2005See Booker , 125 S.Ct. at 756 ( " we reaffirm our holding in Apprendi : Any fact ( other than a prior conviction ) , which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt" ) ( emphasis added ) ; United States v. Orduno-Mireles , 405 F.3d 960 , 2005 WL 768134 *2 ( 11th Cir. Apr.6, 2005 ) ( "Put another way, because the prior-conviction exception remains undisturbed after Booker , a district court does not err by relying on prior convi

2005See Booker, 125 S.Ct. at 756 (“we reaffirm our holding in Apprendi: Any fact (other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”)(emphasis added); United States v. Orduno-Mireles, 405 F.3d 960 , 2005 WL 768134 *2 (11th Cir. Apr.6, 2005)(“Put another way, because the prior-conviction exception remains undisturbed after Booker, a district court does not err by relying on prior convictions to enhance

2005See Booker, 125 S.Ct. at 756 (“we reaffirm our holding in Apprendi: Any fact (other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”)(emphasis added); United States v. Orduno-Mireles, 405 F.3d 960 , 2005 WL 768134 *2 (11th Cir. Apr.6, 2005)(“Put another way, because the prior-conviction exception remains undisturbed after Booker, a district court does not err by relying on prior convictions to enhance

2006See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.2005) (“Accordingly, [a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”) (internal quotation marks omitted); Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that juvenile adjudications fit within the prior-conviction exception because “[t]he main concern [of the prior-conviction exception] was whether the prior conviction’s procedural safeguards ensured a reliable result, not that there had to be

2006Although acknowledging the existence of the decision in United States v. Tighe, supra, the court cited with approval the decisions in United States v. Burge, supra, and Ryle v. State, supra. Further, the court noted that Ryle referenced federal cases from the Third, Eighth, and Eleventh Cireuit Courts of Appeals holding that juvenile adjudications fell within the prior convietion exeeption: Consistent with the Ryle court and the Third, Eight, and Eleventh Cireuits, we conclude that the prior-conviction exception to Apprendi-Blakely applies to all prior convictions that resulted from procedures

2006L.Rev. 1082, 1100 and n. 68 (2005) (discussing theories of the prior-conviction exception to Blakely , including the theory that the exception only extends to those convictions for which the defendant had a right to a jury trial); United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir.2001) (“The ‘prior conviction’ exception to Apprendi' s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.”); cf. Ryle, 842 N.E.2d at 321-22 (compiling cases and concluding that the Third, E

2006Although acknowledging the existence of the decision in United States v. Tighe, supra, the court cited with approval the decisions in United States v. Burge, supra, and Ryle v. State, supra. Further, the court noted that Ryle referenced federal cases from the Third, Eighth, and Eleventh Cireuit Courts of Appeals holding that juvenile adjudications fell within the prior convietion exeeption: Consistent with the Ryle court and the Third, Eight, and Eleventh Cireuits, we conclude that the prior-conviction exception to Apprendi-Blakely applies to all prior convictions that resulted from procedures

2006People v. Huber, supra, 139 P.3d at 632-33 (citation omitted).

2006Huber, 139 P.3d at 632 .

2006See United States v. Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception to Blakely permits a sentencing judge to enhance a defendant’s sentence based on the fact that the defendant was on probation and under supervision at the time of the commission of the offense); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (upholding trial judge’s consideration of defendant’s probationary status because “the conviction itself and the type and length of a sentence imposed seem logically to fall within [the prior conviction] exception”); cf. Ryle, 842 N.E.2d

2006See United States v. Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception to Blakely permits a sentencing judge to enhance a defendant's sentence based on the fact that the defendant was on probation and under supervision at the time of the commission of the offense); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (upholding trial judge's consideration of defendant's probationary status because "the conviction itself and the type and length of a sentence imposed seem logically to fall within [the prior conviction] exception"); cf. Ryle, 842 N.E.2d

2006See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.2005) (“Accordingly, [a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”) (internal quotation marks omitted); Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that juvenile adjudications fit within the prior-conviction exception because “[t]he main concern [of the prior-conviction exception] was whether the prior conviction’s procedural safeguards ensured a reliable result, not that there had to be

2006See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.2005) ("Accordingly, [a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.") (internal quotation marks omitted); Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that juvenile adjudications fit within the prior-conviction exception because "[t]he main concern [of the prior-conviction exception] was whether the prior conviction's procedural safeguards ensured a reliable result, not that there had to be

2006See United States v. Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception to Blakely permits a sentencing judge to enhance a defendant’s sentence based on the fact that the defendant was on probation and under supervision at the time of the commission of the offense); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (upholding trial judge’s consideration of defendant’s probationary status because “the conviction itself and the type and length of a sentence imposed seem logically to fall within [the prior conviction] exception”); cf. Ryle, 842 N.E.2d

2006See United States v. Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception to Blakely permits a sentencing judge to enhance a defendant's sentence based on the fact that the defendant was on probation and under supervision at the time of the commission of the offense); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (upholding trial judge's consideration of defendant's probationary status because "the conviction itself and the type and length of a sentence imposed seem logically to fall within [the prior conviction] exception"); cf. Ryle, 842 N.E.2d

2006Where the Sixth and Fourteenth Amendments permit the government, in some circumstances, to convict and impose criminal penalties upon a defendant without a jury trial, see Duncan v. Louisiana, 391 U.S. 145, 159 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968), does it make sense to hold that, should that defendant ever again find himself before a sentencing judge, the Sixth and Fourteenth Amendments prevent the later judge from considering the fact of that conviction?

2006Where the Sixth and Fourteenth Amendments permit the government, in some circumstances, to convict and impose criminal penalties upon a defendant without a jury trial, see Duncan v. Louisiana, 391 U.S. 145, 159 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968), does it make sense to hold that, should that defendant ever again find himself before a sentencing judge, the Sixth and Fourteenth Amendments prevent the later judge from considering the fact of that conviction?

2006L.Rev. 1082, 1100 and n. 68 (2005) (discussing theories of the prior-conviction exception to Blakely , including the theory that the exception only extends to those convictions for which the defendant had a right to a jury trial); United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir.2001) (“The ‘prior conviction’ exception to Apprendi' s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.”); cf. Ryle, 842 N.E.2d at 321-22 (compiling cases and concluding that the Third, E

2006See United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.2005) (“Accordingly, [a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”) (internal quotation marks omitted); Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that juvenile adjudications fit within the prior-conviction exception because “[t]he main concern [of the prior-conviction exception] was whether the prior conviction’s procedural safeguards ensured a reliable result, not that there had to be

2006But see State v. Jenkins, 199 Or.App. 384 , 111 P.3d 782, 782 (2005) (striking down sentencing increase where judge found that defendant was on supervision because the increased sentence was based on the additional fact-finding that “parole or probation failed to deter defendant from committing further offenses”) (internal quotation marks omitted); United States v. Leach, 325 F.Supp.2d 557, 561 (E.D.Pa.2004) (concluding that “Blakely renders [it] impermissible” for the judge to consider the fact that the defendant was on probation at the time he committed the offense).

2006But see State v. Jenkins, 199 Or.App. 384 , 111 P.3d 782, 782 (2005) (striking down sentencing increase where judge found that defendant was on supervision because the increased sentence was based on the additional factfinding that "parole or probation failed to deter defendant from committing further offenses") (internal quotation marks omitted); United States v. Leach, 325 F.Supp.2d 557, 561 (E.D.Pa.2004) (concluding that " Blakely renders [it] impermissible" for the judge to consider the fact that the defendant was on probation at the time he committed the offense).

2006Unless the majority implies that the existence of a prior conviction (whether relied on to sentence beyond the presumptive range or not, see DeHerrera, 122 P.3d at 994 ) does not in fact “open[ ] the aggravated sentencing range” to traditional sentencing considerations, id., its discussion of the scope of the prior-conviction exception appears to be inconsequential, not only for the particular sentence in this case but for virtually any conceivable sentence in this jurisdiction.

2006Unless, however, the majority intends a partial retreat from our holding in DeHerrera v. People, 122 P.3d 992 (Colo.2005), I fail to appreciate the significance of its discussion of Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), and its concern for “the precise scope of the prior-conviction exception.” Maj op. at 633.