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IN RE:
THE PEOPLE OF THE STATE OF COLORADO,
Plaintiff,
CURTIS A. BROOKS,
Supreme Court Case No.
Defendant. 2018SA90
I certify that this document complies with the applicable parts of C.A.R. 28, 29, and
32. I further certify that the brief contains 2,473 words. I acknowledge that my brief
Robert M. Russel
Senior Chief Deputy District Attorney
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TABLE OF CONTENTS
Argument ................................................................................................................................. 2
I. The statute creates a real class, one that is not logically or factually limited to a
class of one.......................................................................................................................... 5
Conclusion............................................................................................................................... 9
ii
TABLE OF AUTHORITIES
Cases
Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017), cert. denied, 138 S. Ct.
1279 (2018) ......................................................................................................................... 9
Candelaria v. People, 148 P.3d 178 (2006)............................................................................... 7
Ex Parte Stout, 5 Colo. 509 (1881)......................................................................................... 3
Ex Parte White, 5 Colo. 521 (1881) ....................................................................................... 3
In re Interrogatory Propounded by Governor, 814 P.2d 875 (Colo. 1991).............................. 2, 5
Miller v. Alabama, 567 U.S. 460 (2012) ................................................................................. 1
Montgomery v. Louisiana, 136 S.Ct. 718 (2016)....................................................................... 1
People v. Aaron, 299 N.W.2d 304 (Mich. 1980) .................................................................... 4
People v. Canister, 110 P. 3d 380 (Colo. 2005) ................................................................... 2, 3
People v. Glover, 893 P.2d 1311 (Colo. 1995)......................................................................... 7
People v. Lowe, 660 P.2d 1261 (Colo. 1983)........................................................................... 7
Ring v. Arizona, 536 U.S. 584 (2002) ..................................................................................... 3
Statutes
§ 18-1.3-401, C.R.S. (2017) ............................................................................................ 1, 6, 8
§ 19-2-517, C.R.S. ................................................................................................................... 8
Rules
Crim. P. 35(c) .......................................................................................................................... 4
Constitutional Provisions
Article V, Section 25, Colorado Constitution ......................................................... 2, 3, 4, 9
iii
INTEREST OF THE AMICUS
Beth McCann is the District Attorney for the Second Judicial District, which
comprises the City and County of Denver. Her office handles many cases involving
juvenile offenders, including several whose sentences will be directly affected by the
ruling here.
In this case, a fellow prosecutor — the District Attorney for the Eighteenth
Denver DA McCann disagrees with her colleague. She believes that the
challenged provisions are constitutional. She also believes that the provisions are
violation of the Eighth Amendment. See Miller v. Alabama, 567 U.S. 460 (2012)
(holding that, for offenders under 18 at the time of their crimes, a mandatory sentence
Louisiana, 136 S.Ct. 718 (2016) (holding that Miller announced a substantive rule that
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ARGUMENT
Constitution. To evaluate that contention, one must consider three related questions:
1. Does the statute implicate any category enumerated in Article V, section 25?
See People v. Canister, 110 P. 3d 380, 383 (Colo. 2005); In re Interrogatory Propounded by
2
In evaluating the Arapahoe County DA’s contention, the trial court answered
“no” to Questions 1 and 3. (Having concluded that the statute fails to implicate any
Q 1: In Canister, this court concluded that a 2002 statute “regulat[ed] the practice
Canister, 110 P.3d at 383. Although the opinion contains little supporting
analysis, it appears that the court reached that conclusion because the
1
Even then, it’s not entirely clear why the statute qualified.
In Ex Parte Stout, 5 Colo. 509, 513 (1881), this court invalidated a statute that created a
criminal court in Arapahoe County. Applying Article V, section 25, this court held
that the statute impermissibly regulated the practice in courts of justice by enacting
procedures that applied in one court only. Id. at 513-15; accord Ex Parte White, 5 Colo.
521 (1881).
One can easily understand why that sort of court-specific limitation would constitute a
“special law.” But that sort of limitation was not present in Canister. There, the
statutory death-penalty procedures applied as a matter of law to every district court in
Colorado. Admittedly, only two district courts would have been affected as a practical
matter. But the reason for that is purely factual: because death-penalty cases are
uncommon in Colorado, only two cases were affected by Ring v. Arizona, 536 U.S. 584
(2002).
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procedures are unimportant. If the procedural aspects of the new statute
were stricken, the targeted offenders could still obtain new sentences (under
35(c).
convicted of other forms of murder. See People v. Aaron, 299 N.W.2d 304,
offenses that occurred between 1990 and 2006. (Unlike those who
committed offenses before 1990 or after 2006, offenders from the target
For reasons noted by the district court, it is reasonable to think that the
Rather than elaborate on the district court’s conclusions, the Denver DA will
address the question that the court jumped over. Assuming, for the sake of argument,
that the challenged provisions “regulat[e] the practice in the courts of justice,” within
the meaning of Article V, section 25, the Denver DA will discuss whether the statute
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I. The statute creates a real class, one that is not logically or factually
limited to a class of one.
As noted by the district court, the 2016 statute created a class of 50 offenders
who are entitled to receive new sentences. Of those 50, approximately 16 offenders
insofar as it creates a class of 50. Instead, he focuses on the provisions that create a
sub-set of 16. See Petition at 8-9. The Arapahoe County DA contends that the class
of 16 “is illusory because it can never include other members in the future.” Id. at 10.
closed class is always an illusory class. But that can’t be right. The test is “whether
logically and factually limited to a class of one and thus illusory.” In re Interrogatory, 814
P.2d at 886. If a statute were to create a closed class of dozens, no one would
seriously suggest that the class is logically and factually limited to a class of one.
Here, the challenged class is said to comprise 16 offenders from around the
state. Why isn’t that enough? The Arapahoe County DA has cited no case in which
a class of that size has been found illusory, and the Denver DA is aware of none.
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B. The class is not closed.
because, on the day of its enactment, one could identify each person who “was
Arapahoe County DA’s view, the number was fixed at 16. See Petition at 11 (“Only
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sixteen individuals — the sixteen defendants — can ever meet the criteria set forth in
The Denver DA has a different view. She believes that, if the statute is
interpreted as it should be, the class of 16 can be expanded. To illustrate her view, the
For acts committed as a juvenile between 1990 and 2006, Offender A was
charged as an adult and convicted of murder on two theories: (1) murder after
deliberation; and (2) felony murder. The trial court entered judgment of conviction,
murder after deliberation.2 The court then sentenced A to life without parole.
things) that his murder conviction was obtained in violation of the United States
2
In Candelaria v. People, 148 P.3d 178, 183-84 & n.4 (2006), this court clarified what a
trial court should do when the defendant has been found guilty of one murder on two
different theories. The trial court should first consider whether the defendant has
been convicted of offenses other than murder. If any of those offenses would merge
with a felony murder count, the court must enter judgment of conviction solely on the
other murder count. Id. (citing People v. Glover, 893 P.2d 1311, 1314 (Colo. 1995)). But
if there are no other offenses, or if the other offenses would not merge with felony
murder, then the court should enter judgment of conviction on a single, generic
murder count. Id. (citing People v. Lowe, 660 P.2d 1261, 1270 (Colo. 1983)).
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Constitution. For any number of plausible reasons, Offender A’s claims had greater
force against the after-deliberation count than they did against the felony-murder
agreement of the parties), the trial court amended the judgment to reflect a conviction
The court now has to decide what sentencing range to apply. Everyone agrees
that Offender A’s sentence will be governed by the 2016 statute. He obviously
after July 1, 1990, and before July 1, 2006, and who received a sentence to life
disqualified, for that sentencing option. Offender A qualifies because one of the
But he also is disqualified because the other theory on which he “was convicted is not
How should the court rule? The Denver DA believes that, under the canon of
murder. That reading avoids any equal protection claim that could otherwise be
asserted by someone in Offender A’s position. See Arizona Dream Act Coal. v. Brewer,
855 F.3d 957, 978 (9th Cir. 2017), cert. denied, 138 S. Ct. 1279 (2018) (invoking the
Because this scenario is realistic, and because it would expand the class of 16, it
defeats any assertion (under Article V, section 25) that the class is closed and thus
illusory.
CONCLUSION
This court should uphold the challenged provisions and discharge the rule.
Respectfully submitted,
BETH MCCANN
Denver District Attorney
Robert M. Russel
ROBERT M. RUSSEL
Senior Chief Deputy District Attorney
Appellate Division
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CERTIFICATE OF SERVICE
I certify that on May 14, 2018, I electronically filed this brief via the Colorado Courts
E-Filing system, which will send notification to all persons registered in this case.
Dianne L Johnson
Dianne L. Johnson
DA’s Appellate Division
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