COLORADO SUPREME COURT

2 East 14th Avenue

Denver, CO 80203
Original Proceeding
Arapahoe County District Court,
Case No. 1995CR67

IN RE:
THE PEOPLE OF THE STATE OF COLORADO,
Plaintiff,

v. COURT USE ONLY

CURTIS A. BROOKS,
Supreme Court Case No.
Defendant. 2018SA90

Robert M. Russel, Reg. No. 15218

Senior Chief Deputy District Attorney

Beth McCann, Denver District Attorney

201 West Colfax Avenue, Dept. 801

Denver, CO 80202
720-913-9038
bob.russel@denverda.org

Amended Amicus Brief of the Denver District Attorney

(In Support of Defendant Curtis A. Brooks)
 CERTIFICATE OF COMPLIANCE

I certify that this Amended Amicus Brief complies with the applicable parts of C.A.R.

28, 29, and 32. I further certify that the brief contains 2,457 words. I acknowledge

that my brief may be stricken if it fails to comply with the governing rules.

Robert M. Russel
Senior Chief Deputy District Attorney

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 TABLE OF CONTENTS

Certificate of Compliance ....................................................................................................... i

Table of Authorities .............................................................................................................. iii

Interest of the Amicus ........................................................................................................... 1

Argument ................................................................................................................................. 2

I. The statute creates a real class, one that is not logically or factually limited to a
class of one.......................................................................................................................... 5

A. The class is real, regardless of whether it is closed......................................................... 5

B. The class is not closed ................................................................................................ 6

Conclusion ............................................................................................................................... 9

Certificate of Service ............................................................................................................ 10

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 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 (Colo. 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

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 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, the People — through the District Attorney for the Eighteenth

Judicial District — challenge the constitutionality of a 2016 sentencing statute.

Specifically, the People challenge provisions now codified as § 18-1.3-401(4)(c)(I)(A),

(II), and (III), C.R.S. (2017).

Denver DA McCann disagrees with the People’s position. She believes that the

challenged provisions are constitutional. She also believes that the provisions are

useful in providing substantial justice to juveniles who were previously sentenced in

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

of life without parole constitutes cruel and unusual punishment); Montgomery v.

Louisiana, 136 S.Ct. 718 (2016) (holding that Miller announced a substantive rule that

applies retroactively to cases on collateral review).

Therefore, in harmony with the position advanced by Defendant Curtis

Brooks, the Denver DA urges that the challenged provisions be upheld.

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 ARGUMENT

The People contend that the challenged provisions constitute “special

legislation” of the sort prohibited by Article V, Section 25 of the Colorado

Constitution. To evaluate that contention, one must consider three related questions:

1. Does the statute implicate any category enumerated in Article V, section 25?

2. Does the statute create an illusory class?

3. Is the underlying classification reasonable?

See People v. Canister, 110 P. 3d 380, 383 (Colo. 2005); In re Interrogatory Propounded by

Governor, 814 P.2d 875, 886 (Colo. 1991).

According to the analysis set forth in Canister and In re Interrogatory, those

questions stand in the following relationship:

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 In evaluating the People’s contention, the trial court answered Questions 1 and

3 in Curtis Brooks’s favor. (Having concluded that the statute fails to implicate any

enumerated category, the court found it unnecessary to address Question 2.)

The Denver DA agrees with the district court’s answers:

Q 1: In Canister, this court concluded that a 2002 statute “regulat[ed] the practice

in the courts of justice,” within the meaning of Article V, section 25.

Canister, 110 P.3d at 383. Although the opinion contains little supporting

analysis, it appears that the court reached that conclusion because the

statute created a unique procedure for determining whether two previously-

convicted defendants would receive the death penalty.1 Here, in contrast,

the challenged provisions create no unique procedure. Indeed, the statute’s

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

the new sentencing ranges) by filing postconviction motions under Crim. P.

35(c).

Q 3: The 2016 statute reflects reasonable classifications. The legislature

reasonably separated juveniles convicted of felony murder from those

convicted of other forms of murder. See People v. Aaron, 299 N.W.2d 304,

312-16 (Mich. 1980) (discussing modern limitations on the felony murder

doctrine). And the legislature reasonably restricted its curative efforts to

offenses that occurred between 1990 and 2006. (Unlike those who

committed offenses before 1990 or after 2006, offenders from the target

date range were routinely sentenced in violation of the Eighth Amendment.

For reasons noted by the district court, it is reasonable to think that the

targeted offenders suffered serious consequences as a result of that

disparate treatment. See Order at 54-58.)

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

creates an illusory class. The answer is no.

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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

— those convicted of felony murder — are eligible to request a determinate sentence

of between 30 and 50 years. See Order at 8 & n. 8.

The People do not contest the statute’s constitutionality, insofar as it creates a

class of 50. Instead, they focus on the provisions that create a sub-set of 16. See

Petition at 8-9. The People contend that the class of 16 “is illusory because it can

never include other members in the future.” Id. at 10.

A. The class is real, regardless of whether it is closed.

In framing the argument as they do, the People suggest that a closed class is

always an illusory class. But that can’t be right. The test is “whether the classification

adopted by the legislature is a real or potential class, or whether it is 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 People have 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.

Under the challenged provisions, an offender’s eligibility for a determinate

sentence depends on whether he or she “was convicted” of felony murder:

(c)(I) . . . [A]s to a person who is convicted as an adult of a class 1

felony following a direct filing of an information or indictment in
the district court pursuant to section 19-2-517, C.R.S., or transfer of
proceedings to the district court pursuant to section 19-2-518,
C.R.S., or pursuant to either of these sections as they existed prior
to their repeal and reenactment, with amendments, by House Bill
96-1005, which felony was committed on or after July 1, 1990, and
before July 1, 2006, and who received a sentence to life
imprisonment without the possibility of parole:
(A) If the felony for which the person was convicted is [felony
murder], then the district court, after holding a hearing, may
sentence the person to a determinate sentence within the range of
thirty to fifty years in prison, less any earned time granted pursuant
to section 17-22.5-405, C.R.S., if, after considering the factors
described in subparagraph (II) of this paragraph (c), the district
court finds extraordinary mitigating circumstances. Alternatively,
the court may sentence the person to a term of life imprisonment
with the possibility of parole after serving forty years, less any
earned time granted pursuant to section 17-22.5-405, C.R.S.
(B) If the felony for which the person was convicted is not [felony
murder], then the district court shall sentence the person to a term
of life imprisonment with the possibility of parole after serving forty
years, less any earned time granted pursuant to section 17-22.5-405,
C.R.S.
§ 18-1.3-401(4)(c)(I)(A) (emphasis added).

The People believe that the statute created a closed class because, on the day of

its enactment, one could identify each person who “was convicted” of felony murder,

within the meaning of § 18-1.3-401(4)(c)(I)(A). In the People’s view, the number was

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fixed at 16. See Petition at 11 (“Only sixteen individuals — the sixteen defendants —

can ever meet the criteria set forth in the challenged provisions.”)

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

Denver DA offers the following hypothetical.

Example: Increasing the class through postconviction relief.

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,

either on a generic count of murder (supported by both theories), or a single count of

murder after deliberation.2 The court then sentenced A to life without parole.

Years later, Offender A filed a postconviction motion, claiming (among other

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 (Colo. 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

count. Consequently, when Offender A prevailed (either through litigation or by

agreement of the parties), the trial court amended the judgment to reflect a conviction

for felony murder.

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

qualifies as a someone who “was convicted as an adult of a class 1 felony following a

direct filing . . . pursuant to section 19-2-517 . . . which felony was committed on or

after July 1, 1990, and before July 1, 2006, and who received a sentence to life

imprisonment without the possibility of parole.” § 18-1.3-401(4)(c)(I).

But can Offender A request a determinate sentence? That’s a closer question,

because, on the statute’s face, Offender A appears to simultaneously qualify, and be

disqualified, for that sentencing option. Offender A qualifies because one of the

felonies for which he “was convicted is [felony murder].” § 18-1.3-401(4)(c)(I)(A).

But he also is disqualified because the other theory on which he “was convicted is not

[felony murder].” § 18-1.3-401(4)(c)(I)(B).

How should the court rule? The Denver DA believes that, under the canon of

constitutional avoidance, courts should resolve the ambiguity in favor of Offender A.

Regardless of whether the original judgment reflected a generic murder conviction, or

a conviction solely for after-deliberation murder, § 18-1.3-401(4)(c)(I)(A) should be

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read to include someone who was originally, and is presently, convicted of felony

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

canon of constitutional avoidance to circumvent a plausible equal protection claim

against Arizona’s policy toward DACA recipients).

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.

Date: May 21, 2018

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 21, 2018, I electronically filed this Amended Amicus Brief via
the Colorado Courts E-Filing system, which will send notification to all persons
registered in this case.

Victoria Cisneros
Victoria Cisneros
DA’s Appellate Division

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