23CA0865 Peo v Randolph 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0865 Adams County District Court No. 22CR3322 Honorable Sharon Holbrook, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ralph Edward Randolph,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII Opinion by JUDGE LUM Lipinsky and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ralph Edward Randolph, was convicted of third
degree assault with a sentence enhancer under the habitual
domestic violence offender (HDVO) statute, section 18-6-801(7),
C.R.S. 2024. He appeals the aggravation of his sentence beyond
the enhanced sentencing range. We affirm.
I. Background
¶2 This appeal arises from an incident in which Randolph
assaulted his girlfriend after she refused to perform oral sex on him.
Randolph pleaded guilty, admitting that he (1) committed an act of
domestic violence constituting third degree assault and (2) had
eight prior domestic violence convictions, which elevated the third
degree assault from a misdemeanor to a class 5 felony. §§ 18-6-
801(7)(a), 18-3-204(1)(a), C.R.S. 2024. As part of his plea,
Randolph waived the right to have a factual basis established for
his offenses. The plea agreement didn’t mention the sexual nature
of the act underlying the third degree assault. Sentencing was left
open to the court.
¶3 The People filed a presentence report listing Randolph’s eight
prior domestic violence convictions (of which three were felonies),
three additional felony convictions for menacing and theft, and
1 numerous other nonfelony convictions for various crimes. The
district court imposed an aggravated sentence of five years.1 The
court based its decision to aggravate the sentence on Randolph’s
lengthy criminal history — specifically, his six felony convictions
and repeated acts of domestic violence — and, Randoph alleges, on
the case’s “sexual aspect.” Randolph appeals.
II. Apprendi-Blakely Error
¶4 Randolph argues that the district court violated his
constitutional rights to due process and trial by jury, as articulated
in the United States Supreme Court's decisions in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004). Specifically, he contends that the district court
improperly aggravated his sentence based on (1) prior convictions
that constituted an element of the HDVO sentence enhancer and (2)
impermissible judicial factfinding regarding the assault. We
perceive no reversible error.
1 The court imposed the five-year sentence for the HDVO “count”
and a concurrent six-month jail sentence for the third degree assault. Randolph doesn’t raise any argument related to the court’s entry of two sentences. Rather, he challenges only the five-year sentence.
2 A. Standard of Review
¶5 We review a constitutional challenge to a sentence de novo.
Lopez v. People, 113 P.3d 713, 720 (Colo. 2005); People v. Elie, 148
P.3d 359, 365 (Colo. App. 2006). Because Randolph didn’t object at
sentencing, we review his contention for plain error. Elie, 148 P.3d
at 365. Plain error is error that is obvious and substantial. People
v. Miller, 113 P.3d 743, 750 (Colo. 2005). An error is substantial if
it so undermines the fundamental fairness of the trial that it casts
serious doubt on the reliability of the judgment of conviction. Id.
B. Applicable Law
¶6 Third degree assault is ordinarily a misdemeanor. § 18-3-
204(1)(a). However, under the HDVO statute, a conviction for third
degree assault can be elevated to a class 5 felony if the assault
“include[s] an act of domestic violence” and the defendant has three
prior convictions that also included acts of domestic violence. § 18-
6-801(7)(a); see also People v. Jaso, 2014 COA 131, ¶ 14; People v.
Vigil, 2013 COA 102, ¶ 19. A class 5 felony carries a presumptive
sentencing range of one to three years; however, a court may
impose a sentence of up to six years if it finds extraordinary
aggravating circumstances. §§ 18-1.3-401(1)(a)(V.5)(A) (providing
3 sentencing range for class 5 felony), 18-1.3-401(6), C.R.S. 2024
(providing for a sentence of up to twice the statutory maximum
term if the court finds extraordinary aggravating factors).
¶7 “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.” Blakely, 542 U.S. at 301 (quoting Apprendi, 530
U.S. at 490); see also Erlinger v. United States, 602 U.S. 821, 831
(2024); U.S. Const. amends. V, VI; Colo. Const. art. II, §§ 16, 23.
¶8 Therefore, to constitutionally aggravate a sentence beyond the
presumptive range, the aggravating factors must fall into one of the
following four categories: “(1) facts found by a jury beyond a
reasonable doubt, (2) facts admitted by the defendant, (3) facts
found by a judge after the defendant stipulates to judicial fact-
finding for sentencing purposes, or (4) the fact of a prior conviction.”
Mountjoy v. People, 2018 CO 92M, ¶ 15. Facts that fall into the first
three categories are “Blakely-compliant,” while facts in the fourth
category are “Blakely-exempt.” Lopez, 113 P.3d at 723.
¶9 In addition, “the trial court must rely on facts outside of the
elements of the crime itself.” Mountjoy, ¶ 13. In other words, the
4 court can’t aggravate a sentence “without finding some facts to
support it beyond the bare elements of the offense.” Lopez, 113
P.3d at 722 (quoting Blakely, 542 U.S. at 305 n.8).
C. Analysis
¶ 10 Randolph first argues that the district court erred by
aggravating his sentence based on his prior domestic violence
convictions because those convictions are an element of an HDVO
offense.
¶ 11 We agree that the district court’s decision to aggravate
Randolph’s sentence must be supported by Blakely-compliant or
Blakely-exempt facts “beyond the bare elements of the offense.” See
id. (We assume, without deciding, that this also applies to the
elements of a sentence enhancer.) But contrary to Randolph’s
argument, the record reflects that the district court complied with
this directive. The court said that Randolph’s “prior felony
convictions . . . all qualify as aggravation in this case.” Three of
Randolph’s six prior felonies were domestic violence convictions
that were part of Randolph’s plea to an HDVO offense, but three
were not.
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23CA0865 Peo v Randolph 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0865 Adams County District Court No. 22CR3322 Honorable Sharon Holbrook, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ralph Edward Randolph,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII Opinion by JUDGE LUM Lipinsky and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ralph Edward Randolph, was convicted of third
degree assault with a sentence enhancer under the habitual
domestic violence offender (HDVO) statute, section 18-6-801(7),
C.R.S. 2024. He appeals the aggravation of his sentence beyond
the enhanced sentencing range. We affirm.
I. Background
¶2 This appeal arises from an incident in which Randolph
assaulted his girlfriend after she refused to perform oral sex on him.
Randolph pleaded guilty, admitting that he (1) committed an act of
domestic violence constituting third degree assault and (2) had
eight prior domestic violence convictions, which elevated the third
degree assault from a misdemeanor to a class 5 felony. §§ 18-6-
801(7)(a), 18-3-204(1)(a), C.R.S. 2024. As part of his plea,
Randolph waived the right to have a factual basis established for
his offenses. The plea agreement didn’t mention the sexual nature
of the act underlying the third degree assault. Sentencing was left
open to the court.
¶3 The People filed a presentence report listing Randolph’s eight
prior domestic violence convictions (of which three were felonies),
three additional felony convictions for menacing and theft, and
1 numerous other nonfelony convictions for various crimes. The
district court imposed an aggravated sentence of five years.1 The
court based its decision to aggravate the sentence on Randolph’s
lengthy criminal history — specifically, his six felony convictions
and repeated acts of domestic violence — and, Randoph alleges, on
the case’s “sexual aspect.” Randolph appeals.
II. Apprendi-Blakely Error
¶4 Randolph argues that the district court violated his
constitutional rights to due process and trial by jury, as articulated
in the United States Supreme Court's decisions in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004). Specifically, he contends that the district court
improperly aggravated his sentence based on (1) prior convictions
that constituted an element of the HDVO sentence enhancer and (2)
impermissible judicial factfinding regarding the assault. We
perceive no reversible error.
1 The court imposed the five-year sentence for the HDVO “count”
and a concurrent six-month jail sentence for the third degree assault. Randolph doesn’t raise any argument related to the court’s entry of two sentences. Rather, he challenges only the five-year sentence.
2 A. Standard of Review
¶5 We review a constitutional challenge to a sentence de novo.
Lopez v. People, 113 P.3d 713, 720 (Colo. 2005); People v. Elie, 148
P.3d 359, 365 (Colo. App. 2006). Because Randolph didn’t object at
sentencing, we review his contention for plain error. Elie, 148 P.3d
at 365. Plain error is error that is obvious and substantial. People
v. Miller, 113 P.3d 743, 750 (Colo. 2005). An error is substantial if
it so undermines the fundamental fairness of the trial that it casts
serious doubt on the reliability of the judgment of conviction. Id.
B. Applicable Law
¶6 Third degree assault is ordinarily a misdemeanor. § 18-3-
204(1)(a). However, under the HDVO statute, a conviction for third
degree assault can be elevated to a class 5 felony if the assault
“include[s] an act of domestic violence” and the defendant has three
prior convictions that also included acts of domestic violence. § 18-
6-801(7)(a); see also People v. Jaso, 2014 COA 131, ¶ 14; People v.
Vigil, 2013 COA 102, ¶ 19. A class 5 felony carries a presumptive
sentencing range of one to three years; however, a court may
impose a sentence of up to six years if it finds extraordinary
aggravating circumstances. §§ 18-1.3-401(1)(a)(V.5)(A) (providing
3 sentencing range for class 5 felony), 18-1.3-401(6), C.R.S. 2024
(providing for a sentence of up to twice the statutory maximum
term if the court finds extraordinary aggravating factors).
¶7 “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.” Blakely, 542 U.S. at 301 (quoting Apprendi, 530
U.S. at 490); see also Erlinger v. United States, 602 U.S. 821, 831
(2024); U.S. Const. amends. V, VI; Colo. Const. art. II, §§ 16, 23.
¶8 Therefore, to constitutionally aggravate a sentence beyond the
presumptive range, the aggravating factors must fall into one of the
following four categories: “(1) facts found by a jury beyond a
reasonable doubt, (2) facts admitted by the defendant, (3) facts
found by a judge after the defendant stipulates to judicial fact-
finding for sentencing purposes, or (4) the fact of a prior conviction.”
Mountjoy v. People, 2018 CO 92M, ¶ 15. Facts that fall into the first
three categories are “Blakely-compliant,” while facts in the fourth
category are “Blakely-exempt.” Lopez, 113 P.3d at 723.
¶9 In addition, “the trial court must rely on facts outside of the
elements of the crime itself.” Mountjoy, ¶ 13. In other words, the
4 court can’t aggravate a sentence “without finding some facts to
support it beyond the bare elements of the offense.” Lopez, 113
P.3d at 722 (quoting Blakely, 542 U.S. at 305 n.8).
C. Analysis
¶ 10 Randolph first argues that the district court erred by
aggravating his sentence based on his prior domestic violence
convictions because those convictions are an element of an HDVO
offense.
¶ 11 We agree that the district court’s decision to aggravate
Randolph’s sentence must be supported by Blakely-compliant or
Blakely-exempt facts “beyond the bare elements of the offense.” See
id. (We assume, without deciding, that this also applies to the
elements of a sentence enhancer.) But contrary to Randolph’s
argument, the record reflects that the district court complied with
this directive. The court said that Randolph’s “prior felony
convictions . . . all qualify as aggravation in this case.” Three of
Randolph’s six prior felonies were domestic violence convictions
that were part of Randolph’s plea to an HDVO offense, but three
were not. Prior criminal convictions are Blakely-exempt facts, and
the court acted within its discretion by aggravating Randolph’s
5 sentence based on the convictions that didn’t form the elements of
the HDVO sentence enhancer. See id. at 730 (“Whether prior
convictions are extraordinary aggravating circumstances is a
determination made by the judge alone.”); see also DeHerrera v.
People, 122 P.3d 992, 994 (Colo. 2005) (noting that a trial court’s
decision to impose an aggravated sentence may be informed by the
defendant’s past conduct and past convictions).
¶ 12 Furthermore, although Randolph admitted to eight prior
domestic violence convictions, only three were necessary to subject
him to the HDVO sentence enhancer. § 18-6-801(7)(a). To the
extent the court aggravated Randolph’s sentence based on the
excessive convictions, we perceive no error. That Randolph had
nearly three times the number of domestic violence convictions
required for the HDVO sentence enhancer goes beyond the “bare
elements” of his offense and is therefore an appropriate aggravating
consideration. Lopez, 113 P.3d at 722.
¶ 13 Next, Randolph argues that the court erred by aggravating his
sentence based on unadmitted facts regarding the “sexual aspect”
of the assault. But even if the court did so, we need not address
this argument. “One Blakely-compliant or Blakely-exempt factor is
6 sufficient to support an aggravated sentence.” Id. at 731
(concluding that prior convictions adequately supported the trial
court’s decision to aggravate and declining to address aggravation
based on the defendant’s uncharged conduct). Because the district
court properly relied on the prior convictions to aggravate
Randolph’s sentence, “[n]othing more is constitutionally required.”
DeHerrera, 122 P.3d at 994.
¶ 14 For all the above reasons, we uphold Randolph’s sentence.
III. Disposition
¶ 15 The sentence is affirmed.
JUDGE LIPINSKY and JUDGE PAWAR concur.