People v. Montour

157 P.3d 489, 2007 WL 1175828

• Court: Supreme Court of Colorado
• Decided: April 23, 2007
• Docket: No. 02SA365
• Status: Published

Opinions

Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this appeal, we exercise our jurisdiction to conduct an independent review of the death sentence of Edward Montour, Jr. We hold that Colorado's death penalty statute cannot deprive the defendant of his Sixth Amendment jury trial right on the facts essential to the death penalty eligibility determination when that defendant pleads guilty. Here, Montour pled guilty and pursuant to the Colorado death penalty statute, his guilty plea automatically waived his right to have a jury determine his sentence. We hold that the statute unconstitutionally links the waiver of a defendant's jury sentencing right to his guilty plea. Hence, we affirm Montour's guilty plea and apply the severability clause in the death penalty statute to excise the unconstitutional language in the death penalty statute. We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Mont-our's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea.

Montour pled guilty to the first-degree murder of a correctional officer at the Limon Correctional Facility, where he was serving a life sentence without the possibility of parole for the first-degree murder of his infant daughter. The district court judge sentenced Montour to death under subsection 18-1.3-1201(1)(a), C.R.S. (2006), which states that a capital defendant waives his right to a jury trial on sentencing facts when he pleads guilty.

We do not disturb Montour's guilty plea as he does not challenge its validity. Instead, we focus our independent review on the public interest and the manner in which the death penalty was imposed pursuant to subsection 18-1.3-1201(6)(a). Specifically, we review the sentencing procedures in subsection 18-1.3-1201(1)(a) for fundamental fairness. We hold that the provision in subsection 18-1.3-1201(1)(a) requiring a defendant to waive his Sixth Amendment right to a jury trial on all facts essential to the death penalty eligibility determination when he pleads guilty violates the Sixth Amendment. A defendant's jury trial right on these sentencing facts may not be forfeited automatically when he pleads guilty to a capital crime.

In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 LEd.2d 403 (2004), the United States Supreme Court clarified that the Sixth Amendment right to a jury trial on sentencing facts, recognized in Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 485 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 158 LEd.2d 556 (2002), is a right independent of the right to a jury trial on the guilt phase. See also Lopez v. People, 113 P.3d 718 (Colo.2005) (applying the holdings of Apprendi and Blakely); Woldt v. People, 64 P.3d 256 (Colo. 2003) (applying the Ring holding). In Blakety, the Court held that the Sixth Amendment entitles a defendant to jury fact-finding on all facts essential to the punishment at sentencing even when he pleads guilty. 542 U.S. at 313-14, 124 S.Ct. 2531. Hence, the right to a jury trial on all facts essential to the punishment during sentencing is not waived automatically by the act of pleading guilty. We note that the General Assembly added the waiver provision in subsection 1201(1)(a) two years before Blakely, such that it was unaware of the independent nature of the right to a jury trial on sentencing facts when it created the waiver provision.

Under Colorado law, the facts essential to punishment in a death penalty case include the facts necessary to determine death penalty eligibility under subsection 18-1.3-1201(2)(a). Woldt, 64 P.3d at 266-67. The death penalty eligibility determination includes three steps: finding aggravating factors, finding mitigating factors, and weighing aggravating factors against mitigating factors. By the terms of subsection 18-1.3-1201(2)(a), a jury must determine death penalty eligibility and complete the fourth step-selection of a sentence-unless a defendant waives the right to a jury trial on sentencing.

While a defendant may waive the right to a jury trial on sentencing facts, this waiver must be knowing, voluntary, and intelligent. Subsection 18-1.3-1201(1)(a) is facially unconstitutional because it fails to effect a knowing, voluntary, and intelligent waiver, as the waiver is automatic when a defendant pleads guilty. In this case, although Mont-our understood that he was waiving his right to a jury trial on sentencing facts by entering a guilty plea, his waiver of his Sixth Amendment right was infected with the same constitutional infirmity as subsection 18-1.3-1201(1)(a)-the waiver of his Sixth Amendment right was inextricably linked to his guilty plea.

To cure this Sixth Amendment violation, we sever the unconstitutional language in section 18-1.8-1201. After severing that language, we are left with a coherent statute that says if the death sentence of a defendant who pleads guilty is held invalid, then the case shall be remanded to the district court for a new sentencing hearing before a jury unless the defendant waives his right to jury sentencing.

We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea. Only after a valid waiver may the district court conduct the sentencing hearing.

II. Jurisdiction

Subsection 18-1.3-1201(6)(a) establishes our jurisdiction over this case, providing "Iwlhenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence." See also CAR. 4(d)(1);¹ People v. Harlan, 8 P.3d 448, 498 (Colo.2000) (conducting required independent review of a death sentence rendered after jury trial and sentencing); People v. Dunlap, 975 P.2d 723, 764 (Colo.1999) (same); People v. Davis, 794 P.2d 159, 212 (Colo.1990) (same); People v. White, 870 P.2d 424, 426-27 & n. 1 (Colo.1994) (conducting independent review of a death sentence based in part on guilty pleas). This Court's independent review serves as an additional safeguard to ensure that the death penalty is not imposed arbitrarily and capriciously in violation of the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 198, 204-06, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring).

Our duty to conduct this independent review is separate and distinct from our appellate review. See § 18-1.3-1201(6)(a) ("The supreme court shall combine its review pursuant to this subsection (6) with consideration of any appeal . ...") (emphasis added). In Dunlap, we recognized our dual role as "an appellate court reviewing trial court proceedings and ... independent arbiters to review the propriety of the sentence." 975 P.2d at 765.

Further, subsection 18-1.3-1201(6)(a) mandates our review as independent arbiters. Subsection 18-1.3-1201(6)(a) states that the supreme court "shall review" the sentence when death is imposed. See also C.A.R. 4(d)(1) (same); Harlan, 8 P.3d at 498 (stating that "Iwle are obligated by statute to independently review"); Dunlap, 975 P.2d at 764 (recognizing that we were undertaking independent review "mandated" by the statute); Davis, 794 P.2d at 212 (acknowledging that the court "is required" to conduct the independent statutory review). Unlike direct appeal, which is a right a defendant may waive, a defendant cannot waive our independent review of his death sentence.²

Subsection 18-1.3-1201(6)(a) requires us to review "the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based." Here, we undertake the review mandated by the statute with regard to the third consideration: the public interest and the manner in which the sentence was imposed.

When considering the public interest in the imposition of the death penalty in this case, our analysis is confined to whether the proceedings sentencing Montour to death were fundamentally fair. Dunlap, 975 P.2d at 765. The public interest demands that the trial and sentencing proceedings of a person facing death be fundamentally fair. Id. Hence, we review the statutory scheme under which the court sentenced Montour, subsection 18-1.3-1201(1)(a).

Due to the uncertainty that Apprendi, Ring, and Blakely created regarding a defendant's Sixth Amendment right to jury sentencing, we issued an order requesting that the parties brief the applicability and constitutionality of subsection 18-1.3-1201(1)(a). This subsection provides in relevant part that when a defendant enters a guilty plea to a class 1 felony, the court must conduct the sentencing hearing because when a defendant pleads guilty he automatically waives his right to a jury trial on sentencing facts:

[I]f the defendant pled guilty [to a class 1 felony], the [sentencing] hearing shall be conducted before the trial judge. The court shall instruct the defendant when waiving his or her right to a jury trial or when pleading guilty, that he or she is also waiving his or her right to a jury determination of the sentence at the sentencing hearing.

In addition to the parties, we invited a number of organizations to file amicus curiae briefs: the Colorado Attorney General, the Colorado District Attorney's Council, the Colorado Public Defender, the Colorado Criminal Defense Bar, the Colorado Alternate Defense Counsel, and the Colorado Bar Association. The parties, as well as amici from the Colorado Attorney General's Office, the Colorado District Attorney's Council, the Colorado Criminal Defense Bar, and the Colorado Public Defender's Office, submitted briefs for our review. Having reviewed each of these arguments, we now turn to the facts of this case.

III. Facts and Proceedings Below

The district court sentenced Edward Montour, Jr. to death for killing a correctional officer while he was serving a life sentence without parole at the Limon Correctional Facility for first-degree murder of his infant daughter. Montour killed Sergeant Eric Au-tobee on October 18, 2002, by striking him on the back of his head with an industrial-sized ladle, and was subsequently arrested and charged with first-degree murder and possession of contraband. The district court granted Montour's request to proceed pro se and appointed advisory counsel.

The prosecution formally notified Montour that it would seek the death penalty and gave Montour notice of the statutory aggravating factors it sought to prove. The prosecution alleged six aggravating factors enumerated in subsection 18-1.3-1201(b):(1) Montour committed the class 1 felony of first-degree murder while he was imprisoned for another class 1 felony (first-degree murder); (2) Montour was previously convicted of a class 1 felony involving violence (first-degree murder); (8) Montour intentionally killed a peace officer engaged in the course of performing his official duties with the knowledge that Autobee was a peace officer; (4) Montour committed the first-degree murder while lying in wait; (5) Montour committed the first-degree murder in an especially heinous, cruel or depraved manner;³ and (6) Montour's possession of the weapon he used to commit the first-degree murder constituted a felony offense.

Montour filed a motion in which he asked the district court to declare Colorado's death penalty statute unconstitutional under Ring, 586 U.S. 584, 122 S.Ct. 2428, 158 L.Ed.2d 556, which the district court denied. Mont-our then filed a petition to enter a guilty plea to the first-degree murder charge.

Prior to entering his guilty plea, Montour repeatedly stated that he understood that by pleading guilty he was waiving his right to have a jury determine his sentence under subsection 18-1.3-1201(1)(a). In every instance in which he waived his right to jury sentencing, his waiver was linked to his guilty plea; all the parties-Montour, the district attorney, and the district court-understood that Montour was required to waive this right because he was pleading guilty. Montour's statements indicate that he understood this linkage. His pro se petition to enter a guilty plea includes statements indicating this understanding,⁴ as do his statements at the motions hearing acknowledging the court's advisement of the conditions of his guilty plea, and the guilty plea advisement he signed.⁵ The district court repeatedly explained to Montour at the motions hearing on Montour's guilty plea that the consequences of pleading guilty under subsection 1201(1)(a) included a required waiver of his right to jury sentencing,⁶ and the People tendered the guilty plea advisement form Montour signed, which included statements indicating that Montour understood that he was waiving his right to jury fact-finding during sentencing because he was pleading guilty.

The district court accepted Montour's guilty plea and held a three-day sentencing hearing. At the hearing, Montour renewed his motion challenging the Colorado death penalty statute's constitutionality under Ring. The district court denied Montour's motion without dcomment. Montour did not call any witnesses, offer any exhibits, or proffer any evidence in mitigation except his cooperation with law enforcement.

At the sentencing hearing, the district court found that when Montour entered his guilty plea, he was "thoroughly and repeatedly advised that by pleading guilty, the sentencing determination in this matter would be made by this Court" and "agreed to this process." Hence, the district court conducted the death penalty eligibility determination and found that the prosecution proved all five of the statutory aggravating factors beyond a reasonable doubt. Regarding mitigating evidence, the district court found that the mitigating fact that Montour cooperated with law enforcement by confessing his crime had to be considered "in light of the savagery of his unprovoked attack on a peace officer." The court found that "his reasons for cooperating with law enforcement were not to provide assistance to the investigation, but instead, to broadcast his own distorted logic behind this cold-blooded murder."

The court then weighed the aggravating factors against the mitigating factors and concluded that the mitigating factors did not outweigh the aggravating factors, reasoning that "[wlhatever weight can be given to mitigation that can be associated with the defendant's willingness to talk to law enforcement pales in comparison to the aggravating factors established in this case." The district court then proceeded to the selection of a sentence and chose the death penalty, considering the circumstances surrounding the crime, Montour's character, background, and history, and the impact on the victim's family.

We now independently review Montour's death sentence, analyzing the constitutionality of subsection 18-1.3-1201(1)(a).

IV. Analysis

Right to Jury Trial on Sentencing Facts

The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. Apprendi, 580 U.S. at 476, 490, 120 S.Ct. 2348. The facts that fall under the Apprendi right to jury fact-finding include all "facts essential to punishment." Cunningham v. California, -- U.S. --, --, 127 S.Ct. 856, 869, 166 L.Ed.2d 856 (2007). See also Blakely, 542 U.S. at 804, 124 S.Ct. 25831 (noting that the jury must find "all the facts which the law makes essential to the punishment" (internal quotation omitted)); People v. Isaacks, 133 P.3d 1190, 1192-93 (Colo.2006) (citing Blakely, 542 U.S. at 304, 124 S.Ct. 2581).

We have labeled the fact of a prior conviction as "Blakely-exempt" because it need not be found by a jury. Lopes, 113 P.3d at 728. In Lopes, we held that under subsection 18-1.3-401(6), C.R.S. (2006),⁷ the existence of any Blakely-exempt fact opens the aggravated range and permits the sentencing court to determine other aggravating facts that are not Blakely-exempt. Lopez, 118 P.3d at 781; DeHerrera v. People, 122 P.3d 992, 994 (Colo. 2005).

The Apprendi rule applies in death penalty cases, such that defendants facing the death penalty have a Sixth Amendment right to a jury trial on facts necessary for imposition of the death penalty. Ring, 536 U.S. at 609, 122 S.Ct. 2428. In the death penalty context, the facts essential to the punishment that fall under the Apprendi-Ring-Blakely rule consist of those facts needed to make a death penalty eligibility determination. See Wold{, 64 P.3d at 266-67 (reasoning that the Sixth Amendment requires that a jury find any facts necessary to make a defendant eligible for the death penalty).

The Colorado death penalty sentencing scheme includes four steps: finding aggravating factors, finding mitigating factors, weighing aggravating factors against mitigating factors, and determining whether the death penalty is the appropriate sentence for a particular defendant. § 18-1.3-1201(2)(a); Woldt, 64 P.8d at 264 (referencing section 16-11-1038, which was repealed and recodified in 2002 at section 18-1.3-1201). The first three steps constitute the death penalty eligibility determination. § 18-1.3-1201(@2)(a)(D)-(II); Woldt, 64 P.3d at 264 (citing Dunlap, 975 P.2d at 739). By the terms of subsection 18-1.3-1201(2)(a), a jury determines death penalty eligibility and completes the fourth step of selecting a sentence. Hence, the statutory right to jury sentencing in Colorado is even greater than the Sixth Amendment right under the Apprendi-Ring-Blakety line of cases because it encompasses not only a jury trial on sentencing facts, but also includes the right to have a jury impose a sentence of life or death after determining that the defendant is eligible for the death penalty.

The People argue that subsection 18-1.3-1201(1)(a) is constitutional as applied to Montour because his death sentence is properly based on the "Blakely-exempt" fact of a prior conviction, citing to our reasoning in Lopez, 118 P.3d at 7283. Hence, the People argue, Montour has no right to jury fact-finding regarding the other aggravating factors on which the district court based his death sentence because he was eligible for the death penalty based solely on the fact of his prior conviction. We disagree, as our holding in Lopez was based on the language in subsection 18-1.3-401(6), which is fundamentally different from the death penalty eligibility determination under subsection 18-1.3-1201(2)(a).

Under subsection 18-1.3-401(6), the sentencing scheme for determining aggravated prison sentences at issue in Lopes, a sentencing court must undertake only one step to make a defendant eligible for a prison term longer than the presumptive range: the court must find an extraordinary aggravating cireumstance to justify the longer sentence. In Lopez, we held that the Blakely-exempt fact of a prior conviction may constitute the extraordinary aggravating cireumstance that opens up the aggravated range. 113 P.3d at 731. In death penalty sentencing under subsection 18-1.3-1201(2)(a), on the other hand, a sentencing court must undertake a three-step eligibility determination before finding a defendant eligible for the death penalty: finding aggravating cireumstances, finding mitigating cireumstances, and weighing aggravating cireumstances against mitigating cireumstances. Because a defendant is not eligible for the death penalty until all aggravating factors are weighed against all mitigating factors, the presence of one Blakely-exempt aggravating factor standing alone does not make a capital defendant eligible for the death penalty.

In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing. ... If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range;. ...

Hence, our Lopez holding does not apply in the death penalty sentencing context. Capital defendants have a right to a jury trial on all aggravating facts used to determine death eligibility. See § 18-1.3-1201(2)(a)(D-(II); Woldt, 64 P.3d at 266-67. Montour has a Sixth Amendment right to jury fact-finding on the aggravating factors other than the fact of his prior conviction that are essential to the death eligibility determination. We now turn to the question of whether Montour waived this right.

Waiver of Right to Jury Trial on Sentencing Facts

The General Assembly amended subsection 18-1.3-1201(1)(a) in 2002 at an extraordinary session that the governor called in response to Ring. Governor of Colorado, Executive Order No. D-020-02, Call for the Third Extraordinary Session of the Sixty-Third General Assembly. At that time, it was unclear whether the right to have a jury trial on all facts essential to punishment during sentencing was independent of the Sixth Amendment right to have a jury trial on the guilt phase. See Blakely, 542 U.S. 296, 124 S.Ct. 2581, 159 L.Ed.2d 408. Over two years passed before the United States Supreme Court squarely addressed this issue in Blakely. Id.

Blakely established the right to a jury trial during sentencing on all facts essential to punishment as a right independent from the right to a jury trial on the issue of guilt. « Id. at 301-05, 124 S.Ct. 2531. In a factual situation similar to this case-the defendant pled guilty-the United States Supreme Court held that the trial court's finding of aggravating facts and imposition of an aggravated sentence after the defendant pled guilty violated the defendant's Sixth Amendment right to trial by jury. Id. The Court stated that a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding." Id. at $10, 124 S.Ct. 25831.

Since Blakely, this Court has also recognized the Sixth Amendment right to jury trial on sentencing facts as independent of the Sixth Amendment right to a jury trial on guilt. In Lopes, we held that defendants who plead guilty retain a right to a jury trial on any fact, other than a Blakely-exempt fact, which is necessary to support a sentence that exceeds the maximum authorized by the facts established by the guilty plea. 118 P.3d at 728.

Likewise, in Isaacks we acknowledged that United States Supreme Court precedent clearly establishes that a defendant has an independent right to jury sentencing when the intended sentence involves factual findings beyond those established by the plea:

Apprendi and Blakely provide a clear answer to the question of what facts are covered by the jury-trial right: The Blakely right extends to all facts that are not reflected in a jury verdict or, in the case of a plea bargain, to all facts beyond those that establish the elements of the charged offense.

133 P.3d at 1198.

Even though the General Assembly did not anticipate the Blakely holding when it amended subsection 18-1.3-1201(1)(a) in response to Ring, it did recognize the significance of the independent right to a jury trial on sentencing facts. The subsection provides in pertinent part that "[the court shall instruct the defendant when pleading guilty, that he or she is also waiving his or her right to. a jury determination of the sentence at the sentencing hearing." § 18-1.3-1201(1)(a) (emphasis added). It is well-established that a guilty plea serves as a defendant's waiver of his right to a jury trial on guilt. Boykin v. Alabama, 395 U.S. 238, , 89 S.Ct. 1709, 28 L.Ed.2d 274 (1969); People v. Kyler, 991 P.2d 810, 816 (Colo. 1999). By including the language acknowledging that a defendant "is also" waiving his right to jury sentencing when he pleads guilty, the General Assembly emphasized the importance of a defendant's right to a jury trial on sentencing facts.

A defendant may waive his right under Apprendi to have a jury determine facts during sentencing. Blakely, 542 U.S. at 310, 124 S.Ct. 2581; Lopez, 118 P.3d at 726. The general standard for the waiver of a constitutional right is an intentional relinquishment of a known right or privilege. People v. Curtis, 681 P.2d 504, 514 (Colo. 1984). This standard applies to the waiver of jury sentencing on facts that form the basis of an aggravated sentence. Isaacks, 133 P.3d at 1194 (stating "it is not difficult to extrapolate the rule that, like the right to jury trial generally, the right to have a jury determine the facts that form the basis for aggravated sentencing ... is a fundamental right that can only be waived knowingly, voluntarily, and intelligently"). Because defendants have a Sixth Amendment right to jury sentencing in capital cases, the main issue before us is whether subsection 18-1.3-1201(1)(a) procures the necessary waiver of this right. |

The guilty plea alone does not constitute a waiver of the right to jury fact-finding on death eligibility. Cunningham, 127 S.Ct. at 865 (recognizing Blakely's rejection of the State's argument that the Apprendi rule did not apply because the guilty plea in Blakely provided the court with discretion to impose an exceptional sentence); Blakely, 542 U.S. at 304, 124 S.Ct. 2581 (defendant pled guilty but still had a right to jury fact-finding during sentencing); Apprendi, 530 U.S. 466, 120 S.Ct. 2848, 147 LEd.2d 485 (same); Lopez, 113 P.3d at 726-27 ("A guilty plea waives the right to a jury trial on the issue of guilt but is not a stipulation to judicial sentencing based on facts not admitted in the plea.").

The People argue that this Court should follow other state courts that have held that a defendant who pleads guilty forfeits his right to jury fact-finding during sentencing, citing Leone v. State, 797 N.E.2d 743 (Ind. 2003); People v. Altom, 338 Ill.App.3d 355, 272 Ill.Dec. 751, 788 N.E.2d 55 (2003); Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002); State v. Crisp, 362 S.C. 412, 608 S.E.2d 429 (2005); and State v. Downs, 361 S.C. 141, 604 S.E.2d 877 (2004). We are not persuaded as the majority of these cases are distinguishable because they were decided before Blakely and thus fail to recognize an independent right to jury fact-finding during sentencing. The Supreme Court of South Caroling is the only court to hold post-Blakety that a defendant waives his right to jury fact-finding during sentencing by pleading guilty, but its failure to cite Blakely suggests those decisions to be in error.

Onee a capital defendant enters a guilty plea, he retains the Sixth Amendment right to jury sentencing on the facts essential to the determination of death eligibility.⁸ A court must procure the appropriate waiver after a guilty plea or finding of guilt before judicial fact-finding in sentencing is permissible. See Blakely, 542 U.S. at 810, 124 S.Ct. 2581.

We now turn to subsection 18-1.3-1201(1)(a) to determine whether its waiver provision is constitutional.

Constitutionality of Section 18-1.3-1201

A statute is facially unconstitutional only if no conceivable set of cireum-stances exist under which it may be applied in a constitutionally permissible manner. Woldt, 64 P.3d at 266. Out of respect to the legislative and executive branches, we begin with the presumption that a statute is constitutional. Id. Ultimately, however, we make the decision as to the statute's constitutionality. Id.

Subsection 18-1.3-1201(1)(a) contains the statutory language at issue here. This provision mandates that when a defendant pleads guilty to a class 1 felony, he must waive his right to a jury trial on sentencing facts and the trial court must conduct the sentencing hearing:

Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment.... If a trial jury was waived or if the defendant pled guilty, the hearing shall be conducted before the trial judge. The court shall instruct the defendant when waiving his or her right to a jury trial or when pleading guilty, that he or she is also waiving his or her right to a jury determi-mation of the sentence at the sentencing hearing.

§ 18-1.3-1201(1)(a) (emphasis added).

This provision links the waiver of a defendant's right to jury trial on sentencing facts to the guilty plea because, if a defendant pleads guilty, then his right to a jury trial on sentencing is automatically waived. The statutory language is mandatory, "if the defendant pled guilty, the hearing shall be conducted before the trial judge." Id. (emphasis added). The statute further states that the court shall instruct the defendant that when he is pleading guilty that he "is also" waiving his right to a jury determination at sentencing. Id. According to this provision, the court need not procure an individual waiver of the defendant's right to a jury trial on sentencing facts. The guilty plea necessarily results in this waiver by terms of the statute.

The defendant's entry of a guilty plea does not waive a defendant's independent right to a jury trial on all facts essential to punishment during sentencing. Cunning ham, 127 S.Ct. at 865; Blakely, 542 U.S. at 304, 124 S.Ct. 2531; Apprendi, 580 U.S. at 490, 120 S.Ct. 2348; Lopez, 118 P.3d at 726-27. As previously discussed, the Sixth Amendment requires the district court either to afford a capital defendant a jury trial on aggravating factors or to procure an additional knowing, voluntary, and intelligent waiver of this independent right after a defendant enters a plea of guilt. Blakely, 542 U.S. at 304, 810, 124 S.Ct. 2581; Isaacks, 133 P.3d at 1194. Subsection 18-1.3-1201(1)(a) violates the Sixth Amendment because it mandates that a court sentence a capital defendant who has pled guilty to a class 1 felony. Under the terms of the statute, the court need not procure an additional knowing, voluntary, and intelligent waiver of this Sixth Amendment right as is constitutionally required, but instead must inform the defendant that by pleading guilty he automatically waives his right to a jury trial on sentencing facts.

It is true that when a defendant pleads guilty he necessarily waives other rights including his privilege against compulsory self-inerimination, his right to trial by jury, and his right to confront his accusers. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). A defendant's guilty plea does not, however, waive all of his rights. Instead, as argued by Amicus Colorado Criminal Defense Bar, this guilty plea only waives those rights that are incompatible with a guilty plea. For example, while a defendant cannot plead guilty and retain his Sixth Amendment right to a jury trial on the guilt phase, he does retain the right to counsel until the case is concluded.

The defendant's right to a jury trial on sentencing facts is not incompatible with pleading guilty. While it would be impossible for a defendant to testify in a case where he has entered a guilty plea, a defendant can plead guilty and still have jury trial on sentencing facts. Because the entry of a guilty plea does not necessarily require a waiver of the right to a jury trial on sentencing facts, it is improper for the statute to require that the defendant's guilty plea automatically waive this right.

This linkage is especially problematic because it compromises the defendant's exercise of his Sixth Amendment right to jury sentencing on the facts essential to the determination of death penalty eligibility by conditioning the defendant's access to a guilty plea upon his waiver of this right. Defendants in capital cases have a powerful incentive to plead guilty due to the serious consideration given to mitigating evidence of remorse and acceptance of responsibility in capital sentencing. See Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 978 (1978) (recognizing that it is unconstitutional to preclude jurors' consideration of mitigating evidence because the consideration of mitigating evidence is key to individualized sentencing in capital cases); State v. Louviere, 833 So.2d 885, 894 (La.2002) (recognizing that "denying a defendant the choice to plead guilty arguably would impermissibly deprive the defendant, per the federal Constitution, of his strategic choice to acknowledge his crime and thereby appear remorseful before his jury"); Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L.Rev. 1557, 1558, 1586 (1998) (noting that a defendant's lack of remorse is often a significant factor precipitating the Jury's decision to impose the death penalty). Further, because trials of capital cases can be especially traumatic, some defendants are compelled to enter guilty pleas so as to avoid the pain that the process inevitably will cause to themselves, their families, or the victim's families. See Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1468, 25 LEd.2d 747 (1970) (explaining that "post-indiectment aceu-mulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family" and that guilty pleas entered for this reason are valid); see generally Abney v. United States, 481 U.S. 651, 661-62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (recognizing "the personal strain, public embarrassment, and expense of a criminal trial"); Barry J. Fisher, Judicial Suicide or Constitutional Autonomy? A Capital Defendant's Right to Plead Guilty, 65 Alb. L.Rev. 181, 200-01 (2001) (recognizing the capital defendant's interest in avoiding trial by entering a guilty plea). By linking the waiver of a jury trial on sentencing facts to the guilty plea, this statute unnecessarily increases the likelihood that a defendant will waive his Sixth Amendment right to a jury trial on facts essential to the death penalty eligibility determination in order to plead guilty on the merits, thereby compromising one of his Sixth Amendment rights.

Because the statute does not require the court to procure a knowing, voluntary, and intelligent waiver of a defendant's independent right to a jury trial on the facts essential to the determination of death eligibility (here, the first three steps of death penalty sentencing in subsection 18-1.3-1201(2)(a)), we hold that this linked automatic waiver violates a defendant's Sixth Amendment right to jury sentencing. We conclude that no conceivable set of cireumstances exist under which it may be applied in a constitutionally permissible manner.⁹ See Woldt 64 P.3d at 266. The facts of this case prove this point. The People argue that Montour waived a sentencing jury and consented to judicial fact-finding. While it is true that the record is awash with advisements by the district court and statements of waiver by Montour, we disagree that these waivers were sufficient because they were linked to the statute's command that Montour's guilty plea automatically forfeited his right to a jury trial on his sentence.

We find as a matter of law that Montour's waiver could not have been knowing, voluntary, and intelligent because it was infected by the same constitutional infirmity as subsection 18-1.3-1201(1)(a)-his waiver was inextricably linked to his guilty plea Our review of the record indicates that while Montour knew he was waiving his right to a jury trial on sentencing facts, each time the court procured this waiver it was with the understanding by all parties that Montour waived it by pleading guilty under the statute which automatically waived his right to jury sentencing.¹⁰

We hold that subsection 18-1.3-1201(1)(a)'s linked waiver violates a defendant's Sixth Amendment right to jury sentencing on the facts essential to the determination of death penalty eligibility. Under no cireumstances could this statute be applied to procure a constitutional waiver. Montour did not knowingly, intelligently, and voluntarily waive his Sixth Amendment right to a jury trial on the facts that were essential to his death penalty eligibility determination.

The Sixth Amendment violation in subsection 18-1.3-1201(1)(a) renders Montour's death sentence invalid. For this reason, we reverse Montour's death sentence. We now must address the appropriate remedy on remand in this case. The issue is whether we should direct the district court to sentence Montour to life imprisonment, or direct the district court to provide a new jury sentencing hearing to determine his eligibility for a death sentence and to determine whether he should receive a death sentence or life imprisonment.

Remedy

Turning to our death penalty statute, we excise the unconstitutional language in that statute pursuant to its severability clause. After doing this, we are left with a coherent statutory scheme which provides that if the death sentence of a defendant who pled guilty is invalid under the circumstances of this case, then the case shall be remanded to the district court for a new sentencing hearing before a newly impaneled jury unless the defendant waives this right to jury sentencing. Where there is a coherent death penalty sentencing scheme after severing unconstitutional portions of the statute, life imprisonment becomes the required sentence only if the death penalty itself is held unconstitutional, or if the evidence is insufficient to support the death sentence. Neither of these circumstances is the case here.

The death penalty statute includes a sever-ability clause which states that unconstitutional provisions are to be severed and the remaining statute is to remain operative where possible.¹¹ As our authority extends to determine whether the severance of unconstitutional portions of a statute is viable, Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 12683, 1280 (Colo.2001), we apply traditional principles of severability to determine whether excising the unconstitutional provisions in section 18-1.3-1201 leaves us with a valid and operative death penalty statute.

When a statute is unconstitutional, the proper remedy is determined by looking to legislative intent. United States v. Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); City of Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d 52, 70 (Colo.1981). We seek to determine what the General Assembly would have intended in light of our constitutional holding. Booker, 543 U.S. at 246, 125 S.Ct. 788. See also People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 372 (Colo. 1985) (looking to what the legislature would have intended if it knew the court would hold part of a statute to be unconstitutional). A severability clause creates the presumption that the General Assembly would have been satisfied with the portions of a statute that remain after the unconstitutional portions are stricken. Colfox Unlimited Ass'n, 634 P.2d at 70. This presumption governs unless the remaining statutory language is so riddled with omissions that it cannot be salvaged as a meaningful legislative enactment. Id. We are not required to strike an entire sentence or separate section or subsection as unconstitutional; words or phrases may be severed. Rodriguez v. Schutt, 914 P.2d 921, 929 (Colo.1996).

We now consider which portions of section 18-1.3-1201 are unconstitutional such that they must be stricken. As discussed, requiring a waiver of the right to a jury trial on all facts essential to the death penalty eligibility determination when a defendant pleads guilty violates a capital defendant's rights under the Sixth Amendment. Hence, any language linking this waiver to a guilty plea on the guilt phase of the case must be strick en. Such language occurs in two parts of this statute: subsection 1201(1)(a), which provides the sentencing procedure the district court must follow when a defendant is convicted of a class 1 felony, and subsection 1201(7)(b), which controls the procedure for the district court to follow on remand when we hold a defendant's death sentence invalid and remand for resentencing. While striking the language in subsection 1201(1)(a) has no bearing on what we direct the district court to do on remand in Montour's case, striking the language in subsection 1201(7)(b) controls what must happen on remand in this case.

Sentencing Procedures for Convicted Class 1 Felons: Subsection 1201(1)(a)

The following underlined portions of the provision for sentencing class 1 felons (subsection 1201(1)(a)) which link the waiver of the right to jury sentencing to the guilty plea, must be stricken as unconstitutional:

Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense or unless the defendant has been determined to be a mentally retarded defendant pursuant to part 11 of this article, in either of which cases, the defendant shall be sentenced to life imprisonment. The hearing shall be conducted by the trial judge before the trial jury as soon as is practicable. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict is entered by the trial jury. If the verdict of the trial jury is that the defendant is guilty of a class 1 felony, the alternate jurors shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the court, any member or members of the trial jury are exeused from participation in the sentencing hearing, the trial judge shall replace each juror or jurors with an alternate juror or jurors. If a trial jury was waived or if the defendant pled guilty, the hearing shall be conducted before the trial judge. The court shall instruct the defendant when waiving his or her right to a jury trial or when pleading guilty, that he or she is also waiving his or her right to a jury determination of the sentence at the sentencing hearing.

§ 18-1.3-1201(1)(a). Although subsection 1201(1)(a) does not control the remedy in this case, we must determine whether severing the underlined language leaves us with a coherent sentencing scheme that trial courts may apply in future cases, or whether the entire provision must be stricken because the remaining language is not salvageable. See Colfex Unlimited Ass'n, 634 P.2d at 70. To make this determination, we look to the intent of the General Assembly. Booker, 543 TU.S. at 246, 125 S.Ct. 738; Colfox Unlimited Assn., 634 P.2d at 70.

The proper question to ask is what the General Assembly would have intended in light of our constitutional holding striking the waiver provision in the last two sentences of the subsection. See Booker, 548 U.S. at 246-47, 125 S.Ct. 788; Seven Thirty-Five East Colfax, 697 P.2d at 872. As explained in Booker, this legislative intent dictates the proper remedial approach. 543 U.S. at 246, 125 S.Ct. 738 (recognizing that when a court considers remedies that alter the system that Congress designed, it must determine the remedy that deviates least radically from Congress' intended system). In Booker, the majority concluded that severance of the unconstitutional provision of the federal sentencing statute was the proper remedial approach, because it was the remedy Congress would have preferred. Id. at 249, 125 S.Ct. 738. To reach this conclusion the Court rejected the dissent's alternative remedial approach, employing a broader interpretation of the statutory language such that it comported with the Sixth Amendment jury trial requirement and avoided constitutional infirmity. Id. at 250, 125 S.Ct. 788. The Court concluded that the dissent's remedial approach was inappropriate as applied to the sentencing statute because it led to a result inconsistent with Congressional intent. Id. ("[the dissent's] reinterpretation ... would be plainly contrary to the intent of Congress") (internal quotation omitted). It did not, however, reject this remedial approach of constitutional avoidance in all cases. Hence, we now assess the General Assembly's intent when amending subsection 18-1.3-1201(1)(a) to determine the appropriate remedial approach in this case.

As stated, the General Assembly amended subsection 18-1.3-1201(1)(a) in 2002 at an extraordinary session that the governor called in response to Ring. The General Assembly's primary intent in amending the death penalty statute was to ensure that Colorado has a constitutional death penalty statute. To achieve this result, the legislature intended to amend the statute to comport with Ring's jury trial requirement. This intent appears in the plain language of the severability clause, which states the purpose of the severability clause is to "maintain this section as a valid and operative death penalty statute." § 18-1.3-1201(7)(a).¹²

Our review indicates that there are two possible interpretations of subsection 1201(1)(a) after the unconstitutional language is severed: a narrow reading and a broad one. We resolve the question of which interpretation to follow based on the fundamental intent of the General Assembly to maintain a constitutional, valid, and operative death penalty statute, and the doctrine of constitutional avoidance, under which courts have a duty to interpret a statute in a constitutional manner where the statute is susceptible to a constitutional construction. Jones v. United States, 526 U.S. 227, 239, 119 S.Ct. 1215, 143 LEd.2d 311 (1999); People v. Powell, 716 P.2d 1096, 1101-02 (Colo.1986) (citing People v. Washburn, 197 Colo. 419, 598 P.2d 962 (1979)). In this case, both legislative intent and the doctrine of constitutional avoidance support a broad interpretation of subsection 1201(1)(a). Hence, we construe the statute broadly.

Under the broad interpretation of subsection 1201(1)(a), "conviction of guilt" means conviction either following a jury trial or trial to the court, or pursuant to a guilty plea, and "trial jury" means either a jury on a trial to determine a defendant's guilt or a jury on a trial to determine sentencing. The result of this interpretation is that the remaining language of subsection 1201(1)(a) provides the same death penalty sentencing mechanism whether a defendant is convicted of a class 1 felony via a guilty plea, trial to the court, or Jury trial on the guilt phase. This statutory scheme is coherent because it provides for capital sentencing whether conviction was by a jury trial, trial court, or a guilty plea, and does not face the same constitutional objections as does the narrow construction. Such a broad interpretation is consistent with the intent of the General Assembly to maintain a valid and operative death penalty statute and to preserve the remainder of the statute onee any unconstitutional portions are severed.

By contrast, under the narrow reading of the language in subsection 1201(1)(a), "conviction of guilt" means a conviction based only on a jury trial, and "trial jury" means only the jury that heard the trial on the guilt phase.¹³ Under this narrow reading, capital sentencing hearings have to be conducted before the same "trial jury" that convicted the defendant of the class 1 felony. The consequence of this narrow reading of subsection 1201(1)(a) is that it renders the statute incomplete. While it provides for death penalty sentencing after a jury conviction on the guilt phase, there is no death penalty sentencing procedure for defendants who pled guilty. Hence, we must look elsewhere in the sentencing statutes to determine the sentence for a defendant who has pled guilty to a class 1 felony.

To determine the appropriate sentencing procedure for defendants who cannot be sentenced under subsection 1201(1)(a), we turn to the general class 1 felony sentencing provision. See § 18-1.3-401(4)(a) (2006).¹⁴ This provision mandates that when defendants convicted of class 1 felonies are not sentenced to death under the procedures set forth in subsection 18-1.3-1201, they "shall be" punished by life imprisonment. Id. As a result, the narrow construction of subsection 18-1.3-1201(1)(a) means that a death sentence would only be available where a defendant goes to a jury trial on the merits, is convicted of a class 1 offense, and then faces the jury sentence of life or death. Defendants who plead guilty could not be sentenced to death.

This construction of the statute creates two tracks-one leading to the possible imposition of the death penalty and the other leading directly to a life sentence. A defendant who exercises his right to a jury trial on the merits must face the possibility of death, while a defendant who enters a guilty plea could not receive the death penalty but would receive a life sentence pursuant to subsection 18-1.83-401(4)(a).

Such a two-tracked system where a defendant only faces the possibility of death when he exercises his Sixth Amendment right to a jury trial on the merits, because he is ensured a life sentence if he enters a guilty plea, appears to be unconstitutional under the holding of United States v. Jackson, 390 U.S. 570, 581-83, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). Accord Hynes v. Tomei, 92 N.Y.2d 613, 684 N.Y.2d 177, 706 N.E.2d 1201 (1998).¹⁵ In Jackson, the United States Supreme Court held that the sentencing provision of the Federal Kidnaping Act, which facially foreclosed the death penalty as a sentencing option where a defendant pled guilty, violated the defendant's Sixth Amendment rights by needlessly chilling the right to demand a jury trial on the guilt phase. 390 U.S. at 581-83, 88 S.Ct. 1209. The Court reasoned that such a sentencing scheme chills a defendant's constitutional right to a jury trial because the risk of death accompanying the exercise of this right encourages a defendant to waive it and plead guilty. Id. at 583, 88 S.Ct. 1209.

Thus, on its face the narrow construction of subsection 1201(1)(a) is identical to the scheme in Jackson, held to be unconstitutional. A defendant would only face the death penalty if he exercised his Sixth Amendment right to a jury trial

Our conclusion is not altered by the fact that in Colorado, a capital defendant does not have the ability to plead guilty unilaterally as the district attorney and district court may reject any guilty plea to a class 1 felony. § 16-7-206(2), C.R.S. (2006). This consent provision does not cure the Jackson problem in the narrow interpretation of subsection 1201(1)(a) because the question under Jackson is not the validity of a guilty plea that arises out of the statutory scheme encouraging guilty pleas. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (holding that the defendant's guilty plea to a lesser crime to avoid the death penalty was valid despite the defendant's protestations that he was compelled to enter the guilty plea to avoid the possibility of death); Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (upholding a defendant's guilty plea despite the defendant's claims that he would not have entered the guilty plea except for his desire to avoid a possible death sentence). The question is whether: the statutory scheme is facially unconstitutional because it explicitly provides two levels -of penalty for the same offense such that a defendant's Sixth Amendment right to demand a jury trial is needlessly burdened. See Jackson, 390 U.S. at 583, 88 S.Ct. 1209 (reasoning that the fact that the trial court may reject guilty pleas does not cure the constitutional infirmity in the Federal Kidnaping Act's sentencing provision); Hynes, 684° N.Y.S.2d 177, 706 N.E.2d at 1206 (holding that "the need to obtain approval from the People and the court will not save plea provisions that otherwise violate Jackson "). The "narrow interpretation" causes the defendant to face the two-tracked system until the prosecutor decides to accept or reject the guilty plea.

Thus, if we construed this statutory language narrowly rather than broadly, serious constitutional problems would be presented. The doctrine of "constitutional avoidance weighs against the narrow interpretation because the statute is also susceptible to a broader construction that does not present the same constitutional impediments.

Hence, we interpret subsection 1201(1)(a) broadly, such that "conviction of guilt" means conviction either by a jury or pursuant to a guilty plea, and "trial jury" means either a jury on a trial to determine a defendant's guilt or a jury on a trial to determine sentencing. The practical result of this interpretation is that a defendant who pleads guilty is sentenced under the same procedures as a defendant who is convicted following a jury trial.

Remedy For an Invalid Death Sentence: Subsection 1201(7)(b)

Subsection 1201(7)(b), which governs what we do in this case, contains similar language linking the waiver of jury sentencing to pleading guilty. Subsection 1201(7)(b) provides the remedy for the invalidity of a defendant's death sentence for reasons other than the unconstitutionality of the death penalty itself or insufficiency of the evidence, and is thus applicable here. This linkage provision causes the same Sixth Amendment violation as the linkage provision in subsection 1201(1)(a), except that in subsection 1201(7)(b), a defendant's guilty plea waives his right to a jury determination of sentencing facts essential to death penalty eligibility on remand after his death sentence is held invalid. In subsection 1201(7)(b), the words "pled guilty or" must be stricken because the provision including this language automatically waives a defendant's right to jury sentencing on remand if he pled guilty, thus constituting an impermissible linkage. The remainder of the phrase including the words, "waived the right to jury sentencing," can remain because sentencing before a trial judge is constitutionally permissible where the defendant waives his independent right to jury sentencing. Hence, "pled guilty or" must be stricken from subsection 1201(7)(b):

If any death sentence is imposed upon a defendant pursuant to the provisions of this section, and on appellate review including consideration pursuant to subsection (8) of this section, the imposition of such death sentence upon such defendant is held invalid for reasons other than the unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, the case shall be remanded to the trial court to set a new sentencing hearing before a newly impaneled jury, or, if the defendant pled guilty or waived the right to jury sentencing, before the trial judge;....

§ 18-1.83-1201(7)(b).

Severing the underlined portions leaves us with a coherent statutory scheme under which to proceed with Montour's case. Hence, we turn to subsection 1201(7)(b), which provides the remedy for the invalidity of a defendant's death sentence.

Subsection 1201(7)(b), as modified by striking the unconstitutional language, directs us to remand the case to the district court for a new sentencing hearing before a newly impaneled jury unless the defendant waives the right to jury sentencing: "the case shall be remanded to the trial court to set a new sentencing hearing before a newly impaneled jury, or, if the defendant [ ] waived the right to jury sentencing, before the trial judge."

Hence, we remand this case to the district court to provide Montour with an opportunity to have a newly impaneled jury find the facts essential to the determination of his eligibility for the death penalty. A jury must determine Montour's death penalty eligibility unless he provides a valid waiver that is not linked to his guilty plea and that is knowing, voluntary, and intelligent.

V. Conclusion

We hold that Colorado's death penalty statute cannot unconstitutionally deprive the defendant of his Sixth Amendment jury trial right on the facts that are essential to the death penalty eligibility determination when that defendant pleads guilty. We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea. Only after a valid waiver may the district court conduct the sentencing hearing.

Justice MARTINEZ lconcurs in part and dissents in part. Justice COATS dissents. Justice EID does not participate.

1 . Our appellate rules of procedure in CAR. 4(d)(1) provide for independent review in virtually the same language as subsection 18-1.3-1201(6)(a):

Availability of Review. Whenever a sentence of death is imposed, the Supreme Court shall review the propriety of the sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based.

If the Supreme Court determines that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, or that, as a matter of law, the sentence is not supported by the evidence, a sentence of death shall not thereafter be imposed.

2 . The record is unclear as to whether Montour waived his right to direct appeal of his death sentence. On October 30, 2003, he sent a letter to this Court stating his intention to "waive all waivable appeals in the direct appeal process," but later changed his mind stating in another letter dated May 16, 2006, that, "I Edward Mont-our Jr. do hereby withdraw my request to waive appeals." Montour never tried to waive this Court's independent review. In the letter dated October 30, 2003, containing Montour's initial waiver of his direct appeal, he stated, "I understand that under Colorado Statute 18-1.3-1201(6),(7),(8), the supreme court is mandated to follow said statute. Moreover, my waiver has no effect on the courts review of my sentence." In any case, Montour cannot waive this Court's independent review.

3 . This aggravating factor was withdrawn by the prosecution prior to the sentencing hearing.

4 . In Montour's petition to enter a guilty plea, he stated that "by entering a plea of guilty as charged, the factual determination of guilt or innocence is moot and sentencing determinations are then made by the Judge." He also stated, "I am fully aware that due to my guilty plea, I waive three important trial rights [including] a jury determination of the sentencing according to C.R.S. 18-1.3-1201(1)(a)." (emphasis added).

5 . The guilty plea advisement form contained the following statements:

I understand that if I waive my rights to sentencing by a jury of twelve persons by the act of entering a plea of "GUILTY" to Murder in the First Degree, that the judge accepting my plea of "GUILTY" to Murder in the First Degree ... will determine the sentence to be imposed after conducting a sentencing hearing as provided by law.... I understand, AND THE COURT HAS SPECIFICALLY INSTRUCTED ME AS REQUIRED BY C.R.S. 18-1.3-1201(1)(a), that if I enter a "GUILTY" plea to Murder in the

First Degree, a CLASS ONE FELONY, I will waive each and all of my constitutional and statutory rights to a jury trial and will also be waiving each and all of my constitutional and statutory rights to a jury determination of the sentence that I will receive following a sentencing hearing. _... I further expressly state that by pleading "GUILTY" to Murder in the First Degree I want the Honorable Paul A. King, Judge, or if unavailable a replacement judge, to determine the sentence to be imposed on me .... I understand that following my "GUILTY" plea to COUNT ONE, MURDER IN THE FIRST DEGREE, the judge accepting my plea ... shall conduct a separate sentencing hearing to determine if I should be sentenced to life in prison without the possibility of parole or death. Not only do I understand this, but I expressly do not object to sentencing occurring in this fashion.

{emphasis added).

6 . The district court made the following statements:

[Bly entering a plea of guilty, ... you will also be waiving each and every one of your constitutional and statutory rights to a jury determination of the sentence that will be imposed in this case.... Now, as simply as I can put it, by entering a plea today, you eliminate the possibility of a jury deciding what sentence will be imposed.... [Bly pleading guilty today, Mr. Montour, the sentencing, then, will devolve to this Court and that it will be my decision to make. And the sentencing that I have to impose will be a decision between life imprisonment without parole or death. But that decision will be made by me alone. And that's what you're agreeing to by entering a plea today.... [The Court will have to determine beyond a reasonable doubt whether mitigation is insufficient to outweigh aggravation. That would be a decision that the jury would make if you were to persist in your plea of not guilty or persist in your ... request to have the jury resolve the matter. But by entering a plea, the jury will not make that decision, in fact, the Court will.... [Bly entering a plea of guilty, you are, once again, agreeing that a jury will not consider those aggravating factors, but instead, this Court will consider those aggravating factors to determine if, in fact, the People have established one or more of those aggravating factors beyond a reasonable doubt.... [WJhat this all boils down to is that the sentencing phase of this matter, if the Court accepts your pleas today, completely is my burden, is my responsibility. The sentencing means for Count one, the charge of Murder in the First Degree, this Court must determine whether life in prison without parole is imposed or death is imposed. That would be my decision to make. And by entering a plea, you are agreeing that I do that in this case.

(emphasis added).

7 . The relevant portion of subsection 18-1.3-401(6) provides:

8 . We note that People v. Lopez, 148 P.3d 121 (Colo.2006), does not affect our conclusion. In Lopez, this Court held that a jury cannot be impanelled after a guilty plea to find Blakely-compliant facts, capable of justifying a sentence in the aggravated range. Id. at 124-25. The Court reasoned that allowing consideration of subsequent jury findings would violate the defendant's right to understand all of the elements of the crime to which he pleads and the effects of his plea as required by Rule 11 of the Colorado Rules of Criminal Procedure.

Capital cases differ from other criminal cases in that the defendant has notice that the prosecution intends to seek the death penalty no later than sixty days after-arraignment and must be provided with the information that may be introduced at the sentencing hearing, including a list of all aggravating factors and mitigating factors, not later than twenty days after the prosecution files its written intention to seek the death penalty. § 18-1.3-1201(3)(a)-(3)(b)(VI); Colo.Crim. P. 32.1(b). At the time of the guilty plea the defendant is fully aware that the prosecution will attempt to prove aggravating factors at a subsequent sentencing hearing that will be held following the guilty plea. § 18-1.3-1201; Colo. Crim. P. 32.1(c).

9 . We note that the General Assembly was not aware of the possible constitutional infirmity of the statute at the time the legislature added this language. Both sentences were added prior to the United States Supreme Court's decision in Blakely, such that it was not clear that the right to a jury trial on sentencing facts is independent of the right to a jury trial on guilt. Hence, the General Assembly focused little attention on the constitutionality of the waiver provision.

10 . The court repeatedly instructed Montour that his guilty plea would result in his waiver of a jury trial on sentencing facts. Likewise, Montour repeatedly acknowledged that he understood that he was waiving his right to a fury trial on sentencing facts by pleading guilty.

Moniour's linked waiver appears in the three sources documenting his guilty plea. First, in his petition to enter a guilty plea, Montour made several statements indicating his awareness of the linked nature of the plea: "I am fully aware that due to my guilty plea, I waive three important trial rights [including] a jury determination of the sentencing according to C.R.S. 18-1.3-1201(1)(a)." (emphasis added). Second, the court's instruction to Montour during the motions hearing on his guilty plea continually emphasized the linked nature of the plea: "by entering a plea today, you eliminate the possibility of a jury deciding what sentence will be imposed." {emphasis added). Finally, in his guilty plea advisement form, Montour again acknowledged his understanding that by pleading guilty he waived his right to jury sentencing: "I understand that if I waive my rights to sentencing by a jury of twelve persons by the act of entering a plea of "GUILTY" to Murder in the First Degree, that the judge accepting my plea ... will determine the sentence to be imposed after conducting a sentencing hearing as provided by law ...." {emphasis added). These statements are representative of others indicating that Montour never made a knowing, intelligent, and voluntary waiver of his right to a jury trial on sentencing facts that was independent of his guilty plea.

11 . The death penalty statute's severability clause states:

If any provisions of this section are determined by the United States supreme court or by the Colorado supreme court to render this section unconstitutional or invalid such that this section does not constitute a valid and operative death penalty statute for class 1 felonies, but severance of such provisions would, through operation of the remaining provisions of this section, maintain this section as a valid and operative death penalty statute for class 1 felonies, it is the intent of the general assembly that those remaining provisions are severable and are to have full force and effect. § 18-1.3-1201(7)(a).

12 . Although the legislative intent could not be more free from doubt since the General Assembly stated its intent in the text of the severability clause in subsection 1201(7)(a), we also note that its intent to maintain a valid and operative death penalty statute is abundantly clear from the legislative history of the 2002 amendments to section 18-1.3-1201. Bob Grant, the District Attorney for the Seventeenth Judicial District and a participant in drafting the bill, stated:

This severability language has to do with making sure that as best we possibly can, this legislature says to the people of this state that it recognizes that the legislature and the people want to have a constitutional, viable, and available capital punishment scheme from the date of July 1, 1995, forward, and that forward goes on into the future. What we're doing here basically is saying, look, if in fact something is declared unconstitutional in this statute, and you can sever it out so that the remainder of the statute in fact embodies a constitutionally acceptable and viable death penalty scheme, then you should do that.

Hearing on H.B. 025-1005 Before the S. Judiciary Comm., 63rd Gen. Assem., Third Extraordinary Sess. (July 10, 2002) (statement of Bob Grant, District Attorney's Council).

13 . While there is no doubt that the General Assembly intended "conviction of guilt" and "trial jury" to be interpreted narrowly when it enacted subsection 1201(1)(a) because it intended to foreclose the right to jury sentencing after a guilty plea, the proper question to ask is what the General Assembly would have intended in light of our constitutional holding that a waiver of the right to jury sentencing may not be linked to a guilty plea. See Booker, 543 U.S. at 246, 125 S.Ct. 738; Seven Thirty-Five East Colfax, 697 P.2d at 372.

14 . Subsection 401(4)(a) provides: "A person who has been convicted of a class 1 felony shall be punished by life imprisonment in the department of corrections unless a proceeding held to determine sentence according to the procedure set forth in section 18-1.3-1201 ... results in a verdict that requires imposition of the death penalty ...." (emphasis added).

15 . In Hynes, the court held a New York capital punishment statute that only allowed the imposition death after a jury trial unconstitutional under Jackson, reasoning that the statute impermis-sibly burdened a defendant's Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial. 684 NY.S.2d 177, 706 N.E.2d at 1207.