More Blakely news from Colorado

As detailed here and here, Colorado has been struggling with Blakely, and the Colorado Supreme Court already has plans to examine whether Colorado’s sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. Adding to the story today is a decision by the Colorado Court of Appeals in Colorado v. Moon, 03CA1107 (Colo. App. Oct. 21, 2004).

Moon includes a thoughtful exploration of similarities and differences between the Washington sentence scheme at issue in Blakely and Colorado’s sentencing structures. And the analysis culminates with the conclusion that Blakely impacts at least portions of Colorado’s sentencing system:

[W]e conclude that the statutory maximum for purposes of applying Apprendi and Blakely is the maximum in the presumptive range. We further conclude that a sentence in the aggravated range under § 181.3401(6) violates the Sixth Amendment right to trial by jury, unless the facts found by the trial court to support the sentence, including the ultimate finding that these facts are extraordinary: (1) are reflected in the jury’s verdict; (2) were admitted by the defendant for purposes of sentencing; or (3) involve prior criminality, to the extent permitted by Apprendi.