The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 22, 2018
2018COA38
No. 16CA0215, People v. Palmer — Criminal Procedure —
Indictment and Information — Amendment of Information
A division of the court of appeals considers whether Crim. P.
7(e) authorizes a trial court to grant the prosecution’s motion to
amend an information to add a crime of violence designation once
trial has begun. The majority concludes that because the
amendment required proof of an additional element and carried a
harsher minimum and maximum sentence, the amendment
changed the “essence of the charge” and was, therefore, substantive
(and did not merely affect the information’s form). And because
Crim. P. 7(e) only permits amendments as to form once trial has
begun, the majority concludes that the trial court abused its
discretion in granting the motion to amend once trial was
underway.
The special concurrence, on the other hand, concludes that
because a crime of violence designation neither adds a new charge
nor changes the essence of the charged offense, the amendment is
one of form, not substance, and as such, the amendment may be
granted during the course of trial, but only if doing so would not
prejudice the defendant. But because the special concurrence
concludes that the amendment was prejudicial, it reaches the same
conclusion as the majority, albeit for a different reason.
Finally, the division rejects the defendant’s contention that the
trial court erred in denying her motion for a mistrial based upon a
discovery violation that came to light during the course of trial.
COLORADO COURT OF APPEALS 2018COA38
Court of Appeals No. 16CA0215
Arapahoe County District Court No. 15CR202
Honorable Donald W. Marshall, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Danielle Palmer,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE WELLING
Román, J., concurs
Dunn, J., specially concurs
Announced March 22, 2018
Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 The defendant, Danielle Palmer, was charged by information
with first degree arson. After the trial was already underway, the
trial court granted the prosecution’s motion to amend the
information to add a crime of violence designation.
¶2 The amended information alleged that Palmer committed first
degree arson by means of a deadly weapon. By virtue of the
amendment, Palmer faced a longer prison sentence if convicted.
¶3 Also, during trial it came to light that the People had failed to
disclose the reports of two fire investigators. This discovery
violation was discovered after one of the investigators had testified
but before the other had. Palmer moved for a mistrial. The trial
court denied the motion, but imposed lesser sanctions.
¶4 On appeal, Palmer contends that the trial court erred by
granting the People’s motion to amend the information during the
course of trial and by denying her motion for a mistrial. We agree
with her first contention, but disagree with her second. With
respect to the first issue, we conclude that the addition of the crime
of violence designation was a substantive amendment to the
information and, therefore, pursuant to Crim. P. 7(e), could not be
granted after the start of trial. With respect to the second issue, we
1
conclude that the trial court did not abuse its discretion in
imposing less severe sanctions than granting Palmer’s motion for a
mistrial. Accordingly, we affirm in part, reverse in part, and
remand for further proceedings.
I. Background
¶5 When Palmer found out that the man she had been dating was
having sex with another woman, she set fire to a bag of his things
outside the front door of his apartment. The fire spread from the
bag, and soon the entire apartment complex was ablaze. As a
result of the fire, Palmer was charged with five counts of attempted
first degree murder and one count of first degree arson.
¶6 The jury acquitted Palmer of attempted murder but convicted
her of first degree arson and the lesser nonincluded offense of
fourth degree arson. The jury also found that first degree arson
was a crime of violence because Palmer used a deadly weapon — a
lighter and lighter fluid. The trial court sentenced Palmer to sixteen
2
years in the custody of the Department of Corrections (DOC) for
first degree arson as a crime of violence.1
II. Analysis
¶7 Palmer raises two arguments on appeal. First, she contends
that the trial court abused its discretion by allowing the prosecutor
to amend the information. Second, she argues that the trial court
should have granted her motion for a mistrial because the
prosecution failed to timely disclose two fire investigators’ reports.
We agree with her first contention but disagree with her second.
A. Amendment to Information
¶8 The attempted murder and first degree arson offenses were not
originally charged as crimes of violence. The day before trial,
however, the prosecutor moved to amend the information to
designate each offense as a crime of violence. The trial court
initially denied the motion. But on the first day of trial — after the
jury had been sworn, opening statements had been delivered, and
three witnesses had testified — the court sua sponte reversed its
1Palmer received a concurrent four-year sentence on the fourth
degree arson conviction.
3
earlier ruling and allowed the prosecutor to amend the information
to include the crime of violence designations.
¶9 Subject to an exception not applicable here, to convict a
defendant for a crime of violence, the People must allege, in a
separate count of the information, that they are pursuing the
charge as a crime of violence.2 § 18-1.3-406(3), C.R.S. 2017. The
original information in this case did not include a crime of violence
designation, so to pursue the arson as a crime of violence, the
prosecutor needed to amend the information.
¶ 10 Under Crim. P. 7(e),
[t]he Court may permit an information to be
amended as to form or substance at any time
prior to trial; the court may permit it to be
amended as to form at any time before the
verdict or finding if no additional or different
2 The prosecutor does not have to allege a crime of violence in a
separate count of the information when the defendant is charged
with a per se crime of violence because in that instance the statute
referenced in the information provides sufficient notice. People v.
Webster, 987 P.2d 836, 844 (Colo. App. 1998) (“[W]hen the charged
offense is an offense proscribed by a statute that specifically directs
sentencing in the aggravated range, no separate count of crime of
violence need be charged . . . .”). First degree arson can be a per se
crime of violence if there is an allegation that the defendant used
explosives. § 18-4-102(3), C.R.S. 2017. But in this case there is no
allegation that Palmer used explosives.
4
offense is charged and if substantial rights of
the defendant are not prejudiced.
(Emphasis added.)
¶ 11 Palmer argues that the amendment to add the crime of
violence designation was one of substance and therefore must have
been made before trial. We agree.
¶ 12 Crim. P. 7(e) is to be liberally construed, and we will not
overturn a trial court’s decision to allow the prosecution to amend
an information absent a showing of an abuse of discretion. People
v. Butler, 224 P.3d 380, 385 (Colo. App. 2009). A trial court abuses
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or is based on a misapplication or
misunderstanding of the law. People v. Fallis,
2017 COA 131M, ¶ 5.
¶ 13 The resolution of Palmer’s argument requires us to interpret
Crim. P. 7(e). We review interpretations of the rules of criminal
procedure de novo. People v. Corson,
2016 CO 33, ¶ 44. In doing
so, we first look at the rule’s plain language; if the language is clear
and unambiguous, we apply the rule as written. Kazadi v. People,
2012 CO 73, ¶ 11.
5
¶ 14 The language of Crim. P. 7(e) contemplates two types of
amendments: amendments as to form and amendments as to
substance. The language is clear that either type of amendment
can be made prior to trial, but only amendments as to form can be
made once trial has begun. The rule also dictates that the trial
court may reject an amendment to the form of the information
during trial if the proposed amendment charges an additional or
different offense or prejudices the substantial rights of the
defendant.
¶ 15 Because trial was underway when the court sua sponte
reconsidered its earlier decision and granted the People’s motion to
amend the information, the amendment runs afoul of Crim. P. 7(e)
unless it “(1) was one of form, (2) did not charge an additional or
different offense, and (3) did not prejudice [the defendant’s]
substantial rights.” People v. Washam, 2018 CO 19, ¶ 16 (citing
Crim. P. 7(e)) (emphasis added). Thus, the first step is to
“determine whether the amendment was one of form or substance.”
Id. In order to determine whether a proposed amendment is a
matter of form or substance, we evaluate the original information in
the context of its surrounding circumstances to determine whether
6
it adequately advised the defendant of the charges. People v. Butler,
929 P.2d 36, 39 (Colo. App. 1996). An amendment that charges an
additional or different offense or changes the essence of a charge is
one of substance. People v. Manzanares,
942 P.2d 1235, 1242
(Colo. App. 1996).
¶ 16 The original information charged Palmer with arson as a
class 3 felony. See § 18-4-102(1), C.R.S. 2017. That information
adequately advised Palmer of her need to defend against first degree
arson, and the amended information did not charge an additional or
different count of arson. But the amended information changed the
essence of the arson charge in two respects.
¶ 17 First, the amendment changed Palmer’s sentencing range so
that a DOC sentence was mandatory and both the minimum and
maximum terms of the incarceration were higher after the
amendment than before. As a class 3 felony, a first degree arson
conviction carries a presumptive sentence of four to twelve years.
§ 18-1.3-401(1)(a)(IV), C.R.S. 2017. Had the amendment not been
made and Palmer been convicted of first degree arson, she would
have been eligible for probation and faced a presumptive prison
sentence of four to twelve years. But, as discussed below, because
7
she was convicted of arson as a crime of violence, Palmer faced a
mandatory prison sentence with a minimum term of ten years and
a maximum term of thirty-two years.
¶ 18 Once a defendant is convicted of a crime of violence, he or she
faces a sentence of at least the midpoint, but no more than twice
the maximum, of the presumptive range. § 18-1.3-406(1)(a). In
addition, every crime of violence is an extraordinary risk crime.
§ 18-1.3-401(10)(b)(XII), C.R.S. 2017. Under the extraordinary risk
statute, the presumptive sentence for a defendant convicted of a
class 3 felony extraordinary risk crime is four to sixteen years,
rather than four to twelve years. § 18-1.3-401(1)(a)(V)(A), (10)(a).
Therefore, applying the crime of violence statute to the presumptive
range, which was extended by the extraordinary risk statute,
Palmer’s mandatory minimum sentence is ten years, the midpoint
of the sentencing range, and her maximum sentence is thirty-two
years, which is twice the presumptive maximum.
¶ 19 The increase in Palmer’s potential sentence is reminiscent of
People v. Manyik, 2016 COA 42. In that case, the defendant faced a
charge of aggravated robbery under subsection (1)(d) of the robbery
statute, section 18-4-302, C.R.S. 2017. Manyik, ¶ 43. Under
8
subsection (1)(d), a defendant may be convicted if the robbery is
committed with the use of an item in a manner in which the victim
would reasonably believe it to be a deadly weapon (i.e., a simulated
deadly weapon). Id. (citing § 18-4-302(1)(d)). After the start of trial,
however, the court allowed the prosecution to amend the
information to charge the defendant under subsection (1)(b), which
requires proof that the defendant committed the robbery with the
use of an actual deadly weapon. Id. at ¶ 44 (citing § 18-4-302(1)(b)).
The amended charge, unlike the original one, was a per se crime of
violence. § 18-4-302(3). This amendment was significant because a
defendant convicted of aggravated robbery as originally charged was
eligible for a sentence commensurate with a class 3 felony
extraordinary risk crime. Id. But a robbery conviction under the
amended information would mean that a trial court had to impose
an increased sentence under the crime of violence statute.
¶ 20 The Manyik division concluded that the trial court abused its
discretion in granting the prosecution’s motion to amend because
the amended charge subjected the defendant to mandatory
sentencing that the original charge did not. Manyik, ¶ 49.
Therefore, the division concluded the amendment was substantive.
9
Id. The same is true here. By virtue of the amendment, Palmer
faced a more serious sentence than the one she believed she would
face when trial began.
¶ 21 The second way the amendment changed the essence of the
first degree arson charge was that it required proof of an additional
element — namely, the use of a deadly weapon. Before the
amendment, Palmer was aware that the prosecutor needed to prove
that she knowingly set fire to, burned, or caused to be burned a
building or occupied structure of another without his consent.
§ 18-4-102(1). After the amendment, however, the prosecutor
needed to prove that Palmer committed the arson with a deadly
weapon. § 18-1.3-406(2)(a)(I). The injection of this additional
element changed what the prosecution was required to prove at
trial. Until the motion to amend was granted, Palmer had no notice
that she would need to defend against such an allegation. See 5
Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr,
Criminal Procedure § 19.5(c), at 380 (4th ed. 2015) (“Amendments
are said to be substantive if they change any ‘essential facts that
must be proved to make the act complained of a crime.’” (quoting
Brown v. State, 400 A.2d 1133, 1136 (Md. 1979))). Further, unlike
10
the situation where the prosecutor amends the information to bring
a habitual criminal count, the amendment to the information in
this case changed the facts that needed to be proved to the jury’s
satisfaction at trial, and not simply facts that needed to be proved
before sentencing.3
¶ 22 Because the amendment changed the essence of the first
degree arson charge, we cannot say that the original information
adequately advised Palmer of the charges that she ultimately had to
defend against at trial. Going into trial, she was on notice that she
needed to defend against a charge of first degree arson, but once
the information was amended she had to defend against a charge
that, while similar, carried an increased penalty and included an
additional element. Those changes were substantive changes to the
information that needed to have been made, if at all, before trial.
3 The reason that sentence enhancers, such as habitual criminal
charges, are often categorized as amendments to form rather than
substance is because, at the time the amendment is made, the
defendant had notice that an enhanced sentence was possible. See
People v. Butler, 929 P.2d 36, 39 (Colo. App. 1996) (holding that
amendment adding habitual criminal counts changed only the form
of the information because defendant had actual notice of that
count prior to trial). Here, Palmer had no notice that she would
face a more severe penalty until the amendment was made during
trial.
11
¶ 23 The trial court’s decision to grant the People’s motion to
substantively amend the information after trial began represents a
misapplication of Crim. P. 7(e), and therefore it was an abuse of
discretion. Accordingly, we remand the case for resentencing on
the first degree arson conviction as a class 3 felony without a crime
of violence designation.
B. Prosecution’s Disclosures
¶ 24 At trial, the prosecution intended on calling two fire
investigators, Lieutenant R and Lieutenant S. After Lieutenant R
testified, but before Lieutenant S did, the prosecution discovered
and promptly disclosed two previously undisclosed reports from the
lieutenants. Palmer moved for a mistrial based on the prosecutor’s
lack of timely disclosure. The trial court determined that the
prosecutor’s failure to disclose the reports was inadvertent, as
neither witness had made the People aware of the existence of the
reports before trial. Although the trial court denied the motion for a
mistrial, it imposed two remedial sanctions. First, the trial court
precluded the People from calling Lieutenant S as a witness.
Second, the trial court ordered that Palmer could be permitted to
12
recall Lieutenant R so that he could be cross-examined about his
report. Palmer, however, decided not to recall Lieutenant R.
¶ 25 To remedy a discovery violation, the trial court should impose
the least severe sanction that ensures compliance with the
discovery rules and protects a defendant’s right to due process.
People v. Acosta, 2014 COA 82, ¶ 12. Here, the trial court
determined that precluding Lieutenant S from testifying and
allowing further questioning of Lieutenant R would cure any
prejudice to Palmer. When a prosecutor’s discovery violation was
inadvertent, allowing a defendant to recall a witness can be an
appropriate remedy. See People v. Lafferty,
9 P.3d 1132, 1136
(Colo. App. 1999) (holding that discovery violation for failing to
disclose entire police report was remedied by allowing the defendant
to recall the prosecution’s witnesses).
¶ 26 We conclude that the trial court acted within its discretion in
fashioning its remedy for the discovery violation and we discern no
abuse of discretion in the trial court’s denial of Palmer’s motion for
a mistrial.
13
III. Cumulative Error
¶ 27 Because we conclude that the trial court committed only one
error, we do not address Palmer’s contention of cumulative error.
People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009) (stating that
reversal under cumulative error standard requires “[n]umerous”
irregularities at trial (quoting Oaks v. People,
150 Colo. 64, 66,
371
P.2d 443, 446 (1962))).
IV. Conclusion
¶ 28 Palmer’s sentence is reversed, and we remand the case to the
trial court for resentencing. The judgment is affirmed in all other
respects.
JUDGE ROMÁN concurs.
JUDGE DUNN specially concurs
14
JUDGE DUNN, specially concurring.
¶ 29 After learning her boyfriend was far from faithful, Danielle
Palmer poured lighter fluid on a bag of his clothes and set them on
fire outside his apartment. The fire blossomed, placing several
residents in danger. The prosecution charged Palmer with five
counts of attempted first degree murder and one count of first
degree arson.
¶ 30 The day before trial, the prosecution moved to add a violent
crime sentence enhancer for Palmer’s use of a deadly weapon, in
this case a lighter and lighter fluid, while committing the charged
crimes. We know that the trial court said no, but because the
hearing transcript is not in the record, we don’t know exactly why.
Yet, at the end of the first day of trial, the court decided on its own
to revisit its ruling. In response, Palmer argued the amendment
would injure her “substantial right[s],” while the prosecution
maintained it was simply an amendment to form because the
sentence enhancer did “not charg[e] an additional offense.” The
trial court “reverse[d] [its] ruling” and allowed the prosecution to
add the sentence enhancer.
15
¶ 31 The majority holds that the court reversibly erred in doing so.
In this, we all agree. I, however, don’t agree that the addition of the
sentence enhancer either added a new charge or changed the
essence of the charged arson. And so I can’t agree the amendment
was one of substance under Crim. P. 7(e).
¶ 32 The purpose of an information is to “advise the defendant of
the nature of the charges, to enable the defendant to prepare a
defense, and to protect the defendant from further prosecution for
the same offense.” People v. Metcalf, 926 P.2d 133, 139 (Colo. App.
1996); accord People v. Williams,
984 P.2d 56, 60 (Colo. 1999). A
trial court may permit the amendment of the information as to
“form or substance” at any time before trial. Crim. P. 7(e). Once
the trial starts, the court may still allow the prosecution to amend
the information, but “only if [the amendment is] one of form, not
substance, and if it charge[s] no different offense and prejudice[s]
no substantial rights of the defendant.” Cervantes v. People,
715
P.2d 783, 786 (Colo. 1986); see also Crim. P. 7(e).
¶ 33 To determine whether an amendment is one of form or
substance, the court looks to the charge alleged in the information
and the circumstances surrounding the case. Cervantes,
715 P.2d
16
at 786; see also Metcalf,
926 P.2d at 139. “An amendment that
does not charge an additional or different offense or go to the
essence of a charge is one of form, not substance.” People v.
Manzanares,
942 P.2d 1235, 1242 (Colo. App. 1996).
¶ 34 We know, of course, that a violent crime sentence enhancer “is
not a substantive charge.” Lehnert v. People,
244 P.3d 1180, 1185
(Colo. 2010). And it “does not create a separate substantive
offense.” People v. Rodriguez,
914 P.2d 230, 277 (Colo. 1996);
accord Brown v. Dist. Court,
194 Colo. 45, 47,
569 P.2d 1390, 1391
(1977); see also People v. Martinez,
43 Colo. App. 419, 421,
608
P.2d 359, 360 (1979) (concluding that an amendment adding a
violent crime sentencing count does “not charge a new, different, or
additional offense not alleged in the original complaint”). Because
the addition of the violent crime enhancer did not charge an
additional or different offense, it cannot be a substantive
amendment unless it changed the essence of the charged arson.1
See Manzanares,
942 P.2d at 1242.
1The sentence enhancer did not apply to Palmer’s fourth degree
arson conviction. And the jury acquitted Palmer of the attempted
murder charges. So I do not discuss those charges.
17
¶ 35 But I don’t see how it did. Before and after the amendment,
Palmer faced one count of first degree arson, which required the
prosecution to prove that she knowingly set fire to her boyfriend’s
apartment building. § 18-4-102(1), C.R.S. 2017; see also People v.
Welborne, 2017 COA 105, ¶ 53 (recognizing the elements of first
degree arson). The added sentence enhancer didn’t change these
fundamental elements. Nor did it change the facts underlying the
charged arson, the number of victims, the prosecution’s burden of
proof, any defenses to the arson, or the grade of the offense. Cf.
People v. Johnson,
644 P.2d 34, 38 (Colo. App. 1980) (finding an
amendment that altered the required mens rea was one of
substance because it resulted in a “different and more serious
offense”). Because the arson charge remained the same, the added
sentence enhancer changed nothing about the essence of that
crime.
¶ 36 Still, for two reasons, my colleagues reach the opposite
conclusion. First, they reason that because Palmer faced an
increased penalty, the sentence enhancer changed the essence of
the arson charge. But the enhanced sentence here does not change
the essence of the crime charged. After all, the enhancement
18
doesn’t come into play unless and until the prosecution first proves
the underlying crime — first degree arson. Lehnert, 244 P.3d at
1185 (recognizing that a violent crime sentencing provision “may
only be imposed after the defendant has been found guilty of one of
the eligible substantive offenses”). So I fail to see how the fact that
Palmer faced an enhanced sentence — after the underlying charge
was proved — changed the essence of the charged arson. See Oby
v. State,
827 So. 2d 731, 735 (Miss. Ct. App. 2002) (concluding that
the amendment to a possession of cocaine charge changing the
weight of cocaine possessed was one of form because it affected only
the penalty imposed, not the “essence” of the charged offense).
¶ 37 This leads me to People v. Manyik,
2016 COA 42. In that case,
the prosecution initially charged the defendant with aggravated
robbery under section 18-4-302(1)(d), C.R.S. 2017. That subsection
required the prosecution to prove the defendant committed robbery
while “he possesse[d] any article used or fashioned in a manner to
lead any person who [was] present reasonably to believe it to be a
deadly weapon or represent[ed] verbally or otherwise that he [was]
then and there so armed.” § 18-4-302(1)(d); see Manyik, ¶ 43. But
after the trial started, the court allowed the prosecution to amend
19
the information and charge the defendant under a different
subsection of the aggravated robbery statute. Manyik, ¶ 44. This
new subsection carried with it an increased penalty and now
required the prosecution to prove that the defendant “by the use of
force, threats, or intimidation with a deadly weapon knowingly put[]
the person robbed or any other person in reasonable fear of death
or bodily injury.” § 18-4-302(1)(b); see Manyik, ¶ 44. The
amendment therefore changed more than the potential sentence; it
changed an essential element of the charged crime. See Manyik,
¶ 52; see also People v. Firm, 2014 COA 32, ¶ 10 (concluding that
different subsections of the aggravated robbery statute proscribe
different conduct). And, in doing so, it was a substantive
amendment precluded under Crim. P. 7(e). The amendment in
Manyik, therefore, is unlike the one here.
¶ 38 My colleagues’ second reason, that the amendment “required
proof of an additional element — namely, the use of a deadly
weapon,” conflates the elements of the sentence enhancer with the
elements of arson. Supra ¶ 21. The “special findings” for a violent
crime sentence enhancer — that is, the finding that Palmer used a
deadly weapon during the commission of the arson — “relate only to
20
the sentencing for the substantive offense.” Brown, 194 Colo. at 47,
569 P.2d at 1391 (emphasis added); accord People v. Mata,
56 P.3d
1169, 1176 (Colo. App. 2002); see also Armintrout v. People,
864
P.2d 576, 580 (Colo. 1993) (“A defendant still may be convicted of
the underlying offense without any proof of the sentence
enhancer . . . .”). The deadly weapon finding thus did not create an
additional element or affect the proof required to convict Palmer of
first degree arson. I therefore don’t agree that the special findings
required to enhance the sentence changed the essence of the
charged crime.
¶ 39 But that does not end the inquiry. An amendment to form still
must not prejudice a defendant’s substantial rights. See Cervantes,
715 P.2d at 786. And here the amendment did just that. The day
after the trial court denied the prosecution’s request to add the
sentence enhancer, Palmer presented her opening statement,
defending on the theory that she had only intended to destroy her
boyfriend’s clothes. Consistent with her defense, Palmer admitted
that she “took lighter fluid . . . put that lighter fluid” on her
boyfriend’s clothes and “lit [them] on fire.” So, she continued, while
21
the apartment fire “was an unintended consequence,” “she’s guilty
of [only the charged arson].”
¶ 40 Palmer thus admitted that she used a deadly weapon in
setting the fire, proving the facts necessary to enhance her
sentence. But at the time of her admission, she did not face an
enhanced sentence that carried with it mandatory jail time.
¶ 41 And once the court reversed itself, Palmer, of course, could not
retreat from this position.
¶ 42 I can’t conclude that Palmer would have so freely admitted
these facts had the trial court allowed the amendment before trial.
Cf. Metcalf, 926 P.2d at 140 (concluding that a form amendment did
not prejudice the defendant when it did not “require a different
defense strategy from the one the defendant had chosen under the
initial information”). By allowing the amendment, her admissions
had the added effect of relieving the prosecution from its burden of
proving the facts necessary to enhance her sentence. See Apprendi
v. New Jersey,
530 U.S. 466, 490 (2000) (concluding that the
prosecution must prove to the jury beyond a reasonable doubt any
fact that increases a defendant’s sentence beyond the sentencing
range).
22
¶ 43 At the end of it all, Palmer reasonably relied on the court’s
order denying the prosecution’s request to add the violent crime
sentence enhancer when she crafted her opening statement. And
by reversing course and allowing the amendment when it did, the
trial court prejudiced Palmer’s substantial rights.
¶ 44 So I agree with the majority that Palmer’s enhanced arson
sentence cannot stand, but for a different reason. I otherwise agree
with the opinion.
23
