     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
