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                                                       ADVANCE SHEET HEADNOTE
                                                                  January 22, 2019

                                       2019 CO 7

No. 16SC990, People v. Wood,—Double Jeopardy—Multiplicitous Convictions—
Sentencing and Punishment—Amendment and Correction.

      The supreme court clarifies that when a mittimus provides that multiplicitous

convictions merge, a defendant is afforded the protection to which he or she is entitled

under the double jeopardy clause just the same as when a mittimus indicates that all but

one of the multiplicitous convictions are vacated. In the double jeopardy realm, the

merger of multiplicitous convictions has the same effect as vacating all but one of them.

      The defendant’s mittimus accurately documented the state district court’s decision

to merge his two murder convictions and impose a single life sentence on the resulting

merged conviction. But, in resolving the defendant’s habeas corpus petition, the United

States Court of Appeals for the Tenth Circuit misread the mittimus as containing two

murder convictions for the same killing and found a double jeopardy defect. Merely

because the defendant’s mittimus merged the multiplicitous murder convictions, rather

than expressly stating that one of them was vacated, does not mean that his double

jeopardy rights were violated.
      Even if the Tenth Circuit correctly understood the mittimus, any error was clerical

in nature. Therefore, the proper remedy was to simply correct the mittimus pursuant to

Rule 36 of the Colorado Rules of Criminal Procedure.

      Since a division of the state court of appeals assumed that the Tenth Circuit’s

reading of the mittimus was accurate and then failed to recognize that any error in the

mittimus was subject to correction under Rule 36, the supreme court reverses the

division’s judgment and vacates its opinion. However, given that the state district court

recently amended the mittimus to expressly state that one of the multiplicitous murder

convictions was vacated, the Court need not remand this matter.
                    The Supreme Court of the State of Colorado
                    2 East 14th Avenue • Denver, Colorado 80203

                                      2019 CO 7

                         Supreme Court Case No. 16SC990
                       Certiorari to the Colorado Court of Appeals
                        Court of Appeals Case No. 14CA148

                                      Petitioner:

                         The People of the State of Colorado,

                                           v.

                                     Respondent:

                                   Patrick K. Wood.

                      Judgment Reversed and Order Vacated
                                    en banc
                                January 22, 2019


Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Ryan A. Crane, Senior Assistant Attorney General
       Denver, Colorado

Attorneys for Respondent:
Megan A. Ring, Public Defender
Mark Evans, Deputy Public Defender
      Denver, Colorado




JUSTICE SAMOUR delivered the Opinion of the Court.
¶1       “Everything has to come to an end, sometime.” L. Frank Baum, The Marvelous Land

of Oz 182 (1904). Today, we hope to end this protracted habeas litigation and settle once

and for all two questions that have plagued federal and state courts in Colorado for more

than 12 years: Did Patrick Wood suffer simultaneous convictions for first-degree felony

murder (a class 1 felony) and second-degree murder (a class 2 felony) in 1987 for the death

of the same victim? And if so, what is the appropriate remedy?

¶2       In addressing Wood’s double jeopardy claim, the United States Court of Appeals

for the Tenth Circuit answered the first question in the affirmative and addressed the

second question by conditionally granting Wood’s habeas corpus petition. As a result, it

remanded the case to the federal district court with instructions to vacate the first-degree

murder conviction and allow the second-degree murder conviction to remain in place,

unless the state district court decided within a reasonable time which of the two murder

convictions to vacate. Unfortunately, the Tenth Circuit misread Wood’s mittimus, and

that error set in motion a Palsgrafian1 chain of rippling events that ultimately landed the

case before us. Wood’s mittimus actually reflected a single murder conviction: for

first-degree felony murder. Thus, no double jeopardy error existed, and no remedy was

necessary—the only error was in believing there was an error.

¶3       Following an order by the federal district court effectuating the Tenth Circuit’s

mandate, the People filed a motion in state district court seeking to vacate the




1   Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

                                                 2
second-degree murder conviction. The state district court granted the motion and issued

an amended mittimus expressly stating that the second-degree murder conviction was

vacated.2 Wood appealed. In a published, unanimous decision, a division of the state

court of appeals reversed and remanded the matter with instructions for the state district

court to vacate Wood’s first-degree murder conviction and modify the amended

mittimus to leave in place the second-degree murder conviction. We now reverse.

¶4     The division hung its hat on the Tenth Circuit’s belief that the original mittimus

reflected two murder convictions for the killing of a single victim. But the Tenth Circuit

misunderstood the original mittimus. Consistent with the state district court’s decision

during the sentencing hearing to merge the two murder convictions, the original

mittimus referenced a single murder conviction (for first-degree murder). Therefore,

there was no other murder conviction to be vacated.

¶5     Even if the Tenth Circuit accurately understood the original mittimus, the proper

remedy was to simply correct the clerical error pursuant to Rule 36 of the Colorado Rules

of Criminal Procedure. Since the state district court has already amended the original

mittimus, albeit based on other authority, and the amended mittimus clearly documents

that Wood was not convicted of two counts of murder, we need not remand this matter.

The state district court’s amendment of the original mittimus was akin to a correction of




2We will refer to the first mittimus, which was signed in 1987, as the “original mittimus,”
and to the amended mittimus, which was signed in 2014, as the “amended mittimus.”

                                            3
a clerical mistake pursuant to Rule 36. The amended mittimus reflects that Wood stands

convicted, as he has for more than 30 years, of a single count of murder.

¶6       Given this disposition, we decline to address the merits of the numerous

conclusions reached by the division, including with respect to the scope of a state district

court’s authority. Instead, we vacate the division’s opinion in its entirety.

                           I. Factual and Procedural History

¶7       While robbing a pizza delivery store in 1986, Wood shot and killed the store’s

assistant manager. Following a bench trial, the state district court found Wood guilty of

committing five offenses: Count 1, second-degree murder, a class 2 felony naming the

assistant manager as the victim;3 Count 2, first-degree felony murder, a class 1 felony

naming the assistant manager as the victim and listing aggravated robbery as the

predicate felony; Count 3, aggravated robbery, a class 3 felony naming the assistant

manager as the victim; and Counts 4 and 5, felony menacing, class 5 felonies naming two

additional victims.

¶8       During the sentencing hearing, Wood’s attorney addressed the state district court

first.   He stated that the first-degree felony murder and second-degree murder

convictions “merge[d]” and that the aggravated robbery conviction then “merge[d]” into




3Count 1 originally charged Wood with first-degree murder (after deliberation), but the
court found him guilty of the lesser-included offense of second-degree murder on that
count.

                                             4
the felony-murder conviction because aggravated robbery was the predicate offense of

the felony-murder conviction. The prosecutor agreed:

      Your Honor, as to Count[s] [1] and [2], it’s my understanding that they do merge
      and I would ask the Court to enter judgment on the conviction for murder in the
      first degree and impose the mandatory sentence of [life imprisonment with
      the possibility of parole after] forty calendar years as required by statute.

      Judge, in regards [to] . . . Count [3], aggravated robbery, it’s also my
      understanding that that does merge with the conviction for felony murder;
      therefore, I don’t believe that the Court is in a position to impose a sentence
      on the aggravated robbery count and I’m not asking the Court to do that.

(Emphases added.) Defense counsel did not take issue with any of the prosecutor’s

comments.

¶9    The court concurred with the parties:

      Well, obviously Counts [1] and [2] on the murder counts merge, and they merge
      also with the aggravated robbery count[]. So there [will] only be one sentence
      involving Counts [1], [2,] and [3].

      And the Court would just impose a life sentence as provided by law . . . .

(Emphases added.) Thus, the court imposed a single sentence (life imprisonment) on

Counts 1, 2, and 3.4 It then imposed prison sentences of four years on Counts 4 and 5, to

be served “concurrent with the life sentence.”

¶10   Wood’s sentences were reflected in the original mittimus subsequently prepared

and signed by the state district court. The original mittimus, formally titled “JUDGMENT




4The court was required to impose a life sentence on the first-degree murder conviction.
Further, the first-degree murder conviction was the only conviction for which the court
could impose a life sentence.

                                             5
OF CONVICTION: SENTENCE: AND ORDER TO SHERIFF (MITTIMUS),” read, in

pertinent part, as follows:

       The Defendant was arraigned in this Court upon an . . . Information, . . . to
       which the Defendant entered a plea of . . . Not Guilty, . . . was found
       Guilty, . . . by the Court, of the offense(s) of[:]

       Count 1, Murder in the First Degree, (convicted of second degree murder)
       F-2
       Count 2, Murder in the First Degree [felony murder], both counts 1 & 2 [as
       charged] are C.R.S. 18-3-102, F-1
       Count 3, Aggravated Robbery, C.R.S. 18-4-302, F-3
       Counts 4 & 5, Menacing, C.R.S. 18-3-206, F-5

       ....

       It is now the Judgment and Sentence of the Court that the Defendant be
       sentenced to the custody of the Executive Director of the Department of
       Corrections . . . , Colorado for a term of[:]

       Counts 1, 2 & 3 are merged and defendant is sentenced to life
       Counts 4 & 5, defendant is sentenced to 4 years on each count.

       ....

       JUDGMENT OF CONVICTION IS NOW ENTERED

       ....

       IT IS FURTHER ORDERED OR RECOMMENDED:
       Sentences on all counts are to run concurrent.

(Emphases added.)




                                            6
¶11    After Wood’s direct appeal and state postconviction proceedings proved

unsuccessful,5 he sought habeas corpus relief from the federal district court. In his second

habeas petition to the federal district court,6 Wood asserted, among other things, that the

state district court’s entry of simultaneous first-degree murder and second-degree

murder convictions for the death of the assistant manager violated his double jeopardy

rights. Wood v. Milyard, No. 08-cv-00247-WYD, 2009 WL 1973531, at *5 (D. Colo. July 6,

2009). The federal district court disagreed. It reasoned that Wood’s convictions did not

violate Blockburger v. United States and were consistent with the double jeopardy clause

because the crimes of felony murder and second-degree murder “require different proof

and are separate and distinct crimes.”7 Id. at *6.




5 The court of appeals affirmed Wood’s convictions and sentences on direct appeal. See
People v. Wood, 2016 COA 134, ¶ 5, __ P.3d __ (citing People v. Wood, No. 87CA0273 (Colo.
App. May 4, 1989)). Wood then petitioned for certiorari review to this court, but we
declined to hear his case. He subsequently filed a pro se Crim. P. 35(c) motion in state
district court seeking to vacate his first-degree murder conviction on double jeopardy
grounds. Id. at ¶ 6. Although the state district court ruled on Wood’s request for counsel,
it never resolved the motion on the merits. Wood submitted another Rule 35(c) motion
nine years later, in 2004, claiming that his convictions for first-degree murder and
second-degree murder of the same victim violated the prohibition against double
jeopardy. Id. The state district court rejected the claim, finding that it could have been
raised in Wood’s direct appeal. Id. The court of appeals affirmed, concluding that the
challenge to the second-degree murder conviction was time barred and that the challenge
to the first-degree murder conviction was barred because it could have been raised on
direct appeal. Id. at ¶ 7.
6Wood’s first habeas petition was denied for failure to exhaust state remedies. See Wood
v. Milyard, 08-cv-00247-WYD, 2009 WL 1973531, at *1 (D. Colo. July 6, 2009) (citing Wood
v. Furlong, No. 94-cv-00219-JLK (D. Colo. Mar. 22, 1995)).
7In Blockburger v. United States, 284 U.S. 299 (1932), the United States Supreme Court
adopted the “same-elements test” to analyze double jeopardy claims. United States v.
                                             7
¶12    The Tenth Circuit affirmed on other grounds. It held that the double jeopardy

claim was time barred. Wood v. Milyard, 403 F. App’x 335, 339 (10th Cir. 2010). But the

United States Supreme Court reversed. It concluded that the Tenth Circuit had abused

its discretion in raising the timeliness issue sua sponte because the prosecution had twice

informed the federal district court that it did not intend to challenge Wood’s petition on

timeliness grounds. Wood v. Milyard, 566 U.S. 463, 474 (2012). The Court thus remanded

the case to the Tenth Circuit with instructions to address the merits of Wood’s double

jeopardy claim. Id. at 475.

¶13    On remand, the Tenth Circuit agreed with Wood that the “double jeopardy

doctrine prohibit[ed] his simultaneous convictions for first and second degree murder.”

Wood v. Milyard, 721 F.3d 1190, 1195 (10th Cir. 2013). The court was not persuaded by the

federal district court’s analysis. Id. Although acknowledging that the same-elements test

ushered in by the Supreme Court in Blockburger is a proxy for legislative intent,8 it

determined that such proxy must yield to express legislative intent:




Dixon, 509 U.S. 688, 696 (1993). Under that test, a court must discern whether each offense
in question contains an element that is not contained in the other. Id.; Blockburger, 284
U.S. at 304. If each offense requires proof of an element that the other offense does not,
then the legislature is presumed to have intended to authorize punishment for both
offenses. United States v. Christie, 717 F.3d 1156, 1173 (10th Cir. 2013). Otherwise, the
legislature is presumed to have intended to authorize punishment only for one of the two
offenses. Id.

8 The Blockburger decision has been deemed to have articulated a rule of statutory
construction to stave off double jeopardy concerns. See Missouri v. Hunter, 459 U.S. 359,
366 (1983). In Hunter, the Court determined that the “Double Jeopardy Clause does no
                                            8
       The difficulty is that a proxy for legislative direction must give way when
       we have express legislative direction already in hand. In this case, we have
       unambiguous rulings from the Colorado Supreme Court that the Colorado
       legislature will tolerate but one murder conviction per death. We are not at
       liberty to ignore that guidance and replace it with the results of a proxy test
       intended only to fill gaps when express legislative direction is unavailable.

Id.

¶14    Significantly, the Tenth Circuit’s ruling was premised on its belief that the original

mittimus showed that Wood was convicted of two murder charges for the death of a

single victim:

       The [mittimus] expressly states that the defendant is “guilty . . . of the
       offense(s) of” first and second degree murder. The [mittimus] then appears
       to merge the two convictions only for the purpose of imposing as sentence
       a single prison term of life imprisonment. At no point does the judgment
       suggest the court vacated either murder conviction as it had to.

Id. at 1196 (internal citations omitted). That Wood received only one sentence for both

murder convictions was of little moment to the court because “multiple murder

convictions can and sometimes do exist in a Colorado state court judgment even when

only one sentence is entered.” Id. And, because “it’s long since settled that a conviction,

even a conviction without a corresponding sentence, amounts to a punishment for

purposes of federal double jeopardy analysis,” the court concluded that Wood had

received cumulative punishments without authorization from the legislature. Id. at 1195–

96.




more than prevent the sentencing court from prescribing greater punishment than the
legislature intended.” Id.

                                             9
¶15   Having found that there was a double jeopardy defect, the Tenth Circuit set out to

remedy it, mindful of the equitable nature of habeas corpus relief, which suggested that

the court should “try to give the maximum possible effect to an otherwise lawful trial

verdict.” Id. at 1197. At the same time, the court recognized that the only conviction

challenged by Wood and over which it had the power of review was the first-degree

murder conviction. Id. Balancing the concerns before it, the court ultimately decided to

“permit[] the elimination of [Wood’s] lesser, second degree murder conviction—or at

least permit[] the Colorado courts that tried him to choose which conviction [would] go.”

Id. Hence, the court remanded the matter to the federal district court with directions “to

grant the writ of habeas corpus conditionally” by vacating the first-degree murder

conviction “if and only if no state court vacates either of the two murder convictions

within a reasonable time.” Id.

¶16   The federal district court did as instructed and partially granted Wood’s habeas

petition. Wood v. Milyard, No. 08-cv-00247-WYD, 2014 WL 321075, at *2 (D. Colo. Jan. 29,

2014). The People reacted by filing a motion in state district court to have Wood

“resentenc[ed].” See Wood, 2016 COA 134, ¶ 11. However, at the resentencing hearing, it

became clear that the People were not actually seeking to have Wood resentenced. Id. at

¶ 12. Instead, they understood the federal district court’s order as requiring them to

“make a selection between Felony Murder and Second Degree Murder.” Id. at ¶ 11. The

People intended their motion as a vehicle to inform the state district court about the

federal district court’s order and to request that the second-degree murder and

aggravated robbery convictions be vacated. Id. at ¶ 12. The state district court granted

                                           10
the People’s request, vacated the second-degree murder and aggravated robbery

convictions, and amended the mittimus to reflect its ruling. Id. Upon learning of the state

district court’s order, the federal district court vacated the conditional grant of habeas

relief. Id. (citing Wood, 2014 WL 321075, at *2).

¶17      Wood appealed, and the division vacated the state district court’s order. Id. at

¶ 65. At the outset, it found that the People had authority to file a motion which,

notwithstanding its title, sought to alert the state district court to the federal district

court’s conditional grant of habeas relief and requested that Wood’s second-degree

murder conviction be vacated. Id. at ¶¶ 26, 29. But the division then determined that,

while the state district court had subject matter jurisdiction to vacate the second-degree

murder conviction, it lacked authority to do so. Id. at ¶¶ 30, 46, 53, 59, 61. Because

Wood’s habeas petition challenged only the first-degree murder conviction, the division

concluded that the state district court’s authority was limited to consideration of that

conviction. Id. at ¶ 65. Therefore, the division vacated the state district court’s order and

remanded the matter with instructions for the state district court “to vacate Wood’s

felony murder conviction and correct the mittimus” in order to leave in place “the second

degree murder, aggravated robbery, and menacing convictions.” Id.

¶18      The People sought certiorari review.9




9   We granted certiorari on the following question:
         Whether the court of appeals erred in finding that the district court lacked
         the authority to vacate the defendant’s conviction for second degree
                                             11
                                      II. Analysis

¶19    The People accurately note that the state district court expressly indicated during

the sentencing hearing that the two murder convictions and the aggravated robbery

conviction merged into a single conviction for first-degree murder. They correctly add

that the state district court then imposed a single sentence of life imprisonment for that

first-degree murder conviction. However, the People aver that the original mittimus

“misstate[d] the sentencing court’s judgment” simply because it “recited that Wood was

found guilty of felony murder, second-degree murder and aggravated robbery.” The

People characterize this as a clerical error and maintain, for the first time, that Rule 36

authorizes its correction.

¶20    Wood counters that the People’s clerical-error premise has already been rejected

by the Tenth Circuit, the division, and the state district court, and is, in any event,

inconsistent with statements the People themselves have made in these proceedings. In

the alternative, Wood contends that Rule 36 does not apply because any error in the

original mittimus was not clerical, as it must be attributed to the exercise of judicial

consideration or discretion.




       murder, where the record of the sentencing hearing and the original
       mittimus reflected that the guilty verdicts for second [degree] murder, first
       degree felony murder, and aggravated robbery merged, resulting in the
       imposition of a single life sentence.

                                            12
¶21     Both parties misunderstand the original mittimus.           The original mittimus

contained neither a double jeopardy defect nor a clerical error. Rather, it reflected a single

murder conviction. It follows that there was no other murder conviction to be vacated.

That the original mittimus documented the state district court’s guilty verdicts does not

alter the analysis.

¶22     We recognize that the Tenth Circuit reached a contrary conclusion. But we are not

bound by the Tenth Circuit’s reading of a state district court’s mittimus. Even assuming

the Tenth Circuit was correct in its reading of the original mittimus, any error was merely

clerical. Consequently, the proper remedy was to have the state district court correct the

mittimus pursuant to Rule 36. Because the original mittimus has already been amended

by the state district court and, as amended, clearly reflects that Wood stands convicted of

only one count of murder (first-degree murder), we need not remand the matter.10 The

state district court’s amendment of the original mittimus was akin to a correction of a

clerical mistake pursuant to Rule 36. Accordingly, we reverse the division’s judgment

and vacate its opinion.

      A. The Original Mittimus Did Not Violate the Double Jeopardy Clause

¶23     As the Tenth Circuit recognized, the double jeopardy doctrine prohibits

“cumulative punishments the legislature hasn’t authorized.” Wood, 721 F.3d at 1195. Even




10Neither party argues that the amended mittimus fails to accurately reflect the state
district court’s 2014 ruling granting the People’s motion to vacate the convictions for
second-degree murder and aggravated robbery.

                                             13
a conviction unaccompanied by a sentence bears sufficiently adverse collateral

consequences to amount to punishment for purposes of double jeopardy analysis. Id. at

1195–96; cf. People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (“There are a significant

number of important collateral consequences for a felony conviction beyond that of the

sentence imposed”; therefore, “two convictions for one killing result in enhanced

collateral punishment.”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo.

1984).

¶24      The Tenth Circuit concluded that Wood received cumulative punishments for the

murder of the assistant manager based on its belief that the original mittimus reflected

convictions for both first-degree murder and second-degree murder.11 Wood, 721 F.3d at

1196. Therein lies the primary flaw in the Tenth Circuit’s decision.

¶25      As relevant here, the original mittimus stated that Wood was “found Guilty . . . by

the Court” of: Count 1, second-degree murder; Count 2, first-degree murder; and Count

3, aggravated robbery. It then declared that the convictions on Counts 1, 2, and 3

“merged” and Wood was sentenced to one life imprisonment term on the resulting




11The Tenth Circuit ostensibly equated a guilty verdict with a conviction. In Colorado,
“[t]he meaning of ‘conviction’ may vary depending on the statute in which it is used.”
People v. Hampton, 876 P.2d 1236, 1239 (Colo. 1994). A guilty verdict is regarded as a
“conviction” in some contexts. See, e.g., § 16-7-206(3), C.R.S. (2018) (“The acceptance by
the court of a plea of guilty . . . acts as a conviction for the offense.”); Hafelfinger v. Dist.
Court, 674 P.2d 375, 378 (Colo. 1984) (“In the context of a deferred judgment and sentence,
a ‘conviction’ occurs upon the acceptance by the trial court of the defendant’s plea of
guilty . . . .”). For purposes of our analysis, we assume that each of Wood’s guilty verdicts
was a “conviction.”

                                               14
merged conviction. By merging the convictions on Counts 1, 2, and 3, and imposing a

single sentence of life imprisonment—a sentence required for first-degree murder, but

unavailable for second-degree murder and aggravated robbery—the state district court

memorialized in the original mittimus that there was one conviction for the murder of

the assistant manager, a first-degree felony murder conviction. Given the state district

court’s decision to merge the three convictions and impose a single sentence of life

imprisonment on the resulting merged conviction, the fact that the original mittimus

recited all of the crimes Wood was found guilty of did not fly in the face of the double

jeopardy clause. Nothing in double jeopardy jurisprudence prohibits the documentation

of guilty verdicts in a mittimus, judgment of conviction, or sentencing order.

¶26    The Tenth Circuit nevertheless found a double jeopardy defect because it read the

original mittimus as stopping short of “vacat[ing] either murder conviction.” Id. We

disagree with this interpretation.

¶27    At the outset, we recognize, as did the Tenth Circuit, that under Colorado law,

“[o]nly one conviction of murder is permitted for the killing of one victim.” Lowe, 660

P.2d at 1270–71. As we explained in Lowe more than thirty-five years ago, “[i]t would be

a strange system of justice that would permit the defendant to be sentenced to

two . . . sentences for the killing of one person.” Id. at 1271; see also People v. Bartowsheski,

661 P.2d 235, 246 (Colo. 1983) (“Because the defendant caused the death of one victim and

only one victim, our decision in Lowe requires that only one judgment of conviction for

first degree murder be entered.”). While Lowe involved multiplicitous convictions for

first-degree murder, we have extended the rule we announced there to a situation like the

                                               15
one before us now. See People v. Hickam, 684 P.2d 228, 231 (Colo. 1984) (applying the

holding in Lowe to convictions for second-degree murder—as a lesser-included offense of

first-degree murder, after deliberation—and first-degree felony murder). Thus, Wood

may not stand convicted of both first-degree murder and second-degree murder for the

killing of the assistant manager. See id.

¶28    “Where multiplicitous convictions are found,” the appropriate remedy “‘is . . . to

vacate one of the underlying convictions as well as the . . . sentence based upon it.’”

United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (quoting Rutledge v. United

States, 517 U.S. 292, 301–02 (1996)). And we have made clear that, in determining which

conviction or convictions should be vacated to honor the double jeopardy clause, a trial

court “should be directed to enter as many convictions and impose as many sentences as

are legally possible to fully effectuate the jury’s verdict.” People v. Glover, 893 P.2d 1311,

1315 (Colo. 1995).

¶29    It is true, of course, that the original mittimus did not expressly state that one of

Wood’s murder convictions was “vacated.” However, by merging the two murder

convictions and imposing a single sentence for first-degree murder, the state district court

necessarily vacated the conviction for second-degree murder, thereby avoiding

multiplicitous convictions. Stated differently, “[m]erger ha[d] the same effect as vacating

one of the multiplicitous” murder convictions. People v. Rhea, 2014 COA 60, ¶ 17, 349 P.3d

280, 288.

¶30    We discussed the concept of merger in Boulies v. People, 770 P.2d 1274 (Colo. 1989).

There, we explained that “[i]n Colorado, the rule of merger precludes a conviction for a

                                             16
crime that is the lesser included offense of another crime for which the defendant has also

been convicted in the same prosecution.” Id. at 1282. Inasmuch as the predicate felony

underlying the felony-murder conviction there reflected “the commission of the very

same aggravated robbery for which the defendant was separately charged and convicted,

the aggravated robbery conviction . . . was a lesser included offense of the felony murder

conviction.” Id. at 1280. Therefore, the “conviction for aggravated robbery merged into

the conviction for the greater inclusive offense of felony murder.” Id. at 1282; see, e.g.,

Reyna-Abarca v. People, 2017 CO 15, ¶ 4, 390 P.3d 816, 818 (concluding, in the context of a

double jeopardy claim, that “DUI is a lesser included offense of both vehicular

assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions must

merge into the greater offenses”).

¶31    But we have also implicitly acknowledged the application of the rule of merger

outside the context of a lesser-included offense, such as where the defendant has been

convicted on more than one count of murder for the death of a single victim. For example,

in People v. Miller, we noted that, “[u]nder the doctrine of merger, the felony murder

conviction and the first-degree murder (after deliberation) conviction [had] merged,

giving rise to only one sentence.” 113 P.3d 743, 745 (Colo. 2005). Similarly, in People v.

Harlan, a capital case, we relied on a sentencing phase instruction that informed the jury

that “Harlan’s convictions for first degree murder after deliberation and first degree

felony murder merged.” 8 P.3d 448, 509 (Colo. 2000), overruled on other grounds by Miller,

113 P.3d at 748–50; accord Dunlap v. People, 173 P.3d 1054, 1088 (Colo. 2007) (rejecting

Dunlap’s claim that the jury relied on improper convictions in imposing a death sentence

                                            17
because it was instructed during the sentencing phase of the proceeding that “the

first-degree murder after deliberation and first-degree felony murder verdicts merged

into a single conviction for each victim”).

¶32    The genesis of the observation in Miller and the instructions in Harlan and Dunlap

was Lowe, where we held that first-degree murder (after deliberation) and first-degree

felony murder are not separate offenses, but are alternative ways of committing the crime

of first-degree murder. 660 P.2d at 1268–71. In Lowe, we applied the rule of lenity, which

requires courts to resolve ambiguities in a penal code’s substantive prohibitions and

penalties in the defendant’s favor, and concluded that, even where an offense does not

qualify as a lesser-included offense under the same-elements test, the court may

nevertheless be required to vacate the conviction for that offense. Id. at 1269 (“The rule

of lenity requires that the first-degree murder statute be construed to favor the

defendant[,]” and “[t]hat construction is that a defendant can be convicted only of one

first-degree murder for one killing.”). It was in part for that reason that we rejected

Blockburger’s same-elements test as controlling in that case. Id. at 1266. We reasoned that,

while the same-elements test is useful in determining whether a lesser offense merges

into a greater offense, it is not suitable where, as here, “the accused has been charged with

committing the same crime in alternative ways, e.g., first-degree murder by felony

murder and after deliberation.” Id. at 1266–67.

¶33    We acknowledge that we did not “merge” Lowe’s multiplicitous murder

convictions; instead, we “vacated” them and remanded the case to the trial court to

amend the mittimus in order to reflect a single murder conviction. Id. at 1271–72. But

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there is nothing talismanic about the word “vacate” in the double jeopardy realm.

Indeed, although we ordered the trial court to “vacate” Lowe’s multiplicitous murder

convictions on remand, we also referred to the concept of merger in our analysis: “[W]e

believe that Blockburger is an acceptable test only in resolving the issue of whether one

offense is merged into another by reason of identity of elements.” Id. at 1266–67 (emphasis

added). We nowhere drew a distinction between vacating and merging multiplicitous

convictions to circumvent double jeopardy concerns.

¶34   We now clarify that when a mittimus provides that two multiplicitous convictions

merge or that one such conviction merges into the other, the defendant is afforded the

protection to which he is entitled under the double jeopardy clause just the same as when

a mittimus indicates that one of two multiplicitous convictions is vacated.12 Hence,

merely because the original mittimus merged Wood’s multiplicitous murder convictions,

rather than expressly stating that one of them was vacated, it does not follow that Wood’s

double jeopardy rights were violated.

¶35   The Tenth Circuit seemed dubious of the original mittimus in part because it

concluded that the merger was “only for the purpose of imposing [a single] sentence.”

Wood, 721 F.3d at 1196. But the original mittimus did not state that the merger was for

the purpose of issuing a single sentence. It simply mentioned that Counts 1, 2, and 3




12 To avoid confusion, when a trial court merges two multiplicitous convictions, as
opposed to merging one such conviction into the other, the mittimus should spell out the
resulting merged conviction.

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“merged and defendant [was] sentenced to [one] life” imprisonment term. The transcript

of the sentencing hearing corroborates our reading of the original mittimus. Defense

counsel and the prosecutor agreed that the convictions for second-degree murder and

aggravated robbery had to merge into the conviction for first-degree murder and that

only one sentence, for first-degree murder, should be imposed. Neither attorney ever

said, or even intimated, that the merger of the multiplicitous convictions was solely for

the purpose of imposing a single sentence. More importantly, the judge never made such

a suggestion. Instead, he ruled that the multiplicitous convictions merged and then

proceeded to sentence Wood to one life imprisonment term for the resulting merged

conviction. The original mittimus subsequently attempted to document the judge’s oral

ruling and sentence.

¶36   In any event, to the extent the Tenth Circuit discounted the merger, its analysis

runs headlong into Colorado jurisprudence. Neither we nor any panel of the court of

appeals has ever held that merger fails to avert double jeopardy exposure when it is done

for the purpose of imposing a single sentence. Regardless of the motivation behind it, so

long as merger protects against punishments the legislature hasn’t authorized, there is no

infringement of the double jeopardy clause.

¶37     In sum, we conclude that there was no double jeopardy defect or clerical error in

the original mittimus. Accordingly, there was no need for a remedy or correction.




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      B. Even if There Was an Error, Rule 36 Provided the Proper Remedy

¶38    We have determined that the Tenth Circuit misread the original mittimus. But

even if it understood that mittimus correctly, the proper remedy was to allow the state

district court to correct it pursuant to Rule 36 of our Rules of Criminal Procedure.

¶39    Rule 36 provides that “[c]lerical mistakes in judgments, orders, or other parts of

the record and errors in the record arising from oversight or omission may be corrected

by the court at any time.” We have explained that “clerical errors in a . . . mittimus” may

be corrected pursuant to Rule 36. Glover, 893 P.2d at 1316. Courts have also relied on

Rule 36 to correct “errors made by the clerk”—such as in entering a judgment or a

sentence—as well as any “mistakes apparent on the face of the record, whether made by

the court or counsel during the progress of the case.” Id. (quoting Town of De Beque v.

Enewold, 606 P.2d 48, 54 (Colo. 1980)). Rule 36 not only allows “perfunctory changes to

correct grammar and to strike meaningless repetitions,” People v. Emeson, 500 P.2d 368,

369 (Colo. 1972), it also authorizes the trial court to correct a clerical or ministerial error

“in order to show the judgment that was actually pronounced,” Glover, 893 P.2d at 1316.

¶40    To the extent Rule 36 affords the trial court an opportunity to ensure that

judgments and sentences are documented accurately, it is                    consistent with

long-established Colorado case law. Emeson, 500 P.2d at 369. Indeed, in Emeson, we

explained that a judge has historically been allowed to “correct or amend a record so that

it speaks the truth.” Id.; see also People v. McLain, 2016 COA 74, ¶ 26, 411 P.3d 1037, 1041

(“[Rule 36] authorizes the district court to amend a judgment to conform to the sentence

imposed.”).

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¶41    Still, Rule 36 is not without limits. It does not extend to errors that can “reasonably

be attributed to the exercise of judicial consideration or discretion.” Glover, 893 P.2d at

1316 (quoting Town of De Beque, 606 P.2d at 54). As the court of appeals has observed,

while “a trial court may correct a recording or transcription error to effectuate the

understanding and intent of the parties and the court,” it may not substantively

“amend[] . . . the sentence itself.” McLain, ¶ 26, 411 P.3d at 1041.

¶42    Wood contends that Rule 36 is inapplicable because any error in the original

mittimus was not clerical and must be attributed to the exercise of judicial consideration

or discretion. The record belies this hypothesis. More specifically, the transcript of the

sentencing hearing illustrates that the judge and the parties intended to have the

second-degree murder conviction merge into the first-degree murder conviction. For that

reason, the judge later imposed a single sentence for the murder of the assistant manager

(a life sentence). Thus, to the extent that the original mittimus failed to reflect the judge’s

oral ruling and sentence, it was not as a result of judicial consideration or discretion; it

was, instead, as a result of a clerical or ministerial error in drafting the original mittimus,

an error the state district court corrected when it amended the mittimus in 2014.

¶43    Because any error in the original mittimus was clerical in nature, not the result of

judicial consideration or discretion, the proper remedy was to correct that mittimus

pursuant to Rule 36.      Such correction would not have amounted to a substantive

amendment of the judgment or sentence. Instead, it would have simply effectuated the

intent and understanding of the court and the parties at the sentencing hearing. Put



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differently, the correction of any error in the original mittimus would merely have

allowed the mittimus to speak the truth.

                                    III. Conclusion

¶44   We conclude that the Tenth Circuit misread the original mittimus. There was no

double jeopardy defect or clerical error in that mittimus. The only error was in believing

there was an error. And even if the Tenth Circuit correctly understood the original

mittimus, any error should have been corrected pursuant to Rule 36. Since the division

assumed that the Tenth Circuit’s reading of the original mittimus was accurate and then

failed to recognize that any error was subject to correction under Rule 36, we reverse its

judgment and vacate its opinion.




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