v. Palmer

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