cbs4denver.com

Feb 22, 2008

The man sentenced to death for murdering four people at a restaurant in Aurora has been granted a temporary stay of execution.

Nathan Dunlap, 33, claims he didn't get a fair trial because his legal team was ineffective.

On Friday a U.S. district court judge granted the stay while Dunlap's case is reviewed. That could take nearly a year.

Dunlap was convicted of first-degree murder, attempted murder and other charges for shooting five people at a Chuck E. Cheese restaurant in Aurora in December 1993.

Four victims died. The survivor identified Dunlap as the killer.

He was sentenced to death 3 years after the crime.

The Colorado Supreme Court has upheld Dunlap's conviction and sentence three times.

Colorado Supreme Court Denies Dunlap's Appeal In Aurora Case

By Dan Elliott, AP Writer - cbs4denver.com

May 14, 2007

A man convicted in a 1993 shooting rampage that left four people dead in a pizza restaurant lost another round in his battle to avoid execution Monday.

The Colorado Supreme Court rejected Nathan Dunlap's claim that his legal defense was ineffective, and the justices ordered the trial court to set a date for his execution.

Dunlap's attorney, Phillip Cherner, said he would ask the court to reconsider. If that fails, Cherner said, he will launch an appeal through the federal courts.

"We believe our appeal has merit and we will eventually prevail," he said.

Nate Strauch, a spokesman for Attorney General John Suthers, said the ruling means Dunlap has exhausted his state appeals.

"We're happy to see the case moving toward the resolution of the jury's well-deserved verdict," Strauch said.

Dunlap, now 33, was convicted in 1996 of shooting five people at a Chuck E. Cheese restaurant in suburban Aurora. Four of the victims died.

The state Supreme Court upheld his death sentence in 2001. In 2004, Dunlap began another appeal, claiming his representation was inadequate. The court rejected that claim Monday.

"We dissolve the stay of execution and remand this case back to the trial court to set a date for imposition of the death sentence," the justices said in their ruling.

Dunlap was convicted of first-degree murder, attempted murder, robbery, theft and burglary.

Killed in the rampage were Margaret Kohlberg, 50; Ben Grant, 17; Colleen O'Conner, 17; and Sylvia Crowell, 19. Bobby Stephens survived and later identified Dunlap as the murderer.

The only other prisoner on Colorado's death row is Edward Montour Jr., 39, convicted of murder in the death of a guard at the Limon prison in October 2002.

Nathan Dunlap

March 9, 1999

The New York Times

Thursday, December 16, 1993

An after-hours shooting rampage at a family restaurant on Tuesday left four employees dead, and today a recently dismissed kitchen worker was arrested. A fifth employee was shot in the jaw but managed to escape and alert the police.

The former employee, Nathan Dunlap, 19, was being held for investigation of four counts of first-degree murder in the slayings at the Chuck E Cheese restaurant in this Denver suburb. The victims were shot in the head.

"It appears he may have held a grudge over his firing," said Mike Stiers, chief of the Aurora Police Investigative Division.

The authorities said Mr. Dunlap was dismissed about a week ago and recently got a job at a fast-food restaurant near Chuck E Cheese. The reason for the dismissal was not known.

Investigators recovered a small-caliber semi-automatic handgun, Mr. Stiers said.

The victims were the night manager, Margaret Kohlbert, 50; Colleen O'Connor, 17; Sylvia Crowell, 19, and Benjamin Grant, 17. Bobby Stevens, 20, was in fair condition at Denver General Hospital, after he fled the restaurant and ran to nearby apartments to call the police.

The gunman entered the restaurant just after closing Tuesday night, when employees were cleaning up. He confronted and shot two workers, shot a third one in a hallway, shot and wounded Mr. Stevens in the kitchen, and shot Ms. Kohlbert in her office in the rear.

Chuck E Cheese is a popular family eating place and entertainment center in the London Square shopping center that serves a nearby upper-middle-class neighborhood. The neighborhood has little crime.

"This is just a tragic, tragic example of what can happen if something is not done about the level of violence existing with these kids today," Mr. Stiers said.

Shannon McCurley, 16, a restaurant employee, said that Mr. Dunlap frequently came by the restaurant to say hello, but that he was bitter over his dismissal.

Fifteen years after the Chuck E. Cheese massacre in Aurora, the shooter is still on death row. Nathan Dunlap's only hope that his life might be spared is Colorado Governor Bill Ritter.

By Patrick Doyle and Natasha Gardner - 5280.com

December 2008

THE MASSACRE

Fifty-year-old Margaret Kohlberg watched the clock. It was nearly 10 p.m. on a Tuesday night in December 1993, and her crew was antsy. A family birthday party had stayed late at the Aurora Chuck E. Cheese, and the parents were just now bundling up their two kids against the winter cold. Margaret headed back to the office to start tallying the night's receipts. She'd go home in a few minutes, after she got her teenage workers out the door.

Sylvia Crowell started cleaning the salad bar. The 19-year-old was balancing a full-time work schedule and classes at Metro State, but that day she'd gone shopping with her best friend, Carole Richins, before they'd clocked in for the night shift at the pizzeria. Carole had just left, shouting, "I love you!" over the restaurant's cacophony of arcade games and animated toys.

Nearby, Ben Grant, a high school junior, turned on the vacuum, and its whirring helped drown out the noise. He tossed the cord behind him, absentmindedly sucking up pizza crumbs and food left crushed into the carpet by the kids. Colleen O'Connor was helping close that night too, but she was distracted. The 17-year-old had called her mom during a break three hours before and found out her parents were giving her a car.

In the kitchen, Bobby Stephens scrubbed away. He hadn't been scheduled to work that day, but he needed the cash. Just 20, he had a seven-month-old baby boy at home. With the holidays coming up, he had stopped in to ask for extra hours, and they had put him to work. The small crew continued closing, the routine so familiar that they moved with the robotic motions of the mechanized creatures that danced, twirled, and sang around them.

Sylvia didn't even hear the intruder come up behind her. Silently, he raised the .25-caliber semiautomatic pistol to her left ear and squeezed.

Bang.

As she fell, he looked away. He couldn't stomach the sight of gore and blood. He moved quickly to where Ben was vacuuming.

Bang.

The bullet entered near Ben's eye, lodging in his brain as he fell to the ground.

Colleen saw him coming. He was a boy with a gun; he had too-big brown eyes above hollowed cheeks and a mouth that twisted in a half-smile. Kneeling in front of him, she begged for her life, raising her arms, her fists clenched, as he held a gun just 18 inches from her head.

"Don't shoot," she cried. "I won't tell."

"I have to," the shooter said as he pulled the trigger again.

Bang.

Inside the kitchen, Bobby heard the three sharp cracks, but he didn't stop working. He figured it was probably Sylvia or Colleen popping balloons. He didn't have time to think about it much before the kid with the gun barged into the kitchen. Tall but gaunt, like a boy who's not quite yet a man, the intruder was wearing a jacket, gloves with holes cut out at the knuckles, and a baseball cap perched backward on his head. Stunned, Bobby started to say hello. Half-smirking, the shooter raised his arm.

Bang.

The bullet entered Bobby's jaw and sent him sprawling to the floor. It felt like a burn, a cigarette scorching his skin, and then like a baseball bat slamming into his face. He watched as a pair of black high-top shoes headed toward the office. Margaret was still counting the evening receipts. She did what he asked and opened the safe. The last words she heard were "thank you."

Bang.

He shot her in the ear. Then he grabbed her bag, filled it with game tokens, key chains, cards, $1,591 and change.

Bang.

He shot her again, in the other ear, just to make sure.

Six .25-caliber shell casings dotted the floor. The shooting spree couldn't have lasted more than five minutes.

It would only take a few hours after the Chuck E. Cheese massacre for police to track down the shooter: 19-year-old Nathan Jerard Dunlap was at his girlfriend's apartment. The couple was having sex when his pager went off with a message from his mom, who was relaying a message from the cops. The investigators had heard he ate dinner at the restaurant that night and wanted to ask him a few questions. Dunlap agreed to meet. Before returning to his home, an apartment he shared with his mother, the teenager washed his hands with hydrogen peroxide and jumped in the shower, then stashed some of the money under the freezer. Back at his home, the police questioned him, swabbed his hands for gunshot residue, and took his clothes into evidence. About 12 hours after the murders the police returned to Dunlap's home and cuffed and arrested the teen.

A NEW DISTRICT ATTORNEY NAMED BILL RITTER HEARS THE NEWS

When Denver District Attorney Bill Ritter woke up the next morning, reports of the Chuck E. Cheese killings were all over the local and national news. It was beginning to seem as if the year—and the violence—were never going to end. The wave of violence started in January, when a robber murdered a grandmother in her home in Park Hill. In May, a 10-month-old was nearly killed by a stray bullet at the Denver Zoo; in July, two gang members robbed and beat a woman and killed her husband in Capitol Hill. The local media dubbed it the "Summer of Violence" and ran death totals on the front pages. In Colorado, the Christmastime bloodbath at a Chuck E. Cheese was a macabre but fitting end to the year.

The violence in the city was a microcosm of the crime epidemic spreading around the nation. And what made the violence all the more disturbing, aside from the frequency and depravity, was how young the killers were. Often the offenders were trigger-happy gangbangers. Driving the violence, so went the consensus in the law enforcement community, was crack. As the drugs went, so did the gangs, and by the early 1990s, both had a chokehold on America's inner cities. Juvenile murder rates had tripled nationally. John Dilulio, a political scientist at the Brookings Institution, even coined a name for this new breed of young criminals: "superpredators." The public wanted justice—or maybe vengeance—with 80 percent of Americans supporting the death penalty. Law enforcement, prosecutors, and especially politicians quickly took up the rallying cry.

Michael Dukakis' 1988 Democratic presidential campaign was derailed when Republicans started running attack ads featuring unnerving images of Willie Horton, an African-American rapist. While Dukakis was governor of Massachusetts, Horton had been granted a weekend furlough from prison, and he raped again. Congressman Newt Gingrich helped the GOP take both the House and the Senate in 1994 with a "Contract with America" that promised increased funding for prison construction, tougher sentencing, and a stronger death-penalty law. In that political climate, even progressive Democrats—at least the most successful ones—were seizing on the political power of the death penalty. In 1992, an Arkansas governor named Bill Clinton received a clemency petition on behalf of Rickey Ray Rector, a mentally retarded man on death row. (After killing a police officer, Rector had shot himself in the head, effectively lobotomizing himself.) Clinton had long been opposed to the death penalty, but now he was running for president of the United States. Clinton denied Rector's petition. It took the executioner an hour to find the right vein.

Like a young Bill Clinton, the young Bill Ritter had what he described as "some very strong reservations" about the death penalty. It was not so much a political view as it was a belief rooted in his religion. Ritter was born into a Catholic family of 12 children, all raised on a five-acre farm in what is now Aurora. The Ritters took their faith seriously, and perhaps none more so than Bill, who spent two years at a Catholic high school seminary in Texas before deciding that he didn't want to become a priest. It was then, in the early 1980s, that a career in law as a Denver deputy district attorney presented itself as a suitable calling. After all, wasn't the pursuit of justice a way of serving a just and merciful God?

Although he was a Democrat, Ritter was pro-life, his church's Catholic doctrine advocating for the sanctity of life for the born and unborn. Ritter opposed abortion, with exceptions—rape, incest, and health of the mother—and had publicly expressed his "personal doubts" about the death penalty. And Ritter's deeply rooted convictions threatened to undermine a tremendous professional opportunity at the beginning of the summer of 1993, when Governor Roy Romer was looking for a district attorney. The current DA, Norm Early, was burned out and wanted to retire; a search committee had recommended that the governor consider Ritter for the post. Considering the political climate, one of the things Romer needed to know was whether Ritter would pursue a death-penalty sentence to the end. Ritter assured the governor he would; that he would subjugate his "personal doubts" to the law of the state and the beliefs of the voters, and Romer appointed him DA.

Ritter didn't have that much to worry about when it came to actually reconciling his faith's doctrine of protecting life with his professional commitment to implementing a death sentence. Colorado hadn't executed anyone in more than 25 years. Out of 77 potential capital punishment cases, only seven men had been sentenced to death across the state, and none, so far, had been executed. More frequently, juries, stymied by one reluctant juror, hadn't been willing to execute. When the two gang members killed that husband in Capitol Hill, only weeks after DA Ritter took office, it seemed like he would face his first test. The court of public opinion wanted a life for a life. Legally, though, there was no way Ritter's office could secure a death sentence in the case. Police weren't sure which gang member had pulled the trigger in Capitol Hill. And because the Chuck E. Cheese murders happened in Aurora, outside the Denver DA's jurisdiction, Ritter wouldn't have to consider the Nathan Dunlap matter either. At least not yet.

DUNLAP'S DEFENSE RESTS

In his more than 25 years in office, Arapahoe County District Attorney Robert Gallagher had never won a death-penalty conviction. But two years after the 1993 Chuck E. Cheese murders, the voters who'd elected him to office term after term were still enraged. The slayings had made national news. The former Arkansas governor who'd executed Rector, the mentally disabled con, was now President Bill Clinton, and President Clinton had used the Chuck E. Cheese killings to reinforce his tough-on-crime message. The case had generated so much interest, stoked the fires of the potential jury pool in Aurora, that the court decided Dunlap ought to be tried elsewhere in order to find a jury of objective peers.

The rare change-of-venue order moved the case some 60 miles away to Colorado Springs. Arapahoe County DA Gallagher entrusted the prosecution of the capital case to his heir apparent, Jim Peters. Because Dunlap couldn't afford an attorney, the court appointed Forrest "Boogie" Lewis and Steven Gayle to defend him. Both attorneys had won life-without-parole convictions for clients in death-penalty trials. It appeared they understood that their job was twofold: persuade a jury that there was reasonable doubt of Dunlap's guilt, and, if necessary, do their best to secure the most lenient sentence.

It came as no surprise that Peters presented a remarkably strong case against Dunlap. The evidence was overwhelming. Bobby Stephens had survived the bloodbath—a small scar on his cheek the only visible reminder of that night—and testified that there was no doubt in his mind that Dunlap was the one who had killed his friends and coworkers. Using fancy new slideshow technology, prosecutors flipped gruesome pictures of murdered teenagers before the jury. They put the coroner on the stand; he plunged knitting needle­­-like rods into Styrofoam heads to show how a bullet moved through skulls and brains. The prosecution lined these macabre models on a table in the courtroom. A detective even turned on Ben's vacuum cleaner so jurors could hear its whining.

The prosecution presented to the jury a narrative of Dunlap's biography that cast him perfectly, exclusively, as one of those superpredators. At 15, Nathan had committed several robberies, first using a golf club as a weapon and later guns. He ended up in juvenile court, which offered him the opportunity to turn his life around. Instead, he sold drugs off and on, and hung out with a wannabe gang that robbed places for quick hits of cash. In 1993 alone, he was arrested five times on misdemeanor charges. Until that December night at Chuck E. Cheese. The lead prosecutor Peters and his team pointed out that since Dunlap had been in jail, awaiting trial, he had torn a leg off a metal desk, sharpened it, and began to scrape away at the window ledge in his cell. They took pictures of Dunlap's new jailhouse tattoos: One was "Crazy Horse," the new nickname he'd embraced; the other was a smoking handgun with the phrase "By Any Means Necessary."

The exclamation point on the prosecution's case was Dunlap's own words. Peters informed the jurors that Dunlap had confessed to fellow inmates, to a jail deputy, to friends—many of whom had testified against him in exchange for reduced sentences—and to a trusted mentor. As to the question of motive: Why did Dunlap go on his murderous spree? What reason could there be? The case the prosecution so commendably presented to the jury, in short, went like this: Dunlap entered the Chuck E. Cheese that night, ordered a ham-and-cheese sandwich, played a video game called Hogan's Alley where he shot bad guys; when the game was over, he hid in the bathroom until closing, then emerged and executed four people for real—because he wanted revenge for being fired from his "doughmaster" job at the same restaurant months before. Peters even put Dunlap's mother, Carol, on the stand expecting she would plead the Fifth—which she did—thus leaving the jury with the impression that Dunlap's own mother couldn't muster a word on her son's behalf.

The proceedings were then turned over to Dunlap's defense. Throughout the prosecution's show, Lewis and Gayle, who declined to comment for this story, had offered few objections, and as they now made Dunlap's case offered no rebuttals. Dunlap wanted to testify, but his attorneys advised him against it. In fact, Lewis and Gayle did not call a witness—they did not have a single person testify on their client's behalf—and then they rested. On February 26, 1996, the jury, who had been sequestered in a local hotel, took just three-and-a-half hours to find Dunlap guilty.

DA RITTER MAKES AN ANNOUNCEMENT

Seven months after Nathan Dunlap was convicted, Bill Ritter was in the midst of his reelection campaign for Denver district attorney. Taking over for Norm Early during the Summer of Violence, Ritter now had been DA for three years. He was well liked and respected by his colleagues, and was also highly regarded by the Colorado legal community. Craig Silverman, a former prosecutor and former law school classmate of Ritter's, was challenging him—and he kept telling anyone who would listen that Bill Ritter was soft on crime.

Ritter and Silverman had been friends at the University of Colorado Law School, played intramural sports together, were sworn in as lawyers together, and were hired on at the DA's office together. Even after Ritter became district attorney, their relationship remained strong. Ritter appointed Silverman to handle some of the tougher cases in Denver during the Summer of Violence. The two men remained close until early 1996, when Pat Schroeder, the longtime Denver congresswoman, decided to step down. Democrats scrambled. Silverman, weighing a run, talked to his old pal Ritter about an endorsement. The DA refused. He was between a political rock and a hard place. Diana DeGette, the Colorado representative who had helped select Ritter as district attorney for Governor Romer, had already entered the race; she was the party establishment's pick. Silverman resigned from the DA's office in order to challenge Ritter for the DA slot. Silverman immediately attacked Ritter's record on crime.

As DA, Ritter had focused on both criminal prosecution and prevention. Instead of jailing nonviolent drug felons, he created a separate court focused on rehabilitation and probation—a proactive system designed to stop repeat offenders, to keep them from spiraling into the gang violence spreading across Denver and America. The drug court had become a national model, though it was just one of his many prevention programs, including a courtrooms-to-classrooms program and a juvenile-diversion program. Ritter had created a system of second chances and forgiveness to fulfill the motto taught to him by his first boss, former Denver District Attorney Dale Tooley: Always do justice. It is a sentiment that also lies at the core of Ritter's faith.

At a debate held at the City Club of Denver in September of 1996, Silverman started criticizing Ritter's death-penalty policy. Ritter, he told the crowd, was against capital punishment. Need proof? He hadn't prosecuted a single death-penalty case during his three years as DA—not even against Jon Morris, who had raped and killed a five-year-old girl in 1995. "Ask him, when is Jon Morris set for trial?" Silverman said. "Will Jon Morris ever be set for trial? This guy is in the state hospital. It's unlikely a trial date will be set any time soon. And Bill Ritter knows that, so that makes it convenient for him to seek the death penalty against him." Ritter had planned for the attack. In response, on the spot, he made an announcement: Earlier that day, he and his team of prosecutors had set a date for the death-penalty trial against Jon Morris. The case would begin February 10. Standing at the confluence of politics and the law, Ritter had used a political debate to announce that he was aiming for an execution.

"KILL ME RIGHT NOW"

If anyone watching the Dunlap trial had thought that maybe his defense attorneys, Lewis and Gayle, had kept their powder dry until the sentencing phase; that maybe they'd made the calculated risk to almost stipulate guilt in order to hold onto a strategic trump card that would convince the jury to spare Dunlap's life and instead sentence him to life in prison—if anyone had been thinking that, they were wrong.

In order to win the death sentence the people of Arapahoe County sought, prosecutor Peters needed to persuade the jurors there was an "aggravating" factor, essentially a detail of the crime that made Dunlap's murders especially heinous. Just one aggravating factor. Peters presented 28, including the fact that Dunlap had a prior felony, the fact he committed a robbery during the killing spree, and the fact that he lay in wait in the restroom before the shootings. During the sentencing phase of death-penalty hearings, prosecutors often present many aggravating factors hoping to land the one that secures a sentence of death.

The defense's job at the sentencing phase is a bit more nebulous. If the defense could get one juror to disbelieve the prosecution's assertion that Dunlap was a superpredator who coldly murdered four people for something as simple as revenge for getting fired from his fast-food job; if they could make the jurors see that it wasn't that simple but rather there were other more complex factors, "mitigating" factors that do not excuse, but might explain, how a 19-year-old could execute four people and then go have sex with his girlfriend, then Dunlap's lawyers would save his life.

Dunlap's attorneys laid these facts before the jury without, again, calling so much as a single expert to attempt to assign them meaning. So what if the likes of the Sentencing Project, a criminal justice advocacy group, reports that exposure to violence at a young age increases an adolescent's propensity for violence by as much as 40 percent? What the jurors heard was a sad story, but one easily dismissed as irrelevant cliché. Especially considering the closing statement from Dunlap's own attorney. "How can anyone be so cold?" Forrest Lewis said. "How can anyone be so cruel? What road can anyone go down that could take them to the point where they could make the choices that were made at Chuck E. Cheese? I still don't know.... If you choose to kill my client under the facts of this case, I will respect your decision and you will hear not one word of criticism of you from me."

The weak defense paled, too, in comparison to what the victims' families said in court. They had been warned not to talk directly to the defendant, but they couldn't help it. "Nathan Dunlap killed us all," one of Margaret's daughters said. "We just didn't die." Ben Grant's mother phoned in—she'd left the state after her son's murder—to say, "Maybe now you understand the fear that was in my son's eyes when you pointed a gun at his head." Dunlap sat quietly, listening, until Sylvia's brother confronted him, saying that the murders were racially motivated (all of the victims were white). Then something in Dunlap broke, or broke more. He started to rave and rant in a three-and-a-half-minute monologue that left him sobbing uncontrollably, "Kill me right now. I have [had] enough of this motherfucking shit. You can take me to the motherfucking little chair and do what the fuck you want." Dunlap was given two death sentences for every life he'd taken.

MEANWHILE, IN ANOTHER COURTROOM

On November 18, 1997, 19-year-old Nathan Thill approached a Senegalese immigrant named Oumar Dia at a Denver bus stop. It was nearly midnight, and Thill, a white supremacist, had been drinking for several hours. He pulled a gun, pointed it at Dia, and asked him, "Are you ready to die for being a nigger?" Thill shot Dia in the chest and the neck, killing him. Thill noticed bystander Jeannie VanVelkinburgh. He couldn't have a witness to the murder, so he shot her too, leaving her paralyzed.

Thill was arrested quickly, and confessed during a 90-minute interview with District Attorney Bill Ritter. In a subsequent interview with a Channel 7 reporter, Thill said, "I see a black guy at the bus stop and I kind of decided he didn't belong where he was at and how easy it would be to take him out right there. In a war, anybody caught in an enemy uniform should be taken out."

Denver was outraged by the hate-filled murder, and the fact that innocent victims had been gunned down; both Dia and VanVelkinburgh had just gotten off work and were headed home. Ritter told the media that he'd seek the death penalty. As with the Dunlap case, the court of public opinion in Denver had already rendered its verdict, and the court felt compelled to order a change of venue—to the city of Pueblo—in the Thill matter so he could face a fair jury.

The prosecution presented a straightforward case: Thill, an admitted skinhead, had killed Dia because he was black. Thill had attempted to kill VanVelkinburgh because she was a witness to the murder. The district attorneys showed the jury the taped TV confession. VanVelkinburgh, who was paralyzed and couldn't be in court, offered a taped deposition as the prosecutors' star witness. Thill was guilty, said the district attorneys. He deserved to die.

The court appointed lawyer Sharlene Reynolds to head Thill's defense. She had already successfully defended another death-penalty case: In 1998, she convinced a jury that Jon Morris—the man who'd raped and killed a five-year-old girl—hadn't intended to kill the child and had been out of his mind at the time. Reynolds used the same strategy in this case: Thill had killed Dia, but Thill wasn't mentally stable and was incapable of forming the intent needed for first-degree murder.

The defense steamrolled the prosecution. Reynolds presented more than 5,000 pages of evidence cataloging Thill's terrifying mental instability: He was beaten by his father before he was a year old, began receiving mental health care at five years old, started attempting suicide at age eight, was put on strong psychiatric medicine before he was 10, and spent most of his teen years in group homes and mental hospitals. The defense hired psychologist Suzanne Bernhard to testify that Thill—whom she had evaluated several times before the trial and whose medical records she had received—was in a manic rage from his bipolar disorder at the time of the murder. He couldn't be guilty of first-degree murder if he was in that state; the defense argued Thill deserved a conviction of second-degree murder, which would spare his life.

After two days of deliberation, the jury was deadlocked. Ten jurors wanted to convict Thill of first-degree murder, but there were two reluctant holdouts. Tom Mitscher, one of the jurors, later described Thill as "out in left field somewhere." With a jury unable to agree, the judge declared a mistrial. Instead of retrying the case, Bill Ritter and the DA's office gave the defense an offer: If Thill would plead guilty to first-degree murder, they wouldn't seek the death penalty. The defense agreed, despite the fact they had just argued against a first-degree conviction. They had accomplished their narrow goal: saving Thill's life. "Nathan Thill with a million dollars couldn't have found better lawyers," Larry Pozner, a well-known defense attorney, told the Rocky Mountain News, "and likely would have found worse."

WHAT THE JURY DIDN'T HEAR

The correctional officers wouldn't stop taunting Dunlap. It was October 13, 1997, and on that day the state of Colorado was executing Gary Lee Davis, a convicted rapist and murderer. He was the first man whom the state had put to death in 30 years. The guards reminded Dunlap that his last days were looming; that he, too, would be led to a table, where IVs would be threaded into his veins, and he would wait as his heart pushed three poisons into his body. The first would render him unconscious. The second would paralyze him. The final, lethal poison would stop his heart. Two short minutes later, he would be dead. As Dunlap waited in his cell, paused between life and death, he smeared feces on his mouth. It was a manic breakdown, doctors realized, and one that would lead to a mental-health diagnosis: Nathan Dunlap has bipolar disorder.

Characterized by episodic mood swings between two poles—mania and depression—bipolar disorder can take up to 10 years or more to diagnose. A pattern of mental shifts must be established, but the rate at which a person cycles between the poles varies dramatically. If a doctor evaluates a person between shifts, identifying the symptoms—sexual promiscuity, recklessness, delusions of grandeur, to name a few—is a struggle.

Dunlap, as doctors would piece together, had an earlier manic episode, on Valentine's Day in 1994. Normally a quiet prisoner, something, it seemed, was disturbingly wrong with Dunlap, who was then awaiting his criminal trial. A guard watched as he quietly read Bible passages at one moment and then ran to the window screaming obscenities at the next. He was moved into a rubber-walled room and placed on suicide watch as his pandemonium continued. He would tear off his clothes and spread feces on his body and the walls. He was taken to the Colorado Mental Health Institute in Pueblo, looking emaciated, scared, and wild. The Arapahoe DA's office had been preparing its case for more than a year, but this breakdown could have changed everything: Was Nathan even sane enough to stand trial? A two-week stay turned into a nearly five-month evaluation. A defense expert found that during his stay in Pueblo, Dunlap showed signs of psychosis at least 10 percent of the time. But the state's doctor was convinced Dunlap was faking and told the court so. On July 8, 1994, Dunlap was deemed competent to stand trial. And despite their own expert's odd evaluation, the defense avoided discussing his mental health or his unstable behavior at the mental health institute in Pueblo during the trial.

Bipolar disorder has a strong hereditary link. Children of a bipolar parent have a 14 percent chance—the rest of the population only has a 1 to 3 percent chance—of developing the disorder. In Nathan's family, his maternal grandfather, an uncle, and his mother, Carol, have all been diagnosed with schizophrenia or bipolar disorder. Carol's struggle for a diagnosis was particularly turbulent, resulting in a half-dozen hospital stays that took her in and out of her childrens' lives. Shortly after Nathan's birth, she was hospitalized in Waukegan, Illinois, and Nathan was sent with Adinea to a foster home. By the time he was two, the kids were back with Carol and on the move, stopping in Michigan for a time, and eventually ending up in Colorado in 1984. Nathan was 10.

A year or two later, according to court documents, Carol was formally diagnosed, but meanwhile she went through unmedicated periods when her symptoms would return. Pre- and post-diagnosis, her manic swings were accompanied by corporal violence and left her hypersexualized. She'd walk around the house naked, stay up cleaning and moving furniture for days, and take a dozen baths in a 24-hour period. Nathan would sometimes wake at 3 a.m. to find his mother shrieking, raving, and stacking their belongings on the lawn. When Dunlap was an infant, she once discarded him in the trash. She was hospitalized for trying to hurt Dunlap's younger brother, Garland, and has admitted that she hated Adinea since conception. For her three young children, living with Carol was a roller coaster of abandonment and abuse.

By 1989, things had changed. Adinea had moved out of the house and her lanky, all-elbows-and-knees brother was transforming. As his robberies escalated—antisocial behavior that a social worker saw as a cry for help—and Dunlap was shuttled between juvenile detention centers, Carol started to wonder if her young son wasn't suffering from the same mental-health demons she struggled with. A 1989 evaluation while at a juvenile treatment center showed signs of a conduct or thought disorder. Another examination showed he was depressed. A psychiatrist thought he might have oppositional disorder, something akin to bipolar disorder. Again and again, Dunlap was sent home without a diagnosis. He couldn't be suffering bipolar disorder. After all, he was just a kid, and kids didn't get bipolar disorder.

Four years later, at the time of the Chuck E. Cheese murders, it was still uncommon to look for symptoms of bipolar disorder in children or teenagers. Doctors believed that these symptoms didn't manifest until after puberty, usually around the age of 19 or 20. But today, doctors do diagnose children and adolescents. When discovered in an adult subject, it is difficult to work backward and see when their symptoms first manifested. Early teenage evaluations may have missed mood patterns or simply dismissed them as adolescent angst. Today, at least three doctors have agreed that Dunlap suffers from the disorder, but they all examined him after the 1996 trial and are unable to say with any certainty whether he suffered manic episodes earlier than that. Most important, they don't know if he suffered a manic break on December 14, 1993, the date of the Chuck E. Cheese murders.

David Lane, an attorney who has been an advisor to Dunlap's defense, believes that Dunlap's trial attorneys should have done much more to explore the mental-health issue—no matter how murky the waters. While Dunlap's defense attorneys introduced Carol's mental health, they presented no medical expert to discuss what, if any, impact that had had on Dunlap. "It is really incumbent upon the defense to find well-qualified doctors that have the credentials to be very credible people to do the full evaluation and tell the jury the whole story," explains Lane. "That didn't happen in Nathan Dunlap's case."

There was at least one doctor who was ready to help the defense—in fact, Dunlap's attorneys engaged her to do just that. Psychiatrist Rebecca Barkhorn examined Dunlap at the time of the trial and expected to testify in the penalty phase that he suffered from a narcissistic personality disorder. But the defense never called her. The defense also failed to provide her with Dunlap's complete charts from his time in Pueblo, reports that she wouldn't see until years later during the appeals process. When she did finally have the complete picture of Nathan Dunlap's family history and medical histories, she said that the information would have changed her original evaluation. If she had known then what she knows now, Barkhorn says, she would have testified that Dunlap suffered from bipolar disorder and that he had suffered from the disorder since birth.

THE ODDS

Compared to states like Texas and Florida, it's incredibly difficult to secure a death sentence in Colorado. Until recently, juries in Texas and Florida were given an unbalanced choice: Sentence a heinous murderer for an execution, or he'd be up for parole eventually. They often chose death. Texas legislators refused to pass life-without-parole laws for years because capital punishment was an easy and popular way to prove they were tough on crime. In the 1990s, Texas, under the leadership of then-Governor George W. Bush, executed more than 150 people; during the past 30 years, the state has been responsible for more than a third of the executions in the United States.

Colorado has been far more judicious in its application of capital punishment since the U.S. Supreme Court confirmed that the death penalty was constitutional in 1976, after a brief nationwide ban. While legislators have tinkered with the law in an attempt to increase executions, Colorado juries have been given the option to sentence a murderer to life in prison without parole since 1979. Juries like this option: They don't have to choose between life and death. With a criminal forever locked behind bars, jurors can be secure knowing that society is safe from harm, and that they did justice.

Currently, there are only two men on Colorado's death row: Nathan Dunlap and Sir Mario Owens, both sentenced in Arapahoe County. Owens got a death sentence in May for murdering a witness scheduled to testify against a friend of Owens' in his drug trial. (He also killed the witness's fiancée.) Owens has been on death row for months; Dunlap has been there for 12 years, watching only one inmate, Gary Lee Davis, be executed, while all of the other death-marked inmates have been spilled back into life terms.

A few years later, Ritter tried Jacques Richardson, a serial rapist who had hog-tied a 34-year-old woman named Janey Benedict during a robbery in 1997. Benedict suffocated from the ties. Richardson confessed. Two years later, jurors ruled the murder was unintentional, and Richardson was given a life term.

In other cases, Ritter instructed his prosecutors to use the mere threat of a death-penalty trial in order to get a conviction. Frightened, four men accused of murder—Cong Van Than, Omar Ramirez, Samnang Prim, and Edward Robert Brown—pleaded guilty to first-degree murder. Those tactics weren't unusual: Across the state, prosecutors were happy to plea-bargain and avoid the cost, stress, and possible public failure of securing a death sentence. District attorneys realized that while the public, in theory, was eager to press executions, the reality was that such a reaction was more visceral than just, and that folks in the jury boxes were far more reluctant to exact an eye for an eye, a life for a life.

Colorado legislators, eager to please the vengeance-happy public, hadn't been sated. Denver wasn't sentencing anyone to death, and the suburbs and rural parts of the state weren't doing much better. So, in 1995, at the peak of capital punishment's groundswell, lawmakers attempted to ramp up executions. With the explicit public support of Ritter and other district attorneys around the state, legislators created three-judge panels—not the juries that tried the case—to determine death sentences. Still, legislators were stymied: even judges wouldn't give death orders. A three-judge panel refused to execute Donta Page—who brutally raped, robbed, and stabbed 24-year-old Peyton Tuthill to death in 1999—claiming that his murder lacked "diabolical frenzy or hellish subhuman behaviors." Page received a life sentence. The politics of killing and the law continued to collide. In 2002, the U.S. Supreme Court found that the death-sentencing scheme of the three-judge panels cooked up by the Colorado legislators was unconstitutional, because those panels do not represent a trial by peers. Five Colorado men on death row had their sentences vacated; five murderers destined for lethal injection received a reprieve because they had committed their crimes while the legislature was tampering with the law.

As DA, Bill Ritter kept his word to Romer. He tried death-penalty cases, but rarely, and only when he thought he could get the ultimate conviction. As Ritter's tenure as district attorney stretched into the 21st century, death-penalty cases became increasingly rare in Colorado. Prosecutors had tried about a half-dozen death-penalty cases annually in the late 1980s through the late 1990s, but by the time Ritter stepped down in 2004, the state average had dropped to one or two a year. Of course, those statistics provided no comfort to Dunlap.

THE KEY WORDS ARE "INEFFECTIVE" AND "PROBABLY"

In the 15 years since Nathan Dunlap killed four people at the Chuck E. Cheese, the state has spent more than $2 million trying to kill him. The original trial had more than 21,000 pages of discovery materials alone, listed more than 900 potential witnesses, and lasted five weeks. Twelve Coloradans were asked to judge whether Dunlap should live or die. But, if Nathan had a choice, no juror would have been in a Colorado Springs courtroom trying to decide whether he should be sent to death row. Just days after the first anniversary of his crime in 1994, Nathan offered a plea bargain to the Arapahoe County DA's office: If the state agreed not to kill him, Dunlap would plead guilty to four charges of murder and accept his punishment. He would never leave prison. But Gallagher's office was adamant; Dunlap would face death. The offer was summarily rejected.

"If Nathan Dunlap [had been permitted to] plead guilty to life without parole, he would have faded into obscurity years ago," says David Lane. "He'd be doing his life sentence without the possibility of parole. There would have been no trial that cost millions. There would have been no appellate process that's cost millions. He would have been another prisoner in the system." Instead, Nathan Dunlap entered the languishing, confusing, stop-and-go, and enormously costly appeals process. The Colorado Supreme Court rejected Nathan's first appeal in 1999 and another in 2001. A year later, the U.S. Supreme Court refused to look at the case.

Just over six years ago, in 2002, the original trial court granted Dunlap's request for a Crim. P. 35(b) hearing to consider the reduction of his sentences. The hearing lasted an unprecedented 52 days and gave Dunlap a second chance at presenting his case. This time, Dunlap's new attorney, Philip Cherner, would call witnesses, put expert after expert on the stand in front of the same Judge John Leopold that had presided over the first trial. And there was something there. While the court would only look at evidence relating to the time of the trial—meaning that Dunlap's 1997 manic break was out—Cherner kept plugging away at what a mess the original trial counsel had made. The court agreed, going so far as to vacate two minor sentences and declaring that Dunlap's trial counsel had been deficient.

It might have been a stunning decision—if it were not for the caveats. Because of what the judge described as "overwhelming" evidence of Dunlap's guilt, the court declared that the attorneys' performance was "ineffective" but did not fall below a constitutionally acceptable bar. The court went on to acknowledge that while more was known about bipolar disorder, it was irrelevant. As for Dr. Barkhorn, "she could have been a valuable asset for the defense if she had had all of the [medical and mental-health] materials." Still, the court ruled that while Dunlap could suffer from the disorder and Dr. Barkhorn's testimony would have been helpful, the evidence "probably would have been unpersuasive here."

In other words, even though the defense was deficient, experts weren't called to testify, and Dr. Barkhorn was not given full access to Dunlap's record, the court found that no juror would have been swayed. Effectively, the court guessed that even if these issues were dealt with during the original trial, all 12 jurors would still have voted for death. Nathan Dunlap appealed again, this time to the state's highest court, the Colorado Supreme Court. If his trial counsel had been deficient, so went the appellate argument, didn't that impact the jury? In May 2007, the Colorado Supreme Court said no. And in a unanimous decision the state Supreme Court struck down the lower court's deficiency finding.

All of Nathan Dunlap's legal hopes have been exhausted in the state courts. Today, prisoner No. 89148's appeals have moved onto the U.S. District Court, where yet another team of attorneys—this time a federal public defender, Madeline Cohen—will submit arguments similar to those made time and again to the state judges. (Cohen declined to comment for this story and advised Dunlap to not comment.) While this legal phase will linger for as much as three or four years, there's little to no reason to expect a different outcome, meaning there's little to no chance the federal court will change Dunlap's death sentence. Thus far, Dunlap has spent 180 months in prison; the troubled boy is now a young dead man walking.

Perhaps the only time when Nathan Dunlap's life and mind were not enveloped by chaos, abuse, and psychosis came just a few months before that December night inside the Chuck E. Cheese. Dunlap's mother and father, Carol and Jerry, were in Tennessee working on their marriage, and Carol left Nathan in the care of a coworker and friend, Benton Jordan. Jordan, a tall man with gray hair and earrings in both ears, and who now works at a pottery store, watched Dunlap for two or three weeks. "He was a good kid," Jordan says. "He had potential. He just needed a stable home." Jordan tried to give him that by treating him as if he were one of his own two kids, giving Dunlap chores and watching over him.

That's exactly what Jordan was doing one day—watching over Dunlap—when he saw a curious thing. He'd assigned Dunlap the age-old summer chore of staining the deck. From a window, Jordan watched as the kid dipped the brush in a polyurethane stain and began coating the weathered boards. Dunlap worked for a while, then paused, scooped something up in his hands, and gently set it aside, out of the way. Jordan was intrigued. He asked Dunlap what it was that he had moved. A beetle, Dunlap told him, had crawled into the path of his brush. Dunlap said, "I put him on the side of the deck to keep from killing him."

At 19, when Colorado first caught a glimpse of Dunlap, they wanted to kill him, says attorney Lane. But if they had seen him when he was 10, they would have done anything to help him. "Nathan Dunlap's odds are probably not very good," Lane says. "If justice will be done, somebody should stand up and say, 'Hey—had this kid's entire mental-health picture been adequately presented to the jury, there would have been at least one juror that would have said, 'No, given his level of mental illness, I'm not going to kill this kid.'"

The only person who can do that now is Governor Bill Ritter.

THE ENORMITY OF IT

It is, to say the very least, an odd circumstance that Bill Ritter knows firsthand what it feels like to kill a human being. As a young lawyer in the district attorney's office, Ritter distinguished himself, rapidly rising through the ranks, and by 1987, at the age of 30, was a chief deputy DA. Yet his commitment to his faith-based convictions trumped careerism. Married with a one-year-old son, Ritter left the DA's office, left Denver, left the country. With his young family, he traveled to Zambia, Africa, where he worked as a Catholic missionary, running a nutrition clinic. And one day, while Ritter was driving down a road in a small truck, a man stepped into the truck's path. Ritter tried to swerve, but the brakes hadn't caught in time. The back of the truck swung into the man. Ritter rushed the man to a local hospital, over the roads cratered with potholes and the shoulders overflowing with pedestrians. At the hospital, the man died within a day.

The man's name, according to one of the very few media reports of the incident, was Mushibi Katiki Chinyama. Chinyama had a wife and a family; he was a good man, an innocent man, not unlike Ritter, who himself had been a victim that day, a pawn in a terrible, unforeseen accident. At first blush, one might understandably wonder what Chinyama's death and Ritter's role in it have to do with Nathan Dunlap's looming execution and Governor Ritter. One possible answer is nothing at all. Then again, when one strips away the law and the politics, the answer might be everything.

Public support for the death penalty has fallen as violent crime has plummeted in the past decade. Murder rates are at their lowest in Denver and nationally since the 1960s. John Dilulio, who created the superpredator model, has retracted his idea, saying the data to support the catch-all term is no longer there. Now, only about 47 percent of Americans support capital punishment, down from a high of 80 percent. When further questioned, many Americans are equally content with life sentences for first-degree murder.

Meanwhile, undermining the supposed high bar of evidence in the capital-punishment system, several death-row convicts have seen their charges overturned through DNA evidence. In 2002, after evidence in Illinois proved that 13 men on death row were innocent, Republican Governor George Ryan commuted all 167 death-row sentences to life without parole, citing the vast inequality and ineffectiveness of the system. Ryan's mass commutation was exceptional, but other governors—both Democrats and Republicans—have used their clemency privileges to commute sentences. According to the Death Penalty Information Center, 244 men escaped death courtesy of commutations. Many of the reasons were humanitarian: The criminal had a history of mental illness or trauma, or received ineffective legal counsel.

Despite the U.S. Supreme Court's 1976 ruling that capital punishment is constitutional, 14 states have either banned or never enacted death penalty laws. In 2007, abolishment gained some traction in Colorado, when Rep. Paul Weissmann, a Democrat from Louisville, proposed a bill that would take Colorado's death-penalty expenditures—$4 million annually—and invest them in a cold-case homicide unit to tackle unsolved murders. "Does it really make sense to spend [millions of dollars] a year on something we never use?" Weissmann says. "Any other program that costs us that kind of money and had the results that we've had would have been gone a long time ago." A victims families' advocacy group, Families of Homicide Victims and Missing Persons, supported the bill. Because about 1,400 murders have gone unsolved in the past 30 years in Colorado, and presently detectives only solve around 60 percent of all homicides, supporters of the bill reasoned that maybe solving murders and catching the killers might be a better use of resources than spending money on the appeals and executions of a select few convicted murders. Currently, there's not just a good chance you won't be executed for murder in Colorado—there's a good chance you'll get away with it.

At the time Weissmann presented his bill, Archbishop Charles Chaput, the head of Ritter's Catholic church in Colorado, weighed in. "The death penalty is a bad idea because it diminishes the society that employs it," Chaput wrote in his column in the Denver Catholic Register. "It doesn't deter capital crime. It doesn't bring back the dead. It doesn't give anyone 'peace.' It sometimes kills the innocent. It coarsens our own humanity and sense of justice. And while both Scripture and long Catholic tradition do support the legitimacy of capital punishment in extraordinary cases, the conditions that would justify its use in developed countries like the United States almost never exist." But lacking the support of Democrats like then-Speaker of the House Andrew Romanoff and Governor Bill Ritter—the kind of Democrat leaders needed to get behind a tough proposal—the bill died.

Governor Ritter's spokesperson repeatedly declined to make the governor available for an interview for this story. Left unexplained, it is surprising that Ritter supports capital punishment. Ritter has said that if Roe v. Wade were overturned, he would sign a bill banning abortion, provided it had exceptions for rape, incest, and the mother's health—a bold statement for a Democrat. As governor, he instituted a pragmatic, centrist agenda that looks at the cost-effectiveness of government programs. He knows that some Coloradans support capital punishment, but wilt under the life-or-death pressure inside the courthouse. "Our experience in Denver, at least," Ritter told the University of Colorado Law Review in the late 1990s, "is that some juror or jurors...are not just awed by [the decision], they're overwhelmed by it."

Judging by the history of Nathan Dunlap's case, it's most likely that his remaining appeals will drag on for a few more years, that his legal hopes will be unsuccessful, and that either a first-term or second-term Governor Bill Ritter will one day find a clemency petition on his desk. Ritter will be faced with a choice: He could allow Dunlap to be executed, or he could intercede and grant Dunlap life in prison. However, as governor, Ritter has the constitutional power to commute Dunlap's sentence now. Dunlap could do no more harm, maybe receive some treatment for his mental illness, perhaps some counseling, perhaps from a prison missionary.

If Ritter's "strong reservations" and "personal doubts" about the death penalty motivate him to do so, he could also help pass legislation abolishing capital punishment statewide. Such a decision could affect his political future. Political observers see Ritter, like Senator Ken Salazar and Montana Governor Brian Schweitzer, as the kind of moderate Western politician that will be impervious to the Republican attack machine and able to helm the future Democratic Party.

Back in 1995, when the Colorado legislature was weighing the idea of creating that three-judge panel to impose death sentences rather than leaving it up to juries, Ritter gave the Rocky Mountain News his thoughts on the subject. "It is a traumatic decision to confront," Ritter said. "But the decision made in the voting booth is so far removed from one a jury must make when they look across the bar at a human being. Until you've been in that situation you can't imagine the enormity of it."

Governor Ritter is not removed from the enormity of Nathan Dunlap. And if the convicted killer is executed, it will be no accident. The governor could wash his hands of the case, taking shelter in the fact that Dunlap is not the innocent man young Ritter struck while driving a truck on a Catholic service mission in Zambia. Or Ritter could see Dunlap, like Chinyama, as a life. Regardless, unlike that fatal tragedy in Zambia, this time around Ritter can see the human being in his path.

Colorado Court of Appeals

No. 06CA2403.

The People of the State of Colorado, Plaintiff-Appellee,
v.
Nathan Jerard Dunlap, Defendant-Appellant.

Arapahoe County District Court No. 95CR605

Honorable John P. Leopold, Judge

SENTENCE AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by: JUDGE CASEBOLT
Loeb and Criswell*, JJ., concur

Announced: April 30, 2009

John W. Suthers, Attorney General, Clemmie Parker Engle, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Philip A. Cherner, Denver, Colorado; Michael J. Heher, Captain Cook, Hawaii, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2008.

Defendant, Nathan Jerard Dunlap, appeals the sentence imposed on remand following reinstatement of his original convictions for two counts of second degree kidnapping and one count each of aggravated robbery and theft. Defendant asserts that his sentence, originally imposed in 1996 and reimposed in 2006, is illegal, because the sentencing court has never considered or fixed restitution. He further contends that the illegality of the sentence means that his conviction has never been final and that he may appeal anew his conviction and sentence despite the fact that his conviction was affirmed on direct appeal in 1998, and his request for collateral relief was finally resolved in 2005. He also asserts that he is entitled to application of decisions such as Blakely v. Washington, 542 U.S. 296 (2004); Crawford v. Washington, 541 U.S. 36 (2004); and Apprendi v. New Jersey, 530 U.S. 466 (2000), in pursuing a new appeal.

We agree that defendant’s sentence is illegal to the extent it does not reflect consideration and fixing of restitution, and we remand with directions to the trial court to consider and fix restitution and amend the mittimus accordingly. However, we reject defendant’s remaining assertions and conclude that the illegality of his sentence does not affect the finality of his conviction and the denial of relief on collateral review in this case.

Based on his November 1993 robbery of a restaurant, a jury convicted defendant of the noted charges and the trial court sentenced him to consecutive terms of thirty-five years for the class two felony of second degree kidnapping, twenty years for the class three felony of second degree kidnapping, and twenty years for aggravated robbery, and a concurrent six-year term for theft. Although the presentence report stated that $1,400 in restitution was due, the trial court did not mention restitution in imposing sentence. A division of this court affirmed the conviction on direct appeal, People v. Dunlap, (Colo. App. No. 96CA0329, Feb. 5, 1998) (not published pursuant to C.A.R. 35(f)) (Dunlap I), and the supreme court denied certiorari.

In 1999, defendant filed a pro se Crim. P. 35(c) motion for postconviction relief. Following the filing of an amended motion by appointed counsel, the trial court granted part of the motion, reduced the felony classifications for the two kidnapping convictions, and resentenced defendant in 2001 to ten years of imprisonment on those counts. Both defendant and the prosecution appealed.

As relevant here, a division of this court concluded that the trial court had erred in reducing the felony classifications and sentences on the kidnapping convictions, and remanded the case to the trial court to reinstate defendant’s original convictions and sentences on those counts and amend the mittimus accordingly. People v. Dunlap, 124 P.3d 780, 821 (Colo. App. 2004) (Dunlap I). In its opinion, the division also concluded that neither Apprendi nor Blakely applied to defendant’s conviction because his conviction had already become final when the mandate in his original appeal issued in 1998, which was well before the date of announcement of the opinions in those cases. Id. The supreme court denied certiorari and this court issued its mandate on November 30, 2005.

While the case was pending in the trial court following remand for reinstatement of the original convictions and sentences, defendant asserted that the original sentence was illegal because the court had failed to determine restitution, and that any sentence the trial court might impose would be "at best, the first legal sentence imposed in this case, and an appealable order." In response, the prosecution asserted that at the time of sentencing, it did not request, and the court did not consider restitution because, given the applicable sentencing range and defendant’s pending capital murder case, ordering restitution would have been an exercise in futility. Thus, the prosecution asked the court simply to correct the mittimus in accordance with the remand instructions and to find that no restitution should be imposed in this case.

Following a hearing, the trial court determined that this court’s mandate specifically required it to correct the mittimus to reinstate defendant’s original conviction and sentence, that such directive was the law of the case, and that it had no authority to consider defendant’s other claims. Accordingly, the court reinstated the original convictions and sentences nunc pro tunc to the original sentencing date and amended the mittimus, but did not rule on any aspect of the restitution issue. Defendant now appeals.

I. Jurisdiction to Address the Issues Presented

Defendant did not raise his claims in a postconviction motion under Crim. P. 35(a) in the trial court. Instead, he raised them in his "position statement" regarding resentencing in that court. However, on appeal the People do not oppose our resolution of the issues because they present questions of law. We further determine that precluding defendant from seeking relief based solely on the form of his filing would be contrary to the general policies underlying postconviction remedies, and would not serve the interests of finality and judicial economy. See White v. Denver District Court, 766 P.2d 632, 634 (Colo. 1988) (a habeas corpus petition should be treated as a Crim. P. 35 motion based upon "the substantive constitutional issues raised therein, rather than [upon] the label placed on the pleading" (quoting Dodge v. People, 178 Colo. 71, 73, 495 P.2d 213, 214 (1972)). Moreover, if we remanded without addressing these issues, defendant would likely simply recaption his position statement, cite Crim. P. 3 5(a), and seek the same relief. No evidentiary hearing would be necessary in that event. Accordingly, we may fully resolve the issues now and will address the merits of defendant’s contentions.

II. Consideration of Restitution in Sentencing

Crim. P. 35(a), which became effective in its present form on July 1, 2004, provides in pertinent part that "[t]he court may correct a sentence that was not authorized by law . . . at any time." The parties here assert that the phrase "not authorized by law" means an illegal sentence, one that is "inconsistent with the statutory scheme outlined by the legislature." See People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005) (construing former Crim. P. 35(a), which then provided that "the court may correct an illegal sentence at any time"). We agree with that assertion. See People v. Wenzinger, 155 P.3d 415, 418 (Colo. App. 2006) (amended version of Crim. P. 35(a) merely codifies case law defining "illegal sentence"); but see People v. Barton, 174 P.3d 786, 789 n.3 (Colo. 2008) (expressing no opinion on the meaning of "not authorized by law" in Crim. P. 35(a)).

At the time of defendant’s original sentencing, the law required the preparation of a presentence report in every felony case (other than a class 1 felony), and directed that the report contain information pertinent to restitution. That statute stated that "the amount of restitution shall be fixed by the court at the time of sentencing and shall be endorsed upon the mittimus." Ch. 175, sec. 1, § 16-11-102(4), 1984 Colo. Sess. Laws 652.

Courts construing this provision determined that the statute required a trial court to fix the amount of restitution for later imposition by the parole board, but that the court had no authority to order restitution as part of the sentence. See People v. Powell, 748 P.2d 1355, 1357 (Colo. App. 1987). This interpretation was confirmed in 1989, when the supreme court decided People v. Johnson, 780 P.2d 504 (Colo. 1989). See People v. Fichtner, 869 P.2d 539, 542 (Colo. 1994).

In 1996, after the original sentence here was imposed, the General Assembly amended the statute to provide that the amount of restitution must be imposed by the court at the time of sentencing. Ch. 288, sec. 4, § 16-11-204.5(1), 1996 Colo. Sess. Laws 1778; see People v. Apodaca, 998 P.2d 25, 30-3 1 (Colo. App. 1999). However, that provision is not applicable here.

In People v. Smith, 121 P.3d 243, 251 (Colo. App. 2005), a division of this court held that every judgment of conviction must include an order concerning restitution as a mandatory part of the sentence, and that a sentence without such an order is illegal. It further noted that an illegal sentence can be corrected at any time through amendment of the mittimus.

Accordingly, restitution is part of a defendant’s sentence, and if the trial court does not consider restitution when imposing the sentence, as required by statute, the sentence is illegal. Id.

Here, it is undisputed that at defendant’s sentencing neither the prosecution nor defense counsel raised the issue of restitution, the trial court did not consider or fix restitution, and the original mittimus did not note the amount of restitution. Thus, because the court failed to consider and fix the amount of restitution as required by the statute, the original sentence was illegal. See Delgado v. People, 105 P.3d 634, 637 (Colo. 2005) (a sentence that is not in full compliance with the sentencing statutes is illegal). In addition, the court did not consider or fix the amount of restitution when it reimposed defendant’s sentence in 2006. Hence, we must remand this case to the trial court for consideration and fixing of restitution under the statute that was applicable at the time defendant was originally sentenced. See People v. Marlott, 191 Colo. 304, 309, 552 P.2d 491, 494 (1976) (defendant must be sentenced under the law in effect at the time of the commission of the offense); People v. Whitman, ___ P.3d ___ (Colo. App. No. 04CA1428, Nov. 29, 2007) (same).

III. Finality

Having determined that defendant’s original sentence is illegal, we next address how that illegality affects the finality of his conviction. Defendant contends that because his sentence was illegal, his conviction has never been final. Therefore, he asserts, this court did not have jurisdiction to consider and rule on either his direct appeal or his Crim. P. 35(c) appeal because those appeals were premature. From that premise he argues that, although Blakely, Apprendi, and Crawford were announced long after his initial conviction and sentencing occurred, the principles announced in those cases are applicable to his case because technically his direct appeal has never taken place. We disagree.

Defendant relies in part upon Leyva v. People, 184 P.3d 48, 49 (Colo. 2008). There, the supreme court held that because the defendant’s original sentence contained an illegal sentence on one count, the entire sentence was illegal and was therefore subject to correction. It further held that the judgment of conviction was subject to amendment, such that the judgment of conviction was not final or fully valid. However, the court reached that conclusion in considering the meaning of the term "conviction" contained in section 16-5-402(1), C.R.S. 2008, which sets forth a three-year statute of limitations within which a defendant may seek collateral review of a conviction. Indeed, the court specifically stated that the question before it was "whether [the defendant’s] collateral attack on his 1993 conviction, brought within three years of his resentencing, was properly brought within three years ‘of said conviction’ as that term is used in section 16-5-402(1)." 184 P.3d 49-50. The court also stated that "[o]ur construction has no effect on matters such as the jurisdiction of appellate courts or the time limits for filing appeals, as those matters are controlled by different rules and statutes employing different standards." Id. at 50 n.2. Because of the specific limitations set forth in the Leyva opinion and the context in which that case arose, we conclude it is not applicable to defendant’s sentence.

Defendant also relies upon People v. Rosales, 134 P.3d 429, 431-32 (Colo. App. 2005). There, a division of this court concluded that a judgment of conviction is not final until sentence is imposed, that restitution is a mandatory part of a sentence, and that sentencing is not final until restitution is ordered. It further held that, because the judgment there was not final until the court ordered a specific amount of restitution, the trial court retained jurisdiction to enter an order of restitution and therefore the defendant’s appeal in that case was premature.

We conclude that Rosales is distinguishable as well. There, the defect in the sentence – failure to include restitution – was discovered and addressed before the conclusion of defendant’s direct appeal. People v. Smith, 121 P.3d at 251, is distinguishable for the same reason.

We conclude that, in circumstances in which a defendant has already directly appealed his conviction and lost, and has likewise failed to obtain postconviction relief upon application to the trial court and review by an appellate court, his claim that an illegal sentence has been imposed because of a failure to consider or fix restitution does not affect the finality of his judgment of conviction. Thus, he may neither appeal anew from his original conviction or the denial of his postconviction motion, nor may he seek the application of cases that were announced after the conclusion of his direct appeal. We so conclude for a number of reasons.

First, Crim. P. 35(a) provides that a court "may correct a sentence that was not authorized by law . . . at any time." The use of the word "may" in the rule "indicates that courts are free to apply reasonable and prudential limitations on the correction of illegal sentences." United States v. Woods, 986 F.2d 669, 675 (3d Cir. 1993) (interpreting previous version of Fed. R. Crim. P. 35 that "a court may correct an illegal sentence at any time") (citing United States v. Henry, 709 F.2d 298, 314 n. 23 (5th Cir. 1983)). Because our legal system has a strong interest in the finality of adjudication, see People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996), we conclude that a prudential limitation disallowing a new direct appeal as well as disallowing a new appeal of the order denying collateral relief is appropriate here.

Second, Crim. P. 35(a) deals with motions to correct illegal sentences. This portion of the rule allows a defendant only to challenge the legality of the sentence, not the conviction. Woods, 986 F.2d at 676. Indeed, cases have pointed out that there is a significant difference between a true illegal sentence claim under Crim. P. 35(a) that the sentence is inconsistent with the statutory scheme, and the assertion of a claim that a sentence was imposed in violation of the constitution, which can involve a claim that the conviction itself is defective. See Wenzinger, 155 P.3d at 418; see also Hill v. United States, 368 U.S. 424, 430 (1962) ("[T]he narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence."). Because defendant would seek to attack his conviction, not just his sentence, we decline to allow a new appeal, which would effectively open his entire case to relitigation, contrary to finality principles.

Third, because no time requirement limits jurisdiction under Crim. P. 35(a), "courts have invoked [it] only to correct ‘fundamental’ errors." United States v. Katzin, 824 F.2d 234, 241 (3d Cir. 1987) (citing Hill, 368 U.S. at 428 (habeas corpus jurisdiction appropriate only to correct "a fundamental defect which inherently results in a complete miscarriage of justice")). The trial court’s failure to fix the amount of restitution does not, in our view, rise to the level of a fundamental error that results in a miscarriage of justice to defendant.

Finally, the general remedy that flows from a sentence that is illegal because restitution is not fixed is correction of the sentence and amendment of the mittimus. See Rosales, 134 P.3d at 435. That remedy is available here, but defendant’s request for an expanded remedy of a new direct appeal, a new appeal from the denial of his petition for collateral relief, and the application of new constitutional holdings, if granted, would literally expand every successful illegal sentence claim to allow further litigation of already settled issues. We decline to grant that expansion.

This conclusion is also consistent with the principles applicable in determining whether a new rule of constitutional law applies retroactively. In such a determination, convictions in state courts are considered final when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed. Edwards v. People, 129 P.3d 977, 983 (Colo. 2006); People v. McAfee, 160 P.3d 277, 281 (Colo. App. 2007) (finality for purposes of retroactivity means a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari has elapsed or a petition for certiorari has been finally denied).

Here, defendant’s conviction was affirmed by a division of this court in 1998, see Dunlap I, and in that same year, the supreme court denied certiorari and the mandate issued. Thereafter, defendant filed a postconviction motion pursuant to Crim. P. 35 in 1999. Although the trial court partially granted defendant’s postconviction motion by reducing the felony classification for his kidnapping convictions and corresponding sentences, a division of this court reversed the trial court’s order, directed the trial court to reinstate the original convictions and sentences, and found that Blakely and Apprendi did not apply to defendant’s conviction. See Dunlap I, 124 P.3d at 821.

Accordingly, under Edwards, 129 P.3d at 983, defendant’s conviction was final in 1999 for purposes of determining whether a new rule of constitutional law applies to his conviction. Thus, we will not disturb the conclusion of the division in Dunlap I regarding the application of Blakely and Apprendi to defendant’s conviction.

The sentence is reversed to the extent it lacks consideration and fixing of restitution and is affirmed in all other respects. The case is remanded to the trial court to consider restitution, to enter an order fixing the amount, and to amend the mittimus to so reflect.