Charles James LINNEBUR, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
Supreme Court Case No. 18SC884
Supreme Court of Colorado
November 9, 2020
As Modified on Denial of Rehearing December 14, 2020
476 P.3d 734
HART
En Banc
Attorneys for Respondent: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado
En Banc
JUSTICE HART delivered the Opinion of the Court.
¶1 Last year, in the course of deciding whether an in-custody felony DUI defendant is entitled to a preliminary hearing, we noted in dicta that it was unclear “whether a repeat DUI offender‘s prior convictions are elements of a felony DUI that must be proved at trial” because
¶2 That day has now arrived. Confronted squarely with the question left open in Tafoya, we conclude that the statutory provisions that define and provide penalties for felony DUI treat the fact of prior convictions as an element of the crime, which must be proved to the jury beyond a reasonable doubt, not as a sentence enhancer, which a judge may find by a preponderance of the evidence. Because the court of appeals erred in arriving at the opposite conclusion, we reverse and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
¶3 In March 2016, law enforcement contacted Charles James Linnebur after receiving a call that he had crashed his vehicle into a fence and might be driving under the influence of alcohol. Although he initially denied that he had been drinking, Linnebur eventually admitted that he had consumed whiskey that day. He was arrested, and a blood test revealed that his blood alcohol level was 0.343—well above the legal limit.
¶4 The People charged Linnebur with DUI and DUI per se and sought felony convictions under
¶5 At trial, the jury found Linnebur guilty of DWAI (a lesser included offense of DUI) and DUI per se.1 After the trial court dismissed the jury, it held a hearing to determine
¶6 A division of the court of appeals affirmed. See People v. Linnebur, No. 16CA2133, 2018 WL 5876867 (Nov. 8, 2018). In so doing, the division cited to our decision in People v. Leske, 957 P.2d 1030, 1039 (Colo. 1998), for the proposition that a statutory provision is a sentence enhancer, rather than an element, if its proof is not required to secure a conviction for the charged offense. The court of appeals concluded that because a defendant may be found guilty of the underlying offense of DUI independent of any proof of prior convictions, the fact of such prior convictions is not an element of felony DUI. The prior convictions, the court concluded, could properly be determined by the court rather than the jury. Linnebur, ¶¶ 8, 12. The division reasoned further that becausе the felony DUI statute does not specify the applicable burden of proof, the fact of prior convictions need only be proved by a preponderance of the evidence. Id. at ¶ 13. Finally, the division concluded that the exhibits presented in Linnebur‘s case were sufficient evidence to prove his prior convictions. Id. at ¶ 19.
¶7 Linnebur then filed a petition for certiorari review, which we granted.2
II. Analysis
¶8 After setting forth the applicable standard of review and relevant principles of statutory interpretation, we consider whether the felony DUI statute expresses a clear legislative intent for the treatment of prior convictions as either elements of the felony offense or sentence enhancers. Finding the statute to be ambiguous, we next endeavor to determine the legislаture‘s intent by looking at the language and structure of the statutory scheme, traditional treatment of the fact of prior convictions, and the risk of unfairness attendant to either approach. Based on these factors, we conclude that the General Assembly intended the fact of prior convictions to be treated as a substantive element of the offense to be proved to the jury beyond a reasonable doubt, rather than a sentence enhancer to be proved to a judge by a preponderance of the evidence.
A. Standard of Review and Principles of Statutory Interpretation
¶9 Whether a statutory provision constitutes a sentence enhancer or a substantive element of an offense presents a question of law that we review de novo. People v. Schreiber, 226 P.3d 1221, 1223 (Colo. App. 2009). Thе General Assembly has plenary authority to define criminal conduct and to establish the elements of criminal liability. People v. M.B., 90 P.3d 880, 882 (Colo. 2004). With this in mind, our primary purpose in construing the felony DUI statute “is to ascertain
¶10 When a statute “is not explicit” as to whether a particular fact is an element of a crime or a sentencing factor, we agree with the U.S. Supreme Court that we must look to “the provisions and the framework of the statute” to make that determination. United States v. O‘Brien, 560 U.S. 218, 225, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). In particular, “(1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history” are helpful guides for determining legislative intent. Id.
B. The DUI Statute is Ambiguous
¶11 In 2015, the General Assembly amended several statutory provisions through the passage of House Bill 15-1043. See Ch. 262, sec. 1,
A person who drives a motor vehicle or vehicle under the influence of alcohol ... commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class four felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide ...; vehicular assault ...; or any combination thereof.
¶12 This provision does not expressly indicate whether the fact of prior convictions constitutes a sentence enhancer or a substantive element of the offense. Despite the absence of any express language on this point, both the People and Linnebur assert that the statute plainly supports their preferred reading.
¶13 The People maintain that the plain language of
¶14 Linnebur, on the other hand, argues that the plain language of
¶15 As an initial matter, we agree that both the division and the People rely too heavily on the language in Leske to support their conclusions that the language of
¶16 Ultimately, Linnebur and the People each advance a plausible interpretation of
C. Other Factors Demonstrate the Legislature‘s Intent for Prior Convictions to Be an Element of Felony DUI
¶17 Because the felony DUI statute is not explicit as to whether the fact of prior convictions constitutes a sentence enhancer or a substantive element of the offense, we must look for other evidence of the General Assembly‘s intent. Here, we will focus particularly on the language and structure of the relevant statutory provisions, whether the fact at issue is traditionally an element or a sentence enhancer, and the risk of unfairness in either approаch. See O‘Brien, 560 U.S. at 225, 130 S.Ct. 2169.3
1. Statutory Language and Structure
¶18 In examining the relevant statutory language and structure, we look to both
¶19 In 2015, the legislature added the offense of felony DUI to
¶20 Two years later, the legislature made additional statutory changes to the statutory scheme that governs felony DUI. See Ch. 387, seс. 1,
¶21 Although it made a number of other changes to
¶22 Several aspects of the statutory language point to the conclusion that the legislature intended to treat felony DUI as a distinct offense that includes the prior convictions as elements. Perhaps most telling is that the 2015 amendments provided that when a defendant is “convicted of a class 4 felony,” the court must conduct the sentencing in accordance with the felony sentencing provisions contained in
¶23 Aspects of the structure of the relevant statutory provisions further support this conclusion. In particular, prior conviction requirements that enhance the penalties for second and third DUI offenses are included in the separate statute outlining the various penalties for traffic offenses involving intoxication. See
¶24 Moreover, the numerous additional protections the legislature has provided for defendants charged with felony DUI further support this conclusion. A defendant charged with felony DUI is entitled to a preliminary hearing under
2. Tradition
¶25 We could perhaps stop the analysis at this point, but we will consider a number of the other O‘Brien factors to examine whether they disturb our conclusion. In particular, the People observe that the fact of prior convictions is traditionally considered to be a sentence enhancer, not a substantive element of the offense. See Almendarez-Torres, 523 U.S.
at 230, 244, 118 S.Ct. 1219 (“The lower courts have almost unifоrmly interpreted statutes (that authorize higher sentences for recidivists) as setting forth sentencing factors, not as creating new crimes (at least where the conduct, in the absence of the recidivism, is independently unlawful).... [T]o hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner‘s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’ ” (quoting Graham v. West Virginia , 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912) )).¶26 In a vacuum, tradition would certainly weigh in favor of considering the fact of prior convictions to be a sentence enhancer. In our view, however, the evidence provided by the language and structure of the felony DUI statute is weightier than this tradition. And it is quite clear that, while a legislature could
¶27 The People argue that we should hew to tradition and treat the fact of a prior conviction as a sentence enhancer for felony DUI purposes because that is what most other states have done. In fact, while it is true that about half of the states treat prior DUI convictions as sentence enhancers for the felony DUI offense,4 more than a third treat the fact of prior convictions as an element.5
Ultimately, neither the traditional treatment of prior convictions nor the trends in other states can outweigh the import of the language and structure selected by our General Assembly. This is particularly the case in light оf the serious risk of unfairness that would be associated with permitting the fact of prior convictions to be proved to a judge in this context.
3. The Risk of Unfairness
¶28 A person convicted of felony DUI (a class four felony) may be sentenced to a presumptive range of two to six years in the custody of the Colorado Department of Corrections.
The fact that a felony DUI conviction, as compared to a misdemeanor DUI conviction, permits significantly more serious consequences counsels in favor of the conclusion that the legislature intended to treat the fact of prior convictions as an element, at least absent some clear indication to the contrary.
¶29 Indeed, the unfairness that would be associated with permitting a defendant to be tried for a misdemeanor to the jury and then sentenced for a felony by the judge on the basis of a fact that had to be proved only by a preponderance of the evidence is so significant that it risks running afoul of the
¶30 True, the U.S. Supreme Court has previously explained that in the
¶31 We think there are good reasons to question the legitimacy of proving prior convictions only to a judge when the prescribed penalties (and attendant collateral consequences) for felony DUI are so significant. Ultimately though, subject to constitutional limitations, whether the fact of prior convictions constitutes an element of the offense or a sentence enhancer depends on legislative intent. As such, if we can glean a clear legislative intent in either direction, then we may leave aside the
¶32 Because Linnebur was sentenced for a crime different from the one on which the jury‘s verdict was based, his conviction of felony DUI and sentence must be reversed. See Medina v. People , 163 P.3d 1136, 1141–42 (Colo. 2007). The error did not affect the jury‘s guilty verdict as to Linnebur‘s misdemeanor DWAI and DUI per se, however, and the trial court may therefore resentence Linnebur for those convictions on remand. If, in lieu of resentencing, the prosecution seeks retrial of the felony DUI charge and Linnebur raises a double jeopardy defense, the trial court must rule on that defense.
III. Conclusion
¶33 Linnebur‘s prior DUI convictions were an element of the offense of felony DUI that should have been charged in his indictment and presented tо a jury. Because they were not, Linnebur‘s sentence as a felony offender
JUSTICE MÁRQUEZ dissents, and JUSTICE SAMOUR joins in the dissent.
JUSTICE BOATRIGHT does not participate.
Dissenting Opinion
JUSTICE MÁRQUEZ, dissenting.
¶34 Relying on factors identified in United States v. O‘Brien , 560 U.S. 218, 225, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010), and Castillo v. United States , 530 U.S. 120, 124–31, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), the majority concludes that a repeat offender‘s prior convictions are elements of separate felony offenses for driving under the influence (“DUI“), driving while ability impaired (“DWAI“), and DUI per se under
¶35 By elevating the misdemeanor offenses of DUI, DWAI, and DUI per se to a class 4 felony where the defendant has three or more prior convictions for such offenses, see
¶36 I conclude that the legislature intended a repeat DUI offender‘s prior convictions to serve as a sentence enhancer under
I. Legal Principles
¶37 Much rides on whether a particular fact constitutes an element of an offense or a sentencing consideration. This element/sentence enhancer distinction often arises in the double jeopardy context and implicates the doctrine of merger. See, e.g. , Lewis v. People , 261 P.3d 480, 482–83 (Colo. 2011) ; People v. Leske , 957 P.2d 1030, 1039 (Colo. 1998). Here, we are concerned with due process and the right to a jury trial. Under these constitutional guarantees, all elements of a crime must be submitted to a jury and proved by the government beyond a reasonable doubt.
¶38 Regardless of the context in which the issue arises, whether a given fact is an element of a crime or a sentencing factor is a question of legislative chоice. O‘Brien , 560 U.S. at 225, 130 S.Ct. 2169 ;
¶39 Here, the majority turns to the factors identified in O‘Brien and Castillo to discern whether the General Assembly intended to treat a defendant‘s prior convictions as an element or a sentence enhancer under
II. Analysis
A. Statutory Language and Structure
¶40 First, the plain language and structure of
¶41
A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide ...; vehicular assault ...; or any combination thereof.
¶42 The first sentence of
¶43 Importantly, proof of the existence of prior convictions is not necessary to convict a defendant of the offense of “driving under the influence.” Thus, the language and structure of the statute indicate that the General Assembly intended a defendant‘s prior convictions to serve as a penalty enhancement rather than a substantive element. It is also consistent with the legislature‘s treatment of prior convictions in other statutes, such as cruelty to animals,
¶44 By contrast, when the General Assembly intends the fact of prior convictions to serve as an element of an offense, it expressly includes the prior convictions in the definition of the offense, such as with felony escape,
¶45 By focusing on inferences drawn from later amendments to a separate provision, see maj. op. ¶¶ 19–24, the majority blurs the line between elements and sentence enhancers and overlooks that our ultimate task is to determine what the General Assembly meant by the words it chose when it defined the offenses at issue. Because we must “presume that the General Assembly understands the legal import of the words it uses and does not use language idly, but rather intends that meaning should be given to each word,” Dep‘t of Transp. v. Stapleton , 97 P.3d 938, 943 (Colo. 2004), I conclude that, сonsistent with how the General Assembly has treated prior convictions elsewhere in the
B. Tradition
¶46 Second, of the O‘Brien / Castillo factors relied on by the majority, perhaps the most powerful indicator of the legislature‘s intent is that an offender‘s recidivism “is a traditional, if not the most traditional, basis for a sentencing court‘s increasing an offender‘s sentence.” Almendarez-Torres v. United States , 523 U.S. 224, 243, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Indeed, recidivism is “as typical a sentencing factor as one might imagine.” Id. at 230, 118 S.Ct. 1219. This is because (consistent with the discussion above) recidivism “does not relate to the commission of the offense,” but instead goes only to punishment. Id. at 244, 118 S.Ct. 1219 (quoting Graham v. West Virginia , 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912) ). Indeed, in describing this factor, the Castillo court expressly noted that “[t]raditional sentencing factors often involve ... characteristics of the offender, such as recidivism .” Castillo , 530 U.S. at 126, 120 S.Ct. 2090 (emphasis added).
¶47 The majority acknowledges that tradition weighs in favor of considering the fact of prior convictions as a sentence enhancer but concludes that the inferences it draws from the language and structure of
op. ¶ 26. While I agree that
C. The Risk of Unfairness
¶48 Third, the risk of unfairness to the defendant from presenting the jury with his prior convictions likewise indicates legislative
¶49 The majority points to the collateral consequences associated with a felony conviction to conclude that failing to treat a defendant‘s рrior convictions as elements to be proved to a jury beyond a reasonable doubt risks violating the
¶50 At the outset, I note that a repeat DUI offender facing a felony conviction under
¶51 Relatedly, although I conclude that the fact of a prior conviction may be established for purposes of
¶52 This leads to my main point, which is that the Apprendi prior-conviction exception3 is itself grounded in the recognition that presenting a jury with evidence of a defendant‘s prior crimes risks unfairness to that defendant. Yet by treating a defendant‘s prior convictions as an element of a separate felony offense under
¶53 Apprendi‘s prior-conviction exception can be traced back through Jones to Almendarez-Torres. See Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (quoting Jones, 526 U.S. at 243 n.6, 119 S.Ct. 1215); Jones, 526 U.S. at 248–49, 119 S.Ct. 1215 (citing Almendarez-Torres, 523 U.S. at 230, 243, 245, 118 S.Ct. 1219). Importantly, Almendarez-Torres recognized that to treat a defendant‘s prior conviction as an element of a substantive criminal offense “risks unfairness.” 523 U.S. at 234, 118 S.Ct. 1219. There, recognizing that “the introduction of evidence of a defendant‘s prior crimes risks significant prejudice,” the Court concluded that
¶54 Today‘s decision strikes me as an example of “be careful what you wish for.” A defendant‘s prior convictions for drinking and driving related offenses now will be presented to a jury as an element of the felony
¶55 Though we are not presented with this issue today, our reasoning in Fullerton would appear to preclude bifurcation in the DUI context too. Indeed, other jurisdictions addressing this issue have followed a similar approach despite defendants’ objections. See Baker v. State, 966 P.2d 797, 798 (Okla. Crim. App. 1998) (concluding that the defendant‘s stipulation to a prior DUI conviction did not bar the prosecution from introducing evidence of the conviction at trial because “the right of the state, or of the accused, to present material evidence in support of an issue, cannot be taken away or the force of the evidence weakened by an admission or stipulation of the facts sought to be proven” (quoting McFay v. State, 508 P.2d 273, 276 (Okla. Crim. App. 1973)); State v. Fox, 207 W.Va. 239, 531 S.E.2d 64, 65–66 (1998) (“The State‘s agreement to stipulate to the prior convictions does not take that evidence out of the purview of the jury. Regardless of whether evidence of prior convictions is presented by stipulation or during trial, the jury must be allowed to consider the evidence to determine whether the accused is guilty of third offense DUI.“).
¶56 Given this risk of unfairness to the defendant, I would decline to conclude that the General Assembly intended to treat a defendant‘s prior convictions as an element that must be proved to a jury beyond a reasonable doubt.
III. Conclusion
¶57 Examining
I am authorized to state that JUSTICE SAMOUR joins in this dissent.
Notes
- Whether the court of appeals erred in concluding that prior convictions are sentence enhancers, rather than elements of the offense of felony DUI.
- Whether the court of appeals erred in concluding that the prosecution need only prove the prior convictions by a preponderance of the evidence.
- Whether the court of appeals erred in concluding that the evidence in this case was sufficient to prove the prior convictions.