The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Wayne VIBURG, Defendant-Appellant.
No. 17CA1056
Colorado Court of Appeals, Division VI.
January 16, 2020
As Modified on Denial of Rehearing February 13, 2020
477 P.3d 746
Opinion by JUDGE BERGER
Id. Colorado: VLEX-893553080
Megan A. Ring, Colorado State Public Defender, Meredith O‘Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE BERGER
¶1 We disagree with People v. Gwinn, 2018 COA 130, 428 P.3d 727, and People v. Quezada-Caro, 2019 COA 155, ––– P.3d ––––, and hold that the prior convictions required to convict a person of felony driving under the
I. Relevant Facts and Procedural History
¶2 Police arrested Viburg for suspected DUI. He was charged with felony DUI – fourth or subsequent offense based on the allegation that he had three or more previous convictions for driving while ability impaired (DWAI) or DUI.
¶3 Before trial, Viburg moved for a ruling that his alleged prior convictions were elements of the offense that the prosecutor must prove to a jury beyond a reasonable doubt. The trial court denied the motion, concluding that the prosecutor needed only to prove the prior convictions to the judge by a preponderance of the evidence.
¶4 At trial, a jury convicted Viburg of DUI and careless driving. At a post-trial hearing, the judge found by a preponderance of the evidence that Viburg had three prior convictions for DWAI or DUI. Based on that finding, the court elevated Viburg‘s misdemeanor DUI conviction to a class 4 felony and sentenced him accordingly.
II. Prior Convictions Are Elements of Felony DUI
¶5 Viburg contends that the trial court violated his constitutional rights by convicting him of a class 4 felony based on its own finding that he had three prior convictions for DUI or DWAI. He asserts that prior convictions are substantive elements of the offense of felony DUI and therefore the proseсutor should have been required to prove the prior convictions to a jury beyond a reasonable doubt.2 We agree.
¶6 We review questions of statutory interpretation de novo. People v. Griego, 2018 CO 5, ¶ 25, 409 P.3d 338. “Our primary task when construing a statute is to ascertain and give effect to the legislature‘s intent.” Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11, 325 P.3d 571. “We begin with the plain language of the statute, reading the words and phrases in context and construing them according to their common usage.” People v. Ramirez, 2018 COA 129, ¶ 9, ––– P.3d ––––. “[I]f the plain language of the statute demonstrates a clear legislative intent, we look no further.” Young, ¶ 11.
¶7
¶8 A “person is deemed to have a prior conviction for DUI, DUI per se, or DWAI ... if the person has been convicted [of such crime] under the laws of this state .... The prosecution shall set forth such prior convictions in thе indictment or information.”
¶9 “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.” Jones v. United States, 526 U.S. 227, 232, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Further, under the Fifth and Sixth Amendments, “any fact that increаses the penalty for a
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
¶10 For the reasons discussed below, we conclude that prior convictions are elements of felony DUI that do more than “increаse[ ] the penalty for the crime.” Id. Therefore, to obtain a conviction for felony DUI, a prosecutor must prove those prior convictions to a jury beyond a reasonable doubt.
A. The Plain Language of the Statute Demonstrates that Prior Convictions Are Elements of Felony DUI
¶11 The plain language of the felony DUI statute compels the conclusion that the General Assembly intended that prior DUI or DWAI offenses constitute elements of felony DUI.
¶12 The statute requires that the alleged prior convictions be pleaded in the indictment or information.
¶13 Divisions of this court in Quezada-Caro, ¶ 11, Gwinn, ¶ 49, and People v. Schreiber, 226 P.3d 1221, 1223 (Colo. App. 2009), on the other hand, have concluded that prior convictions that transform a misdemeanor into a felony arе merely sentence enhancers because (1) a defendant could be convicted of the underlying offense without any proof of the prior convictions and (2) the prior convictions merely increase the defendant‘s potential punishment. We disagree with these analyses for multiple reasоns.
¶14 To begin, the fact that prior convictions are not required to prove the “underlying offense” of DUI is not dispositive. In Jones, 526 U.S. 227, 119 S.Ct. 1215, the Court considered a federal carjacking statute that subjected a convicted defendant to a longer prison sentence if the carjacking resulted in serious bodily injury. The Court held thаt the serious bodily injury requirement was an element of the offense, although it was not necessary to prove the crime of carjacking. Id. at 230-39, 119 S.Ct. 1215. Though decided after Jones, neither Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), nor Apprendi alters this analysis.
¶15 Moreover, and as discussed in more detail below, transforming a misdemeanor into a felony does far more than simply increase the potential punishment; it changes the very nature of the offense.
B. The United States and Colorado Constitutions Require Prosecutors to Prove the Prior Convictions to a Jury Because They Are Elements of the Offense
¶16 Even if the statutory requirement that the prosecutor plead the prior offenses does not require our construction, the Unitеd States and Colorado Constitutions do.
¶17 Generally, under Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, prior convictions
¶18 Under the Colorado Constitution, felonies are the only crimes serious enough to merit incarceration in the penitentiary.
The penitentiary has long been recognized as the proper place for the incarceration of those convicted of the graver offenses only, while the county jails have been utilized for the confinement of those convicted of minor offenses, and confinement in the penitentiary has always been regarded as more severe than confinement in a county jail, on account of the disgrace and reproach attached to confinement in an institution thus set apart as a place for the incarceration of the mоre depraved and infamous classes of offenders.
Brooks v. People, 14 Colo. 413, 414, 24 P. 553, 553 (1890).
¶19 In short, for more than 100 years Colorado courts have recognized that there is a significant difference between incarceration in the penitentiary and incarceration in the county jail. Elevating a sentence from a misdemeanor tо a felony affects not only the length of the sentence but also where the sentence is served and subjects the defendant to greater stigma, “disgrace,” and “reproach.” Id.
¶20 Furthermore, critical procedural differences separate felonies from misdemeanors. As Judge (now Chief Judge) Bernard еxplained in his partial dissent in Schreiber, 226 P.3d at 1226,
[d]efendants charged with misdemeanors are tried by juries of six; defendants charged with felonies are tried by juries of twelve.
§ 18-1-406(1), C.R.S. 20[19] ;Crim. P. 23(a)(1) &(2) . Defendants charged with misdemeanors may exercise three peremptory challenges; defendants charged with most felonies are entitled to five peremptory challenges.Crim. P. 24(d)(2) .If the jury is not allowed to consider the defendant‘s prior convictions as an element of the offense, the jury will only be instructed on the elements of a misdemeanor, and its verdict will only convict the defendant of a misdemeanor. Thus, if the crime in this case is converted to a felony by сourt order after a jury convicts a defendant of the misdemeanor, it would appear to me that a defendant facing this charge is only entitled to a six-person jury and three peremptory challenges. This result seems to avoid the clear direction in statute and court rule that defendants charged with felonies are entitled to have their cases decided by twelve jurors and to exercise five peremptory challenges.
¶21 Additionally, defendants in some felony cases are entitled to preliminary hearings, while defendants in misdemeanor cases are not.
¶22 The fact that Viburg‘s case was tried as a felony does not minimize the importance of these procedural distinctions — transforming a misdemeanor to a felony in Coloradо deprives a defendant of the right to procedural protections to which the defendant would otherwise be entitled.
¶23 Finally, felonies have significant collateral consequences that misdemeanors do not. Schreiber, 226 P.3d at 1226 (Bernard, J., concurring in part and dissenting in part). Some of these are that
- A person cannot vote while incarcerated for a felony conviction.
Colo. Const. art VII, § 10 ;§ 1-2-103(4), C.R.S. 2019 . - Convicted felons may be prohibited from owning firearms.
§ 18-12-108(1), C.R.S. 2019 . - Convicted felons may be barred from certain professions. E.g. ,
§ 12-20-404(1)(d)(I), C.R.S. 2019 (regulators’ general disciplinary authority);§ 12-100-120(1)(e), C.R.S. 2019 (accountants);§ 44-20-121(3)(c), C.R.S. 2019 (car dealers). - A felony conviction provides a predicate offense for a habitual criminal designation.
§ 18-1.3-801, C.R.S. 2019 . - A person who has been convicted of two felonies may not be eligible for probation.
§ 18-1.3-201(2)(a.5), C.R.S. 2019 . - A felony conviction may be used to impeach a witness‘s testimony.
§ 13-90-101, C.R.S. 2019 .
¶24 “These collateral consequences are not trifling. They affect the exercise of important civil rights; or restrict the ability to earn a living; or expose one to additional penalties in the future; or undermine one‘s credibility in future proceedings.” Schreiber, 226 P.3d at 1227 (Bernard, J., concurring in part and dissenting in part).
¶25 In sum, the differences between a misdemeanor and a felony are so fundamental that they go far beyond affecting just the length of the sentence imposed and alter the “very nature of [the] crime” itself. United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160-61 (9th Cir. 2004).
¶26 In Rodriguez-Gonzales, the Ninth Circuit considered whether a prior conviction that elevated a misdemeanor conviction for illegally entering the United States into a felony was an element of the felony charge that needed to be pleaded in the indictment, or merely a sentence enhancer that did not. The court held that “[t]he existence of a prior conviction under
¶27 Courts in other jurisdictions have reached similar conclusions when considering felony DUI statutes. For instance, the Florida Supreme Court has held that, to obtain a conviction for felony DUI, the defendant‘s prior DUI оffenses must be proved to a jury because they are considered ” ‘an element of felony DUI,’ rather than a type of enhancement that results in felony DUI.” Johnson v. State, 994 So. 2d 960, 963 (Fla. 2008) (quoting State v. Finelli, 780 So. 2d 31, 33 (Fla. 2001) ); see also, e.g. , State v. Goggin, 185 Wash.App. 59, 339 P.3d 983, 989 (2014) (prior convictions are elements of felony DUI). Some other state courts have, however, reached the opposite conclusion. E.g. , State v. Kendall, 274 Kan. 1003, 58 P.3d 660, 668 (2002) ; State v. Palmer, 189 P.3d 69, 72-77 (Utah Ct. App. 2008).
¶28 For these reasons, we cоnclude that the fact of a prior conviction is an essential element of felony DUI that must be proved to a jury beyond a reasonable doubt.
C. The Canon of Constitutional Doubt Supports the Proposition that Prior Convictions Must Be Proved to a Jury
¶29 To the extent the analysis above is not dispositive, the constitutional-doubt canon confirms our interpretation. See United States v. Davis, 588 U.S. ––––, –––– n.6, 139 S. Ct. 2319, 2332 n.6, 204 L.Ed.2d 757 (2019) (discussing the distinction between the canons of constitutional avoidance and constitutional doubt); People v. Iannicelli, 2019 CO 80, ¶ 76 n.1, 449 P.3d 387 (Samour, J., dissenting) (same). When “a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which suсh questions are avoided, our duty is to adopt the
¶30 Contrary to Gwinn, ¶ 54, and as more fully discussed above, decisions from other jurisdictions demonstrate that transforming a misdemeanor to a felony based on prior convictions without proving those convictions to a jury beyond a reasonable doubt raises serious constitutionаl questions. Compare Rodriguez-Gonzales, 358 F.3d at 1159-61, and Johnson, 994 So. 2d at 963, and Goggin, 339 P.3d at 989, and Warbelton, 759 N.W.2d at 562-67, with Kendall, 58 P.3d at 668, and Palmer, 189 P.3d at 72-77.
¶31 Accordingly, even if we were to conclude that the statute is ambiguous, we would still conclude that the prior convictions are elements of the offense, in order to avoid these serious constitutional questions. Esser, 30 P.3d at 194.
III. Conclusion
¶32 For these reasons, we reverse Viburg‘s felony DUI conviction and remand the case for further proceedings. If there is a retrial of the felony DUI charge and Viburg interposes a double jeopardy defense, the trial court must rule on that defense. We express no opinion regarding the merits of any such defense.
JUDGE TERRY and JUDGE WELLING concur.