Colorado Motor Vehicle Dealer Board v. Freeman , 375 P.3d 111 ( 2016 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 June 20, 2016
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9 2016 CO 44
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1 No. 14SC998, Colorado Motor Vehicle Dealer Board v. Freeman—Statutory
2 Interpretation—State Agencies—Motor Vehicles.
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4 The supreme court considers whether a person who commits third degree
5 assault on an at-risk adult under sections 18-3-204 and 18-6.5-103(3)(c), C.R.S. (2015), is
6 disqualified from obtaining a motor vehicle salesperson’s license under section
7 12-6-118(7)(a)(I), C.R.S. (2015). Reversing the court of appeals, the court holds that
8 because the felony enhancement provision does not create a separate offense, Freeman
9 was convicted of a “felony in violation of article 3 . . . of title 18,” § 12-6-118(7)(a)(I), and
0 therefore the Colorado Motor Vehicle Dealer Board properly denied his application for
1 a motor vehicle salesperson’s license.
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1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2016 CO 44
4 Supreme Court Case No. 14SC998
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 13CA1547
7 Petitioner:
8 Colorado Motor Vehicle Dealer Board,
9 v.
0 Respondent:
1 Jeffrey Freeman.
2 Judgment Reversed
3 en banc
4 June 20, 2016
5 Attorneys for Petitioner:
6 Cynthia H. Coffman, Attorney General
7 Charmaine C. Rose, Assistant Attorney General
8 Grant T. Sullivan, Assistant Solicitor General
9 Denver, Colorado
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3 No appearance by or on behalf of Jeffrey Freeman.
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7 CHIEF JUSTICE RICE delivered the Opinion of the Court.
¶1 In this case we are asked to decide a straightforward question of statutory
interpretation. Jeffery Freeman was convicted of third degree assault on an at-risk
adult. §§ 18-3-204; 18-6.5-103(3)(c), C.R.S. (2015). Later, when he applied for a motor
vehicle salesperson’s license, the Colorado Motor Vehicle Dealer Board (the Board)
denied his application pursuant to the mandatory disqualification statute, section
12-6-118(7)(a)(I), C.R.S. (2015). Under the mandatory disqualification statute, a person
who has been convicted of a felony “in violation of article 3, 4 or 5 of title 18, C.R.S., or
any similar crime” must have his or her application for a license to sell cars denied. Id.
¶2 The question is whether Freeman’s conviction for the felony offense of third
degree assault on an at-risk person was a “felony in violation of article 3” for the
purpose of the mandatory disqualification statute, where the elements of the crime are
located in section 18-3-204, but the felony enhancement provision resides at section
18-6.5-103(3)(c).1 Because the felony enhancement for third degree assault does not
constitute a separate offense under People v. McKinney, 99 P.3d 1038, 1043 (Colo. 2004),
we conclude that Freeman was convicted of a felony “in violation of article 3 . . . of title
18,” and therefore he was ineligible to receive a motor vehicle salesperson’s license
1 Specifically, we granted certiorari to review the following issue:
Whether the court of appeals erred in holding that a conviction under
section 18-3-204, C.R.S. (2015), which is enhanced to a felony pursuant
to section 18-6.5-103(3)(c), C.R.S. (2015), is not a felony conviction in
violation of article 3 of title 18 and, therefore, is not a mandatory
disqualifying offense for licensure under section 12-6-118(7)(a)(I),
C.R.S. (2015).
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under section 12-6-118(7)(a)(I). Accordingly, we reverse the court of appeals and
remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
¶3 In 2012, Freeman applied to the Board for a motor vehicle salesperson’s license.
A division of the Board denied his application on five separate grounds, one of which
was that Freeman’s prior conviction for the crime of third degree assault on an at-risk
adult was a mandatory disqualifying offense under section 12-6-118(7)(a)(I). See
§§ 18-3-204, 18-6.5-103(3)(c). He appealed the division’s decision and received a hearing
from the Board. The hearing officer upheld the denial of his license for the sole reason
that Freeman’s criminal conviction disqualified him. Freeman sought further review
and the Board affirmed, holding that Freeman’s conviction was a disqualifying offense
under section 12-6-118(7)(a)(I).
¶4 Freeman appealed to the court of appeals, and, in a split decision, the court of
appeals reversed the Board, holding that Freeman was not convicted of “a felony in
violation of article 3, title 18,” and that therefore his conviction did not constitute a
mandatory disqualifying offense under section 12-6-118(7)(a)(I). Colo. Motor Vehicle
Dealer Bd. v. Freeman, 2014 COA 152, ¶¶ 15, 22, __ P.3d __. Judge Dunn dissented and
argued that third degree assault on an at-risk adult is merely “an enhanced form of
third degree assault, not an independent crime,” and that therefore Freeman’s crime
was indeed a felony in violation of article 3, title 18. Id. at ¶¶ 25, 27 (Dunn, J.,
dissenting).
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¶5 The Board filed a petition for certiorari, which we granted. Freeman, acting pro
se, declined to file a brief, and the matter was submitted without oral argument.
II. Standard of Review
¶6 An appellate court will set aside a decision of a state agency only if the decision
is “arbitrary or capricious,” violates or is based on an erroneous interpretation of the
law, is “an abuse or clearly unwarranted exercise of discretion,” or is based upon
“clearly erroneous” findings of fact. § 24-4-106(7), C.R.S. (2015); Colo. Dep’t of Human
Servs. v. Maggard, 248 P.3d 708, 712 (Colo. 2011). We review questions of statutory
construction de novo. Colo. Dep’t of Revenue v. Hibbs, 122 P.3d 999, 1002 (Colo. 2005).
While we “may defer to the agency’s construction of a code, ordinance, or statutory
provision[],” we are “not bound by the agency’s construction because the court’s review
of the applicable law is de novo.” Commerce City v. Enclave West, Inc., 185 P.3d 174,
178 (Colo. 2008).
III. Analysis
¶7 The Board argues that the court of appeals should have affirmed the Board’s
denial of Freeman’s application for a license to sell motor vehicles. It contends that the
court of appeals’ decision (1) conflicts with this court’s holding in McKinney, 99 P.3d at
1038, 1041, and (2) runs contrary to the legislative intent behind the mandatory
disqualification statute. We agree. Freeman committed assault in the third degree
under section 18-3-204. Although the crime was enhanced to a felony under section
18-6.5-103(3)(c) because it was committed against an at-risk adult, it was nevertheless a
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“felony in violation of article 3 . . . of title 18,” § 12-6-118(7)(a)(I), and the Board properly
denied Freeman’s application for a motor vehicle salesperson’s license.
¶8 When construing a statute, we attempt to ascertain and give effect to the intent of
the General Assembly. State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). To divine this
intent, our first recourse is the plain language of the statute, and we refrain from
rendering judgments that are inconsistent with the intent evidenced by such language.
See id. In short, when the statutory language is clear and unambiguous, we look no
further and apply the words as written. People v. Zapotocky, 869 P.2d 1234, 1238 (Colo.
1994).
¶9 The State of Colorado regulates the sale and distribution of motor vehicles. In its
legislative declaration, the General Assembly noted that “the trust and confidence of the
purchaser in the retail dealer” is of utmost importance in a motor vehicle transaction.
§ 12-6-101(1)(a), C.R.S. (2015). As a result, the General Assembly declared that the
licensing and supervision of motor vehicle salespersons is “necessary for the protection
of consumers” and the sale of motor vehicles by unlicensed or unfit salespersons
“should be prevented.” § 12-6-101(1)(c). Accordingly, the General Assembly created
the Motor Vehicle Dealer Board and authorized it to administer, enforce, issue, and
deny licenses to motor vehicle dealers and salespersons. § 12-6-104(3)(a), C.R.S. (2015).
¶10 Section 12-6-118 provides the grounds for the denial, suspension, or revocation of
a motor vehicle salesperson’s license. Subsection (7)(a) specifies that an application for
a license
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shall be . . . denied if the . . . applicant has been convicted of or pleaded no
contest to any of the following offenses in this state or any other jurisdiction
during the previous ten years:
(I) A felony in violation of article 3, 4, or 5 of title 18, C.R.S., or any similar
crime under federal law or the law of any other state.
§ 12-6-118(7)(a).
¶11 It is undisputed that at the time of his application for a motor vehicle
salesperson’s license, Freeman had been convicted within the previous ten years of
felony assault on an at-risk adult. The question is whether Freeman’s conviction was
“[a] felony in violation of article 3, 4, or 5, of title 18.” § 12-6-118(7)(a)(I). The answer is
complicated by a peculiarity of the criminal code: The substantive offense of third
degree assault is contained in article 3 of title 18—at section 18-3-204—but the felony
enhancement for committing third degree assault on an at-risk adult is located in article
6.5 of title 18—at section 18-6.5-103(3)(c).
¶12 In McKinney, this court was confronted with a similar situation. There, we had
to decide whether the statute of limitations for general theft applied when the
defendant was convicted of general theft against an at-risk adult—a crime that, like the
one here, was defined in one place in the code and “enhanced” in another. McKinney,
99 P.3d at 1041, 1043 (discussing section 18-6.5-103(5), which increases the penalty for
general theft when the crime is committed against an at-risk adult). We held that it was
“immaterial” that the discovery tolling provision did not expressly include thefts
committed against at-risk adults, because the at-risk adult section, section 18-6.5-103(5),
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merely “enhances the penalties” for general theft—it “does not create a separate
offense.” McKinney, 99 P.3d at 1043.
¶13 Likewise, the at-risk adult enhancement provision for third degree assault,
section 18-6.5-103(3)(c), does not create a separate offense, but merely “function[s] as a
penalty enhancer.” Id. Section 18-6.5-103(3)(c) does not define the crime or list its
elements—it simply references section 18-3-204 (assault in the third degree). See
§ 18-6.5-103(3)(c) (“Any person who commits a crime of assault in the third degree, as
such crime is described in section 18-3-204, and the victim is an at-risk adult . . .
commits a class 6 felony.”).
¶14 Because section 18-6.5-103(3)(c) “does not create an independent substantive
offense,” we agree with Judge Dunn’s dissent—Freeman could not have been convicted
of a felony “in violation” of article 6.5 of title 18. Freeman, ¶ 27 (Dunn, J., dissenting).
This is because the “underlying crime” was that of third degree assault, which is found
in article 3 of title 18. Id.; see § 18-3-204.2
2 The majority of the court of appeals acknowledged that under People v. McKinney,
99 P.3d 1038, 1042–43 (Colo. 2004), assault in the third degree on an at-risk adult is an
“enhanced form of assault in the third degree and does not constitute a separate
offense.” Colo. Motor Vehicle Dealer Bd. v. Freeman, 2014 COA 152, ¶ 13, __ P.3d __.
The court nevertheless concluded that that analysis “fails to answer whether Freeman’s
conviction is a felony in violation of article 3, title 18” for purposes of section
12-6-118(7)(a)(I), C.R.S. (2015). Id. at ¶ 15. It reached this conclusion by focusing on the
fact that section 18-3-204, C.R.S. (2015), provides that the crime of assault in the third
degree is a misdemeanor. Id. at ¶ 16. The court concluded that “[i]f the General
Assembly had intended to include within section 12-6-118(7)(a)(I) misdemeanors that
are enhanced to felonies by a statute that is not contained within articles 3, 4, or 5 of title
18, it could have done so.” Id. at ¶ 19. But the fact that the General Assembly could
have been clearer or more comprehensive does not change our analysis of the plain
language—nor does this fact justify adopting an interpretation that leads to absurd
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¶15 Moreover, when construing a statute we read and consider it as a whole and
interpret it so as to give “consistent, harmonious, and sensible effect to all its parts.”
Nieto, 993 P.2d at 501. We presume that the legislature intends a “just and reasonable
result,” § 2-4-201, C.R.S. (2015), and we seek to avoid absurd results, Nieto, 993 P.2d at
501.
¶16 Under the court of appeals’ reasoning, any applicant who committed a crime that
is penalty-enhanced pursuant to any provision of the at-risk adult statute—section
18-6.5-103—would benefit from a senseless loophole, simply because the enhancement
itself is located outside of articles 3, 4, and 5 of title 18. See § 12-6-118(7)(a)(I). This
would effectively reward applicants who commit what the General Assembly has
indicated are more egregious criminal acts. See McKinney, 99 P.3d at 1041 (“In the
legislative declaration to Article 6.5, the General Assembly expressed its intent to
impose more severe penalties for specified crimes when the victim is ‘at-risk.’”).
Moreover, this would defeat the General Assembly’s declared purpose of preventing
the sale of motor vehicles by “salespersons who have demonstrated unfitness.”
§ 12-6-101(1)(c). A person who commits third degree assault on at-risk adult is equally
unfit, if not more so, than a person who commits garden variety third degree assault. It
would be absurd to suggest otherwise.
results. See, e.g., State v. Nieto, 993 P.2d 493, 500–01 (Colo. 2000) (“If courts can give
effect to the ordinary meaning of words used by the legislature, the statute should be
construed as written, giving full effect to the words chosen, as it is presumed that the
General Assembly meant what it clearly said.”).
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¶17 Accordingly, Freeman was convicted of a “felony in violation of article 3 . . . of
title 18,” § 12-6-118(7)(a)(I), and the Board properly denied his application for a motor
vehicle salesperson’s license.
IV. Conclusion
¶18 Because Freeman was convicted of a felony in violation of article 3 of title 18, he
was disqualified from obtaining a motor vehicle salesperson’s license under section
12-6-118(7)(a)(I). We therefore reverse the court of appeals’ decision and remand for
further proceedings consistent with this opinion.
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