v. People

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ADVANCE SHEET HEADNOTE
November 9, 2020
2020 CO 79No. 18SC884, Linnebur v. People—Statutory Interpretation—Crimes—DUI —
Prior Convictions
The supreme court holds that prior DUI convictions are substantive
elements of a felony DUI offense that must be proved to a jury beyond a reasonable
doubt, rather than sentence enhancers to be proved to a judge by a preponderance
of the evidence. Finding the language of section 42-4-1301(1)(a), C.R.S. (2020), to
be ambiguous, the court examines the General Assembly’s intent by looking at the
entirety of the statutory scheme, traditional treatment of the fact of prior
convictions, and the risk of unfairness. Based on those factors, the supreme court
concludes that the General Assembly intended the fact of prior convictions to be a
substantive element of the felony offense. Accordingly, the supreme court
reverses the judgment of the court of appeals and remands the case for
resentencing.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 79Supreme Court Case No. 18SC884
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA2133
Petitioner:
Charles James Linnebur,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
November 9, 2020
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Meredith K. Rose, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General
Denver, Colorado
JUSTICE HART delivered the Opinion of the Court.
JUSTICE MÁRQUEZ dissents, and JUSTICE SAMOUR joins in the dissent.
JUSTICE BOATRIGHT does not participate.
¶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 section 42-4-1301, C.R.S. (2020), and its
related penalty provisions “alternately accord the prior convictions qualities of
both elements of an offense and sentence enhancers.” People v. Tafoya, 2019 CO 13,
¶ 28 n.2, 434 P.3d 1193, 1197 n.2. Because that case did not require us to answer
the question whether a defendant’s prior DUI convictions constitute an element of
felony DUI or merely a sentence enhancer, we left it for another day.
¶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 sentencing on the misdemeanor DUI charges that were
properly proved to the jury in this case.
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
2
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 sections 42-4-1301(1)(a) and (2)(a), which provide that DUI and
DUI per se are felonies if they “occurred after three or more prior convictions” for,
among other things, DUI, DUI per se, or DWAI. Prior to trial, Linnebur filed a
motion in limine arguing that the fact of his prior convictions was a substantive
element of felony DUI that had to be found by a jury beyond a reasonable doubt.
The trial court denied the motion, concluding instead that Linnebur’s prior
convictions were “merely sentence enhancers or aggravating factors” and could
be proved to the court by a preponderance of the evidence.
¶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 whether Linnebur in fact had at least three prior convictions that
would substantiate these new felony convictions. In order to support their claim
1The DWAI statute includes identical language to that included in the DUI statute
escalating it to a felony offense after three prior convictions.
3
that Linnebur had the requisite prior convictions, the People submitted certified
copies of Linnebur’s three prior impaired driving convictions as well as his state
driving record. Rather than applying a preponderance of the evidence standard
(as it had earlier indicated it would), the trial court instead concluded that these
exhibits proved beyond a reasonable doubt that Linnebur had three prior
convictions. It thus entered judgment for felony DWAI, merged the DUI per se
conviction, and sentenced Linnebur to four years in community corrections.
¶6 A division of the court of appeals affirmed. See People v. Linnebur,
No. 16CA2133 (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 because 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
4
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 legislature’s intent by looking at the language and
structure of the statutory scheme, traditional treatment of the fact of prior
2 We granted certiorari to review the following issues:
1. Whether the court of appeals erred in concluding that the portion of section
42-4-1301, C.R.S. (2018), that elevates a misdemeanor to a class four felony
for driving under the influence (“DUI”), driving while ability impaired
(“DWAI”), or DUI per se after three or more prior convictions for certain
enumerated offenses establishes a sentence enhancer and not an element of
the offense for purposes of determining whether jury findings are required.
2. Whether the court of appeals erred in concluding that, because sections
42-4-1301(1)(a), (1)(b), (2)(a), C.R.S. (2018), do not provide the applicable
burden of proof, the prosecution must prove prior convictions in a felony
DUI, DWAI, or DUI per se case under a preponderance of the evidence
standard.
3. Whether, if a jury determination was required, the evidence in Linnebur’s
case was sufficient to prove DWAI fourth or subsequent offense and DUI
per se fourth or subsequent offense under sections 42-4-1301(1)(b) and (2)(a).
5
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). The 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 and give effect to the legislature’s intent.” People v. Cali, 2020 CO 20, ¶ 15,
459 P.3d 516, 519. To accomplish this task, “we look first to the language of the
statute, giving its words and phrases their plain and ordinary meanings.”
McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389. “If the plain language of the
statute demonstrates a clear legislative intent, we look no further in conducting
our analysis.” Springer v. City & Cnty. of Denver, 13 P.3d 794, 799 (Colo. 2000). If,
however, the language is ambiguous—that is, if it is reasonably susceptible of
6
multiple interpretations—then we may consider other aids to statutory
construction. McCoy, ¶ 38, 442 P.3d at 389.
¶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 (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, § 42-4-1301,
2015 Colo. Sess. Laws 990. As directly relevant here, section 42-4-1301(1)(a), which
defines the crime of “driving under the influence,” now provides in pertinent part:
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.
7
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 section 42-4-1301 treats prior
DUI convictions as sentence enhancers because it defines what it means to “drive
under the influence” in one sentence and sets out the felony penalty in a separate
sentence. Further, like the division below, they rely on our decision in Leske, in
which we explained that a sentence enhancer was not an element of an offense for
purposes of double jeopardy and merger if “its proof, while raising the felony level
of an offense, is not necessarily required to secure a conviction.” 957 P.2d at 1039.
Here, they argue, a defendant can be convicted of DUI without proof of the prior
convictions, so the fact of the prior convictions must not be an element of the
offense.
¶14 Linnebur, on the other hand, argues that the plain language of section
42-4-1301 demonstrates a legislative intent to treat prior DUI convictions as an
element of felony DUI. He points out that the statutory language escalating the
penalty appears in the same statutory subsection as the other elements of the
substantive offense rather than in section 42-4-1307, C.R.S. (2020), the statute that
sets out detailed penalties for traffic offenses involving alcohol. Further, he notes
that the 2015 amendments creating the crime of felony DUI added to the statute a
requirement that the prior convictions must be charged in the indictment or
8
information. See § 42-4-1301(1)(j). An indictment must “state the crime charged
and essential facts which constitute the offense,” Crim. P. 7(a)(2), and an
information is sufficient only if “the offense charged is set forth with such degree
of certainty that the court may pronounce judgment upon a conviction,” Crim. P.
7(b)(2)(IV). See also Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (“An
indictment must set forth each element of the crime that it charges. But it need not
set forth factors relevant only to the sentencing of an offender found guilty of the
charged crime.” (citation omitted)). Linnebur argues that the addition of the
charging requirement thus further demonstrates the legislature’s understanding
that it was creating a separate offense of felony DUI, not simply increasing
penalties for repeat offenders. And finally, he argues that the People’s reliance on
Leske is misplaced because that case considered the difference between an element
and a sentence enhancer in the context of double jeopardy and merger analysis,
which is distinct from the Sixth Amendment right to a jury trial.
¶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
section 42-4-1301 is clear. We have previously indicated that what makes a fact a
sentence enhancer rather than an element of an offense is not necessarily the same
for double jeopardy and merger analysis as for the jury-trial right. Lewis v. People,
261 P.3d 480, 485 (Colo. 2011) (“It is far from clear that the functional equivalence
9
of elements and sentencing factors for purposes of a criminal defendant’s right to
a jury trial should apply equally to the constitutional presumption against
multiple simultaneous punishments for the same offense.”).
¶16 Ultimately, Linnebur and the People each advance a plausible interpretation
of section 42-4-1301. As we noted in Tafoya, the statute includes signs that point in
both directions on this question. Tafoya, ¶ 28 n.2, 434 P.3d at 1197 n.2. And
because that is the very definition of an ambiguous statutory provision, see McCoy,
¶ 38, 442 P.3d at 389, we must turn to other interpretive aids.
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 approach. See O’Brien, 560 U.S. at
225.3
3The Supreme Court in O’Brien also suggested that the severity of the sentence
and legislative history could be relevant to the analysis of whether the fact of prior
convictions was intended to be an element or a sentence enhancer. See O’Brien,
10
1. Statutory Language and Structure
¶18 In examining the relevant statutory language and structure, we look to both
section 42-4-1301, which defines the offenses of DUI, DUI per se, and DWAI, and
section 42-4-1307, which sets out detailed penalties for those offenses.
¶19 In 2015, the legislature added the offense of felony DUI to section 42-4-1301.
See 2015 Colo. Sess. Laws at 990. As discussed previously, this amendment
provided that a DUI following three or more prior convictions is a class four
felony. § 42-4-1301(1)(a). It also added the requirement that the People “shall set
forth such prior convictions in the indictment or information.” § 42-4-1301(1)(j).
And the amendment directed the addition of a subsection (1)(k) that provided “[i]f
a defendant is convicted of a class 4 felony pursuant to this section, the court shall
sentence the person in accordance with the provisions of section 18-1.3-401, C.R.S.”
2015 Colo. Sess. Laws. at 991.
¶20 Two years later, the legislature made additional statutory changes to the
statutory scheme that governs felony DUI. See Ch. 387, sec. 1, § 42-4-1307,
2017 Colo. Sess. Laws 2003. Among other things, these amendments repealed the
560 U.S. at 225. We consider the relative severity of the sentence as part of our
evaluation of the risk of unfairness. The legislative history of section 42-4-1301
does not offer any especially helpful clues to assist in answering the question we
are faced with here.
11
sentencing provision that had been added to section 42-4-1301(1)(k) and instead
created a new subsection (6.5) in section 42-4-1307. That subsection, titled “Felony
offenses,” specifies that “[a] person who commits a felony DUI, DUI per se, or
DWAI offense shall be sentenced in accordance with the provisions of section
18-1.3-401 and this subsection (6.5).” § 42-4-1307(6.5)(a); see also People v. Huckabay,
2020 CO 42, ¶ 16, 463 P.3d 283, 286.
¶21 Although it made a number of other changes to section 42-4-1307, the
General Assembly did not amend section 42-4-1307(9) to include the new
subsection (6.5) within its ambit. Section 42-4-1307(9) addresses the definition and
treatment of prior convictions “[f]or purposes of subsections (5) and (6) of this
section.” Subsections (5) and (6) set out the penalties for second and subsequent
misdemeanor DUI offenses. For these misdemeanor offenses, subsection (9)
provides that the fact of prior convictions constitutes a sentence enhancer that the
People “shall not be required to plead or prove . . . at trial.” § 42-4-1307(9)(b)(II).
¶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 section 18-1.3-401. This language is a strong indication that the
12
legislature viewed the fact of prior convictions as an element of felony DUI, given
that a defendant could not be “convicted of a class 4 felony” without that fact. This
conclusion is further supported by the requirement that the prior convictions must
be charged in the indictment or information. And, finally, the legislature’s failure
to amend 42-4-1307(9) suggests that the General Assembly intended prior
convictions to be treated differently when the defendant is charged with a felony
than when he is charged with a misdemeanor.
¶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
§ 42-4-1307(5), (6). But the legislature did not include the prior convictions
required for felony DUI in that penalty-focused provision. Instead, the prior
convictions required for conviction of the class four felony DUI are included in the
statute defining the substance and setting forth the elements of offenses
themselves. See § 42-4-1301(1)(a).
¶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
section 16-5-301(1)(a), C.R.S. (2020). See Huckabay, ¶ 2, 463 P.3d at 284; Tafoya, ¶ 16,
13
434 P.3d at 1196. He is entitled to be tried by a twelve-person jury and to receive
a unanimous verdict. § 18-1-406(1), C.R.S. (2020). Considering the entirety of the
applicable statutory scheme, as we must, it seems apparent that the legislature
intended to include the fact of prior convictions as an element of the offense of
felony DUI.
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 (“The lower courts have
almost uniformly 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 (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
14
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
make the fact of prior convictions a sentence enhancer, it is equally free to make
that fact an element of the offense. O’Brien, 560 U.S. at 225 (“[W]hether a given
fact is an element of the crime itself or a sentencing factor is a question for
Congress.”).
¶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
4 Ex parte Parker, 740 So.2d 432, 435 (Ala. 1999); Robbins v. Darrow, 148 P.3d 1164,
1167 (Ariz. Ct. App. 2006); State v. Laboy, 117 A.3d 562, 568 (Del. 2015); Lowenthal v.
State, 593 S.E.2d 726, 729 (Ga. App. Ct. 2004); State v. Burnight, 978 P.2d 214, 218–19
(Idaho 1999); People v. Braman, 765 N.E.2d 500, 503 (Ill. App. Ct. 2002); State v.
Schultz, 604 N.W.2d 60, 62 (Iowa 1999); State v. Kendall, 58 P.3d 660, 667–68 (Kan.
2002); Commonwealth v. Ramsey, 920 S.W.2d 526, 528 (Ky. 1996); Commonwealth v.
Bowden, 855 N.E.2d 758, 764 n.11 (Mass. 2006) (noting that prior convictions still
must be proved beyond a reasonable doubt but they are not formally elements of
the crime); People v. Callon, 662 N.W.2d 501, 508 (Mich. Ct. App. 2003); Swaim v.
State, 203 So.3d 697, 700 (Miss. Ct. App. 2016); State v. Rattles, 450 S.W.3d 470,
473–74 (Mo. Ct. App. 2014); State v. Weldele, 69 P.3d 1162, 1172, (Mont. 2003);
State v. Huff, 802 N.W.2d 77, 102 (Neb. 2011); Ronning v. State, 992 P.2d 260, 261
(Nev. 2000); State v. Thompson, 58 A.3d 661, 663 (N.H. 2012); State v. Begay, 17 P.3d
434, 435–36 (N.M. 2001); Commonwealth v. Reagan, 502 A.2d 702, 704 (Pa. Super. Ct.
1985); State v. Payne, 504 S.E.2d 335, 336 (S.C. Ct. App. 1998); State v. Bacon,
286 N.W.2d 331, 332 (S.D. 1979); State v. Nash, 294 S.W.3d 541, 551 (Tenn. 2009);
15
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 of 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. § 18-1.3-401(1)(a)(V)(A.1); see also Huckabay, ¶ 17, 463 P.3d at
State v. Palmer, 189 P.3d 69, 72 (Utah Ct. App. 2008), aff’d, 220 P.3d 1198 (Utah
2009); State v. Tatro, 635 A.2d 1204, 1207 (Vt. 1993); State v. Braunschweig,
921 N.W.2d 199, 208 (Wis. 2018); Derrera v. State, 327 P.3d 107, 110–11 (Wyo. 2014).
5 Ross v. State, 950 P.2d 587, 589–90 (Alaska Ct. App. 1997); Peters v. State,
692 S.W.2d 243, 245 (Ark. 1985); State v. Tenay, 114 A.3d 931, 939 (Conn. App.
2015); State v. Finelli, 780 So.2d 31, 33 (Fla. 2001); State v. Wheeler, 219 P.3d 1170,
1185 (Haw. 2009); Warner v. State, 406 N.E.2d 971, 973–76 (Ind. Ct. App. 1980);
State v. Ellender, 274 So.3d 144, 151 (La. Ct. App. 2019); State v. Berkelman,
355 N.W.2d 394, 396 (Minn. 1984); People v. Van Buren, 631 N.E.2d 112, 113 (N.Y.
1993); State v. Hyden, 625 S.E.2d 125, 127 (N.C. App. 2006); State v. Mann,
876 N.W.2d 710, 713–14 (N.D.), vacated on other grounds, 137 S. Ct. 114 (2016)
(mem.); State v. Brooke, 863 N.E.2d 1024, 1027 (Ohio 2007); Baker v. State, 966 P.2d
797, 798 (Okla. Crim. App. 1998); State v. Probst, 124 P.3d 1237, 1244–45 (Or. 2005);
Oliva v. State, 548 S.W.3d 518, 519–20 (Tex. Crim. App. 2018); McBride v.
Commonwealth, 480 S.E.2d 126, 127 (Va. 1997); State v. Santos, 260 P.3d 982, 984
(Wash. Ct. App. 2011); State v. Fox, 531 S.E.2d 64, 66 n.2 (W. Va. 1998).
16
286–87. By contrast, a sentence for misdemeanor DUI, even for a third offense,
cannot lead to more than one year in county jail. See § 42-4-1307(3), (5), (6). Aside
from the sheer length of possible confinement, a felony conviction carries with it a
wide range of significant collateral consequences. See, e.g., § 1-2-103(4), C.R.S.
(2020) (preventing convicted felons, while confined, from voting or registering to
vote); § 18-12-108(1), C.R.S. (2020) (preventing convicted felons from owning
firearms); § 18-1.3-801(2), C.R.S (2020) (subjecting a convicted felon to potential
sentencing as a habitual criminal); § 13-90-101, C.R.S. (2020) (exposing a convicted
felon to potential impeachment on the stand based on prior convictions);
§§ 12-20-404(1)(d)(I), 12-100-120(1)(e), 44-20-121(3)(c), C.R.S. (2020) (potentially
barring convicted felons from working in certain regulated professions). 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 Sixth Amendment.
17
¶30 True, the U.S. Supreme Court has previously explained that in the Sixth
Amendment context, prior convictions need not be proved to a jury even when
they increase the sentencing maximum. See Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). But importantly, the Court has never applied Apprendi’s prior-
conviction exception to allow a judge, instead of a jury, to find a fact that
transforms a misdemeanor offense into a felony. See United States v. Rodriguez-
Gonzales, 358 F.3d 1156, 1160–61 (9th Cir. 2004). Neither have we ever had occasion
to consider whether a prior conviction that changed the nature of an offense from
a misdemeanor to a felony might have to be proved to a jury beyond a reasonable
doubt. And at least two states that have considered this question have concluded
that “[w]hen existence of a prior conviction does not simply enhance the penalty
but transforms the crime itself by increasing its degree, the prior conviction is an
essential element of the crime and must be proved by the state.” State v. Brooke,
863 N.E.2d 1024, 1027 (Ohio 2007); see also State v. Mann, 876 N.W.2d 710, 713
(N.D.) (“Whether a prior offense constitutes an essential element of a crime
depends upon the offense charged. A prior offense constitutes an essential
element if it elevates the offense of a given crime.”), vacated on other grounds,
137 S. Ct. 114 (2016) (mem.). One division of our court of appeals has reached the
same conclusion. People v. Viburg, 2020 COA 8M, ¶ 15, __ P.3d __ (noting that
“transforming a misdemeanor into a felony does far more than simply increase the
18
potential punishment; it changes the very nature of the offense”); see also People v.
Schreiber, 226 P.3d 1221, 1225 (Colo. App. 2009) (Bernard, J., dissenting) (arguing
that when the fact of a prior conviction converts a misdemeanor to a felony, it must
be considered an element of the offense in light of the significant differences in
consequences of misdemeanor and felony convictions).
¶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 Sixth Amendment issue and simply resolve this case as a matter of
statutory interpretation. And here, as discussed above, we conclude that the
General Assembly intended for the fact of prior convictions to be treated as a
substantive element of felony DUI to be tried to a jury and found beyond a
reasonable doubt, not a sentence enhancer to be found by the court.
¶32 Because Linnebur was sentenced for a crime different from the one on which
the jury’s verdict was based, his 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 we
19
therefore conclude that the case should be remanded for sentencing on those
charges.
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 to a jury.
Because they were not, Linnebur’s sentence as a felony offender must be set aside.
We therefore reverse the judgment of the court of appeals and remand for
sentencing on the misdemeanor DUI offenses that were properly found by the
jury.
JUSTICE MÁRQUEZ dissents, and JUSTICE SAMOUR joins in the dissent.
20
JUSTICE MÁRQUEZ, dissenting.
¶34 Relying on factors identified in United States v. O’Brien, 560 U.S. 218, 225
(2010), and Castillo v. United States, 530 U.S. 120, 124–31 (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 section 42-4-1301, C.R.S. (2020), and therefore
must be proved to the jury beyond a reasonable doubt. Maj. op. ¶¶ 2, 17–32. I
disagree. If anything, the O’Brien/Castillo factors relied on by the majority point
in the opposite direction. Specifically, the statutory language and structure of
section 42-4-1301, the longstanding traditional treatment of recidivism as a
sentencing factor, and the risk of unfairness to the defendant in presenting a repeat
DUI offender’s prior convictions to a jury all indicate legislative intent to treat the
defendant’s prior convictions as a sentence enhancer, not an element of separate
felony offenses for DUI, DWAI, or DUI per se.
¶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 § 42-4-1301(1)(a) (DUI), (1)(b) (DWAI), (2)(a) (DUI per se), the General
Assembly merely intended to enhance the penalty for recidivist behavior. It did
not create entirely new felony offenses with prior convictions serving as
“elements” of such offenses. Regardless, to the extent that due process or the Sixth
1
Amendment right to a jury trial requires that any fact that increases the penalty be
submitted to a jury and proved beyond a reasonable doubt, the U.S. Supreme
Court has specifically exempted the fact of a prior conviction from this
requirement. See United States v. Booker, 543 U.S. 220, 224 (2005); Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000); see also Misenhelter v. People, 234 P.3d 657, 660 (Colo.
2010).
¶36 I conclude that the legislature intended a repeat DUI offender’s prior
convictions to serve as a sentence enhancer under section 42-4-1301. Moreover,
because section 42-4-1301 does not provide the applicable burden of proof, the
existence of those prior convictions may be proved to a judge at sentencing by a
preponderance of the evidence. Because I would affirm the judgment of the court
of appeals upholding Linnebur’s convictions and sentence, I respectfully dissent.
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.
2
U.S. Const., amend. VI, XIV; O’Brien, 560 U.S. at 224; Apprendi, 530 U.S. at 476–77;
Vega v. People, 893 P.2d 107, 111 (Colo. 1995). Sentencing factors, by contrast, may
be proved to a judge at sentencing by a preponderance of the evidence. O’Brien,
560 U.S. at 224; see also People v. Schreiber, 226 P.3d 1221, 1224 (Colo. App. 2009)
(holding that where a statute does not establish the burden of proof, the
prosecution may prove the existence of a prior conviction by a preponderance of
the evidence).
¶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 choice.
O’Brien, 560 U.S. at 225; Lewis, 261 P.3d at 482–83, 485. Thus, we must discern the
legislature’s intent.
¶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 section 42-4-1301. But
examining section 42-4-1301 through the lens of the O’Brien/Castillo factors relied
on by the majority does not reveal legislative intent to treat a defendant’s prior
convictions as elements of a separate felony offense to be submitted to a jury and
proved beyond a reasonable doubt. Instead, the plain language and structure of
section 42-4-1301, the longstanding traditional treatment of recidivism as a
sentencing factor, and the risk of unfairness to the defendant in presenting a repeat
3
DUI offender’s prior convictions to a jury indicate legislative intent to treat these
prior convictions as a sentence enhancer to be presented to a judge and established
by a preponderance of the evidence.1
II. Analysis
A. Statutory Language and Structure
¶40 First, the plain language and structure of section 42-4-1301 indicate that the
General Assembly intended to treat a repeat offender’s prior convictions as a
sentence enhancer, not an element of a separate felony offense.
¶41 Section 42-4-1301(1)(a), which establishes the offense of “driving under the
influence,” provides:
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 section 42-4-1301(1)(a) defines the elements of the
offense: “A person who drives a motor vehicle or vehicle under the influence of
1 O’Brien and Castillo also identify the severity of the sentence and legislative
history as relevant to discerning whether a fact is an element or a sentence
enhancer. O’Brien, 560 U.S. at 225; Castillo, 530 U.S. at 129–31. Because the
majority does not rely on these factors in its analysis, I do not address them here.
4
alcohol or . . . drugs . . . commits driving under the influence.” No more is
required. The second sentence classifies the offense of “driving under the
influence,” so defined, as a misdemeanor. However, the provision goes on to say
that the offense is a class 4 felony if “the violation” (that is, the act of driving under
the influence) occurred after the defendant had three or more prior convictions for
DUI, DUI per se, DWAI, or other vehicular offenses. Put simply, the penalty for
the offense of “driving under the influence” is enhanced if the defendant is a
recidivist.2
¶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, § 18-9-202, C.R.S. (2020),
and indecent exposure, § 18-7-302, C.R.S. (2020). In those examples, a defendant’s
prior convictions are considered sentence enhancers rather than elements of the
2 Section 42-4-1301(1)(b), which establishes the offense of “driving while ability
impaired,” and section 42-4-1301(2)(a), which establishes the offense of “DUI per
se,” are structured the same way and contain identical language elevating the
misdemeanor offense to a class 4 felony based on a defendant’s prior convictions.
5
offenses. See People v. Harris, 2016 COA 159, ¶ 75, 405 P.3d 361, 375 (“Cruelty to
animals is a class 1 misdemeanor; however, a second or subsequent conviction is
a class 6 felony. Under this statutory scheme, the prior conviction is a sentence
enhancer rather than a substantive element of the offense.” (citation omitted));
Schreiber, 226 P.3d at 1223 (concluding that under the indecent exposure statute, a
defendant’s prior convictions are a “sentence enhancer, not a substantive offense,
because: (1) a defendant may be convicted of the underlying offense without any
proof regarding the sentence enhancer; and (2) the sentence enhancement
provision only increases the potential punishment”).
¶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, § 18-8-208(1), C.R.S. (2020)
(“A person commits a class 2 felony if, while being in custody or confinement following
conviction of a class 1 or class 2 felony, he knowingly escapes from said custody or
confinement.” (emphasis added)), and possession of a weapon by a previous
offender (“POWPO”), § 18-12-108(1), C.R.S. (2020) (“A person commits the crime
of possession of a weapon by a previous offender if the person knowingly
possesses, uses, or carries upon his or her person a firearm . . . subsequent to the
person’s conviction for a felony . . . .” (emphasis added)). In these examples, we have
treated the prior conviction as an element of the substantive offense charged. See
6
People v. McKnight, 626 P.2d 678, 683 (Colo. 1981) (“Evidence of a prior conviction
is an essential element of the offense of escape.”); People v. Fullerton, 525 P.2d 1166,
1167 (Colo. 1974) (“Under the [POWPO statute], the prior conviction does not go
merely to the punishment to be imposed, but rather is an element of the
substantive offense charged.”).
¶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, consistent with how the General Assembly
has treated prior convictions elsewhere in the Criminal Code, the statutory
language and structure it employed to define the offenses here reflect its intent to
treat a defendant’s prior convictions in section 42-4-1301 as a sentence enhancer,
not as elements of separate felony offenses.
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
7
“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
(1998). Indeed, recidivism is “as typical a sentencing factor as one might imagine.”
Id. at 230. 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 (quoting Graham v. West Virginia, 224 U.S. 616, 629 (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 (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 sections 42-4-1301 and -1307 are
weightier than this tradition. Maj. op. ¶ 26. While I agree that the legislature could
choose to make the fact of prior convictions an element of a separate felony offense,
here it plainly has not done so. Thus, if anything, the language employed here by
the legislature only reinforces the traditional understanding of a defendant’s
recidivism as a sentencing factor, not an element of the offense itself.
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 intent to treat the defendant’s
8
prior convictions as a sentence enhancer, not an element of a separate felony
offense.
¶49 The majority points to the collateral consequences associated with a felony
conviction to conclude that failing to treat a defendant’s prior convictions as
elements to be proved to a jury beyond a reasonable doubt risks violating the
Sixth Amendment. Maj. op. ¶¶ 28–29. The majority also observes that the U.S.
Supreme Court has never applied Apprendi’s prior-conviction exception to allow
a judge, instead of a jury, to find a fact that transforms a misdemeanor offense
into a felony. Maj. op. ¶ 30. But in my view, this O’Brien/Castillo factor points in
precisely the opposite direction.
¶50 At the outset, I note that a repeat DUI offender facing a felony conviction
under section 42-4-1301 already enjoys certain procedural protections. As the
majority observes, section 42-4-1301(1)(j) requires the People to set forth the
defendant’s prior convictions in the indictment or information. Maj. op. ¶ 19.
Moreover, as we held in People v. Tafoya, a defendant in custody who faces a
potential felony conviction under the statute is entitled to a preliminary hearing
under section 16-5-301(1), C.R.S. (2020). 2019 CO 13, ¶ 16, 434 P.2d 1193, 1196;
maj. op. ¶ 24. And I agree, as do the People, that such a defendant is entitled to
be tried to a unanimous verdict by a twelve-member jury. § 18-1-406(1), C.R.S.
(2020); maj. op. ¶ 24.
9
¶51 Relatedly, although I conclude that the fact of a prior conviction may be
established for purposes of section 42-4-1301 by a preponderance of the evidence,
it bears emphasis that the prior convictions themselves were subject to
constitutional due process protections. See Jones v. United States, 526 U.S. 227, 249
(1999) (“[U]nlike virtually any other consideration used to enlarge the possible
penalty for an offense, . . . a prior conviction must itself have been established
through procedures satisfying the fair notice, reasonable doubt, and jury trial
guarantees.”); Apprendi, 530 U.S. at 496 (observing that “there is a vast difference
between accepting the validity of a prior judgment of conviction entered in a
proceeding in which the defendant had the right to a jury trial and the right to
require the prosecutor to prove guilt beyond a reasonable doubt, and allowing
the judge to find the required fact under a lesser standard of proof”).
¶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
3Apprendi, 530 U.S. at 490 (holding that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt”
(emphasis added)).
10
treating a defendant’s prior convictions as an element of a separate felony offense
under section 42-4-1301, the majority invites that very risk.
¶53 Apprendi’s prior-conviction exception can be traced back through Jones to
Almendarez-Torres. See Apprendi, 530 U.S. at 476 (quoting Jones, 526 U.S. at 243
n.6); Jones, 526 U.S. at 248–49 (citing Almendarez-Torres, 523 U.S. at 230, 243, 245).
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. There, recognizing that “the introduction of evidence of a
defendant’s prior crimes risks significant prejudice,” the Court concluded that
Congress intended to treat a defendant’s prior convictions as a sentencing factor
and not a separate criminal offense, noting that it did not believe “Congress
would have wanted to create this kind of unfairness in respect to facts that are
almost never contested.” Id. at 235. It appears the Court had this same “risk [of]
unfairness” in mind when it discussed this factor in Castillo. See 530 U.S. at 127
(citing Almendarez-Torres for the potential unfairness of placing the fact of
recidivism before a jury).
¶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 offense—for drinking and
driving—despite the risk of prejudice to the defendant. To the extent defendants
11
anticipate that these prior convictions can be somehow bifurcated from the
remaining elements of the felony offense, that may be wishful thinking. In
Fullerton, a defendant charged with POWPO moved for a bifurcated trial,
“argu[ing] that to impart knowledge of the defendant’s prior record to the jury
would unduly influence a verdict and finding on the issue of possession.”
525 P.2d at 1167. We rejected that contention, holding that, “[b]ecause the
defendant’s prior record was not merely relevant to punishment, but was an
element of the crime charged,” the trial court’s decision to grant a bifurcated trial
“was in excess of its jurisdiction.” Id. at 1168. In so holding, we noted that where
“the issues sought to be tried separately are both elements of the same crime,”
bifurcation “would unduly interfere with the administration of the criminal justice
system.” Id.
¶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
12
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, 531 S.E.2d 64, 65–66 (W. Va. 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 section 42-4-1301 under the factors identified in O’Brien/Castillo,
I conclude that the General Assembly intended to treat a defendant’s prior
convictions as a sentence enhancer. Because the statute does not provide the
applicable burden of proof, such prior convictions may be established by a
preponderance of the evidence. I would affirm the judgment of the court of
appeals upholding Linnebur’s convictions and sentence. Therefore, I respectfully
dissent.
I am authorized to state that JUSTICE SAMOUR joins in this dissent.
13