Jacob Woodside Rule Discharged en banc JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT JUSTICE HOOD JUSTICE GABRIEL JUSTICE

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2023 CO 25Supreme Court Case No. 23SA30
Original Proceeding Pursuant to C.A.R. 21
Weld County Court Case No. 21T5286
Honorable John Briggs, Judge
In Re
Plaintiff:
The People of the State of Colorado,
v.
Defendant:
Jacob Woodside.
Rule Discharged
en banc
May 22, 2023
Attorneys for Defendant:
Megan A. Ring, Public Defender
Andrew Sidley-MacKie, Deputy Public Defender
Greeley, Colorado
Attorneys for Respondent Weld County Court:
Philip J. Weiser, Attorney General
Rachel Lieb, Assistant Attorney General
Emily B. Buckley, Senior Assistant Attorney General
Denver, Colorado
No appearance on behalf of Plaintiff.
JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE
BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE SAMOUR and
JUSTICE BERKENKOTTER joined.
JUSTICE MÁRQUEZ dissented.
2
JUSTICE HART delivered the Opinion of the Court.
¶1 People who are convicted for drug- or alcohol-related traffic offenses in
Colorado are subject to progressively more serious penalties upon each additional
conviction. Section 42-4-1307(5)(a), C.R.S. (2022), provides the penalties for a
second offense of driving under the influence (“DUI”), DUI per se, or driving
while ability impaired (“DWAI”). This provision applies to those defendants
“who, at the time of sentencing, ha[ve] a prior conviction” for certain related
offenses. Id.¶2 Jacob Woodside committed two alcohol-related offenses in relatively quick
succession. First, he pled guilty to the later-committed offense, which was
sentenced as his first despite having occurred second in time. Afterward, he pled
guilty to the earlier-committed offense and argued that it too should be sentenced
as his first. The trial court disagreed, finding that Woodside’s prior conviction
subjected him to second-offense penalties because “at the time of sentencing” he
had a relevant “prior conviction,” despite the order in which the offenses occurred.
¶3 Woodside filed a petition to show cause under C.A.R. 21, which we granted.
We now hold that the plain language of section 42-4-1307(5)(a) imposes
second-offense penalties when a defendant has a relevant prior conviction; it does
not require that conduct underlying a second-offense sentence pre-date conduct
underlying the first-offense sentence. Accordingly, we discharge the rule.
3
I. Facts and Procedural History
¶4 On August 22, 2021, Woodside was charged in Weld County with DUI,
§ 42-4-1301(1)(a), C.R.S. (2022), for an offense committed that day. On
November 11, 2021, Woodside was again charged with DUI for an offense
committed that day—this time in Grand County.
¶5 Though Woodside’s Grand County offense came second, the case resolved
first. On March 1, 2022, Woodside pled guilty in Grand County to DWAI,
§ 42-4-1301(1)(b). The plea agreement stipulated that this was Woodside’s first
offense, and he was sentenced to one year of probation on April 26, 2022.
¶6 Meanwhile, the Weld County case remained pending. Through counsel,
Woodside requested at least two continuances in Weld County to allow the Grand
County case to resolve. On June 21, 2022, Woodside entered a plea agreement
under which he again pled guilty to DWAI as a first offense.
¶7 At a July 26, 2022 sentencing hearing, the parties disputed whether the Weld
County DWAI should be sentenced as a second offense. The court ultimately
concluded that although Woodside committed the conduct underlying the Weld
County case first, his Grand County conviction nonetheless was a “prior
conviction” existing “at the time of sentencing.” The court therefore determined
that it would sentence the Weld County DWAI as a second offense and set the case
4
over for a status conference to allow Woodside and his counsel to discuss whether
to withdraw his guilty plea and proceed to trial.
¶8 Woodside then filed this petition pursuant to C.A.R. 21, which we granted.
II. Jurisdiction
¶9 Exercise of this court’s original jurisdiction under C.A.R. 21 is wholly
discretionary. C.A.R. 21(a)(1). Relief pursuant to C.A.R. 21 is “an extraordinary
remedy that is limited in both purpose and availability.” People in Int. of T.T.,
2019 CO 54, ¶ 16, 442 P.3d 851, 855–56 (quoting Villas at Highland Park Homeowners
Ass’n v. Villas at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151). We
have found such relief appropriate “when an appellate remedy would be
inadequate, when a party may otherwise suffer irreparable harm, [or] when a
petition raises ‘issues of significant public importance that we have not yet
considered.’” People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748 (citations omitted)
(quoting Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001)).
¶10 Exercise of our original jurisdiction under C.A.R. 21 is warranted here. First,
neither this court nor the court of appeals has addressed whether a second-offense
sentence for intoxicated driving can be based on conduct pre-dating the first
offense under section 42-4-1307(5)(a). Second, if it cannot, the trial court’s decision
to the contrary would cause irreparable harm for which an appellate remedy
would be inadequate.
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¶11 We now turn to the merits of the petition.
III. Analysis
¶12 We review issues of statutory interpretation de novo. UMB Bank, N.A.
v. Landmark Towers Ass’n, 2017 CO 107, ¶ 22, 408 P.3d 836, 840. Our primary aim
is to “effectuate the legislature’s intent.” Nieto v. Clark’s Mkt. Inc., 2021 CO 48, ¶ 12,
488 P.3d 1140, 1143. In so doing, “we look to the entire statutory scheme in order
to give consistent, harmonious, and sensible effect to all of its parts, and we apply
words and phrases in accordance with their plain and ordinary meanings.”
Blooming Terrace No. 1, LLC v. KH Blake St., LLC, 2019 CO 58, ¶ 11, 444 P.3d 749, 752
(quoting UMB Bank, ¶ 22, 408 P.3d at 840). If statutory language is clear and
unambiguous, “we apply it as written—venturing no further.” Id.¶13 Section 42-4-1301 provides for various drug- and alcohol-related driving
offenses, including DUI and DWAI. § 42-4-1301(1)(b). Section 42-4-1307 sets out
the penalties for violations of section 42-4-1301. For a first offense, a defendant is
subject to between 2 and 180 days in jail, which may be suspended on certain
conditions; a fine, which may be suspended; and at least twenty-four hours of
community service. § 42-4-1307(4)(a)(I)–(III). Up to two years of probation is also
within the sentencing court’s discretion. § 42-4-1307(4)(c).
¶14 A second offense carries greater penalties—between ten days and a year in
jail; a higher fine, which may still be suspended; at least forty-eight hours of
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community service; and one additional year of jail suspended pending two years
of probation. § 42-4-1307(5)(a)(I)–(IV). Second-offense penalties apply to
a person who is convicted of DUI, DUI per se, or DWAI who, at the
time of sentencing, has a prior conviction of DUI, DUI per se, DWAI,
vehicular homicide . . . vehicular assault . . . aggravated driving with
a revoked license . . . or driving while the person’s driver’s license was
under restraint[.]
§ 42-4-1307(5)(a) (emphasis added). “Conviction” is defined in the statute to
include “a plea of guilty . . . that is accepted by the court.” § 42-4-1307(2)(b).
¶15 By this plain language, then, a defendant is subject to second-offense
penalties if at the time of sentencing they have already pled guilty to another
DWAI and that plea has been accepted by the court.
¶16 Woodside concedes that a “second offense” under the statute requires only
a “prior conviction” existing “at the time of sentencing.” He argues, however, that
for a “conviction” to be “prior” it must be for conduct pre-dating the second
offense.
¶17 But nowhere does the plain language of section 42-4-1307(5)(a) contemplate
the timing of the underlying conduct. Certainly, the word “prior” incorporates
some temporal consideration. See, e.g., Prior, Black’s Law Dictionary (11th ed.
2019) (defining “prior” as “[p]receding in time or order”). But as used in
section 42-4-1307(5)(a), “prior” modifies “conviction,” which the statute in turn
defines to include an accepted guilty plea.
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¶18 To adopt Woodside’s definition of “prior” would require us to read a slew
of words into the statute that the legislature could have, but did not, include.
Indeed, other subsections of the statute do contemplate the timing of the
underlying conduct—but with notably different language. Take, for example,
section 42-4-1307(5)(b), which provides additional considerations for
second-offense sentencing. Under that subsection, a court’s discretion to employ
sentencing alternatives is curbed “[i]f a person is convicted of DUI, DUI per se, or
DWAI and the violation occurred less than five years after the date of a previous violation
for which the person was convicted.” § 42-4-1307(5)(b) (emphasis added).
¶19 Similarly, section 42-4-1307(6)(a) provides for third-offense penalties, which
apply when a person “has two or more prior convictions” for a related offense.
Later, section 42-4-1307(6)(c) provides for additional conditions a court may
impose, which “appl[y] only if” (1) “[a]t the time of sentencing the person has two
prior convictions” for relevant offenses and (2) “[t]he first of the person’s two prior
convictions was based on a violation that occurred not more than seven years before the
violation for which the person is being sentenced.” § 42-4-1307(6)(c)(I)–(II) (emphases
added).
¶20 Both section 42-4-1307(5)(b) and section 42-4-1307(6)(c) plainly differentiate
between “convictions” and the “violations” underlying them and incorporate a
temporal requirement that certain “violations” pre-date others. Nowhere in
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section 42-4-1307(5)(a), however, is there mention of the violations underlying
prior convictions or a similar temporal requirement. This provision refers only to
“convictions”—a word that is explicitly defined in the statute—again, with no
mention of the underlying “violation.” See § 42-4-1307(2)(b). Instead, the plain
language of section 42-4-1307(5)(a) incorporates only one temporal requirement:
that Woodside’s accepted guilty plea—his conviction—in Grand County pre-date
his sentencing in Weld County.
¶21 Not only is Woodside’s proposed construction of the statute contrary to the
plain language adopted by the General Assembly, it would also lead to absurd
results, as this case itself demonstrates. Woodside is asserting that having pled
guilty to two distinct incidents of intoxicated driving, he should be sentenced for
two first offenses. But he did not commit two first offenses; he committed two
offenses.
¶22 Woodside’s interpretation would incentivize gamesmanship by allowing
defendants to forestall resolution of an earlier case while resolving a later one to
get first-offense treatment in both. Worse still, it would have difficult downstream
effects. What would happen to a defendant who, having been sentenced for two
first offenses, commits another DWAI? Should they be sentenced for a second
offense, since both prior convictions were for first offenses? Or should they be
9
sentenced for a third offense, despite never having been sentenced for a second?
Hewing to the plain language of section 42-4-1307(5)(a) avoids such complications.
¶23 Woodside argues that if his Weld County DWAI is sentenced as a second
offense, he will essentially be punished twice for his conduct in Grand County in
violation of the prohibition against double jeopardy. But Woodside cannot
identify what the second punishment would be. He was sentenced once for a first
intoxicated driving offense in Grand County, and he has been sentenced once for
a second intoxicated driving offense in Weld County. And he has pled guilty to
two such offenses.
IV. Conclusion
¶24 The plain language of section 42-4-1307(5)(a) does not require that conduct
underlying a second offense pre-date conduct underlying the first. It requires only
that a defendant have a relevant prior conviction at the time of sentencing for the
second offense. The trial court therefore properly determined that Woodside’s
Weld County DWAI, though based on conduct pre-dating his Grand County
DWAI, is a second offense subject to the penalties laid out in
section 42-4-1307(5)(a). Accordingly, we discharge the rule to show cause.
JUSTICE MÁRQUEZ dissented.
10
JUSTICE MÁRQUEZ, dissenting.
¶25 More than forty years ago, this court recognized “[t]he general rule . . . that
penalty enhancement statutes for repeat offenders apply only if the presently
charged offense was committed after there had been a conviction of any offenses
sought to be used as a basis for the penalty enhancement.” People v. Nees, 615 P.2d
690, 693 (Colo. 1980). Indeed, recidivist sentencing schemes avoid double
jeopardy concerns precisely because the enhanced penalties for subsequent
offenses do not constitute an “additional penalty for the earlier crimes,” but instead
reflect “a stiffened penalty for the latest crime” due to the repetitive nature of that
later offense. Monge v. California, 524 U.S. 721, 728 (1998) (emphases added)
(quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). With these principles in mind,
section 42-4-1307, C.R.S. (2022), is entirely constitutional to the extent that it
imposes greater penalties for a defendant’s subsequent drug- or alcohol-related
traffic offenses. Accordingly, a “prior conviction” under this scheme necessarily
refers to a conviction for an offense committed before the “subsequent” offense
being sentenced as recidivist. That is the point of such a sentencing scheme, and
this logical understanding is reflected in the language and structure of
section 42-4-1307. The majority’s interpretation of the statute nevertheless ignores
the sequence of a defendant’s offenses and erroneously permits a defendant’s first
offense to be punished as though it were the defendant’s second or subsequent
1
offense. Indeed, depending on the sequence of a defendant’s convictions and
sentences, the majority’s interpretation could result in a defendant with two
offenses being punished twice for a “second” offense without ever being sentenced
for a first offense. Because the majority’s interpretation disregards the plain
language of section 42-4-1307, ignores traditional sentencing principles, and raises
constitutional concerns, I respectfully dissent.
I. Statutory Interpretation
¶26 As the majority correctly states, our primary aim with statutory
interpretation is to give effect to legislative intent. Maj. op. ¶ 12. We give words
and phrases their plain and ordinary meanings, and we look to the statutory
scheme as a whole to give consistent, harmonious, and sensible effect to all its
parts. See id.¶27 Section 42-4-1307 sets forth comprehensive penalties for traffic offenses
involving drugs or alcohol. The statute prescribes penalties for first offenses in
subsection (3) (“First offenses—DUI and DUI per se”) and subsection (4) (“First
offenses—DWAI”). §§ 42-4-1307(3)–(4). It then imposes progressively harsher
penalties for a defendant’s second and subsequent offenses. Second offenses are
addressed in subsection (5) (“Second offenses”); third and subsequent offenses are
addressed in subsection (6) (“Third and subsequent offenses”); and felony offenses
are addressed in subsection (6.5) (“Felony offenses”). §§ 42-4-1307(5)–(6.5).
2
¶28 Unsurprisingly, the provisions that impose penalties for second and
subsequent offenses refer to a defendant’s “prior convictions.” Thus, for example,
a defendant may be punished for a “second offense” if the defendant, “at the time
of sentencing, has a prior conviction of DUI, DUI per se, or DWAI.”
§ 42-4-1307(5)(a). Similarly, a defendant may be punished for a “[t]hird or
subsequent offense” if the defendant, “at the time of sentencing, has two or more
prior convictions” of an alcohol-related traffic offense. § 42-4-1307(6)(a). The
question before us is whether the term “prior conviction” under this statutory
scheme refers to a conviction for an offense committed before the (subsequent)
offense being sentenced as recidivist. The answer is yes.
¶29 First, the term “prior conviction” is generally used interchangeably with the
term “prior offense.” See Prior conviction, Black’s Law Dictionary (11th ed. 2019)
(describing “prior conviction” as another term for “prior offense; prior crime;
antecedent crime; antecedent offense”); see also People v. Porter, 2015 CO 34, ¶ 26,
348 P.3d 922, 928 (referring interchangeably to “prior conviction[]” and “previous
offense”).
¶30 Second, as described above, the structure and organization of
section 42-4-1307 contemplate offenses that occur sequentially; that is, the
recidivist sentencing scheme authorizes progressively harsher punishment for
later, “subsequent” offenses. In short, chronology matters.
3
¶31 Third, despite acknowledging that we must “look to the entire statutory
scheme in order to give consistent, harmonious, and sensible effect to all of its
parts,” Maj. op. ¶ 12, the majority fails to read section 42-4-1307 as a whole.
Although subsection (5)(a) does not expressly define the necessary sequence of
offenses, the majority concedes that other provisions in the statute do contemplate
the timing of the underlying conduct. Maj. op. ¶ 18. For example, with regard to
sentencing for a second offense, section 42-4-1307(5)(b) makes clear that the court
has no discretion to employ certain sentencing alternatives if the person is
convicted of a second offense “and the violation occurred less than five years after
the date of a previous violation for which the person was convicted” of a similar
alcohol-related offense. § 42-4-1307(5)(b). This provision, which directly follows
subsection (a) referring to the defendant’s “prior conviction,” shows that the
“violation” underlying the prior conviction must predate the second offense. In
other words, I cannot see how the reference to “prior conviction” in
subsection (5)(a) means anything other than “a previous violation for which the
person was convicted” in subsection (5)(b).
¶32 The provisions regarding sentencing for third and subsequent offenses are
even more clear. In detailing the punishments authorized for such offenses,
section 42-4-1307(6)(c)(II) provides that the court may require a defendant to
participate in alcohol treatment as a condition of probation if “[t]he first of the
4
person’s two prior convictions was based on a violation that occurred not more than seven
years before the violation for which the person is being sentenced.” § 42-4-1307(6)(c)(II)
(emphasis added). This language establishes that the “prior convictions” in this
sentencing scheme concern violations that predate the offense for which the
person is being sentenced as a recidivist. The majority’s reading of
subsection (5)(a) in isolation, without considering the remainder of
section 42-4-1307, defies traditional canons of statutory construction.
¶33 The legislative history of section 42-4-1307(5)(a) further bolsters my
understanding of the scheme. As introduced, H.B. 10-1347 evinced clear
legislative intent to apply second-offense penalties to defendants for a drug- or
alcohol-related violation that occurred after an earlier violation:
(5) Second offenses. (a) EXCEPT AS OTHERWISE PROVIDED IN
SUBSECTION (6) OF THIS SECTION, A PERSON WHO IS
CONVICTED OF DUI, . . . WHICH VIOLATION OCCURRED AFTER
THE DATE OF A PREVIOUS VIOLATION FOR WHICH THE
PERSON HAS BEEN CONVICTED OF DUI . . . SHALL BE
PUNISHED BY . . . .
H.B. 10-1347, 67th Gen. Assemb., 2nd Sess. (text of the bill as introduced in the
House Judiciary Committee (emphasis added)). The italicized language in the
original bill, “which violation occurred after the date of a previous violation for which the
person has been convicted” parallels the language discussed above in
subsections (5)(b) and (6)(c)(II) regarding the sequence of violations and
corresponding convictions. In an amendment, the legislature replaced this
5
language with, “who, at the time of sentencing, has a prior conviction.” See
Amendment L.005 to H.B. 10-1347, 67th Gen. Assemb., 2nd Sess. (Mar. 11, 2010).
The bill’s sponsor explained that the amendment merely “rewords a little bit how
we describe a second offense or a third offense”—and was “not a substantive
change.” Hearing on H.B. 10-1347 before the H. Judiciary Comm., 67th Gen.
Assemb., 2nd Sess. (Mar. 11, 2010) (emphasis added). In sum, the plain language,
statutory structure, and legislative history of section 42-4-1307 all point to
legislative intent to treat a “prior conviction” as a conviction for a violation
committed before the offense being sentenced as recidivist.
II. Double Jeopardy
¶34 In addition to disregarding the plain language of the statute, the majority’s
interpretation raises constitutional concerns because it permits a court to sentence
a defendant’s first offense more harshly as a second or subsequent offense based
on conduct committed after the offense for which the defendant is being
sentenced. Maj. op. ¶ 3.
¶35 The Double Jeopardy Clauses in the United States and Colorado
Constitutions protect defendants from multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977); Porter, ¶ 9, 348 P.3d at 924; see also U.S.
Const. amend. V (“[N]or shall any person be subject for the same offence to be
6
twice put in jeopardy of life or limb . . . .”);1 Colo. Const. art. II, § 18 (“[N]or shall
any person be twice put in jeopardy for the same offense.”).
¶36 An enhanced sentence for recidivist conduct does not violate double
jeopardy principles because it “penaliz[es] only the last offense committed by the
defendant.” Monge, 524 U.S. at 728 (emphasis added) (quoting Nichols v. United
States, 511 U.S. 738, 747 (1994)). In other words, a recidivist sentencing statute
“do[es] not change the penalty imposed for the earlier conviction.” Nichols,
511 U.S. at 747. Rather, it enacts “a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because a repetitive one.” Gryger, 334 U.S. at
732 (emphasis added). Said another way, recidivism-based sentence
enhancements are constitutional because they increase a defendant’s sentence
based on “the manner in which [the defendant] committed the crime of
conviction.” Monge, 524 U.S. at 728 (alteration in original) (quoting United States v.
Watts, 519 U.S. 148, 154 (1997)).
¶37 Thus, while it is permissible to impose greater penalties for second and
subsequent drug- or alcohol-related traffic offenses, the majority’s interpretation
1 The Double Jeopardy Clause found in the Fifth Amendment is applicable to the
states through the Due Process Clause of the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784, 794 (1969).
7
of section 42-4-1307(5)(a) permits the imposition of greater, subsequent-offense
penalties on a defendant’s first offense. See Maj. op. ¶ 14 (acknowledging that a
second offense “carries greater penalties” including a higher fine, additional jail
time, and more hours of community service).
¶38 This case illustrates the constitutional flaw in the majority’s interpretation.
Certainly Woodside’s multiple offenses could have authorized sentencing as a
recidivist—for his second offense in Grand County. But none of the constitutional
justifications for imposing the second-offense penalties apply to Woodside’s Weld
County offense. We cannot say that “the manner in which [Woodside] committed”
the Weld County offense justified an increased penalty. See Watts, 519 U.S. at 154.
Specifically, we cannot say that the Weld County offense deserved “a stiffened
penalty” because it was a “repetitive one.” See Gryger, 334 U.S. at 732. The Weld
County offense was Woodside’s first; the Grand County offense had yet to occur.
In short, none of the rationales that save recidivism-based sentence enhancement
schemes from violating double jeopardy principles apply in this case.
¶39 Thus, I disagree with the majority’s conclusion that there is no double
jeopardy problem in this case. And so, I disagree with the majority’s interpretation
of section 42-4-1307(5)(a), which sanctions the above-described double jeopardy
violation. See McCoy v. People, 2019 CO 44, ¶ 50, 442 P.3d 379, 391 (stating we must
8
“avoid[] interpreting the statute in such a way as to lead to . . . unconstitutional
results”).
III. Practical Concerns
¶40 According to the majority, Woodside’s interpretation would “lead to absurd
results” and “incentivize gamesmanship by allowing defendants to forestall
resolution of an earlier case while resolving a later one to get first-offense
treatment in both.” Maj. op. ¶¶ 21–22. But any potential gamesmanship feared
by the majority can be avoided. In this case, for example, the judge presiding over
the Grand County offense could have delayed sentencing until after the resolution
of the Weld County offense. Then, Woodside would have been sentenced as a first
offender for the Weld County offense and as a recidivist for his second offense in
Grand County—a perfectly constitutional outcome.
¶41 Meanwhile, suggesting possible gamesmanship by defendants, the majority
construes section 42-4-1307 to permit unconstitutional results. While the practical
and logistical challenges that arise in multiple offense/multiple jurisdiction
scenarios like these are real, they cannot trump the constitution.
IV. Conclusion
¶42 Because the majority’s interpretation of section 42-4-1307(5)(a) is contrary to
the statute’s plain language and legislative history, ignores traditional sentencing
principles, and raises significant constitutional concerns, I respectfully dissent.
9