Gimmy v. People

• Decision Date: 29 March 1982
• Docket Number: Nos. 80SC298,80SC355 and 81SC125,80SC252,s. 80SC298
• Parties: Jerry M. GIMMY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Tere Lee JOHNSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. James C. GERMANY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Benny Lee HODGE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 262

645 P.2d 262

Jerry M. GIMMY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Tere Lee JOHNSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

James C. GERMANY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Benny Lee HODGE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 80SC298, 80SC252, 80SC355 and 81SC125.

Supreme Court of Colorado, En Banc.

March 29, 1982.

Rehearing Denied May 10, 1982.

J. Gregory Walta, Colorado State Public Defender, Robert Breindel, Deputy State Public Defender, Denver, for petitioners Gimmy and Johnson.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for respondent State in all cases.

Marks & Olom, Jonathan L. Olom, Denver, for petitioner Germany.

Morgan Rumler, Asst. Atty. Gen., Denver, for respondent State in Nos. 80SC355 and 81SC125.

Norman R. Mueller, Special Deputy Public Defender, Denver, for petitioner Hodge.

DUBOFSKY, Justice.

We granted certiorari in People v. Gimmy, Colo.App., 620 P.2d 42 (1980); People v. Johnson, Colo.App., Nos. 78 CA 159 and 78 CA 160 (1980); People v. Germany, 41 Colo.App. 304, 586 P.2d 1006 (1978); and Hodge v. People, Colo.App., (1981) and consolidated the cases to consider whether, when a defendant enters pleas of guilty to two or more felonies on the same day, each of the felonies constitutes a separate conviction under the Habitual Criminal Act, sections 16-13-101 et seq., C.R.S.1973 (1978 Repl. Vol. 8; current version in 1981 Supp.); and the related question, whether, if the second felony is committed prior to conviction for the first felony, the convictions for both offenses may be counted for habitual criminal purposes. The Court of Appeals concluded that the legislative purpose of section 16-13-101 was to punish more severely those who show a propensity toward repeated criminal conduct without regard to an opportunity between convictions for the defendant to reform. Because the clear language of the statute supports the Court of Appeals' resolution of these cases, we affirm.

Two of the cases raise additional evidentiary issues. In Johnson v. People, the defendant questions the admissibility of a confession allegedly obtained by promises and inducements, and in Hodge v. People, the defendant questions the admissibility of both in-court and out-of-court identifications of him by two witnesses. On these issues, also, we find no error, and affirm the decisions in the Court of Appeals.

In November, 1978, in the El Paso County District Court, a jury found Jerry Michael Gimmy guilty of aggravated robbery. The jury additionally found that he previously had been convicted of three felonies and, therefore, was subject to sentencing as an habitual criminal. The three prior felonies consisted of forgery, committed on February 9, 1971, with conviction on April 2, 1971, and sentence and entry of judgment on May 20, 1971; aggravated robbery and robbery, committed on April 24, 1973, conviction on September 25, 1973, and sentence and entry of judgment on December 14, 1973; and welfare fraud, committed between October, 1972 and March, 1973, conviction on September 25, 1973, and sentence and entry of judgment on December 14, 1973. The district court sentenced him as an habitual criminal to life imprisonment.

In November, 1977, in the Larimer County District Court, a jury found Tere Lee Johnson guilty of first-degree burglary second-degree assault, second-degree burglary and theft in one criminal action, and of second-degree burglary in another. In both actions the jury found that he previously had been convicted of four felonies and was subject to sentencing as an habitual criminal. The four prior felonies were theft, committed on December 28, 1975; second-degree burglary committed on January 5, 1976; second-degree burglary committed on January 28, 1976; and joy-riding committed on January 28, 1976. Johnson pled guilty to the four felony charges on July 12, 1976. He was sentenced and judgment was entered against him for all four on August 17, 1976. The district court sentenced him as an habitual criminal to two concurrent life sentences.

In December, 1979, in Denver District Court, a jury found James C. Germany guilty of second-degree burglary. After the jury returned the burglary verdict, Germany admitted that he had been convicted of six prior felonies and pled guilty to six habitual criminal counts. The prosecutor determined a life sentence would be excessive in this case, and dismissed four of the habitual counts. The defendant's prior convictions for third-degree burglary, committed on April 1, 1974, and second-degree forgery, committed on July 18, 1974 remained as habitual criminal counts. The defendant pled guilty and had judgment entered against him for the burglary charge on July 22, 1974, and for the forgery charge on January 10, 1975. The district court sentenced him as an habitual criminal to a term of not less than twenty-five years nor more than twenty-five years and one day.

In April, 1979, in Denver District Court, a jury found Benny Lee Hodge guilty of aggravated robbery; the jury also found that he had been convicted previously of three felonies and was subject to sentencing as an habitual criminal. The prior felonies were possession of narcotic drugs, committed on November 16, 1972, for which the defendant entered a plea of guilty and had judgment entered against him on June 21, 1973; second-degree burglary, committed on November 23, 1972, guilty plea and judgment entered on July 11, 1973; and second-degree burglary, committed on November 25, 1975, guilty plea and judgment entered on March 10, 1976. The district court sentenced him as an habitual criminal to life imprisonment.

I.

At the time these cases arose, section 16-13-101, C.R.S.1973 provided in pertinent part:

(1) Every person convicted in this state of any felony for which the maximum penalty prescribed by law exceeds five years who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony shall be adjudged an habitual criminal and shall be punished by confinement in the state penitentiary for a term of not less than twenty-five years nor more than fifty years.

(2) Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished by imprisonment in the state penitentiary for the term of his or her natural life.... ¹

All four defendants argue that section 16-13-101 should be read to require that each of the crimes on which the habitual criminal charges are based be committed sequentially; in other words, that the second of the predicate crimes be committed after commission and conviction of the first crime, the third be committed after commission and conviction of the second, and so on. Defendants Germany and Hodge contend that their habitual criminal convictions violate the requirement that each predicate offense be committed in sequence because each committed his second offense before being convicted of the first. Defendants Gimmy and Johnson allege error because each was convicted and had judgment entered against him for more than one crime on the same day. The latter two also contend that their entry of guilty pleas to multiple offenses during the same proceeding does not satisfy the requirement of section 16-13-101 that the predicate convictions be on "charges separately brought and tried."

In support of their contention that the predicate felonies must be committed in sequence, the defendants rely on our decision in People v. Nees, Colo., 615 P.2d 690 (1980), in which we read the "previously convicted" language of the habitual criminal statute to impose a requirement that the convictions of the predicate offenses occur prior to the commission of the offense subject to the habitual criminal penalty enhancement. We concluded in Nees that it was "improper for the trial court to have allowed convictions which were sustained after the commission of the subject crime to be the basis for habitual criminal counts." 615 P.2d at 693.

Our interpretation of section 16-13-101 in Nees was based in part on the general principle that an ambiguous statute must be narrowly construed in favor of the accused. Smalley v. People, 134 Colo. 360, 304 P.2d 902 (1956). We also noted that the legislative policy of the statute is to punish repeat offenders, People v. District Court, 192 Colo. 375, 559 P.2d 235 (1977), and that policy would not be furthered by a construction of the statute which allowed enhanced punishment for convictions not in existence at the time the subject offense was committed.

The principles upon which we based our conclusion in Nees do not compel the same result in the cases presently before us. The defendants here do not allege statutory ambiguity-nor is any present, given our clarifying construction in Nees that "previously convicted" means that the convictions upon which the habitual criminal counts are based must be "previous" to the commission of the present offense. Moreover, the statute contains no language which implies that each predicate crime be committed in seriatim. A rule of statutory construction for ambiguous language is inappropriate where, as here, there is no ambiguous...