People v. DeWitt

• Decision Date: 13 October 2011
• Docket Number: No. 10CA1271.,10CA1271.
• Citation: 275 P.3d 728
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. John Raymond DeWITT, Defendant–Appellant.
• Court: Colorado Court of Appeals

275 P.3d 728

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.John Raymond DeWITT, Defendant–Appellant.

No. 10CA1271.

Colorado Court of Appeals, Div. III.

Sept. 15, 2011.Rehearing Denied Oct. 13, 2011.

John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge LOEB.

Defendant, John Raymond DeWitt, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO), pursuant to section 18–12–108(1), C.R.S.2011. We reverse and remand for a new trial.

I. Background

On the morning of September 18, 2009, defendant walked from his apartment to a nearby King Soopers to buy groceries. He paid at a self-checkout cash register, and when he did not receive discounts on certain items, he went to the customer service counter to demand a refund. Defendant yelled at the employees on duty, used profanities, and paced in such a manner that his handgun, worn under his jacket in a holster, was visible. He continued this aggressive behavior for several minutes, prompting one employee to call 911 to report the disturbance.

When the police arrived, they checked defendant's criminal record. They arrested him for POWPO when they learned that he was a twice convicted felon—in 1985, he pleaded guilty to giving false information to a pawnbroker, and in 1988, he pleaded guilty to attempted distribution of a controlled substance.

Defendant was ultimately charged with two POWPO counts and one menacing count based on the King Soopers incident. The menacing count was dismissed on the morning of trial, and defendant was convicted by a jury of the POWPO counts. The trial court sentenced him to a six-month prison term for each count, to run concurrently, and this appeal followed.

II. Constitutional Challenges

Because it is a dispositive issue, we first address defendant's contentions that the POWPO statute is unconstitutional as applied to him because it violates (1) the prohibition against ex post facto laws and (2) due process. We reject these contentions in turn.

A. Preservation

Initially, we reject the People's argument that we should decline to address defendant's as-applied constitutional challenges because he did not raise them in the trial court.

Despite the supreme court's statement in dictum in People v. Cagle, 751 P.2d 614, 619 (Colo.1988), that “[i]t is axiomatic that this court will not consider constitutional issues raised for the first time on appeal,” the supreme court and divisions of this court often review unpreserved claims of constitutional error under a plain error standard. See People v. Greer, 262 P.3d 929, –––– (Colo.App.2011) (J. Jones, J., specially concurring) (collecting cases).

Accordingly, we likewise exercise our discretion to review defendant's as-applied constitutional challenges to the POWPO statute. In doing so, we note that a review at this point in the proceedings will promote efficiency and judicial economy, see Hinojos–Mendoza v. People, 169 P.3d 662, 667 (Colo.2007), and that defendant's challenges do not require further factual development so that they are ripe for review and we are able to properly serve our appellate function. See People v. Devorss, ––– P.3d ––––, ––––, 2011 WL 1195783 (Colo.App.2011); Wood v. Beatrice Foods Co., 813 P.2d 821, 822 (Colo.App.1991) (court addressed ex post facto challenge where all of the facts necessary for resolution of the challenge were undisputed and appeared in the appellate record); cf. People v. Patrick, 772 P.2d 98, 100 (Colo.1989) (“we cannot determine the as-applied constitutionality of a statute based upon an incomplete record of the facts”).

B. Standard of Review

We review the constitutionality of a statute de novo. Hinojos–Mendoza, 169 P.3d at 668; People v. Hicks, 262 P.3d 916, –––– (Colo.App.2011). A statute is presumed to be constitutional, and to succeed in an as-applied challenge, “a defendant has the burden of establishing the unconstitutionality of a statute, as applied, beyond a reasonable doubt.” People v. Gutierrez, 622 P.2d 547, 555 (Colo.1981).

C. Ex Post Facto

Defendant contends the POWPO statute is an ex post facto law as applied to him. We disagree.

Prior to 1994, and at the time defendant was convicted of his two previous felonies, a conviction under the POWPO statute required proof of a prior conviction for burglary, arson, or any felony involving the use of force or violence or the use of a deadly weapon. See Ch. 167, sec. 17, § 18–12–108, 1975 Colo. Sess. Laws 621.

In 1994, the POWPO statute was amended so that proof of any prior felony conviction, violent or not, would sustain a POWPO conviction. Thus, the current version of section 18–12–108(1) provides in pertinent part:

A person commits the crime of [POWPO] if the person knowingly possesses, uses, or carries upon his or her person a firearm ... subsequent to the person's conviction for a felony....

Defendant was charged with two POWPO counts under the amended statute, and his appeal requires us to determine if the statute is an ex post facto law as applied to him because he committed the predicate felony for each count prior to 1994. This is an issue of first impression in Colorado.

The ex post facto prohibitions found in the United States and Colorado Constitutions, see U.S. Const. art. I, § 10; Colo. Const. art. II, § 11, forbid the General Assembly from enacting any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 325–26, 4 Wall. 277, 18 L.Ed. 356 (1866)); accord People v. Billips, 652 P.2d 1060, 1064 (Colo.1982). The prohibitions are designed to assure that laws give “fair warning of their effect” so that individuals may rely on their meaning until they have been explicitly revised. Weaver, 450 U.S. at 28–29, 101 S.Ct. 960. The prohibitions also restrict governmental power by “restraining arbitrary and potentially vindictive legislation.” Id. at 29, 101 S.Ct. 960.

Two elements must be present before a criminal law will be stricken as ex post facto in violation of the federal and state constitutional prohibitions. First, “it must be retrospective, that is, it must apply to events occurring before its enactment,” and second, “it must disadvantage the offender affected by it.” Id.; accord Billips, 652 P.2d at 1064; In re R.B., 815 P.2d 999, 1001 (Colo.App.1991).

As to the first element, a law will be unconstitutionally retrospective if it changes the legal consequences of acts completed before its effective date. Gasper v. Gunter, 851 P.2d 912, 917 (Colo.1993) (citing Weaver, 450 U.S. at 31, 101 S.Ct. 960). A law is not retrospective, however, “merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective.” Billips, 652 P.2d at 1064.

As to the second element, the relevant inquiry is whether the law imposes additional punishment not prescribed when the acts were committed, in other words, “whether the punishment exceeds the penalty originally imposed where the offender has not committed any additional criminal ... infraction.” Gasper, 851 P.2d at 918.

Applying these legal principles, we conclude that the amended POWPO statute as applied to defendant does not violate the constitutional prohibitions against ex post facto laws. The prohibited conduct here—defendant's possession of a firearm—occurred in 2009, well after the 1994 amendment. It does not matter that defendant's predicate felonies occurred before the change in the law, because he was punished for conduct occurring after the change. See Billips, 652 P.2d at 1064; People v. Bastian, 981 P.2d 203, 206 (Colo.App.1998) (no ex post facto violation where one or some of the elements of an offense are committed prior to the effective date of a new statute, but the crime is not completed until after the effective date); see also People v. Dalton, 70 P.3d 517, 520–21 (Colo.App.2002). Thus, by definition, the 1994 amendment to the POWPO statute is not retrospective.

Other courts applying comparable statutes have reached similar conclusions. See, e.g., United States v. Pfeifer, 371 F.3d 430, 436–37 (8th Cir.2004) (so long as the act of possessing a firearm is committed after enactment of a federal statute proscribing possession by a prior offender, there is no ex post facto violation); United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.2001); United States v. Mitchell, 209 F.3d 319, 322–23 (4th Cir.2000); United States v. Brady, 26 F.3d 282, 290–91 (2d Cir.1994); State v. Swartz, 601 N.W.2d 348, 350–51 (Iowa 1999); State v. Peters, 261 Neb. 416, 622 N.W.2d 918, 924–25 (2001) (rejecting an ex post facto challenge to Nebraska's POWPO statute, and noting that “[t]he overwhelming majority of courts ... hold that a conviction under a statute forbidding possession of a firearm by a person convicted of a felony does not violate the Ex Post Facto Clause even when the felony or felonies for which the defendant was convicted took place before the statute was enacted”). The critical factor in each of these decisions (as is the case here) is that the prohibited conduct—possession of a firearm—occurred after enactment of the statute at issue. See Pfeifer, 371 F.3d at 436.

The cases on which defendant relies, particularly Weaver and R.B., are, therefore, distinguishable because the defendants in those cases were punished under a new law for conduct completed entirely before the new law took effect.

Because the amended POWPO statute is not...