People v. Dorsey
| Decision Date | 21 October 2021 |
| Docket Number | Court of Appeals No. 18CA2333 |
| Citation | 503 P.3d 145,2021 COA 126 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles K. DORSEY, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith E. O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE JOHNSON
¶ 1 Recently, in People v. Caswell , 2021 COA 111, ¶ 20, ––– P.3d ––––, a division of this court held that, notwithstanding the supreme court's holding in Linnebur v. People , 2020 CO 79M, 476 P.3d 734, a prior conviction under the cruelty to animals statute is a sentence enhancer, not an element required to be proven to a jury beyond a reasonable doubt. The sentence enhancer elevates an animal cruelty conviction for a subsequent offense from a misdemeanor to a felony. We are presented with a similar issue in the context of the offense of failure to register as a sex offender. Relying on the analytical framework from Caswell , we determine for the first time that a prior conviction for failure to register as a sex offender in section 18-3-412.5, C.R.S. 2020, is not an element of the offense for a subsequent violation of that offense but instead a sentence enhancer.
¶ 2 As a result, we conclude that the district court properly found that Charles K. Dorsey (Dorsey) had a prior conviction for failure to register as a sex offender and thus correctly sentenced him for his subsequent failure to register conviction as a class 5 felony. We also address and reject Dorsey's contention that the district court improperly admitted information from a national crime database and, therefore, affirm the judgment of conviction.
¶ 3 In 1997, Dorsey pled guilty to criminal attempt to commit sexual assault in the second degree — a class 5 felony — in Arapahoe County case number 96CR2866. The court sentenced Dorsey to two years in the custody of the Department of Corrections (DOC) and required him to register as a sex offender under section 16-22-103(2), C.R.S. 2020. The sentence also required that he re-register as a sex offender annually within five business days before or after his July 31 birthday.
¶ 4 In 2010, Dorsey was charged with a class 6 felony in Denver County case number 10CR2436 for failing to re-register as a sex offender in violation of section 18-3-412.5. He pled guilty to the offense as a class 1 misdemeanor under section 18-3-412.5(3)(a).
¶ 5 Dorsey next failed to re-register as a sex offender in 2017. Dorsey had re-registered as a sex offender in 2016, and around that time, received notice that his next registration would be due within five business days before or after July 31, 2017.
¶ 6 When the Denver Police Department's sex offender tracking and registration database flagged Dorsey's failure to re-register in the jurisdiction where he had registered in 2016, Detective David Bourgeois (Detective Bourgeois) conducted further investigation to determine whether Dorsey had re-registered in a different jurisdiction or had been arrested between July 26 and August 5, 2017, and therefore was unable to re-register. Following Detective Bourgeois's determination that Dorsey did not register in other jurisdictions or was not arrested during the window mentioned, Dorsey was charged with failure to register as a sex offender (second offense), a class 5 felony.
¶ 7 On appeal, Dorsey argues that (1) the evidence before the jury was insufficient to support his conviction for failure to register (second offense) beyond a reasonable doubt because it did not include his prior conviction; and (2) the district court erred by admitting Exhibit 7 — a report from a national crime database — into evidence.
¶ 8 Dorsey argues that the prosecution failed to carry its burden of proving to a jury, beyond a reasonable doubt, the prior conviction element of the class 5 felony for failure to register (second offense). We disagree.
¶ 9 Dorsey's counsel initially requested that the issue of whether Dorsey had been previously convicted of failure to register be bifurcated from the determination of whether he had failed to register in 2017. Although the court originally agreed to bifurcate the trial, it sua sponte reconsidered its decision. Instead, the court determined that the prior offense was a sentence enhancer to be tried to the court, relying on People v. Schreiber , 226 P.3d 1221 (Colo. App. 2009), and People v. Vigil , 2013 COA 102, 328 P.3d 1066.
¶ 10 Following the jury trial, the prosecution introduced two exhibits to prove Dorsey's prior conviction: (1) a certified impact summary from the DOC for "Charles Kevin Dorsey," which contained three photographs and three sets of fingerprints, tied to three mittimi; and (2) a document showing a 2010 misdemeanor conviction of "Charles Kevin Dorsey" for failure to register as a sex offender. After reviewing these documents, the court found that Dorsey's prior conviction had been proven beyond a reasonable doubt.
¶ 11 "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." Linnebur , ¶ 9. "The General Assembly has plenary authority to define criminal conduct and to establish the elements of criminal liability." Id. The elements of a crime are those aspects "necessary to establish criminal liability." People v. Hopkins , 2013 COA 74, ¶ 8, 328 P.3d 253.
¶ 12 When interpreting a statute, we "interpret its plain language to give full effect to the intent of the General Assembly." People v. Moore , 2021 CO 26, ¶ 25, 485 P.3d 1088. In so doing, we look to the plain and ordinary meanings of words and phrases. Id. "If the plain language of the statute demonstrates a clear legislative intent, we look no further in conducting our analysis." Linnebur , ¶ 9 (quoting Springer v. City & Cnty. of Denver , 13 P.3d 794, 799 (Colo. 2000) ).
¶ 13 When a statute is ambiguous regarding whether a fact is an element of the crime or a sentence enhancer, we look to the "(1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history" to make that determination. Id. at ¶ 10 (quoting United States v. O'Brien , 560 U.S. 218, 225, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) ).
¶ 14 Section 18-3-412.5(2)(a) indicates that a second or subsequent offense for failure to register is a class 5 felony. The relevant statutory provisions state in full:
§ 18-3-412.5 (emphasis added).
¶ 15 Dorsey argues that the fact of his prior conviction for failure to register is part of the sex offender statute's definition of the offense. Although the statute does not explicitly state whether prior convictions are an element of the offense or a sentence enhancer, we conclude that the General Assembly intended to make prior convictions for this particular offense a sentence enhancer.
¶ 16 True, "the General Assembly can make and has made proof of prior convictions an element of crimes." Hopkins , ¶ 15 n.1 ; see also People v. Dist. Ct. , 953 P.2d 184, 189 (Colo. 1998) (). Indeed, recently, in Linnebur , our supreme court held that the three prior convictions for driving under the influence (DUI) are an element of felony DUI that must be charged in the indictment or information and presented to a jury. Hopkins , ¶¶ 18-31.
¶ 17 But Caswell , ¶¶ 17-20, analyzed whether prior convictions are an element of the offense or a penalty enhancer involving the cruelty to animals statute, § 18-9-202, C.R.S. 2020. There, the division concluded that the language and structure of the cruelty to animals statute differs from the felony DUI statute, § 42-4-1301(1)(a), C.R.S. 2020. Caswell , ¶ 17. Specifically, it reasoned that "unlike the prior conviction penalty enhancer provisions of the DUI statutory scheme, which omit the prior convictions required for felony DUI, the prior conviction provision in the animal cruelty statute is included in the subsection outlining penalty and sentencing provisions." Id. In that case the division also determined that unlike the DUI statutory scheme, where the General Assembly requires the prior convictions to be set forth in the charging document, the cruelty to animals statute contains no such requirement. Id. ; see also § 42-4-1301(1)(j).
¶ 18 Our analysis leads us to reach a similar conclusion involving the failure to register statute for three reasons.
¶ 19 First, similar to the statute at issue in Caswell , the structure of the statutory scheme indicates that a prior conviction is a sentence enhancer. Unlike the felony DUI statute or possession of a weapon by a previous offender offense, as examples, the prior...
To continue reading
Request your trial