People v. Porter

Decision Date26 May 2015
Docket NumberSupreme Court Case No. 13SC838
PartiesThe PEOPLE of the State of Colorado, Petitioner v. Reginald Marcus PORTER, Respondent
CourtColorado Supreme Court

Attorneys for Petitioner: Peter A. Weir, District Attorney, First Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado

Attorney for Respondent: Robert P. Borquez Denver, Colorado

En Banc


JUSTICE HOOD delivered the Opinion of the Court.

¶ 1 We granted certiorari in this case to resolve a split of authority between divisions of the court of appeals regarding the following issue: Does double jeopardy bar a new habitual criminal sentencing hearing when the trial court erroneously dismisses the habitual counts before the prosecution presents any evidence as to those counts?

¶ 2 The habitual criminal statute creates two separate phases of trial—one on the substantive counts (for which a defendant may request a jury), and one concerning habitual criminality (over which a judge must preside). In the case at hand, the court of appeals relied on our holding in People v. Quintana, 634 P.2d 413 (Colo.1981), to conclude that jeopardy attached during the substantive phase of the defendant's trial and carried through the habitual phase. It therefore held that jeopardy precluded the trial court from adjudicating the defendant's habitual counts on remand. We now reverse that portion of the court of appeals' opinion.

¶ 3 Since we decided Quintana, the United States Supreme Court has held that federal constitutional double jeopardy protections do not apply to habitual criminal proceedings. See Monge v. California, 524 U.S. 721, 734, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998). This case invites us to assess the continued vitality of Quintana. After carefully examining state and federal precedent following the Supreme Court's pronouncement in Monge, we conclude that circumstances have changed such that we should revisit—and overrule—Quintana .

¶ 4 We hold that Colorado double jeopardy law does not apply to noncapital sentencing proceedings. Accordingly, double jeopardy does not bar trial of the defendant's habitual counts in this case.

I. Facts and Procedural History

¶ 5 In 2002, Reginald Marcus Porter robbed and attempted to sexually assault a casino worker. He then tried to evade capture during a police chase. Based on these events, the prosecution charged Porter with two counts of first degree burglary and one count each of aggravated motor vehicle theft, attempted sexual assault, aggravated robbery, vehicular eluding, and third degree assault. The prosecution later added habitual counts. A jury found Porter guilty of all the substantive charges. The trial court adjudicated him a habitual offender. Porter appealed, and the court of appeals reversed the convictions, for reasons irrelevant now, and remanded for a new trial on all counts.

¶ 6 At his second trial, Porter waived his right to a jury, and the court found him guilty of most of the substantive charges.1 Before the habitual phase, Porter moved to dismiss the habitual counts because he claimed the convictions on which they were predicated had been entered without jurisdiction. Specifically, Porter contended that the predicate convictions followed the improper transfer of those cases from the juvenile court to the district court. The trial court agreed and dismissed the habitual counts, without taking any evidence as to those counts. The prosecution appealed.

¶ 7 The court of appeals concluded, in pertinent part, that Colorado double jeopardy law precluded a new habitual criminal sentencing hearing.2 The court relied on our decision in Quintana in holding that “jeopardy attached for Porter's habitual criminal counts” “when the first prosecution witness was sworn in at his bench trial.” People v. Porter, 2013 COA 130, ¶ 42, ––– P.3d ––––. In doing so, the court of appeals distinguished, and disagreed with, another division's published opinion in People v. Barnum, 217 P.3d 908 (Colo.App.2009). Porter, ¶ 38. We now resolve this split of authority.

II. Analysis
A. Standard of Review

¶ 8 We review this question of law de novo. See People v. Melillo, 25 P.3d 769, 777 (Colo.2001).

B. Double Jeopardy Law

¶ 9 Under the Double Jeopardy Clauses of the United States and Colorado Constitutions, the State cannot punish a person for the same offense twice. U.S. Const. amend. V ([N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb....”);3 Colo. Const. art. 2, § 18 (“No person shall ... be twice put in jeopardy for the same offense.”). This constitutional guarantee prevents both a second prosecution for the same offense after acquittal or conviction and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). For a defendant to show a violation of his constitutional right to be free from double jeopardy, jeopardy must have attached at the first proceeding, that proceeding must have concluded, and the defendant must have been exposed to a second, or double, jeopardy. See, e.g., People v. Serravo, 823 P.2d 128, 141–42 (Colo.1992) ; People v. Paulsen, 198 Colo. 458, 601 P.2d 634, 636 (Colo.1979). Jeopardy attaches when the jury is sworn during a jury trial, when the first prosecution witness is sworn during a bench trial, or when the court has accepted a guilty plea. See § 18–1–301(1), C.R.S. (2014); Jeffrey v. Dist. Court, 626 P.2d 631, 636 (Colo.1981).

¶ 10 Historically, the United States Supreme Court has “resisted attempts” to extend double jeopardy protections to sentencing proceedings. Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). The Court has reasoned that [t]he imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed.” Id. ; see also Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (explaining that repeat-offender laws “penaliz[e] only the last offense committed by the defendant (internal quotation marks omitted)). Rather than viewing an enhanced penalty for recidivism “as either a new jeopardy or additional penalty for the earlier crimes,” the Court has explained that it is only “a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948).

¶ 11 Despite this, the Court held in Bullington that double jeopardy prohibited the trial court from sentencing a defendant to death when the defendant had originally been sentenced to life imprisonment under a state's bifurcated guilt and penalty proceedings. Bullington, 451 U.S. at 446, 101 S.Ct. 1852. It reasoned that [t]he presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.”Id. at 438, 101 S.Ct. 1852. “It was itself a trial on the issue of punishment so precisely defined by the [state's sentencing] statutes.” Id. Unlike the previous cases the Court had considered where the sentence was subject to great discretion, this had “the hallmarks of the trial on guilt or innocence.” Id. at 439, 101 S.Ct. 1852.

C. Quintana

¶ 12 In Quintana, we relied on this reasoning from Bullington to address whether a defendant may be retried on habitual criminality consistent with the double jeopardy clauses of the United States and Colorado Constitutions.” 634 P.2d at 417. Like the Supreme Court in Bullington, we acknowledged that double jeopardy protections have not historically been applied to sentencing decisions after retrial in the same way they have to second prosecutions for the underlying offense. Id. at 418. But we noted that the Court had distinguished the sentencing proceeding in Bullington because, there, the defendant's sentencing proceeding was ‘like the trial on the question of guilt or innocence.’ Id. at 419 (quoting Bullington, 451 U.S. at 446, 101 S.Ct. 1852 ). Relying on this distinction, we concluded that, analogous to the statutory scheme at issue in Bullington, [i]n Colorado the trial of habitual criminal charges stands in marked contrast to the ordinary sentencing hearing.” Id. We explained that [t]he bifurcated trial and separate verdict provisions are further manifestations of legislative intent to require that an adjudication of habitual criminality be made only in accordance with the same procedural and constitutional safeguards traditionally associated with a trial on guilt or innocence.” Id. Thus, we held that “the constitutional protection against double jeopardy applies to a defendant prosecuted as an habitual criminal.” Id. We relied heavily on the statutory scheme in reaching this conclusion. Id. at 418 (explaining the statutory scheme was “essential to our resolution of this question”).

D. Evolution of the Habitual Criminal Statute

¶ 13 When we decided Quintana, a defendant had a statutory right to have a jury decide habitual criminality as part of a single, bifurcated trial. See § 16–13–103(4), C.R.S. (1973) (repealed by 2002 Colo. Sess. Laws 1428–29, ch. 318, sec. 3, § 18–1.3–802). The governing statute provided: [T]he jury impaneled to try the substantive offense shall determine by separate verdict whether the defendant has been convicted as alleged.” Id. Because both phases were conducted “before the same jury in one continuous proceeding,” we concluded that jeopardy attached when the jury swore an oath to determine the facts as to both the substantive and habitual counts. Quintana, 634 P.2d at 418.

¶ 14 We later addressed the statute in People v. Chavez, 621 P.2d 1362 (Colo.1981) (plurality opinion). There, a plurality of the court concluded that even where a defendant testifies during the substantive phase of the trial and prior-convictions evidence is used to impeach his credibility, the prosecution must still prove those convictions beyond a...

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