People v. Viburg

Decision Date10 January 2022
Docket Number21SA153
Citation2021 CO 81 M
CourtColorado Supreme Court
PartiesIn Re: Plaintiff: The People of the State of Colorado, v. Kevin Wayne Viburg. Defendant

2021 CO 81M

In Re: Plaintiff: The People of the State of Colorado,
v.

Kevin Wayne Viburg.
Defendant

No. 21SA153

Supreme Court of Colorado, En Banc

January 10, 2022


December 20, 2021

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Original Proceeding Pursuant to C.A.R. 21 Jefferson County District Court Case No. 16CR1633 Honorable Philip J. McNulty, Judge

Opinion modified, and as modified, petition for rehearing DENIED.

Attorneys for Plaintiff: Alexis King, District Attorney, First Judicial District Colleen R. Lamb, Appellate Deputy District Attorney Golden, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender Meredith O'Harris, Deputy Public Defender Denver, Colorado

OPINION

BOATRIGHT CHIEF JUSTICE

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¶1 In Linnebur v. People, 2020 CO 79M, ¶ 2, 476 P.3d 734, 735, we held that prior convictions are an element of the crime of felony driving under the influence ("DUI"), meaning they "must be proved to the jury beyond a reasonable doubt." We thus reversed the defendant's conviction for felony driving while ability impaired ("DWAI") (a lesser included offense of felony DUI), and we stated that the trial court could resentence him to misdemeanor DWAI on remand if it wished. Id. at ¶ 32, 476 P.3d at 741. But we left open the question of whether double jeopardy barred retrial of the felony DUI charge. Id.

¶2 In this case, we are confronted directly with that unanswered question. We now hold that double jeopardy does not bar retrial because the defendant was not previously acquitted of felony DUI. Hence, we discharge our rule to show cause and remand to the trial court for further proceedings.

I. Facts and Procedural History

¶3 The People charged Kevin Wayne Viburg with driving under the influence with three or more prior alcohol-related traffic offenses-i.e., felony DUI. See § 42-4-1301(1)(a), C.R.S. (2021) (providing that DUI is a misdemeanor, "but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes," for various alcohol-related traffic offenses). Prior to trial, Viburg moved to treat his prior convictions as an element of the crime, which would require the jury to find them beyond a reasonable

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doubt. The court denied the motion, ruling that Viburg's prior convictions were a sentence enhancer that need only be proved by a preponderance of the evidence at a hearing after a trial on the merits. As a result, evidence of his prior convictions was not introduced to the jury; instead, at trial, the court instructed the jury only on the elements of misdemeanor DUI. The jury then found Viburg guilty of misdemeanor DUI. Subsequently, at a post-conviction hearing, the trial court found by a preponderance of the evidence that Viburg had three prior alcohol-related traffic offenses, and it entered a conviction for felony DUI.

¶4 On direct appeal, a division of the court of appeals reversed. People v. Viburg, 2020 COA 8M, ¶ 1, 477 P.3d 746, 747-48. The division held that prior convictions are an element of felony DUI, meaning they must be presented to the jury and proved beyond a reasonable doubt. Id. The division further stated that if the prosecution sought retrial and Viburg raised a double jeopardy defense, the trial court must rule on the defense; it declined to express an opinion on the merits of the defense. Id. at ¶ 32, 477 P.3d at 752.

¶5 The People sought certiorari review, asking us to determine whether prior convictions were a sentence enhancer or an element of the offense. While the People's petition was pending, we issued our opinion in Linnebur, which mirrored the Viburg division's analysis deeming prior convictions to be an element of felony DUI. Linnebur, ¶ 2, 476 P.3d at 735. However, we too declined to address the

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merits of any double jeopardy defense that might arise on remand. Id. at ¶ 32, 476 P.3d at 741 ("If, in lieu of resentencing, the prosecution seeks retrial of the felony DUI charge and [the defendant] raises a double jeopardy defense, the trial court must rule on that defense."). We then denied the People's petition for certiorari in Viburg's case.

¶6 On remand, the People sought to retry Viburg for felony DUI. Viburg moved to dismiss the felony DUI charge and asked that the court resentence him for misdemeanor DUI. Specifically, he argued that double jeopardy principles barred the People from retrying him for felony DUI because (1) he was already convicted of misdemeanor DUI, which is a lesser included offense of felony DUI; (2) the prosecution failed to produce evidence of the prior convictions in the first proceeding; and (3) he had already been tried by one jury and could not be tried for one count by two different juries. Viburg further contended that retrial violated Colorado's mandatory joinder statute and that a successive trial would violate his rights to due process and a jury trial.

¶7 The trial court denied Viburg's motion. The court concluded that retrial would not violate double jeopardy because the prior guilty verdict for felony DUI had been set aside on appeal. The court also rejected Viburg's due process and joinder arguments.

¶8 Viburg sought relief under C.A.R. 21, and we issued a rule to show cause.

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II. Original Jurisdiction

¶9 We exercise original jurisdiction and grant relief under C.A.R. 21 only when "no other adequate remedy . . . is available." C.A.R. 21(a)(1). We deem such relief appropriate, for example, "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. Huckabay, 2020 CO 42, ¶ 9, 463 P.3d 283, 285 (alteration in original) (quoting People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748). Indeed, C.A.R. 21 provides relief that is "extraordinary in nature" and "wholly within [this court's] discretion." C.A.R. 21(a)(1).

¶10 The issue in this case-whether double jeopardy and due process preclude a defendant's retrial when their felony DUI conviction was reversed on direct appeal-constitutes a question of significant public importance because (1) it results from a recent decision from this court that clarified how evidence of prior convictions must be treated, (2) it affects a substantial number of cases, and (3) it implicates the constitutional right against double jeopardy.

¶11 We now consider the petition on its merits.

III. Analysis

¶12 We first determine that the de novo standard of review applies. Then, after reviewing double jeopardy jurisprudence, we discuss each of Viburg's claims in

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turn. We first hold that double jeopardy does not bar retrial because Viburg was not previously acquitted of felony DUI. We next conclude that retrial does not violate Viburg's due process rights. Finally, we reject Viburg's assertion that retrial violates Colorado's mandatory joinder statute. Accordingly, we discharge our rule to show cause and remand to the trial court for further proceedings.

A. Standard of Review

¶13 We review constitutional challenges to sentencing determinations de novo. People v. Johnson, 2015 CO 70, ¶ 9, 363 P.3d 169, 174; Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).

B. Double Jeopardy

¶14 The Double Jeopardy Clause of the United States Constitution protects individuals from being "twice put in jeopardy of life or limb." U.S. Const. amend. V. The Colorado Constitution provides the same protection. See Colo. Const. art II., § 18 ("No person shall . . . be twice put in jeopardy for the same offense."); People v. Simon, 266 P.3d 1099, 1109 n.10 (Colo. 2011) ("We have previously adopted U.S. Supreme Court double jeopardy jurisprudence as the correct interpretation of Colorado's constitutional provision."). The deeply ingrained purpose of double jeopardy is to prevent "the State with all its resources and power" from repeatedly attempting to convict a defendant, thus "subjecting [the defendant] to embarrassment, expense and ordeal and compelling him to live

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in a continuing state of anxiety and insecurity." United States v. Scott, 437 U.S. 82, 87 (1978).

¶15 The Double Jeopardy Clause protects the accused against (1) "a second prosecution for the same offense after acquittal," (2) "a second prosecution for the same offense after conviction," and (3) "multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Nevertheless, a second trial may be permitted when "the public's interest in fair trials designed to end in just judgments" is maintained, and the "defendant's interests in having his case finally decided by the [first] jury" is protected. Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).

¶16 In Colorado, this balance is codified through several statutes, which determine when a second prosecution is and is not barred. A second prosecution is barred for the same offense if the former prosecution (1) "resulted in an acquittal"; (2) "was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated"; (3) "resulted in a conviction . . . that has not been reversed or vacated"; or (4) "was improperly terminated." § 18-1-301(1)(a)-(d), C.R.S. (2021). Contrarily, a second prosecution is not barred if the former prosecution: (1) "[w]as before a court that lacked jurisdiction over the defendant or the offense"; (2) "[w]as procured by the defendant without the

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knowledge of the appropriate prosecuting official"; or (3) "[r]esulted in a judgment of conviction that was set aside, reversed, or vacated upon appeal or in any other subsequent judicial proceeding." § 18-1-304(1)(a)-(c), C.R.S. (2021).

¶17 These statutes reflect the principle that when a conviction is reversed for legal error, rather than evidentiary insufficiency, "it implies...

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