People v. Viburg
| Decision Date | 16 January 2020 |
| Docket Number | Court of Appeals No. 17CA1056 |
| Citation | 477 P.3d 746 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Wayne VIBURG, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE BERGER
¶1 We disagree with People v. Gwinn , 2018 COA 130, 428 P.3d 727, and People v. Quezada-Caro , 2019 COA 155, ––– P.3d ––––, and hold that the prior convictions required to convict a person of felony driving under the influence (DUI) are elements of the offense and must be proved to a jury beyond a reasonable doubt.1 Accordingly, we reverse Kevin Wayne Viburg's conviction for felony DUI because his prior convictions were not proved to a jury.
¶2 Police arrested Viburg for suspected DUI. He was charged with felony DUI – fourth or subsequent offense based on the allegation that he had three or more previous convictions for driving while ability impaired (DWAI) or DUI.
¶3 Before trial, Viburg moved for a ruling that his alleged prior convictions were elements of the offense that the prosecutor must prove to a jury beyond a reasonable doubt. The trial court denied the motion, concluding that the prosecutor needed only to prove the prior convictions to the judge by a preponderance of the evidence.
¶4 At trial, a jury convicted Viburg of DUI and careless driving. At a post-trial hearing, the judge found by a preponderance of the evidence that Viburg had three prior convictions for DWAI or DUI. Based on that finding, the court elevated Viburg's misdemeanor DUI conviction to a class 4 felony and sentenced him accordingly.
¶5 Viburg contends that the trial court violated his constitutional rights by convicting him of a class 4 felony based on its own finding that he had three prior convictions for DUI or DWAI. He asserts that prior convictions are substantive elements of the offense of felony DUI and therefore the prosecutor should have been required to prove the prior convictions to a jury beyond a reasonable doubt.2 We agree.
¶6 We review questions of statutory interpretation de novo. People v. Griego , 2018 CO 5, ¶ 25, 409 P.3d 338. "Our primary task when construing a statute is to ascertain and give effect to the legislature's intent." Young v. Brighton Sch. Dist. 27J , 2014 CO 32, ¶ 11, 325 P.3d 571. "We begin with the plain language of the statute, reading the words and phrases in context and construing them according to their common usage." People v. Ramirez , 2018 COA 129, ¶ 9, ––– P.3d ––––. "[I]f the plain language of the statute demonstrates a clear legislative intent, we look no further." Young , ¶ 11.
¶7 Section 42-4-1301(1)(a), C.R.S. 2019, provides that "[d]riving under the influence 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 DUI, DUI per se, or DWAI ... or any combination thereof."
¶8 A § 42-4-1301(1)(j) (emphasis added).
¶9 "Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Jones v. United States , 526 U.S. 227, 232, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Further, under the Fifth and Sixth Amendments, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum," other than a prior conviction, "must be submitted to a jury, and proved beyond a reasonable doubt."3
Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
¶10 For the reasons discussed below, we conclude that prior convictions are elements of felony DUI that do more than "increase[ ] the penalty for the crime." Id. Therefore, to obtain a conviction for felony DUI, a prosecutor must prove those prior convictions to a jury beyond a reasonable doubt.
¶11 The plain language of the felony DUI statute compels the conclusion that the General Assembly intended that prior DUI or DWAI offenses constitute elements of felony DUI.
¶12 The statute requires that the alleged prior convictions be pleaded in the indictment or information. § 42-4-1301(1)(j). An indictment must state the "essential facts which constitute the offense." Crim. P. 7(a)(2) ; see also § 16-5-201, C.R.S. 2019. Similarly, an information is sufficient if "the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction." § 16-5-202(1)(d), C.R.S. 2019; Crim. P. 7(b)(2)(III). Taking these provisions together, the indictment or information must describe the elements of the offense and how they are satisfied. In our view, the General Assembly would not have required the prosecutor to plead the prior offenses in the indictment or information unless it had intended prior convictions to be elements of the offense.4
¶13 Divisions of this court in Quezada-Caro , ¶ 11, Gwinn , ¶ 49, and People v. Schreiber , 226 P.3d 1221, 1223 (Colo. App. 2009), on the other hand, have concluded that prior convictions that transform a misdemeanor into a felony are merely sentence enhancers because (1) a defendant could be convicted of the underlying offense without any proof of the prior convictions and (2) the prior convictions merely increase the defendant's potential punishment. We disagree with these analyses for multiple reasons.
¶14 To begin, the fact that prior convictions are not required to prove the "underlying offense" of DUI is not dispositive. In Jones , 526 U.S. 227, 119 S.Ct. 1215, the Court considered a federal carjacking statute that subjected a convicted defendant to a longer prison sentence if the carjacking resulted in serious bodily injury. The Court held that the serious bodily injury requirement was an element of the offense, although it was not necessary to prove the crime of carjacking. Id. at 230-39, 119 S.Ct. 1215. Though decided after Jones , neither Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), nor Apprendi alters this analysis.
¶15 Moreover, and as discussed in more detail below, transforming a misdemeanor into a felony does far more than simply increase the potential punishment; it changes the very nature of the offense.
¶16 Even if the statutory requirement that the prosecutor plead the prior offenses does not require our construction, the United States and Colorado Constitutions do.
¶17 Generally, under Apprendi , 530 U.S. at 490, 120 S.Ct. 2348, prior convictions do not need to be proved to a jury beyond a reasonable doubt before they can be used to increase the length of a sentence. But "the consequences of converting a misdemeanor to a felony extend far beyond simply increasing the potential length of incarceration." Schreiber , 226 P.3d at 1225 (Bernard, J., concurring in part and dissenting in part). Because of the transformative nature of elevating a misdemeanor to a felony, we conclude that under Apprendi , when prior convictions transform a misdemeanor DUI into a felony DUI, they are elements of the offense rather than a mere sentence enhancer.
¶18 Under the Colorado Constitution, felonies are the only crimes serious enough to merit incarceration in the penitentiary. Colo. Const. art XVIII, § 4 ; Schreiber , 226 P.3d at 1225 (Bernard, J., concurring in part and dissenting in part). "If the penalty is imprisonment in the state penitentiary, it is considered a felony, and if by fine or imprisonment in the county jail, a misdemeanor." Echhardtv. People , 126 Colo. 18, 26, 247 P.2d 673, 677 (1952).
The penitentiary has long been recognized as the proper place for the incarceration of those convicted of the graver offenses only, while the county jails have been utilized for the confinement of those convicted of minor offenses, and confinement in the penitentiary has always been regarded as more severe than confinement in a county jail, on account of the disgrace and reproach attached to confinement in an institution thus set apart as a place for the incarceration of the more depraved and infamous classes of offenders.
Brooks v. People , 14 Colo. 413, 414, 24 P. 553, 553 (1890).
¶19 In short, for more than 100 years Colorado courts have recognized that there is a significant difference between incarceration in the penitentiary and incarceration in the county jail. Elevating a sentence from a misdemeanor to a felony affects not only the length of the sentence but also where the sentence is served and subjects the defendant to greater stigma, "disgrace," and "reproach." Id.
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