v. Viburg , 2020 COA 8 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 16, 2020
2020COA8
No. 17CA1056, People v. Viburg — Crimes — DUI — Prior
Convictions
A division of the court of appeals disagrees with People v.
Gwinn, 2018 COA 130, and People v. Quezado-Caro, 2019 COA 155,
and holds that the prior convictions required to convict a person of
felony driving under the influence are elements of the offense and
must be proved to a jury beyond a reasonable doubt.
COLORADO COURT OF APPEALS 2020COA8
Court of Appeals No. 17CA1056
Jefferson County District Court No. 16CR1633
Honorable Philip J. McNulty, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kevin Wayne Viburg,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE BERGER
Terry and Welling, JJ., concur
Announced January 16, 2020
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 E. Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 We disagree with People v. Gwinn, 2018 COA 130, and People
v. Quezado-Caro, 2019 COA 155, 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.
I. Relevant Facts and Procedural History
¶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.
1 The supreme court has granted certiorari on this issue in Linnebur
v. People, No. 18SC884, 2019 WL 3934483 (Colo. Aug. 19, 2019)
(unpublished order).
1
¶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.
II. Prior Convictions Are Elements of Felony DUI
¶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.
We agree.
¶6 We review questions of statutory interpretation de novo.
People v. Griego, 2018 CO 5, ¶ 25. “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. “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. “[I]f
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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 “person is deemed to have a prior conviction for DUI, DUI
per se, or DWAI . . . if the person has been convicted [of such crime]
under the laws of this state . . . . The prosecution shall set forth
such prior convictions in the indictment or information.” § 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 (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
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reasonable doubt.” 2 Apprendi v. New Jersey, 530 U.S. 466, 490
(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.
A. The Plain Language of the Statute Demonstrates that Prior
Convictions Are Elements of Felony DUI
¶ 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
2 The Colorado Constitution also guarantees criminal defendants
the right to trial by an impartial jury and due process. Colo. Const.
art. II, §§ 23, 25.
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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.3
¶ 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
3 We recognize that Viburg, as well as the division in People v.
Quezada-Caro, 2019 COA 155, ¶ 20, place substantial weight on
the particular placement of words in different portions of the DUI
statute. (The division in People v. Gwinn, 2018 COA 130, did not
address this point.) We are not persuaded that the specific
placement of the critical words in this statute is reasonably
informative of legislative intent or that it informs our interpretation
of the statute. The lack of probative value is illustrated by the
reasonable arguments made by Viburg in this respect and the
diametrically opposite, but equally reasonable, points made by the
Quezada-Caro division. As the United States Supreme Court has
observed in a different context, “[t]he ‘look’ of the statute, then, is
not a reliable guide to [legislative] intentions.” Jones v. United
States, 526 U.S. 227, 233 (1999). In any event, in our view that
analysis pales in importance to both the express requirement to
plead the prior convictions and the effects of converting a
misdemeanor into a felony.
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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, 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. Though decided after Jones, neither Blakely v.
Washington, 542 U.S. 296 (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.
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B. The United States and Colorado Constitutions Require
Prosecutors to Prove the Prior Convictions to a Jury Because
They Are Elements 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, 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
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imprisonment in the state penitentiary, it is considered a felony,
and if by fine or imprisonment in the county jail, a misdemeanor.”
Echhardt v. 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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¶ 20 Furthermore, critical procedural differences separate felonies
from misdemeanors. As Judge (now Chief Judge) Bernard
explained in his partial dissent in Schreiber, 226 P.3d at 1226,
[d]efendants charged with misdemeanors are
tried by juries of six; defendants charged with
felonies are tried by juries of twelve. § 18-1-
406(1), C.R.S. 20[19]; Crim. P. 23(a)(1) & (2).
Defendants charged with misdemeanors may
exercise three peremptory challenges;
defendants charged with most felonies are
entitled to five peremptory challenges. Crim.
P. 24(d)(2).
If the jury is not allowed to consider the
defendant’s prior convictions as an element of
the offense, the jury will only be instructed on
the elements of a misdemeanor, and its verdict
will only convict the defendant of a
misdemeanor. Thus, if the crime in this case
is converted to a felony by court order after a
jury convicts a defendant of the misdemeanor,
it would appear to me that a defendant facing
this charge is only entitled to a six-person jury
and three peremptory challenges. This result
seems to avoid the clear direction in statute
and court rule that defendants charged with
felonies are entitled to have their cases decided
by twelve jurors and to exercise five
peremptory challenges.
¶ 21 Additionally, defendants in some felony cases are entitled to
preliminary hearings, while defendants in misdemeanor cases are
not. § 16-5-301(1)(b)(II), C.R.S. 2019. Emphasizing the importance
9
of this right to a preliminary hearing, the supreme court recently
held that defendants charged with felony DUI are entitled to a
preliminary hearing. People v. Tafoya, 2019 CO 13, ¶ 24.
¶ 22 The fact that Viburg’s case was tried as a felony does not
minimize the importance of these procedural distinctions —
transforming a misdemeanor to a felony in Colorado deprives a
defendant of the right to procedural protections to which the
defendant would otherwise be entitled.
¶ 23 Finally, felonies have significant collateral consequences that
misdemeanors do not. Schreiber, 226 P.3d at 1226 (Bernard, J.,
concurring in part and dissenting in part). Some of these are that
• A person cannot vote while incarcerated for a felony
conviction. Colo. Const. art VII, § 10; § 1-2-103(4),
C.R.S. 2019.
• Convicted felons may be prohibited from owning
firearms. § 18-12-108(1), C.R.S. 2019.
• Convicted felons may be barred from certain professions.
E.g., § 12-20-404(1)(d)(I), C.R.S. 2019 (regulators’ general
disciplinary authority); § 12-100-120(1)(e), C.R.S. 2019
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(accountants); § 44-20-121(3)(c), C.R.S. 2019 (car
dealers).
• A felony conviction provides a predicate offense for a
habitual criminal designation. § 18-1.3-801, C.R.S.
2019.
• A person who has been convicted of two felonies may not
be eligible for probation. § 18-1.3-201(2)(a.5), C.R.S.
2019.
• A felony conviction may be used to impeach a witness’s
testimony. § 13-90-101, C.R.S. 2019.
¶ 24 “These collateral consequences are not trifling. They affect the
exercise of important civil rights; or restrict the ability to earn a
living; or expose one to additional penalties in the future; or
undermine one’s credibility in future proceedings.” Schreiber, 226
P.3d at 1227 (Bernard, J., concurring in part and dissenting in
part).
¶ 25 In sum, the differences between a misdemeanor and a felony
are so fundamental that they go far beyond affecting just the length
of the sentence imposed and alter the “very nature of [the] crime”
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itself. United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160-61
(9th Cir. 2004).
¶ 26 In Rodriguez-Gonzales, the Ninth Circuit considered whether a
prior conviction that elevated a misdemeanor conviction for illegally
entering the United States into a felony was an element of the felony
charge that needed to be pleaded in the indictment, or merely a
sentence enhancer that did not. The court held that “[t]he existence
of a prior conviction under 8 U.S.C. § 1325(a) substantively
transforms a second conviction under the statute from a
misdemeanor to a felony. A prior conviction is therefore more than a
sentencing factor, and we conclude that it must be charged
explicitly.” Id. at 1160 (emphasis added); see also, e.g., State v.
Warbelton, 759 N.W.2d 557, 562-67 (Wis. 2009) (prior conviction
that elevated misdemeanor stalking to felony stalking was a
substantive element of the offense). Transforming a misdemeanor
into a felony, the court stated, “affects not merely the defendant’s
sentence, but the very nature of his crime.” Rodriguez-Gonzales,
358 F.3d at 1161.
¶ 27 Courts in other jurisdictions have reached similar conclusions
when considering felony DUI statutes. For instance, the Florida
12
Supreme Court has held that, to obtain a conviction for felony DUI,
the defendant’s prior DUI offenses must be proved to a jury because
they are considered “‘an element of felony DUI,’ rather than a type of
enhancement that results in felony DUI.” Johnson v. State, 994 So.
2d 960, 963 (Fla. 2008) (quoting State v. Finelli, 780 So. 2d 31, 33
(Fla. 2001)); see also, e.g., State v. Goggin, 339 P.3d 983, 989
(Wash. Ct. App. 2014) (prior convictions are elements of felony DUI).
Some other state courts have, however, reached the opposite
conclusion. E.g., State v. Kendall, 58 P.3d 660, 668 (Kan. 2002);
State v. Palmer, 189 P.3d 69, 72-77 (Utah Ct. App. 2008).
¶ 28 For these reasons, we conclude that the fact of a prior
conviction is an essential element of felony DUI that must be proved
to a jury beyond a reasonable doubt.
C. The Canon of Constitutional Doubt Supports the Proposition
that Prior Convictions Must Be Proved to a Jury
¶ 29 To the extent the analysis above is not dispositive, the
constitutional-doubt canon confirms our interpretation. See United
States v. Davis, 588 U.S. ___, ___ n.6, 139 S. Ct. 2319, 2332 n.6
(2019) (discussing the distinction between the canons of
constitutional avoidance and constitutional doubt); People v.
13
Iannicelli, 2019 CO 80, ¶ 76 n.1 (Samour, J., dissenting) (same).
When “a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the other
of which such questions are avoided, our duty is to adopt the
latter.” Jones, 526 U.S. at 239 (quoting United States ex rel.
Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)); see
also State, Dep’t of Labor & Emp’t v. Esser, 30 P.3d 189, 194 (Colo.
2001) (same).
¶ 30 Contrary to Gwinn, ¶ 54, and as more fully discussed above,
decisions from other jurisdictions demonstrate that transforming a
misdemeanor to a felony based on prior convictions without proving
those convictions to a jury beyond a reasonable doubt raises
serious constitutional questions. Compare Rodriguez-Gonzales, 358
F.3d at 1159-61 (prior convictions that transform a misdemeanor
into a felony are more than sentence enhancers; they are elements
of the crime), and Johnson, 994 So. 2d at 963 (same), and Goggin,
339 P.3d at 989 (same), and Warbelton, 759 N.W.2d at 562-67
(same), with Kendall, 58 P.3d at 668 (prior convictions that
transform a misdemeanor into a felony are merely sentence
enhancers), and Palmer, 189 P.3d at 72-77 (same).
14
¶ 31 Accordingly, even if we were to conclude that the statute is
ambiguous, we would still conclude that the prior convictions are
elements of the offense, in order to avoid these serious
constitutional questions. Esser, 30 P.3d at 194.
III. Conclusion
¶ 32 For these reasons, we reverse Viburg’s felony DUI conviction
and remand the case for further proceedings.
JUDGE TERRY and JUDGE WELLING concur.
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