People v. Jacobs

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
November 15, 2018

2018COA159

No. 16CA1105 People v. Jacobs — Crimes — Uniform
Controlled Substances Act of 2013 — Unlawful Distribution,
Manufacturing, Dispensing, or Sale; Criminal Law — Sentencing
— Punishment for Habitual Criminals

A division of the court of appeals interprets section

18-18-405(2)(a), C.R.S. 2012, to mean that a trial court may only

increase the level of a class 3 distribution of a schedule II controlled

substance felony based on an equal or more severe felony. Based

on this conclusion, the division determines that the trial court erred

when it relied on defendant’s prior conviction to enhance his class 3

distribution felony to a class 2 felony. As a result, the division

reverses this part of defendant’s sentence, and it remands the case

to the trial court for resentencing.

The division also concludes that (1) the trial court properly

adjudicated defendant to be a habitual criminal; and, (2) in light of
the conviction for distribution, defendant’s conviction for conspiracy

to distribute the same quantum of the schedule II controlled

substance violated the Double Jeopardy Clause.
COLORADO COURT OF APPEALS 2018COA159

Court of Appeals No. 16CA1105
Arapahoe County District Court No. 12CR1535
Honorable Michelle A. Amico, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wayne Larue Jacobs,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN
PART, SENTENCE REVERSED IN PART AND VACATED
IN PART, AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE BERNARD
Hawthorne and Tow, JJ., concur

Announced November 15, 2018

Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Wayne Larue Jacobs, of

distribution and conspiracy to distribute a schedule II controlled

substance. The trial court then found that the prosecution had

proved five habitual criminal counts and sentenced defendant

accordingly. He appeals. We affirm the judgment in part, reverse it

in part, and vacate it in part; we reverse the sentence in part and

vacate it in part; and we remand the case for resentencing.

I. Background

¶2 In 2016, a jury convicted defendant of (1) distributing a

controlled substance, namely less than one gram of crack cocaine;

and (2) conspiring to sell or to distribute the same crack cocaine.

The trial court subsequently found that defendant had been

convicted in 2007 of distributing a controlled substance. Based on

this finding, it enhanced the first conviction — distribution of a

controlled substance — from a class 3 felony to a class 2 felony.

The court also found that defendant was a habitual criminal.

¶3 The court then sentenced defendant to twenty-four years in

prison for the distribution count. Applying the habitual criminal

finding, the court increased the sentence on this count to ninety-six

years in prison.

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¶4 Turning to the conspiracy count, the court sentenced

defendant to twelve years in prison for that class 3 felony. Again

applying the habitual criminal finding, the court increased the

sentence on this count to forty-eight years in prison, to be served

concurrently with the sentence on the distribution count.

II. Analysis

¶5 Defendant raises three contentions:

1. The 2007 conviction did not fit the statutory definition of

a conviction that the trial court could use to enhance the

distribution count from a class 3 felony to a class 2

felony.

2. One of the habitual criminal counts, which was based on

the 2007 conviction, suffered from the same statutory

defect.

3. The Double Jeopardy Clause required the convictions for

distribution and conspiracy to merge.

A. Preservation

¶6 Defendant did not raise the first issue in the trial court. But

he nonetheless submits that we should treat the issue as a

sufficiency-of-the-evidence claim, and he then asserts that we

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 should review it de novo. The prosecution counters that we should

use the plain error standard of review because defendant did not

object to his sentence during the sentencing hearing.

¶7 We agree that this issue is unpreserved. But defendant

contends that the trial court committed an error — improperly

enhancing the distribution count to a class 2 felony — that

ineluctably led to an excessive sentence. So, if we conclude that the

court committed such an error, “[t]here [will be] no need to decide

whether the error [wa]s obvious or substantial; whether the trial’s

fundamental fairness was undermined; or whether the undermining

was so significant that we doubt the conviction’s reliability. We

[will] simply impose the remedy.” People v. Tillery, 231 P.3d 36,

54-55 (Colo. App. 2009)(Bernard, J., specially concurring)(reasoning

that “once an appellate court concludes that [an] unpreserved

[sentencing] error[] . . . has occurred, the remedy is automatic”),

aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).

¶8 And, even if we were to review for plain error, we would still

reverse defendant’s sentence if the error meant that he would spend

more time in prison than the law required. See Rosales-Mireles v.

United States, ___ U.S. ___, ___, 138 S. Ct. 1897, 1908-09 (2018)(As

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 a result of a sentencing error, “[t]he risk of unnecessary deprivation

of liberty particularly undermines the fairness, integrity, or public

reputation of judicial proceedings in the context of a plain . . . error

because of the role the . . . court plays in calculating the range and

the relative ease of correcting the error.”).

B. The 2007 Conviction

¶9 The potential difference in the maximum sentences at stake in

this case between a class 2 felony and class 3 felony is marked:

twelve years. The maximum presumptive sentence for a class 2

felony at the time of defendant’s crime was twenty-four years.

§ 18-1.3-401(1)(a)(V), C.R.S. 2012. The maximum presumptive

sentence for a class 3 felony was twelve years. Id. And this was

just the starting point for increased habitual criminal sentences,

such as the ones in this case. § 18-1.3-801(2)(a), C.R.S. 2012.

¶ 10 The difference between the sentence the trial court gave

defendant and the one defendant asserts he should have received is

even starker once a habitual criminal finding is introduced into the

mix. A twenty-four-year sentence for a class 2 felony becomes

ninety-six years. § 18-1.3-801(2)(a). A twelve-year sentence for a

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 class 3 felony becomes forty-eight years. Id. The difference

between the two is therefore forty-eight years.

¶ 11 But, defendant points out, there was a problem with the 2007

conviction. In that case, defendant was originally charged with a

class 3 felony. As part of a plea disposition, he pled guilty to

attempt to possess a controlled substance, which was a class 4

felony. The prosecution dismissed the class 3 felony as part of the

plea disposition.

¶ 12 The mittimus and the amended mittimus in the 2007 case

contain a mistake. They state that defendant pled guilty to the

original class 3 felony charge. But documents in the record from

the 2007 case clearly show that defendant pled guilty to a class 4

felony.

 A minute order noted the plea disposition; it referred to

an added count that was a class 4 felony; and it

acknowledged that the prosecution would dismiss the

original counts.

 The plea disposition paperwork stated that the charge to

which defendant pled guilty was a class 4 felony.

 An order dismissed the original counts.

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¶ 13 So the trial court’s determination that the 2007 conviction was

a class 3 felony was a mistake. But what was the effect of that

mistake on defendant’s sentence?

¶ 14 When sentencing defendant on the distribution count, the trial

court relied on section 18-18-405(2)(a)(I), C.R.S. 2012. This statute

stated that distribution of a schedule I or II controlled substance —

crack cocaine was listed in schedule II — was ordinarily a class 3

felony. § 18-18-405(2)(a)(I)(A). But it would become a class 2 felony

“if the violation [wa]s committed subsequent to a prior conviction in

this or any other state, the United States, or any territory subject to

the jurisdiction of the United States of a violation to which this

subparagraph (I) applies or would apply if convicted in this state.”

§ 18-18-405(2)(a)(I)(B).

¶ 15 What kind of prior conviction is “a violation to which . . .

subparagraph (I) applies”? Id. Our road to answering this question

is paved by our examination of the statute’s language. People v.

Vecellio, 2012 COA 40, ¶ 14. We read the statute’s words and

phrases in context and we construe them according to their

common usage. Id. We must read the language in question “in the

context of the statute as a whole,” and we “should give consistent,

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 harmonious, and sensible effect to all parts of the statutory

scheme.” People v. Loris, 2018 COA 101, ¶ 35.

¶ 16 The statute’s plain language leads us to this answer: a court

can only enhance a class 3 felony to a class 2 felony if the prior

conviction was either a class 3 felony or a class 2 felony. Why do

we think so?

¶ 17 First, subparagraph (I) of section 18-18-405(2)(a) only refers to

class 3 and to class 2 felonies. It does not refer to other felonies,

such as class 4 felonies. And “[w]e do not add words to the statute

or subtract words from it.” Turbyne v. People, 151 P.3d 563, 567

(Colo. 2007).

¶ 18 Second, looking to the structure of the statute, we see that it

has a series of subparagraphs after subparagraph (I). These

subparagraphs refer to lower class felonies. For example, section

18-18-405(2)(a)(II)(A) states that, in a case involving a schedule III

controlled substance, the conviction would normally be a class 4

felony. But a trial court would enhance the conviction to a class 3

felony if the defendant had a prior conviction that was a violation of

subparagraph (I) — a class 2 felony or a class 3 felony — or a

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 conviction which was a violation of subparagraph (II) — a class 4

felony. § 18-18-405(2)(a)(II)(B).

¶ 19 Continuing our reading of section 18-18-405(2)(a), we see that,

if a defendant is convicted of a class 5 felony involving a schedule IV

controlled substance, and he has a prior conviction for a class 2

felony, a class 3 felony, a class 4 felony, or a class 5 felony, the

court shall enhance his conviction to a class 4 felony and sentence

him accordingly. § 18-18-405(2)(a)(III)(B). And, if a defendant is

convicted of a class 1 misdemeanor involving a schedule V

controlled substance, and he has a prior conviction for a class 2

felony, a class 3 felony, a class 4 felony, a class 5 felony, or a class

1 misdemeanor, the court shall enhance his conviction to a class 5

felony and sentence him accordingly. § 18-18-405(2)(a)(IV)(B).

¶ 20 We therefore conclude that, under the plain language of

subparagraph (I) and the structure of section 18-18-405(2)(a), the

trial court erred when it used the 2007 conviction, a class 4 felony,

to enhance defendant’s distribution class 3 felony conviction in this

case to a class 2 felony. As a result, the trial court shall, on

remand, vacate the class 2 felony distribution conviction and

reinstate the class 3 felony distribution conviction.

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¶ 21 In reaching this conclusion, we necessarily reject the

prosecution’s assertion that, by pleading guilty to attempting to

distribute a controlled substance in 2007, defendant implicated

himself in the distribution of that substance. As a result, this

assertion continues, an attempt to commit an offense involving a

schedule II controlled substance qualifies as a prior conviction for

the purposes of subparagraph (I).

¶ 22 This assertion ignores the plain language of the statute.

Subparagraph (I) and section 18-18-405(2)(a), are driven by two

things: the class of the felony and the schedule of controlled

substance. As we have shown above, in order to enhance a

conviction for a class 3 felony involving a schedule II controlled

substance to a class 2 felony, the prior conviction must be a class 2

felony or a class 3 felony involving a schedule II controlled

substance. And defendant pled guilty to a class 4 felony involving a

schedule II controlled substance in 2007. In other words, the 2007

conviction only satisfied one of the two statutory prerequisites for

enhancing a class 3 felony to a class 2 felony.

¶ 23 We also disagree with the prosecution that section

18-18-405(2)(a), allows a court to enhance a conviction by two

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 felony steps rather than by one. For example, there is no

suggestion anywhere in that statute that a court can enhance a

class 4 felony to a class 2 felony, or a class 5 felony to a class 3

felony. Again, the statute’s plain language makes clear that

enhancements involve only one step up the felony ladder.

C. Habitual Criminal Count

¶ 24 Defendant contends that we should vacate one of the habitual

criminal counts because it involved the 2007 conviction. As we

have shown, the 2007 conviction involved a class 4 felony, not a

class 3 felony. But we conclude that any error involving the 2007

conviction was harmless because vacating one of defendant’s five

habitual criminal counts would have no effect on his sentence.

¶ 25 To be adjudicated a habitual criminal under section

18-1.3-801(2), a defendant must have had three prior felony

convictions based on charges separately brought and tried, arising

out of separate criminal episodes. The trial court found that

defendant had five qualifying prior felony convictions, and

defendant does not challenge the trial court’s findings concerning

the other four convictions. So, even if we were to vacate one of the

five, defendant’s sentence would remain unchanged. People v.

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 Boehmer, 872 P.2d 1320, 1324 (Colo. App. 1993)(concluding that, if

the defendant challenged one of four prior felony convictions, and

only three were required for the court to find that the defendant was

a habitual criminal, then the division did not need to engage in any

further analysis because any error was harmless).

D. Double Jeopardy

¶ 26 Defendant finally contends that his convictions and sentences

on both the distribution and conspiracy counts based on the same

quantum of drugs violated the Double Jeopardy Clause. The

prosecution concedes this contention, noting that, even under plain

error review, the trial court obviously and substantially violated the

defendant’s right to avoid double jeopardy. We accept this

concession because we agree with it. See People v. Abiodun, 111

P.3d 462, 466-68 (Colo. 2005)(“[T]he scope and structure of [section

18-18-405(1)(a), C.R.S. 2018] . . ., combined with sentencing

provisions differentiating punishments on the basis of the quantum

of drugs (rather than the act) involved, strongly points to the

creation of a single crime . . . . [T]he statute strongly suggests an

intent to ‘criminalize successive stages of a single undertaking,’

‘encompass[ing] every act and activity which could lead to the

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 proliferation of drug traffic.’ . . . . [T]he acts enumerated in section

[18-18-405(1)(a) therefore] all represent stages in the commission of

one crime.”)(citations omitted). We therefore reverse defendant’s

conspiracy conviction and sentence, and we instruct the trial court

on remand to vacate that conviction and sentence.

III. Conclusion

¶ 27 We reverse (1) the enhancement of defendant’s class 3 felony

distribution conviction to a class 2 felony; (2) the prison sentence of

twenty-four years for that conviction, which was increased to

ninety-six years based on the trial court’s finding that defendant

was a habitual criminal; and (3) the conviction and sentence for

conspiracy to distribute a schedule II controlled substance.

¶ 28 We remand this case to the trial court to (1) vacate the class 2

felony distribution conviction; (2) reinstate the class 3 felony

distribution conviction; (3) resentence defendant to forty-eight years

in prison on the class 3 felony distribution conviction based on the

court’s finding that defendant was a habitual criminal, see

§ 18-1.3-801(2)(a) (If a defendant has three prior felony convictions

“arising out of separate and distinct criminal episodes,” the court

shall sentence him or her to “four times the maximum of the

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presumptive range . . . for the class or level of felony of which such

person is convicted.”); and (4) vacate defendant’s conviction and

sentence for conspiracy.

JUDGE HAWTHORNE and JUDGE TOW concur.

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