v. Viburg

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).

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¶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

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 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.

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 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).

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¶ 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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