v. Vanness

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ADVANCE SHEET HEADNOTE
March 2, 2020

2020 CO 18

No. 19SA230, People v. Vanness—Entitlement to Preliminary Hearing—Special
Offender Count—Defendant “Accused” of Level 1 Drug Felony.

In this original proceeding, the supreme court addresses whether the

defendant has a right to demand and receive a preliminary hearing given that:

(1) he is charged with a level 4 drug felony not eligible for a preliminary hearing;

(2) he is separately charged with a special offender count; and (3) he will stand

convicted of a level 1 drug felony eligible for a preliminary hearing if the People

prove both counts beyond a reasonable doubt to the jury. The court concludes that

the defendant is entitled to demand and receive a preliminary hearing because the

People have accused him of a level 1 drug felony and have charged him

accordingly (albeit through a combination of two separate counts). Therefore, the

court makes the rule to show cause absolute.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2020 CO 18

Supreme Court Case No. 19SA230
Original Proceeding Pursuant to C.A.R. 21
La Plata County District Court Case No. 19CR355
Honorable William L. Herringer, Judge
________________________________________________________________________
In Re

Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Donald Vernon Vanness.
________________________________________________________________________
Rule Made Absolute
en banc
March 2, 2020
________________________________________________________________________

Attorneys for Plaintiff:
Christian Champagne, District Attorney
Sean Murray, Deputy District Attorney
Zach Rogers, Deputy District Attorney
Durango, Colorado

Attorneys for Defendant:
Megan A. Ring, Public Defender
Jonathan Jourdane, Deputy Public Defender
Katie Polonsky, Deputy Public Defender
Durango, Colorado
Attorneys for Honorable William L. Herringer:
Philip J. Weiser, Attorney General
Grant T. Sullivan, Assistant Solicitor General
Denver, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court.

2
¶1 This is the fourth case to reach us since 2018 asking us to determine whether

the defendant is entitled to a preliminary hearing. See People v. Rowell, 2019 CO

104, 453 P.3d 1156; People v. Tafoya, 2019 CO 13, 434 P.3d 1193; People v. Austin, 2018

CO 47, 419 P.3d 587. The question we address today is whether the defendant,

Donald Vernon Vanness, has a right to demand and receive a preliminary hearing

given that: (1) he is charged with a level 4 drug felony not eligible for a preliminary

hearing; (2) he is separately charged with a special offender count; and (3) he will

stand convicted of a level 1 drug felony eligible for a preliminary hearing if the

People prove both counts beyond a reasonable doubt to the jury. We follow in the

footsteps of Tafoya and hold that he does.

¶2 After the district court denied Vanness’s request for a preliminary hearing,

he filed a C.A.R. 21 petition invoking our original jurisdiction. We issued a rule to

show cause. Because we disagree with the district court and conclude that

Vanness is entitled to a preliminary hearing, we now make the rule absolute.

I. Procedural History

¶3 In their original complaint, the People charged Vanness with a single count

of possession of more than two grams of methamphetamine (a schedule II

controlled substance) in violation of section 18-18-403.5(1), (2)(a), C.R.S. (2019), a

level 4 drug felony. The parties agree that Vanness was not entitled to a

preliminary hearing on that charge because he posted bond and the charge does
3
not involve mandatory sentencing, is not a crime of violence, and is not a sexual

offense. See § 16-5-301(1)(b)(I), (II), C.R.S. (2019); Crim. P. 7(h)(1). A couple of

months later, though, the People amended the complaint to add “Count 2–Special

Offender (DF1)”1 pursuant to the “special offender” statute, section

18-18-407(1)(d)(II), C.R.S. (2019). Count 2 alleges the presence of a statutory

“aggravating circumstance” when Vanness “committed the felony offense

charged in count 1.” More specifically, it alleges that Vanness or a confederate

“possessed a firearm in a vehicle [Vanness] was occupying.” At trial, if the People

prove counts 1 and 2 beyond a reasonable doubt to the jury, Vanness will be guilty

of a level 1 drug felony. See § 18-18-407(1)(d)(II).

¶4 Immediately after the People added count 2, Vanness demanded a

preliminary hearing pursuant to section 16-5-301(1)(a), which provides that

“[e]very person accused of a . . . level 1 . . . drug felony . . . has the right to demand

and receive a preliminary hearing within a reasonable time.” 2 Accord Crim. P.

7(h)(1). The People orally objected, arguing that the special offender count is a

“sentence enhancing” count and “sentence enhancers do not give” defendants “a

right to a preliminary hearing.” The district court agreed with the People. It found

1 “DF1” stands for Drug Felony 1 or level 1 drug felony.
2 Section 18-1-404, C.R.S. (2019), is similar to section 16-5-301. Because any
differences are not material to our analysis, we discuss only section 16-5-301.
4
that the legislature has distinguished between “elements of the charge” and

“sentenc[e] enhancer[s]” for purposes of determining eligibility for a preliminary

hearing. Therefore, reasoned the court, while Vanness may demand that the

People prove the special offender allegation beyond a reasonable doubt to the jury,

he is not entitled to request and receive a preliminary hearing on count 2.

¶5 After its oral ruling, the court remarked that this is a confusing area of the

law. It thus decided to give the parties an opportunity to brief the matter. When

defense counsel indicated, for scheduling purposes, that she intended to file a

C.A.R. 21 petition in the event of an adverse ruling, the court welcomed the

announcement, noting the need for clarity on this issue.

¶6 Thereafter, in response to the defense’s brief, the People did an about-face.

They informed the court that after consulting with the Attorney General and

reviewing the pertinent caselaw further, they had determined that the court

should hold a preliminary hearing on count 2.3 In support of their 180-degree

change, the People cited People v. Simpson, 2012 COA 156, 292 P.3d 1153.

3The People implied that Vanness was entitled to a preliminary hearing only on
count 2. But this limitation seems meaningless because count 2 alleges that
Vanness committed the offense charged in count 1 and that Vanness or a confederate
possessed a firearm in a vehicle Vanness was occupying.
5
¶7 In Simpson, the People argued that the defendant did not qualify for a

preliminary hearing because the charges (theft and theft by receiving) were

elevated to class 3 felonies that qualified for a preliminary hearing, not by virtue

of their elements, but through the operation of a statutory sentence enhancer (the

value of the property taken). Id. at ¶¶ 10–15, 292 P.3d at 1155–56. The division

disagreed, explaining that it did not matter “whether the value of the property

taken [was] an element or an enhancer.” Id. at ¶ 20, 292 P.3d at 1156. What

mattered, according to the division, was that the defendant faced “class 3 felonies”

and could not be convicted of such felonies unless “the prosecution prove[d]

beyond a reasonable doubt” to the jury the value of the property. Id. Thus,

concluded the division, regardless of whether it was considered an element or a

sentence enhancer, the value of the property was “part of ‘the offense charged’”

within the meaning of section 16-5-301(1)(a). Id.

¶8 After reviewing the briefs submitted by Vanness and the People, the district

court issued a written order. Though acknowledging the parties’ agreement, it

denied Vanness’s request for a preliminary hearing. Relying on Felts v. County

Court, 725 P.2d 61 (Colo. App. 1986), a case it considered itself bound by, the

district court concluded that “a defendant is not entitled to a preliminary hearing

on a separate special offender count.” In Felts, the People charged the defendant

with two marijuana-related offenses and three separate special offender counts.
6
Id. at 62. Following its determination that the special offender counts did not

charge substantive offenses but merely represented sentence enhancers, the court

of appeals held that the defendant was not entitled to a preliminary hearing on

those counts. Id.

¶9 The district court found Felts more persuasive than Simpson. It observed

that in Simpson each theft-related count charged a substantive offense that included

within it a fact (the value of the property allegedly taken) that may have been

deemed “a sentence enhancer,” whereas Felts involved substantive offenses and

“separately charged sentence enhancer[s].” (Emphasis added.)4 Because Felts was

more similar than Simpson to this case, the court adhered to Felts.

¶10 Vanness then filed a C.A.R. 21 petition, and we issued a rule to show cause.

The People have now changed their position yet again and ask us to uphold the

district court’s order by discharging the rule.

4 In Simpson, the division distinguished Felts on a similar basis. Simpson, ¶ 22,
292 P.3d at 1156 (explaining that the defendant in Felts “had a right to a
preliminary hearing on his substantive charges” and no such right “on a count that
separately charged a sentence enhancer only,” whereas Simpson had a right to a
preliminary hearing on “a substantive count which include[d] a fact that [was]
part of the offense charged (even if that fact [was] a sentence enhancer)”).
7
 II. Jurisdiction

¶11 We have sole discretion to determine whether to exercise our original

jurisdiction pursuant to Rule 21. See C.A.R. 21(a)(1) (“Relief under this rule . . . is

a matter wholly within the discretion of the supreme court.”); Rowell, ¶ 9, 453 P.3d

at 1159. But relief under Rule 21 is “an extraordinary remedy that is limited in

both purpose and availability.” Rowell, ¶ 9, 453 P.3d at 1159 (quoting People in

Interest of T.T., 2019 CO 54, ¶ 16, 442 P.3d 851, 855–56); accord C.A.R. 21(a)(1)

(“Relief under this rule is extraordinary in nature . . . .”). A review of our

jurisprudence reflects that we have exercised our jurisdiction in circumscribed

situations, such as “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.” Rowell, ¶ 9,

453 P.3d at 1159 (citations omitted).

¶12 In urging us to exercise our original jurisdiction, Vanness contends that a

Rule 21 proceeding is the only adequate appellate remedy and that his petition

raises an issue of first impression that is of significant public importance. We agree

on both fronts.

¶13 First, there is no other adequate remedy because the question we confront

is whether Vanness is entitled to a preliminary hearing, which is “a pretrial

screening device.” Id. at ¶ 11, 453 P.3d at 1159. To the extent Vanness has a right
8
to a preliminary hearing—and, as indicated, we conclude he does—that right will

be rendered moot after trial. See id. Hence, requiring Vanness to raise his claim

on direct appeal (in the event of a conviction) “is not an adequate remedy.” Id.

And we are unaware of any other appropriate remedy. Id.

¶14 Second, Vanness advances an issue of first impression that is of significant

public importance. A preliminary hearing is a procedural safeguard that “seeks

to ‘protect[] the accused’ by ensuring ‘that the prosecution can at least sustain the

burden of proving probable cause.’” Id. at ¶ 12, 453 P.3d at 1159 (alteration in

original) (quoting Hunter v. Dist. Court, 543 P.2d 1265, 1267 (Colo. 1975)). Without

such a hearing, a defendant might improperly remain in custody until trial. Id.

¶15 Additionally, we have never addressed whether a defendant facing the

types of charges brought against Vanness is entitled to a preliminary hearing.

Further, we believe that this is a question that’s likely to come up again. We note

that the district court commented on the complexity of determining whether

someone in Vanness’s shoes qualifies for a preliminary hearing. Defense counsel

echoed that sentiment. And the People opposed Vanness’s request, then agreed

with it, and now oppose it again, suggesting that they, too, are unclear about the

merits of Vanness’s claim. That this is fertile ground for confusion seems like a

foregone conclusion. Accordingly, it behooves us to provide some guidance.

9
 III. Standard of Review

¶16 Whether Vanness is entitled to a preliminary hearing is a question of law.

Id. at ¶ 14, 453 P.3d at 1159. We review questions of law de novo. Id.

IV. Analysis

¶17 The preliminary hearing statute, section 16-5-301, entitles a defendant

“accused of” a level 1 drug felony to demand and receive a preliminary hearing to

determine whether there is probable cause to believe that he committed “the

offense charged.” § 16-5-301(1)(a). Likewise, Crim. P. 7(h)(1) authorizes a

preliminary hearing in any case in which a complaint is filed “charging” a level 1

drug felony. Giving the words and phrases in the statute and rule their plain and

ordinary meaning, we conclude that Vanness is entitled to a preliminary hearing

because the People have accused him of a level 1 drug felony and have charged

him accordingly (albeit through a combination of two separate counts). In

construing a statute, “our primary goal is to ascertain and give effect to the

legislature’s intent by looking first to the statute’s language, giving words and

phrases their plain and ordinary meanings.” Walton v. People, 2019 CO 95, ¶ 10,

451 P.3d 1212, 1215. “We apply the[] same principles of statutory interpretation to

rules of criminal procedure . . . .” People v. Baker, 2019 CO 97M, ¶ 14, 452 P.3d 759,

762.

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¶18 Our recent decision in Tafoya informs today’s decision. There, Tafoya was

being held in custody for driving under the influence (“DUI”). Tafoya, ¶ 1,

434 P.3d at 1194. DUI is a misdemeanor, but given Tafoya’s three prior convictions

for DUI, the People charged her with “DUI—fourth or subsequent offense,” a

class 4 felony. Id. at ¶ 7. Because section 16-5-301(1)(b)(II) permits an in-custody

defendant accused of a class 4 felony to demand and receive a preliminary hearing,

we considered whether Tafoya was accused of a class 4 felony DUI “or whether,

in substance, she was charged with a misdemeanor DUI and a separate sentence

enhancer.” Id. at ¶ 20, 434 P.3d at 1196. In concluding that she was charged with

a class 4 felony DUI, we observed that the relevant statutory provisions “authorize

the People to charge certain repeat DUI offenders with a class [4] felony” and that

the single count in “the complaint . . . unequivocally accuse[d] Tafoya of the

authorized class [4] felony.” Id. at ¶ 24, 434 P.3d at 1196. We therefore held that

she was entitled to a preliminary hearing. Id. at ¶ 2, 434 P.3d at 1194.

¶19 But the People maintain that Tafoya is distinguishable because Vanness is

charged with a substantive offense (a level 4 drug felony) that does not qualify for

a preliminary hearing and then separately charged with a special offender

sentence-enhancing count, and, according to the People, our caselaw establishes

that a defendant is never entitled to demand and receive a preliminary hearing on

a sentence-enhancing count. Thus, assert the People, we should resolve this
11
original proceeding by consulting Maestas v. District Court, 541 P.2d 889, 890 (Colo.

1975), which held that the defendant was not entitled to a preliminary hearing on

habitual criminal counts, and Brown v. District Court, 569 P.2d 1390, 1391 (Colo.

1977), which held that the defendant was not entitled to a preliminary hearing on

a crime-of-violence sentence-enhancing count.

¶20 The People’s analytical framework is inherently flawed. Were we to adopt

it, Vanness’s claim would rise or fall based on whether the special offender

allegation is an element of a substantive offense or a sentence enhancer. But we

made clear in Tafoya that this distinction is not necessarily dispositive for purposes

of determining a defendant’s eligibility for a preliminary hearing. See Tafoya, ¶ 27,

434 P.3d at 1197 (“And regardless of whether Tafoya’s prior convictions could be

deemed sentence enhancers, the prosecution ‘accused’ Tafoya of committing a

class [4] felony DUI, and she remains in custody on that charge.”). Irrespective of

whether the prior DUI convictions in Tafoya were considered elements or sentence

enhancers, Tafoya was entitled to a preliminary hearing because the People had

accused her of and charged her with a class 4 felony. Id.

¶21 We continue on the trail blazed by Tafoya and conclude that what matters

here is that the applicable statutory scheme authorizes the People to charge

Vanness with a level 1 drug felony and, through counts 1 and 2, that is precisely

what the People have done. It follows that Vanness is entitled to a preliminary
12
hearing. A defendant is entitled to a preliminary hearing if he is accused of a level

1 drug felony and charged accordingly.

¶22 Maestas and Brown remain good law, but are inapposite. True, our decisions

in those cases were rooted in our determinations that habitual criminal counts and

crime-of-violence counts do not define substantive offenses but merely allege

circumstances that, if proven, require more severe penalties for the defendant in

the event he is found guilty of a specific crime. Maestas, 541 P.2d at 890; Brown,

569 P.2d at 1391. But in neither case did any sentence-enhancing count affect the

class of a felony charged. The habitual criminal counts in Maestas, if proven, would

have required a longer sentence but could not have impacted the class of a felony

charged. Maestas, 541 P.2d at 890 (“The Habitual Criminal Statute . . . does not

define a substantive offense”; it only prescribes a more severe sentence for one

convicted of a specific crime.). Similarly, the crime-of-violence count under

scrutiny in Brown, if proven, would have yielded a harsher sentence but could not

have changed the class of a felony charged. Brown, 569 P.2d at 1391 (“It is obvious

that the legislature intended the violent crimes sentencing statute to be just that

—a sentencing provision, and not an offense.”). Because habitual criminal counts

and crime-of-violence counts seek solely to punish a defendant more severely for

committing a crime charged in another count, they clearly do not qualify for a

preliminary hearing.
13
¶23 Felts is of the same ilk as Maestas and Brown. The version of the special

offender statute at issue there, section 18-18-107, C.R.S. (1985 Cum. Supp.), did not

affect the class of any felony charged. Rather, it merely required the court to

impose a harsher sentence on any defendant convicted of certain drug crimes

when one of the extraordinary aggravating circumstances identified was present.5

¶24 The delineation we struck in Maestas and Brown—and the one drawn by the

division in Felts—between substantive offenses and sentence enhancers was not

feasible in Tafoya and is not feasible here. Much like the felony DUI statutory

provisions confer “qualities of both elements of [a substantive] offense and

sentence enhancers” on a defendant’s prior DUI convictions, see Tafoya, ¶ 27,

434 P.3d at 1197, section 18-18-407 accords those types of hybrid qualities to the

“aggravating circumstances” that make a defendant a “special offender.” In

Tafoya, the defendant’s prior DUI convictions, if proven, would have required a

harsher sentence but would have also converted the classification of the charged

5 While the special offender statute today elevates the level of the drug felony
charged to a level 1 drug felony when it is committed “under any one or more of
the [listed] aggravating circumstances,Ӥ 18-18-407(1), its predecessor was strictly
a sentence enhancer, see § 18-18-107(1) (“Upon a felony conviction under . . . part 4,
the presence of any one or more of the [listed] extraordinary aggravating
circumstances . . . shall require the court to sentence the defendant to a term
greater than the presumptive range for a class 2 felony but not more than twice the
maximum term” in that presumptive range.).
14
crime from a misdemeanor to a class 4 felony. Here, the aggravating circumstance

alleged in count 2, if proven, will require a harsher sentence but will also alter the

level of the charged crime in count 1 from a level 4 drug felony to a level 1 drug

felony.

¶25 In deciding whether the People have “accused” Vanness of an offense

eligible for a preliminary hearing and have so “charg[ed]” him, we cannot ignore

the special offender allegation any more than we could ignore the allegation

related to the prior DUI convictions in deciding whether Tafoya was entitled to a

preliminary hearing. In line with our holding in Tafoya, since the special offender

allegation against Vanness—regardless of whether it is deemed an element or a

sentence enhancer—affects the level of the drug felony he has been accused of and

charged with, it must be considered in determining whether he has a right to a

preliminary hearing.

¶26 That the People in Tafoya charged a class 4 felony in a single count whereas

the People here have charged Vanness with a level 1 drug felony through two

separate counts is of no moment. Whether through a single count or through

multiple counts, the People have accused Vanness of committing a level 1 drug

felony and have charged him accordingly. Moreover, to hold otherwise would be

to prioritize form over substance and would improperly hinge Vanness’s

15
eligibility for a preliminary hearing on the People’s choice to charge him through

two separate counts instead of a single count.

¶27 Nor do we find persuasive the People’s other form-over-substance attempt

to distinguish Tafoya. The People ask us to deviate from Tafoya on the ground that

the class 4 felony DUI involved a single statute, whereas Vanness is charged

pursuant to two separate statutes—section 18-18-403.5(1), (2)(a) (possession of a

schedule I or II controlled substance) and section 18-18-407(1)(d)(II) (the special

offender statute). We decline the People’s invitation. The fact that the legislature

elected to set forth the special offender aggravating circumstances in a separate

statute, not as part of the statute addressing the unlawful possession of a schedule

I or II controlled substance, is of no consequence to our analysis. Vanness is

entitled to a preliminary hearing because he has been accused by the People of

committing a level 1 drug felony and the People have charged him consistent with

that accusation.

¶28 The People nevertheless insist that Vanness is not entitled to a preliminary

hearing under People v. Garcia, 176 P.3d 872 (Colo. App. 2007). In Garcia, the

defendant was charged with: (1) third degree assault, a class 1 misdemeanor; and

(2) a habitual domestic violence offender count, which, if proven, would have

made the misdemeanor charged a class 5 felony subject to mandatory sentencing

and thus eligible for a preliminary hearing under section 16-5-301(1)(a) and
16
Rule 7(h)(1). Id. at 872. In opposing the defendant’s request for a preliminary

hearing, the People argued that the only “felony charge[]” was the habitual

domestic violence offender count, which “was a sentence enhancer and not a

substantive charge.” Id. The district court sided with the defendant and dismissed

the habitual domestic violence offender count because the People had failed to

present evidence in support of it at the preliminary hearing. Id. at 872–73. The

People appealed, and a division of the court of appeals reversed, finding that the

charge accusing the defendant of misdemeanor third degree assault was a

substantive offense, but that the habitual domestic violence offender count was

not. Id. at 873. Because the only “substantive charge” was a misdemeanor, the

division concluded that the defendant was not entitled to a preliminary hearing

pursuant to section 16-5-301(1)(a). Id. at 874.

¶29 We recognize that, like Vanness, the defendant in Garcia was accused

through two separate counts, which, when considered together, charged a felony

that qualified for a preliminary hearing. As well, the habitual domestic violence

offender statute in Garcia accorded mixed qualities of elements of a substantive

offense and sentence enhancers to the defendant’s prior domestic violence

convictions. If proven, those prior convictions would have simultaneously

subjected the defendant to more severe punishment and transformed the charge

from a class 1 misdemeanor to a class 5 felony. Pointing to these similarities, the
17
People contend that Garcia supports their position. Be that as it may, we are not

bound by Garcia. And, to the extent it is inconsistent with this opinion, it is now

overruled.

¶30 In sum, we conclude that Vanness is entitled to a preliminary hearing on

counts 1 and 2 because, through those counts, the People have accused him of

committing a level 1 drug felony and have charged him accordingly.6

V. Conclusion

¶31 For the foregoing reasons, we conclude that the district court erred in

denying Vanness’s request for a preliminary hearing. Therefore, we make the rule

to show cause absolute.

6 In Tafoya, we said that difficult issues remain in the felony DUI context, including
with respect to whether the People must present proof of the defendant’s prior
DUI convictions at a preliminary hearing. Tafoya, ¶ 28 n.2, 434 P.3d at 1197 n.2
(explaining that we were deferring the question because it was not fully briefed).
Nothing in today’s opinion alters that statement. Though we conclude that
Vanness is entitled to a preliminary hearing on both counts, which means that the
People will have to present evidence at the hearing of the aggravating
circumstance alleged in the special offender count, the aggravating circumstance
here, unlike Tafoya’s DUI record, is not related to the defendant’s criminal history;
it is more akin to the value of the property allegedly taken in Simpson.
18