     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.


                                    1
¶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


                                   2
 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


                                    3
  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




                                      4
  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.

                                      5
¶ 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,


                                     6
  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




                                     7
  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.


                                      8
¶ 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


                                      9
  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.


                                     10
  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


                                    11
  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


                                     12
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.




                                  13
