         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
                                                               March 7, 2019

                                   2019COA32

    No. 17CA0705, People v. Williams — Criminal Law —
Sentencing — Punishment for Habitual Criminals

     A division of the court of appeals considers whether two guilty

pleas entered at the same hearing to two charges brought in

separate charging documents constitute two convictions for

purposes of the habitual criminal sentencing statute, § 18-1.3-

801(2)(a)(I), C.R.S. 2018, when the two charges were permissively

joined for trial under Crim. P. 8(a)(2). The division concludes that

because the charges would have been tried together in one trial but

for defendant’s guilty pleas, in line with Gimmy v. People, 645 P.2d

262, 267 (Colo. 1982), they cannot be considered separately tried

under the habitual criminal sentencing statute. Therefore, the

division further concludes that the two guilty pleas resulted in one

conviction for purposes of the habitual criminal sentencing statute.
     In so concluding, the division rejects the contention that the

inquiry is resolved by determining whether the joinder was

mandatory or permissive under Crim. P. 8. Thus, the trial court

erred in finding this distinction dispositive and adjudicating

defendant a habitual criminal.

     The division also concludes that the trial court did not err in

denying defendant’s motion to suppress the pretrial identification or

in denying his motions for a continuance.

     Accordingly, the division affirms the district court’s judgment,

reverses the sentence, and remands with directions for the trial

court to impose a new sentence and to correct the mittimus.
COLORADO COURT OF APPEALS                                        2019COA32


Court of Appeals No. 17CA0705
City and County of Denver District Court No. 15CR5126
Honorable Andrew P. McCallin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wenston Williams,

Defendant-Appellant.


                JUDGMENT AFFIRMED, SENTENCE REVERSED,
                  AND CASE REMANDED WITH DIRECTIONS

                                   Division V
                           Opinion by JUDGE TERRY
                        J. Jones and Nieto*, JJ., concur

                          Announced March 7, 2019


Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Cynthia M. Mardian, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Defendant, Wenston Williams, appeals his judgment of

 conviction entered after a jury found him guilty of aggravated

 robbery and second degree assault. He also appeals the sentence

 imposed after the trial court adjudicated him a habitual criminal.

¶2    In Part IV of this opinion, we consider whether two guilty pleas

 entered at the same hearing constitute two separate convictions for

 purposes of the habitual criminal sentencing statute, § 18-1.3-

 801(2)(a)(I), C.R.S. 2018, when the pleas were to two charges

 brought in separate charging documents, but later joined for trial

 under Crim. P. 8(a)(2). We conclude that when two charges would

 have been tried together in one trial but for the defendant’s guilty

 pleas, they cannot be considered “separately brought and tried”

 under the habitual criminal sentencing statute. See Gimmy v.

 People, 645 P.2d 262, 267 (Colo. 1982).

¶3    We affirm the judgment, reverse the sentence, and remand

 with directions to impose a new sentence and to correct the

 mittimus.

                           I.   Background

¶4    Defendant robbed an Uber driver (the victim) at knifepoint in

 an alleyway in Denver. After the jury returned its verdict, the trial

                                   1
 court held a hearing to determine whether defendant was a habitual

 criminal. Based on defendant’s prior convictions for first degree

 assault (heat of passion) and two prior convictions for distribution

 of a Schedule II controlled substance, the trial court adjudicated

 him a habitual criminal and sentenced him to sixty-four years in

 prison.

     II.   Defendant’s Motion to Suppress Pretrial Identification

¶5    Defendant contends that the pretrial photo lineup, from which

 the victim identified him, was impermissibly suggestive. He argues

 that he was older than the other men in the photo array, the

 clothing displayed in his photo was unduly suggestive as compared

 with the clothing worn by the other pictured men, and there were

 impermissible differences between the photos because some of the

 pictured men had tattoos. He also contends that the photo array

 was impermissibly suggestive because of the limited number of

 photos included. We disagree with all of these contentions.

             A.   Standard of Review and Applicable Law

¶6    The constitutionality of pretrial identification procedures

 presents a mixed question of law and fact. Bernal v. People, 44 P.3d

 184, 190 (Colo. 2002). Because defendant objected, we review for

                                   2
 harmless error and will reverse if there is a reasonable possibility

 that any erroneous admission of the identification contributed to

 the conviction. People v. Singley, 2015 COA 78M, ¶ 10.

¶7    Suggestive lineups are disapproved of because of the increased

 likelihood of misidentification and, thus, conviction of the innocent.

 Bernal, 44 P.3d at 190. Therefore, “each case must be considered

 on its own facts,” and a conviction based on an eyewitness’s

 identification at trial “following a pretrial identification by

 photograph will be set aside on that ground only if the photographic

 identification procedure was so impermissibly suggestive as to give

 rise to a very substantial likelihood of irreparable misidentification.”

 Id. at 191 (quoting Simmons v. United States, 390 U.S. 377, 384

 (1968)). This standard requires a two-part analysis. Id.

¶8    “First, a court must determine whether the photo array was

 impermissibly suggestive . . . .” Id. The defendant bears the

 burden of proof. Id. “Second, if the defendant’s burden is met, the

 burden shifts to the People to show that despite the improper

 suggestiveness, the identification was nevertheless reliable under

 the ‘totality of the circumstances.’” Id. (quoting Manson v.

 Brathwaite, 432 U.S. 98, 114 (1977)).

                                     3
¶9     Relevant factors to consider in determining whether the

  identification procedure is impermissibly suggestive include the size

  of the array and the manner of its presentation, as well as the

  details of the photographs themselves. Id. An array that includes a

  photo that is unique in a manner directly related to an important

  identification factor may be held impermissibly suggestive. People

  v. Borghesi, 66 P.3d 93, 104 (Colo. 2003) (“[T]he remaining

  consideration is whether the photographs in the array are so limited

  that the defendant is the only one to match the witness’s

  description of the perpetrator.” (citing Bernal, 44 P.3d at 191)). The

  police are not required to “provide a photo array containing only

  ‘exact replicas’ of the defendant’s picture,” but the photos must be

  “matched by race, approximate age, facial hair, and a number of

  other characteristics.” Bernal, 44 P.3d at 191-92 (quoting People v.

  Webster, 987 P.2d 836, 839 (Colo. App. 1998)).

¶ 10   If the court finds a photo array impermissibly suggestive, it

  must then proceed to the second step of the analysis and determine

  whether, under the totality of the circumstances, the suggestive

  procedure created a very substantial likelihood of misidentification.

  Id. at 192.

                                    4
                              B.   Discussion

¶ 11   The number of photos in the array — six — and the

  complained-of details of the photos did not render the lineup

  impermissibly suggestive.

¶ 12   The victim described the suspect as a black male, thirty to

  forty years old, five feet eight inches tall, heavily built, and wearing

  a black hoodie.

¶ 13   At a preliminary hearing, the detective who conducted the

  photo lineup testified that before he showed the photos to the

  victim, he gave the victim several standard admonitions about the

  photo lineup process. The detective showed the victim the six

  photographs individually. Though the detective did not remember

  whether the victim viewed any of the photographs twice, he testified

  that the victim was “pretty quick about” viewing them. The

  detective was not involved with the case in any other way and did

  not know the identity of the suspect. Another detective testified

  that he compiled the photo lineup using photographs from Web

  Mug based on the characteristics described by the victim.

¶ 14   Nothing about the presentation of the photographs renders the

  procedures surrounding the array suggestive, and the number of

                                      5
  photographs shown was not so small as to make the presentation

  unfairly suggestive. See People v. Wilford, 111 P.3d 512, 514 (Colo.

  App. 2004). The question, then, is whether defendant’s photograph

  substantially matches the description given by the victim, and

  whether it “so stood out from all of the other photographs as to

  ‘suggest to [the victim] that [defendant] was more likely to be the

  culprit.’” Bernal, 44 P.3d at 191 (quoting Jarrett v. Headley, 802

  F.2d 34, 41 (2d Cir. 1986)) (alteration in original).

¶ 15   The trial court found that, although the filler photos were of

  men younger than defendant, defendant “in fact, looks close in age

  to the individuals who are aligned in the photo array, even though

  they were all in their 30s.” Based on that finding, the court

  concluded that defendant’s “age did not stand out as an identifying

  characteristic among all of the other individuals who are aligned in

  the photo array.”

¶ 16   The court also rejected defendant’s argument that his photo

  improperly stood out because he was wearing a hoodie. The court

  noted that the hoodie in defendant’s photo was red, whereas the

  victim described the suspect as wearing a black hoodie, and that

  another man in the photo array was wearing a black hoodie. Under

                                     6
  all of the circumstances, including other distinguishing

  characteristics, such as “the shaved head, the approximate age, and

  the description provided by [the victim],” the court found that the

  photo of defendant wearing a hoodie did not cause the array to be

  unduly suggestive.

¶ 17   The record supports the court’s findings. The photo of

  defendant matched the victim’s description of the suspect “by race,

  approximate age, facial hair, and a number of other

  characteristics,” and the filler photos depicted men who generally fit

  the witness’s description, as required by Bernal. See Singley, ¶ 22.

¶ 18   We are not persuaded that the photo array was impermissibly

  suggestive because one man was wearing a hospital gown. Nor

  does the fact that one of the men had a neck tattoo and one had a

  chest tattoo render the photo array impermissibly suggestive. The

  neck tattoo on one of the men in the lineup appears only faintly,

  and given the witness’s description that the perpetrator was

  wearing a hoodie, there is no reason to believe that a neck or chest

  tattoo would have been visible during the robbery. See People v.

  Plancarte, 232 P.3d 186, 191 (Colo. App. 2009) (photo lineup was

  not impermissibly suggestive where several of the men were too

                                    7
  light-skinned to fit the witnesses’ descriptions and some of them

  had thin or short facial hair, which did not match the description of

  the burglar as clean shaven); Wilford, 111 P.3d at 514 (photo array

  was not impermissibly suggestive where the defendant was wearing

  a red shirt and was one of two men out of six photos with braids,

  and the robber was described as having braided hair).

¶ 19   We further conclude that the photo array was not so

  suggestive “as to give rise to a substantial likelihood of irreparable

  misidentification.” See Wilford, 111 P.3d at 514. Because we

  conclude that the array was not impermissibly suggestive, we do

  not need to reach the second prong of the Bernal test. Borghesi, 66

  P.3d at 106.

              III.   Defendant’s Motions for a Continuance

       A.    Motion for Continuance to Retain Counsel of Choice

¶ 20   Defendant contends that the trial court abused its discretion

  and violated his Sixth Amendment right to his counsel of choice by

  denying his motion for a continuance. We disagree.

              1.     Standard of Review and Applicable Law

¶ 21   We will disturb a trial court’s ruling on a motion for a

  continuance only if the trial court abused its discretion. People v.

                                     8
  Brown, 2014 CO 25, ¶ 19. A trial court abuses its discretion when

  its ruling is manifestly arbitrary, unreasonable, or unfair, or when it

  misapplies the law. Rains v. Barber, 2018 COA 61, ¶ 8.

¶ 22   The Sixth Amendment provides a criminal defendant the right

  to be represented by counsel of his or her choice. People v.

  Maestas, 199 P.3d 713, 716 (Colo. 2009). “[A] defendant’s right to

  select an attorney whom he or she trusts is considered to be central

  to the adversary system and ‘of substantial importance to the

  integrity of the judicial process.’” Brown, ¶ 16 (quoting Rodriguez v.

  Dist. Court, 719 P.2d 699, 705-06 (Colo. 1986)). As a result, “an

  accused who desires and is financially able should be afforded a fair

  opportunity to secure counsel of his own choice.” Anaya v. People,

  764 P.2d 779, 781 (Colo. 1988) (quoting Powell v. Alabama, 287

  U.S. 45, 53 (1932)).

¶ 23   Although courts afford this right great deference, the Sixth

  Amendment does not provide an absolute right to counsel of choice

  in all cases. Brown, ¶¶ 16-17. Considerations such as judicial

  efficiency and maintaining the integrity of the judicial process may

  sometimes outweigh a defendant’s right to counsel of choice. Id. at



                                    9
  ¶ 17. “For example, a defendant may not use the right to counsel of

  choice to delay the trial or impede judicial efficiency.” Id.

¶ 24     When a defendant moves to continue the trial to replace

  counsel, the court must balance the defendant’s right to counsel

  against the demands of fairness and efficiency. Id. at ¶ 20.

  Balancing these competing interests requires the court to consider

  the following eleven factors:

       • the defendant’s actions surrounding the request and apparent

         motive for making the request;

       • chosen counsel’s availability;

       • the length of continuance necessary to accommodate chosen

         counsel;

       • the potential prejudice — beyond mere inconvenience — to the

         prosecution caused by a delay;

       • the inconvenience to witnesses;

       • the case’s age, both in the judicial system and from the date of

         the offense;

       • the number of continuances already granted in the case;

       • the timing of the request to continue;


                                     10
       • the impact of a continuance on the court’s docket;

       • the victim’s position, if the victim’s rights act applies; and

       • any other case-specific factors necessitating or weighing

         against further delay.

  Id. at ¶ 24.

¶ 25     This is not a mechanical test. Id. at ¶ 20. “[N]o single factor is

  dispositive and the weight accorded to each factor will vary

  depending on the specific facts at issue in the case.” Id. at ¶ 24.

                               2.    Discussion

¶ 26     In concluding that the interests of justice required denial of

  defendant’s motion for a continuance, the trial court found that

  defendant could have raised the issue earlier, but instead waited

  until the first day of trial. The court was suspicious of these

  circumstances. Though the trial had already been twice delayed,

  defendant had not yet retained counsel of his choice, and

  consequently replacement counsel was not available to represent

  him on the first day of trial. The court reasoned that any

  continuance to accommodate chosen counsel’s entry into the case

  would be lengthy, and would prejudice the People to “a great extent”

  because of circumstances surrounding the codefendant, who was
                                       11
  set to testify for the prosecution. The court also found that the

  alleged victim would be adversely impacted by such a delay

  because, as a result of the trial, he had deferred an overseas trip to

  visit his terminally ill father. And the court considered the

  possibility that the victim might leave the country as a case-specific

  factor that weighed against any further delay in the nearly two-

  year-old case.

¶ 27        Because the trial court’s findings are supported by the record,

  and the court considered the appropriate factors in balancing

  defendant’s right to have counsel of his choosing against the

  efficient and effective administration of justice, we conclude that the

  court did not abuse its discretion in denying defendant’s motion for

  a continuance. Brown, ¶¶ 17, 26 (“Given the highly factual nature

  of the balancing test, the trial court is undeniably in the best

  position to determine whether a continuance is appropriate.”).

       B.     Motion for a Continuance to Complete Fingerprint Testing

¶ 28        Defendant next contends that the trial court abused its

  discretion and violated his constitutional rights by denying his

  motion for a continuance to allow the People to complete fingerprint

  testing. He further contends that the completed testing would have

                                        12
  allowed for the production of exculpatory evidence. We reject these

  contentions.

¶ 29   We review a trial court’s ruling on discovery matters for an

  abuse of discretion. People v. Dill, 904 P.2d 1367, 1374 (Colo. App.

  1995), aff’d, 927 P.2d 1315 (Colo. 1996).

¶ 30   The prosecution sought to compare defendant’s fingerprints to

  prints found in the victim’s car, but the only print from the car that

  was potentially of sufficient quality to allow for a comparison was of

  a portion of the finger not typically captured on exemplars. Thus,

  the comparison results were inconclusive.

¶ 31   At a pretrial hearing, defendant argued that Crim. P. 16

  required the prosecution to provide a new fingerprint comparison

  before trial. But the prosecution did not have possession or control

  of any exculpatory fingerprint comparison results. See Crim. P.

  16(I)(a)(2) (requiring prosecutors to disclose “any material or

  information within [their] possession or control which tends to

  negate the guilt of the accused as to the offense charged or would

  tend to reduce the punishment therefor”).

¶ 32   To make a comparison as requested by defendant, he would

  have had to provide a new set of his fingerprints. Defendant’s

                                    13
  request amounted to a request that the prosecution retake his

  fingerprints and submit the new exemplars for comparison to those

  found in the car. However, “the state has no duty to have evidence

  tested on the speculative basis that it might have some unspecified

  use for exculpatory purposes.” People v. Apodaca, 998 P.2d 25, 30

  (Colo. App. 1999) (citing People v. Roark, 643 P.2d 756 (Colo.

  1982)). “Failure to investigate does not constitute suppression of

  evidence, nor may the defendant compel the state to search out and

  gather evidence which could be exculpatory.” Id.; see also People v.

  Norwood, 37 Colo. App. 157, 162, 547 P.2d 273, 278 (1975) (the

  state’s failure to take fingerprints and preserve evidence did not

  result in a violation of due process where the state did not benefit

  and investigatory gaps in the prosecution’s case were brought out

  at trial).

¶ 33    Considering the totality of the circumstances, we discern no

  error in the court’s ruling on defendant’s motion for a continuance.

  See Dill, 904 P.2d at 1374.

               IV.   Habitual Criminal Sentencing Statute

¶ 34    Defendant contends that the trial court erroneously sentenced

  him under the habitual criminal sentencing statute because two of

                                    14
  his three prior felony convictions were permissively joined for trial.

  We agree and therefore remand this case to the trial court for

  resentencing without the habitual criminal sentence enhancer.

       A.     Standard of Review and Statutory Construction Principles

¶ 35        Our review of statutory provisions is de novo. Cowen v.

  People, 2018 CO 96, ¶ 11.

¶ 36        When interpreting a statute, our primary purpose is to

  ascertain and give effect to the General Assembly’s intent. Id. We

  start by examining the plain meaning of the statutory language. Id.

  If a term is not defined in a statute, we construe the term in

  accordance with its ordinary or natural meaning. Id. at ¶ 14. We

  give consistent effect to all parts of the statute and construe each

  provision in harmony with the overall statutory design. Id. at ¶ 13.

             B.   “Charges Separately Brought and Tried” Element

¶ 37        For a defendant to be adjudged a habitual criminal under

  section 18-1.3-801(2)(a)(I), the prosecution must prove beyond a

  reasonable doubt that the defendant, having been convicted of a

  felony, “has been three times previously convicted, upon charges

  separately brought and tried, and arising out of separate and



                                       15
  distinct criminal episodes.” People v. Nunn, 148 P.3d 222, 225

  (Colo. App. 2006).

¶ 38   Charges are separately brought where they are “in separate

  informations, with separate docket numbers, arising out of separate

  criminal incidents,” and a predicate conviction can result from

  either a conviction following trial or a guilty plea. Gimmy, 645 P.2d

  at 267 (citing People v. Goodwin, 197 Colo. 47, 593 P.2d 326

  (1979)). Entry of guilty pleas to multiple offenses during the same

  proceeding satisfies the requirement of “charges separately brought

  and tried” where the “predicate convictions arose from charges

  which, had they not been adjudicated through the entry of guilty

  pleas, would have been tried separately.” Id.

                             C.   Discussion

¶ 39   The parties do not dispute that defendant had previously been

  convicted of three felonies that were separately filed under different

  case numbers. Defendant argues, however, that because the two

  cases charging him with distribution of a Schedule II controlled

  substance were joined for trial under Crim. P. 13, they would have

  been tried together had he not entered guilty pleas and, thus, his



                                    16
  previous convictions for distribution should be treated as one

  conviction for habitual criminal purposes.

¶ 40   The People argue that because the charges were for separate

  and distinct criminal episodes under the mandatory joinder statute,

  see § 18-1-408(2), C.R.S. 2018, they could have been tried

  separately. Because the offenses occurred a month and a half

  apart, the People argue that this was not one ongoing criminal

  episode and that, because the two charges and two cases were

  joined permissively, they should not be considered one conviction

  under the habitual criminal sentencing statute.

¶ 41   Even if we assume that the charges arose out of separate and

  distinct criminal episodes and therefore could have been tried

  separately, where, as here, the charges were joined for trial — albeit

  permissively — and would have been tried together but for

  defendant’s guilty pleas, the plain language of the habitual criminal

  sentencing statute and Colorado Supreme Court precedent require

  us to consider defendant’s convictions for distribution as one

  conviction under the habitual criminal sentencing statute. See

  § 18-1.3-801(2)(a)(I) (“[E]very person convicted in this state of any

  felony, who has been three times previously convicted, upon

                                    17
  charges separately brought and tried, and arising out of separate

  and distinct criminal episodes, . . . of a felony . . . shall be adjudged

  an habitual criminal . . . .”) (emphasis added); Gimmy, 645 P.2d at

  267 (“Where the charges against the defendants were separately

  brought and would have been tried separately but for the

  defendants’ decisions to enter guilty pleas, the convictions thereby

  obtained satisfy the definition of predicate felonies in the habitual

  criminal statute.”); see also Brown v. Dist. Court, 197 Colo. 219,

  222, 591 P.2d 99, 100-01 (1979) (noting the District Attorney’s

  argument that “if the seven informations were tried separately they

  could serve as the basis for a habitual criminal proceeding, but if

  tried together they could not,” the supreme court nevertheless

  concluded that the trial court’s consolidation of informations on the

  defendant’s motion was within its sound discretion).

¶ 42   The record makes clear that defendant’s predicate felonies

  were permissively joined for trial, and that the prosecutor planned

  to try both charges together. At a pretrial hearing on defendant’s

  distribution charges, the prosecutor requested that the court join

  the cases based on her intent to admit evidence from both cases in

  each trial under CRE 404(b) “as evidence of modus operandi,

                                     18
  common plan [or] scheme, intent, and . . . lack of mistake.” Over

  defendant’s objection, the court ordered the “consolidation of the

  two cases for trial” and set a single trial date. The day before the

  case went to trial, defendant pleaded guilty to both charges.

¶ 43   We conclude that even if the charges could have been tried

  separately, they would have been tried together but for defendant’s

  guilty pleas. See Gimmy, 645 P.2d at 267. We are further

  persuaded by the language of Crim. P. 8 and 13. Crim. P. 8

  provides for joinder of offenses, and Crim. P. 13 provides for joinder

  of indictments and informations. Both rules contemplate a single

  trial. Crim. P. 13 explicitly states, “[t]he procedure shall be the

  same as if the prosecution were under such single indictment,

  information, complaint, or summons and complaint.” We therefore

  conclude that the trial court erred when it determined that the

  permissive nature of the joinder, as compared to mandatory joinder,

  rendered the charges separately brought and tried under the

  habitual criminal sentencing statute. The mandatory joinder rule is

  relevant to whether the convictions arose out of separate and

  distinct criminal episodes, see People v. Jones, 967 P.2d 166, 169



                                     19
  (Colo. App. 1997), but there is no authority for its application to the

  “separately brought and tried” element of the statute.

¶ 44   Under the mandatory joinder statute, § 18-1-408(2), if the

  prosecuting attorney elects to proceed on several known offenses,

  all such offenses “must be prosecuted by separate counts in a

  single prosecution if they are based on the same act or series of acts

  arising from the same criminal episode.” Crim. P. 8(a)(1) employs

  the same language as the mandatory joinder statute. But under

  subsection (a)(2) of the Rule, which is titled “permissive joinder,”

  “[t]wo or more offenses may be charged in the same indictment or

  information in a separate count for each offense if the offenses

  charged . . . are of the same or similar character or are based on

  two or more acts or transactions connected together or constituting

  parts of a common scheme or plan.” Crim. P. 8(a)(2). Thus, joinder

  is mandatory where the offenses arise from the same criminal

  episode, but joinder is permissive where the offenses arise from

  broader circumstances that do not necessarily constitute one

  criminal episode.

¶ 45   The supreme court has interpreted “[a] series of acts arising

  from the same criminal episode” as including “physical acts that are

                                    20
  committed simultaneously or in close sequence, that occur in the

  same place or closely related places, and that form part of a

  schematic whole.” Jones, 967 P.2d at 169-70 (quoting Jeffrey v.

  Dist. Court, 626 P.2d 631, 639 (Colo. 1981)). This meaning also

  applies “[i]n determining the quantum of proof required to show

  separate and distinct criminal episodes in an habitual criminal

  proceeding.” Id. at 169.

¶ 46   Considering these statutes and rules together, the reader

  would conclude that, if two or more offenses arose out of separate

  criminal episodes, but were of a similar character, they could be

  joined together for trial, yet such joinder would not be required.

  See Crim. P. 8(a)(2). Under that scenario, the two separate offenses,

  if they were tried separately and resulted in felony convictions,

  could qualify as separate predicate felonies for purposes of the

  habitual criminal sentencing statute. See § 18-1.3-801(2)(a)(I).

  However, the “separately brought” element, which requires a

  showing that the convictions arose out of separate criminal

  incidents, and the “separately tried” element remain distinct

  elements and each must be proved beyond a reasonable doubt.



                                    21
¶ 47   In sum, the People’s focus on whether the joinder was

  mandatory or permissive is misplaced. Instead, the focus is

  properly on whether the charged offenses would have been tried

  separately. Because the offenses here were, in fact, joined for trial,

  they would not have been tried separately. Therefore, under

  Gimmy, defendant was not eligible for habitual criminal sentencing

  based on those convictions.

¶ 48   The habitual criminal sentencing statute and Gimmy require

  that the prosecution prove beyond a reasonable doubt that

  defendant’s predicate felony convictions were separately brought

  and would have been separately tried had defendant not entered

  guilty pleas. See § 18-1.3-801(2)(a)(I); Gimmy, 645 P.2d at 267.

  Because the People failed to meet their burden to prove these facts,

  defendant’s adjudication as a habitual criminal is reversed, as is his

  sentence for that adjudication.

                             V.     Conclusion

¶ 49   The judgment of conviction is affirmed. The case is remanded

  for the trial court to impose a new sentence in accordance with this

  opinion and to correct the mittimus.

       JUDGE J. JONES and JUDGE NIETO concur.

                                     22
