         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).

                                   1
¶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


                                    2
 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


                                     3
  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.

                                         4
  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.

                                     5
  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.




                                    6
       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


                                    7
  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.




                                    8
¶ 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




                                   10
             (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”




                                     11
  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


                                     12
  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.



                                    13
  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).


                                    14
¶ 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.




                                    15
