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                                                        ADVANCE SHEET HEADNOTE
                                                                       June 4, 2018

                                       2018 CO 47

No. 18SA1, In re People v. Austin—Preliminary Hearings.

      Austin petitioned for relief pursuant to C.A.R. 21 from an order of the district

court denying his motion for a preliminary hearing. This court issued its rule to show

cause why the order should not be disapproved, and the People responded.

      The supreme court makes the rule absolute and orders that Austin be given a

preliminary hearing because he was charged by information with a class 4 felony

committed as a “crime of violence” as defined at section 18-1.3-406(2)(a)(I)(B) and (II)(C)

of the revised statutes, which statutorily entitles him to a preliminary hearing, whether

or not he would actually be subject to mandatory sentencing for a crime of violence.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2018 CO 47

                          Supreme Court Case No. 18SA1
                       Original Proceeding Pursuant to C.A.R. 21
                    Weld County District Court Case No. 17CR1231
                       Honorable Thomas J. Quammen, Judge

                                          In Re
                                        Plaintiff:

                          The People of the State of Colorado,

                                            v.

                                       Defendant:

                                  Ilyias Calese Austin.

                                  Rule Made Absolute
                                        en banc
                                      June 4, 2018


Attorneys for Plaintiff:
Michael J. Rourke, District Attorney, Nineteenth Judicial District
Havilah Louise Bruno Lilly, Deputy District Attorney
      Greeley, Colorado

Attorneys for Defendant:
Douglas K. Wilson, Public Defender
John Walsh, Deputy Public Defender
      Greeley, Colorado




JUSTICE COATS delivered the Opinion of the Court.
¶1     Austin petitioned for relief pursuant to C.A.R. 21 from an order of the district

court denying his motion for a preliminary hearing. This court issued its rule to show

cause why the order should not be disapproved, and the People responded.

¶2     Because Austin was charged by information with a class 4 felony committed as a

“crime of violence” as defined at section 18-1.3-406(2)(a)(I)(B) and (II)(C) of the revised

statutes, he is statutorily entitled to a preliminary hearing. The rule is therefore made

absolute, and the case is remanded to the district court for further proceedings

consistent with this opinion.

                                             I

¶3     Ilyias Austin was charged with the class 4 felony of second degree assault

committed by intending to cause bodily injury to another person and causing serious

bodily injury to that person, as proscribed at section 18-3-203(1)(g), C.R.S. (2017). His

subsequently filed motion for a preliminary hearing was denied by the district court.

¶4     After noting that having posted bond, the defendant was at liberty in this case,

and that he was therefore statutorily entitled to a preliminary hearing only if the class 4

felony with which he had been charged required mandatory sentencing or was a crime

of violence, the district court concluded that the felony with which the defendant was

charged met neither condition. With regard to the first condition, the court reasoned

that as the result of a 2016 amendment to section 203 (“Assault in the second degree”),

continuing to mandate sentencing in accordance with the crime-of-violence statute but

relieving the court of any duty to impose a sentence to incarceration for a conviction

pursuant to section 203(1)(g), the defendant was not accused of a felony requiring

                                            2
mandatory sentencing. With regard to the second condition, the court appeared to

reason that this court had equated crime-of-violence sentencing with mandatory

sentencing, and by eliminating mandatory sentencing for subsection (1)(g) assaults, the

amendment to section 203 had effectively removed subsection (1)(g) assaults from the

classification of “crimes of violence” altogether.

¶5       Pursuant to C.A.R. 21, the defendant now seeks relief from the district court’s

order.

                                             II

¶6       A criminal defendant’s right to a preliminary hearing in this jurisdiction is

governed by statute and rule. See § 16-5-301, C.R.S. (2017); § 18-1-404, C.R.S. (2017);

Crim. P. 7; cf. § 19-2-705, C.R.S. (2017) (prescribing preliminary hearings for juveniles

charged with crimes that would be felonies if committed by adults). This right is

limited according to a variety of factors, including the nature and seriousness of the

crime of which the defendant is accused, the process by which he was charged, the

penalty to which he is exposed by that charge, and whether or not he is in custody. See

§ 16-5-301(1)(a), (b)(I), (b)(II). Unless he is in custody for the offense for which he

requests a preliminary hearing, at the time of his request, a person accused of a class 4

felony has a right to such a hearing if, but only if, he was charged by direct information

or felony complaint and the felony with which he was charged requires mandatory

sentencing or is a crime of violence as defined in section 18-1.3-406. See id.

¶7       Although the term “mandatory sentencing” is not expressly defined in the

revised statutes, section 18-1.3-406 is entitled “Mandatory sentences for violent crimes—

                                             3
definitions,” and it: (1) expressly defines the term “Crime of violence,” see

§ 18-1.3-406(2)(a)(I), C.R.S. (2017) (“‘Crime of violence’ means . . .”); § 18-1.3-406(2)(b)(I)

(“‘Crime of violence’ also means . . .”); (2) requires that a person convicted of a crime of

violence be, at least initially, sentenced to the department of corrections for a term of

incarceration1 of at least the midpoint in, but no more than twice the maximum of, the

presumptive range provided for such offense, see § 18-1.3-406(1)(a); and (3) mandates

the charging of separate counts and specific findings as a predicate for crime-of-

violence sentencing, see § 18-1.3-406(3), (4). This statute has long been construed, by

both this court and the court of appeals, as intending that the mandatory sentences to

incarceration provided for crimes of violence apply only upon specific findings of guilt

as to separate counts alleging that the crime of which the defendant stands convicted

was committed as a crime of violence, as delineated in the statute. See People v. Terry,

791 P.2d 374, 378 n.5 (Colo. 1990); see also People v. Russo, 713 P.2d 356, 364 (Colo.

1986) (holding that in order for the jury to properly make the special finding required

by the violent crime statute, the trial court must instruct the jury on both the essential

elements of the violent crime charge and the burden of proof applicable to that charge);

Brown v. Dist. Court In & For First Judicial Dist., Jefferson Cty., 569 P.2d 1390, 1391

(Colo. 1977); People v. Grable, 611 P.2d 588, 589 (Colo. App. 1979).




1 In addition to section 18-1.3-406, the term “mandatory sentencing” appears in section
18-4-413 (entitled “Mandatory sentencing for repeated felony theft from a store—store
defined”) and in section 18-18-406(1), (2) (cross-referencing the penalty for class 1 drug
felonies).

                                              4
¶8     In an omnibus bill in 1986, however, the legislature amended nine criminal

statutes to require that a defendant convicted of crimes proscribed by any of those

statutes “shall be sentenced by the court in accordance with the provisions of section

16-11-309.”2   People v. Terry, 791 P.2d at 377.       After analyzing the language and

legislative history of these amendments, we concluded that they effectively required

mandatory sentencing as prescribed for crimes of violence, without regard for

compliance with the special pleading and proof requirements of the violent crime

statute. See id. at 378. Nine years later, we further explained the rationale for that

holding, referring to those crimes for which a court is required to impose a mandatory

sentence without regard for the special pleading and proof requirements of the crime-

of-violence statute as “per se crimes of violence” and extending that class of crimes to

include even conspiracy to commit per se crimes of violence. Terry v. People, 977 P.2d

145, 151 (Colo. 1999).

¶9     Finally, two years later, we were called upon to construe the statutory language,

“crime of violence, as defined in section 16-11-309,” § 18-1-105(9.7)(b)(XII), C.R.S. (1999),

as it appeared in a related sentencing statute. See People v. Banks, 9 P.3d 1125, 1129

(Colo. 2000). But for the renumbering of the crime-of-violence statute, this language is

identical to the pertinent provision of section 16-5-301, governing a defendant’s




2 Section 16-11-309 was redesignated 18-1.3-406 by the 2002 act Concerning the
Relocation of Certain Existing Criminal Sentencing Statutes to a New Article in Title 18,
Colorado Revised Statutes. Ch. 318, sec. 2, § 18-1.3-406, 2002 Colo. Sess. Laws 1365,
1403–06.

                                             5
entitlement to a preliminary hearing. See § 16-5-301(1)(a), (b)(I). In a case in which the

defendant was convicted of second degree assault on a peace officer, as proscribed at

section 18-3-203(1)(c), which statute had been amended in 1988 to include the

sentencing provision addressed in the two Terry cases making assault on a peace officer

a “per se crime of violence,” we were faced with the question whether such a conviction

also required “extraordinary risk sentencing,” pursuant to section 18-1-105(9.7)(b).

Banks, 9 P.3d at 1126. “Crimes which present an extraordinary risk of harm to society,”

which require “extraordinary risk sentencing,” were statutorily defined to include

“(a)ny crime of violence, as defined in section 16-11-309.” § 18-1-105(9.7)(b), C.R.S.

(1999); id. at 1129.

¶10    In holding that “extraordinary risk sentencing” was not mandated, we expressly

distinguished mandatory sentencing, or crime-of-violence sentencing, under section

16-11-309, from any “crime of violence, as defined in section 16-11-309,” concluding that

the former category applies when (1) the statute defining the offense specifically

requires sentencing under that section or (2) the prosecution pleads and proves use, or

possession and threatened use, of a deadly weapon, or serious bodily injury or death, as

to eligible crimes, according to the procedures prescribed by section 16-11-309(4) and

(5), Banks, 9 P.3d at 1129–30, 1130 n.9, while the latter category refers to crimes actually

meeting the definition of “crimes of violence,” as set forth in section 16-11-309(2), id. at

1131. Because the statute defining the assault of which Banks was convicted required

mandatory sentencing pursuant to section 16-11-309, it constituted a so-called “per se

crime of violence”; nevertheless, because Banks was not found to have committed,

                                             6
conspired to commit, or attempted to commit any of the crimes specified in section

309(2)(a)(II), during which, or in the immediate flight therefrom, he used, or possessed

and threatened the use of, a deadly weapon or caused serious bodily injury or death to

any other person except another participant—the actual definition of “crime of

violence,”    see    § 16-11-309(2)(a)(I),   C.R.S.    (2000)     (currently    designated

§ 18-1.3-406(2)(a)(I))—we held that the crime of which Banks was convicted did not

constitute a “crime of violence, as defined in section 16-11-309.” Id. at 1131–32.

¶11    In Banks, we therefore made it clear that not every crime for the conviction of

which mandatory, or crime of violence, sentencing is required, also constitutes a “crime

of violence as defined in section 18-1.3-406”; and by the same token, not every crime

constituting a “crime of violence defined in section 18-1.3-406” requires, upon its

conviction, mandatory, or crime of violence, sentencing pursuant to section 18-1.3-406.

With regard to the former, despite a specific provision in the statute defining the offense

that mandates sentencing in accordance with section 18-1.3-406, a conviction may

nevertheless not involve any finding, either as an element of the charged offense or by

separate crime of violence count, of the deadly weapon or serious bodily injury

condition necessary to satisfy the definition of a crime of violence. With regard to the

latter, despite conviction of a crime that meets the definition of “crime of violence,” the

specific charging and finding requirements for mandatory, or crime–of-violence,

sentencing may nevertheless not have been complied with.

¶12    As the result of a 2016 amendment to section 18-3-203, courts are no longer

required to sentence defendants convicted of second degree assault pursuant to

                                             7
paragraphs (b), (c), (d), and (g) of subsection (1) “in accordance with the provisions of

section 18-1.3-406.” Ch. 181, sec. 1, § 18-3-203, 2016 Colo. Sess. Laws 620, 620. Rather,

convictions pursuant to these statutory subsections require sentencing “in accordance

with the provisions of section 18-1.3-406; except that, notwithstanding the provisions of

section 18-1.3-406, the court is not required to sentence the defendant to the department

of corrections for a mandatory term of incarceration.” § 18-3-203(2)(c)(II), C.R.S. (2017)

(emphasis added).       Whether or not the district court correctly interpreted this

amendment as no longer requiring “mandatory sentencing” for convictions of second

degree assault proscribed at section 203(1)(g), the amendment clearly does not purport

to affect the definition of a “crime of violence” itself.

¶13    The defendant in this case was charged with committing second degree assault

as proscribed by section 203(1)(g), by intending to cause bodily injury to another person

and causing serious bodily injury to that person. Second degree assault is one of the

crimes specified in the definition of “crime of violence,” and causing serious bodily

injury to another person during the commission of an assault satisfies the remaining

condition of the definition.       See § 18-1.3-406(2)(a)(I)(B), (II)(C).3   Regardless of

sentencing considerations, just as the charge of assault of which the defendant was




3We are aware that (2)(a)(I)(B) limits the “other person” with regard to whom serious
bodily injury or death is caused to “any other person except another participant.”
Because entitlement to a preliminary hearing is predicated on the crime of which the
defendant is accused, in the absence of any allegation that the victim specified in the
charging document was “another participant,” it may be presumed that he was not, for
purposes of entitlement to a preliminary hearing.

                                               8
convicted in Banks did not meet the statutory definition itself and therefore did not

constitute a “crime of violence, as defined in section 16-11-309,” the crime of assault

pursuant to section 203(1)(g), as alleged against the defendant in this case, does meet

that definition and therefore is a “crime of violence defined in section 18-1.3-406.” See

Banks, 9 P.3d at 1131.

¶14       While the word “or” is notoriously ambiguous and takes its meaning from the

specific context in which it is used, no one suggests, and it is clearly not the case, that

“or” is used in its conjunctive implication in prescribing the right to a preliminary

hearing; nor, for the reasons already explained, does it merely offer alternative language

expressing the same concept. See People v. Swain, 959 P.2d 426, 430 n.12 (Colo. 1998)

(explaining that while the word “or” is generally a disjunctive particle that denotes an

alternative, it may also be utilized as a coordinate conjunction introducing a

synonymous word or phrase or it may join different terms expressing the same idea or

thing).     Disjoining alternate conditions, the existence of either of which entitles a

defendant to a preliminary hearing, as the word “or” clearly does in this statute, the fact

that the defendant stands accused of a crime of violence as defined in section 18-1.3-406

is sufficient in itself to entitle him to such a hearing.

                                              III.

¶15       Because Austin was charged by information with a class 4 felony committed as a

“crime of violence” as defined at section 18-1.3-406(2)(a)(I)(B) and (II)(C) of the revised

statutes, he is statutorily entitled to a preliminary hearing. The rule is therefore made



                                                9
absolute, and the case is remanded to the district court for further proceedings

consistent with this opinion.




                                       10
