These are additional materials for the Colorado Bar Association Felony DUI seminar, presented by DUI attorney Jay Tiftickjian on June 17, 2015.
District Court Jurisdiction
Defendants prosecuted under the felony enhancement provisions of HB 15-1043 are almost certainly entitled to the wide range of procedural protections that a misdemeanor defendant is not.
In People v. Vigil, 328 P.3d 1066 (Colo. App. 2013), the court of appeals ruled that it was a “structural error” for a defendant facing habitual domestic violence offender (HDVO) charges to be tried on the underlying substantive charge in a county court before a jury of only six persons, where the prosecution had alleged prior convictions that would raise the level of the offense to a class 5 felony.
Because the HDVO statute, by its plain language, would permit a defendant to be convicted of a felony, we conclude that a defendant must also be provided with felony procedural protections, including trial by a jury of twelve in the district court.
Id. at 1072. The rationale would appear to apply with equal force to felony DUI prosecutions. Note however, that even if the case is filed in the district court, at least one court of appeals case holds that a defendant is not entitled to a preliminary hearing on sentence enhancers. People v. Garcia, 176 P.3d 872 (Colo. App. 2007).
No Right to a Jury Determination
Nothing in HB 15-1043 anticipates a jury determination on the issue of prior convictions.
Colorado has consistently relied on Apprendi ‘s “prior conviction” exception in ruling that habitual criminality may be constitutionally adjudicated by a judge and not a jury. See People v. Nunn, 148 P.3d 222, 225 (Colo. App. 2006); People v. Benzor, 100 P.3d 542 (Colo.App.2004); People v. Gilmore, 97 P.3d 123 (Colo.App.2003); People v. Carrasco, 85 P.3d 580 (Colo.App.2003); People v. Johnson, 74 P.3d 349 (Colo.App.2002). A court may also aggravate a sentence on the basis of prior misdemeanor convictions pursuant to the same prior conviction exception set forth in Blakely v. Washington, 542 U.S. 296 (2004). See People v. Huber, 139 P.3d 628, 632 (Colo. 2006); People v. VanMatre, 190 P.3d 770 (Colo. App. 2008).
What Must be Proved Beyond a Reasonable Doubt to the Judge?
In a habitual criminal action, the prosecution bears, among other things, the burden of proving beyond a reasonable doubt that the accused is in fact the person named in the prior convictions. People v. Strock, 252 P.3d 1148 (Colo. App. 2010); People v. Moore, 226 P.3d 1076 (Colo. App. 1076); People v. Martinez, 83 P.3d 1174, 1179 (Colo.App.2003).
In the context of habitual criminal proceedings, the prosecution also bears the burden of proving, beyond a reasonable doubt that the prior convictions in question must arise “out of separate and distinct criminal episodes.” People v. Copeland, 976 P.2d 334 (Colo. App. 1998). HB 15-1043 contains the same requirement and should therefore impose the same burden of proof.
Note: A “criminal episode” includes acts that are committed simultaneously or in close sequence, in the same place or closely-related places, and are part of a schematic whole. Id. at 342.
However, Colorado courts have held that defendants are not entitled to jury determinations on these subsidiary facts, because:
Apprendi’s prior conviction exception extends to the additional statutory factual findings for each prior conviction necessary to support a habitual criminal sentence: (1) that each prior conviction was separately brought and tried; (2) that they arose out of separate and distinct criminal episodes; and (3) that the accused was the person named in each prior conviction.
People v. Moore, supra, at 1089; see also People v. Nunn, supra, at 226. (Note also that HB 15-1043 does not contain the “separately brought and tried” component of the general habitual offender statute.)
What Kind of Evidence is Required to Prove Prior Convictions?
As a general rule, a challenge to the sufficiency of the evidence requires a reviewing court to determine whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. The prosecution must be given the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988). This rule also applies in assessing the sufficiency of evidence regarding prior convictions. People v. Carrasco, 85 P.3d 580, 582 (Colo. App. 2003).
In People v. Cooper, 104 P.3d 307, 312 (Colo. App. 2004), the court held that the fact that defendant has the same name and date of birth as the person previously convicted is insufficient to establish identity with respect to a prior conviction, at least where the defendant’s name was not unusual or distinctive. The court further noted that while the trial court may take judicial notice of its own records, including a mittimus, it may not take judicial notice of facts alleged in a presentence report prepared by the probation department. Id. at 311. However, in the same case, the court held that a probation officer’s in-court identification of the defendant as the person depicted in photographs attached to two different cases, based on probation records, was sufficient evidence to establish identity. Id. at 312.
Evidence of fingerprint cards and expert testimony linking those prints to the defendant is a “valid” method of proving the defendant’s identity as the person who sustained the prior convictions, but fingerprints are not required. People v. Carrasco, supra, at 583.
CRE Rules 901 and 902 generally address the authentication of documents. Under CRE 901 authentication is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims. Examples of this sort of extrinsic evidence include direct testimony of individuals with personal knowledge and comparisons by triers of fact or experts using a previously authenticated specimen.
Testimony is not always necessary. CRE 902 provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to various documents, including:
(2) … A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
This provision has been applied to uphold the admissibility of “pen packs,” certified by the custodian of records for the department of corrections. See People v. Copeland, supra. Further, there is no statutory authority in Colorado that copies former judgments or convictions come directly and exclusively from the particular courts of record where they were obtained. Id. Nonetheless, where the prosecution proffers evidence of priors in the form of “self-authenticating” documents, defense counsel should make sure that the documents are in compliance with the certification requirements of CRE 902.
Collateral Attacks on Pre-July 1984 Misdemeanor Convictions
Because HB 15-1043 can be triggered by a fourth DUI or DWAI at any time in the defendant’s life, some older defendants may be charged with felony DUI on the basis of one or more very old misdemeanor convictions. The collateral attack time bar in C.R.S. section 16-5-402, which became effective in July of 1984, purports to bar challenges to misdemeanors unless brought within six months of the date of conviction unless the defendant can establish justifiable excuse or excusable neglect.
There is a very strong argument, based on the holding of People v. Trimble, 839 P.2d 1168 (Colo. 1992) that defendants whose misdemeanor convictions were incurred prior to 1984, have an almost automatic “justifiable excuse” because the statute was only upheld vis a vis pre-1984 convictions in People v. Fagerholm, 768 P.2d 669 (Colo. 1989) due to a court-created five-year grace period. As recognized in Trimble, the Fagerholm decision only applied to felonies, and it was not until the court announced People v. Fleming, 781 P.2d 1384 (Colo. 1989), several months after Fagerholm, that the same rule was applied to misdemeanors. As the Trimble court recognized, by the time Fleming was announced, the 5-year period would already have expired. Thus, Trimble concluded, defendants in such a position (pre-1984 convictions) had a justifiable excuse for not filing a collateral attack within the grace period, and the statute would not act as a bar for attacking those convictions.