Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
According to the opinion, pursuant to a request from Lakewood Animal Control, Deputy Joseph Colpitts, a deputy with the Lincoln County Sheriff’s Office, conducted a welfare check on the animals at Constance Caswell’s residential property in Limon, Colorado, on March 15, 2016. Thereafter, the Colorado Humane Society informed the LCSO it had received a call from someone expressing concern about those animals. Three days after his initial visit, Colpitts returned to Caswell’s property with an investigator from the Colorado Humane Society and an inspector from the Pet Animal Care and Facilities Act Program. They met with Caswell about her animals’ welfare.
About two weeks later, on March 31, LCSO deputies executed a search warrant at Caswell’s property. They seized 60 animals: 46 dogs, four cats, five birds and five horses. According to the deputies, there was no food or water for the dogs; no water or fresh air for the cats; no food, drinkable water or fresh air for the birds; and no drinkable water or sufficient food for the horses.
The deputies made additional troubling observations: certain enclosed spaces where some animals were located were covered in trash and feces and smelled strongly of ammonia; some of the animals were underweight, others were dehydrated and others appeared to be suffering from untreated medical conditions; and there were five dead dogs that had to be exhumed.
Based on the deputies’ search, the prosecution filed a complaint charging Caswell with 43 class 6 felony counts of cruelty to animals for acts occurring between March 15 and March 31, 2016. Cruelty to animals is generally a class 1 misdemeanor, Colorado Revised Statute 18-9-202(2)(a). But pursuant to subsection (2)(b)(I) of the statute, it’s a class 6 felony if the defendant has a prior conviction for that crime. Each of the counts brought against Caswell identified her prior cruelty-to-animals conviction as a fact that elevated the classification of the charge from a misdemeanor to a felony and enhanced the applicable sentence.
The prosecution treated Caswell’s case as a felony case from beginning to end. Her case was filed and prosecuted in district court (not county court), and she was afforded all the rights available to any defendant charged with a felony. This includes the right to five peremptory challenges, the right to an additional peremptory challenge for every alternate juror selected and the right to a jury of 12.
Before trial, the defense counsel moved for bifurcation to prevent the jury from hearing about his client’s prior conviction for cruelty to animals. The trial court denied the motion as moot, however, ruling the fact that a prior conviction was a sentence enhancer, not an element of the crime, which meant that it didn’t have to be proved to the jury beyond a reasonable doubt.
The jury found Caswell guilty of all 43 counts. During the sentencing hearing, Caswell conceded she had previously been convicted of cruelty to animals. The trial court accordingly entered 43 class 6 felony convictions. It then sentenced Caswell to eight years of probation, 43 days in jail and 47 days of in-home detention.
Caswell appealed and the appeals court affirmed.
Citing the state high court’s decision in Linnebur v. People, the appeals court rejected Caswell’s contention her convictions should be reversed because the Colorado General Assembly intended the recidivist provision in subsection (2)(b)(I) to be an element of the offense to be proved to the jury beyond a reasonable doubt.
In Linnebur, a case that dealt with the crime of felony driving under the influence, the Colorado Supreme Court explained that where a statute doesn’t explicitly state whether the fact of prior convictions constitutes an element or a sentence enhancer, the court needs to look for other evidence involving the intent of the general assembly. The state high court listed the five factors the U.S. Supreme Court has identified as relevant in deciphering such legislative intent: (1) the statute’s “language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history,” quoting from U.S. v. O’Brien.
The appeals court zeroed in on the first factor — the language and structure of the cruelty-to-animals statute — and concluded it “clearly signal[s] the General Assembly’s intent” to designate the fact of a prior conviction a sentence enhancer. Subsection (2)(b)(I), indicated the appeals court, resides in the part of the statute addressing sentencing, not in the part of the statute setting forth the elements of the offense.
Further, the appeals court added the statute doesn’t require that a prior conviction be pled in the charging document. The appeals court concluded, although the state high court determined in Linnebur the language and structure of the DUI statutory scheme clearly indicates the general assembly intended to make the fact of prior convictions an element of the offense of felony DUI, the language and structure of the cruelty-to-animals statute reflect a different legislative intent regarding the fact of a prior conviction.
The opinion added, although the Colorado Court of Appeals acknowledged the state high court’s analysis in Linnebur which discussed tradition and the risk of unfairness, it was unpersuaded that either factor mattered in this case. Tradition, noted the appeals court, would certainly weigh in favor of considering the fact of a prior conviction as a sentence enhancer because recidivism has historically been deemed a sentence enhancer. The opinion added the appeals court believed it could ignore the risk of unfairness — and, by extension, any potential violation of the Sixth Amendment — because it inferred from the state high court’s opinion in Linnebur it was free to “resolve this case as a matter of statutory interpretation.”
The appeals court didn’t discuss the remaining factors — the severity of the sentence and the statute’s legislative history. Caswell petitioned the Colorado Supreme Court for certiorari and it granted her petition.
The Colorado Supreme Court asked the question: is a criminal defendant in Colorado state court entitled to a jury trial on the recidivist provision of the cruelty-to-animals statute, 18-9-202(2)(b)(I), which transforms a conviction from a misdemeanor into a felony? The answer is no, at least not under the circumstances of this case, according to the state high court.
Applying this multifactor standard, the Colorado Supreme Court held the general assembly intended to designate subsection (2)(b)(I) as a sentence enhancer, not an element of the offense.
The high court also held, among other things, even assuming the defendant’s state constitutional challenge was forfeited and not waived, no plain error occurred. The appeals court judgment was affirmed.
Colorado Supreme Court Justice Richard Gabriel dissented.
According to the opinion, Charles Dorsey was convicted in 1997 of a criminal attempt to commit sexual assault in the second degree. As a result, Dorsey was required to register as a sex offender pursuant to CRS 16-22-103(2), which he did. After this initial registration, Dorsey was obligated to re-register as a sex offender every year within five business days before or after his birthday — see CRS 16-22-108(1)(b).
In 2010, Dorsey was charged in Denver with a class 6 felony for failure to register as a sex offender in violation of section 18-3-412.5. According to a footnote, although section 16-22-108(1)(b) refers to re-registering every year following the initial registration, the crime for failure to re-register is “failure to register” — 18-3-412.5. He pled guilty to a class 1 misdemeanor failure-to-register offense.
Dorsey failed to re-register as a sex offender for a second time in 2017, again in Denver. After a warrant was issued for his arrest, he was taken into custody and charged with failure to register as a sex offender (second or subsequent offense), a class 5 felony — see 18-3-412.5(2)(a). This time, the matter proceeded to a jury trial.
Dorsey moved for a bifurcated trial in which the jury would first consider the substantive charge and then, if it found him guilty, determine whether he had a prior conviction for failure to register. The trial court initially granted his request “out of an abundance of caution,” but it later reversed course and determined bifurcation wasn’t necessary. The prior-conviction provision of subsection (2)(a), reasoned the court, was a sentence enhancer that could be proved to the judge in the event of a conviction, not an element of the offense that had to be proved to the jury.
After the jury found Dorsey guilty of the substantive charge, the trial court ruled at the sentencing hearing, the prosecution had proved the fact of his prior conviction by a preponderance of the evidence. Consequently, it entered a judgment of conviction on a class 5 felony.
On appeal, Dorsey complained the prosecution was required to prove his prior conviction to the jury beyond a reasonable doubt. A division of the court of appeals disagreed and affirmed Dorsey’s conviction. Citing the division’s decision in People v. Caswell, the Dorsey division held “the language and structure” of section 18-3-412.5 suggested the general assembly intended to treat a prior conviction as a sentence enhancer.
More specifically, the Dorsey division explained (1) the prior conviction language appears in a penalty subsection rather than in the subsection outlining the substantive crime and (2) the statute imposes no requirement on the prosecution to plead the fact of a prior conviction in the charging document. The Dorsey division added its conclusion was consistent with how other divisions had historically construed the relevant statutory scheme.
The division declined to address Dorsey’s argument that regardless of the statute’s language, courts must still “apply a functional test under the Sixth Amendment to determine whether the fact [of a prior conviction] increases the punishment for the crime.” Relying on language from the state high court’s decision in Linnebur, the division stated it didn’t need to address Dorsey’s Sixth Amendment claim because the legislature clearly intended subsection (2)(a) to operate as a sentence enhancer.
Dorsey then petitioned the Colorado Supreme Court for certiorari which granted his petition.
This case requires the Colorado Supreme Court to confront a similar issue to the one it took up in the companion case of Caswell v. People, the opinion noted. In Caswell, the lead case, the Colorado Supreme Court held, at least under the circumstances there, a criminal defendant isn’t entitled to a jury trial on the recidivist provision of the cruelty-to-animals statute, 18-9-202(2)(b)(I), which transforms a conviction from a misdemeanor into a felony.
The Colorado Supreme Court in Caswell concluded section 18-9-202(2)(b)(I) is a sentence enhancer, which may be proved to a judge by a preponderance of the evidence, not an element, which must be proved to a jury beyond a reasonable doubt. Using the blueprint laid out in that case, the Colorado Supreme Court concluded in this case a criminal defendant isn’t entitled to a jury trial on the recidivist provision of the failure to register as a sex offender statute, 18-3-412.5(2)(a), which transforms a conviction from a class 6 felony into a class 5 felony.
The opinion explained because the failure-to-register statute doesn’t explicitly state whether subsection (2)(a) sets forth an element of the offense, which must be proved to a jury beyond a reasonable doubt, or a sentence enhancer, which may be proved to a judge by a preponderance of the evidence, the state high court looked to the provisions and framework of the statute to determine the legislature’s intent — see U.S. v. O’Brien. More specifically, the Colorado Supreme Court consulted (1) the language and structure of the statute, (2) tradition, (3) the risk of unfairness, (4) the severity of the sentence, and (5) the statute’s legislative history.
Applying this multifactor standard, the Colorado Supreme Court held the state’s general assembly intended to designate subsection (2)(a) a sentence enhancer, not an element of the offense.
The Colorado Supreme Court also held that allowing a judge to elevate a conviction for failure to register from a class 6 felony to a class 5 felony, based on a prior conviction for failure to register, doesn’t violate a defendant’s right to a jury trial under either the Sixth Amendment or article II, sections 23 and 25 of the Colorado Constitution.
In Caswell, the state high court determined, at least under the circumstances there, neither the Sixth Amendment nor article II, sections 16 and 23 require recidivism provisions that transform misdemeanors into felonies to be proved to a jury beyond a reasonable doubt.
Here, the Colorado Supreme Court confronted a simpler question. Unlike Caswell, this case doesn’t consider the elevation of a misdemeanor into a felony, the opinion noted. The fact of a prior conviction for failure to register merely elevates a subsequent conviction from one class of felony (a class 6 felony) to a more severe class of felony (a class 5 felony), the opinion continued. In as much as the statutory scheme in Caswell passes constitutional muster, the failure-to-register statutory scheme necessarily does as well, the opinion added.
A division of the court of appeals correctly decided the state legislature intended to make subsection (2)(a) a sentence enhancer, not an element, according to the opinion, citing People v. Dorsey. However, the appeals court incorrectly concluded it could bypass the Sixth Amendment question because it was able to discern a clear legislative intent to treat the fact of a prior conviction as a sentence enhancer, the opinion continued. In doing so, the appeals court relied on part of the state high court’s discussion in Linnebur: “[I]f we can glean a clear legislative intent in either direction, then we may leave aside the Sixth Amendment issue and simply resolve this case as a matter of statutory interpretation.”
Today, the Colorado Supreme Court clarified it could set aside the Sixth Amendment issue in Linnebur because it ruled that the fact of prior convictions was an element of felony DUI that had to be proved to the jury beyond a reasonable doubt, thereby granting Linnebur the relief the Sixth Amendment required.
Because the state high court concluded here that the legislature intended to make the fact of a prior conviction a sentence enhancer, it must address whether the state general assembly’s approach violates the Sixth Amendment or article II of the Colorado Constitution. As mentioned, the Colorado Supreme Court ruled that both constitutional claims fall short. The state high court en banc affirmed the appeal’s court’s judgment.
Justice Gabriel concurred specially and concurred in the judgment.