2021 Colorado Code
Title 18 - Criminal Code
Article 1.3 - Sentencing in Criminal Cases
Part 8 - Special Proceedings - Sentencing of Habitual Criminals
§ 18-1.3-801. Punishment for Habitual Criminals

1. 1. A person shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment if the person:
      1. Is convicted of:
         1. Any class 1 or 2 felony or level 1 drug felony; or
         2. Any class 3 felony that is a crime of violence, as defined in section 18-1.3-406 (2); and

      2. Has been twice convicted previously for any of the offenses described in subparagraph (I) of this paragraph (a).

   2. A felony described in subparagraph (I) of paragraph (a) of this subsection (1) is:
      1. One based upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, in this or any other state; or
      2. A crime under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, which, if committed within this state, would be such a felony described in paragraph (a) of this subsection (1).

   3. No person sentenced pursuant to this subsection (1) shall be eligible for parole until such person has served at least forty calendar years.
   4. Nothing in this subsection (1) prohibits the governor from issuing a pardon or a clemency order on a case-by-case basis; however, the governor shall submit a report to the general assembly on each such pardon or clemency order in accordance with section 7 of article IV of the state constitution.
   5. Nothing in this subsection (1) is to be construed to prohibit a person convicted of a class 1 felony from being sentenced pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102.
   6. This subsection (1) shall not apply to a person convicted of first or second degree burglary, which person shall be subject to subsections (1.5), (2), and (2.5) of this section and section 18-1.3-804. (1.5) Except as otherwise provided in subsection (5) of this section, every person convicted in this state of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony shall be adjudged an habitual criminal and shall be punished:
      1. For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of three times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class or level of felony of which such person is convicted; or
      2. For the level 1 drug felony offense of which such person is convicted by imprisonment in the department of corrections for a term of forty-eight years.

2. 1. 1. Except as otherwise provided in paragraph (b) of this subsection (2) and in subsection (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished: (a) (I)Except as otherwise provided in paragraph (b) of this subsection (2) and in subsection (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished:
         1. For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class or level of felony of which such person is convicted; or
         2. For the level 1 drug felony offense of which such person is convicted by imprisonment in the department of corrections for a term of sixty-four years.

      2. Such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment or information. Nothing in this part 8 shall abrogate or affect the punishment by death in any and all crimes punishable by death on or after July 1, 1972.

   2. The provisions of subsection (2)(a) of this section do not apply to a conviction for a level 4 drug felony committed on or after March 1, 2020, pursuant to section 18-18-403.5 (2), or a conviction for a level 4 drug felony committed on or after March 1, 2020, for attempt or conspiracy to commit unlawful possession of a controlled substance, as described in section 18-18-403.5 (2), if the amount of the controlled substance possessed is not more than four grams of any material, compound, mixture, or preparation containing any quantity of gamma hydroxybutyrate, including its salts, isomers, and salts of isomers, or not more than two grams of cathinones or ketamine, or not more than four milligrams of flunitrazepam, even if the person has been previously convicted of three or more qualifying felony convictions. (2.5) Any person who is convicted and sentenced pursuant to subsection (2) of this section, or section 16-13-101 (2) , C.R.S., as it existed prior to October 1, 2002, who is thereafter convicted of a felony which is a crime of violence pursuant to section 18-1.3-406 , shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment. No person sentenced pursuant to this subsection (2.5) shall be eligible for parole until such person has served at least forty calendar years.

3. No drug law conviction shall be counted as a prior felony conviction under this section unless such prior offense would be a felony if committed in this state at the time of the commission of the new offense.
4. A person who meets the criteria set forth in subsection (1) of this section shall be adjudged an habitual criminal and sentenced only in accordance with that subsection and not pursuant to subsections (1.5), (2), and (2.5) of this section.
5. A prior conviction for escape, as described in section 18-8-208 (1), (2), or (3), or attempt to escape, as described in section 18-8-208.1 in effect prior to March 6, 2020, with an underlying factual basis that satisfies the elements of unauthorized absence, as described in section 18-8-208.2, or attempt thereof, may not be used for the purpose of adjudicating a person an habitual criminal, as described in subsection (1.5) or subsection (2) of this section, unless the conviction is based on the offender's escape or attempt to escape from a correctional facility, as defined in section 17-1-102, or from physical custody within a county jail; except that, for the purposes of this section, “correctional facility” does not include a community corrections facility, as defined in section 17-27-102 (2.5), or a halfway house, as defined in section 19-2.5-102.

History. Source: L. 2002: Entire article added with relocations, p. 1426, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(e) amended, p. 33, § 28, effective October 1. L. 2003: (2.5) amended, p. 978, § 16, effective April 17; IP(1)(a), (1.5), (2), and (2.5) amended, p. 1426, § 5, effective April 29. L. 2011: (2) amended,(SB 11-096), ch. 57, p. 151, § 1, effective March 25. L. 2012: (1.5) and (2)(a) amended and (5) added,(HB 12-1213), ch. 183, p. 695, § 1, effective May 17. L. 2013: (1)(a)(I)(A), (1.5), and (2) amended,(SB 13-250), ch. 333, p. 1927, § 36, effective October 1. L. 2014: (2)(b) amended,(SB 14-163), ch. 391, p. 1975, § 13, effective July 1. L. 2017: (5) amended,(HB 17-1330), ch. 374, p. 1937, § 1, effective August 9. L. 2019: (2)(b) amended,(HB 19-1263), ch. 291, p. 2681, § 8, effective March 1, 2020. L. 2020: (5) amended,(HB 20-1019), ch. 9, p. 28, § 11, effective March 6; (1)(e) amended,(SB 20-100), ch. 61, p. 211, § 11, effective March 23. L. 2021: (5) amended,(SB 21-146), ch. 459, p. 3086, § 10, effective July 6; (5) amended,(SB 21-059), ch. 136, p. 721, § 46, effective October 1.

1. This section is similar to former § 16-13-101 as it existed prior to 2002.
2. Amendments to subsection (2.5) by Senate Bill 03-147 and House Bill 03-1236 were harmonized.
3. Amendments to subsection (5) by SB 21-146 and SB 21-059 were harmonized.

For the legislative declaration contained in the 2002 act amending subsection (1)(e), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.

Law reviews. For article, “Recent Judicial Modification of Habitual Criminal Act”, see 23 Dicta 84 (1946). For article, “Prosecution of Habitual Criminals”, see 27 Dicta 376 (1950). For article, “Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement”, see 22 Rocky Mt. L. Rev. 221 (1950). For article, “Joinder of Criminal Charges, Election, Duplicity”, see 30 Dicta 117 (1953). For article, “One Year Review of Criminal Law”, see 34 Dicta 98 (1957). For comment on Smalley v. People (134 Colo. 360 , 304 P.2d 902 (1956)), see 34 Dicta 126 (1957). For article, “Attacking Prior Convictions in Habitual Criminal Cases: Avoiding the Third Strike”, see Colo. Law. 1225 (1982). For article, “Colorado Felony Sentencing”, see 11 Colo. Law. 1478 (1982). For article, “Colorado's Habitual Criminal Act: An Overview”, see 12 Colo. Law. 215 (1983). For article, “Criminal Procedure”, which discusses a Tenth Circuit decision dealing with double jeopardy and habitual criminal adjudications, see 61 Den. L.J. 299 (1984). For article, “Colorado Felony Sentencing -- an Update”, see 14 Colo. Law. 2163 (1985). For article, “Exceeding Presumptive Maximum Sentences in Colorado”, see 44 Colo. Law. 43 (Dec. 2015).

Annotator's note. Since § 18-1.3-702 is similar to § 16-11-502 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, a relevant case construing that provision has been included in the annotations to this section.

This section must be strictly construed. A law which establishes additional and drastic punishment, under a given state of facts, must be strictly construed. Smalley v. People, 96 Colo. 361 , 43 P.2d 385 (1935).

This section must be strictly construed, being in derogation of the common law. Smalley v. People, 116 Colo. 598 , 183 P.2d 558 (1947); DeGesualdo v. People, 147 Colo. 426 , 364 P.2d 374 (1961).

The habitual criminal statute shall be narrowly construed in favor of the accused. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

And doubtful construction resolved in defendant's favor. If there is any doubt about the constitutional meaning of the word “felony” in the habitual criminal act, the supreme court must, upon construction, give the construction that favors the liberty of the accused. Smalley v. People, 134 Colo. 360 , 304 P.2d 902 (1956).

The habitual criminal act does not create a new crime. It merely provides that the court, in sentencing a defendant after conviction, must consider former convictions in imposing sentence. Wright v. People, 116 Colo. 306 , 181 P.2d 447 (1947); Casias v. People, 148 Colo. 544 , 367 P.2d 327 (1961), cert. denied, 369 U.S. 862, 82 S. Ct. 952, 8 L. Ed. 2d 20 (1962).

This section does not establish a substantive offense, but prescribes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous criminalities. Casias v. People, 148 Colo. 544 , 367 P.2d 327 (1961), cert. denied, 369 U.S. 862, 82 S. Ct. 952, 8 L. Ed. 2d 20 (1962).

The habitual criminal statute does not define a substantive offense but relates to sentencing enhancement for the underlying felony. People v. Montoya, 640 P.2d 234 (Colo. App. 1981); People v. Watkins, 684 P.2d 234 (Colo. 1984).

It does not violate the constitution. Section 16 of art. II, Colo. Const., providing that the accused shall be tried by an impartial jury of the county or district in which the offense is alleged to have been committed. Wright v. People, 116 Colo. 306 , 181 P.2d 447 (1947).

The habitual criminal act is not unconstitutional since it is not a special law affecting unequally those similarly situated; it does not place a defendant in double jeopardy and it does not require a defendant to be a witness against himself. Vigil v. People, 137 Colo. 161 , 322 P.2d 320 (1958).

This section is not invalid as against the objection that it inflicts a double punishment for the same offense, that it inflicts cruel or unusual punishment, or unreasonable punishment, that it denies an accused a fair and impartial trial, or that it imposes a penalty on crimes committed outside a jurisdiction. Vigil v. People, 137 Colo. 161 , 322 P.2d 320 (1958).

The habitual criminal provisions do not violate due process as inflicting cruel or unusual punishment. Bernard v. Tinsley, 144 Colo. 244 , 355 P.2d 1098 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 718, 5 L. Ed. 2d 708 (1961).

Both the United States supreme court and the Colorado supreme court have ruled unequivocably that habitual criminal statutes are constitutional despite contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishments, due process, equal protection, and privileges and immunities. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

The equal protection, due process, and cruel, and unusual punishment provisions of the United States constitution are not breached by this section. People v. Larson, 194 Colo. 338 , 572 P.2d 815 (1977).

Even though a person sentenced to life in prison may be eligible for parole before a person sentenced for a term of not less than 25 years and not more than 50 years under this statute, it does not violate the equal protection clause because the statutory scheme gives the parole board discretionary power to grant parole on the basis of factors other than the length of a prisoner's sentence and this is reasonably related to a legitimate government interest. People v. Alexander, 797 P.2d 1250 (Colo. 1990).

The fact that a judge, and not a jury, finds facts that increase a defendant's sentence beyond that authorized by the jury's verdict does not make the habitual criminal act unconstitutional. People v. Carrasco, 85 P.3d 580 (Colo. App. 2003); People v. Benzor, 100 P.3d 542 (Colo. App. 2004).

The constitutionality of this section is well settled in this state. People v. Medina, 193 Colo. 190 , 564 P.2d 119 (1977).

Since the habitual criminal act only applies after a defendant is convicted following a criminal trial or plea of guilty, the act is not a bill of attainder. Garcia v. Zavaras, 960 P.2d 1191 (Colo. 1998).

Nor does this section constitute cruel and unusual punishment within the meaning of the eighth amendment. People v. Bergstrom, 190 Colo. 105 , 544 P.2d 396 (1975); People v. Renfrow, 193 Colo. 131 , 564 P.2d 411 (1977); People v. Martinez, 689 P.2d 653 (Colo. App. 1984); People v. Wandel, 713 P.2d 398 (Colo. App. 1985); People v. Herrera, 728 P.2d 366 (Colo. App. 1986).

The absence of sentencing discretion, even when coupled with a prescribed life sentence, does not render subsection (2) of this section facially invalid as violative of the prohibition of cruel and unusual punishment in § 20 of art. II, Colo. Const.People v. Gutierrez, 622 P.2d 547 (Colo. 1981); People v. Hernandez, 686 P.2d 1325 (Colo. 1984).

The uniquely grave nature of the death penalty is the wellspring from which flows the constitutional requirement that mitigating factors be considered in sentencing notwithstanding the number or seriousness of a defendant's prior offenses. No such requirement is included within the Colorado Constitution's prohibition of cruel and unusual punishments as applied to the sentencing of habitual criminals. People v. Gutierrez, 622 P.2d 547 (Colo. 1981); People v. Hernandez, 686 P.2d 1325 (Colo. 1984).

Considering the number and severity of offenses, the court of appeals did not err in concluding that petitioner's sentence to life imprisonment with no possibility of parole for 40 years was not cruel and unusual punishment under the eighth amendment. At time of sentencing the petitioner was 48 years old. Juarez v. People of the State of Colorado, 855 P.2d 818 (Colo. 1993).

Constitutional protection against double jeopardy applies to defendant prosecuted as habitual criminal. People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled in People v. Porter, 2015 CO 34, 348 P.3d 922.

Double jeopardy principles do not prevent the reinstatement of a defendant's habitual criminal counts. The state's double jeopardy law does not apply to noncapital sentencing proceedings, so double jeopardy does not bar trial of a defendant's habitual counts. People v. Porter, 2015 CO 34, 348 P.3d 922 (overruling People v. Quintana, 634 P.2d 413 (Colo. 1981)).

Use of prior conviction does not constitute double jeopardy. Because the habitual criminal statute does not create new or separate offenses, but rather defines statutes which mandate enhanced or different punishment, the use of a prior conviction as a determinant of status does not constitute double jeopardy. People v. Anderson, 43 Colo. App. 178, 605 P.2d 60 (1979).

Neither does prior adjudication as habitual criminal. A second habitual criminal adjudication which resulted in the imposition of a second life sentence before the first such habitual criminal sentence is satisfied does not constitute double jeopardy. People v. Anderson, 43 Colo. App. 178, 605 P.2d 60 (1979).

No denial of equal protection in selective use. Absent a showing of discrimination based on race or other arbitrary criteria, the selective use of the habitual criminal act does not deny any defendant equal protection of the laws. People v. Bergstrom, 190 Colo. 105 , 544 P.2d 396 (1975); People v. Renfrow, 193 Colo. 131 , 564 P.2d 411 (1977).

Where statistical data does not substantiate completely arbitrary or discriminatory enforcement of this statute based on invidious classifications, defendant's constitutional challenge to the recidivist charge on grounds of equal protection cannot be upheld. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

In prescribing a specific inflexible sentence to life imprisonment for persons found to be habitual criminals on the basis of three prior felony convictions, while allowing various degrees of flexibility in sentencing other offenders, the legislature has not denied such habitual criminals the equal protection of the laws. People v. Gutierrez, 622 P.2d 547 (Colo. 1981); People v. Hernandez, 686 P.2d 1325 (Colo. 1984).

Nor does this section violate the constitutional prohibition on bills of attainder. Velarde v. Zavaras, 960 P.2d 1162 (Colo. 1998).

This section does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), or Ring v. Arizona, 536 U.S. 584 (2002). People v. Wilson, 2012 COA 163 M, 411 P.3d 11, rev'd on other grounds, 2015 CO 54M, 351 P.3d 1126.

No sentence is per se constitutional, and habitual criminal statute does not necessarily incorporate proportionality considerations, thus, defendant may have a right to proportionality review in such a case. People v. Deroulet, 22 P.3d 939 (Colo. App. 2000), aff'd, 48 P.3d 520 (Colo. 2002).

Defendant is entitled to a proportionality review of his sentence imposed under this section, even though the 1993 amendments to this section result in sentences that are arguably more proportional. Any increase in proportionality resulting from the amendments is only with regard to the triggering offense. The underlying offenses are not considered by the statute for proportionality purposes. The court recognized, however, that in almost every case, the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportional, thereby preserving the primacy of the general assembly in crafting sentencing schemes. People v. Deroulet, 48 P.3d 520 (Colo. 2002); People v. Allen, 111 P.3d 518 (Colo. App. 2004).

An abbreviated proportionality review consists of a comparison of two subparts, the gravity of the offense and the harshness of the penalty, to discern if an inference of disproportionality is raised. People v. Allen, 111 P.3d 518 (Colo. App. 2004); Rutter v. People, 2015 CO 71, 363 P.3d 183.

While the legislature can change the classification of crimes, courts determine whether offenses are grave or serious for purposes of proportionality review. Rutter v. People, 2015 CO 71, 363 P.3d 183.

Filing habitual criminal charges improper after defendant prevails in a Crim. P. 35 motion. Where habitual criminal charges were never brought against defendant, notwithstanding the fact that such charges could have been filed under the original information, the filing of such charges in the event defendant prevailed in his Crim. P. 35 motion would not be the reinstatement of previously dismissed charges, but rather would be the improper filing of new and additional charges in retaliation for defendant's exercise of his right to seek postconviction review. People v. Ivery, 44 Colo. App. 511, 615 P.2d 80 (1980).

Filing habitual criminal charges after defendant's successful appeal of conviction was improper where the factual basis for the charges was known to the prosecution from the outset. If the filing were permitted, a defendant's right to be free from apprehension of retaliation by virtue of his having exercised his constitutional right to appeal would be illusory. People v. Walters, 802 P.2d 1155 (Colo. App. 1990).

Section does not violate separation of powers. This section does not delegate to prosecutors the power to define criminal conduct, and thus does not run afoul of the constitutional limitations on separation of powers. People v. Gallegos, 644 P.2d 920 (Colo. 1982).

Defendant not entitled to jury trial on habitual criminal charges. People v. Carrasco, 85 P.3d 580 (Colo. App. 2003); People v. Petschow, 119 P.3d 495 (Colo. App. 2004); People v. Kyle, 111 P.3d 491 (Colo. App. 2004); People v. Benzor, 100 P.3d 542 (Colo. App. 2004); People v. Green, 2012 COA 68 M, 296 P.3d 260.

Habitual criminal charges not subject to statutory speedy trial deadline. Habitual charges are not offenses, but rather are sentence enhancers, and thus the statutory speedy trial six-month time limit does not apply. Section 18-1.3-803 specifically requires the court to conduct a hearing on habitual charges as soon as practicable after the trial of the substantive offense, so the specific requirements of this statute control over the general speedy trial statute. People v. Green, 2012 COA 68 M, 296 P.3d 260.

U.S. supreme court decision in Solem v. Helm (463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)), requires consideration of whether the lack of violence in convictions supporting a finding of habitual criminality is proportional to the life sentence imposed. People v. Hernandez, 686 P.2d 1325 (Colo. 1984); Alvarez v. People, 797 P.2d 37 (Colo. 1990).

Proportionality review under Solem v. Helm is not required where a defendant is sentenced to multiple, consecutive terms for multiple offenses and the total exceeds the defendant's anticipated life span. People v. Bolton, 859 P.2d 311 (Colo. App. 1993), overruled in Close v. People, 48 P.3d 528 (Colo. 2002).

Extended proportionality review not required simply because of the imposition of consecutive sentences. When imposing consecutive sentences the court already exercised its discretion, therefore it may be presumed that such court engaged in a consideration of the nature of the offenses similar to that required by an abbreviated proportionality review. People v. Cabral, 878 P.2d 1 (Colo. App. 1993).

Abbreviated proportionality review is required when life sentence is imposed under habitual criminal statute. Alvarez v. People, 797 P.2d 37 (Colo. 1990); People v. Cisneros, 824 P.2d 16 (Colo. App. 1991).

During sentencing, upon request, a defendant is also entitled to an abbreviated proportionality review of the sentence under this section even if the sentence under review is less than a life term. People v. McNeely, 68 P.3d 540 (Colo. App. 2002); Rutter v. People, 2015 CO 71, 363 P.3d 183.

Proportionality review is required when a life sentence is imposed under this section even though parole is allowed. People v. Austin, 799 P.2d 408 (Colo. App. 1990) (disagreeing with People v. Herrera annotated above).

If defendant faced with life sentence without possibility of parole, a more extensive review is required rather than a limited proportionality review to protect the defendant against cruel and unusual punishment. Under such extended proportionality review, the court should be guided by objective criteria including: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. People v. Cisneros, 824 P.2d 16 (Colo. App. 1991).

Court applied the following Solem v. Helm three-prong analysis used to guide courts in proportionality reviews of life sentences under the eighth amendment: (1) The gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. People v. Gaskins, 923 P.2d 292 (Colo. App. 1996).

Extensive review pursuant to People v. Cisneros not required because: (1) Defendant is 48 and although he would be in prison for a minimum of 40 years under this section, there is still a possibility of parole based on mortality tables set out in § 13-25-103 , and (2) defendant's criminal record consists of crimes more violent and grave than those in Cisneros. People v. Shackelford, 851 P.2d 218 (Colo. App. 1992).

When the sentence mandated by the habitual offender statute gives rise to an inference of gross disproportionality, when compared to the predicate offense and prior convictionsan extended review of the sentence is necessary. Two driving offenses do not amount to grave and serious crimes raising a question of disproportionality. People v. Patnode, 126 P.3d 249 (Colo. App. 2005).

An abbreviated proportionality review is sufficient when the crimes supporting a habitual criminal sentence include grave or serious offenses and when the defendant will become eligible for parole. People v. Gaskins, 825 P.2d 30 (Colo. 1992), cert. denied, 505 U.S. 1213, 112 S. Ct. 3015, 120 L. Ed. 2d 888 (1994); People v. Shackelford, 851 P.2d 218 (Colo. App. 1992).

Defendant is not entitled to extended proportionality review because some of his prior felony convictions occurred when he was a juvenile. Enhanced sentences pursuant to recidivist sentencing statutes punish a defendant only for the offense of conviction, not underlying prior offenses. People v. Porter, 2019 COA 73 , 459 P.3d 710.

An abbreviated proportionality review requires the trial court to conduct a “refined analysis” of the facts and circumstances underlying any previous felony convictions. While an appellate court may conduct a proportionality review, it cannot do so without record evidence of the facts and circumstances underlying the prior felony convictions. People v. Hargrove, 2013 COA 165 , 338 P.3d 413.

During an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate. Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191; Melton v. People, 2019 CO 89, 451 P.3d 415; People v. McRae, 2019 CO 91, 451 P.3d 835.

In determining the gravity or seriousness of the triggering offense and the predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively. Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191; Melton v. People, 2019 CO 89, 451 P.3d 415; People v. McRae, 2019 CO 91, 451 P.3d 835.

Extended proportionality review is required only where abbreviated review yields an inference of gross proportionality. An abbreviated review can yield, at most, an inference of gross proportionality, requiring an extended review. People v. Hargrove, 2013 COA 165 , 338 P.3d 413.

If an abbreviated proportionality review yields no inference of gross proportionality, then the trial court must impose the sentence mandated by the habitual criminal statute. People v. Hargrove, 2013 COA 165 , 338 P.3d 413.

In determining whether the crimes involved in a habitual criminal conviction are grave or serious the offenses are to be reviewed in light of the harm caused or threatened to the victim or society, and the culpability of the offender. People v. Gaskins, 825 P.2d 30 (Colo. 1992), cert. denied, 505 U.S. 1213, 112 S. Ct. 3015, 120 L. Ed. 2d 888 (1994); Juarez v. People, 855 P.2d 818 (Colo. 1993).

Violence is a relevant consideration but not the sole criterion by which to evaluate whether defendant's crimes, when examined in combination, are lacking in gravity or seriousness. Conviction for crimes involving sale and distribution of heroin and other drugs along with prior convictions for felonies of robbery, theft, and attempted criminal mischief justifies imposition of life sentence under this act and does not violate § 20 of article II of the Colorado Constitution or the eighth amendment to the U.S. Constitution.People v. Mershon, 874 P.2d 1025 (Colo. 1994).

Sentence was not disproportionate where one prior felony conviction was for violation of bail bond conditions but the other prior convictions were for serious offenses. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003).

There is no inference of gross disproportionality when weighing the predicate convictions of attempted aggravated robbery and second degree burglary against the sentence of 48 years. People v. Reese, 155 P.3d 477 (Colo. App. 2006).

Attempted aggravated robbery is a grave or serious offense for purposes of proportionality review. People v. Reese, 155 P.3d 477 (Colo. App. 2006).

Convictions in another state for indecency with a child and failure to register as a sex offender are grave and serious convictions for proportionality review purposes. People v. Green, 2012 COA 68 M, 296 P.3d 260.

Conviction for possession with intent to distribute -- and not simple possession -- is a per se grave or serious offense. People v. Loris, 2018 COA 101 , 434 P.3d 754.

Conviction for conspiracy to distribute a controlled substance is a per se grave or serious offense. People v. Loris, 2018 COA 101 , 434 P.3d 754.

Conspiracy to distribute a controlled substance (methamphetamine) is a per se grave or serious offense. People v. Loris, 2018 COA 101 , 434 P.3d 754.

Conviction for forgery is not a grave or serious crime. People v. Loris, 2018 COA 101 , 434 P.3d 754.

Although first degree criminal trespass may not be a per se grave or serious offense, the circumstances of a particular case can make the conviction a grave and serious offense. The harm caused to the victim in this case made the conviction grave and serious. People v. Green, 2012 COA 68 M, 296 P.3d 260.

Because the predicate and triggering offenses were grave and serious, there was no inference of gross disproportionality, and thus the court did not have to conduct an extended proportionality review. People v. Green, 2012 COA 68 M, 296 P.3d 260; People v. Loris, 2018 COA 101 , 434 P.3d 754.

Defendant's sentence was not grossly disproportionate where the triggering offense was grave and serious. Rutter v. People, 2015 CO 71, 363 P.3d 183.

A court may consider whether a substantial legislative change in penalties during the pendency of the case should be considered in conjunction with a proportionality review. People v. Penrod, 892 P.2d 383 (Colo. App. 1994).

A court may consider events that have occurred after defendant committed the offense at issue that may justify a more severe sentence. People v. Penrod, 892 P.2d 383 (Colo. App. 1994).

In deciding whether to remand a case to the trial court for an abbreviated proportionality review an appellate court is given wide discretion. People v. Gaskins, 825 P.2d 30 (Colo. 1992), cert. denied, 505 U.S. 1213, 112 S. Ct. 3015, 120 L. Ed. 2d 888 (1994).

Proportionality review ordinarily should be conducted by trial court in first instance, subject to appellate review. People v. Austin, 799 P.2d 408 (Colo. App. 1990).

But neither this section governing sentencing of habitual criminals, nor former § 18-1-105 (now § 18-1.3-401 ) governing felony sentencing in general, specifically addresses the issue of what sentence may be imposed after a finding by the trial court that the habitual criminal sentence, big or little, would be disproportionate. Therefore, once a finding of disproportionality has been made, a trial court in resentencing should consider all sentencing options otherwise authorized by statute. People v. Valdez, 56 P.3d 1148 (Colo. App. 2002) (decided under former law).

In absence of a need for a refined analysis inquiring into the details of the specific offenses or a detailed comparison of sentences imposed, an appellate court is as well positioned as a trial court to conduct a proportionality review, and there is no justification for remand to the trial court. People v. Gaskins, 825 P.2d 30 (Colo. 1992), cert. denied, 505 U.S. 1213, 112 S. Ct. 3015, 120 L. Ed. 2d 888 (1994).

Court of appeals was as well positioned as trial court to conduct proportionality review. Juarez v. People, 855 P.2d 818 (Colo. 1993).

If the appellate court determines that additional evidence is necessary or desirable, the court should remand for an initial proportionality review by the trial court. People v. Gaskins, 825 P.2d 30 (Colo. 1992), cert. denied, 505 U.S. 1213, 112 S. Ct. 3015, 120 L. Ed. 2d 888 (1994).

However, proportionality review is not required where sentence was an enhanced term of years and not a life sentence with no possibility of parole. People v. Herrera, 728 P.2d 366 (Colo. App. 1986), overruled in Close v. People, 48 P.3d 528 (Colo. 2002).

Trial court erred in substituting a 22-year sentence for the 36-year sentence mandated under this section based on an abbreviated proportionality review. Legislatively mandated sentencing schemes are to be given great deference by court engaging in proportionality review. Adjusting a sentence by a small number of years in either direction goes beyond a determination of disproportionality and improperly interferes with the general assembly's role of determining sentencing schemes. People v. Deroulet, 48 P.3d 520 (Colo. 2002).

Consecutive life sentences not unconstitutional. The exercise of the trial court's discretion that the defendant should serve several of his life sentences consecutively is not an unconstitutional interference with the duties of the parole board. People v. Montgomery, 669 P.2d 1387 (Colo. 1983).

Purpose of this section is to punish more severely those who show a propensity toward repeated criminal conduct. People v. Gimmy, 44 Colo. App. 352, 620 P.2d 42 (1980), aff'd, 645 P.2d 262 (Colo. 1982); People v. District Court, 711 P.2d 666 (Colo. 1985).

The policy of the habitual criminal statute is to punish repeat offenders. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

The legislative purpose of this section is to punish more severely those who show a propensity toward repeated criminal conduct without regard to an opportunity between convictions for the defendant to reform. Gimmy v. People, 645 P.2d 262 (Colo. 1982).

An important rationale for the habitual criminal statute is that enhanced punishment is appropriate when an individual has shown a propensity toward repeated criminal acts. Gimmy v. People, 645 P.2d 262 (Colo. 1982).

The deterrent purpose of this section is to put the defendant on notice that future conduct of the same kind will result in more severe penalties. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

A noncustodial escape conviction may not be used as a current conviction for purposes of adjudicating a person a habitual criminal. People v. Jompp, 2018 COA 128 , 440 P.3d 1166.

Judgment is necessary predicate for sentence enhancement. A plea of guilty may not be used to enhance punishment, for the reason that the conviction process is incomplete. A judgment is a necessary predicate before a conviction may be used for sentence enhancement purposes. Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984).

Enhanced penalty should not be imposed until offender has opportunity to reform because of the salutary discipline from the punishment for the first conviction. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

There is no requirement of a series of warnings and opportunities to reform. Gimmy v. People, 645 P.2d 262 (Colo. 1982).

Ten-year limitation applies to previous convictions. The 10-year limitation of this section applies only to convictions previous to the commission of the offense subject to the habitual criminal penalty enhancement. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

Sentencing is matter reserved for trial judge. The jury's function under this section is to determine how many, if any, prior felony convictions have been suffered by the defendant. Once this determination is made the act of sentencing is a matter reserved for the trial judge acting under applicable statute. Swift v. People, 171 Colo. 178 , 465 P.2d 391 (1970).

But this section makes mandatory the imposition of a life sentence upon a person who has been convicted for the fourth time of having committed a felony. Wolff v. People, 123 Colo. 487 , 230 P.2d 581 (1951); Farrell v. District Court, 135 Colo. 329 , 311 P.2d 410 (1957); Bernard v. Tinsley, 144 Colo. 244 , 355 P.2d 1098 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 718, 5 L. Ed. 2d 708 (1961).

Once a defendant is adjudged an habitual criminal, the court is required to impose a life sentence. People v. Montoya, 640 P.2d 234 (Colo. App. 1981); People v. Reyes, 728 P.2d 349 (Colo. App. 1986).

Sentencing court has no authority to ignore the penalty provisions of this section and to impose sentences below the statutory minimums set by said section. People v. Montgomery, 737 P.2d 413 (Colo. 1987).

If a defendant is advised that evidence of prior convictions introduced in the substantive trial can be used only for credibility proposes, no additional advice is needed that such evidence cannot be used as evidence to prove the habitual offender charges. People v. Windsor, 876 P.2d 55 (Colo. App. 1993).

The legislature's adoption of procedural safeguards under the Habitual Criminal Act was not intended to modify in any manner the provision of the act which requires imposition of a life sentence where an accused has been found guilty of a felony and the jury also finds that he has been three times previously convicted of other felonies alleged against him in the indictment or information. People v. District Court, 711 P.2d 666 (Colo. 1985).

And a defendant who requested an instruction on a lesser felony offense not included in the offense charged in the information placed himself in the same position as if that offense had originally been included in the charging document, for purposes of sentencing under the Habitual Criminal Act. People v. District Court, 711 P.2d 666 (Colo. 1985).

The legislature did not intend to change the effective date of the 1993 amendment to this section in its 1994 amendment, renumbering subsection (1) as subsection (1.5), and intended to maintain the original July 1, 1993, effective date of the renumbered subsection. People v. Pichon, 929 P.2d 3 (Colo. App. 1996).

Inasmuch as habitual criminal counts do not constitute “offenses”, probable cause need not be established in the preliminary hearing to bind these charges over to the district court. Maestas v. District Court, 189 Colo. 443 , 541 P.2d 889 (1975).

The required former convictions must be felonies under this section. Smalley v. People, 134 Colo. 360 , 304 P.2d 902 (1956).

“Felony” defined. The supreme court has expressly recognized § 4 of art. XVIII, Colo. Const., as a definition of the term felony, and that the test by which to determine whether an offense is a felony is by the place of confinement for the prescribed punishment. Smalley v. People, 134 Colo. 360 , 304 P.2d 902 (1956).

Class 4 felony qualifies under subsection (1). A class 4 felony may be punished by a sentence of eight years, and, as such, qualifies under § 16-13-101 (1) as a felony for which the maximum penalty prescribed by law exceeds five years. People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled on other grounds in People v. Porter, 2015 CO 34, 348 P.3d 922.

Class 6 felony is specifically not included in subsection (1.5) and therefore does not fall within the purview of this section. People v. Cooper, 205 P.3d 475 (Colo. App. 2008).

“Convicted” means verdict or plea of guilty. Since the definition of “judgment of conviction” in Crim. P. 32(c) was not in existence at the time the general assembly adopted the habitual criminal act, the general assembly, in employing the words “conviction” and “convicted” in the act, intended to use them in their popular sense, i.e., a verdict of guilty or a plea of guilty. Swift v. People, 174 Colo. 259 , 488 P.2d 80 (1971); People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Conviction based upon a plea of nolo contendere is a “conviction” for purposes of enhancing punishment pursuant to this section. People v. Goodwin, 197 Colo. 47 , 593 P.2d 326 (1979); Blehm v. People, 817 P.2d 988 (Colo. 1991).

“Conviction” as used in the habitual offender statute, includes a judgment of conviction entered upon a plea of nolo contendere. People v. Windsor, 876 P.2d 55 (Colo. App. 1993).

“Driving under the influence-bodily injury” conviction under California law is not a “drug law conviction” under this section. Wilczynski v. People, 891 P.2d 998 (Colo. 1995).

“Driving under the influence-bodily injury” conviction under California law does constitute prior felony conviction under this section. Wilczynski v. People, 891 P.2d 998 (Colo. 1995).

Conviction of lesser nonincluded felony. When a guilty verdict to a lesser nonincluded felony is followed by a verdict finding that the defendant has previously been convicted of three prior felonies which were charged against him in separate counts of the information, subsection (2) mandates the imposition of a sentence to life imprisonment. People v. District Court, 711 P.2d 666 (Colo. 1985).

The term “first conviction”, as used in this section, means punishment for a first conviction under a felony for which defendant is currently charged and convicted. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

Whether conviction results from jury determination of guilt or from a guilty plea is immaterial. People v. Gimmy, 44 Colo. App. 352, 620 P.2d 42 (1980), aff'd, 645 P.2d 262 (Colo. 1982).

A predicate conviction under this section may result either from a conviction following trial, or upon entry of a guilty plea. Gimmy v. People, 645 P.2d 262 (Colo. 1982).

Jury verdicts regarding defendant's status as an habitual offender were not unreliable because jury forms failed to require that the jury make findings on all elements of defendant's habitual criminal status for sentencing where defendant did not assert that the jury instructions were incomplete or inaccurate with respect to each of the elements required to be established by this section. People v. Windsor, 876 P.2d 55 (Colo. App. 1993).

Even though the jury had not made appropriate findings on defendant's status under the “little” habitual statute, the trial court erred in not considering the range of sentences for habitual offenders under subsection (1). Jurors are not required to make any special findings with respect to each element specified in this section. People v. Gaskins, 923 P.2d 292 (Colo. App. 1996).

The wording of the information properly put defendant on notice of the essential elements for habitual criminal sentencing so that defendant could adequately defend himself although the words “conviction” and “judgment” do not appear in the information. The information itemized defendant's four prior felonies and recited that the defendant had pled guilty or nolo contendere to and been sentenced for each. People v. Ortega, 899 P.2d 236 (Colo. App. 1994).

Jury instructions were not defective because jury was not instructed to determine whether previous convictions had occurred within ten years of the commission of the current offense or whether the convictions were for felonies. The dates of the previous offenses were specified in the charges, and the classification of the previous offenses as felonies is a question of law, and not of fact. People v. Chambers, 900 P.2d 1249 (Colo. App. 1994).

Prior convictions are considered as aggravating factors for increased punishment. People v. District Court, 192 Colo. 351 , 559 P.2d 235 (1977).

What “prior conviction” includes. The general assembly intended the term “prior conviction” to include those judgments of conviction that are on appeal. People v. District Court, 192 Colo. 351 , 559 P.2d 235 (1977).

If prior convictions on appeal were not included, many recent felony convictions might be effectively exempted from the operation of this section. This would be clearly inconsistent with the obvious purpose of the statute, which is to punish repeat offenders. People v. District Court, 192 Colo. 351 , 559 P.2d 235 (1977).

“Previously convicted” means that the convictions upon which the habitual criminal counts are based must be “previous” to the commission of the present offense. Gimmy v. People, 645 P.2d 262 (Colo. 1982).

Phrase “twice previously convicted” as used in this section refers back to “commission of the said offense”. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

Prior convictions need not be committed sequentially. There is no requirement that each of the crimes on which the habitual criminal charges are based be committed sequentially; in other words, that the second of the predicate crimes be committed after commission and conviction of the first crime, the third be committed after commission and conviction of the second, and so on. Gimmy v. People, 645 P.2d 262 (Colo. 1982).

The habitual criminal statute requires that neither the prior felonies nor the resulting judgments of conviction occur in any particular sequence in relation to each other. People ex rel. VanMeveren v. District Court, 643 P.2d 37 (Colo. 1982).

It is the commission of the act which gives rise to the conviction, and not the time when conviction occurs, which controls. People v. Ramirez, 652 P.2d 1077 (Colo. App. 1982).

So long as convictions entered prior to commission of pending offense. The determinative consideration is whether judgments of conviction on the prior felonies had been entered prior to the commission of the substantive offense charged in the pending case. People ex rel. VanMeveren v. District Court, 643 P.2d 37 (Colo. 1982).

The court may use two felony convictions that were later reclassified by the legislature after defendant's convictions as misdemeanors for a habitual offender charge. People v. Patnode, 126 P.3d 249 (Colo. App. 2005).

The multiplier in subsection (2)(a) applies to drug felonies. The language used by the legislature would be clearer if it expressly referenced § 18-1.3-401.5 , which provides the presumptive ranges for drug felonies. Nevertheless, the legislature has evinced an unmistakable intent to multiply the maximum of the presumptive range for drug felonies by four times in cases where the defendant has three or more prior felonies. People v. Loris, 2018 COA 101 , 434 P.3d 754.

For a prior drug felony conviction to qualify as a predicate under subsection (3), the prosecution must prove that the prior offense of conviction remained a felony under state law at the time the defendant committed a new offense. People v. Kadell, 2017 COA 124 , 411 P.3d 281.

Subsection (2)(b) does not prohibit courts from considering level 4 drug felony convictions as predicate felony convictions. Although subsection (2)(b) eliminates level 4 drug felonies as triggering offenses for habitual criminal sentencing, it does not change the nature of qualifying felony convictions as defined in subsection (2)(a). People v. Thomas, 2020 COA 19 M, __ P.3d __.

Effective date of prior conviction is not the time that a plea of guilty is entered by a defendant, nor when a jury's verdict of guilt is received by the court, nor is it the time a finding of guilt is made by the trial judge in a trial to the court, but rather the time of a prior conviction for the purposes of this section is the date the judgment of conviction is entered in the trial court. People v. Jacquez, 196 Colo. 569 , 588 P.2d 871 (1979); People v. Skufca, 141 P.3d 876 (Colo. App. 2005), rev'd on other grounds, 176 P.3d 83 (Colo. 2008).

Where prior conviction cannot be used for enhancement. Where defendant never admitted his conviction of an earlier offense, and the issue was not submitted to the jury which convicted him of the present substantive offense, that earlier conviction could not be considered by the trial court for purposes of enhancement of sentence under the habitual criminal statute. Vigil v. People, 196 Colo. 522 , 587 P.2d 1196 (1978).

Where defendant who was subject to sentencing act in an earlier conviction was not properly advised of the penalties under such sentencing act prior to pleading guilty, plea could not be basis for enhancement under habitual criminal statute. People v. Sutka, 713 P.2d 1326 (Colo. App. 1985).

Defendant's previous convictions cannot be used for enhancement where the record does not establish that defendant understood the true nature of the charges to which he pled guilty. Lacy v. People, 775 P.2d 1 (Colo.), cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 337 (1989).

Prior conviction for felonies in another state held to be invalid for enhancing defendant's sentence under habitual offender statute where there was a history of earlier findings of not guilty by reason of insanity and no subsequent formal finding of sanity. People v. Blehm, 791 P.2d 1177 (Colo. App. 1989), aff'd in part and rev'd in part, 817 P.2d 988 (Colo. 1991).

Prior conviction in Colorado by one previously adjudged insane may be valid notwithstanding that he has not been judicially declared to have been restored to sanity. People v. Blehm, 791 P.2d 1177 (Colo. App. 1989), aff'd in part and rev'd in part, 817 P.2d 988 (Colo. 1991).

Prior conviction for causing bodily injury while driving under the influence under California statute was not “drug law conviction” under subsection (3) and was counted as prior felony conviction for sentencing purposes under this section. Categorization of driving under the influence as offense in the vehicle code as opposed to offense relating to controlled substances precludes a determination that general assembly intended to consider it a drug law offense. People v. Wilczynski, 873 P.2d 10 (Colo. App. 1993).

Prior charges which do not result in convictions are irrelevant, and therefore, should not be admitted in a habitual criminal hearing. People v. Reed, 42 Colo. App. 275, 598 P.2d 148 (1979); People v. Nieto, 715 P.2d 1262 (Colo. App. 1985).

Admission to documents in a habitual criminal hearing showing prior crimes charged but which did not result in convictions is not reversible error unless prejudice is shown. People v. Reed, 42 Colo. App. 275, 598 P.2d 148 (1979); People v. Nieto, 715 P.2d 1262 (Colo. App. 1985).

Convictions sustained after subject crime not basis for enhanced penalty. It is improper for the trial court to allow convictions which were sustained after the commission of the subject crime to be the basis for habitual criminal counts. People v. Nees, 200 Colo. 392 , 615 P.2d 690 (1980).

The “separately brought” element and the “separately tried” element are distinct elements, and each must be proved beyond a reasonable doubt. People v. Williams, 2019 COA 32 , 446 P.3d 944.

Convictions on separate charges obtained on the same day. The fact that convictions result from charges separately brought and tried and obtained pursuant to guilty pleas on the same day does not reduce them to one conviction for purposes of this section. People v. Gimmy, 44 Colo. App. 352, 620 P.2d 42 (1980), aff'd, 645 P.2d 262 (Colo. 1982); People v. Germany, 643 P.2d 776 (Colo. App. 1980); People v. Johnson, 644 P.2d 34 (Colo. App. 1980); People v. Hodge, 644 P.2d 38 (Colo. App. 1981).

Where the charges against the defendants were separately brought and would have been tried separately but for the defendant's decisions to enter guilty pleas, the convictions thereby obtained satisfy the definition of predicate felonies in the habitual criminal statute. Gimmy v. People, 645 P.2d 262 (Colo. 1982); People v. Brooks, 2017 COA 80 , 454 P.3d 270, vacated by and aff'd on other grounds, 2019 CO 75M, 448 P.3d 310.

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” for the purposes of this section. People v. Williams, 2019 COA 32 , 446 P.3d 944.

When charges are joined for trial, the nature of the joinder does not determine whether charges are “separately brought and tried” for the purposes of this section. The focus is properly on whether the charged offenses would have been tried separately. People v. Williams, 2019 COA 32 , 446 P.3d 944.

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. People v. Williams, 2019 COA 32 , 446 P.3d 944.

To determine whether two convictions entered on the same date as part of a single plea agreement arose “out of separate and distinct criminal episodes”, it is necessary to determine whether the convictions arose from a series of acts arising from the same criminal episode, such as physical acts that are committed simultaneously or in close sequence, that occur in the same place or closely related places, and that form part of a schematic whole. People v. Jones, 967 P.2d 166 (Colo. App. 1997); People v. Porter, 2019 COA 73 , 459 P.3d 710.

Convictions may be separate even though sentences concurrent. Separate judgments of convictions may result from the separate charges in question, even though the sentences are made concurrent. People v. Ybarra, 652 P.2d 182 (Colo. App. 1982).

A guilty verdict that has withstood a motion for new trial and for which a defendant has been sentenced can be used as a prior conviction for purposes of bringing an habitual criminal charge against a defendant in conjunction with a later felony charge. People v. District Court, 192 Colo. 351 , 559 P.2d 235 (1977).

The error, if any, in admitting a questionable federal conviction was harmless because four other previous felonies were proved. People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993).

This section embraces every felony committed by a defendant here or in a foreign state, and if a felony in the foreign state, it satisfies the statute. The language of this section refutes the contention that all crimes, wherever committed, and regardless of their grade at the situs of the crime must be proven to be felonies if committed within this state. Hahn v. People, 126 Colo. 451 , 251 P.2d 316 (1952).

Conviction of a felony in a sister state, even though crime charged is not a felony in Colorado, is sufficient to authorize sentence under this section. A reading of this section admits of no other interpretation. Burns v. People, 148 Colo. 245 , 365 P.2d 698 (1961); People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979).

It makes no difference for the purposes of enhanced punishment under this section that a previously committed crime is not a felony in Colorado if it is a felony where the conviction was had. People v. Renfrow, 199 Colo. 101 , 605 P.2d 915 (1980).

The time as well as the place of commission of a crime should determine its status as a felony under this section. People v. Renfrow, 199 Colo. 101 , 605 P.2d 915 (1980).

The drug law conviction exception in subsection (3) applies to state drug law convictions. Despite having included language in other parts of this section specifically referencing out-of-state convictions, the legislature has consistently left such language out of subsection (3). Had the legislature intended the subsection to apply to out-of-state crimes, it would have said so. People v. Kadell, 2017 COA 124 , 411 P.3d 281.

Focus of this section is on “crime”, not conduct, occurring in foreign state. Therefore, the inquiry as to whether a foreign predicate misdemeanor conviction would have been a felony in Colorado is limited to a comparison of the statutes, or, where required, to the operative and material allegations of the charging document. Otherwise the defendant could be subjected to a trial of the foreign matter in the habitual criminal phase at a time and place far removed from the site of the crime. People v. Nguyen, 899 P.2d 352 (Colo. App. 1995) (decided under statute as it existed prior to 1994 amendment to subsection (1)).

Allegation and proof necessary to sustain imposition of enhanced penalty under this section focus upon the entry of judgment against a defendant, not on the defendant's plea or a verdict of guilt. Where the prosecutor charged and proved the entry of judgment for three prior convictions, the trial court erred in ruling that the enhanced penalty could not be imposed. People v. Chavez, 198 Colo. 309 , 599 P.2d 261 (1979).

An authenticated copy of the record of former convictions and judgments is prima facie evidence of the convictions and may be used as evidence in a habitual criminal conviction proceeding. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003).

Discretionary reformatory sentence was conviction of a felony. Conviction of the crime of robbery resulting in a sentence to the reformatory rather than to the penitentiary is nevertheless conviction of a felony within the meaning of this section since sentence could have been to the penitentiary notwithstanding the fact that defendant was under the age of 21 years. Martinez v. Tinsley, 142 Colo. 495 , 351 P.2d 879 (1960). But see Smalley v. People, 134 Colo. 360 , 304 P.2d 902 (1956); Villalon v. People, 145 Colo. 327 , 358 P.2d 1018 (1961) (decided under former statute imposing reformatory sentence as a matter of right).

The trial court's ruling that defendant being under 21 years, convicted of a robbery, and subject to sentence to either the reformatory or the penitentiary was guilty of a felony, was correct and within the purview of this section; it does not offend the provisions of § 4 of art. XVIII, Colo. Const.Sandoval v. People, 162 Colo. 416 , 426 P.2d 968 (1967).

Conviction in county court not felony. Before a defendant can be adjudged an habitual criminal, he must have had two prior convictions of felony, and a conviction of grand larceny in the county court is not conviction of a felony. Latham v. People, 136 Colo. 252 , 317 P.2d 894 (1957).

The increased punishment under this statute is not arbitrary because it can only be imposed after the proof of the additional facts of prior convictions. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

The recidivist statute does not attempt to resentence a defendant for a prior felony. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

Sentences imposed under habitual criminal statute supersede those statutorily mandated for specific crimes. People v. Anderson, 43 Colo. App. 178, 605 P.2d 60 (1979).

Rather than imposing a separate sentence for defendant's status, habitual criminal statutes merely substitute a different and more severe sentencing range than the penalty provided for in the criminal statute or statutes which were violated by defendant and which constitute the underlying offense or offenses. The recidivist statute is aimed at habitual criminals and the punishment is for the new crime only, but is heavier if he is an habitual criminal. People v. Early, 692 P.2d 1116 (Colo. App. 1984).

No separate sentence is to be imposed for the habitual criminal adjudication. People v. Reyes, 728 P.2d 349 (Colo. App. 1986).

The sentence to be imposed under this section relates only to the enhancement of punishment of the felony for which defendant is currently charged and convicted. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

A convicted defendant is not foreclosed from later challenging the enhanced sentence resulting from the habitual criminal charge if, in fact, a prior conviction is reversed. People v. District Court, 192 Colo. 351 , 559 P.2d 235 (1977).

In an enhanced sentencing proceeding, the defendant may collaterally attack the constitutional validity of the underlying convictions, but defendant must make a prima facie showing that a prior conviction is invalid in order to challenge the use of that conviction in a later proceeding. People v. Montoya, 640 P.2d 234 (Colo. App. 1981); People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Collateral attacks pursuant to Crim. P. 35(c) on infirmities related to adjudication of habitual criminality under this section should be considered under § 16-5-402 (1) , limiting the time within which such attacks must be made. People v. Hampton, 876 P.2d 1236 (Colo. 1994).

Whether the previous convictions were constitutionally procured is an issue which may properly be raised in an habitual offender proceeding. People v. Gonzales, 38 Colo. App. 522, 565 P.2d 945 (1977).

Prior unconstitutional conviction may not be used. A prior conviction obtained in violation of a constitutional right of the accused cannot be used in a subsequent criminal proceeding to support guilt or to enhance punishment. Watkins v. People, 655 P.2d 834 (Colo. 1982); People v. Cisneros, 665 P.2d 145 (Colo. App. 1983); People v. Johnson, 699 P.2d 5 (Colo. App. 1984).

Procedure where prior conviction alleged to have been unconstitutionally obtained. In attacking the constitutional validity of a prior conviction in habitual criminal proceedings, the defendant must make a prima facie showing that the challenged conviction was unconstitutionally obtained. Once a prima facie showing is made, the conviction is not admissible unless the prosecution establishes by a preponderance of the evidence that the conviction was obtained in accordance with the defendant's constitutional rights. Watkins v. People, 655 P.2d 834 (Colo. 1982); People v. Johnson, 699 P.2d 5 (Colo. App. 1984); People v. Wade, 708 P.2d 1366 (Colo. 1985); Lacy v. People, 775 P.2d 1 (Colo.), cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 337 (1989); People v. Mogul, 812 P.2d 705 (Colo. App. 1991).

Procedure applied in People v. Reyes, 728 P.2d 349 (Colo. App. 1986).

A mere showing of uncertainty about whether the defendant's constitutional rights were fully protected is not sufficient to support vacating an enhanced penalty which was based on a claim that a guilty plea was unconstitutionally obtained. People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Collateral estoppel not applicable in context of an habitual criminal proceeding to a trial court ruling which merely excludes evidence concerning defendant's status as an habitual criminal and, thus, district court was not barred from considering validity of a plea advisement that was previously found to be invalid for purpose of sentence enhancement in an habitual criminal proceeding. Wright v. People, 690 P.2d 1257 (Colo. 1984).

Prior conviction decreed nullity cannot be reaffirmed by defendant. The defendant cannot “reaffirm” the validity of a prior conviction at an habitual offender hearing when the court of appeals has decreed by final judgment that the prior conviction is a nullity. People v. Dugger, 673 P.2d 351 (Colo. 1983).

Proof of habitual criminality through testimonial admissions unconstitutional. Use of defendant's testimonial admissions to prior felony convictions as substantive evidence of his habitual criminality violates due process of law, by unduly burdening defendant's constitutional right to testify in his own defense. People v. Chavez, 632 P.2d 574 (Colo. 1981); People v. Hernandez, 686 P.2d 1325 (Colo. 1984).

The decision in People v. Chavez, is to be given retroactive application. People v. Tafoya, 654 P.2d 1342 (Colo. App. 1982).

If a defendant's guilty plea in a previous conviction was not voluntary and knowing, it was obtained in violation of due process, and a conviction based thereon cannot be used for the purpose of enhancing the punishment for another offense. People v. Gonzales, 38 Colo. App. 522, 565 P.2d 945 (1977).

The admissibility of prior guilty pleas in a habitual criminal hearing turns on whether they meet the constitutional requirements for voluntariness, not whether they satisfy the particular standards of a state's substantive law. Blehm v. People, 817 P.2d 988 (Colo. 1991).

Prior convictions held to have been obtained constitutionally. People v. Chavez, 650 P.2d 1310 (Colo. App. 1982).

Guilty pleas or pleas of nolo contendere which meet the constitutional requirements for voluntariness will be admissible in habitual criminal proceedings even if they do not satisfy more stringent admissibility requirements under another state's substantive law. Blehm v. People, 817 P.2d 988 (Colo. 1991).

If evidence is insufficient to prove that two of defendant's three convictions were separate and distinct, defendant may be resentenced under subsection (1.5). People v. Jones, 967 P.2d 166 (Colo. App. 1997).

When indigent entitled to transcript of prior proceedings. Although an indigent defendant is entitled to a free transcript of prior proceedings when it is necessary for an effective defense in an enhanced sentencing proceeding, the defendant must make a showing that the furnishing of the transcripts would not be just a vain and useless gesture. People v. Montoya, 640 P.2d 234 (Colo. App. 1981).

Plea of guilty under less severe provisions of section proper. Where a plea of guilty to the substantive charge was made by the defendant with the understanding that the less severe provisions of the habitual criminal act only would be invoked against him, and the trial court approved of such disposition of the case and eliminated from consideration one of the counts of the information, and imposed sentence accordingly, the sentence was valid and a writ of habeas corpus was properly denied. Martinez v. Tinsley, 142 Colo. 495 , 351 P.2d 879 (1960).

Indeterminate commitment under the sex offenders act was in lieu of prisoner's sentence under the habitual criminal act, and, therefore, the trial court erred in sentencing him to concurrent terms under the respective statutes. People v. Sanchez, 184 Colo. 379 , 520 P.2d 751 (1974).

Sentence imposed under this section was valid. Vigil v. People, 137 Colo. 161 , 322 P.2d 320 (1958); Hackett v. Tinsley, 143 Colo. 203 , 352 P.2d 799, cert. denied, 364 U.S. 874, 81 S. Ct. 118, 5 L. Ed. 96 (1960).

Where petitioner's sentence under this section cannot be said to be void, he did not seek modification thereof, and there was no showing that he is presently being illegally incarcerated, a petition for a writ of habeas corpus was properly denied. Wright v. Tinsley, 148 Colo. 258 , 365 P.2d 691 (1961).

Defendant's sentence under habitual criminal statute to a term of 40 to 50 years was not disproportionate to his conduct or grossly excessive where he had been convicted of burglary and aggravated robbery before his present conviction for first-degree burglary. People v. Thomas, 189 Colo. 490 , 542 P.2d 387 (1975).

Sentence of 25 years and 4 months is neither cruel or unusual, nor is it disproportionate where defendant was convicted of 3 theft-related felony offenses in 10 years. People v. Nieto, 715 P.2d 1262 (Colo. App. 1985).

The requirement in § 16-11-304 for a definite sentence is also a requirement for any increased sentence imposed under § 16-13-101 . Thus, it was proper for a trial court to impose a definite sentence. People v. Chambers, 749 P.2d 984 (Colo. App. 1987).

Reinstatement of prior felony conviction. Where a prior felony conviction has been dismissed from consideration in habitual criminal proceedings and, without consideration of that conviction, the defendant could not be adjudged an habitual criminal, then it is appropriate that the people be entitled to reinstate that conviction subject to proof of authenticity. People v. Vigil, 39 Colo. App. 462, 570 P.2d 13 (1977).

Reinstatement of all charges where defendant was allowed to plead guilty to the wrong habitual criminal charges. Vacating guilty pleas and reinstating all charges, including habitual criminal charges, is appropriate remedy where, as part of a plea agreement to avoid “big” habitual criminal charges, defendant pled guilty to robbery, violent crime, and to two “little” habitual criminal charges. People v. Martinez, 751 P.2d 660 (Colo. App. 1987).

Where defendant was convicted of aggravated robbery and was adjudicated a habitual criminal, a subsequent reversal of the adjudication of habitual criminality negated its sentence enhancing effect and required resentencing for the underlying charge since it was not clear from the record that the robbery sentence was imposed independently from the habitual criminal adjudication. When resentencing the trial court could consider all relevant and material factors, including new evidence incorporated in a supplemental presentence report. People v. Watkins, 684 P.2d 234 (Colo. 1984).

Mittimus listing “habitual criminal” as crime may be corrected. Where the mittimus erroneously states “habitual criminal” as the crime for which sentence was imposed the only relief to which petitioner is entitled is a correction of the mittimus to conform to the judgment finding him guilty of aggravated robbery, not to a writ of habeas corpus. Bernard v. Tinsley, 144 Colo. 244 , 355 P.2d 1098 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 718, 5 L. Ed. 2d 708 (1961).

Habitual criminal act was validly adopted. Ryan v. Tinsley, 316 F.2d 430 (10th Cir.), appeal dismissed and cert. denied, 375 U.S. 17, 84 S. Ct. 139, 11 L. Ed. 2d 46 (1963).

Out-of-state felonies may be the basis for a habitual criminal count and the people need not allege or prove that the crimes the defendant committed would have been felonies if they had been committed in this state. People v. Drake, 785 P.2d 1257 (Colo. 1990); People v. Wilczynski, 873 P.2d 10 (Colo. App. 1993); People v. Johnson, 74 P.3d 349 (Colo. App. 2002).

Where both the violent crimes statute and the habitual criminal statute apply, the sentencing provisions of both statutes apply and a judge must impose the defendant's sentences to run consecutively. People v. Pena, 794 P.2d 1070 (Colo. App. 1990).

The crime of violence statute's consecutive sentencing requirement, § 18-1.3-406 (1)(a) , does not conflict with the sentencing provisions of this section, so the sentencing court must give effect to both by imposing a sentence within the range required by the habitual criminal statute and then requiring that the sentences for two separate crimes of violence arising from the same incident be served consecutively. People v. Chavez, 2020 COA 80 M, __ P.3d __.

Sentencing provisions of this section do not preempt consecutive sentencing requirement for crimes of violence in § 18-1.3-406 (1)(a) . People v. Lowe, 2020 COA 116 , __ P.3d __.

The sentencing provisions of this section do not preempt other statutory enhancement provisions. People v. Perry, 981 P.2d 667 (Colo. App. 1999).

The provisions of § 18-1-105 (9.7)(a) and (9.7)(b)(XI) which provide that the maximum presumptive range for a class 4 felony shall be increased by two years are not preempted by this section. People v. Perry, 981 P.2d 667 (Colo. App. 1999).

Nothing in this section expressly authorizes trial courts, upon a finding of unusual and extenuating circumstances, to modify crime of violence sentences imposed pursuant to § 18-1-105 (9) . People v. Perry, 981 P.2d 667 (Colo. App. 1999).

If a convicted sex offender is subject to both subsection (1.5) and the provisions of the Colorado Sex Offender Lifetime Supervision Act of 1998, both statutes must be reconciled. In such case, the trial court must impose a prison sentence for an indeterminate term of at least three times the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life. People v. Apodaca, 58 P.3d 1126 (Colo. App. 2002).

Where the defendant was convicted of “extraordinary risk of harm” crime and adjudicated as a habitual criminal, trial court properly calculated defendant's sentence by increasing the maximum presumptive range sentence pursuant to § 18-1-105 (9.7) and then multiplying it by three pursuant to subsection (1.5). People v. Hoefer, 961 P.2d 563 (Colo. App. 1998).

The preemptive scope of the habitual criminal statute does not extend so far as to preclude the mandatory consecutive sentencing requirement for multiple crimes of violence arising out of the same incident. People v. Pena, 794 P.2d 1070 (Colo. App. 1990).

The language “three times the maximum of the presumptive range” as used in subsection (1.5) refers only to sentences of less than life imprisonment and thus trial court erred in imposing three terms of life imprisonment without parole for a defendant charged with one count of first degree murder for the killing of a single victim. People v. Holloway, 973 P.2d 721 (Colo. App. 1998).

Defendant's drug conviction, as both an habitual criminal under this section and as a special drug offender under a prior version of § 18-18-407 , should have resulted in a prison sentence determined by the additional aggravating circumstances of the special drug offender section. By using a formula in the special drug offender section that increases the sentence length without reclassifying the offense for which it is imposed, the legislature requires the application of two different sentence enhancing provisions when the special offender is also an habitual criminal, independently mandating sentence enhancement for different aggravating circumstances. Martinez v. People, 69 P.3d 1029 (Colo. 2003).

Neither this section nor § 18-18-407 purports to limit the effect of additional aggravation or to place an upper limit on the ultimate sentence for a defendant to whom its provisions apply. Martinez v. People, 69 P.3d 1029 (Colo. 2003).

Trial court's failure to consider the application of subsection (3) to defendant's felony conviction was an obvious error, and, because the error resulted in the defendant being sentenced under subsection (2) without sufficient evidence that his prior conviction counted as a prior felony under that provision, the error was substantial. Accordingly, the case was remanded for resentencing. People v. Kadell, 2017 COA 124 , 411 P.3d 281.

Statute as basis for jurisdiction. See Munsell v. People, 122 Colo. 402 , 222 P.2d 615 (1950); Hackett v. People, 158 Colo. 304 , 406 P.2d 331 (1965); Silva v. People, 170 Colo. 152 , 459 P.2d 285 (1969); Mingo v. People, 171 Colo. 474 , 468 P.2d 849 (1970); People v. Hill, 182 Colo. 253 , 512 P.2d 257 (1973).

The presumptive range for a class 6 felony could not be doubled and then the sentence quadrupled because the defendant was also considered an habitual offender. The defendant was convicted of stalking while the defendant was on parole from prison. The stalking offense qualified the defendant as an habitual offender. Stalking is a class 6 felony. Section 18-1-105 requires the doubling of the presumptive range of the conviction for offenses that occur while on parole. Subsection (2) requires the quadrupling of offenses committed by habitual offenders. Subsection (2), however, does not authorize the quadrupling of a sentence that is already increased. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

Court required to apply both § 18-18-405 and this section. A second violation of § 18-18-405 for unlawful distribution and sale of a schedule II controlled substance increases the offense to a class 2 felony. If defendant has been convicted of three previous felonies, subsection (2) requires court to sentence defendant to four times the maximum of the presumptive range for a class 2 felony. People v. Cordova, 199 P.3d 1 (Colo. App. 2007).

Applied in People v. Enlow, 135 Colo. 249 , 310 P.2d 539 (1957); Hatch v. Tinsley, 143 Colo. 170 , 352 P.2d 670 (1960); Jaramillo v. District Court, 173 Colo. 459 , 480 P.2d 841 (1971); People v. Marquez, 190 Colo. 255 , 546 P.2d 482 (1976); People v. Keelin, 39 Colo. App. 124, 565 P.2d 957 (1977); People v. Smith, 195 Colo. 404 , 579 P.2d 1129 (1978); People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978); Hampton v. District Court, 199 Colo. 104 , 605 P.2d 54 (1980); People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980); People v. Self, 200 Colo. 406 , 615 P.2d 693 (1980); People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980); People v. Cabral, 629 P.2d 575 (Colo. 1981); People v. Shaver, 630 P.2d 600 (Colo. 1981); People v. Trujillo, 631 P.2d 146 (Colo. 1981); People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Hotopp, 632 P.2d 600 (Colo. 1981); People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981); People v. Wiedemer, 641 P.2d 289 (Colo. App. 1981); Massey v. People, 649 P.2d 1070 (Colo. 1982); People v. Hale, 654 P.2d 849 (Colo. 1982); People v. Leonard, 673 P.2d 37 (Colo. 1983); People ex rel. Faulk v. District Court ex rel. County of Fremont, 673 P.2d 998 (Colo. 1983); People v. Akers, 746 P.2d 1381 (Colo. App. 1987); People v. Daniels, 973 P.2d 641 (Colo. App. 1998); People v. Copeland, 976 P.2d 334 (Colo. App. 1998), aff'd on other grounds, 2 P.3d 1283 (Colo. 2000).