2021 Colorado Code
Title 18 - Criminal Code
Article 1.3 - Sentencing in Criminal Cases
Part 8 - Special Proceedings - Sentencing of Habitual Criminals
§ 18-1.3-802. Evidence of Former Convictions - Identity

On any trial under the provisions of this section and sections 18-1.3-801 and 18-1.3-803 , a duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party. Identification photographs and fingerprints that are part of the record of such former convictions and judgments, or are part of the records kept at the place of such party's incarceration or by any custodian authorized by the executive director of the department of corrections after sentencing for any of such former convictions and judgments, shall be prima facie evidence of the identity of such party and may be used in evidence against him or her.

History. Source: L. 2002: Entire article added with relocations, p. 1428, § 2, effective October 1.

This section is similar to former § 16-13-102 as it existed prior to 2002.

Law reviews. For article, “Colorado's Habitual Criminal Act: An Overview”, see 12 Colo. Law 215 (1983).

Annotator's note. Since § 18-1.3-802 is similar to § 16-13-102 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, repealed § 39-13-2 , C.R.S. 1963, § 39-13-2 , CRS 53, and CSA, C. 48, § 555(2), relevant cases construing those provisions have been included in the annotations to this section.

An authenticated copy of the record of conviction in a court of record is required under this section to constitute prima facie evidence of a former conviction. Certified copies of the record of former convictions are not sufficient. Coppinger v. People, 152 Colo. 9 , 380 P.2d 19, cert. denied, 375 U.S. 923, 84 S. Ct. 270, 11 L. Ed. 2d 167 (1963).

Certified copies of public records provide proper authentication of former convictions and judgments for purposes of this section. People v. Frost, 5 P.3d 317 (Colo. App. 1999).

Authentication requirement satisfied. There is no definition as to what is intended by the term “duly authenticated”. However, certified copies of final judgments entered in three separate proceedings in each of which the defendant was convicted and sentenced to the penitentiary of a sister state, each being certified as a full, true, and complete copy of the judgment and sentence of the court and authenticated by the clerk of that court under his signature and the seal thereof, accompanied by the certificate of the judge of the court to the effect that the individual who signed as clerk is the clerk of the court; that he is the custodian of the records and papers thereof; that the said attestation is in due form and according to law; and then the further certificate by the clerk that the judge who so certified is a duly elected, commissioned, and qualified judge of said circuit court, all of said certifications being impressed with the seal of the court, are amply and properly certified public records and come within all definitions of due authentication. Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951).

In addition to certified copies of the record of former convictions and judgments of a court of record, certificates of authenticity by the judge of the court that the clerk who certified the records is in fact the clerk of the court and is the custodian of the records and papers thereof, and that his attestation is in due form and according to law, and the additional certificate by the clerk that the judge who so certified is the duly elected, commissioned and qualified judge of said court are essential before the documents may be received under the statute. Coppinger v. People, 152 Colo. 9 , 380 P.2d 19, cert. denied, 375 U.S. 923, 84 S. Ct. 270, 11 L. Ed. 2d 167 (1963).

Sufficiency of documents relating to conviction. The habitual criminal statute requires “a duly authenticated copy of the record of former convictions and judgments”. Thus, certified copies of public records provide proper authentication under this section. People v. Johnson, 699 P.2d 5 (Colo. App. 1984); People v. Bielecki, 964 P.2d 598 (Colo. App. 1998); People v. Shepherd, 43 P.3d 693 (Colo. App. 2001).

Contrary to defendant's contentions, there is no requirement of a reciprocal attestation of the judge and the clerk on the documents. People v. Johnson, 699 P.2d 5 (Colo. App. 1984); People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

Additionally, documents that are admissible under certain rules of evidence, for example, C.R.E. 901 (b)(7), which governs public records, and C.R.E. 902 (1) and (4), which covers self-authenticating documents, may also be used to support a habitual criminal conviction under this section. People v. Bielecki, 964 P.2d 598 (Colo. App. 1998); People v. Martinez, 83 P.3d 1174 (Colo. App. 2003); People v. Gregg, 298 P.3d 983 (Colo. App. 2011).

Nothing in the statute requires that the copies to be introduced come directly and exclusively from the particular courts of record; hence, department of corrections' records of prior convictions, certified by the records' custodian, were properly admitted. People v. Copeland, 976 P.2d 334 (Colo. App. 1998), aff'd on other grounds, 2 P.3d 1283 (Colo. 2000); People v. Shepherd, 43 P.3d 693 (Colo. App. 2001); People v. Martinez, 51 P.3d 1029 (Colo. App. 2001), aff'd in part and rev'd in part on other grounds, 69 P.3d 1029 (Colo. 2003).

Nor is there a requirement that each and every signature contained with an otherwise properly authenticated set of public documents be certified or embossed with a seal. People v. Shepherd, 43 P.3d 693 (Colo. App. 2001).

Certified court records of convictions, certified department of corrections records, testimony from prosecutor's investigator and detention facility employee, detention facility records, and testimony from fingerprint expert constituted sufficient evidence to establish a chain of identity proving beyond a reasonable doubt that defendant was the person convicted in the prior cases on which the habitual criminal counts were based. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003).

Evidence in a packet pertaining to one conviction admitted under this section that also is evidence of another separate and distinct conviction is admissible to prove the other separate and distinct conviction for habitual offender purposes. People v. Tafoya, 985 P.2d 26 (Colo. App. 1999).

Affirmative waiver of right to counsel in record of prior conviction. Although waiver of the right to counsel may not be presumed from a silent record, when the record of a prior conviction affirmatively reflects such waiver, the defendant must make a prima facie showing that the waiver was ineffective before the prosecution must introduce additional evidence to prove the validity of the waiver. People v. Gutierrez, 622 P.2d 547 (Colo. 1981).

When facing an habitual offender charge, a defendant is entitled to advance notice that admissions of prior felonies may not be used in the habitual offender phase of the trial as substantive evidence. People v. Tafoya, 654 P.2d 1342 (Colo. App. 1982); People v. Turley, 870 P.2d 503 (Colo. App. 1993).

When an habitual offender count is charged, an advisement is sufficient if it informs the defendant that admissions concerning prior convictions maybe considered on the issue of credibility and for no other reason. People v. Clouse, 859 P.2d 228 (Colo. App. 1992); People v. Turley, 870 P.2d 498 (Colo. App. 1993).

Record of defendant's conviction of forgery maintained by the Kansas bureau of investigation was sufficient evidence under this section as to a forgery count where the record contained defendant's name, physical description, and federal bureau of investigation number. People v. Deskins, 904 P.2d 1358 (Colo. App. 1995), aff'd in part and rev'd in part on other grounds, 927 P.2d 368 (Colo. 1996).

Applied in Silva v. People, 170 Colo. 152 , 459 P.2d 285 (1969); People v. Weber, 199 Colo. 25 , 604 P.2d 30 (1979); Ramirez v. People, 682 P.2d 1181 (Colo. 1984).