Colorado Motor Vehicle Dealer Board v. Freeman

2014 COA 152, 383 P.3d 688, 2014 Colo. App. LEXIS 1911, 2014 WL 5860945
CourtColorado Court of Appeals
DecidedNovember 6, 2014
DocketCourt of Appeals No. 13CA1547
StatusPublished
Cited by1 cases

This text of 2014 COA 152 (Colorado Motor Vehicle Dealer Board v. Freeman) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colorado Motor Vehicle Dealer Board v. Freeman, 2014 COA 152, 383 P.3d 688, 2014 Colo. App. LEXIS 1911, 2014 WL 5860945 (Colo. Ct. App. 2014).

Opinions

Opinion by

JUDGE HAWTHORNE

¶ 1 Respondent, Jeffrey Freeman, appeals the final order of petitioner, Colorado Motor Vehicle Dealer Board (the Board), denying his application for a motor vehicle salesperson’s license. We vacate and remand with directions.

I. Facts and Procedural History

¶ 2 In February 2007, Freeman was convicted of third degree assault of an at-risk adult, a class 6 felony, under ch. 200, sec. 4, § 18-3-204, 2004 Colo. Sess. Laws 636, and ch. 240, sec. 14, § 186.5-103(3), 1995 Colo. Sess. Laws 1254.1

¶ 3 Five years later, Freeman applied for a motor vehicle salesperson’s license. His application was denied on five separate grounds by the Auto Industry Division of the Board (Division). As pertinent here, the Division found that Freeman’s conviction for third degree assault of an at-risk adult constituted a mandatory disqualifying offense under section 12-6-118(7)(a)(I), C.R.S.2014. That statute provides, among other things, that a license shall be denied if an applicant has been convicted of a felony in violation of article 3, title 18 during the previous ten years.

¶ 4 Freeman appealed the Division’s decision to the Board and requested a hearing. Following a hearing, the hearing officer issued an initial decision for the Board upholding the Division’s denial of the salesperson’s license solely on the basis that Freeman’s conviction was a mandatory disqualifying offense under section 12-6-118(7)(a)(I). The hearing officer determined that the substantive offense for which Freeman was convicted was section 18-3-204(3), not section 18-6.5-103(3)(c), and that, as a felony, it was a mandatoiy. disqualifying offense under section 12—6—118(7)(a)(I).

¶ 5 Freeman sought review of the Board’s initial decision. He argued that assault in the third degree of an at-risk adult was not a mandatory disqualifying offense under section 12-6-118(7)(a)(I) because it was not a felony conviction under article 3, title 18.

¶ 6 The Board issued a final order accepting the initial decision in its entirety.

II. Discussion

¶ 7 Freeman contends that the Board erred in upholding the initial decision denying his license application. He argues that his conviction is a felony conviction under section 18-6.5-103(3)(c), not section 18-3-204(l)(a), which specifies that a conviction for assault in the third degree is a class 1 misdemeanor. See § 18-3-204(3). Thus, he as[690]*690serts that his conviction may not be used as a mandatory disqualifying offense under section 12-6-118(7)(a)(I). We agree.

A. Standard of Review

¶ 8 Section 24-4-106(7), C.R.S.2014, sets forth the applicable standards under which we review the Board’s decision. See Colo. State Bd. of Pharmacy v. Priem, 2012 COA 5, ¶ 15, 272 P.3d 1136. It allows us to set aside a decision if it is arbitrary or capricious, violative of constitutional or statutory rights, or not in accordance with the law. See Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332, 1342-43 (Colo.1997); Priem, ¶ 15.

¶ 9 The interpretation of a statute is a question of law that we review de novo. Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1116 (Colo.App.2008). Our goal is to ascertain the General Assembly’s intent, and, in doing so, we look primarily at the statute’s plain language. Priem, ¶ 17; Smith, 200 P.3d at 1116.

B. Analysis

¶ 10 Section 12-6-118(7)(a) provides:

Any license issued or for which an application has been made pursuant to this part 1 shall be revoked or denied if the licensee or applicant has been convicted of or pleaded no contest to any of the following offenses in this state or any other jurisdiction during the previous ten years:
(I) A felony in violation of article 3, 4, or 5 of title 18, C.R.S., or any similar crime under federal law or the law of any other state.

¶ 11 Section 18-3-204(l)(a) defines what conduct constitutes the crime of “assault in the third degree” and provides that it is a class 1 misdemeanor. See § 18-3-204(3). Section 18-6.5-103(3)(c) states that “[a]ny person who commits a crime of assault in the third degree, as such crime is described in section 18-3-204, and the victim is an at-risk adult or an at-risk juvenile commits a class 6 felony.”

¶ 12 The hearing officer concluded that section 18-6.5-103(3)(c) does not create a separate offense, but is merely a sentence enhancement for the crime described in section 18-3-204 and, thus, the substantive offense for which Freeman was convicted was section 18-3-204(3), not section 18-6.5-103(3)(c). However, even if we agree with this analysis, we do not agree with the hearing officer’s conclusion that Freeman’s conviction constituted a felony under article 3, title 18, and was a mandatory disqualifying offense under section 12-6-118(7)(a)(I).

1. Sentence Enhancement versus Substantive Offense

¶ 13 In People v. McKinney, 99 P.3d 1038 (Colo.2004), the supreme court examined whether theft from an at-risk adult was a penalty-enhanced form of general theft or whether it was a separate offense. The court concluded that it was not a separate offense because the governing statute, section 18-6.5-103(5), did not set forth elements of an offense but instead referred back to the general theft statute by cross-referencing that statute. Id. at 1042-43.

¶ 14 Like the general theft statute discussed in McKinney, section 18-6.5-103(3) merely incorporates the elements of assault in the third degree by referring back to that statute. So, assault in the third degree of an at-risk adult is an enhanced form of assault in the third degree and does not constitute a separate offense. See id.

¶ 15 We conclude, however, that this analysis fails to answer whether Freeman’s conviction is a felony in violation of article 3, title 18. We must consider the applicable statutory language in addressing this issue.

2. Statutory Provisions

¶ 16 Section 12-6-118(7)(a)(I) provides that any application for a license shall be denied if the applicant, during the previous ten years, was convicted of any of the following offenses: “A felony in violation of article 8, k, or 5 of title 18, C.R.S., or any similar crime under federal law or the law of any other state.” (Emphasis added.) As noted, section 18-3-204(3) provides that the crime of “assault in the third degree” is a class 1 misdemeanor. See § 18-3-204(3).

[691]*691¶ 17 Section 18-3-204 does not cross-reference section 18-6.5103(3)(c). In contrast, section 18-6.5-103(3)(e) cross-references section 18-3-204 in providing that the crime of assault in the third degree is a class 6 felony if the victim is an at-risk adult or an at-risk juvenile. So, section 18-3-204’s plain language establishes that assault in the third degree is a class 1 misdemeanor, not a felony.

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Related

Colorado Motor Vehicle Dealer Board v. Freeman
2016 CO 44 (Supreme Court of Colorado, 2016)

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2014 COA 152, 383 P.3d 688, 2014 Colo. App. LEXIS 1911, 2014 WL 5860945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-motor-vehicle-dealer-board-v-freeman-coloctapp-2014.