Jacob Woodside Rule Discharged en banc JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT JUSTICE HOOD JUSTICE GABRIEL JUSTICE

2023 CO 25, 529 P.3d 1233

• Court: Supreme Court of Colorado
• Decided: May 22, 2023
• Docket: 23SA30
• Status: Published

Opinion

The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2023 CO 25

Supreme Court Case No. 23SA30 Original Proceeding Pursuant to C.A.R. 21 Weld County Court Case No. 21T5286 Honorable John Briggs, Judge

In Re Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Jacob Woodside.

Rule Discharged en banc May 22, 2023

Attorneys for Defendant: Megan A. Ring, Public Defender Andrew Sidley-MacKie, Deputy Public Defender Greeley, Colorado

Attorneys for Respondent Weld County Court: Philip J. Weiser, Attorney General Rachel Lieb, Assistant Attorney General Emily B. Buckley, Senior Assistant Attorney General Denver, Colorado No appearance on behalf of Plaintiff.

JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE SAMOUR and JUSTICE BERKENKOTTER joined. JUSTICE MÁRQUEZ dissented.

2 JUSTICE HART delivered the Opinion of the Court.

¶1 People who are convicted for drug- or alcohol-related traffic offenses in

Colorado are subject to progressively more serious penalties upon each additional

conviction. Section 42-4-1307(5)(a), C.R.S. (2022), provides the penalties for a

second offense of driving under the influence (“DUI”), DUI per se, or driving

while ability impaired (“DWAI”). This provision applies to those defendants

“who, at the time of sentencing, ha[ve] a prior conviction” for certain related

offenses. Id.

¶2 Jacob Woodside committed two alcohol-related offenses in relatively quick

succession. First, he pled guilty to the later-committed offense, which was

sentenced as his first despite having occurred second in time. Afterward, he pled

guilty to the earlier-committed offense and argued that it too should be sentenced

as his first. The trial court disagreed, finding that Woodside’s prior conviction

subjected him to second-offense penalties because “at the time of sentencing” he

had a relevant “prior conviction,” despite the order in which the offenses occurred.

¶3 Woodside filed a petition to show cause under C.A.R. 21, which we granted.

We now hold that the plain language of section 42-4-1307(5)(a) imposes

second-offense penalties when a defendant has a relevant prior conviction; it does

not require that conduct underlying a second-offense sentence pre-date conduct

underlying the first-offense sentence. Accordingly, we discharge the rule.

3 I. Facts and Procedural History

¶4 On August 22, 2021, Woodside was charged in Weld County with DUI,

§ 42-4-1301(1)(a), C.R.S. (2022), for an offense committed that day. On

November 11, 2021, Woodside was again charged with DUI for an offense

committed that day—this time in Grand County.

¶5 Though Woodside’s Grand County offense came second, the case resolved

first. On March 1, 2022, Woodside pled guilty in Grand County to DWAI,

§ 42-4-1301(1)(b). The plea agreement stipulated that this was Woodside’s first

offense, and he was sentenced to one year of probation on April 26, 2022.

¶6 Meanwhile, the Weld County case remained pending. Through counsel,

Woodside requested at least two continuances in Weld County to allow the Grand

County case to resolve. On June 21, 2022, Woodside entered a plea agreement

under which he again pled guilty to DWAI as a first offense.

¶7 At a July 26, 2022 sentencing hearing, the parties disputed whether the Weld

County DWAI should be sentenced as a second offense. The court ultimately

concluded that although Woodside committed the conduct underlying the Weld

County case first, his Grand County conviction nonetheless was a “prior

conviction” existing “at the time of sentencing.” The court therefore determined

that it would sentence the Weld County DWAI as a second offense and set the case

4 over for a status conference to allow Woodside and his counsel to discuss whether

to withdraw his guilty plea and proceed to trial.

¶8 Woodside then filed this petition pursuant to C.A.R. 21, which we granted.

II. Jurisdiction

¶9 Exercise of this court’s original jurisdiction under C.A.R. 21 is wholly

discretionary. C.A.R. 21(a)(1). Relief pursuant to C.A.R. 21 is “an extraordinary

remedy that is limited in both purpose and availability.” People in Int. of T.T.,

2019 CO 54, ¶ 16, 442 P.3d 851, 855–56 (quoting Villas at Highland Park Homeowners

Ass’n v. Villas at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151). We

have found such relief appropriate “when an appellate remedy would be

inadequate, when a party may otherwise suffer irreparable harm, [or] when a

petition raises ‘issues of significant public importance that we have not yet

considered.’” People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748 (citations omitted)

(quoting Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001)).

¶10 Exercise of our original jurisdiction under C.A.R. 21 is warranted here. First,

neither this court nor the court of appeals has addressed whether a second-offense

sentence for intoxicated driving can be based on conduct pre-dating the first

offense under section 42-4-1307(5)(a). Second, if it cannot, the trial court’s decision

to the contrary would cause irreparable harm for which an appellate remedy

would be inadequate.

5 ¶11 We now turn to the merits of the petition.

III. Analysis

¶12 We review issues of statutory interpretation de novo. UMB Bank, N.A.

v. Landmark Towers Ass’n, 2017 CO 107, ¶ 22, 408 P.3d 836, 840. Our primary aim

is to “effectuate the legislature’s intent.” Nieto v. Clark’s Mkt. Inc., 2021 CO 48, ¶ 12,

488 P.3d 1140, 1143. In so doing, “we look to the entire statutory scheme in order

to give consistent, harmonious, and sensible effect to all of its parts, and we apply

words and phrases in accordance with their plain and ordinary meanings.”

Blooming Terrace No. 1, LLC v. KH Blake St., LLC, 2019 CO 58, ¶ 11, 444 P.3d 749, 752

(quoting UMB Bank, ¶ 22, 408 P.3d at 840). If statutory language is clear and

unambiguous, “we apply it as written—venturing no further.” Id.

¶13 Section 42-4-1301 provides for various drug- and alcohol-related driving

offenses, including DUI and DWAI. § 42-4-1301(1)(b). Section 42-4-1307 sets out

the penalties for violations of section 42-4-1301. For a first offense, a defendant is

subject to between 2 and 180 days in jail, which may be suspended on certain

conditions; a fine, which may be suspended; and at least twenty-four hours of

community service. § 42-4-1307(4)(a)(I)–(III). Up to two years of probation is also

within the sentencing court’s discretion. § 42-4-1307(4)(c).

¶14 A second offense carries greater penalties—between ten days and a year in

jail; a higher fine, which may still be suspended; at least forty-eight hours of

6 community service; and one additional year of jail suspended pending two years

of probation. § 42-4-1307(5)(a)(I)–(IV). Second-offense penalties apply to

a person who is convicted of DUI, DUI per se, or DWAI who, at the time of sentencing, has a prior conviction of DUI, DUI per se, DWAI, vehicular homicide . . . vehicular assault . . . aggravated driving with a revoked license . . . or driving while the person’s driver’s license was under restraint[.]

§ 42-4-1307(5)(a) (emphasis added). “Conviction” is defined in the statute to

include “a plea of guilty . . . that is accepted by the court.” § 42-4-1307(2)(b).

¶15 By this plain language, then, a defendant is subject to second-offense

penalties if at the time of sentencing they have already pled guilty to another

DWAI and that plea has been accepted by the court.

¶16 Woodside concedes that a “second offense” under the statute requires only

a “prior conviction” existing “at the time of sentencing.” He argues, however, that

for a “conviction” to be “prior” it must be for conduct pre-dating the second

offense.

¶17 But nowhere does the plain language of section 42-4-1307(5)(a) contemplate

the timing of the underlying conduct. Certainly, the word “prior” incorporates

some temporal consideration. See, e.g., Prior, Black’s Law Dictionary (11th ed.

2019) (defining “prior” as “[p]receding in time or order”). But as used in

section 42-4-1307(5)(a), “prior” modifies “conviction,” which the statute in turn

defines to include an accepted guilty plea.

7 ¶18 To adopt Woodside’s definition of “prior” would require us to read a slew

of words into the statute that the legislature could have, but did not, include.

Indeed, other subsections of the statute do contemplate the timing of the

underlying conduct—but with notably different language. Take, for example,

section 42-4-1307(5)(b), which provides additional considerations for

second-offense sentencing. Under that subsection, a court’s discretion to employ

sentencing alternatives is curbed “[i]f a person is convicted of DUI, DUI per se, or

DWAI and the violation occurred less than five years after the date of a previous violation

for which the person was convicted.” § 42-4-1307(5)(b) (emphasis added).

¶19 Similarly, section 42-4-1307(6)(a) provides for third-offense penalties, which

apply when a person “has two or more prior convictions” for a related offense.

Later, section 42-4-1307(6)(c) provides for additional conditions a court may

impose, which “appl[y] only if” (1) “[a]t the time of sentencing the person has two

prior convictions” for relevant offenses and (2) “[t]he first of the person’s two prior

convictions was based on a violation that occurred not more than seven years before the

violation for which the person is being sentenced.” § 42-4-1307(6)(c)(I)–(II) (emphases

added).

¶20 Both section 42-4-1307(5)(b) and section 42-4-1307(6)(c) plainly differentiate

between “convictions” and the “violations” underlying them and incorporate a

temporal requirement that certain “violations” pre-date others. Nowhere in

8 section 42-4-1307(5)(a), however, is there mention of the violations underlying

prior convictions or a similar temporal requirement. This provision refers only to

“convictions”—a word that is explicitly defined in the statute—again, with no

mention of the underlying “violation.” See § 42-4-1307(2)(b). Instead, the plain

language of section 42-4-1307(5)(a) incorporates only one temporal requirement:

that Woodside’s accepted guilty plea—his conviction—in Grand County pre-date

his sentencing in Weld County.

¶21 Not only is Woodside’s proposed construction of the statute contrary to the

plain language adopted by the General Assembly, it would also lead to absurd

results, as this case itself demonstrates. Woodside is asserting that having pled

guilty to two distinct incidents of intoxicated driving, he should be sentenced for

two first offenses. But he did not commit two first offenses; he committed two

offenses.

¶22 Woodside’s interpretation would incentivize gamesmanship by allowing

defendants to forestall resolution of an earlier case while resolving a later one to

get first-offense treatment in both. Worse still, it would have difficult downstream

effects. What would happen to a defendant who, having been sentenced for two

first offenses, commits another DWAI? Should they be sentenced for a second

offense, since both prior convictions were for first offenses? Or should they be

9 sentenced for a third offense, despite never having been sentenced for a second?

Hewing to the plain language of section 42-4-1307(5)(a) avoids such complications.

¶23 Woodside argues that if his Weld County DWAI is sentenced as a second

offense, he will essentially be punished twice for his conduct in Grand County in

violation of the prohibition against double jeopardy. But Woodside cannot

identify what the second punishment would be. He was sentenced once for a first

intoxicated driving offense in Grand County, and he has been sentenced once for

a second intoxicated driving offense in Weld County. And he has pled guilty to

two such offenses.

IV. Conclusion

¶24 The plain language of section 42-4-1307(5)(a) does not require that conduct

underlying a second offense pre-date conduct underlying the first. It requires only

that a defendant have a relevant prior conviction at the time of sentencing for the

second offense. The trial court therefore properly determined that Woodside’s

Weld County DWAI, though based on conduct pre-dating his Grand County

DWAI, is a second offense subject to the penalties laid out in

section 42-4-1307(5)(a). Accordingly, we discharge the rule to show cause.

JUSTICE MÁRQUEZ dissented.

10 JUSTICE MÁRQUEZ, dissenting.

¶25 More than forty years ago, this court recognized “[t]he general rule . . . that

penalty enhancement statutes for repeat offenders apply only if the presently

charged offense was committed after there had been a conviction of any offenses

sought to be used as a basis for the penalty enhancement.” People v. Nees, 615 P.2d

690, 693 (Colo. 1980). Indeed, recidivist sentencing schemes avoid double

jeopardy concerns precisely because the enhanced penalties for subsequent

offenses do not constitute an “additional penalty for the earlier crimes,” but instead

reflect “a stiffened penalty for the latest crime” due to the repetitive nature of that

later offense. Monge v. California, 524 U.S. 721, 728 (1998) (emphases added)

(quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). With these principles in mind,

section 42-4-1307, C.R.S. (2022), is entirely constitutional to the extent that it

imposes greater penalties for a defendant’s subsequent drug- or alcohol-related

traffic offenses. Accordingly, a “prior conviction” under this scheme necessarily

refers to a conviction for an offense committed before the “subsequent” offense

being sentenced as recidivist. That is the point of such a sentencing scheme, and

this logical understanding is reflected in the language and structure of

section 42-4-1307. The majority’s interpretation of the statute nevertheless ignores

the sequence of a defendant’s offenses and erroneously permits a defendant’s first

offense to be punished as though it were the defendant’s second or subsequent

1 offense. Indeed, depending on the sequence of a defendant’s convictions and

sentences, the majority’s interpretation could result in a defendant with two

offenses being punished twice for a “second” offense without ever being sentenced

for a first offense. Because the majority’s interpretation disregards the plain

language of section 42-4-1307, ignores traditional sentencing principles, and raises

constitutional concerns, I respectfully dissent.

I. Statutory Interpretation

¶26 As the majority correctly states, our primary aim with statutory

interpretation is to give effect to legislative intent. Maj. op. ¶ 12. We give words

and phrases their plain and ordinary meanings, and we look to the statutory

scheme as a whole to give consistent, harmonious, and sensible effect to all its

parts. See id.

¶27 Section 42-4-1307 sets forth comprehensive penalties for traffic offenses

involving drugs or alcohol. The statute prescribes penalties for first offenses in

subsection (3) (“First offenses—DUI and DUI per se”) and subsection (4) (“First

offenses—DWAI”). §§ 42-4-1307(3)–(4). It then imposes progressively harsher

penalties for a defendant’s second and subsequent offenses. Second offenses are

addressed in subsection (5) (“Second offenses”); third and subsequent offenses are

addressed in subsection (6) (“Third and subsequent offenses”); and felony offenses

are addressed in subsection (6.5) (“Felony offenses”). §§ 42-4-1307(5)–(6.5).

2 ¶28 Unsurprisingly, the provisions that impose penalties for second and

subsequent offenses refer to a defendant’s “prior convictions.” Thus, for example,

a defendant may be punished for a “second offense” if the defendant, “at the time

of sentencing, has a prior conviction of DUI, DUI per se, or DWAI.”

§ 42-4-1307(5)(a). Similarly, a defendant may be punished for a “[t]hird or

subsequent offense” if the defendant, “at the time of sentencing, has two or more

prior convictions” of an alcohol-related traffic offense. § 42-4-1307(6)(a). The

question before us is whether the term “prior conviction” under this statutory

scheme refers to a conviction for an offense committed before the (subsequent)

offense being sentenced as recidivist. The answer is yes.

¶29 First, the term “prior conviction” is generally used interchangeably with the

term “prior offense.” See Prior conviction, Black’s Law Dictionary (11th ed. 2019)

(describing “prior conviction” as another term for “prior offense; prior crime;

antecedent crime; antecedent offense”); see also People v. Porter, 2015 CO 34, ¶ 26,

348 P.3d 922, 928 (referring interchangeably to “prior conviction[]” and “previous

offense”).

¶30 Second, as described above, the structure and organization of

section 42-4-1307 contemplate offenses that occur sequentially; that is, the

recidivist sentencing scheme authorizes progressively harsher punishment for

later, “subsequent” offenses. In short, chronology matters.

3 ¶31 Third, despite acknowledging that we must “look to the entire statutory

scheme in order to give consistent, harmonious, and sensible effect to all of its

parts,” Maj. op. ¶ 12, the majority fails to read section 42-4-1307 as a whole.

Although subsection (5)(a) does not expressly define the necessary sequence of

offenses, the majority concedes that other provisions in the statute do contemplate

the timing of the underlying conduct. Maj. op. ¶ 18. For example, with regard to

sentencing for a second offense, section 42-4-1307(5)(b) makes clear that the court

has no discretion to employ certain sentencing alternatives if the person is

convicted of a second offense “and the violation occurred less than five years after

the date of a previous violation for which the person was convicted” of a similar

alcohol-related offense. § 42-4-1307(5)(b). This provision, which directly follows

subsection (a) referring to the defendant’s “prior conviction,” shows that the

“violation” underlying the prior conviction must predate the second offense. In

other words, I cannot see how the reference to “prior conviction” in

subsection (5)(a) means anything other than “a previous violation for which the

person was convicted” in subsection (5)(b).

¶32 The provisions regarding sentencing for third and subsequent offenses are

even more clear. In detailing the punishments authorized for such offenses,

section 42-4-1307(6)(c)(II) provides that the court may require a defendant to

participate in alcohol treatment as a condition of probation if “[t]he first of the

4 person’s two prior convictions was based on a violation that occurred not more than seven

years before the violation for which the person is being sentenced.” § 42-4-1307(6)(c)(II)

(emphasis added). This language establishes that the “prior convictions” in this

sentencing scheme concern violations that predate the offense for which the

person is being sentenced as a recidivist. The majority’s reading of

subsection (5)(a) in isolation, without considering the remainder of

section 42-4-1307, defies traditional canons of statutory construction.

¶33 The legislative history of section 42-4-1307(5)(a) further bolsters my

understanding of the scheme. As introduced, H.B. 10-1347 evinced clear

legislative intent to apply second-offense penalties to defendants for a drug- or

alcohol-related violation that occurred after an earlier violation:

(5) Second offenses. (a) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (6) OF THIS SECTION, A PERSON WHO IS CONVICTED OF DUI, . . . WHICH VIOLATION OCCURRED AFTER THE DATE OF A PREVIOUS VIOLATION FOR WHICH THE PERSON HAS BEEN CONVICTED OF DUI . . . SHALL BE PUNISHED BY . . . .

H.B. 10-1347, 67th Gen. Assemb., 2nd Sess. (text of the bill as introduced in the

House Judiciary Committee (emphasis added)). The italicized language in the

original bill, “which violation occurred after the date of a previous violation for which the

person has been convicted” parallels the language discussed above in

subsections (5)(b) and (6)(c)(II) regarding the sequence of violations and

corresponding convictions. In an amendment, the legislature replaced this

5 language with, “who, at the time of sentencing, has a prior conviction.” See

Amendment L.005 to H.B. 10-1347, 67th Gen. Assemb., 2nd Sess. (Mar. 11, 2010).

The bill’s sponsor explained that the amendment merely “rewords a little bit how

we describe a second offense or a third offense”—and was “not a substantive

change.” Hearing on H.B. 10-1347 before the H. Judiciary Comm., 67th Gen.

Assemb., 2nd Sess. (Mar. 11, 2010) (emphasis added). In sum, the plain language,

statutory structure, and legislative history of section 42-4-1307 all point to

legislative intent to treat a “prior conviction” as a conviction for a violation

committed before the offense being sentenced as recidivist.

II. Double Jeopardy

¶34 In addition to disregarding the plain language of the statute, the majority’s

interpretation raises constitutional concerns because it permits a court to sentence

a defendant’s first offense more harshly as a second or subsequent offense based

on conduct committed after the offense for which the defendant is being

sentenced. Maj. op. ¶ 3.

¶35 The Double Jeopardy Clauses in the United States and Colorado

Constitutions protect defendants from multiple punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165 (1977); Porter, ¶ 9, 348 P.3d at 924; see also U.S.

Const. amend. V (“[N]or shall any person be subject for the same offence to be

6 twice put in jeopardy of life or limb . . . .”);1 Colo. Const. art. II, § 18 (“[N]or shall

any person be twice put in jeopardy for the same offense.”).

¶36 An enhanced sentence for recidivist conduct does not violate double

jeopardy principles because it “penaliz[es] only the last offense committed by the

defendant.” Monge, 524 U.S. at 728 (emphasis added) (quoting Nichols v. United

States, 511 U.S. 738, 747 (1994)). In other words, a recidivist sentencing statute

“do[es] not change the penalty imposed for the earlier conviction.” Nichols,

511 U.S. at 747. Rather, it enacts “a stiffened penalty for the latest crime, which is

considered to be an aggravated offense because a repetitive one.” Gryger, 334 U.S. at

732 (emphasis added). Said another way, recidivism-based sentence

enhancements are constitutional because they increase a defendant’s sentence

based on “the manner in which [the defendant] committed the crime of

conviction.” Monge, 524 U.S. at 728 (alteration in original) (quoting United States v.

Watts, 519 U.S. 148, 154 (1997)).

¶37 Thus, while it is permissible to impose greater penalties for second and

subsequent drug- or alcohol-related traffic offenses, the majority’s interpretation

1 The Double Jeopardy Clause found in the Fifth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969).

7 of section 42-4-1307(5)(a) permits the imposition of greater, subsequent-offense

penalties on a defendant’s first offense. See Maj. op. ¶ 14 (acknowledging that a

second offense “carries greater penalties” including a higher fine, additional jail

time, and more hours of community service).

¶38 This case illustrates the constitutional flaw in the majority’s interpretation.

Certainly Woodside’s multiple offenses could have authorized sentencing as a

recidivist—for his second offense in Grand County. But none of the constitutional

justifications for imposing the second-offense penalties apply to Woodside’s Weld

County offense. We cannot say that “the manner in which [Woodside] committed”

the Weld County offense justified an increased penalty. See Watts, 519 U.S. at 154.

Specifically, we cannot say that the Weld County offense deserved “a stiffened

penalty” because it was a “repetitive one.” See Gryger, 334 U.S. at 732. The Weld

County offense was Woodside’s first; the Grand County offense had yet to occur.

In short, none of the rationales that save recidivism-based sentence enhancement

schemes from violating double jeopardy principles apply in this case.

¶39 Thus, I disagree with the majority’s conclusion that there is no double

jeopardy problem in this case. And so, I disagree with the majority’s interpretation

of section 42-4-1307(5)(a), which sanctions the above-described double jeopardy

violation. See McCoy v. People, 2019 CO 44, ¶ 50, 442 P.3d 379, 391 (stating we must

8 “avoid[] interpreting the statute in such a way as to lead to . . . unconstitutional

results”).

III. Practical Concerns

¶40 According to the majority, Woodside’s interpretation would “lead to absurd

results” and “incentivize gamesmanship by allowing defendants to forestall

resolution of an earlier case while resolving a later one to get first-offense

treatment in both.” Maj. op. ¶¶ 21–22. But any potential gamesmanship feared

by the majority can be avoided. In this case, for example, the judge presiding over

the Grand County offense could have delayed sentencing until after the resolution

of the Weld County offense. Then, Woodside would have been sentenced as a first

offender for the Weld County offense and as a recidivist for his second offense in

Grand County—a perfectly constitutional outcome.

¶41 Meanwhile, suggesting possible gamesmanship by defendants, the majority

construes section 42-4-1307 to permit unconstitutional results. While the practical

and logistical challenges that arise in multiple offense/multiple jurisdiction

scenarios like these are real, they cannot trump the constitution.

¶42 Because the majority’s interpretation of section 42-4-1307(5)(a) is contrary to

the statute’s plain language and legislative history, ignores traditional sentencing

principles, and raises significant constitutional concerns, I respectfully dissent.