Peo v. Calhoun

• Court: Colorado Court of Appeals
• Decided: October 17, 2024
• Docket: 22CA1632
• Status: Unknown

Opinion

22CA1632 Peo v Calhoun 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1632 Boulder County District Court No. 21CR70 Honorable Thomas F. Mulvahill, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Vincent Steven Calhoun,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE GRAHAM* Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 17, 2024

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Vincent Steven Calhoun, pleaded guilty to, among

other things, fourteen counts of class 6 felony invasion of privacy

for sexual gratification – second offense. The crime of invasion of

privacy for sexual gratification is a class 1 misdemeanor but is

elevated to a class 6 felony and an extraordinary risk crime if the

offense is committed subsequent to a prior conviction for unlawful

sexual behavior as defined in section 16-22-102(9), C.R.S. 2024. §

18-3-405.6(2)(a), (b)(I), C.R.S. 2024.

¶2 After the entry of his guilty pleas but before sentencing,

Calhoun filed a motion collaterally attacking the validity of his prior

convictions to prevent their use as predicate offenses to trigger

habitual criminal sentencing and to elevate the invasion of privacy

for sexual gratification charges to class 6 felony offenses. See Lacy

v. People, 775 P.2d 1, 4 (Colo. 1989) (“A prior conviction obtained in

a constitutionally invalid manner cannot be used against an

accused in a subsequent criminal proceeding to support guilt or to

increase punishment.”). The trial court denied the motion.

¶3 At sentencing, the trial court found that the prosecution failed

to prove the habitual criminal counts. But the court concluded that

the prosecution had established that Calhoun had a prior

1 conviction for unlawful sexual behavior to elevate the invasion of

privacy for sexual gratification counts to class 6 felonies. The court

then sentenced Calhoun to fourteen consecutive two-year prison

sentences on those felony convictions.

¶4 Calhoun appeals his convictions, arguing that the trial court

erred by denying his motion to collaterally attack his prior

conviction. The order is affirmed.

¶5 At the providency hearing, Calhoun specifically pleaded guilty

to fourteen counts of class 6 felony invasion of privacy for sexual

gratification – second offense. He acknowledged his understanding

that each charge was supported by an allegation that he had been

previously convicted of indecent exposure, a crime involving

unlawful sexual behavior, in Boulder County Court Case No.

2006M144. See § 16-22-102(9)(m). Finally, Calhoun waived the

establishment of a factual basis for these guilty pleas.

¶6 “A guilty plea is an admission of all the elements of a criminal

charge.” Neuhaus v. People, 2012 CO 65, ¶ 8. “By pleading guilty,

a defendant waives a number of important constitutional rights,

including . . . the right to insist at trial that the prosecution

establish guilt beyond a reasonable doubt . . . .” Patton v. People,

2 35 P.3d 124, 128 (Colo. 2001). Also, when accepting a guilty plea,

the trial court must determine that there is a factual basis for the

plea. Crim. P. 11(b)(6). But the court need not make this

determination if the defendant waives the establishment of a factual

basis. Id.; People v. Fleming, 781 P.2d 1384, 1388 (Colo. 1989).

¶7 Accordingly, Calhoun’s guilty pleas relieved the prosecution of

its obligation to establish beyond a reasonable doubt the fourteen

counts of class 6 felony invasion of privacy for sexual gratification –

second offense, and, specifically, the fact that the offenses were

committed subsequent to a prior conviction for unlawful sexual

behavior. See Neuhaus, ¶ 8; Patton, 35 P.3d at 128; cf. Linnebur v.

People, 2020 CO 79M, ¶¶ 2, 33 (the fact of a prior conviction to

elevate the crime of driving under the influence from a

misdemeanor to a felony offense is an element of the felony offense

that must be proved to a jury beyond a reasonable doubt),

abrogated on other grounds by People v. Crabtree, 2024 CO 40M,

¶¶ 1-3.

¶8 And, notwithstanding the court addressing this issue on the

merits, Calhoun’s guilty pleas and waiver of the establishment of a

factual basis relieved the trial court of its obligation to find that he

3 had a prior conviction for unlawful sexual behavior in order to enter

convictions on the class 6 felony invasion of privacy for sexual

gratification – second offense, counts. See § 16-7-206(3), C.R.S.

2024 (“The acceptance by the court of a plea of guilty . . . acts as a

conviction for the offense.”); People v. Kyler, 991 P.2d 810, 816

(Colo. 1999) (“A plea of guilty is more than a confession which

admits that the accused did various acts; it is itself a conviction;

nothing remains but to give judgment and determine punishment.”

(quoting Boykin v. Alabama, 395 U.S. 238, 242 (1969))); People v.

Flagg, 18 P.3d 792, 794 (Colo. App. 2000) (“A plea of guilty has the

same effect as if defendant had been tried before a jury and had

been found guilty on evidence covering all the material facts.”); see

also Fleming, 781 P.2d at 1388.

¶9 Calhoun’s guilty pleas were sufficient to establish that he

committed the fourteen invasion of privacy for sexual gratification

crimes subsequent to a prior conviction for unlawful sexual

behavior. Consequently, the use of his prior conviction was not

necessary to elevate those counts to felony offenses. Thus, his

post-plea attempt to challenge the validity of his prior conviction

was inconsequential. And, because we do not read Calhoun’s

4 motion to collaterally attack his prior convictions as asserting a

Crim. P. 32(d) request to withdraw his guilty pleas, his apparent

challenge to the felony classification of the offenses to which he

pleaded guilty and of which he was convicted necessarily fails. See

People v. Kirk, 221 P.3d 63, 64-65 (Colo. App. 2009); see also

Sanchez-Martinez v. People, 250 P.3d 1248, 1255 (Colo. 2011)

(“Because a guilty plea is an extensive waiver of the defendant’s

constitutional rights, a challenge to a conviction based on a guilty

plea is usually limited to whether the plea was knowing, voluntary,

and intelligent.”).

¶ 10 The order is affirmed.

JUDGE WELLING and JUDGE BROWN concur.