The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 7, 2019
2019COA32
No. 17CA0705, People v. Williams — Criminal Law — Sentencing — Punishment for Habitual Criminals
A division of the court of appeals considers whether two guilty
pleas entered at the same hearing to two charges brought in
separate charging documents constitute two convictions for
purposes of the habitual criminal sentencing statute, § 18-1.3-
801(2)(a)(I), C.R.S. 2018, when the two charges were permissively
joined for trial under Crim. P. 8(a)(2). The division concludes that
because the charges would have been tried together in one trial but
for defendant’s guilty pleas, in line with Gimmy v. People, 645 P.2d
262, 267 (Colo. 1982), they cannot be considered separately tried
under the habitual criminal sentencing statute. Therefore, the
division further concludes that the two guilty pleas resulted in one
conviction for purposes of the habitual criminal sentencing statute. In so concluding, the division rejects the contention that the
inquiry is resolved by determining whether the joinder was
mandatory or permissive under Crim. P. 8. Thus, the trial court
erred in finding this distinction dispositive and adjudicating
defendant a habitual criminal.
The division also concludes that the trial court did not err in
denying defendant’s motion to suppress the pretrial identification or
in denying his motions for a continuance.
Accordingly, the division affirms the district court’s judgment,
reverses the sentence, and remands with directions for the trial
court to impose a new sentence and to correct the mittimus. COLORADO COURT OF APPEALS 2019COA32
Court of Appeals No. 17CA0705 City and County of Denver District Court No. 15CR5126 Honorable Andrew P. McCallin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Wenston Williams,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE TERRY J. Jones and Nieto*, JJ., concur
Announced March 7, 2019
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Cynthia M. Mardian, Alternate Defense Counsel, 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. 2018. ¶1 Defendant, Wenston Williams, appeals his judgment of
conviction entered after a jury found him guilty of aggravated
robbery and second degree assault. He also appeals the sentence
imposed after the trial court adjudicated him a habitual criminal.
¶2 In Part IV of this opinion, we consider whether two guilty pleas
entered at the same hearing constitute two separate convictions for
purposes of the habitual criminal sentencing statute, § 18-1.3-
801(2)(a)(I), C.R.S. 2018, when the pleas were to two charges
brought in separate charging documents, but later joined for trial
under Crim. P. 8(a)(2). We conclude that 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”
under the habitual criminal sentencing statute. See Gimmy v.
People, 645 P.2d 262, 267 (Colo. 1982).
¶3 We affirm the judgment, reverse the sentence, and remand
with directions to impose a new sentence and to correct the
mittimus.
I. Background
¶4 Defendant robbed an Uber driver (the victim) at knifepoint in
an alleyway in Denver. After the jury returned its verdict, the trial
1 court held a hearing to determine whether defendant was a habitual
criminal. Based on defendant’s prior convictions for first degree
assault (heat of passion) and two prior convictions for distribution
of a Schedule II controlled substance, the trial court adjudicated
him a habitual criminal and sentenced him to sixty-four years in
prison.
II. Defendant’s Motion to Suppress Pretrial Identification
¶5 Defendant contends that the pretrial photo lineup, from which
the victim identified him, was impermissibly suggestive. He argues
that he was older than the other men in the photo array, the
clothing displayed in his photo was unduly suggestive as compared
with the clothing worn by the other pictured men, and there were
impermissible differences between the photos because some of the
pictured men had tattoos. He also contends that the photo array
was impermissibly suggestive because of the limited number of
photos included. We disagree with all of these contentions.
A. Standard of Review and Applicable Law
¶6 The constitutionality of pretrial identification procedures
presents a mixed question of law and fact. Bernal v. People, 44 P.3d
184, 190 (Colo. 2002). Because defendant objected, we review for
2 harmless error and will reverse if there is a reasonable possibility
that any erroneous admission of the identification contributed to
the conviction. People v. Singley, 2015 COA 78M, ¶ 10.
¶7 Suggestive lineups are disapproved of because of the increased
likelihood of misidentification and, thus, conviction of the innocent.
Bernal, 44 P.3d at 190. Therefore, “each case must be considered
on its own facts,” and a conviction based on an eyewitness’s
identification at trial “following a pretrial identification by
photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification.”
Id. at 191 (quoting Simmons v. United States, 390 U.S. 377, 384
(1968)). This standard requires a two-part analysis. Id.
¶8 “First, a court must determine whether the photo array was
impermissibly suggestive . . . .” Id. The defendant bears the
burden of proof. Id. “Second, if the defendant’s burden is met, the
burden shifts to the People to show that despite the improper
suggestiveness, the identification was nevertheless reliable under
the ‘totality of the circumstances.’” Id. (quoting Manson v.
Brathwaite, 432 U.S. 98, 114 (1977)).
3 ¶9 Relevant factors to consider in determining whether the
identification procedure is impermissibly suggestive include the size
of the array and the manner of its presentation, as well as the
details of the photographs themselves. Id. An array that includes a
photo that is unique in a manner directly related to an important
identification factor may be held impermissibly suggestive. People
v. Borghesi, 66 P.3d 93, 104 (Colo. 2003) (“[T]he remaining
consideration is whether the photographs in the array are so limited
that the defendant is the only one to match the witness’s
description of the perpetrator.” (citing Bernal, 44 P.3d at 191)). The
police are not required to “provide a photo array containing only
‘exact replicas’ of the defendant’s picture,” but the photos must be
“matched by race, approximate age, facial hair, and a number of
other characteristics.” Bernal, 44 P.3d at 191-92 (quoting People v.
Webster, 987 P.2d 836, 839 (Colo. App. 1998)).
¶ 10 If the court finds a photo array impermissibly suggestive, it
must then proceed to the second step of the analysis and determine
whether, under the totality of the circumstances, the suggestive
procedure created a very substantial likelihood of misidentification.
Id. at 192.
4 B. Discussion
¶ 11 The number of photos in the array — six — and the
complained-of details of the photos did not render the lineup
impermissibly suggestive.
¶ 12 The victim described the suspect as a black male, thirty to
forty years old, five feet eight inches tall, heavily built, and wearing
a black hoodie.
¶ 13 At a preliminary hearing, the detective who conducted the
photo lineup testified that before he showed the photos to the
victim, he gave the victim several standard admonitions about the
photo lineup process. The detective showed the victim the six
photographs individually. Though the detective did not remember
whether the victim viewed any of the photographs twice, he testified
that the victim was “pretty quick about” viewing them. The
detective was not involved with the case in any other way and did
not know the identity of the suspect. Another detective testified
that he compiled the photo lineup using photographs from Web
Mug based on the characteristics described by the victim.
¶ 14 Nothing about the presentation of the photographs renders the
procedures surrounding the array suggestive, and the number of
5 photographs shown was not so small as to make the presentation
unfairly suggestive. See People v. Wilford, 111 P.3d 512, 514 (Colo.
App. 2004). The question, then, is whether defendant’s photograph
substantially matches the description given by the victim, and
whether it “so stood out from all of the other photographs as to
‘suggest to [the victim] that [defendant] was more likely to be the
culprit.’” Bernal, 44 P.3d at 191 (quoting Jarrett v. Headley, 802
F.2d 34, 41 (2d Cir. 1986)) (alteration in original).
¶ 15 The trial court found that, although the filler photos were of
men younger than defendant, defendant “in fact, looks close in age
to the individuals who are aligned in the photo array, even though
they were all in their 30s.” Based on that finding, the court
concluded that defendant’s “age did not stand out as an identifying
characteristic among all of the other individuals who are aligned in
the photo array.”
¶ 16 The court also rejected defendant’s argument that his photo
improperly stood out because he was wearing a hoodie. The court
noted that the hoodie in defendant’s photo was red, whereas the
victim described the suspect as wearing a black hoodie, and that
another man in the photo array was wearing a black hoodie. Under
6 all of the circumstances, including other distinguishing
characteristics, such as “the shaved head, the approximate age, and
the description provided by [the victim],” the court found that the
photo of defendant wearing a hoodie did not cause the array to be
unduly suggestive.
¶ 17 The record supports the court’s findings. The photo of
defendant matched the victim’s description of the suspect “by race,
approximate age, facial hair, and a number of other
characteristics,” and the filler photos depicted men who generally fit
the witness’s description, as required by Bernal. See Singley, ¶ 22.
¶ 18 We are not persuaded that the photo array was impermissibly
suggestive because one man was wearing a hospital gown. Nor
does the fact that one of the men had a neck tattoo and one had a
chest tattoo render the photo array impermissibly suggestive. The
neck tattoo on one of the men in the lineup appears only faintly,
and given the witness’s description that the perpetrator was
wearing a hoodie, there is no reason to believe that a neck or chest
tattoo would have been visible during the robbery. See People v.
Plancarte, 232 P.3d 186, 191 (Colo. App. 2009) (photo lineup was
not impermissibly suggestive where several of the men were too
7 light-skinned to fit the witnesses’ descriptions and some of them
had thin or short facial hair, which did not match the description of
the burglar as clean shaven); Wilford, 111 P.3d at 514 (photo array
was not impermissibly suggestive where the defendant was wearing
a red shirt and was one of two men out of six photos with braids,
and the robber was described as having braided hair).
¶ 19 We further conclude that the photo array was not so
suggestive “as to give rise to a substantial likelihood of irreparable
misidentification.” See Wilford, 111 P.3d at 514. Because we
conclude that the array was not impermissibly suggestive, we do
not need to reach the second prong of the Bernal test. Borghesi, 66
P.3d at 106.
III. Defendant’s Motions for a Continuance
A. Motion for Continuance to Retain Counsel of Choice
¶ 20 Defendant contends that the trial court abused its discretion
and violated his Sixth Amendment right to his counsel of choice by
denying his motion for a continuance. We disagree.
1. Standard of Review and Applicable Law
¶ 21 We will disturb a trial court’s ruling on a motion for a
continuance only if the trial court abused its discretion. People v.
8 Brown, 2014 CO 25, ¶ 19. A trial court abuses its discretion when
its ruling is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. Rains v. Barber, 2018 COA 61, ¶ 8.
¶ 22 The Sixth Amendment provides a criminal defendant the right
to be represented by counsel of his or her choice. People v.
Maestas, 199 P.3d 713, 716 (Colo. 2009). “[A] defendant’s right to
select an attorney whom he or she trusts is considered to be central
to the adversary system and ‘of substantial importance to the
integrity of the judicial process.’” Brown, ¶ 16 (quoting Rodriguez v.
Dist. Court, 719 P.2d 699, 705-06 (Colo. 1986)). As a result, “an
accused who desires and is financially able should be afforded a fair
opportunity to secure counsel of his own choice.” Anaya v. People,
764 P.2d 779, 781 (Colo. 1988) (quoting Powell v. Alabama, 287
U.S. 45, 53 (1932)).
¶ 23 Although courts afford this right great deference, the Sixth
Amendment does not provide an absolute right to counsel of choice
in all cases. Brown, ¶¶ 16-17. Considerations such as judicial
efficiency and maintaining the integrity of the judicial process may
sometimes outweigh a defendant’s right to counsel of choice. Id. at
9 ¶ 17. “For example, a defendant may not use the right to counsel of
choice to delay the trial or impede judicial efficiency.” Id.
¶ 24 When a defendant moves to continue the trial to replace
counsel, the court must balance the defendant’s right to counsel
against the demands of fairness and efficiency. Id. at ¶ 20.
Balancing these competing interests requires the court to consider
the following eleven factors:
• the defendant’s actions surrounding the request and apparent
motive for making the request;
• chosen counsel’s availability;
• the length of continuance necessary to accommodate chosen
counsel;
• the potential prejudice — beyond mere inconvenience — to the
prosecution caused by a delay;
• the inconvenience to witnesses;
• the case’s age, both in the judicial system and from the date of
the offense;
• the number of continuances already granted in the case;
• the timing of the request to continue;
10 • the impact of a continuance on the court’s docket;
• the victim’s position, if the victim’s rights act applies; and
• any other case-specific factors necessitating or weighing
against further delay.
Id. at ¶ 24.
¶ 25 This is not a mechanical test. Id. at ¶ 20. “[N]o single factor is
dispositive and the weight accorded to each factor will vary
depending on the specific facts at issue in the case.” Id. at ¶ 24.
2. Discussion
¶ 26 In concluding that the interests of justice required denial of
defendant’s motion for a continuance, the trial court found that
defendant could have raised the issue earlier, but instead waited
until the first day of trial. The court was suspicious of these
circumstances. Though the trial had already been twice delayed,
defendant had not yet retained counsel of his choice, and
consequently replacement counsel was not available to represent
him on the first day of trial. The court reasoned that any
continuance to accommodate chosen counsel’s entry into the case
would be lengthy, and would prejudice the People to “a great extent”
because of circumstances surrounding the codefendant, who was 11 set to testify for the prosecution. The court also found that the
alleged victim would be adversely impacted by such a delay
because, as a result of the trial, he had deferred an overseas trip to
visit his terminally ill father. And the court considered the
possibility that the victim might leave the country as a case-specific
factor that weighed against any further delay in the nearly two-
year-old case.
¶ 27 Because the trial court’s findings are supported by the record,
and the court considered the appropriate factors in balancing
defendant’s right to have counsel of his choosing against the
efficient and effective administration of justice, we conclude that the
court did not abuse its discretion in denying defendant’s motion for
a continuance. Brown, ¶¶ 17, 26 (“Given the highly factual nature
of the balancing test, the trial court is undeniably in the best
position to determine whether a continuance is appropriate.”).
B. Motion for a Continuance to Complete Fingerprint Testing
¶ 28 Defendant next contends that the trial court abused its
discretion and violated his constitutional rights by denying his
motion for a continuance to allow the People to complete fingerprint
testing. He further contends that the completed testing would have
12 allowed for the production of exculpatory evidence. We reject these
contentions.
¶ 29 We review a trial court’s ruling on discovery matters for an
abuse of discretion. People v. Dill, 904 P.2d 1367, 1374 (Colo. App.
1995), aff’d, 927 P.2d 1315 (Colo. 1996).
¶ 30 The prosecution sought to compare defendant’s fingerprints to
prints found in the victim’s car, but the only print from the car that
was potentially of sufficient quality to allow for a comparison was of
a portion of the finger not typically captured on exemplars. Thus,
the comparison results were inconclusive.
¶ 31 At a pretrial hearing, defendant argued that Crim. P. 16
required the prosecution to provide a new fingerprint comparison
before trial. But the prosecution did not have possession or control
of any exculpatory fingerprint comparison results. See Crim. P.
16(I)(a)(2) (requiring prosecutors to disclose “any material or
information within [their] possession or control which tends to
negate the guilt of the accused as to the offense charged or would
tend to reduce the punishment therefor”).
¶ 32 To make a comparison as requested by defendant, he would
have had to provide a new set of his fingerprints. Defendant’s
13 request amounted to a request that the prosecution retake his
fingerprints and submit the new exemplars for comparison to those
found in the car. However, “the state has no duty to have evidence
tested on the speculative basis that it might have some unspecified
use for exculpatory purposes.” People v. Apodaca, 998 P.2d 25, 30
(Colo. App. 1999) (citing People v. Roark, 643 P.2d 756 (Colo.
1982)). “Failure to investigate does not constitute suppression of
evidence, nor may the defendant compel the state to search out and
gather evidence which could be exculpatory.” Id.; see also People v.
Norwood, 37 Colo. App. 157, 162, 547 P.2d 273, 278 (1975) (the
state’s failure to take fingerprints and preserve evidence did not
result in a violation of due process where the state did not benefit
and investigatory gaps in the prosecution’s case were brought out
at trial).
¶ 33 Considering the totality of the circumstances, we discern no
error in the court’s ruling on defendant’s motion for a continuance.
See Dill, 904 P.2d at 1374.
IV. Habitual Criminal Sentencing Statute
¶ 34 Defendant contends that the trial court erroneously sentenced
him under the habitual criminal sentencing statute because two of
14 his three prior felony convictions were permissively joined for trial.
We agree and therefore remand this case to the trial court for
resentencing without the habitual criminal sentence enhancer.
A. Standard of Review and Statutory Construction Principles
¶ 35 Our review of statutory provisions is de novo. Cowen v.
People, 2018 CO 96, ¶ 11.
¶ 36 When interpreting a statute, our primary purpose is to
ascertain and give effect to the General Assembly’s intent. Id. We
start by examining the plain meaning of the statutory language. Id.
If a term is not defined in a statute, we construe the term in
accordance with its ordinary or natural meaning. Id. at ¶ 14. We
give consistent effect to all parts of the statute and construe each
provision in harmony with the overall statutory design. Id. at ¶ 13.
B. “Charges Separately Brought and Tried” Element
¶ 37 For a defendant to be adjudged a habitual criminal under
section 18-1.3-801(2)(a)(I), the prosecution must prove beyond a
reasonable doubt that the defendant, having been convicted of a
felony, “has been three times previously convicted, upon charges
separately brought and tried, and arising out of separate and
15 distinct criminal episodes.” People v. Nunn, 148 P.3d 222, 225
(Colo. App. 2006).
¶ 38 Charges are separately brought where they are “in separate
informations, with separate docket numbers, arising out of separate
criminal incidents,” and a predicate conviction can result from
either a conviction following trial or a guilty plea. Gimmy, 645 P.2d
at 267 (citing People v. Goodwin, 197 Colo. 47, 593 P.2d 326
(1979)). Entry of guilty pleas to multiple offenses during the same
proceeding satisfies the requirement of “charges separately brought
and tried” where the “predicate convictions arose from charges
which, had they not been adjudicated through the entry of guilty
pleas, would have been tried separately.” Id.
C. Discussion
¶ 39 The parties do not dispute that defendant had previously been
convicted of three felonies that were separately filed under different
case numbers. Defendant argues, however, that because the two
cases charging him with distribution of a Schedule II controlled
substance were joined for trial under Crim. P. 13, they would have
been tried together had he not entered guilty pleas and, thus, his
16 previous convictions for distribution should be treated as one
conviction for habitual criminal purposes.
¶ 40 The People argue that because the charges were for separate
and distinct criminal episodes under the mandatory joinder statute,
see § 18-1-408(2), C.R.S. 2018, they could have been tried
separately. Because the offenses occurred a month and a half
apart, the People argue that this was not one ongoing criminal
episode and that, because the two charges and two cases were
joined permissively, they should not be considered one conviction
under the habitual criminal sentencing statute.
¶ 41 Even if we assume that the charges arose out of separate and
distinct criminal episodes and therefore could have been tried
separately, where, as here, the charges were joined for trial — albeit
permissively — and would have been tried together but for
defendant’s guilty pleas, the plain language of the habitual criminal
sentencing statute and Colorado Supreme Court precedent require
us to consider defendant’s convictions for distribution as one
conviction under the habitual criminal sentencing statute. See
§ 18-1.3-801(2)(a)(I) (“[E]very person convicted in this state of any
felony, who has been three times previously convicted, upon
17 charges separately brought and tried, and arising out of separate
and distinct criminal episodes, . . . of a felony . . . shall be adjudged
an habitual criminal . . . .”) (emphasis added); Gimmy, 645 P.2d at
267 (“Where the charges against the defendants were separately
brought and would have been tried separately but for the
defendants’ decisions to enter guilty pleas, the convictions thereby
obtained satisfy the definition of predicate felonies in the habitual
criminal statute.”); see also Brown v. Dist. Court, 197 Colo. 219,
222, 591 P.2d 99, 100-01 (1979) (noting the District Attorney’s
argument that “if the seven informations were tried separately they
could serve as the basis for a habitual criminal proceeding, but if
tried together they could not,” the supreme court nevertheless
concluded that the trial court’s consolidation of informations on the
defendant’s motion was within its sound discretion).
¶ 42 The record makes clear that defendant’s predicate felonies
were permissively joined for trial, and that the prosecutor planned
to try both charges together. At a pretrial hearing on defendant’s
distribution charges, the prosecutor requested that the court join
the cases based on her intent to admit evidence from both cases in
each trial under CRE 404(b) “as evidence of modus operandi,
18 common plan [or] scheme, intent, and . . . lack of mistake.” Over
defendant’s objection, the court ordered the “consolidation of the
two cases for trial” and set a single trial date. The day before the
case went to trial, defendant pleaded guilty to both charges.
¶ 43 We conclude that even if the charges could have been tried
separately, they would have been tried together but for defendant’s
guilty pleas. See Gimmy, 645 P.2d at 267. We are further
persuaded by the language of Crim. P. 8 and 13. Crim. P. 8
provides for joinder of offenses, and Crim. P. 13 provides for joinder
of indictments and informations. Both rules contemplate a single
trial. Crim. P. 13 explicitly states, “[t]he procedure shall be the
same as if the prosecution were under such single indictment,
information, complaint, or summons and complaint.” We therefore
conclude that 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 under the
habitual criminal sentencing statute. The mandatory joinder rule is
relevant to whether the convictions arose out of separate and
distinct criminal episodes, see People v. Jones, 967 P.2d 166, 169
19 (Colo. App. 1997), but there is no authority for its application to the
“separately brought and tried” element of the statute.
¶ 44 Under the mandatory joinder statute, § 18-1-408(2), if the
prosecuting attorney elects to proceed on several known offenses,
all such offenses “must be prosecuted by separate counts in a
single prosecution if they are based on the same act or series of acts
arising from the same criminal episode.” Crim. P. 8(a)(1) employs
the same language as the mandatory joinder statute. But under
subsection (a)(2) of the Rule, which is titled “permissive joinder,”
“[t]wo or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses
charged . . . are of the same or similar character or are based on
two or more acts or transactions connected together or constituting
parts of a common scheme or plan.” Crim. P. 8(a)(2). Thus, joinder
is mandatory where the offenses arise from the same criminal
episode, but joinder is permissive where the offenses arise from
broader circumstances that do not necessarily constitute one
criminal episode.
¶ 45 The supreme court has interpreted “[a] series of acts arising
from the same criminal episode” as including “physical acts that are
20 committed simultaneously or in close sequence, that occur in the
same place or closely related places, and that form part of a
schematic whole.” Jones, 967 P.2d at 169-70 (quoting Jeffrey v.
Dist. Court, 626 P.2d 631, 639 (Colo. 1981)). This meaning also
applies “[i]n determining the quantum of proof required to show
separate and distinct criminal episodes in an habitual criminal
proceeding.” Id. at 169.
¶ 46 Considering these statutes and rules together, the reader
would conclude that, if two or more offenses arose out of separate
criminal episodes, but were of a similar character, they could be
joined together for trial, yet such joinder would not be required.
See Crim. P. 8(a)(2). Under that scenario, the two separate offenses,
if they were tried separately and resulted in felony convictions,
could qualify as separate predicate felonies for purposes of the
habitual criminal sentencing statute. See § 18-1.3-801(2)(a)(I).
However, the “separately brought” element, which requires a
showing that the convictions arose out of separate criminal
incidents, and the “separately tried” element remain distinct
elements and each must be proved beyond a reasonable doubt.
21 ¶ 47 In sum, the People’s focus on whether the joinder was
mandatory or permissive is misplaced. Instead, the focus is
properly on whether the charged offenses would have been tried
separately. Because the offenses here were, in fact, joined for trial,
they would not have been tried separately. Therefore, under
Gimmy, defendant was not eligible for habitual criminal sentencing
based on those convictions.
¶ 48 The habitual criminal sentencing statute and Gimmy require
that the prosecution prove beyond a reasonable doubt that
defendant’s predicate felony convictions were separately brought
and would have been separately tried had defendant not entered
guilty pleas. See § 18-1.3-801(2)(a)(I); Gimmy, 645 P.2d at 267.
Because the People failed to meet their burden to prove these facts,
defendant’s adjudication as a habitual criminal is reversed, as is his
sentence for that adjudication.
V. Conclusion
¶ 49 The judgment of conviction is affirmed. The case is remanded
for the trial court to impose a new sentence in accordance with this
opinion and to correct the mittimus.
JUDGE J. JONES and JUDGE NIETO concur.