(1) (a) A person shall be
adjudged an habitual criminal and shall be punished by a term in the department of
corrections of life imprisonment if the person:
(I) Is convicted of:
(A) Any class 1 or 2 felony or level 1 drug felony; or
(B) Any class 3 felony that is a crime of violence, as defined in section 18-1.3-406 (2); and
(II) Has been twice convicted previously for any of the offenses described in
subparagraph (I) of this paragraph (a).
(b) A felony described in subparagraph (I) of paragraph (a) of this subsection
(1) is:
(I) One based upon charges separately brought and tried, and arising out of
separate and distinct criminal episodes, in this or any other state; or
(II) A crime under the laws of any other state, the United States, or any
territory subject to the jurisdiction of the United States, which, if committed within
this state, would be such a felony described in paragraph (a) of this subsection (1).
(c) No person sentenced pursuant to this subsection (1) shall be eligible for
parole until such person has served at least forty calendar years.
(d) Nothing in this subsection (1) prohibits the governor from issuing a pardon
or a clemency order on a case-by-case basis; however, the governor shall submit a
report to the general assembly on each such pardon or clemency order in
accordance with section 7 of article IV of the state constitution.
(e) Nothing in this subsection (1) is to be construed to prohibit a person
convicted of a class 1 felony from being sentenced pursuant to section 18-1.3-1201
for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for
an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102.
(f) This subsection (1) shall not apply to a person convicted of first or second
degree burglary, which person shall be subject to subsections (1.5), (2), and (2.5) of
this section and section 18-1.3-804.
(1.5) Except as otherwise provided in subsection (5) of this section, every
person convicted in this state of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3
drug felony who, within ten years of the date of the commission of the said offense,
has been twice previously convicted upon charges separately brought and tried,
and arising out of separate and distinct criminal episodes, either in this state or
elsewhere, of a felony or, under the laws of any other state, the United States, or
any territory subject to the jurisdiction of the United States, of a crime which, if
committed within this state, would be a felony shall be adjudged an habitual
criminal and shall be punished:
(a) For the felony offense of which such person is convicted by imprisonment
in the department of corrections for a term of three times the maximum of the
presumptive range pursuant to section 18-1.3-401 for the class or level of felony of
which such person is convicted; or
(b) For the level 1 drug felony offense of which such person is convicted by
imprisonment in the department of corrections for a term of forty-eight years.
(2) (a) (I) Except as otherwise provided in subsections (2)(b), (2)(c), and (5) of
this section, every person convicted in this state of any felony, who has been three
times previously convicted, upon charges separately brought and tried, and arising
out of separate and distinct criminal episodes, either in this state or elsewhere, of a
felony or, under the laws of any other state, the United States, or any territory
subject to the jurisdiction of the United States, of a crime which, if committed within
this state, would be a felony, shall be adjudged an habitual criminal and shall be
punished:
(A) For the felony offense of which such person is convicted by imprisonment
in the department of corrections for a term of four times the maximum of the
presumptive range pursuant to section 18-1.3-401 for the class or level of felony of
which such person is convicted; or
(B) For the level 1 drug felony offense of which such person is convicted by
imprisonment in the department of corrections for a term of sixty-four years.
(II) Such former conviction or convictions and judgment or judgments shall
be set forth in apt words in the indictment or information. Nothing in this part 8
shall abrogate or affect the punishment by death in any and all crimes punishable
by death on or after July 1, 1972.
(b) The provisions of subsection (2)(a) of this section do not apply to a
conviction for a level 4 drug felony committed on or after March 1, 2020, pursuant
to section 18-18-403.5 (2), or a conviction for a level 4 drug felony committed on or
after March 1, 2020, for attempt or conspiracy to commit unlawful possession of a
controlled substance, as described in section 18-18-403.5 (2), if the amount of the
controlled substance possessed is not more than four grams of any material,
compound, mixture, or preparation containing any quantity of gamma
hydroxybutyrate, including its salts, isomers, and salts of isomers, or not more than
two grams of cathinones or ketamine, or not more than four milligrams of
flunitrazepam, even if the person has been previously convicted of three or more
qualifying felony convictions.
(c) The provisions of subsection (2)(a) of this section do not apply to a
conviction for a level 4 drug felony committed on or after July 1, 2022, pursuant to
section 18-18-403.5 (2.5), or a conviction for a level 4 drug felony committed on or
after July 1, 2022, for attempt or conspiracy to commit unlawful possession of
fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, as described in
section 18-18-403.5 (2.5), even if the person has been previously convicted of three
or more qualifying felony convictions.
(2.5) Any person who is convicted and sentenced pursuant to subsection (2)
of this section, or section 16-13-101 (2), C.R.S., as it existed prior to October 1, 2002,
who is thereafter convicted of a felony which is a crime of violence pursuant to
section 18-1.3-406, shall be adjudged an habitual criminal and shall be punished by
a term in the department of corrections of life imprisonment. No person sentenced
pursuant to this subsection (2.5) shall be eligible for parole until such person has
served at least forty calendar years.
(3) No drug law conviction shall be counted as a prior felony conviction
under this section unless such prior offense would be a felony if committed in this
state at the time of the commission of the new offense.
(4) A person who meets the criteria set forth in subsection (1) of this section
shall be adjudged an habitual criminal and sentenced only in accordance with that
subsection and not pursuant to subsections (1.5), (2), and (2.5) of this section.
(5) A prior conviction for escape, as described in section 18-8-208 (1), (2), or
(3), or attempt to escape, as described in section 18-8-208.1 in effect prior to March
6, 2020, with an underlying factual basis that satisfies the elements of
unauthorized absence, as described in section 18-8-208.2, or attempt thereof, may
not be used for the purpose of adjudicating a person an habitual criminal, as
described in subsection (1.5) or subsection (2) of this section, unless the conviction
is based on the offender's escape or attempt to escape from a correctional facility,
as defined in section 17-1-102, or from physical custody within a county jail; except
that, for the purposes of this section, correctional facility does not include a
community corrections facility, as defined in section 17-27-102 (2.5), or a halfway
house, as defined in section 19-2.5-102.
(6) (a) For offenses committed on or after July 1, 2023, a defendant convicted
and sentenced as an habitual offender pursuant to this section who has been
sentenced to twenty-four years or more in the department of corrections and has
served at least ten calendar years of a sentence for a felony offense for which the
person was sentenced as an habitual criminal may petition the court for a
modification of that sentence or for counsel to assist in filing the petition and any
other habitual sentence for which the defendant is imprisoned in the department of
corrections. The court shall appoint counsel for the defendant from the office of
state public defender and shall serve an order of appointment on the office, which
shall represent the defendant or notify the court of a conflict. The court shall allow
counsel to supplement the petition.
(b) The court shall set the matter for evidentiary hearing. At the hearing, the
defendant has the burden of demonstrating, by a preponderance of the evidence,
that:
(I) The statutory eligibility criteria are met;
(II) There are mitigating factors regarding the defendant's circumstances at
the time of conviction or substantial mitigating factors regarding the circumstances
of the offense or offenses;
(III) The defendant has demonstrated positive, engaged, and productive
behavior in the department of corrections; and
(IV) The defendant does not currently present a risk to the community at
large.
(c) If the defendant satisfies the burden described in subsection (6)(b) of this
section and the court determines, based on the totality of the circumstances, that a
modification of sentence is justified, the court may resentence the defendant to a
term of at least the midpoint in the aggravated range for the class of felony for
which the defendant was convicted, up to a term less than the current sentence.