Dorsey v. People

536 P.3d 314

Charles K. DORSEY, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 21SC856

Supreme Court of Colorado.

October 3, 2023

Attorneys for Petitioner: Megan A. Ring, Public Defender, Meredith K. Rose, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado

En Banc

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

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 This case requires us to confront a similar issue to the one we take up in the companion case of Caswell v. People , 2023 CO 50, 536 P.3d 323, which we also announce today. In Caswell , the lead case, we hold that, at least under the circumstances there, a criminal defendant is not entitled to a jury trial on the recidivist provision of the cruelty-to-animals statute, § 18-9-202(2)(b)(I), C.R.S. (2023), which transforms a conviction from a misdemeanor into a felony. Caswell, ¶ 2. We conclude in Caswell that section 18-9-202(2)(b)(I) is a sentence enhancer, which may be proved to a judge by a preponderance of the evidence, not an element, which must be proved to a jury beyond a reasonable doubt. Id. at ¶ 3. Using the blueprint laid out in that case, we conclude in this case that a criminal defendant is not entitled to a jury trial on the recidivist provision of the failure to register as a sex offender statute, § 18-3-412.5(2)(a), C.R.S. (2023) ("subsection (2)(a)"), which transforms a conviction from a class 6 felony into a class 5 felony. See id. ("Failure to register as a sex offender is a class 6 felony ... except that any second or subsequent offense of failure to register as a sex offender ... is a class 5 felony.").

¶2 Because the failure-to-register statute doesn't explicitly state whether subsection (2)(a) sets forth an element of the offense, which must be proved to a jury beyond a reasonable doubt, or a sentence enhancer, which may be proved to a judge by a preponderance of the evidence, we look to the provisions and framework of the statute to determine the legislature's intent. See United States v. O'Brien, 560 U.S. 218, 225, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). More specifically, we consult (1) the language and structure of the statute, (2) tradition, (3) the risk of unfairness, (4) the severity of the sentence, and (5) the statute's legislative history. Id. Applying this multi-factor standard, we hold that our General Assembly intended to designate subsection (2)(a) a sentence enhancer, not an element of the offense.

¶3 We also hold that allowing a judge to elevate a conviction for failure to register from a class 6 felony to a class 5 felony, based on a prior conviction for failure to register, doesn't violate a defendant's right to a jury trial under either the Sixth Amendment or article II, sections 23 and 25 of the Colorado Constitution. In Caswell, we determine that, at least under the circumstances there, neither the Sixth Amendment nor article II, sections 16 and 23 require recidivism provisions that transform misdemeanors into felonies be proved to a jury beyond a reasonable doubt. ¶ 4. Here, we confront a simpler question. Unlike Caswell, this case doesn't consider the elevation of a misdemeanor into a felony. The fact of a prior conviction for failure to register merely elevates a subsequent conviction from one class of felony (a class 6 felony) to a more severe class of felony (a class 5 felony). Inasmuch as the statutory scheme in Caswell passes constitutional muster, the failure-to-register statutory scheme necessarily does as well.

¶4 A division of the court of appeals correctly decided that our legislature intended to make subsection (2)(a) a sentence enhancer, not an element. People v. Dorsey, 2021 COA 126, ¶ 25, 503 P.3d 145, 150. However, the division incorrectly concluded that it could bypass the Sixth Amendment question because it was able to discern a clear legislative intent to treat the fact of a prior conviction as a sentence enhancer. Id. In doing so, the division relied on part of our discussion in Linnebur v. People, 2020 CO 79M, ¶ 31, 476 P.3d 734, 741 : "[I]f we can glean a clear legislative intent in either direction, then we may leave aside the Sixth Amendment issue and simply resolve this case as a matter of statutory interpretation." See Dorsey, ¶ 25, 503 P.3d at 150.

¶5 Today we clarify that we could set aside the Sixth Amendment issue in Linnebur because we ruled that the fact of prior convictions was an element of felony DUI that had to be proved to the jury beyond a reasonable doubt, thereby granting Linnebur the relief the Sixth Amendment required. See Linnebur, ¶ 31, 476 P.3d at 741 (noting that, "subject to constitutional limitations," whether a fact of prior convictions should be deemed an element of the offense or a sentence enhancer depends on the legislature's intent); see also O'Brien, 560 U.S. at 224–25, 130 S.Ct. 2169 (explaining that, "[s]ubject to th[e] constitutional constraint[s]" of the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, whether a given fact is an element of the crime itself or a sentence enhancer is a question for the legislature). Because we conclude here that the legislature intended to make the fact of a prior conviction a sentence enhancer, we must address whether our General Assembly's approach violates the Sixth Amendment or article II of the Colorado Constitution. As mentioned, we rule that both constitutional claims fall short.

¶6 Therefore, we affirm the division's judgment. But we do so on partially different grounds.

I. Facts and Procedural History

¶7 Charles K. Dorsey was convicted in 1997 of criminal attempt to commit sexual assault in the second degree. As a result, Dorsey was required to register as a sex offender pursuant to section 16-22-103(2), C.R.S. (2023), which he did. After this initial registration, Dorsey was obligated to re-register as a sex offender every year within five business days before or after his birthday. See § 16-22-108(1)(b), C.R.S. (2023).

¶8 In 2010, Dorsey was charged in Denver with a class 6 felony for failure to register as a sex offender in violation of section 18-3-412.5.¹ He ultimately pled guilty to a class 1 misdemeanor failure-to-register offense. See § 18-3-412.5(3)(a) (describing, as pertinent here, the misdemeanor crime of failure to register following a conviction for "misdemeanor unlawful sexual behavior," or for an offense whose "underlying factual basis ... involves misdemeanor unlawful sexual behavior").

¶9 Dorsey failed to re-register as a sex offender for a second time in 2017, again in Denver. After a warrant issued for his arrest, he was taken into custody and charged with failure to register as a sex offender (second or subsequent offense), a class 5 felony. See § 18-3-412.5(2)(a). This time, the matter proceeded to a jury trial. Dorsey moved for a bifurcated trial in which the jury would first consider the substantive charge and then, if it found him guilty, determine whether he had a prior conviction for failure to register. The trial court initially granted his request "out of an abundance of caution," but it later reversed course and determined that bifurcation wasn't necessary. The prior-conviction provision of subsection (2)(a), reasoned the court, was a sentence enhancer that could be proved to the judge in the event of a conviction, not an element of the offense that had to be proved to the jury.

¶10 After the jury found Dorsey guilty of the substantive charge, the trial court ruled, at the sentencing hearing, that the People had proved the fact of his prior conviction by a preponderance of the evidence. Consequently, it entered a judgment of conviction on a class 5 felony.

¶11 On appeal, Dorsey complained that the People were required to prove his prior conviction to the jury beyond a reasonable doubt. A division of the court of appeals disagreed and affirmed Dorsey's conviction. Dorsey , ¶ 2, 503 P.3d at 146. Citing the division's decision in People v. Caswell, 2021 COA 111, 499 P.3d 361, the Dorsey division held that "the language and structure" of section 18-3-412.5 suggest that the General Assembly intended to treat a prior conviction as a sentence enhancer. ¶ 19, 503 P.3d at 148. More specifically, the Dorsey division explained that (1) the prior conviction language appears in a penalty subsection rather than in the subsection outlining the substantive crime and (2) the statute imposes no requirement on the prosecution to plead the fact of a prior conviction in the charging document. Id. The Dorsey division added that its conclusion was consistent with how other divisions had historically construed the relevant statutory scheme. Id. at ¶ 20, 503 P.3d at 148.

¶12 Notably, the division declined to address Dorsey's argument that regardless of the statute's language, courts must still "apply a functional test under the Sixth Amendment to determine whether the fact [of a prior conviction] increases the punishment for the crime." Id. at ¶ 25, 503 P.3d at 150. Relying on language from our court's decision in Linnebur, the division stated that it didn't need to address Dorsey's Sixth Amendment claim because the legislature clearly intended subsection (2)(a) to operate as a sentence enhancer. Id.

¶13 Dorsey then petitioned our court for certiorari. We granted his petition.²

II. Analysis

¶14 We begin with the standard of review. We then apply the five factors the Supreme Court outlined in O'Brien to discern whether the legislature intended to make subsection (2)(a) an element or a sentence enhancer. Because we conclude that our General Assembly meant to designate the felony-level transforming fact in subsection (2)(a) a sentence enhancer, we proceed to consider whether, as Dorsey contends, the...