June 18, 2019

Colorado Court of Appeals: Trial Court May Only Increase Level of Distribution of Schedule II Substance Felony Based on Equal or More Severe Felony

The Colorado Court of Appeals issued its opinion in People v. Jacobs on Thursday, November 15, 2018.

Criminal Law—Uniform Controlled Substances Act—Sentence Enhancer—Distribution—Conspiracy to Distribute—Prior Conviction—Habitual Criminal—Double Jeopardy Clause.

A jury convicted defendant of distribution and conspiracy to distribute a schedule II controlled substance. The trial court subsequently found that defendant had been convicted in 2007 of distributing a controlled substance. Based on this finding, it enhanced the distribution of a controlled substance conviction from a class 3 felony to a class 2 felony and found defendant was a habitual criminal. The court then sentenced defendant to 24 years in prison for the distribution count. Applying the habitual criminal finding, the court increased the sentence on this count to 96 years in prison. On the conspiracy count, the court sentenced defendant to 12 years in prison for that class 3 felony. Again applying the habitual criminal finding, the court increased the sentence on this count to 48 years in prison, to be served concurrently with the sentence on the distribution count.

On appeal, defendant argued that the 2007 conviction did not fit the statutory definition of a conviction that the trial court could use to enhance the distribution count from a class 3 felony to a class 2 felony. Here, the mittimus and amended mittimus in the 2007 case contain a mistake: they state that defendant pleaded guilty to a class 3 felony charge, but documents in the record from the 2007 case clearly show that defendant pleaded guilty to a class 4 felony. Pursuant to C.R.S. § 18-18-405(2)(a), a trial court may only increase the level of a class 3 distribution of a schedule II controlled substance felony based on an equal or more severe felony. Therefore, the trial court erred when it relied on defendant’s prior conviction to enhance his class 3 distribution felony to a class 2 felony.

Defendant also argued that one of the habitual criminal counts, which was based on the 2007 conviction, suffered from the same statutory defect. But any error involving the 2007 conviction was harmless because vacating one of defendant’s five habitual criminal counts would have no effect on his sentence, which only requires three prior felony convictions.

Defendant further contended that his convictions and sentences on both the distribution and conspiracy counts based on the same quantum of drugs violated the Double Jeopardy Clause. The prosecution conceded this contention, noting that, even under plain error review, the trial court obviously and substantially violated defendant’s right to avoid double jeopardy.

The enhancement of defendant’s class 3 felony distribution conviction and prison sentence for that conviction were reversed. The conviction and sentence for conspiracy to distribute a schedule II controlled substance were also reversed, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

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