v. Williams

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.

22