2025 CO 57, 24SA272, In re: People v. Gregg, Andrew

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
September 29, 2025

2025 CO 57

No. 24SA272, People v. Gregg-Criminal Procedure - Statutory Construction -
Habitual Criminal Sentencing - Double Jeopardy Clause.

The United States Supreme Court recently announced Erlinger v. United
States, 602 U.S. 821 (2024), which held that defendants are entitled to have a jury
resolve the Armed Career Criminal Act's occasions inquiry. 602 U.S. at 835. The
Colorado Supreme Court granted certiorari to address how Erlinger influences
Colorado's former habitual criminal sentencing scheme, §§ 18-1.3-801 to -804,
C.R.S. (2024), which instructed "the trial judge" to find the fact of such prior
convictions. § 18-1.3-803(4). The court also considers whether the Double
Jeopardy Clause bars a trial court from empaneling a second jury to determine a
defendant's habitual criminal status.

The supreme court holds that Colorado's former habitual criminal
sentencing statute is not facially unconstitutional and can operate within the
constitutional limits set forth in Erlinger by requiring the jury to first determine
whether prior convictions were based on charges arising out of separate and

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distinct criminal episodes. If the jury so finds, then the trial judge should review
the jury's findings for sufficiency of the evidence. The supreme court also holds
that, in this case, the Double Jeopardy Clause does not bar a trial court from
empaneling a second jury to determine a defendant's habitual criminal status.
Accordingly, the supreme court makes the order to show cause absolute and
reinstates the habitual criminal charges so a jury can assess them.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2025 CO 57

Supreme Court Case No. 24SA272
Original Proceeding Pursuant to C.A.R. 21
Mesa County District Court Case No. 23CR289
Honorable Matthew D. Barrett, Judge

In Re
Plaintiff:

The People of the State of Colorado,

V.

Defendant:

Andrew Burgess Gregg.

Order Made Absolute
en banc
September 29, 2025

Attorneys for Plaintiff:
Daniel P. Rubinstein, District Attorney, Twenty-First Judicial District
Johanna G. Coats, Special Deputy District Attorney
Jeff M. Van der Veer, Special Deputy District Attorney
Grand Junction, Colorado

Attorneys for Defendant:
2nd-Chair
Britta Kruse
Daniel Pollitt
Denver, Colorado

Robert P. Borquez

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Denver, Colorado

Attorneys for Respondent Mesa County District Court:
Philip J. Weiser, Attorney General
Talia Kraemer, Assistant Solicitor General
Denver, Colorado

Attorneys for Amicus Curiae ACLU Foundation of Colorado:
Timothy R. Macdonald
Emma Mclean-Riggs
Lindsey M. Floyd
Denver, Colorado

Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
Haddon, Morgan and Foreman, P.C.
Jacob B. McMahon
Denver, Colorado

Attorney for Amicus Curiae Office of Alternate Defense Counsel:
Jonathan Rosen
Denver, Colorado

Attorneys for Amici Curiae Office of the Attorney General and Colorado
District Attorneys' Council:

Philip J. Weiser, Attorney General
Jillian J. Price, Deputy Attorney General
Brian M. Lanni, Senior Assistant Attorney General
Grant R. Fevurly, Senior Assistant Attorney General
Denver, Colorado

Attorneys for Amicus Curiae Office of the State Public Defender:
Megan A. Ring, Public Defender
Meghan M. Morris, Deputy Public Defender
Denver, Colorado

Attorney for Amicus Curiae Spero Justice Center:
Dan M. Meyer
Denver, Colorado

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

CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE HOOD, concurred in part and
dissented in part.

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JUSTICE BOATRIGHT delivered the Opinion of the Court.

11 In this original proceeding, we consider two issues: (1) how trial courts
should resolve the interaction between the prior version of Colorado's habitual
criminal sentencing statute, § 18-1.3-803, C.R.S. (2024), and Erlinger v. United States,
602 U.S. 821 (2024); and (2) whether the Double Jeopardy Clause bars a trial court
from empaneling a second jury to determine a defendant's habitual criminal
status. The parties agree that section 18-1.3-803 (the "sentencing statute")
previously required a judge to make habitual criminal findings, whereas Erlinger
requires a jury to make those findings.

12 Nevertheless, the People contend that the sentencing statute and Erlinger are
compatible because a jury could first adjudicate the habitual criminal counts
(satisfying Erlinger), and then a judge could confirm or reject those findings
(satisfying the sentencing statute). They also posit that, in this case - where a jury
found Andrew Burgess Gregg guilty of substantive crimes but did not decide his
habitual counts-a new jury can determine those counts without violating his
double jeopardy rights. Gregg counters that the sentencing statute is
unconstitutional under Erlinger. Alternatively, Gregg argues that the Double
Jeopardy Clause prevents a court from empaneling a new jury to decide a

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defendant's habitual criminal charges after it has discharged the jury that issued a
verdict on the substantive offenses.1

T3
We agree with the People. Accordingly, we hold that Colorado's former
habitual criminal sentencing statute is not facially unconstitutional and can
operate within the constitutional limits set forth in Erlinger. We also hold that,
here, the Double Jeopardy Clause does not bar a trial court from empaneling a
second jury to determine a defendant's habitual criminal status.

14 Therefore, we make the order to show cause absolute and reinstate Gregg's
habitual criminal charges so a jury can assess them.

## I. Facts and Procedural History

15
The People charged Gregg with aggravated robbery, attempt to influence a
public servant, and false reporting. They also brought four habitual criminal
counts under section 18-1.3-801, C.R.S. (2024),2 alleging that Gregg had committed
four prior felonies. A jury convicted Gregg of robbery, attempt to influence a
public servant, and false reporting. The trial court then discharged the jury and
set a habitual criminal hearing to determine the habitual criminal counts.

1 The trial court, as a respondent, primarily agrees with Gregg's double jeopardy
argument. It alternatively asks us to remand the case for it to address the
constitutionality of the sentencing statute in the first instance.

2 This version of the statute was in effect when the underlying events of this case
occurred.

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16
Before the court held the habitual criminal hearing, the United States
Supreme Court announced Erlinger, which addressed the Armed Career Criminal
Act ("ACCA"). 602 U.S. at 825. The ACCA mandates enhanced sentences for
defendants who have three prior convictions for violent felonies or serious drug
offenses "committed on occasions different from one another." 18 U.S.C.
§ 924(e)(1). Erlinger held that defendants are "entitled to have a jury resolve
ACCA's occasions inquiry unanimously and beyond a reasonable doubt."
602 U.S. at 835.

17 Relying on Erlinger, Gregg moved to dismiss his habitual criminal counts.
He argued that Erlinger precluded the trial court from finding him a habitual
criminal under section 18-1.3-801(2)(a)(I), which escalates the sentence for a
defendant who has been "three times previously convicted, upon charges
separately brought and tried, and arising out of separate and distinct criminal
episodes." Gregg further argued that empaneling a new jury to make this finding
would violate the Double Jeopardy Clause. The People opposed Gregg's motion,
asserting that jeopardy had not attached to the habitual criminal counts. The
People thus argued that the court could first determine whether Gregg was the
person who was previously convicted; if so, the court could then empanel a second
jury to determine whether those prior convictions stemmed from separate and
distinct episodes.

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18
The trial court granted Gregg's motion to dismiss his habitual criminal
counts. Without addressing whether Erlinger rendered the sentencing statute
unconstitutional, the court found that it could not empanel a second jury to assess
the habitual criminal counts because jeopardy had attached.

19 The People then sought relief under C.A.R. 21, and we issued an order to
show cause.

## II. Jurisdiction and Standard of Review

110 C.A.R. 21 grants this court "sole discretion to exercise our original
jurisdiction." People v. Justice, 2023 CO 9, 117, 524 P.3d 1178, 1182 (quoting
People v. Cortes-Gonzalez, 2022 CO 14, 1 21, 506 P.3d 835, 842). However, "[r]elief
under this rule is extraordinary in nature and ... will be granted only when no
other adequate remedy is available." C.A.R. 21(a)(2). Previously, we have
exercised our discretion under Rule 21 "when an appellate remedy would be
inadequate, when a party may otherwise suffer irreparable harm, [or] when a
petition raises 'issues of significant public importance that we have not yet
considered."" People v. Walthour, 2023 CO 55, 1 8, 537 P.3d 371, 374 (alteration in
original) (quoting People v. Kilgore, 2020 CO 6, 1 8, 455 P.3d 746, 748).

111 The People argue that this case is one of first impression and of significant
public importance. We agree. Determining the relationship between Erlinger and
the sentencing statute will affect matters of significant public importance-the

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constitutionality of our sentencing statute and its impact on habitual criminal
charges in Colorado. Therefore, we choose to exercise our jurisdiction.

112 As for the standard of review, trial courts generally have broad discretion
when imposing sentences, decisions that "will not be overturned absent a clear
abuse of that discretion." Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). However,
when a sentencing decision involves constitutional issues, the standard of review
is de novo. Id. Here, the trial court's decision implicates Gregg's constitutional
right to a jury. Thus, we review the trial court's decision de novo.

113 In construing the sentencing statute, our analysis must "seek to ascertain
and give effect to the General Assembly's intent." McBride v. People, 2022 CO 30,
T 23, 511 P.3d 613, 617. In doing so, we must construe the statute "to avoid
constitutional conflicts if possible." Lopez, 113 P.3d at 728 (citing People v. Holmes,
959 P.2d 406, 415 (Colo. 1998)). Thus, "if a challenged statute is capable of several
constructions, one of which is constitutional, the constitutional construction must
be adopted." People v. Schoondermark, 699 P.2d 411, 415 (Colo. 1985).

## III. Analysis

114 The People's petition presents two issues, and we address each in turn.
First, we assess the interplay between the prior version of Colorado's habitual
criminal sentencing statute and Erlinger, ultimately determining that this prior
version of the habitual criminal sentencing statute remains constitutional. Second,

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we examine Gregg's double jeopardy concerns and conclude that double jeopardy
issues do not prevent a second jury from deciding his habitual criminal counts.

## A. The Interaction Between Colorado's Habitual Criminal Sentencing Statute and Erlinger

115 We begin by examining the prior language of Colorado's habitual criminal
sentencing scheme; specifically, sections 18-1.3-801 and 18-1.3-803(4). We next
discuss the Supreme Court's decision in Erlinger. Finally, we analyze the
interaction between the sentencing statute and Erlinger.

## 1. Colorado's Habitual Criminal Sentencing Statute

116 Sections 18-1.3-801 to -804, C.R.S. (2024), constitute Colorado's habitual
criminal sentencing scheme. This scheme "does not establish a substantive offense
but instead provides for increased penalties for repeat offenders based on a
defendant's previous convictions." Campbell v. People, 2020 CO 49, 1 47,
464 P.3d 759, 768. A defendant is a habitual offender, and thus implicated in this
sentencing scheme, if they have been convicted of a felony and "three times
previously convicted, upon charges separately brought and tried, and arising out
of separate and distinct criminal episodes." § 18-1.3-801(2)(a)(I).

117 Section 18-1.3-803 creates a bifurcated scheme for habitual charges.3
Specifically, subsection (1) formerly provided that if a guilty verdict was returned

3 After oral argument in this case, the legislature passed Senate Bill 25-189, which
amends section 18-1.3-803(1) to require "a jury to determine whether ... the

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on the substantive offense, "the court shall conduct a separate sentencing hearing to
determine whether or not the defendant has suffered such previous felony
convictions." § 18-1.3-803(1) (emphasis added). Subsection (4) was more specific.
It provided a two-phase procedure: First, "[t]he jury shall render a verdict" on the
substantive offense, and then, if the jury's verdict is guilty, "the trial judge . . . shall
proceed to try the issues of whether the defendant has been previously convicted
as alleged." § 18-1.3-803(4)(a)-(b) (emphases added). The parties and their amici
agree that the plain language of section 18-1.3-803 required a judge to make
habitual criminal findings.

## 2. The Supreme Court's Decision in Erlinger

118 In Erlinger, the Court reiterated that "[v]irtually 'any fact' that 'increase[s]
the prescribed range of penalties to which a criminal defendant is exposed' must
be resolved by a unanimous jury beyond a reasonable doubt." 602 U.S. at 834
(second alteration in original) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)). The Court continued to recognize that there is "a narrow exception" to

defendant has suffered the alleged previous felony convictions, whether the
convictions were separately brought and tried, and whether the convictions arose
out of separate and distinct criminal episodes" for the purpose of determining
whether the defendant is a habitual criminal. S.B. 25-189, 75th Gen. Assemb., Reg.
Sess. (Colo. 2025). As amended, section 18-1.3-803(1) allows the court to empanel
a new jury to make such a determination "when necessary and as constitutionally
permissible." Id.

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Apprendi's rule that allows "judges to find only 'the fact of a prior conviction."" Id.
at 838 (quoting Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013)). But because the
ACCA's "occasions inquiry" contemplates more than the simple fact of a prior
conviction-it instead asks whether those convictions were committed "on
occasions different from one another," 18 U.S.C. § 924(e)(1)-the Court deemed
this exception inapplicable. Erlinger, 602 U.S. at 838. Therefore, the Court held
that Erlinger "was entitled to have a jury resolve [the] ACCA's occasions inquiry
unanimously and beyond a reasonable doubt." Id. at 835.

119 The first question here is how this holding influences Colorado's former
habitual criminal sentencing scheme, which enhanced a defendant's sentence for
prior convictions "arising out of separate and distinct criminal episodes,"
§ 18-1.3-801(1)(b)(I), but which instructed "the trial judge" to find the fact of such
prior convictions, § 18-1.3-803(4). We now turn to that question.

## 3. Colorado's Former Habitual Criminal Sentencing Statute Is Compatible with Erlinger

120 A statute is facially unconstitutional when it "is unconstitutional in all its
applications." Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010). Gregg argues that
Erlinger rendered the habitual criminal sentencing statute unconstitutional. He
contends that the statute unambiguously removed juries from the habitual
criminal phase of trial because it repeatedly stated that "the trial judge" must
decide whether the defendant has been previously convicted as alleged. He

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argues that the legislature's intent to exclude juries from this process is clear
because the statute used the word "judge" instead of "factfinder" or "court," and
it authorized a "replacement judge" if the judge "who presided" over the
substantive phase of the trial was unavailable. § 18-1.3-803(1), (4)(b), (5)(b), (6). In
Gregg's view, this conflicted with Erlinger because it eliminated juries from the
habitual criminal phase of trial.

121 The People agree that Erlinger requires the jury to find that a defendant's
prior convictions arose "out of separate and distinct criminal episodes." See
§ 18-1.3-801(2)(a)(I). But they argue that the former version of the sentencing
statute remains constitutional following Erlinger. Specifically, the People propose
the following two-step procedure: (1) the jury determines whether a defendant's
prior convictions arose out of separate and distinct criminal episodes; and (2) if the
jury so finds, the judge then conducts a secondary review of the same evidence.
They contend that this process complies with both Erlinger -because the jury
makes the requisite finding- and the sentencing statute-because the trial judge
still "determine[s] by separate hearing and verdict whether the defendant has been
convicted as alleged." § 18-1.3-803(4).

122 To resolve these dueling interpretations, we first look to Lopez v. People,
113 P.3d 713 (Colo. 2005). In Lopez, we addressed the constitutionality of courts'
heightening defendants' sentences based on "extraordinary aggravating

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circumstances" under section 18-1.3-401(6), C.R.S. (2025). 113 P.3d at 725. We
explained that when sentencing requires judicial fact-finding to which the
defendant has not stipulated,4 the rule announced in Blakely v. Washington,
542 U.S. 296 (2004), applies. Lopez, 113 P.3d at 726-27. "The Blakely rule is
concerned specifically with defendants' constitutional protections in criminal
proceedings, particularly the right to a jury determination, beyond a reasonable
doubt, that facts exist that expose the defendant to criminal penalties." Id. at 726.
We acknowledged that section 18-1.3-401(6) could be applied unconstitutionally
but that the possibility of such did not require finding the statute unconstitutional.
Lopez, 113 P.3d at 728.

123 Ultimately, Lopez held that section 18-1.3-401(6) is constitutional so long as
it is properly applied (i.e., when sentence-enhancing facts considered by the court
are either Blakely-compliant or Blakely-exempt).5 113 P.3d at 719, 728. Thus, in
construing the statute to avoid a constitutional conflict (as is required), we ratified
a process in which a sentencing judge considers facts previously found by a jury.
Id. at 728-29, 731.

4 Gregg did not admit his prior convictions or stipulate to judicial fact-finding for
sentencing purposes.

5 As relevant to this case, prior convictions are Blakely-exempt, and thus may be
considered by a judge, because "these facts have been determined by a jury
beyond a reasonable doubt or admitted by the defendant in a knowing and
voluntary plea agreement." Lopez, 113 P.3d at 730.

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124 Though the circumstances here are different, we draw guidance from Lopez
and utilize the solution in that case as a model. To begin, it is undisputed that
Erlinger applies to Colorado's habitual criminal sentencing statute because there
are no material differences, regarding the inquiry into separate offenses, between
the ACCA and section 18-1.3-801. See 18 U.S.C. § 924(e); § 18-1.3-801. We
recognize that the question of separate and distinct criminal episodes demands a
jury finding because it requires more than a mere determination of "what crime,
with what elements, the defendant was convicted of." Erlinger, 602 U.S. at 838
(quoting Mathis v. United States, 579 U.S. 500, 511-12 (2016)). But while the former
habitual criminal sentencing statute instructed "the trial judge" to determine
"whether the defendant has been convicted as alleged," § 18-1.3-803(4), it did not
explicitly prohibit the jury from finding that those prior convictions stemmed from
separate and distinct criminal episodes. Nor does Erlinger forbid a judge's review
of a jury's habitual criminal determination. If there is a procedure that satisfies the
requirements of both the statute and Erlinger, like in Lopez, then, by definition, the
statute is not facially unconstitutional.

125 Hence, we conclude that under the sentencing statute as applied to cases
that arise before the 2025 version went into effect, a jury should first determine
whether the defendant's prior convictions were based on charges arising out of
separate and distinct criminal episodes. If the jury so finds, then the trial judge

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should review the jury's findings for sufficiency of the evidence, regarding
whether the defendant "has been previously convicted as alleged." See
§ 18-1.3-803(4)(b); see also People v. LaRosa, 2013 CO 2, 1 35, 293 P.3d 567, 575
(explaining that the sufficiency of the evidence test "requires the court to consider
whether a reasonable mind could conclude that 'each material element of the
offense was proven beyond a reasonable doubt" (quoting People v. Bennett,
515 P.2d 466, 470 (Colo. 1973))). If the court determines that the jury's findings are
supported by sufficient evidence, then it will enter the judgment and thereby
satisfy the sentencing statute. Conversely, if the jury does not find that the
defendant's prior convictions were based on charges arising out of separate and
distinct criminal episodes, then the court must acquit the defendant of the habitual
criminal counts.

126 Because this procedure complies with Erlinger, we hold that Colorado's
former habitual criminal sentencing statute is not facially unconstitutional.

## B. Double Jeopardy in the Context of Habitual Criminal Sentencing

127 We now consider whether, when the jury that found the defendant guilty of
the substantive offense has been discharged, the Double Jeopardy Clause bars a
trial court from empaneling a second jury to decide the defendant's habitual
criminal counts.

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## 1. Double Jeopardy Jurisprudence

128 The Double Jeopardy Clauses of the United States and Colorado
Constitutions protect against successive prosecutions for the same offense after
acquittal and against multiple punishments for the same offense. U.S. Const.
amends. V, XIV; Colo. Const. art. II, § 18; see also Brown v. Ohio, 432 U.S. 161, 165
(1977); People v. Leske, 957 P.2d 1030, 1035 n.5 (Colo. 1998). As for habitual criminal
counts, that determination is "independent of the determination of guilt on the
underlying substantive offense." Oyler v. Boles, 368 U.S. 448, 452 (1962).

129 In Bullington v. Missouri, 451 U.S. 430, 439, 446 (1981), after the jury found
the defendant guilty of murder but imposed a life sentence rather than the death
penalty, the Supreme Court held that the Double Jeopardy Clause prevented the
state from seeking the death penalty on retrial, reasoning that capital sentencing
hearings "have the hallmarks of [a] trial on guilt or innocence." A few months
later, we applied Bullington's rationale to habitual criminal sentencing in
People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled by, People v. Porter, 2015 CO
34, 348 P.3d 922. There, we noted that Colorado's then-extant habitual criminal
statute required notice of "prior convictions by separate counts in the information
or indictment, .. . a formal arraignment, ... proof beyond a reasonable doubt[,] ...
[and] bifurcated trial and separate verdict provisions." Id. at 419. We thus held
that double jeopardy protections applied because "an adjudication of habitual

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criminality [may] be made only in accordance with the same procedural and
constitutional safeguards traditionally associated with a trial on guilt or
innocence." Id.

130 The following year, in People v. Mason, 643 P.2d 745, 754-55 (Colo. 1982), we
considered a case where the trial court discharged the jury that rendered the
verdict on the defendant's substantive offense and then improperly made habitual
criminal findings, in violation of the then-extant statute. See § 16-13-103(4), C.R.S.
(1973) ("[T]he jury impaneled to try the substantive offense shall determine by
separate verdict whether the defendant has been convicted as alleged."). We held
that double jeopardy principles precluded a retrial on Mason's habitual criminal
counts because the trial court "deprived the defendant of his valued right to a jury
verdict on the prior conviction counts by that particular jury impaneled and sworn to
try the case." Mason, 643 P.2d at 755 (emphasis added).

131 Years later, in Monge v. California, 524 U.S. 721 (1998), the Supreme Court
limited Bullington to capital sentencing hearings only. The Court stated that for
other sentencing proceedings, the Double Jeopardy Clause is inapplicable because
"the determinations at issue do not place a defendant in jeopardy for an 'offense."
Monge, 524 U.S. at 728. The Court thus held that double jeopardy "does not
preclude retrial on a prior conviction allegation in the noncapital sentencing
context." Id. at 734.

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132 Monge led us to reverse course and follow federal precedent in Porter, where
we held that "Colorado double jeopardy law does not apply to noncapital
sentencing proceedings." Porter, 11 3-4, 348 P.3d at 923. Porter thereby overruled
Quintana. Id. at 13, 348 P.3d at 923. In doing so, we concluded that Monge
remained good law post-Apprendi because Apprendi discussed Monge "without
questioning its continued viability and exempted 'the fact of a prior conviction'
from its holding." Id. at | 17 n.4, 348 P.3d at 926 n.4 (quoting Apprendi, 530 U.S. at
490).

133 Most recently, in Erlinger, the Court addressed an amicus's argument that
because the Double Jeopardy Clause "permits a judge to ask whether the
government has charged a defendant for the same crime a second time," it follows
that "a judge can also look into the defendant's past conduct to increase his
sentence." 602 U.S. at 844. The Court rejected that argument, stating that the
"Double Jeopardy Clause protects a defendant by prohibiting a judge from even
empaneling a jury when the defendant has already faced trial on the charged
crime," whereas the jury trial right provides "entirely complementary
protections ... by ensuring that, once a jury is lawfully empaneled," the
government must prove its case to that jury. Id. at 845. Notably, the Court's
discussion of double jeopardy in Erlinger did not reference Monge's limiting of
double jeopardy to capital sentencing hearings. See id. at 844.

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## 2. Double Jeopardy Protections Do Not Apply to Habitual Criminal Counts if the Jury Didn't Render a Verdict

134 In this case, the trial court relied on Erlinger and Mason to conclude that the
Double Jeopardy Clause barred it from empaneling a new jury to decide Gregg's
habitual criminal counts. Gregg now argues that this ruling was correct,
contending that habitual criminal sentencing hearings implicate double jeopardy
because they carry all the "hallmarks of the trial on guilt or innocence," Bullington,
451 U.S. at 439.6 Additionally, he notes that these adjudications have severe
sentencing consequences, such as a potential sentence of life imprisonment. See
§ 18-1.3-801(1)(a).

135 Alternatively, Gregg argues that Monge, which held that double jeopardy
only applies to capital sentencing proceedings, was abrogated by Erlinger, and
therefore, he urges this court to reconcile our holding in Porter (Colorado's
equivalent of Monge) accordingly. See Monge, 524 U.S. at 734; Erlinger, 602 U.S. at
835; Porter, 1 4, 348 P.3d at 923. He also suggests that even if Monge remains good
law, its status is "precarious," which allows us to overrule Porter and conclude that

6 According to Gregg, these hallmarks include: notice requirements,
§ 18-1.3-803(2); defendants' denial or admission, § 18-1.3-803(3); the prosecution
bearing the burden of proof, § 18-1.3-803(4)(b); specific rules of evidence, see
§ 18-1.3-803(5)(a)-(b); fact-finding by a jury-except for the fact of a prior
conviction, Mathis, 579 U.S. at 511; Erlinger, 602 U.S. at 834-35; and judges'
sentencing authority, § 18-1.3-801.

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the Colorado Constitution requires double jeopardy protections. Gregg references
other nonbinding precedent that has recognized the limitations of Monge or
diverged from it since Apprendi.7

136 But the Erlinger court did not overrule Monge; in fact, it did not even mention
Monge aside from a single citation regarding an issue entirely separate from double
jeopardy-the validity of the prior conviction exception in
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Erlinger, 602 U.S. at 838
(stating that Almendarez-Torres's "narrow exception' permitting judges to find
only 'the fact of a prior conviction"" persists (quoting Alleyne, 570 U.S. at 111 n.1)).
And the Supreme Court has consistently affirmed that double jeopardy
protections do not apply to habitual criminal sentencing proceedings because
those proceedings "do not place a defendant in jeopardy for an 'offense."" Monge,

7 Gregg cites two cases from Texas appellate courts, one case from the Ninth
Circuit, and another from the federal district court of Massachusetts. See Ex parte
Watkins, 73 S.W.3d 264, 271 (Tex. Crim. App. 2002) (observing that the "reach of
Monge was significantly curtailed by a sharply divided Court in Apprendi two
years later"); State v. Atwood, 16 S.W.3d 192, 194 (Tex. Ct. App. 2000) (holding that
Monge only permitted a retrial if the punishment issue was a legitimate sentence
enhancement issue and not an actual element of the offense); United States v.
Blanton, 476 F.3d 767, 772 (9th Cir. 2007) ("Without question, Monge stands for the
proposition that, outside of the death penalty context, double jeopardy
considerations do not apply to sentencing proceedings. But Monge's analysis of
double jeopardy in the sentencing context was undertaken before the Court's
decision in Apprendi." (citation omitted)); United States v. Gurley,
860 F. Supp. 2d 95, 114-16 (D. Mass. 2012).

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524 U.S. at 728; see also Graham v. West Virginia, 224 U.S. 616, 629 (1912); Parke v.
Raley, 506 U.S. 20, 27 (1992); Almendarez-Torres, 523 U.S. at 247 ("[T]he sentencing-
related circumstances of recidivism are not part of the definition of the offense for
double jeopardy purposes.").

137 We have interpreted the Colorado Constitution in the same manner. See
Porter, 1 29, 348 P.3d at 929. As we explained in Porter, the Double Jeopardy
Clause is implicated when jeopardy attaches at the first proceeding, that
proceeding concludes, and the defendant is later exposed to a second proceeding
(i.e., double jeopardy). 19, 348 P.3d at 924. Yet habitual adjudications do "not
involve a new crime or a substantive offense." People v. Hampton, 876 P.2d 1236,
1241 (Colo. 1994). That is, "the habitual-criminal statute describes a status rather
than a substantive offense." People ex rel. Faulk v. Dist. Ct., 673 P.2d 998, 1000 (Colo.
1983) (emphasis added). Moreover, trials with habitual criminal counts are
"bifurcated and proceed[] in two phases." Hampton, 876 P.2d at 1241. Because
"habitual adjudication is only one component of the entire process of conviction,"
it is not a second proceeding. Id. at 1242. And without a second proceeding, there
is no double jeopardy concern.

138 Erlinger does not mandate otherwise. Again, the Erlinger court simply
rejected the claim that judges (rather than juries) can resolve the ACCA's
"occasions inquiry" because they can make double jeopardy determinations.

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602 U.S. at 835, 844-45. When the Supreme Court "revisits a precedent," it usually
"consider[s] 'the quality of the decision's reasoning; its consistency with related
decisions; legal developments since the decision; and reliance on the decision.""
Ramos v. Louisiana, 590 U.S. 83, 106 (2020) (quoting Franchise Tax Bd. v. Hyatt,
587 U.S. 230, 248 (2019)). The Court did not conduct that type of analysis in
Erlinger and, thus, in no way overruled its precedent on double jeopardy. See
602 U.S. at 844-45. Therefore, Erlinger does not disrupt the well-settled precedent
that double jeopardy protections do not apply in habitual criminal sentencing
proceedings. See Monge, 524 U.S. at 728; see also Porter, 1 26, 348 P.3d at 928
(relying on Faulk, 673 P.2d at 1000). Accordingly, we hold that, here, the Double
Jeopardy Clause does not bar a trial court from empaneling a second jury to
determine a defendant's habitual criminal status.

139 Applying our holding to Gregg's case, it is undisputed that Gregg's
substantive offenses were properly tried by a jury, which the court discharged
before it determined his habitual criminal counts. Those habitual criminal counts
remain pending, meaning they are part of a single, ongoing proceeding. Thus,
there is no double jeopardy issue with empaneling a second jury to decide Gregg's
habitual criminal counts.

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## IV. Conclusion

140
For the foregoing reasons, we make the order to show cause absolute and
reinstate Gregg's habitual criminal charges so a jury can assess them.

CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE HOOD, concurred in part and
dissented in part.

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CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE HOOD, concurring in part and
dissenting in part.

141 Before it was recently amended, Colorado's habitual criminal sentencing
scheme expressly required a "trial judge" to adjudicate a defendant's habitual
criminal charges. § 18-1.3-803(4)(b), C.R.S. (2024). Specifically, a judge was
required to determine whether the defendant "has been three times previously
convicted, upon charges separately brought and tried, and arising out of separate
and distinct criminal episodes."
§ 18-1.3-801(2)(a)(I), C.R.S. (2025).
Section 18-1.3-803(5)(b) further directed that during the sentencing hearing, the
"trial judge" must "consider" any admissions the defendant made during the trial
on the substantive offense "only as they affect the defendant's credibility."1

142 Last year, the U.S. Supreme Court rejected this approach, holding in
Erlinger v. United States, 602 U.S. 821, 834-35 (2024), that to subject a defendant to
more severe penalties as a repeat offender, the U.S. Constitution requires a
unanimous jury to determine beyond a reasonable doubt that the defendant's past
offenses were committed on separate occasions.

143 The majority nevertheless holds that "Colorado's former habitual criminal
sentencing statute is not facially unconstitutional and can operate within the

1 The former version of section 18-1.3-803(6) similarly prescribed judicial
factfinding.

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constitutional limits set forth in Erlinger." Maj. op. 13. To preserve the statute,
the majority effectively rewrites it to require a jury to make the separate-occasions
determination and then require the trial judge to review the jury's findings by a
sufficiency of the evidence standard. Id. at [25. The majority points to no
language in the statute that supports such a remedy. Instead, it justifies its method
by relying on Lopez v. People, 113 P.3d 713 (Colo. 2005). Maj. op. 11 23-24.

144 Lopez does not support the majority's approach to preserving the former
version of section 18-1.3-803. Moreover, today's opinion suggests that a court may
salvage an otherwise unconstitutional statute as long as it articulates some
conceivable, constitutional interpretation of the offending provision, however
divorced from its actual language.

145 I cannot support the majority's use of Lopez or its conclusion. The former
version of section 18-1.3-803 is plainly unconstitutional, insofar as it violates
Erlinger. I would therefore sever the unconstitutional language, leaving trial
courts to fill the gap with Erlinger's requirement that a jury make habitual factual
findings. This approach would allow courts to empanel a second jury for habitual
criminal sentencing proceedings (I agree with the majority that this process would
not violate double jeopardy) without rewriting the statute. Accordingly, I
respectfully dissent in part.

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## I. The Former Version of Section 18-1.3-803 Runs Afoul of Erlinger

146 "We determine legislative intent primarily from the plain language of the
statute." Romero v. People, 179 P.3d 984, 986 (Colo. 2007). We also "construe the
statute as a whole, in an effort to give consistent, harmonious, and sensible effect
to all its parts." People v. Diaz, 2015 CO 28, 1 12, 347 P.3d 621, 624. Generally,
"words and phrases utilized in a statute should be given effect according to their
plain and ordinary meaning because we presume the General Assembly meant
what it said." Town of Minturn v. Tucker, 2013 CO 3, 1 27, 293 P.3d 581, 590.

147 Colorado's habitual criminal sentencing scheme mandates an enhanced
sentence for felony offenders who have been previously convicted of three felonies
"upon charges separately brought and tried, and arising out of separate and
distinct criminal episodes." § 18-1.3-801(2)(a)(I). Section 18-1.3-803 prescribes the
procedure for sentencing a defendant as a habitual criminal per the requirements
set forth in section 18-1.3-801. Section 18-1.3-803 bifurcates the substantive and
sentencing phases of the trial. In the prior version of the statute, the jury's role
was to "render a verdict upon the issue of the defendant's guilt or innocence of the
substantive offense charged." § 18-1.3-803(4)(a). If the jury found the defendant
guilty of the substantive offense, section 18-1.3-803(4)(b) then required the "trial
judge" to "try the issues of whether the defendant has been previously convicted
as alleged." (Emphasis added.) This meant that the trial judge determined

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whether a defendant committed three previous felonies "upon charges separately
brought and tried, and arising out of separate and distinct criminal episodes."
§ 18-1.3-801(2)(a)(I). Yet Erlinger expressly holds that the U.S. Constitution
requires that a jury, not a judge, make such findings.

148 The majority essentially adopts the People's argument that, to run afoul of
Erlinger, Colorado's habitual criminal sentencing statute must explicitly prohibit a
jury from making habitual determinations. Maj. op. 1 24 ("[Section 18-1.3-803] did
not explicitly prohibit the jury from finding that those prior convictions stemmed
from separate and distinct criminal episodes."); see also Reply Brief for Petitioner
at 8 ("A [habitual] hearing . .. must be before the court without jury." (quoting N.Y.
Crim. Proc. Law § 400.15(7)(a))).

149 But the absence of an express prohibition does not amount to express
statutory authorization. Especially here, where the statute is not silent about the
identity of the factfinder. We have stated that "[w]e do not add words to the
statute or subtract words from it." Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007);
see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 96 (2012) ("[W]hat a text does not provide is unprovided . ... ").

150 Furthermore, the plain language of section 18-1.3-803 requiring a judge, not
a jury, to make all factual findings is confirmed by the statutory history of this
provision. The statute long provided for a jury to determine whether a defendant

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was a habitual offender, but in 1995, the General Assembly struck the references
to the "jury" as factfinder and replaced them with "trial judge." Ch. 129, sec. 14,
§ 16-13-103(1), (4), (4)(b), (5)(b), (6), 1995 Colo. Sess. Laws 462, 467-68.2 The only
reasonable inference to be drawn from these amendments is that the legislature
intended for the judge, and not the jury, to be the factfinder in this context. See
People v. Mccullough, 6 P.3d 774, 778 (Colo. 2000) ("[W]hen a statute is amended,
it is presumed that the legislature intended to change the law.").

151 Erlinger now makes clear that the Fifth and Sixth Amendments require a jury
to determine whether prior convictions arose out of separate episodes if those
prior convictions are to be used to enhance a defendant's sentence. 602 U.S. at
834-35. This means that to the extent section 18-1.3-803 requires a trial judge to
make such findings, it is unconstitutional. The General Assembly recognized this

2 In the same year, the General Assembly also amended the procedure for the
imposition of the death penalty, replacing the factfinder from a jury to a panel of
three judges. Ch. 244, sec. 1, § 16-11-103(1)(a), (1)(b), (1)(c), (2), (3), (7)(b), 1995
Colo. Sess. Laws 1290, 1290-93. In 2002, the U.S. Supreme Court held that a jury
must act as the factfinder for the imposition of the death penalty. Ring v. Arizona,
536 U.S. 584, 609 (2002); see also Woldt v. People, 64 P.3d 256, 259 (Colo. 2003)
(holding "Colorado's three-judge capital sentencing statute ... unconstitutional
on its face after Ring."). The General Assembly convened a special session
following Ring to amend the sentencing scheme to reinstate the jury as the
factfinder during the sentencing phase of a capital case. See Ch. 1, sec. 1,
§ 16-11-103, 2002 Colo. Sess. Laws, 3d Extraordinary Sess. 1, 1-5. It left unchanged
the habitual criminal sentencing provisions that required factfinding by a judge.

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and amended the statute in direct response to Erlinger.3 On June 2, 2025, Governor
Polis signed that amendment into law. S.B. 25-189, 75th Gen. Assemb., Reg. Sess.
(Colo. 2025) ("Concerning Requiring a Jury to Determine Whether a Defendant
Has Prior Qualifying Convictions .... "). The amended law substitutes "jury" for
"judge" throughout and now4 requires a jury to determine whether "the
convictions were separately brought and tried, and whether the convictions arose
out of separate and distinct criminal episodes." See Ch. 344, sec. 1, § 18-1.3-803(1),
(4), (4)(b), (5)(b), 2025 Colo. Sess. Laws 1866, 1866-68. The legislature's response
to Erlinger indicates that it understood that section 18-1.3-803 required a judge to
engage in impermissible factfinding.

3 Multiple comments by the bill's sponsors confirm this. During the May 3, 2025,
appropriations meeting, Representative Espenoza stated, "This bill ... was
necessary because the U.S. Supreme Court issued ... Erlinger." Second Reading
of S.B. 189 before the House, 75th Gen. Assemb., 1st Sess. (May 3, 2025). Her
co-sponsor, Representative Soper, continued, "This is a very simple bill to codify
the Supreme Court's holding within Colorado law .... If we don't make this
change then Colorado statute is in violation of the federal constitution as
interpreted by the U.S. Supreme Court." Id. Similarly, during the third reading in
the senate, Senator Snyder, another co-sponsor, stated, "Colorado will be going to
a jury determination on habitual status. That comes right out of the Supreme
Court Erlinger decision ... so we either do it by this well-stakeholded [sic]
bill ... or we let the Colorado Supreme Court decide. But realize we are very
vulnerable right now." Third Reading of S.B. 189 before the Senate, 75th Gen.
Assemb., 1st Sess. (Apr. 17, 2025). The bill passed both houses nearly
unanimously.

4 S.B. 25-189 was effective on June 2, 2025, and applies prospectively to sentencing
hearings conducted on or after its effective date. Ch. 344, sec. 3, 2025 Colo. Sess.
Laws 1868, 1868. This legislation was passed after oral arguments in this case.

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152 In sum, the prior version of section 18-1.3-803 is unconstitutional to the
extent that it runs afoul of Erlinger.

## II. Lopez Does Not Support the Majority's Adopted Procedure

153 Instead of conceding that the former version of section 18-1.3-803 is
unconstitutional, the majority adopts a reading of the statute that requires juries
to make Erlinger-required factual findings and then requires the judge to review
those findings under a sufficiency of the evidence standard. Maj. op. 1 25. It relies
on Lopez to justify its approach, explaining that in that case we construed a statute
to be "constitutional so long as it is properly applied" in order to avoid a
constitutional conflict. Id. at 1 23. The majority asserts that "[t]hough the
circumstances here are different, we draw guidance from Lopez and utilize the
solution in that case as a model." Id. at "| 24.

154 While the majority's approach appears to apply the canon of constitutional
doubt5 to section 18-1.3-803, "[w]e cannot press statutory construction 'to the point
of disingenuous evasion' even to avoid a constitutional question." United States v.

5 The canon of constitutional doubt requires a court to interpret a statute "in a way
that avoids placing its constitutionality in doubt." Scalia & Garner, supra, at 247;
see also Miller v. French, 530 U.S. 327, 341 (2000) ("[W]hile this construction raises
constitutional questions, the canon of constitutional doubt permits us to avoid
such questions only where the saving construction is not 'plainly contrary to the
intent of Congress."" (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988))).

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Locke, 471 U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S.
373, 379 (1933)). In other words, the solution we applied in Lopez is inapplicable
here because the problem we faced in that case was fundamentally different from
the one section 18-1.3-803 presents.

155 In Lopez, we considered how Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. 296 (2004), affected Colorado's aggravated
sentencing statute.6 Lopez, 113 P.3d at 715. Specifically, we addressed which facts
a judge may constitutionally consider when finding extraordinary aggravating
circumstances that may increase a defendant's sentence.

156 As we acknowledged, section 18-1.3-401(6), C.R.S. (2025), suggests that a
judge may engage in factfinding prohibited by Blakely and Apprendi:

In imposing a sentence to incarceration, the court shall impose a
definite sentence which is within the presumptive ranges set forth in
subsection (1) of this section unless it concludes that extraordinary
mitigating or aggravating circumstances are present, are based on
evidence in the record of the sentencing hearing and the presentence
report, and support a different sentence which better serves the
purposes of this code with respect to sentencing, as set forth in section
18-1-102.5. If the court finds such extraordinary mitigating or
aggravating circumstances, it may impose a sentence which is lesser
or greater than the presumptive range; except that in no case shall the

6 In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt."
530 U.S. at 490. In Blakely, the Court defined "statutory maximum" as "the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant." 542 U.S. at 303.

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term of sentence be greater than twice the maximum nor less than
one-half the minimum term authorized in the presumptive range for
the punishment of the offense.

(Emphases added.)

157 Although the statute directs "the court" to "conclude[]" and "find[]"
circumstances that would increase a defendant's sentence beyond the presumptive
range, id., we reasoned that a narrow application of the statute preserved its
constitutionality. Lopez, 113 P.3d at 729-30. Specifically, we held that a trial judge
may apply this provision consistent with the constitution so long as the judge
relies only on what we termed "Blakely-compliant" and "Blakely-exempt" facts that
are "present in the record of a sentencing hearing as section 18-1.3-401(6)
requires." Id. at 729. Blakely-compliant facts are those "admitted by the defendant,
found by the jury, or found by a judge when the defendant has consented to
judicial fact-finding for sentencing purposes," and a Blakely-exempt fact is the fact
of a prior conviction.7 Id. at 723.

7 In Lopez, we recognized that a judicial finding of "a prior conviction is expressly
excepted from the jury trial requirement" under Apprendi. Lopez, 113 P.3d at 723.
Erlinger did not go so far as to preclude a judge from determining the fact of a prior
conviction. 602 U.S. at 837-38 (explaining that this exception "persists as a 'narrow
exception' permitting judges to find only 'the fact of a prior conviction."" (quoting
Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013))). However, our court has
reasoned that "the [prior conviction] exception extends beyond the fact of
conviction to 'facts regarding prior convictions."" People v. Huber, 139 P.3d 628, 633
(Colo. 2006) (quoting Lopez, 113 P.3d at 716). After Erlinger, our broad
interpretation of the prior conviction exception seems in doubt.

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158 Stated differently, we construed the statute to require a judge to base
aggravating circumstances determinations on at least one fact that had already
been determined consistent with Blakely and catalogued in the "record of the
sentencing hearing and the presentence report." § 18-1.3-401(6); see also Lopez,
113 P.3d at 731. This was a reasonable construction because section 18-1.3-401(6)
"does not mandate a restricted or increased sentencing range based on judicial
fact-finding." Lopez, 113 P.3d at 719.

159 By contrast, the prior version of section 18-1.3-803 expressly required judicial
factfinding. There is no way to simply narrow this mandate consistent with the
requirements of Erlinger. The majority's solution is to create an entirely new
factfinding process by a jury and convert the judicial factfinding to judicial review.
The majority asserts that this process is permissible because Lopez authorizes a
judge to base their habitual determination on "facts previously found by a jury."
Maj. op. 11 23-24. But unlike the aggravated sentencing statute in Lopez, the
relevant facts under section 18-1.3-803 were not previously constitutionally
determined by a jury. Instead, subsections (4)(b), (5)(b), and (6) of that statute
required such facts to be determined by "the trial judge."

160 Thus, unlike the narrowed construction we authorized in Lopez, the majority
instead expands section 18-1.3-803's application well beyond (and directly contrary
to) its express language to preserve its constitutionality. See Maj. op. [ 25. The

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majority fails to support its novel approach with citation to any authority, and I
could find no cases in which we applied Lopez similarly.

161 Indeed, we have previously refused to extend the holding of Lopez when the
problem at issue was too plainly different. In People v. Montour, 157 P.3d 489,
496-97 (Colo. 2007), we considered whether Lopez could be applied in the capital
punishment context because eligibility for the death penalty also required a
finding of aggravating circumstances. See § 18-1.3-1201(2)(a), C.R.S. (2006).8 We
concluded that the Lopez approach was inapplicable because the two sentencing
schemes were "fundamentally different." Montour, 157 P.3d at 496. We reasoned
that a judge could not base death penalty eligibility on the single Blakely-exempt
fact of a prior conviction because the capital sentencing scheme required a finding
of multiple factors, and "[c]apital defendants have a right to a jury trial on all
aggravating facts used to determine death eligibility" beyond the fact of a prior
conviction. Id. at 497.

162 Simply put, the "solution" that Lopez stands for is adherence to the
constitutional-doubt canon. Neither Lopez nor that canon of construction supports
expanding, let alone directly contradicting, a statute's clear procedural
requirements. It did not in Montour, and it does not here.

8 Colorado abolished the death penalty on March 23, 2020, for offenses charged on
or after July 1, 2020. See Ch. 61, sec. 1, § 16-11-901, 2020 Colo. Sess. Laws, 204, 204.

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163 In sum, the majority's effort to preserve the constitutionality of section
18-1.3-803's judicial factfinding provisions is unsupported by Lopez and our case
law. I recognize that "declaring a statute unconstitutional is one of the gravest
duties impressed upon the courts." People v. Graves, 2016 CO 15, 1 9, 368 P.3d 317,
322. But there is no reasonable constitutional construction of section 18-1.3-803's
requirement that a judge make the requisite factual findings to adjudicate a
defendant a habitual offender. The General Assembly recognized this and
amended the statute accordingly.

164 Unlike the majority, I cannot support rewriting the statute to add a jury trial
followed by judicial review under a process that was not contemplated by the
legislature. The former version of section 18-1.3-803 is unconstitutional insofar as
it runs afoul of Erlinger, and I would simply declare it so.

## III. Section 18-1.3-803's Judicial Factfinding Provisions Are Unconstitutional and Must Be Severed, Leaving Erlinger to Fill the Gaps

165 While I do not see a possible constitutional application of the former version
of section 18-1.3-803 as written, the unconstitutional provisions can be severed
while leaving the remaining valid provisions intact. See § 2-4-204, C.R.S. (2025).
Here, simply carving out the judge as factfinder would allow Erlinger and the
constitution to fill the gap, essentially replacing "judge" with "jury." This
approach is consistent with section 2-4-204, leaves the habitual criminal sentencing

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scheme intact, and is what the General Assembly would have preferred to ensure
the statute's validity.

166 As already discussed, there is no conceivable set of circumstances under
which section 18-1.3-803's judicial factfinding provisions can be constitutionally
applied. See Woldt v. People, 64 P.3d 256, 266 (Colo. 2003) ("A statute is facially
unconstitutional only if no conceivable set of circumstances exists under which it
may be applied in a constitutionally permissible manner."). The language in
subsections (4)(b), (5)(b), and (6) charging the "trial judge" with factfinding must
be stricken because it is expressly unconstitutional under Erlinger. The question is
one of remedy.

167 "When a statute is unconstitutional, the proper remedy is determined by
looking to legislative intent" - that is, by determining "what the General Assembly
would have intended in light of our constitutional holding." Montour, 157 P.3d at
502. We also "take guidance from the U.S. Supreme Court, which cautions that
we should 'try not to nullify more of a legislature's work than is necessary.""
People v. Tate, 2015 CO 42, 16, 352 P.3d 959, 962 (quoting Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320, 329 (2006)).

168 If it is clear the General Assembly would have intended for the law to
remain valid, "the constitutional provision may be sustained and the
unconstitutional stricken." City of Lakewood v. Colfax Unlimited Ass'n, 634 P.2d 52,

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70 (Colo. 1981). This depends on "the autonomy of the portions remaining after
the defective provisions have been deleted." Id. The remaining portions are
autonomous unless they are "so riddled with omissions that [they] cannot be
salvaged as a meaningful legislative enactment." Montour, 157 P.3d at 502; see also
§ 2-4-204 ("If any provision of a statute is ... unconstitutional, the remaining
provisions of the statute are valid ... unless the court determines that the valid
provisions, standing alone, are incomplete and are incapable of being executed in
accordance with the legislative intent.").

169 Applying those principles here, it is clear that the General Assembly's
primary intent is to maintain a valid habitual criminal sentencing scheme. It
enacted what we now know as the Habitual Criminal Act almost a hundred years
ago. Ch. 85, secs. 1-5, 1929 Colo. Sess. Laws 309, 309-12. Its continued purpose is
to "punish[] more severely 'those individuals who show a propensity toward
repeated criminal conduct."" Wells-Yates v. People, 2019 CO 90M, 1 1, 454 P.3d 191,
195 (quoting People v. Dist. Ct., 711 P.2d 666, 670 (Colo. 1985)).

170 Given the General Assembly's historical and sustained interest in ensuring
that Colorado has a valid habitual criminal sentencing scheme, there is little
question that it would prefer to invalidate the unconstitutional language rather
than invalidate the entire Act. While it is true that the 1995 General Assembly
changed the factfinder from a jury to a judge, it surely would have kept factfinding

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with the jury in light of Erlinger's holding. The recent passage of S.B. 25-189
confirms this. The General Assembly expressly intended for its habitual criminal
sentencing scheme to remain valid while complying with the constitution.

171 Moreover, the statute is administrable without the designation of "trial
judge" throughout. While striking this language leaves no express factfinder,
Erlinger and the constitution require that a jury fill the gap. See U.S. Const. amends.
V, VI; Colo. Const. art. 2, § 23; see also § 18-1-406(1), C.R.S. (2025). Trial courts will
have no trouble applying this constitutional and statutory procedure. They are
familiar with the jury as factfinder in felony proceedings and do not need section
18-1.3-803's guidance. The remaining portions of the statute also remain intact,
such as the requirement that the court conduct a separate sentencing hearing,
§ 18-1.3-803(1); that the defendant admit or deny the previous convictions,
§ 18-1.3-803(3); and that the prosecutor prove the defendant is a habitual offender
beyond a reasonable doubt, § 18-1.3-803(4)(b). Whether the factfinder is a jury or
a judge, the habitual criminal sentencing scheme is substantively the same. Put
differently, striking "trial judge" does not leave the statute "riddled with
omissions" because a sentencing court will follow Erlinger and the constitution,
and the remaining provisions are independent of the judge as factfinder.

172 In sum, section 18-1.3-803's prior designation of the "trial judge" as the
procedural factfinder is unconstitutional. However, these provisions can be

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severed to preserve the habitual criminal sentencing scheme's overall continued
validity. This is what the General Assembly would have intended in light of
Erlinger. It also leaves the remaining portions administrable because Erlinger and
the constitution require that a jury replace "trial judge." Unlike the majority's
approach, this conclusion upholds the General Assembly's intent without
transgressing our judicial role.

## IV. Conclusion

173 The majority rewrites the former version of section 18-1.3-803, a decision
unsupported by the statute's plain language, legislative intent, and Lopez. I cannot
join this approach. Instead, section 18-1.3-803's language designating the "trial
judge" as the factfinder cannot survive under Erlinger. I would sever that
language as unconstitutional. Doing so would leave the habitual criminal
sentencing scheme intact, allowing courts to use juries to make habitual findings
as Erlinger requires. I agree with the majority that courts may empanel a second
jury for habitual criminal sentencing proceedings consistent with double jeopardy
protections. Because S.B. 25-189 applies to sentencing hearings held after its
effective date, any that were on pause after Erlinger may now proceed under this
new legislation.

174 Accordingly, I respectfully dissent in part.