v. Dominguez

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
May 27, 2021

2021COA76

No. 20CA0081, People v. Dominguez — Criminal Law —
Sentencing — Probation — Two Prior Felony Rule

A division of the court of appeals interprets the 2010

amendment to the two prior felony rule, section 18-1.3-201(2.5),

C.R.S. 2020, and concludes for the first time that a defendant is

ineligible for probation even if the only conviction for an

enumerated disqualifying felony is a conviction from another state.
COLORADO COURT OF APPEALS 2021COA76

Court of Appeals No. 20CA0081
Washington County District Court No. 18CR16
Honorable Charles M. Hobbs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Luis Dominguez,

Defendant-Appellant.

SENTENCE AFFIRMED

Division I
Opinion by JUDGE TOW
Dailey, J., concurs
Berger, J., dissents

Announced May 27, 2021

Philip J. Weiser, Attorney General, Megan Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Under a provision of Colorado’s criminal sentencing laws

known as the two prior felony rule, a defendant convicted of a

felony, who has two or more prior felonies at the time of sentencing,

is ineligible for probation if either the current or prior felonies

include a conviction for one of several enumerated disqualifying

offenses. § 18-1.3-201(2.5)(b)(I)-(XII), C.R.S. 2020. This case

requires us to answer one question: Can a defendant be ineligible

for probation under the two prior felony rule even if his only

disqualifying felony (in this case, attempted burglary) is a conviction

in another state? The answer is yes.

¶2 Defendant, Jose Luis Dominguez, appeals his sentence,

arguing that the district court erred by finding him ineligible for

probation under the two prior felony rule. Specifically, he argues

that the court erred by concluding that his Nevada attempted

burglary conviction was a conviction “for: . . . [f]irst or second

degree burglary, as described in section 18-4-202[, C.R.S. 2020,] or

[section] 18-4-203[, C.R.S. 2020].” § 18-1.3-201(2.5)(b)(VII).

Because we disagree, we affirm.

1
I. Relevant Facts and Procedural History

¶3 The following facts are uncontested. Dominguez was at a park

with friends. He drank approximately three beers before driving the

group to a nearby reservoir. On the way, Dominguez swerved to

avoid a deer that ran into the road. He lost control of the car, it

rolled, and one of his passengers was seriously injured.

¶4 Dominguez pleaded guilty to felony vehicular assault. The

plea agreement stipulated to a community corrections sentence.

But in the event Dominguez was not accepted into community

corrections — which is ultimately what occurred — the plea

agreement provided that the sentence would be open to the court.

¶5 The presentence investigation report concluded that he was

not eligible for probation under the two prior felony rule because

Dominguez had been convicted of multiple prior felonies including,

as pertinent here, attempted burglary in Nevada. The report

concluded that the attempted burglary conviction disqualified

Dominguez from being considered for probation. Although

prosecutors may recommend to the court that the probation

ineligibility be waived, the prosecutor here declined to do so. See §

18-1.3-201(4)(a)(I) (allowing the sentencing court to waive the

2
restrictions on eligibility for probation if recommended by the

district attorney).1

¶6 At sentencing, Dominguez argued that the Nevada felony

conviction was not a disqualifying offense under the statute

because the elements of criminal attempt in Nevada are broader

than the elements of criminal attempt in Colorado. Nevada defines

an attempt as “[a]n act done with the intent to commit a crime, and

tending but failing to accomplish it.” Nev. Rev. Stat. § 193.330(1)

(West 2020). In Colorado, “[a] person commits criminal attempt if,

acting with the kind of culpability otherwise required for

commission of an offense, he engages in conduct constituting a

substantial step toward the commission of the offense.”

§ 18-2-101(1), C.R.S. 2020. A substantial step means “any

conduct, whether act, omission, or possession, which is strongly

corroborative of the firmness of the actor’s purpose to complete the

commission of the offense.” Id. At sentencing, Dominguez’s

1 In the common parlance of the courtroom, prosecutors routinely
state that they “waive the two prior felony rule.” In reality, the
prosecutor can only recommend such a waiver; once such a
recommendation is made, however, the actual decision to waive the
restriction on probation eligibility is up to the sentencing court.
§ 18-1.3-201(4)(a)(I), C.R.S. 2020.

3
counsel argued that, because conduct that constitutes an attempt

in Nevada may be insufficient to constitute an attempt in Colorado,

Dominguez’s Nevada conviction did not fall within enumerated

felonies that would make him ineligible for probation.

¶7 The district court disagreed. The court concluded that,

“absent any legal authority” on the subject, it had “to look at the

statutes on their face.” The court reasoned that while the Nevada

attempt statute was “less wordy,” the statutes were “sufficiently

similar” such that Dominguez’s Nevada conviction qualified as a

prior conviction under the two prior felony rule. The court

concluded that Dominguez was therefore ineligible for probation

and sentenced him to two years in the custody of the department of

corrections.

II. Applicable Law

¶8 Dominguez contends that the court erred by concluding that

he was ineligible for probation. He pursues two alternative

contentions: (1) foreign felony convictions2 can never satisfy the

enumerated offense requirement under the two prior felony rule;

2We use “foreign felony convictions” as shorthand for felony
convictions from other states or the United States.

4
and (2) Nevada’s attempt and burglary statutes encompass conduct

that is not “as described in” Colorado’s attempt and burglary

statutes, see § 18-1.3-201(2.5)(b)(VII).

A. Standard of Review and Preservation

¶9 We review a sentencing decision for an abuse of discretion.

People v. Ruibal, 2015 COA 55, ¶ 54, aff’d, 2018 CO 93. However, if

a district court “misapprehends the scope of its discretion in

imposing sentence, a remand is necessary for reconsideration of the

sentence within the appropriate sentencing range.” People v.

Linares-Guzman, 195 P.3d 1130, 1137 (Colo. App. 2008). Whether

the court misapplied the two prior felony rule rests on

interpretation of the sentencing statutes, which we review de novo.

People v. Rice, 2015 COA 168, ¶ 10. Specifically, whether or when

foreign felony convictions are disqualifying under the two prior

felony rule is a question of law that we review de novo. See People

v. Nguyen, 899 P.2d 352, 355-56 (Colo. App. 1995) (whether a

foreign conviction counts under the habitual criminal statute is a

question of law reviewed de novo).

¶ 10 We note that Dominguez’s argument before us is

fundamentally different than the one he pursued at sentencing.

5
There, as noted, he argued only that Colorado’s definition of

criminal attempt is not broad enough to encompass all actions that

may constitute a criminal attempt in Nevada. In fact, defense

counsel specifically said, “I’ll note that I think the burglary statute

lines up. So I’m not contesting that the burglary is different, but

the attempt is different.” Further, although counsel noted, “I don’t

think there’s really any case law that I was able to find in

determining, for the purposes of the two-prior felony rule, how the

court is supposed to analyze out-of-state convictions,” he never

asserted that a foreign conviction could not serve as a disqualifying

felony.3

¶ 11 That being said, Dominguez’s claim is that the district court

incorrectly applied the two prior felony rule, making him ineligible

for probation. This claim centers on whether the district court

“ignore[d] [or, here, misapplied] essential procedural rights or

statutory considerations in forming the sentence.” People v.

Knoeppchen, 2019 COA 34, ¶ 9 (quoting People v. Bowerman, 258

3Significantly, the People do not argue that these statements
constitute a waiver of the argument Dominguez now pursues. We
will therefore not treat them as such.

6
P.3d 314, 316 (Colo. App. 2010)). As such, Dominguez’s challenge

is to the manner in which his sentence was imposed. See id.; see

also § 18-1-409(1), C.R.S. 2020 (providing that every defendant

convicted of a felony has the right to one appellate review of “the

manner in which the sentence was imposed, including the

sufficiency and accuracy of the information on which it was

based . . .”).4

¶ 12 Our supreme court has recently held that a claim that would

be cognizable under Crim. P. 35(a) as an “illegal manner” claim

need not be preserved for purposes of raising it on direct appeal.

Fransua v. People, 2019 CO 96, ¶ 13. Thus, we review the merits of

Dominguez’s claim and, if we find error, will reverse unless the error

is harmless.

4 We reject Dominguez’s claim that his sentence is illegal. “An
illegal sentence is one that is not authorized by law.” People v.
Oliver, 2016 COA 180M, ¶ 16 (quoting People v. Jenkins, 2013 COA
76, ¶ 11). Even if the two prior felony rule did not apply to him, he
is not entitled to probation. See Byrd v. People, 58 P.3d 50, 55
(Colo. 2002) (“Probation is a privilege, not a right.”). And his two-
year prison sentence is well within — indeed, at the minimum of —
the range for the class 4 felony of which he was convicted.
§ 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2020. Thus, his sentence is
authorized by law.

7
B. Statutory Interpretation

¶ 13 Our primary task in construing a statute is to give effect to the

General Assembly’s intent. Riley v. People, 104 P.3d 218, 220 (Colo.

2004). We first look to a statute’s plain language. Bostelman v.

People, 162 P.3d 686, 690 (Colo. 2007). “If the statutory language

is clear and unambiguous, we do not engage in further statutory

analysis.” Id.

¶ 14 Only if the statutory language is ambiguous may we employ

other tools of statutory construction, including statutory or

legislative history or the rule of lenity. § 2-4-203, C.R.S. 2020;

Frazier v. People, 90 P.3d 807 (Colo. 2004). Even where interpretive

tools are used, however, the rule of lenity is “a rule of last resort

invoked only ‘if after utilizing the various aids of statutory

construction, the General Assembly’s intent remains obscured.’”

People v. Summers, 208 P.3d 251, 258 (Colo. 2009) (quoting People

v. Thoro Prods. Co., 70 P.3d 1188, 1198 (Colo. 2003)).

C. The Law of Probation Eligibility

¶ 15 A court may sentence a defendant to a probationary sentence

if “the ends of justice and the best interest of the public, as well as

8
the defendant, will be served thereby.” § 18-1.3-202(1)(a), C.R.S.

2020.

¶ 16 For convictions entered on or after May 25, 2010 (such as

Dominguez’s conviction), the probation eligibility statute states that

a person who has been twice or more convicted
of a felony upon charges separately brought
and tried and arising out of separate and
distinct criminal episodes under the laws of
this state, any other state, or the United States
prior to the conviction on which his or her
application is based shall not be eligible for
probation if the current conviction or a prior
conviction is for:

...

(VII) First or second degree burglary, as
described in section 18-4-202 or 18-4-203;

...

(XII) Any criminal attempt or conspiracy to
commit any of the offenses specified in this
paragraph (b).

§ 18-1.3-201(2.5)(VII), (XII) (emphasis added).

III. Analysis

A. The Enumerated Offenses Under the Probation Eligibility
Statute Include Foreign Convictions

¶ 17 Dominguez concedes that foreign felonies count toward

whether a defendant has two or more prior felony convictions. But

9
he contends that the statute contains a separate, independent

requirement that one of the felonies “is for” an enumerated

Colorado offense, and that a foreign felony conviction can never

satisfy that requirement.

¶ 18 But Dominguez’s argument ignores another phrase in the

statutory language of the two prior felony rule: a conviction is

disqualifying if it “is for” one of several offenses “as described in”

one of various statutes. See id. Significantly, the two prior felony

rule does not require that the defendant be convicted “under” the

specific statute. See United States v. Barial, 31 F.3d 216, 217-18

(4th Cir. 1994) (holding that the use of the term “described in” a

given statute evidences an intent to encompass any conduct that

would violate that statute, not just conduct actually prosecuted

under that specific statute). Nor does the statute limit the crimes

specifically “as defined in” the relevant Colorado statute. See People

v. Rojas, 2019 CO 86M, ¶ 25 (discussing the legislative use of “as

10
defined in,” as opposed to “as described in,” and concluding that

the latter does not evince an intent to create a separate offense).5

¶ 19 Thus, we conclude that the language of the two prior felony

rule is unambiguous. It disqualifies a defendant from probation

eligibility if that defendant has been convicted of two or more

felonies “under the laws of this state, any other state, or the United

States,” and any of the defendant’s convictions — whether obtained

in Colorado or not — arise out of conduct that is encompassed by

the enumerated statutes. § 18-1.3-201(2.5)(b).

¶ 20 Because we conclude the language is unambiguous, we need

not consider the statutory or legislative history. People v. Rockwell,

125 P.3d 410, 418 (Colo. 2005). Nevertheless, because the dissent

assumes, in the alternative, that the language is ambiguous, we,

5 We acknowledge that in People v. Rojas, 2019 CO 86M, our
supreme court was considering a different issue, specifically
whether a statutory reference to “[f]raud in connection with
obtaining food stamps, as described in section 26-2-305[, C.R.S.
2020,]” evidenced a legislative intent to create a separate offense
from “[t]heft, as defined in section 18-4-401[, C.R.S. 2020].” Id. at
¶ 25. Nevertheless, in doing so, the supreme court clearly held that
there is a fundamental difference between the legislature describing
an offense and the legislature defining an offense.

11
too, turn briefly to the statutory and legislative history6 to

demonstrate that it does not contradict our interpretation of the two

prior felony rule. See id. at 418-19 (discussing legislative history

after concluding the statutory language at issue was “clear and

unambiguous”).

¶ 21 The current version of the two prior felony rule was enacted in

2010. Ch. 257, sec. 1, § 18-1.3-201, 2010 Colo. Sess. Laws 1146.

The prior version remains in the statute and applies to anyone

convicted before May 25, 2010. § 18-1.3-201(2)(a). The former two

prior felony rule simply provided that anyone with two or more prior

felonies “under the laws of this state, any other state, or the United

States” was ineligible for probation.7 § 18-1.3-201(2)(a.5). In other

words, it applied to all felonies.

6 “[S]tatutory history” refers to “the evolution of a statute as it is
amended over time by the legislature,” while “legislative history”
refers to “the development of a statute during the legislative process
and prior to enactment or amendment.” Carrera v. People, 2019 CO
83, ¶ 24 n.6 (quoting Colo. Oil & Gas Conservation Comm’n v.
Martinez, 2019 CO 3, ¶ 30 n.2).
7 The former two prior felony rule also provided for disqualification

for a defendant with a single prior felony committed within ten
years before a current conviction for a class 1, 2, or 3 felony.
§ 18-1.3-201(2)(b).

12
¶ 22 According to the testimony in both houses of the legislature,

the purpose of the 2010 amendment was simply to limit the

application of the two prior felony rule to the enumerated crimes,

which were selected because they all involve some level of force or

violence.8 Hearings on H.B. 10-1338 before the H. Judiciary

Comm., 67th Gen. Assemb., 2d Sess. (Mar. 11, 2010); Hearings on

H.B. 10-1338 before the S. Judiciary Comm., 67th Gen. Assemb.,

2d Sess. (Apr. 28, 2010). Not one witness or legislator suggested

that the enumerated crime must arise from a Colorado conviction or

otherwise insinuated that the broad language encompassing

convictions arising under “the laws of this state, any other state, or

the United States” would not apply to the enumerated list within

the same paragraph of the new subsection.

¶ 23 Given what the law was immediately prior to the statutory

amendment, and the clear intent of the legislature as evidenced by

the testimony of the witnesses during the enactment — which was

8 One of the enumerated offenses, theft from the person of another,
specifically does not involve “force, threat, or intimidation.”
§ 18-4-401(5), C.R.S. 2020. Nevertheless, it does involve taking
something of value directly from another person, which certainly
has the potential to result in force or violence.

13
uniformly in support of the bill — both the statutory and the

legislative history demonstrate that the enumerated list was not

intended to apply solely to crimes prosecuted under Colorado’s

laws.9

¶ 24 We conclude, therefore, that Dominguez’s attempted burglary

conviction is not precluded from disqualifying Dominguez simply

because it was not a Colorado conviction. Rather, that conviction

would disqualify him if it was a conviction for an attempt to commit

a burglary “as described in” section 18-4-202 or section 18-4-203.

We turn now to that inquiry.

B. Dominguez’s Nevada Attempted Burglary Offense Is a
Disqualifying Offense

1. The Focus Is On the Conduct Engaged in by Dominguez
Rather Than Elements of the Nevada Offense

¶ 25 Dominguez first argues that, if the elements of the crime

under the laws of the other state are broader than the relevant

9 True, as the dissent points out, the legislature uses different
language in other statutes to reflect its intent to include foreign
convictions. But that carries little weight here, where the
legislature within the same statute has already clearly evinced its
intent to cover convictions “under the laws of this state, any other
state, or the United States . . . .” § 18-1.3-201(2)(a.5).

14
enumerated Colorado statute, the foreign conviction cannot be “as

described in” the Colorado statute. We disagree.

¶ 26 As the Fourth Circuit Court of Appeals observed in Barial, a

legislature’s use of “described in” reflects an intent to address

conduct that would fall under the statute, even if the prosecution

did not occur under the statute. Barial, 31 F.3d at 217-18.

Similarly, the Ninth Circuit Court of Appeals has held that the

federal career offender statute, 28 U.S.C. § 994(h), which classifies

a defendant as a career offender based on convictions for predicate

offenses “described in” certain federal statutes, also encompasses

similar state offenses. United States v. Rivera, 996 F.2d 993, 996

(9th Cir. 1993). The court in Rivera stated that “[t]he fact that

Congress used the words ‘described in’ indicates the focus is not

upon whether the predicate offense is federal or state; rather, the

focus is upon the type of conduct involved.” Id. (emphasis added).

¶ 27 Such a conduct-focused approach is not new to Colorado.

Under its habitual sentencing procedures, a foreign misdemeanor

conviction will be considered a felony for habitual criminal purposes

if it is “the equivalent to” a felony in Colorado. Nguyen, 899 P.2d at

15
354. This analysis requires consideration not of the elements of the

foreign offense, but of the conduct engaged in by the defendant. Id.

¶ 28 In our view, there is no basis to limit the phrase “as described

in” to a pure comparison of elements. Rather, as in Nguyen, the

question must be whether the conduct engaged in by the defendant,

if committed in Colorado, would have fallen within the ambit of the

crimes “as described in” the enumerated disqualifying offenses. See

id.; § 18-1.3-201(2.5)(b).

2. Nevada’s Criminal Attempt Definition Is Not Broader Than
Colorado’s

¶ 29 As a threshold issue, we decline to address Dominguez’s

argument, first raised on appeal, that Nevada’s substantive

burglary statute is broader than Colorado’s. At sentencing,

Dominguez’s counsel told the district court, “I’ll note that I think

the burglary statute lines up. So I’m not contesting that the

burglary is different . . . .” In light of this admission, Dominguez

waived any claim that the Nevada burglary statute is broader than

the burglary statute in Colorado.

16
¶ 30 Instead, Dominguez’s counsel argued that Nevada’s attempt

statute is different from Colorado’s. Dominguez reiterates that

contention here. Again, we disagree.

¶ 31 In Colorado, “[a] person commits criminal attempt if, acting

with the kind of culpability otherwise required for commission of an

offense, he engages in conduct constituting a substantial step

toward the commission of the offense.” § 18-2-101(1). “A

substantial step is any conduct, whether act, omission, or

possession, which is strongly corroborative of the firmness of the

actor’s purpose to complete the commission of the offense.” Id. In

Nevada, a criminal attempt is “[a]n act done with the intent to

commit a crime, and tending but failing to accomplish it.” Nev. Rev.

Stat. § 193.330.

¶ 32 Dominguez argues that Nevada’s statute requires “less proof”

than Colorado’s. We disagree. To commit criminal attempt in

Nevada, one must, with the specific intent to commit a crime,

engage in an act that tends to accomplish that crime. Though the

verbiage is different, we see no functional difference between such

an act and the act of taking a substantial step toward the

commission of the offense. And the specific intent to commit the

17
crime, as required by Nevada’s law, is at least sufficient to be

“strongly corroborative of the firmness of the actor’s purpose” to

commit the crime in Colorado. See § 18-2-101(1).

¶ 33 In sum, considering counsel’s concession, the district court

could rely on the information in the presentence investigation report

that the burglary aspect of Dominguez’s prior conviction

disqualified him from probation. And the district court did not err

by concluding that conduct encompassed by Nevada’s attempt

statute necessarily fell within Colorado’s attempt statute as well.

And because foreign convictions for conduct that would qualify as

an enumerated disqualifying offense in Colorado are sufficient for

disqualification, Dominguez was not eligible for probation because

of his Nevada attempted burglary conviction.

IV. Conclusion

¶ 34 The sentence is affirmed.

JUDGE DAILEY concurs.

JUDGE BERGER dissents.

18
JUDGE BERGER, dissenting.

¶ 35 This case requires us to answer one question: Is a defendant

eligible for probation under section 18-1.3-201(2.5)(b)(I)-(XII), C.R.S.

2020 (the probation eligibility statute) if he has never been

convicted of one of the statute’s enumerated Colorado felonies? The

answer is that such a defendant is eligible for probation. I dissent

from the majority’s contrary conclusion.

¶ 36 I agree with the majority’s recitation of the facts, so I move to

my analysis.

I. Statutory Construction

¶ 37 Our primary task in construing a statute is to give effect to the

General Assembly’s intent. Riley v. People, 104 P.3d 218, 220 (Colo.

2004). We first look to a statute’s plain language. Bostelman v.

People, 162 P.3d 686, 690 (Colo. 2007). “If the statutory language

is clear and unambiguous, we do not engage in further statutory

analysis.” Id.

¶ 38 The supreme court has cautioned, however, that “[a]lthough

we must give effect to the statute’s plain and ordinary meaning, the

General Assembly’s intent and purpose must prevail over a literalist

interpretation that leads to an absurd result.” People v. Kailey,

19
2014 CO 50, ¶ 13 (citation omitted). Therefore, “[s]tatutory

interpretation leading to an absurd result will not be followed.”

State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).

¶ 39 Only if the statutory language is ambiguous may we consider

other tools of statutory construction, including the rule of lenity.

§ 2-4-203, C.R.S. 2020; Frazier v. People, 90 P.3d 807 (Colo. 2004).

II. The Law of Probation

¶ 40 Probation is a privilege, not a right. Veith v. People, 2017 CO

19, ¶ 14. A court may sentence a defendant to a probationary

sentence if “the ends of justice and the best interest of the public,

as well as the defendant, will be served thereby.” § 18-1.3-

202(1)(a), C.R.S. 2020.

¶ 41 The probation eligibility statute states,

a person who has been twice or more convicted
of a felony upon charges separately brought
and tried and arising out of separate and
distinct criminal episodes under the laws of
this state, any other state, or the United States
prior to the conviction on which his or her
application is based shall not be eligible for
probation if the current conviction or a prior
conviction is for:

...

20
(VII) First or second degree burglary, as
described in section[s] 18-4-202 or 18-4-203;

...

(XII) Any criminal attempt or conspiracy to
commit any of the offenses specified in this
paragraph (b).

§ 18-1.3-201(2.5)(VII), (XII), C.R.S. 2020 (emphasis added).

III. The Statute’s Plain Language Compels My Conclusion

¶ 42 The language of the probation eligibility statute is plain and

unambiguous: A defendant “shall not be eligible for probation if the

current conviction or a prior conviction is for” an enumerated

Colorado felony. § 18-1.3-201(2.5)(b). Under the plain language of

the statute, Dominguez would be ineligible for probation if his prior

burglary conviction was for attempted “[f]irst or second degree

burglary, as described in section[s] 18-4-202 or 18-4-203” of the

Colorado Revised Statutes. § 18-1.3-201(2.5)(VII), (XII) (emphasis

added). But his attempted burglary conviction was not “for” first or

second degree burglary “as described in” a Colorado statute, id.; his

conviction was as described by the law of Nevada.1

1We are left to guess as to what specific crime Dominguez was
convicted of in Nevada because the prosecution presented no
evidence of it at the hearing. Because I would hold that foreign

21
¶ 43 The majority relies on United States v. Barial, 31 F.3d 216,

217-18 (4th Cir. 1994), for its conclusion that “described in”

evidences an intent to include foreign felonies. Supra ¶ 26. But

this federal case does not establish or support the majority’s

interpretation of Colorado’s probation eligibility statute. While

employing Barial’s conclusion, the majority ignores its reasoning.

¶ 44 There, the Fourth Circuit reasoned that “[w]here Congress has

chosen different language in proximate subsections of the same

statute, courts are obligated to give that choice effect.” Id. at 218.

This is a bedrock rule of statutory construction, which we follow in

Colorado. See, e.g., Colo. Med. Bd. v. Off. of Admin. Cts., 2014 CO

51, ¶ 19 (“[T]he use of different terms signals the General

Assembly’s intent to afford those terms different meanings.”).

¶ 45 The Fourth Circuit applied this rule in Barial. It reasoned that

while one subsection of the special probation statute used the

phrase “described in,” another subsection of the same statute

addressed defendants convicted “under” a specific federal law.

Barial, 31 F.3d at 218. Therefore, because Congress used

felony convictions can never satisfy the enumerated offense
requirement, this record uncertainty is immaterial to my analysis.

22
“described in” and “under” in the same statute, they did not mean

the same thing. Id.

¶ 46 But Colorado’s probation eligibility statute is different. The

statute dictates that a defendant is ineligible for probation if the

prosecution establishes two distinct requirements: (1) that the

defendant has two prior felony convictions “under the laws of this

state, any other state, or the United States”; and (2) that one of the

convictions, whether a prior conviction or the triggering offense, “is

for” an enumerated offense “as described in” a specific Colorado

criminal statute. § 18-1.3-201(2.5)(b)(I)-(XII). The statutory

language “under the laws of this state, any other state, or the

United States” unquestionably dictates that any foreign felonies

count towards whether the defendant has two prior felonies. § 18-

1.3-201(2.5)(b). The second condition, however, only mentions

specific Colorado laws, not the laws of other jurisdictions. Id.

¶ 47 Thus, under Barial and Colorado precedent, “as described in”

specific Colorado statutes cannot mean the same thing as “under

the laws of . . . any other state, or the United States.” See id. When

the legislature “has chosen different language in proximate

subsections of the same statute, courts are obligated to give that

23
choice effect.” Barial, 31 F.3d at 218. But the majority’s

construction collapses the distinction drawn by the General

Assembly.

¶ 48 There is another reason that Barial does not support the

majority’s interpretation. While we presume that the General

Assembly enacts statutes with an awareness of current Colorado

precedent, no such presumption exists with respect to how federal

courts interpret federal laws, or how those interpretations may play

into a Colorado court’s interpretation of Colorado law. See Griego v.

People, 19 P.3d 1, 5 (Colo. 2001) (“When the General Assembly

amended” certain statutes, “we must presume that it did so with

awareness of our decisions in” that area of law.) (emphasis added).

Therefore, the fact that some federal courts have construed

“described in” differently should not affect, and certainly does not

dictate, our analysis of the plain language of this Colorado statute.

IV. The Statute’s Plain Language Does Not Lead to an Absurd
Result

¶ 49 The Attorney General argues that Dominguez’s construction of

the statute (with which I agree) leads to absurd results.

Specifically, the Attorney General argues that this construction

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would treat similarly situated defendants differently depending on

whether their enumerated offense conviction was from Colorado or

another state. This premise is correct: A defendant with two prior

felony convictions, one of which is for second degree murder as

defined by Colorado homicide statutes, would not be eligible for

probation, whereas a defendant with a conviction for second degree

murder under the laws of Kansas might be eligible for probation.

See § 18-1.3-201(2.5)(b)(I) (listing second degree murder as an

enumerated offense). But this result is not absurd.

¶ 50 It is not absurd for the General Assembly to limit the

probationary bar to cases where a defendant has committed a

specifically enumerated Colorado offense. Colorado largely followed

the Model Penal Code in enacting its criminal statutes, but many

states did not. See People v. Childress, 2015 CO 65M, ¶ 22. Due to

the differences between states’ criminal statutes, it is rational to

limit the probationary bar to cases where a defendant has

committed a particular crime as defined by the Colorado General

Assembly.

¶ 51 Additionally, the issue before us is probation eligibility, not

entitlement. In all cases when a defendant is probation eligible, the

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judge retains discretion to enter a nonprobationary sentence. While

the hypothetical defendant with a prior conviction for second degree

murder under Kansas law is not barred from receiving a

probationary sentence due to that conviction, a judge could, of

course, issue a nonprobationary sentence. My plain reading of the

probation eligibility statute, therefore, does not lead to an absurd

result.

¶ 52 For these reasons, I would hold that foreign felony convictions

do not satisfy the enumerated offense requirement under the

probation eligibility statute.

V. Other Tools of Construction Demonstrate the Majority’s Error

¶ 53 I acknowledge that determining the plain meaning of a statute

presents a question on which reasonable minds may disagree. This

case demonstrates that point. But assuming for the sake of

argument that the statute is ambiguous, other tools of statutory

construction only bolster my conclusion.

¶ 54 First, the probation eligibility statute does not contain the

clear language found in other Colorado criminal statutes that

permits the consideration of foreign crimes. A felony for the

purpose of the habitual criminal statute, for example, can be from

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“this or any other state,” or “[a] crime under the laws of any other

state . . . which, if committed within this state, would be such a

felony.” § 18-1.3-801(1)(b)(I)-(II), C.R.S. 2020. Simply put, when

the General Assembly wants foreign felonies to count in some way

in a criminal proceeding, it knows how to say so. Such language is

absent from the enumerated offense requirement in the probation

eligibility statute, but the majority reads it in.

¶ 55 Second, my interpretation would have zero negative

consequences whatsoever on a court’s ability to deny a probationary

sentence to dangerous or otherwise unfit defendants. See § 2-4-

203 (courts may consider the consequences of a particular

statutory construction). As previously stated, the fact that a

defendant is eligible for probation under the statute does not mean

that he will receive probation. This construction would merely

provide defendants like Dominguez the opportunity for probation.

¶ 56 Third, the statute’s legislative history does not weigh in either

direction. The most recent prior version of the probation eligibility

statute barred a defendant with any two prior felonies from any

state or the United States. § 18-1.3-201(2)(a), C.R.S. 2009. The

Attorney General argues that the 2010 amendment adding the

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enumerated offense requirement demonstrates an intent to limit the

probationary bar to specific types or classes of crimes (e.g.,

murder), not Colorado crimes. The majority apparently agrees.

Supra ¶ 22.

¶ 57 But as is often the case with legislative history, many

reasonable conclusions can be drawn from the same information.

Just as plausible as the majority’s rationale is the view that the

addition of the language “as described in [specific Colorado

statutes]” demonstrates the intent to limit the bar to the specifically

enumerated Colorado statutes. After all, the prior law only required

two prior felonies from any jurisdiction. The legislative history

therefore does not clearly support either interpretation.2 While

relying on legislative history is, at best, like “looking over a crowd

and picking out your friends,” here, it’s not clear that either side

has friends to pick out. Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546, 568 (2005) (citation omitted).

2 The majority’s assertion that, according to legislators’ statements,
“the purpose of the 2010 amendment was simply to limit the
application of the two prior felony rule to the enumerated crimes” is
similarly unpersuasive. Supra ¶ 22. The enumerated crimes the
General Assembly chose were Colorado crimes.

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¶ 58 Because legislative history is no help, and assuming the

statute is otherwise ambiguous, we should consider the rule of

lenity. See People v. Summers, 208 P.3d 251, 258 (Colo. 2009) (The

rule of lenity is “a rule of last resort.”). This rule “requires us to

construe any ambiguities in a penal statute in a manner favoring

the person whose liberty interests are affected by the statute.”

Faulkner v. Dist. Ct., 826 P.2d 1277, 1278 (Colo. 1992). Here, if the

statute is ambiguous and other avenues of statutory construction

do not provide clarity, we should construe the statute in such a way

to provide more defendants the opportunity for a probationary

sentence.

¶ 59 I would hold that foreign felony convictions do not satisfy the

enumerated offense requirement under the probation eligibility

statute. I respectfully dissent.

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