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Colorado Motor Vehicle Dealer Board v. Freeman

Supreme Court of Colorado, En Banc

June 20, 2016

Colorado Motor Vehicle Dealer Board, Petitioner
v.
Jeffrey Freeman, Respondent.

          Attorneys for Petitioner: Cynthia H. Coffman, Attorney General Charmaine C. Rose, Assistant Attorney General Grant T. Sullivan, Assistant Solicitor General

          No appearance by or on behalf of Jeffrey Freeman.

          RICE, CHIEF JUSTICE

          ¶1 In this case we are asked to decide a straightforward question of statutory interpretation. Jeffery Freeman was convicted of third degree assault on an at-risk adult. §§ 18-3-204; 18-6.5-103(3)(c), C.R.S. (2015). Later, when he applied for a motor vehicle salesperson's license, the Colorado Motor Vehicle Dealer Board (the Board) denied his application pursuant to the mandatory disqualification statute, section 12-6-118(7)(a)(I), C.R.S. (2015). Under the mandatory disqualification statute, a person who has been convicted of a felony "in violation of article 3, 4 or 5 of title 18, C.R.S., or any similar crime" must have his or her application for a license to sell cars denied. Id.

         ¶2 The question is whether Freeman's conviction for the felony offense of third degree assault on an at-risk person was a "felony in violation of article 3" for the purpose of the mandatory disqualification statute, where the elements of the crime are located in section 18-3-204, but the felony enhancement provision resides at section 18-6.5-103(3)(c).[1] Because the felony enhancement for third degree assault does not constitute a separate offense under People v. McKinney, 99 P.3d 1038, 1043 (Colo. 2004), we conclude that Freeman was convicted of a felony "in violation of article 3 . . . of title 18, " and therefore he was ineligible to receive a motor vehicle salesperson's license under section 12-6-118(7)(a)(I). Accordingly, we reverse the court of appeals and remand for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶3 In 2012, Freeman applied to the Board for a motor vehicle salesperson's license. A division of the Board denied his application on five separate grounds, one of which was that Freeman's prior conviction for the crime of third degree assault on an at-risk adult was a mandatory disqualifying offense under section 12-6-118(7)(a)(I). See §§ 18-3-204, 18-6.5-103(3)(c). He appealed the division's decision and received a hearing from the Board. The hearing officer upheld the denial of his license for the sole reason that Freeman's criminal conviction disqualified him. Freeman sought further review and the Board affirmed, holding that Freeman's conviction was a disqualifying offense under section 12-6-118(7)(a)(I).

         ¶4 Freeman appealed to the court of appeals, and, in a split decision, the court of appeals reversed the Board, holding that Freeman was not convicted of "a felony in violation of article 3, title 18, " and that therefore his conviction did not constitute a mandatory disqualifying offense under section 12-6-118(7)(a)(I). Colo. Motor Vehicle Dealer Bd. v. Freeman, 2014 COA 152, ¶¶ 15, 22, P.3d . Judge Dunn dissented and argued that third degree assault on an at-risk adult is merely "an enhanced form of third degree assault, not an independent crime, " and that therefore Freeman's crime was indeed a felony in violation of article 3, title 18. Id. at ¶¶ 25, 27 (Dunn, J., dissenting).

         ¶5 The Board filed a petition for certiorari, which we granted. Freeman, acting pro se, declined to file a brief, and the matter was submitted without oral argument.

         II. Standard of Review

         ¶6 An appellate court will set aside a decision of a state agency only if the decision is "arbitrary or capricious, " violates or is based on an erroneous interpretation of the law, is "an abuse or clearly unwarranted exercise of discretion, " or is based upon "clearly erroneous" findings of fact. § 24-4-106(7), C.R.S. (2015); Colo. Dep't of Human Servs. v. Maggard, 248 P.3d 708, 712 (Colo. 2011). We review questions of statutory construction de novo. Colo. Dep't of Revenue v. Hibbs, 122 P.3d 999, 1002 (Colo. 2005). While we "may defer to the agency's construction of a code, ordinance, or statutory provision[], " we are "not bound by the agency's construction because the court's review of the applicable law is de novo." Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

         III. Analysis

         ¶7 The Board argues that the court of appeals should have affirmed the Board's denial of Freeman's application for a license to sell motor vehicles. It contends that the court of appeals' decision (1) conflicts with this court's holding in McKinney, 99 P.3d at 1038, 1041, and (2) runs contrary to the legislative intent behind the mandatory disqualification statute. We agree. Freeman committed assault in the third degree under section 18-3-204. Although the crime was enhanced to a felony under section 18-6.5-103(3)(c) because it was committed against an at-risk adult, it was nevertheless a "felony in violation of article 3 . . . of title 18, " § 12-6-118(7)(a)(I), and the Board properly denied Freeman's application for a motor vehicle salesperson's license.

         ¶8 When construing a statute, we attempt to ascertain and give effect to the intent of the General Assembly. State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). To divine this intent, our first recourse is the plain language of the statute, and we refrain from rendering judgments that are inconsistent with the intent evidenced by such language. See id. In short, when the statutory language is clear and unambiguous, we look no further and apply the words as written. People v. Zapotocky, 869 P.2d 1234, 1238 (Colo. 1994).

         ¶9 The State of Colorado regulates the sale and distribution of motor vehicles. In its legislative declaration, the General Assembly noted that "the trust and confidence of the purchaser in the retail dealer" is of utmost importance in a motor vehicle transaction. § 12-6-101(1)(a), C.R.S. (2015). As a result, the General Assembly declared that the licensing and supervision of motor vehicle salespersons is "necessary for the protection of consumers" and the sale of motor vehicles by unlicensed or unfit salespersons "should be prevented." § 12-6-101(1)(c). Accordingly, the General Assembly created the Motor Vehicle Dealer ...


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