Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Charmaine C. Rose, Assistant Attorney General Grant
T. Sullivan, Assistant Solicitor General
appearance by or on behalf of Jeffrey Freeman.
¶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.
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). 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.
Facts and Procedural History
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).
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.,
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.
Standard of Review
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).
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.
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
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