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In re People

Supreme Court of Colorado, En Banc

June 4, 2018

In Re The People of the State of Colorado, Plaintiff
Ilyias Calese Austin. Defendant

          Original Proceeding Pursuant to C.A.R. 21 Weld County District Court Case No. 17CR1231 Honorable Thomas J. Quammen, Judge

          Attorneys for Plaintiff: Michael J. Rourke, District Attorney, Nineteenth Judicial District Havilah Louise Bruno Lilly, Deputy District Attorney Greeley, Colorado

          Attorneys for Defendant: Douglas K. Wilson, Public Defender John Walsh, Deputy Public Defender Greeley, Colorado



         ¶1 Austin petitioned for relief pursuant to C.A.R. 21 from an order of the district court denying his motion for a preliminary hearing. This court issued its rule to show cause why the order should not be disapproved, and the People responded.

         ¶2 Because Austin was charged by information with a class 4 felony committed as a "crime of violence" as defined at section 18-1.3-406(2)(a)(I)(B) and (II)(C) of the revised statutes, he is statutorily entitled to a preliminary hearing. The rule is therefore made absolute, and the case is remanded to the district court for further proceedings consistent with this opinion.


         ¶3 Ilyias Austin was charged with the class 4 felony of second degree assault committed by intending to cause bodily injury to another person and causing serious bodily injury to that person, as proscribed at section 18-3-203(1)(g), C.R.S. (2017). His subsequently filed motion for a preliminary hearing was denied by the district court.

         ¶4 After noting that having posted bond, the defendant was at liberty in this case, and that he was therefore statutorily entitled to a preliminary hearing only if the class 4 felony with which he had been charged required mandatory sentencing or was a crime of violence, the district court concluded that the felony with which the defendant was charged met neither condition. With regard to the first condition, the court reasoned that as the result of a 2016 amendment to section 203 ("Assault in the second degree"), continuing to mandate sentencing in accordance with the crime-of-violence statute but relieving the court of any duty to impose a sentence to incarceration for a conviction pursuant to section 203(1)(g), the defendant was not accused of a felony requiring mandatory sentencing. With regard to the second condition, the court appeared to reason that this court had equated crime-of-violence sentencing with mandatory sentencing, and by eliminating mandatory sentencing for subsection (1)(g) assaults, the amendment to section 203 had effectively removed subsection (1)(g) assaults from the classification of "crimes of violence" altogether.

         ¶5 Pursuant to C.A.R. 21, the defendant now seeks relief from the district court's order.


         ¶6 A criminal defendant's right to a preliminary hearing in this jurisdiction is governed by statute and rule. See § 16-5-301, C.R.S. (2017); § 18-1-404, C.R.S. (2017); Crim. P. 7; cf. § 19-2-705, C.R.S. (2017) (prescribing preliminary hearings for juveniles charged with crimes that would be felonies if committed by adults). This right is limited according to a variety of factors, including the nature and seriousness of the crime of which the defendant is accused, the process by which he was charged, the penalty to which he is exposed by that charge, and whether or not he is in custody. See § 16-5-301(1)(a), (b)(I), (b)(II). Unless he is in custody for the offense for which he requests a preliminary hearing, at the time of his request, a person accused of a class 4 felony has a right to such a hearing if, but only if, he was charged by direct information or felony complaint and the felony with which he was charged requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406. See id.

         ¶7 Although the term "mandatory sentencing" is not expressly defined in the revised statutes, section 18-1.3-406 is entitled "Mandatory sentences for violent crimes- definitions, " and it: (1) expressly defines the term "Crime of violence, " see § 18-1.3-406(2)(a)(I), C.R.S. (2017) ("'Crime of violence' means . . ."); § 18-1.3-406(2)(b)(I) ("'Crime of violence' also means . . ."); (2) requires that a person convicted of a crime of violence be, at least initially, sentenced to the department of corrections for a term of incarceration[1] of at least the midpoint in, but no more than twice the maximum of, the presumptive range provided for such offense, see § 18-1.3-406(1)(a); and (3) mandates the charging of separate counts and specific findings as a predicate for crime-of-violence sentencing, see § 18-1.3-406(3), (4). This statute has long been construed, by both this court and the court of appeals, as intending that the mandatory sentences to incarceration provided for crimes of violence apply only upon specific findings of guilt as to separate counts alleging that the crime of which the defendant stands convicted was committed as a crime of violence, as delineated in the statute. See People v. Terry, 791 P.2d 374, 378 n.5 (Colo. 1990); see also People v. Russo, 713 P.2d 356, 364 (Colo. 1986) (holding that in order for the jury to properly make the special finding required by the violent crime statute, the trial court must instruct the jury on both the essential elements of the violent crime charge and the burden of proof applicable to that charge); Brown v. Dist. Court In & For First Judicial Dist., Jefferson Cty., 569 P.2d 1390, 1391 (Colo. 1977); People v. Grable, 611 P.2d 588, 589 (Colo.App. 1979).

         ¶8 In an omnibus bill in 1986, however, the legislature amended nine criminal statutes to require that a defendant convicted of crimes proscribed by any of those statutes "shall be sentenced by the court in accordance with the provisions of section 16-11-309."[2]People v. Terry, 791 P.2d at 377. After analyzing the language and legislative history of these amendments, we concluded that they effectively required mandatory sentencing as prescribed for crimes of violence, without regard for compliance with the special pleading and proof requirements of the violent crime statute. See id. at 378. Nine years later, we further explained the rationale for that holding, referring to those crimes for which a court is required to impose a mandatory sentence without regard for the special pleading and proof requirements of the ...

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