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People v. Jacobs

Court of Appeals of Colorado, Fourth Division

November 15, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Wayne Larue Jacobs, Defendant-Appellant.

          Arapahoe County District Court No. 12CR1535 Honorable Michelle A. Amico, Judge

          Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERNARD, JUDGE

         ¶ 1 A jury convicted defendant, Wayne Larue Jacobs, of distribution and conspiracy to distribute a schedule II controlled substance. The trial court then found that the prosecution had proved five habitual criminal counts and sentenced defendant accordingly. He appeals. We affirm the judgment in part, reverse it in part, and vacate it in part; we reverse the sentence in part and vacate it in part; and we remand the case for resentencing.

         I. Background

         ¶ 2 In 2016, a jury convicted defendant of (1) distributing a controlled substance, namely less than one gram of crack cocaine; and (2) conspiring to sell or to distribute the same crack cocaine. The trial court subsequently found that defendant had been convicted in 2007 of distributing a controlled substance. Based on this finding, it enhanced the first conviction - distribution of a controlled substance - from a class 3 felony to a class 2 felony. The court also found that defendant was a habitual criminal.

         ¶ 3 The court then sentenced defendant to twenty-four years in prison for the distribution count. Applying the habitual criminal finding, the court increased the sentence on this count to ninety-six years in prison.

         ¶ 4 Turning to the conspiracy count, the court sentenced defendant to twelve years in prison for that class 3 felony. Again applying the habitual criminal finding, the court increased the sentence on this count to forty-eight years in prison, to be served concurrently with the sentence on the distribution count.

         II. Analysis

         ¶ 5 Defendant raises three contentions:

1. The 2007 conviction did not fit the statutory definition of a conviction that the trial court could use to enhance the distribution count from a class 3 felony to a class 2 felony.
2. One of the habitual criminal counts, which was based on the 2007 conviction, suffered from the ...

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