Opinions of the Colorado Supreme Court are available to the 

public and can be accessed through the Judicial Branch’s homepage at 

http://www.courts.state.co.us. Opinions are also posted on the 

Colorado Bar Association’s homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

June 4, 2018

2018 CO 47

No. 18SA1, In re People v. Austin—Preliminary Hearings.

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.

The supreme court makes the rule absolute and orders that Austin be given a 

preliminary hearing because he 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, which statutorily entitles him to a preliminary hearing, whether 

or not he would actually be subject to mandatory sentencing for a crime of violence.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2018 CO 47

Supreme Court Case No. 18SA1

Original Proceeding Pursuant to C.A.R. 21

Weld County District Court Case No. 17CR1231

Honorable Thomas J. Quammen, Judge

In Re

Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Ilyias Calese Austin.

Rule Made Absolute

en banc

June 4, 2018

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

JUSTICE COATS delivered the Opinion of the Court.
2

¶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.

I

¶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 
3

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.

II

¶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—
4

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 

incarceration1 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-ofviolence 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).

 

1 In addition to section 18-1.3-406, the term “mandatory sentencing” appears in section 

18-4-413 (entitled “Mandatory sentencing for repeated felony theft from a store—store 

defined”) and in section 18-18-406(1), (2) (cross-referencing the penalty for class 1 drug 

felonies).
5

¶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 crimeof-violence statute as “per se crimes of violence” and extending that class of crimes to 

include even conspiracy to commit per se crimes of violence. Terry v. People, 977 P.2d 

145, 151 (Colo. 1999).

¶9 Finally, two years later, we were called upon to construe the statutory language, 

“crime of violence, as defined in section 16-11-309,” § 18-1-105(9.7)(b)(XII), C.R.S. (1999), 

as it appeared in a related sentencing statute. See People v. Banks, 9 P.3d 1125, 1129 

(Colo. 2000). But for the renumbering of the crime-of-violence statute, this language is 

identical to the pertinent provision of section 16-5-301, governing a defendant’s 

 

2 Section 16-11-309 was redesignated 18-1.3-406 by the 2002 act Concerning the 

Relocation of Certain Existing Criminal Sentencing Statutes to a New Article in Title 18, 

Colorado Revised Statutes. Ch. 318, sec. 2, § 18-1.3-406, 2002 Colo. Sess. Laws 1365, 

1403–06.
6

entitlement to a preliminary hearing. See § 16-5-301(1)(a), (b)(I). In a case in which the 

defendant was convicted of second degree assault on a peace officer, as proscribed at 

section 18-3-203(1)(c), which statute had been amended in 1988 to include the

sentencing provision addressed in the two Terry cases making assault on a peace officer

a “per se crime of violence,” we were faced with the question whether such a conviction

also required “extraordinary risk sentencing,” pursuant to section 18-1-105(9.7)(b). 

Banks, 9 P.3d at 1126. “Crimes which present an extraordinary risk of harm to society,” 

which require “extraordinary risk sentencing,” were statutorily defined to include 

“(a)ny crime of violence, as defined in section 16-11-309.” § 18-1-105(9.7)(b), C.R.S. 

(1999); id. at 1129.

¶10 In holding that “extraordinary risk sentencing” was not mandated, we expressly 

distinguished mandatory sentencing, or crime-of-violence sentencing, under section 

16-11-309, from any “crime of violence, as defined in section 16-11-309,” concluding that 

the former category applies when (1) the statute defining the offense specifically 

requires sentencing under that section or (2) the prosecution pleads and proves use, or 

possession and threatened use, of a deadly weapon, or serious bodily injury or death, as 

to eligible crimes, according to the procedures prescribed by section 16-11-309(4) and 

(5), Banks, 9 P.3d at 1129–30, 1130 n.9, while the latter category refers to crimes actually 

meeting the definition of “crimes of violence,” as set forth in section 16-11-309(2), id. at 

1131. Because the statute defining the assault of which Banks was convicted required 

mandatory sentencing pursuant to section 16-11-309, it constituted a so-called “per se

crime of violence”; nevertheless, because Banks was not found to have committed, 
7

conspired to commit, or attempted to commit any of the crimes specified in section 

309(2)(a)(II), during which, or in the immediate flight therefrom, he used, or possessed 

and threatened the use of, a deadly weapon or caused serious bodily injury or death to 

any other person except another participant—the actual definition of “crime of 

violence,” see § 16-11-309(2)(a)(I), C.R.S. (2000) (currently designated 

§ 18-1.3-406(2)(a)(I))—we held that the crime of which Banks was convicted did not 

constitute a “crime of violence, as defined in section 16-11-309.” Id. at 1131–32.

¶11 In Banks, we therefore made it clear that not every crime for the conviction of 

which mandatory, or crime of violence, sentencing is required, also constitutes a “crime 

of violence as defined in section 18-1.3-406”; and by the same token, not every crime 

constituting a “crime of violence defined in section 18-1.3-406” requires, upon its 

conviction, mandatory, or crime of violence, sentencing pursuant to section 18-1.3-406. 

With regard to the former, despite a specific provision in the statute defining the offense 

that mandates sentencing in accordance with section 18-1.3-406, a conviction may 

nevertheless not involve any finding, either as an element of the charged offense or by 

separate crime of violence count, of the deadly weapon or serious bodily injury 

condition necessary to satisfy the definition of a crime of violence. With regard to the 

latter, despite conviction of a crime that meets the definition of “crime of violence,” the 

specific charging and finding requirements for mandatory, or crime–of-violence, 

sentencing may nevertheless not have been complied with.

¶12 As the result of a 2016 amendment to section 18-3-203, courts are no longer 

required to sentence defendants convicted of second degree assault pursuant to 
8

paragraphs (b), (c), (d), and (g) of subsection (1) “in accordance with the provisions of 

section 18-1.3-406.” Ch. 181, sec. 1, § 18-3-203, 2016 Colo. Sess. Laws 620, 620. Rather, 

convictions pursuant to these statutory subsections require sentencing “in accordance 

with the provisions of section 18-1.3-406; except that, notwithstanding the provisions of 

section 18-1.3-406, the court is not required to sentence the defendant to the department 

of corrections for a mandatory term of incarceration.” § 18-3-203(2)(c)(II), C.R.S. (2017)

(emphasis added). Whether or not the district court correctly interpreted this 

amendment as no longer requiring “mandatory sentencing” for convictions of second 

degree assault proscribed at section 203(1)(g), the amendment clearly does not purport 

to affect the definition of a “crime of violence” itself. 

¶13 The defendant in this case was charged with committing second degree assault 

as proscribed by section 203(1)(g), by intending to cause bodily injury to another person 

and causing serious bodily injury to that person. Second degree assault is one of the 

crimes specified in the definition of “crime of violence,” and causing serious bodily 

injury to another person during the commission of an assault satisfies the remaining 

condition of the definition. See § 18-1.3-406(2)(a)(I)(B), (II)(C).

3 Regardless of 

sentencing considerations, just as the charge of assault of which the defendant was 

 

3 We are aware that (2)(a)(I)(B) limits the “other person” with regard to whom serious 

bodily injury or death is caused to “any other person except another participant.” 

Because entitlement to a preliminary hearing is predicated on the crime of which the 

defendant is accused, in the absence of any allegation that the victim specified in the 

charging document was “another participant,” it may be presumed that he was not, for 

purposes of entitlement to a preliminary hearing.
9

convicted in Banks did not meet the statutory definition itself and therefore did not 

constitute a “crime of violence, as defined in section 16-11-309,” the crime of assault 

pursuant to section 203(1)(g), as alleged against the defendant in this case, does meet 

that definition and therefore is a “crime of violence defined in section 18-1.3-406.” See

Banks, 9 P.3d at 1131.

¶14 While the word “or” is notoriously ambiguous and takes its meaning from the 

specific context in which it is used, no one suggests, and it is clearly not the case, that 

“or” is used in its conjunctive implication in prescribing the right to a preliminary 

hearing; nor, for the reasons already explained, does it merely offer alternative language

expressing the same concept. See People v. Swain, 959 P.2d 426, 430 n.12 (Colo. 1998)

(explaining that while the word “or” is generally a disjunctive particle that denotes an 

alternative, it may also be utilized as a coordinate conjunction introducing a 

synonymous word or phrase or it may join different terms expressing the same idea or 

thing). Disjoining alternate conditions, the existence of either of which entitles a 

defendant to a preliminary hearing, as the word “or” clearly does in this statute, the fact 

that the defendant stands accused of a crime of violence as defined in section 18-1.3-406 

is sufficient in itself to entitle him to such a hearing.

III.

¶15 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 
10

absolute, and the case is remanded to the district court for further proceedings 

consistent with this opinion.