SUMMARY

March 7, 2019

2019COA32

No. 17CA0705, People v. Williams — Criminal Law —

Sentencing — Punishment for Habitual Criminals

A division of the court of appeals considers whether two guilty 

pleas entered at the same hearing to two charges brought in 

separate charging documents constitute two convictions for 

purposes of the habitual criminal sentencing statute, § 18-1.3-

801(2)(a)(I), C.R.S. 2018, when the two charges were permissively 

joined for trial under Crim. P. 8(a)(2). The division concludes that 

because the charges would have been tried together in one trial but 

for defendant’s guilty pleas, in line with Gimmy v. People, 645 P.2d 

262, 267 (Colo. 1982), they cannot be considered separately tried 

under the habitual criminal sentencing statute. Therefore, the 

division further concludes that the two guilty pleas resulted in one 

conviction for purposes of the habitual criminal sentencing statute.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
In so concluding, the division rejects the contention that the 

inquiry is resolved by determining whether the joinder was 

mandatory or permissive under Crim. P. 8. Thus, the trial court 

erred in finding this distinction dispositive and adjudicating 

defendant a habitual criminal. 

The division also concludes that the trial court did not err in 

denying defendant’s motion to suppress the pretrial identification or 

in denying his motions for a continuance. 

Accordingly, the division affirms the district court’s judgment, 

reverses the sentence, and remands with directions for the trial 

court to impose a new sentence and to correct the mittimus.
COLORADO COURT OF APPEALS 2019COA32

Court of Appeals No. 17CA0705

City and County of Denver District Court No. 15CR5126

Honorable Andrew P. McCallin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wenston Williams,

Defendant-Appellant.

JUDGMENT AFFIRMED, SENTENCE REVERSED, 

AND CASE REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE TERRY

J. Jones and Nieto*, JJ., concur

Announced March 7, 2019

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Cynthia M. Mardian, Alternate Defense Counsel, Denver, Colorado, for 

Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2018. 
1

¶ 1 Defendant, Wenston Williams, appeals his judgment of 

conviction entered after a jury found him guilty of aggravated 

robbery and second degree assault. He also appeals the sentence 

imposed after the trial court adjudicated him a habitual criminal. 

¶ 2 In Part IV of this opinion, we consider whether two guilty pleas 

entered at the same hearing constitute two separate convictions for 

purposes of the habitual criminal sentencing statute, § 18-1.3-

801(2)(a)(I), C.R.S. 2018, when the pleas were to two charges 

brought in separate charging documents, but later joined for trial 

under Crim. P. 8(a)(2). We conclude that when two charges would 

have been tried together in one trial but for the defendant’s guilty 

pleas, they cannot be considered “separately brought and tried” 

under the habitual criminal sentencing statute. See Gimmy v. 

People, 645 P.2d 262, 267 (Colo. 1982).

¶ 3 We affirm the judgment, reverse the sentence, and remand 

with directions to impose a new sentence and to correct the 

mittimus.

I. Background

¶ 4 Defendant robbed an Uber driver (the victim) at knifepoint in 

an alleyway in Denver. After the jury returned its verdict, the trial 
2

court held a hearing to determine whether defendant was a habitual 

criminal. Based on defendant’s prior convictions for first degree 

assault (heat of passion) and two prior convictions for distribution 

of a Schedule II controlled substance, the trial court adjudicated 

him a habitual criminal and sentenced him to sixty-four years in 

prison.

II. Defendant’s Motion to Suppress Pretrial Identification

¶ 5 Defendant contends that the pretrial photo lineup, from which 

the victim identified him, was impermissibly suggestive. He argues 

that he was older than the other men in the photo array, the 

clothing displayed in his photo was unduly suggestive as compared

with the clothing worn by the other pictured men, and there were 

impermissible differences between the photos because some of the 

pictured men had tattoos. He also contends that the photo array 

was impermissibly suggestive because of the limited number of 

photos included. We disagree with all of these contentions.

A. Standard of Review and Applicable Law

¶ 6 The constitutionality of pretrial identification procedures 

presents a mixed question of law and fact. Bernal v. People, 44 P.3d 

184, 190 (Colo. 2002). Because defendant objected, we review for 
3

harmless error and will reverse if there is a reasonable possibility 

that any erroneous admission of the identification contributed to 

the conviction. People v. Singley, 2015 COA 78M, ¶ 10.

¶ 7 Suggestive lineups are disapproved of because of the increased 

likelihood of misidentification and, thus, conviction of the innocent. 

Bernal, 44 P.3d at 190. Therefore, “each case must be considered 

on its own facts,” and a conviction based on an eyewitness’s 

identification at trial “following a pretrial identification by 

photograph will be set aside on that ground only if the photographic 

identification procedure was so impermissibly suggestive as to give 

rise to a very substantial likelihood of irreparable misidentification.” 

Id. at 191 (quoting Simmons v. United States, 390 U.S. 377, 384 

(1968)). This standard requires a two-part analysis. Id.

¶ 8 “First, a court must determine whether the photo array was 

impermissibly suggestive . . . .” Id. The defendant bears the 

burden of proof. Id. “Second, if the defendant’s burden is met, the 

burden shifts to the People to show that despite the improper 

suggestiveness, the identification was nevertheless reliable under 

the ‘totality of the circumstances.’” Id. (quoting Manson v. 

Brathwaite, 432 U.S. 98, 114 (1977)).
4

¶ 9 Relevant factors to consider in determining whether the 

identification procedure is impermissibly suggestive include the size 

of the array and the manner of its presentation, as well as the 

details of the photographs themselves. Id. An array that includes a 

photo that is unique in a manner directly related to an important 

identification factor may be held impermissibly suggestive. People 

v. Borghesi, 66 P.3d 93, 104 (Colo. 2003) (“[T]he remaining 

consideration is whether the photographs in the array are so limited 

that the defendant is the only one to match the witness’s 

description of the perpetrator.” (citing Bernal, 44 P.3d at 191)). The

police are not required to “provide a photo array containing only 

‘exact replicas’ of the defendant’s picture,” but the photos must be 

“matched by race, approximate age, facial hair, and a number of 

other characteristics.” Bernal, 44 P.3d at 191-92 (quoting People v. 

Webster, 987 P.2d 836, 839 (Colo. App. 1998)).

¶ 10 If the court finds a photo array impermissibly suggestive, it 

must then proceed to the second step of the analysis and determine 

whether, under the totality of the circumstances, the suggestive 

procedure created a very substantial likelihood of misidentification. 

Id. at 192.
5

B. Discussion

¶ 11 The number of photos in the array — six — and the 

complained-of details of the photos did not render the lineup 

impermissibly suggestive. 

¶ 12 The victim described the suspect as a black male, thirty to 

forty years old, five feet eight inches tall, heavily built, and wearing 

a black hoodie. 

¶ 13 At a preliminary hearing, the detective who conducted the 

photo lineup testified that before he showed the photos to the 

victim, he gave the victim several standard admonitions about the 

photo lineup process. The detective showed the victim the six 

photographs individually. Though the detective did not remember 

whether the victim viewed any of the photographs twice, he testified 

that the victim was “pretty quick about” viewing them. The 

detective was not involved with the case in any other way and did 

not know the identity of the suspect. Another detective testified 

that he compiled the photo lineup using photographs from Web 

Mug based on the characteristics described by the victim. 

¶ 14 Nothing about the presentation of the photographs renders the 

procedures surrounding the array suggestive, and the number of 
6

photographs shown was not so small as to make the presentation 

unfairly suggestive. See People v. Wilford, 111 P.3d 512, 514 (Colo. 

App. 2004). The question, then, is whether defendant’s photograph 

substantially matches the description given by the victim, and 

whether it “so stood out from all of the other photographs as to 

‘suggest to [the victim] that [defendant] was more likely to be the 

culprit.’” Bernal, 44 P.3d at 191 (quoting Jarrett v. Headley, 802 

F.2d 34, 41 (2d Cir. 1986)) (alteration in original).

¶ 15 The trial court found that, although the filler photos were of 

men younger than defendant, defendant “in fact, looks close in age 

to the individuals who are aligned in the photo array, even though 

they were all in their 30s.” Based on that finding, the court 

concluded that defendant’s “age did not stand out as an identifying 

characteristic among all of the other individuals who are aligned in 

the photo array.” 

¶ 16 The court also rejected defendant’s argument that his photo 

improperly stood out because he was wearing a hoodie. The court 

noted that the hoodie in defendant’s photo was red, whereas the 

victim described the suspect as wearing a black hoodie, and that 

another man in the photo array was wearing a black hoodie. Under 
7

all of the circumstances, including other distinguishing 

characteristics, such as “the shaved head, the approximate age, and 

the description provided by [the victim],” the court found that the

photo of defendant wearing a hoodie did not cause the array to be

unduly suggestive. 

¶ 17 The record supports the court’s findings. The photo of 

defendant matched the victim’s description of the suspect “by race, 

approximate age, facial hair, and a number of other 

characteristics,” and the filler photos depicted men who generally fit

the witness’s description, as required by Bernal. See Singley, ¶ 22.

¶ 18 We are not persuaded that the photo array was impermissibly 

suggestive because one man was wearing a hospital gown. Nor 

does the fact that one of the men had a neck tattoo and one had a 

chest tattoo render the photo array impermissibly suggestive. The 

neck tattoo on one of the men in the lineup appears only faintly, 

and given the witness’s description that the perpetrator was 

wearing a hoodie, there is no reason to believe that a neck or chest 

tattoo would have been visible during the robbery. See People v. 

Plancarte, 232 P.3d 186, 191 (Colo. App. 2009) (photo lineup was 

not impermissibly suggestive where several of the men were too 
8

light-skinned to fit the witnesses’ descriptions and some of them 

had thin or short facial hair, which did not match the description of 

the burglar as clean shaven); Wilford, 111 P.3d at 514 (photo array 

was not impermissibly suggestive where the defendant was wearing 

a red shirt and was one of two men out of six photos with braids, 

and the robber was described as having braided hair).

¶ 19 We further conclude that the photo array was not so 

suggestive “as to give rise to a substantial likelihood of irreparable 

misidentification.” See Wilford, 111 P.3d at 514. Because we 

conclude that the array was not impermissibly suggestive, we do 

not need to reach the second prong of the Bernal test. Borghesi, 66 

P.3d at 106.

III. Defendant’s Motions for a Continuance

A. Motion for Continuance to Retain Counsel of Choice

¶ 20 Defendant contends that the trial court abused its discretion 

and violated his Sixth Amendment right to his counsel of choice by 

denying his motion for a continuance. We disagree.

1. Standard of Review and Applicable Law

¶ 21 We will disturb a trial court’s ruling on a motion for a 

continuance only if the trial court abused its discretion. People v. 
9

Brown, 2014 CO 25, ¶ 19. A trial court abuses its discretion when 

its ruling is manifestly arbitrary, unreasonable, or unfair, or when it 

misapplies the law. Rains v. Barber, 2018 COA 61, ¶ 8.

¶ 22 The Sixth Amendment provides a criminal defendant the right 

to be represented by counsel of his or her choice. People v. 

Maestas, 199 P.3d 713, 716 (Colo. 2009). “[A] defendant’s right to 

select an attorney whom he or she trusts is considered to be central 

to the adversary system and ‘of substantial importance to the 

integrity of the judicial process.’” Brown, ¶ 16 (quoting Rodriguez v. 

Dist. Court, 719 P.2d 699, 705-06 (Colo. 1986)). As a result, “an 

accused who desires and is financially able should be afforded a fair 

opportunity to secure counsel of his own choice.” Anaya v. People, 

764 P.2d 779, 781 (Colo. 1988) (quoting Powell v. Alabama, 287 

U.S. 45, 53 (1932)).

¶ 23 Although courts afford this right great deference, the Sixth 

Amendment does not provide an absolute right to counsel of choice 

in all cases. Brown, ¶¶ 16-17. Considerations such as judicial 

efficiency and maintaining the integrity of the judicial process may 

sometimes outweigh a defendant’s right to counsel of choice. Id. at 
10

¶ 17. “For example, a defendant may not use the right to counsel of

choice to delay the trial or impede judicial efficiency.” Id.

¶ 24 When a defendant moves to continue the trial to replace 

counsel, the court must balance the defendant’s right to counsel 

against the demands of fairness and efficiency. Id. at ¶ 20. 

Balancing these competing interests requires the court to consider 

the following eleven factors:

• the defendant’s actions surrounding the request and apparent 

motive for making the request;

• chosen counsel’s availability;

• the length of continuance necessary to accommodate chosen 

counsel;

• the potential prejudice — beyond mere inconvenience — to the 

prosecution caused by a delay;

• the inconvenience to witnesses;

• the case’s age, both in the judicial system and from the date of 

the offense;

• the number of continuances already granted in the case;

• the timing of the request to continue;
11

• the impact of a continuance on the court’s docket;

• the victim’s position, if the victim’s rights act applies; and

• any other case-specific factors necessitating or weighing 

against further delay.

Id. at ¶ 24. 

¶ 25 This is not a mechanical test. Id. at ¶ 20. “[N]o single factor is 

dispositive and the weight accorded to each factor will vary 

depending on the specific facts at issue in the case.” Id. at ¶ 24.

2. Discussion

¶ 26 In concluding that the interests of justice required denial of 

defendant’s motion for a continuance, the trial court found that 

defendant could have raised the issue earlier, but instead waited 

until the first day of trial. The court was suspicious of these 

circumstances. Though the trial had already been twice delayed, 

defendant had not yet retained counsel of his choice, and

consequently replacement counsel was not available to represent

him on the first day of trial. The court reasoned that any 

continuance to accommodate chosen counsel’s entry into the case

would be lengthy, and would prejudice the People to “a great extent” 

because of circumstances surrounding the codefendant, who was 
12

set to testify for the prosecution. The court also found that the 

alleged victim would be adversely impacted by such a delay 

because, as a result of the trial, he had deferred an overseas trip to 

visit his terminally ill father. And the court considered the 

possibility that the victim might leave the country as a case-specific 

factor that weighed against any further delay in the nearly twoyear-old case.

¶ 27 Because the trial court’s findings are supported by the record, 

and the court considered the appropriate factors in balancing 

defendant’s right to have counsel of his choosing against the 

efficient and effective administration of justice, we conclude that the 

court did not abuse its discretion in denying defendant’s motion for 

a continuance. Brown, ¶¶ 17, 26 (“Given the highly factual nature 

of the balancing test, the trial court is undeniably in the best 

position to determine whether a continuance is appropriate.”).

B. Motion for a Continuance to Complete Fingerprint Testing

¶ 28 Defendant next contends that the trial court abused its 

discretion and violated his constitutional rights by denying his 

motion for a continuance to allow the People to complete fingerprint 

testing. He further contends that the completed testing would have 
13

allowed for the production of exculpatory evidence. We reject these 

contentions.

¶ 29 We review a trial court’s ruling on discovery matters for an 

abuse of discretion. People v. Dill, 904 P.2d 1367, 1374 (Colo. App. 

1995), aff’d, 927 P.2d 1315 (Colo. 1996). 

¶ 30 The prosecution sought to compare defendant’s fingerprints to 

prints found in the victim’s car, but the only print from the car that 

was potentially of sufficient quality to allow for a comparison was of 

a portion of the finger not typically captured on exemplars. Thus,

the comparison results were inconclusive. 

¶ 31 At a pretrial hearing, defendant argued that Crim. P. 16 

required the prosecution to provide a new fingerprint comparison 

before trial. But the prosecution did not have possession or control 

of any exculpatory fingerprint comparison results. See Crim. P. 

16(I)(a)(2) (requiring prosecutors to disclose “any material or 

information within [their] possession or control which tends to 

negate the guilt of the accused as to the offense charged or would 

tend to reduce the punishment therefor”).

¶ 32 To make a comparison as requested by defendant, he would 

have had to provide a new set of his fingerprints. Defendant’s 
14

request amounted to a request that the prosecution retake his

fingerprints and submit the new exemplars for comparison to those 

found in the car. However, “the state has no duty to have evidence 

tested on the speculative basis that it might have some unspecified 

use for exculpatory purposes.” People v. Apodaca, 998 P.2d 25, 30 

(Colo. App. 1999) (citing People v. Roark, 643 P.2d 756 (Colo. 

1982)). “Failure to investigate does not constitute suppression of 

evidence, nor may the defendant compel the state to search out and 

gather evidence which could be exculpatory.” Id.; see also People v. 

Norwood, 37 Colo. App. 157, 162, 547 P.2d 273, 278 (1975) (the 

state’s failure to take fingerprints and preserve evidence did not 

result in a violation of due process where the state did not benefit

and investigatory gaps in the prosecution’s case were brought out 

at trial).

¶ 33 Considering the totality of the circumstances, we discern no 

error in the court’s ruling on defendant’s motion for a continuance. 

See Dill, 904 P.2d at 1374.

IV. Habitual Criminal Sentencing Statute

¶ 34 Defendant contends that the trial court erroneously sentenced 

him under the habitual criminal sentencing statute because two of 
15

his three prior felony convictions were permissively joined for trial. 

We agree and therefore remand this case to the trial court for 

resentencing without the habitual criminal sentence enhancer.

A. Standard of Review and Statutory Construction Principles

¶ 35 Our review of statutory provisions is de novo. Cowen v. 

People, 2018 CO 96, ¶ 11.

¶ 36 When interpreting a statute, our primary purpose is to 

ascertain and give effect to the General Assembly’s intent. Id. We 

start by examining the plain meaning of the statutory language. Id. 

If a term is not defined in a statute, we construe the term in 

accordance with its ordinary or natural meaning. Id. at ¶ 14. We 

give consistent effect to all parts of the statute and construe each 

provision in harmony with the overall statutory design. Id. at ¶ 13. 

B. “Charges Separately Brought and Tried” Element

¶ 37 For a defendant to be adjudged a habitual criminal under 

section 18-1.3-801(2)(a)(I), the prosecution must prove beyond a 

reasonable doubt that the defendant, having been convicted of a

felony, “has been three times previously convicted, upon charges 

separately brought and tried, and arising out of separate and 
16

distinct criminal episodes.” People v. Nunn, 148 P.3d 222, 225 

(Colo. App. 2006). 

¶ 38 Charges are separately brought where they are “in separate 

informations, with separate docket numbers, arising out of separate 

criminal incidents,” and a predicate conviction can result from 

either a conviction following trial or a guilty plea. Gimmy, 645 P.2d 

at 267 (citing People v. Goodwin, 197 Colo. 47, 593 P.2d 326 

(1979)). Entry of guilty pleas to multiple offenses during the same 

proceeding satisfies the requirement of “charges separately brought 

and tried” where the “predicate convictions arose from charges 

which, had they not been adjudicated through the entry of guilty 

pleas, would have been tried separately.” Id. 

C. Discussion

¶ 39 The parties do not dispute that defendant had previously been 

convicted of three felonies that were separately filed under different 

case numbers. Defendant argues, however, that because the two 

cases charging him with distribution of a Schedule II controlled 

substance were joined for trial under Crim. P. 13, they would have 

been tried together had he not entered guilty pleas and, thus, his 
17

previous convictions for distribution should be treated as one 

conviction for habitual criminal purposes.

¶ 40 The People argue that because the charges were for separate 

and distinct criminal episodes under the mandatory joinder statute, 

see § 18-1-408(2), C.R.S. 2018, they could have been tried 

separately. Because the offenses occurred a month and a half 

apart, the People argue that this was not one ongoing criminal 

episode and that, because the two charges and two cases were 

joined permissively, they should not be considered one conviction 

under the habitual criminal sentencing statute. 

¶ 41 Even if we assume that the charges arose out of separate and 

distinct criminal episodes and therefore could have been tried 

separately, where, as here, the charges were joined for trial — albeit 

permissively — and would have been tried together but for 

defendant’s guilty pleas, the plain language of the habitual criminal 

sentencing statute and Colorado Supreme Court precedent require 

us to consider defendant’s convictions for distribution as one 

conviction under the habitual criminal sentencing statute. See

§ 18-1.3-801(2)(a)(I) (“[E]very person convicted in this state of any 

felony, who has been three times previously convicted, upon 
18

charges separately brought and tried, and arising out of separate 

and distinct criminal episodes, . . . of a felony . . . shall be adjudged 

an habitual criminal . . . .”) (emphasis added); Gimmy, 645 P.2d at 

267 (“Where the charges against the defendants were separately 

brought and would have been tried separately but for the 

defendants’ decisions to enter guilty pleas, the convictions thereby 

obtained satisfy the definition of predicate felonies in the habitual 

criminal statute.”); see also Brown v. Dist. Court, 197 Colo. 219, 

222, 591 P.2d 99, 100-01 (1979) (noting the District Attorney’s 

argument that “if the seven informations were tried separately they 

could serve as the basis for a habitual criminal proceeding, but if 

tried together they could not,” the supreme court nevertheless 

concluded that the trial court’s consolidation of informations on the 

defendant’s motion was within its sound discretion).

¶ 42 The record makes clear that defendant’s predicate felonies 

were permissively joined for trial, and that the prosecutor planned

to try both charges together. At a pretrial hearing on defendant’s

distribution charges, the prosecutor requested that the court join 

the cases based on her intent to admit evidence from both cases in 

each trial under CRE 404(b) “as evidence of modus operandi, 
19

common plan [or] scheme, intent, and . . . lack of mistake.” Over 

defendant’s objection, the court ordered the “consolidation of the 

two cases for trial” and set a single trial date. The day before the 

case went to trial, defendant pleaded guilty to both charges. 

¶ 43 We conclude that even if the charges could have been tried 

separately, they would have been tried together but for defendant’s 

guilty pleas. See Gimmy, 645 P.2d at 267. We are further 

persuaded by the language of Crim. P. 8 and 13. Crim. P. 8 

provides for joinder of offenses, and Crim. P. 13 provides for joinder 

of indictments and informations. Both rules contemplate a single 

trial. Crim. P. 13 explicitly states, “[t]he procedure shall be the 

same as if the prosecution were under such single indictment, 

information, complaint, or summons and complaint.” We therefore

conclude that the trial court erred when it determined that the 

permissive nature of the joinder, as compared to mandatory joinder, 

rendered the charges separately brought and tried under the 

habitual criminal sentencing statute. The mandatory joinder rule is 

relevant to whether the convictions arose out of separate and 

distinct criminal episodes, see People v. Jones, 967 P.2d 166, 169
20

(Colo. App. 1997), but there is no authority for its application to the 

“separately brought and tried” element of the statute.

¶ 44 Under the mandatory joinder statute, § 18-1-408(2), if the 

prosecuting attorney elects to proceed on several known offenses, 

all such offenses “must be prosecuted by separate counts in a 

single prosecution if they are based on the same act or series of acts 

arising from the same criminal episode.” Crim. P. 8(a)(1) employs 

the same language as the mandatory joinder statute. But under 

subsection (a)(2) of the Rule, which is titled “permissive joinder,”

“[t]wo or more offenses may be charged in the same indictment or 

information in a separate count for each offense if the offenses 

charged . . . are of the same or similar character or are based on 

two or more acts or transactions connected together or constituting 

parts of a common scheme or plan.” Crim. P. 8(a)(2). Thus, joinder 

is mandatory where the offenses arise from the same criminal 

episode, but joinder is permissive where the offenses arise from 

broader circumstances that do not necessarily constitute one 

criminal episode.

¶ 45 The supreme court has interpreted “[a] series of acts arising

from the same criminal episode” as including “physical acts that are 
21

committed simultaneously or in close sequence, that occur in the 

same place or closely related places, and that form part of a 

schematic whole.” Jones, 967 P.2d at 169-70 (quoting Jeffrey v. 

Dist. Court, 626 P.2d 631, 639 (Colo. 1981)). This meaning also 

applies “[i]n determining the quantum of proof required to show 

separate and distinct criminal episodes in an habitual criminal 

proceeding.” Id. at 169. 

¶ 46 Considering these statutes and rules together, the reader 

would conclude that, if two or more offenses arose out of separate 

criminal episodes, but were of a similar character, they could be 

joined together for trial, yet such joinder would not be required. 

See Crim. P. 8(a)(2). Under that scenario, the two separate offenses, 

if they were tried separately and resulted in felony convictions, 

could qualify as separate predicate felonies for purposes of the 

habitual criminal sentencing statute. See § 18-1.3-801(2)(a)(I). 

However, the “separately brought” element, which requires a 

showing that the convictions arose out of separate criminal 

incidents, and the “separately tried” element remain distinct 

elements and each must be proved beyond a reasonable doubt. 
22

¶ 47 In sum, the People’s focus on whether the joinder was 

mandatory or permissive is misplaced. Instead, the focus is 

properly on whether the charged offenses would have been tried 

separately. Because the offenses here were, in fact, joined for trial, 

they would not have been tried separately. Therefore, under 

Gimmy, defendant was not eligible for habitual criminal sentencing 

based on those convictions.

¶ 48 The habitual criminal sentencing statute and Gimmy require 

that the prosecution prove beyond a reasonable doubt that 

defendant’s predicate felony convictions were separately brought 

and would have been separately tried had defendant not entered 

guilty pleas. See § 18-1.3-801(2)(a)(I); Gimmy, 645 P.2d at 267. 

Because the People failed to meet their burden to prove these facts, 

defendant’s adjudication as a habitual criminal is reversed, as is his 

sentence for that adjudication.

V. Conclusion

¶ 49 The judgment of conviction is affirmed. The case is remanded 

for the trial court to impose a new sentence in accordance with this 

opinion and to correct the mittimus.

JUDGE J. JONES and JUDGE NIETO concur.