Jury Factfinding and Second Juries in Habitual Criminal Sentencing: Commentary on People v. Gregg (2025 CO 57)

I. Introduction

The Colorado Supreme Court’s decision in People v. Gregg, 2025 CO 57, 576 P.3d 725, sits at the crossroads of two major strands of modern criminal procedure:

the Apprendi/Blakely/Erlinger line of cases concerning a defendant’s right to have sentence-enhancing facts decided by a jury beyond a reasonable doubt; and
the double jeopardy limits on successive proceedings and multiple punishments.

The case arises out of Colorado’s “habitual criminal” sentencing scheme, which allows dramatically enhanced sentences for repeat felony offenders. Historically, Colorado law assigned a central role to the trial judge—not the jury—in deciding whether the prior convictions were distinct qualifying episodes. In 2024, the United States Supreme Court held in Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840 (2024), that under the federal Constitution a jury must unanimously decide, beyond a reasonable doubt, whether prior convictions were committed on different “occasions” before they can trigger certain federal recidivist enhancements.

Gregg answers two questions of first impression under Colorado law:

Constitutional Compatibility: Is the prior version of Colorado’s habitual criminal sentencing statute, § 18-1.3-803, unconstitutional on its face after Erlinger because it assigns the habitual factfinding role to “the trial judge”? If not, how must Colorado courts now implement it?
Double Jeopardy and Second Juries: When a jury has convicted a defendant on the substantive charges and been discharged without deciding the habitual counts, does the Double Jeopardy Clause bar the trial court from empaneling a second jury to decide those habitual counts?

The Court’s majority, in an opinion by Justice Boatright (joined by Justices Gabriel, Hart, Samour, and Berkenkotter), answers both questions in a way that preserves the prior statute and authorizes second juries. Chief Justice Márquez, joined by Justice Hood, agrees on the double jeopardy holding but sharply disagrees on whether the former statute can be saved, accusing the majority of effectively rewriting the law instead of invalidating and severing its unconstitutional components.

This commentary provides a detailed overview and analysis of the opinion, its use of precedent, its reasoning, and its likely impact on Colorado criminal practice.

II. Factual and Procedural Background

Andrew Burgess Gregg was charged in Mesa County District Court (Case No. 23CR289) with:

aggravated robbery,
attempt to influence a public servant, and
false reporting.

The prosecution also charged Gregg with four habitual criminal counts under § 18-1.3-801, alleging four prior felony convictions. Under that scheme, a defendant who has “three times previously been convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes” faces substantially enhanced sentencing.

A jury convicted Gregg of robbery, attempt to influence a public servant, and false reporting. Consistent with the then-applicable version of § 18-1.3-803, the trial court discharged the jury and scheduled a separate habitual criminal sentencing hearing, at which the judge was to determine whether Gregg had the requisite prior convictions arising from separate and distinct criminal episodes.

Before that hearing took place, the United States Supreme Court decided Erlinger v. United States, which held that under the Armed Career Criminal Act (ACCA), the question whether prior qualifying felonies were committed on different “occasions” must be decided by a jury unanimously and beyond a reasonable doubt. Because Colorado’s habitual statute uses a materially similar concept—“separate and distinct criminal episodes”—Erlinger immediately called into question the constitutionality of Colorado’s judge-only habitual sentencing procedure.

Relying on Erlinger, Gregg moved to dismiss his habitual counts, arguing:

The then-current version of § 18-1.3-803 was unconstitutional because it required a judge, rather than a jury, to find facts (separate criminal episodes) that increase the statutory sentencing range; and
Even if a jury were now constitutionally required, double jeopardy barred the court from empaneling a new jury to decide the habitual counts once the original jury that decided the substantive counts had been discharged.

The trial court granted Gregg’s motion, holding that it could not empanel a second jury because jeopardy had attached to the habitual counts. It did not decide whether the statute itself was unconstitutional under Erlinger.

The People, joined by several amici, filed an original proceeding under Colorado Appellate Rule 21 (C.A.R. 21). Because of the statewide significance of habitual sentencing and the new conflict with Erlinger, the Colorado Supreme Court exercised its discretionary original jurisdiction and issued an order to show cause.

III. Summary of the Supreme Court’s Decision

A. Habitual Criminal Statute and Erlinger

The majority holds that Colorado’s former habitual criminal sentencing statute, § 18-1.3-803 (pre-2025 amendment), is not facially unconstitutional even after Erlinger. Instead, the Court:

acknowledges that Erlinger requires a jury to determine whether prior convictions were “separate and distinct criminal episodes,” because that is more than the bare “fact of a prior conviction”; but
concludes that § 18-1.3-803 can be constitutionally applied if courts follow a two-step procedure:
1. The JURY first decides, unanimously and beyond a reasonable doubt, whether the defendant’s prior convictions were “separately brought and tried” and “arose out of separate and distinct criminal episodes.”
2. The JUDGE then reviews the jury’s findings for sufficiency of the evidence and enters a judgment on the habitual counts only if the evidence supports the jury’s determination.

Because such a constitutional application exists, the statute is not unconstitutional “in all its applications” and therefore is not facially invalid.

B. Double Jeopardy and Second Juries

On the double jeopardy issue, the Court holds that:

Habitual criminal sentencing does not constitute a separate “offense”; rather, it determines a status (habitual criminal) for sentencing purposes.
Habitual adjudication is simply the second phase of a bifurcated proceeding in a single prosecution, not a second prosecution.
Under both federal precedent (Monge v. California) and Colorado law (People v. Porter), the Double Jeopardy Clause does not apply to non-capital sentencing proceedings such as habitual adjudications.
Accordingly, empaneling a second jury to decide Gregg’s habitual counts—after the first jury convicted him on the substantive charges but was discharged—does not violate double jeopardy.

The Court therefore reinstates Gregg’s habitual criminal charges and authorizes the trial court to empanel a new jury to decide them.

C. The Concurrence/Dissent

Chief Justice Márquez, joined by Justice Hood, concurs in the result on double jeopardy but dissents on the statutory-constitutionality question. In her view:

The prior version of § 18-1.3-803 is plainly unconstitutional under Erlinger because it unambiguously assigns all habitual factfinding to the trial judge, not the jury.
The majority’s “jury first / judge review” construction is not a permissible narrowing interpretation but an impermissible judicial rewrite of the statute.
The proper remedy is to declare the “trial judge” factfinding provisions unconstitutional and sever them, allowing the constitution and Erlinger to “fill the gap” by requiring jury factfinding.
The General Assembly itself has now adopted that solution by passing S.B. 25-189 (effective June 2, 2025), amending § 18-1.3-803 to require a jury to decide habitual status.

IV. Detailed Analysis of the Majority Opinion

A. The Statutory Scheme and the Constitutional Framework

1. Colorado’s Habitual Criminal Scheme

Sections 18-1.3-801 to -804 comprise Colorado’s habitual criminal sentencing scheme. As the Court emphasizes (citing Campbell v. People, 2020 CO 49), this framework does not create a separate substantive crime; it instead provides for increased penalties based on prior felony convictions.

Under § 18-1.3-801(2)(a)(I), a defendant becomes subject to habitual sentencing if:

they are convicted of a current felony, and
they have previously been three times convicted “upon charges separately brought and tried, and arising out of separate and distinct criminal episodes.”

The now-superseded version of § 18-1.3-803, which governed at the time of Gregg’s trial, imposed a bifurcated structure:

The jury decided guilt or innocence on the substantive offense. § 18-1.3-803(4)(a).
If the jury returned a guilty verdict, the trial judge then held a separate sentencing hearing and “proceed[ed] to try the issues of whether the defendant has been previously convicted as alleged.” § 18-1.3-803(1), (4)(b) (emphasis added).

This language plainly assigns the habitual factfinding function to the judge, not the jury—precisely the feature brought into question by Erlinger.

2. The Apprendi/Blakely/Alleyne Framework and the Prior Conviction Exception

The majority situates Erlinger within the familiar line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), and extended in Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013). That line stands for the proposition that:

“[V]irtually ‘any fact’ that ‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’ must be resolved by a unanimous jury beyond a reasonable doubt.”

(Erlinger, 602 U.S. at 834, quoting Apprendi.)

There is, however, a “narrow exception” permitting a judge to find only the “fact of a prior conviction.” Erlinger, 602 U.S. at 838 (citing Alleyne and Almendarez–Torres). This exception underlies Colorado decisions like Lopez v. People, 113 P.3d 713 (Colo. 2005), which allow judges to rely on prior convictions as sentencing-aggravating facts without jury determination.

3. Erlinger and Colorado’s “Separate and Distinct Episodes” Requirement

Erlinger addressed the federal Armed Career Criminal Act (ACCA), which mandates enhanced penalties for defendants with three qualifying prior convictions “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The Supreme Court held that the “occasions” question is more than the bare fact of prior conviction—it involves the relationship between those prior crimes, their timing, location, and other circumstances. Because this fact increases the defendant’s potential penalty, Erlinger held it must be decided by a jury, not a judge.

Colorado’s habitual statute contains a directly analogous requirement: prior convictions must arise out of “separate and distinct criminal episodes.” § 18-1.3-801(2)(a)(I). The majority acknowledges that this “separate episodes” question is constitutionally indistinguishable from ACCA’s “occasions” inquiry and, under Erlinger, must be decided by a jury.

The conflict, therefore, is apparent: the text of the former § 18-1.3-803 instructs “the trial judge” to make the habitual findings, yet Erlinger requires that the crucial “separate episodes” determination be made by a jury.

B. Is the Former Habitual Statute Facially Unconstitutional?

1. Facial Unconstitutionality Standard

A statute is facially unconstitutional only if it is unconstitutional “in all its applications.” Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010). Colorado courts apply a strong canon of constitutional avoidance: if a statute “is capable of several constructions, one of which is constitutional, the constitutional construction must be adopted.” People v. Schoondermark, 699 P.2d 411, 415 (Colo. 1985).

Thus, even where statutory text could be read in a manner that conflicts with the Constitution, a court will prefer a different, reasonable reading that keeps the statute alive.

2. Gregg’s Argument: The Statute Is Unconstitutional Post‑Erlinger

Gregg argued that:

The statute repeatedly and specifically assigns habitual factfinding to “the trial judge,” not the “factfinder” or “court” in a neutral way.
Its express reference to a “replacement judge” if the original judge is unavailable further underscores that the judge, not the jury, is the intended adjudicator of habitual status.
Given Erlinger, which requires a jury to decide the “separate and distinct criminal episodes” question, this scheme is incompatible with the federal Constitution and therefore facially invalid.

Under this view, the statute cannot be rescued by construction: its core feature—judicial factfinding on a sentence-enhancing issue—is precisely what Erlinger forbids.

3. The People’s Argument: The Statute Can Be Applied Constitutionally

The People conceded that Erlinger requires jury findings on the “separate and distinct episodes” element. They nevertheless contended that the prior statute could be harmonized with Erlinger through a bifurcated factfinding procedure:

A jury first determines whether the defendant’s prior convictions were “separately brought and tried” and “arose out of separate and distinct criminal episodes,” satisfying Erlinger and Apprendi.
The trial judge then conducts a secondary hearing and issues a “verdict” on habitual status, as the statute requires, by reviewing the same evidence and confirming or rejecting the jury’s findings.

On this reading, the statute does not prohibit jury involvement in habitual findings; it merely requires that, in addition, the judge formally determine habitual status. So long as the jury decides the constitutionally required facts first, the statute can be applied in a way that respects both its text and Erlinger.

C. Constitutional Avoidance and the Lopez Template

1. Lopez v. People: Salvaging Aggravated Sentencing

The majority’s key methodological move is to analogize this problem to Lopez v. People, which addressed Colorado’s aggravated sentencing statute, § 18-1.3-401(6). That statute allowed a judge to impose a sentence outside the presumptive range upon finding “extraordinary aggravating or mitigating circumstances” based on the record and presentence report.

In Lopez, defendants argued that this language violated Blakely because it appeared to allow judicial factfinding of aggravating circumstances that increase the maximum sentence. Rather than striking the statute, the Colorado Supreme Court:

recognized that the statute could be used in a way that violated Blakely, but
held that the statute was constitutional so long as trial courts limited themselves to:
- Blakely-compliant facts—facts admitted by the defendant, found by a jury, or found by a judge with the defendant’s consent; and
- Blakely-exempt facts—the fact of a prior conviction.

Thus, even though the statute’s language was broad enough to support unconstitutional applications, it was preserved because it could also be applied in a constitutional way.

2. Applying Lopez’s Logic to Habitual Sentencing

Following Lopez, the majority in Gregg reasons as follows:

Erlinger undoubtedly applies to Colorado’s habitual scheme; the “separate and distinct criminal episodes” inquiry is materially identical to ACCA’s “occasions” inquiry and must be decided by a jury.
However, § 18-1.3-803 merely assigns a role to “the trial judge”; it does not explicitly forbid a jury from making the same findings.
Nor does Erlinger forbid judicial review of a jury’s habitual finding; it only requires that the fact increasing the sentencing range be found by the jury in the first instance.

Accordingly, the Court concludes that a constitutional application of the prior statute exists:

Jury Phase (Habitual Counts)
After the jury returns guilty verdicts on the substantive charges, a second phase (before a jury) addresses the habitual counts. The jury must determine, unanimously and beyond a reasonable doubt:
- whether the defendant is the person previously convicted as alleged, and
- whether those convictions were “separately brought and tried” and “arose out of separate and distinct criminal episodes.”
Judicial Review and Judgment
The trial judge then reviews the jury’s findings under the familiar sufficiency of the evidence standard (as articulated in People v. LaRosa and People v. Bennett):
Whether a reasonable mind could conclude that each material element of the offense (here, each element of habitual status) was proven beyond a reasonable doubt.
If the evidence is sufficient, the judge “enter[s] the judgment,” thereby performing the “determine by separate hearing and verdict” function § 18-1.3-803 assigns to the trial judge. If the jury does not find the habitual elements proven, or if the evidence is insufficient, the court must acquit on the habitual counts.

Because this process both:

complies with Erlinger (jury finding of the sentence-enhancing facts), and
honors the statutory requirement that “the trial judge” determine habitual status by separate hearing and verdict,

the majority concludes that the former habitual statute is not facially unconstitutional. It can be—and must be—applied in the now-mandated jury-first/judge-review manner in cases governed by the pre‑2025 version of the statute.

D. Double Jeopardy and Habitual Criminal Sentencing

1. General Double Jeopardy Principles

The Double Jeopardy Clauses of the U.S. and Colorado Constitutions protect against:

a second prosecution for the same offense after acquittal,
a second prosecution for the same offense after conviction, and
multiple punishments for the same offense.

(Brown v. Ohio, 432 U.S. 161 (1977); People v. Leske, 957 P.2d 1030 (Colo. 1998).)

The key threshold is that “jeopardy” must have attached and then ended in a way that would make a second proceeding (or punishment) “double” jeopardy.

2. Habitual Criminal Status as “Status,” Not a Separate Offense

The Court relies on longstanding precedent to hold that habitual criminal adjudications do not place a defendant in jeopardy for a separate “offense”:

Oyler v. Boles, 368 U.S. 448 (1962): habitual criminal proceedings are “independent of the determination of guilt on the underlying substantive offense.”
People ex rel. Faulk v. District Court, 673 P.2d 998 (Colo. 1983): the habitual statute “describes a status rather than a substantive offense.”
People v. Hampton, 876 P.2d 1236 (Colo. 1994): trials with habitual counts are bifurcated; the habitual adjudication is “one component of the entire process of conviction” and is not a second proceeding.

In other words, habitual status functions as a sentencing factor, not a separate crime. Because there is only one prosecution, with two phases, there is no “second” proceeding to trigger double jeopardy protection.

3. The Bullington–Quintana–Monge–Porter Arc

Historically, some courts, including Colorado’s, extended double jeopardy protections to habitual or enhanced-sentencing phases by analogy to capital sentencing:

Bullington v. Missouri, 451 U.S. 430 (1981), held that in capital cases, a jury’s decision at a sentencing hearing to impose life rather than death operated like an “acquittal” of the death penalty, barring a death sentence on retrial.
People v. Quintana, 634 P.2d 413 (Colo. 1981), extended this reasoning to Colorado’s then-existing habitual scheme.
People v. Mason, 643 P.2d 745 (Colo. 1982), applied Quintana and held that when the trial court improperly took over habitual factfinding after discharging the jury, double jeopardy barred retrial of the habitual counts.

However, in Monge v. California, 524 U.S. 721 (1998), the U.S. Supreme Court confined Bullington to the capital context and held that double jeopardy does not apply to noncapital recidivist sentencing. This Court followed suit in People v. Porter, 2015 CO 34, explicitly overruling Quintana and aligning Colorado with Monge:

Double jeopardy protections do not apply to noncapital sentencing proceedings, including habitual criminal sentencing.

4. Does Erlinger Undermine Monge and Porter?

Gregg argued that Erlinger destabilizes or effectively overrules Monge, and by extension Porter, because it emphasizes the importance of jury determinations of recidivist-enhancement facts. He invited the Colorado Supreme Court to retreat from Porter and restore double jeopardy protections for habitual proceedings, at least under the Colorado Constitution.

The majority rejects this invitation for several reasons:

Erlinger did not purport to overrule Monge and barely mentioned it at all, referencing it only on a different issue (the prior-conviction exception under Almendarez–Torres).
The Supreme Court has repeatedly reaffirmed that recidivist sentencing proceedings do not place a defendant in jeopardy for a new “offense” (Graham v. West Virginia; Parke v. Raley; Almendarez–Torres).
When the Court overrules precedent, it typically applies a structured stare decisis analysis (as in Ramos v. Louisiana); Erlinger contains no such analysis on double jeopardy and instead focuses on the jury-trial right.

Accordingly, Monge remains good law, and Porter’s holding that double jeopardy does not apply to noncapital sentencing, including habitual adjudications, stands.

5. Application to Second Juries in Habitual Proceedings

The trial court in Gregg’s case relied on Erlinger and Mason to hold that empaneling a new jury for the habitual phase would violate double jeopardy. The Supreme Court corrects this:

Under Porter and Monge, habitual sentencing is not a separate offense, and no double jeopardy bar applies.
Habitual counts in Gregg’s case remained pending because no factfinder—neither jury nor judge—had yet rendered a verdict on them.
The first jury was properly discharged after deciding only the substantive charges; jeopardy did not attach or terminate as to the habitual counts.

Therefore, empaneling a second jury to decide the habitual counts is simply the continuation of the same criminal proceeding, not a new prosecution, and does not raise double jeopardy concerns.

E. The Holding Applied to Gregg

Applying its analysis, the Court:

holds that the pre‑2025 habitual statute is not facially unconstitutional and can be constitutionally applied in a jury-first/judge-review manner;
holds that double jeopardy does not bar empaneling a second jury to decide habitual counts after the first jury was discharged without addressing those counts; and
makes its order to show cause absolute and reinstates Gregg’s habitual criminal charges so that a jury may now assess them.

V. The Márquez Concurrence/Dissent: A Different Path to the Same Result on Double Jeopardy

Chief Justice Márquez (joined by Justice Hood) agrees with the majority that double jeopardy does not bar a second jury for habitual sentencing, but strongly disagrees with the majority’s treatment of § 18-1.3-803. Her opinion is significant for what it reveals about the Court’s internal debate on constitutional avoidance and the proper judicial role in “saving” statutes.

A. Plain Language and Statutory History: “Trial Judge” Means Judge, Not Jury

The Chief Justice begins with standard textualism:

Courts determine legislative intent primarily from the statutory text, read as a whole and given its plain meaning.
The prior version of § 18-1.3-803 explicitly assigns the habitual factfinding role to the “trial judge” in multiple subsections, and is not silent on the identity of the factfinder.

Crucially, the legislative history confirms this:

For many years, Colorado’s habitual criminal statute provided that the jury would determine whether the defendant was a habitual criminal.
In 1995, the General Assembly amended the law to replace “jury” with “trial judge” in the relevant provisions. Under standard interpretive principles, such a change is presumed intentional and indicates a desire to move factfinding from jury to judge.

The Chief Justice concludes that the only reasonable reading of the former statute is that the legislature intended judges—not juries—to decide habitual status.

B. Erlinger Renders Judicial Factfinding Unconstitutional

Given Erlinger’s clear holding that the “separate occasions” fact must be decided by a jury to enhance a sentence, the Chief Justice reasons:

To the extent § 18-1.3-803 requires a judge to determine whether prior convictions were “separately brought and tried, and arose out of separate and distinct criminal episodes,” it is unconstitutional.
The statute’s very design—judicial factfinding on a sentence-enhancing element—is what Erlinger forbids.

She notes that the General Assembly itself recognized this constitutional problem and responded directly by enacting S.B. 25-189 in 2025:

The amendment replaces “judge” with “jury” throughout § 18-1.3-803 and now explicitly requires a jury to decide:
- whether the defendant has the requisite prior convictions,
- whether those convictions were separately brought and tried, and
- whether they arose out of separate and distinct criminal episodes.
Legislative debates acknowledged that this amendment was prompted by Erlinger and that Colorado’s then-existing scheme was “vulnerable” constitutionally if left unchanged.

C. Critique of the Majority’s Use of Lopez and Constitutional Avoidance

Chief Justice Márquez argues that Lopez does not support the majority’s approach for several reasons:

Different Problem in Lopez
In Lopez, the aggravated sentencing statute did not expressly require unconstitutional judicial factfinding; rather, it allowed judges to consider aggravating facts, some of which might or might not be Blakely-compliant. The Court preserved the statute by limiting the sources of facts judges could consider (jury-found or admitted facts, plus prior convictions), not by changing who the factfinder was.
Here, the Statute Expressly Requires Judicial Factfinding
By contrast, § 18-1.3-803 explicitly instructs that the “trial judge” must try the habitual issues. There is no “narrowing” construction that can reconcile this mandate with Erlinger’s direct jury requirement; the two are in direct conflict.
The Majority is Expanding, Not Narrowing, the Statute
Instead of constraining the statute, the majority adds an entire jury factfinding phase and converts judicial “factfinding” into judicial review. This, in the Chief Justice’s view, is not interpretation but rewriting. The canon of constitutional doubt does not authorize courts to invent new procedures “not contemplated by the legislature.”
Montour as a Cautionary Parallel
She notes that in People v. Montour, 157 P.3d 489 (Colo. 2007), the Court refused to extend Lopez to the capital sentencing scheme, because capital sentencing required findings that could not be grounded solely in Blakely-exempt facts. That is, Lopez had limits; it could not be used to salvage schemes whose core structure was incompatible with Apprendi/Blakely.

For the Chief Justice, the majority’s use of constitutional avoidance crosses the line into what the U.S. Supreme Court once called “disingenuous evasion” of the statute’s text in order to avoid a constitutional question.

D. Remedy: Sever the Unconstitutional “Trial Judge” Language

Chief Justice Márquez proposes a different, classic remedy: severability.

Colorado’s severability statute, § 2-4-204, provides that when a provision of a statute is unconstitutional, the remaining provisions remain valid unless they are incomplete and incapable of being executed in accordance with legislative intent.
The General Assembly has had a strong and continuous interest—over nearly a century—in maintaining a habitual criminal sentencing scheme to punish repeat offenders more severely.

In her view:

The unconstitutional part of § 18-1.3-803 is the specific designation of the “trial judge” as the factfinder in subsections (4)(b), (5)(b), and (6).
If the “trial judge” language is struck, the remainder of the statute—requiring:
- a separate sentencing hearing,
- notice, admission-or-denial procedure,
- the prosecution’s burden of proof beyond a reasonable doubt,
—remains intact and fully operable.
Once the unconstitutional “judge” assignment is removed, the Constitution and Erlinger require that a jury fill the gap as the factfinder (reinforced by existing Colorado law guaranteeing jury trial in felony cases).

This approach, she argues, respects both:

the legislature’s overarching intent to preserve habitual sentencing; and
the separation of powers, by not adding procedures the legislature did not contemplate.

She concludes that the former version of § 18-1.3-803 is unconstitutional insofar as it assigns habitual factfinding to a judge, and that the proper judicial remedy is to declare those portions invalid and let Erlinger and general jury-trial principles fill the gap.

E. Agreement on Double Jeopardy

On double jeopardy, Chief Justice Márquez agrees with the majority:

Noncapital habitual sentencing does not involve a separate offense, and Monge/Porter remain controlling.
Court may empanel a second jury for the habitual phase without violating double jeopardy.
Given that S.B. 25-189 applies prospectively to sentencing hearings held after its effective date, cases paused after Erlinger may now proceed under the new statutory framework.

VI. Key Precedents and Their Influence

A. Apprendi, Blakely, Alleyne, and the Prior Conviction Exception

Apprendi v. New Jersey, 530 U.S. 466 (2000): Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
Blakely v. Washington, 542 U.S. 296 (2004): Defines “statutory maximum” as the maximum a judge may impose solely based on facts reflected in the jury verdict or admitted by the defendant.
Alleyne, 570 U.S. 99 (2013): Extends Apprendi to facts that increase mandatory minimums.
Almendarez–Torres, 523 U.S. 224 (1998): Recognizes the narrow “prior conviction” exception, allowing judges to find the fact of prior convictions.

Gregg applies this framework to hold that:

The existence of prior convictions may still fall within the Almendarez–Torres exception; but
The separate-episodes determination goes beyond that exception and must be decided by a jury under Erlinger.

B. Erlinger v. United States

Erlinger is the immediate catalyst for Gregg. Its key holding is that the ACCA “occasions inquiry” (whether prior felonies were committed on different occasions) is:

not encompassed by the prior-conviction exception, and
must therefore be resolved by a unanimous jury beyond a reasonable doubt.

Gregg extends this logic to Colorado’s “separate and distinct criminal episodes” language and uses it as the doctrinal basis for insisting on jury factfinding in the habitual phase, even under the former statutory scheme.

C. Lopez v. People and Constitutional Avoidance

Lopez plays a central role in the majority’s methodology, illustrating how a court can:

acknowledge that a statute allows unconstitutional applications; yet
preserve it by construing it more narrowly (to rely only on Blakely-compliant and exempt facts).

In Gregg, the majority uses Lopez to justify a similar approach: because there is some way to apply § 18-1.3-803 consistent with Erlinger (jury-first, judge-review), the statute is not facially invalid. The dissent, by contrast, views the majority’s use of Lopez as overreaching.

D. Double Jeopardy Cases: Monge and Porter

Monge v. California (1998) and People v. Porter (2015) are the backbone of the Court’s double jeopardy analysis:

Monge: Double jeopardy protections do not apply to noncapital sentencing proceedings, including recidivist enhancements, because they do not place the defendant in jeopardy for a separate offense.
Porter: Colorado adopts Monge’s reasoning for the state constitution and overrules earlier Colorado cases that had extended double jeopardy to habitual sentencing.

Gregg reaffirms Colorado’s adherence to this federal line and rejects the argument that Erlinger has undermined Monge.

VII. Simplifying Key Legal Concepts

1. Habitual Criminal Sentencing vs. New Crimes

A habitual criminal statute does not define a new crime. It says: if you commit a new felony and you have a certain number of prior felony convictions, your punishment for the new crime will be substantially higher. The underlying current offense remains the same; the prior convictions change the sentence, not the nature of the offense.

2. “Separate and Distinct Criminal Episodes” / “Occasions”

To qualify for habitual status, prior crimes must typically be:

separate in time,
distinct in location or victim, and
not part of one continuous criminal incident.

This is what ACCA calls “occasions different from one another” and what Colorado calls “separate and distinct criminal episodes.” It’s a factual determination about the relationship between offenses, not just whether they occurred at some point in the past.

3. Facial vs. As-Applied Unconstitutionality

Facial challenge: Argues that the statute is unconstitutional in every possible application and must be invalidated entirely.
As-applied challenge: Argues that the statute is unconstitutional as applied to a particular person or set of facts, even if it might be valid in other situations.

Gregg addresses only a facial challenge; the majority holds the statute can be constitutionally applied in at least some cases and therefore survives.

4. Constitutional Avoidance vs. Severability

Constitutional avoidance means that when a statute can reasonably be read in more than one way, courts choose the reading that avoids constitutional problems.
Severability is a remedy used after a statute (or part of it) is found unconstitutional: the court “severs” the offending provision but leaves the rest of the statute in place, if it can still function.

In Gregg, the majority leans on constitutional avoidance to save the statute by reinterpretation; the dissent would instead sever the “trial judge” language as unconstitutional.

5. Bifurcated Proceedings and Double Jeopardy

A “bifurcated” trial has two phases:

Guilt phase: Did the defendant commit the charged offense?
Sentencing (or habitual) phase: What is the defendant’s status or what is the appropriate sentence?

Because both phases are part of the same prosecution, a second phase is not considered a “second prosecution.” That is why habitual sentencing generally does not implicate double jeopardy, unless a prior capital sentencing phase has resulted in a kind of “acquittal” of death (as in Bullington).

VIII. Practical and Doctrinal Impact

A. For Pending and Transitional Cases

People v. Gregg offers a roadmap for cases where:

the underlying conduct occurred before the 2025 amendment (S.B. 25-189),
the indictment or information was filed under the pre‑2025 statute, and
habitual counts remain unresolved after Erlinger.

In such cases, under the majority’s approach:

The trial court must convene a jury (which may be a second jury if the first has been discharged) to decide the habitual counts, including whether prior convictions were separate and distinct episodes.
The trial judge must then review the jury’s findings for sufficiency of the evidence and enter a judgment accordingly.
Double jeopardy does not bar this process, even where a new jury must be empaneled.

At the same time, the 2025 legislative amendment now explicitly codifies a jury-factfinding requirement for habitual status in sentencing hearings conducted on or after June 2, 2025. For new cases, the statutory procedure and Erlinger are fully aligned.

B. For Prosecution and Defense Strategy

Prosecutors can be confident that:
- pre‑2025 habitual counts are not automatically invalid after Erlinger, and
- they may seek to empanel a new jury for habitual adjudication if the original jury was discharged without deciding those counts.
Defense counsel must:
- be prepared to litigate the factual nuances of whether prior convictions truly arise from “separate and distinct criminal episodes,” now squarely a jury question; and
- recognize that double jeopardy challenges to the empaneling of a second jury in habitual proceedings will generally fail under Gregg and Porter.

As-applied constitutional challenges might still be possible in specific circumstances (for example, if a court failed to provide a jury on issues Erlinger requires to be jury-decided), but Gregg shuts the door on facial invalidation and broad double jeopardy bars.

C. For Colorado’s Jurisprudence on Statutory Interpretation

Gregg is significant not only for its substantive holdings but also for its interpretive technique:

The majority’s robust use of constitutional avoidance—recasting a judge-centered scheme into a jury-first/judge-review framework—demonstrates a strong preference for preserving legislative enactments wherever any constitutional application is plausible.
The dissent’s response underscores an internal judicial debate over how far courts may go in “rewriting” statutes in the name of avoiding constitutional questions and preserving legislative policy choices.

Future litigants, especially in complex sentencing or procedural statutes, will likely invoke Gregg and Lopez either to argue for creative saving constructions or to resist them on separation-of-powers grounds, depending on their position.

D. Double Jeopardy Doctrine Going Forward

On double jeopardy, Gregg cements Colorado’s adherence to:

the federal view that noncapital recidivist proceedings are part of a single prosecution and do not implicate double jeopardy, and
the analysis set forth in Porter rather than the earlier, broader Quintana and Mason line.

Unless and until the U.S. Supreme Court revisits Monge and changes federal doctrine, Colorado courts are unlikely to extend double jeopardy protections to noncapital habitual proceedings.

IX. Conclusion

People v. Gregg is a pivotal decision in Colorado criminal law, marking the state’s first comprehensive response to Erlinger in the habitual criminal context and clarifying the reach of double jeopardy protections in bifurcated sentencing proceedings.

On the one hand, the majority holds that Colorado’s former habitual criminal statute, while drafted for judicial factfinding, is not facially unconstitutional after Erlinger because it can be applied through a newly articulated procedure in which a jury finds the key habitual facts and the judge then reviews those findings for sufficiency. On the other hand, the Court confirms that habitual adjudications are part of a single, noncapital sentencing proceeding that do not trigger double jeopardy, allowing trial courts to empanel a second jury when necessary.

Chief Justice Márquez’s partial dissent highlights a competing vision: one that treats the statutory text as plainly incompatible with Erlinger and relies on severability rather than creative reinterpretation to preserve the core of Colorado’s habitual scheme. Her approach mirrors the path the General Assembly has now taken by expressly reassigning habitual factfinding to juries through S.B. 25-189.

Practically, Gregg ensures continuity for habitual criminal prosecutions caught in the temporal gap between Erlinger and the 2025 statutory amendment, while doctrinally it underscores Colorado’s continued commitment to:

robust jury protections for sentence-enhancing facts under the federal Constitution, and
a restrained view of double jeopardy in the noncapital sentencing context.

Taken together, the decision and the subsequent legislative amendment realign Colorado’s habitual criminal practice with modern constitutional norms while preserving the state’s long-standing policy of enhanced punishment for repeat offenders.