Jury Determines “Separate and Distinct Criminal Episodes” Under Pre-2025 Habitual Scheme; Trial Judge Performs Sufficiency Review; Second Jury Permitted Without Double Jeopardy

Introduction

In re People v. Gregg, Andrew, 2025 CO 57, is a Colorado Supreme Court original proceeding under C.A.R. 21 arising from a Mesa County criminal case in which the defendant, Andrew Burgess Gregg, was convicted by a jury of robbery, attempt to influence a public servant, and false reporting. The prosecution also charged four habitual criminal counts under Colorado’s habitual criminal scheme, alleging four prior felonies.

After the jury returned guilty verdicts on the substantive offenses, the trial court discharged the jury and set a habitual criminal hearing. Before that hearing occurred, the U.S. Supreme Court decided Erlinger v. United States, 602 U.S. 821 (2024), holding that a jury must decide beyond a reasonable doubt whether prior offenses were committed on different “occasions” for purposes of ACCA sentencing enhancement.

Gregg moved to dismiss the habitual counts, arguing (1) Colorado’s then-operative procedure in § 18-1.3-803, C.R.S. (2024) required a judge (not a jury) to decide the “separate and distinct criminal episodes” predicate in § 18-1.3-801(2)(a)(I), and thus became unconstitutional after Erlinger; and (2) if a jury is now required, a second jury cannot be empaneled after the first jury has been discharged without violating double jeopardy. The trial court dismissed the habitual counts on double jeopardy grounds without deciding the statute’s constitutionality.

The Colorado Supreme Court granted C.A.R. 21 review to resolve (i) how to apply the pre-amendment habitual sentencing statute after Erlinger, and (ii) whether double jeopardy bars a second jury to decide habitual status after the merits jury has been discharged.

Summary of the Opinion

The court (Boatright, J.) made the rule to show cause absolute and reinstated the habitual criminal counts. It held:

1. Compatibility holding (pre-2025 cases): Colorado’s former habitual criminal sentencing statute is not facially unconstitutional after Erlinger. For cases governed by the pre-2025 version, a jury must first determine whether prior convictions arose out of “separate and distinct criminal episodes,” and then the trial judge must review the jury’s findings for sufficiency of the evidence before entering judgment on habitual counts.
2. Double jeopardy holding: The Double Jeopardy Clause does not bar a trial court from empaneling a second jury to determine habitual criminal status where the habitual phase was not completed and the habitual counts remain pending as part of the same criminal proceeding.

Chief Justice Márquez concurred on double jeopardy but dissented on the statute question, arguing the court effectively rewrote § 18-1.3-803; in her view, the judge-factfinding language was unconstitutional under Erlinger and should be severed, leaving a jury requirement to “fill the gap.”

Analysis

Precedents Cited

1. C.A.R. 21 and Original Jurisdiction

• People v. Justice, 2023 CO 9: Cited for the proposition that C.A.R. 21 jurisdiction is discretionary and extraordinary. The court used it to justify taking the case because the questions implicate statewide sentencing administration post-Erlinger.
• People v. Cortes-Gonzalez, 2022 CO 14; People v. Walthour, 2023 CO 55; People v. Kilgore, 2020 CO 6: Cited to frame when C.A.R. 21 relief is appropriate, especially for issues of significant public importance and first impression.

2. The Jury-Trial Right and Sentence-Enhancing Facts

• Erlinger v. United States, 602 U.S. 821 (2024): The decision’s centerpiece. The Colorado Supreme Court treated Erlinger as controlling on the principle that the “separate occasions” (or analogous “separate episodes”) inquiry is not merely the “fact of a prior conviction” and thus must be found by a jury beyond a reasonable doubt.
• Apprendi v. New Jersey, 530 U.S. 466 (2000): Quoted in Erlinger for the broad rule that “any fact” increasing the penalty range must be submitted to a jury, subject to the narrow prior-conviction exception.
• Alleyne v. United States, 570 U.S. 99 (2013): Cited via Erlinger for the continued recognition of a “narrow exception” permitting judges to find only “the fact of a prior conviction.”
• Mathis v. United States, 579 U.S. 500 (2016): Quoted in Erlinger and used here to illustrate the line between identifying the elements of a prior conviction versus making additional historical-fact findings about how/when/why prior crimes occurred.
• Lopez v. People, 113 P.3d 713 (Colo. 2005): The majority’s key Colorado analogue for saving a sentencing statute from facial invalidity by adopting a constitutionally compliant application. The court relied on Lopez to support an approach where a jury finds constitutionally required facts and the judge performs a constrained post-verdict role (here, sufficiency review).

3. Facial Unconstitutionality and Constitutional Avoidance

• Dallman v. Ritter, 225 P.3d 610 (Colo. 2010): Cited for the definition of facial unconstitutionality (“unconstitutional in all its applications”). The court used this to reject Gregg’s facial challenge by identifying at least one constitutionally permissible method of operation under the pre-2025 statute.
• McBride v. People, 2022 CO 30; People v. Holmes, 959 P.2d 406 (Colo. 1998); People v. Schoondermark, 699 P.2d 411 (Colo. 1985): These cases supplied the interpretive rule that courts should construe statutes to avoid constitutional conflicts when a constitutional construction is reasonably available.

4. Sufficiency Review in Colorado

• People v. LaRosa, 2013 CO 2, and People v. Bennett, 515 P.2d 466 (Colo. 1973): Cited to define “sufficiency of the evidence” review—whether a reasonable mind could conclude each material element was proven beyond a reasonable doubt. The court imported this familiar standard into the habitual context as the judge’s post-jury function.

5. Double Jeopardy and Recidivist/Habitual Proceedings

• Brown v. Ohio, 432 U.S. 161 (1977), and People v. Leske, 957 P.2d 1030 (Colo. 1998): Cited for core double jeopardy protections (successive prosecutions and multiple punishments for the same offense).
• Oyler v. Boles, 368 U.S. 448 (1962): Cited for the principle that habitual/recidivist determination is independent of guilt on the substantive offense.
• Bullington v. Missouri, 451 U.S. 430 (1981): Discussed as the origin of applying trial-like double jeopardy principles to certain sentencing proceedings—ultimately limited by later U.S. Supreme Court precedent.
• People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled by People v. Porter, 2015 CO 34: Quintana extended Bullington logic to habitual proceedings under Colorado law, but Porter later rejected that approach in light of U.S. Supreme Court doctrine.
• People v. Mason, 643 P.2d 745 (Colo. 1982): The trial court and Gregg relied heavily on Mason (which found double jeopardy barred retrial on habitual counts after the merits jury was discharged and the judge improperly decided habituality). The Supreme Court here effectively confined Mason to a pre-Monge/Porter
• Monge v. California, 524 U.S. 721 (1998): The decisive federal authority reaffirmed by Colorado. It limited Bullington to capital sentencing and held that double jeopardy does not preclude retrial of a prior-conviction allegation in a noncapital sentencing context.
• People v. Porter, 2015 CO 34: Colorado’s adoption of Monge. The court leaned on Porter to conclude that Colorado double jeopardy law does not apply to noncapital sentencing proceedings.
• Graham v. West Virginia, 224 U.S. 616 (1912); Parke v. Raley, 506 U.S. 20 (1992); Almendarez-Torres v. United States, 523 U.S. 224 (1998): Cited to show the long-standing view that recidivism is generally a sentencing consideration (a “status” or sentencing factor) rather than a separate offense for double jeopardy purposes.
• People v. Hampton, 876 P.2d 1236 (Colo. 1994), and People ex rel. Faulk v. Dist. Ct., 673 P.2d 998 (Colo. 1983): Used to characterize habitual criminality as a “status” and habitual adjudication as one component of a bifurcated single case, supporting the conclusion that empaneling a later jury is not a “successive prosecution.”
• Ramos v. Louisiana, 590 U.S. 83 (2020), and Franchise Tax Bd. v. Hyatt, 587 U.S. 230 (2019): Cited for the proposition that when the U.S. Supreme Court overrules precedent it typically says so and undertakes a recognizable stare decisis analysis. The Colorado Supreme Court used these cases to reject the argument that Erlinger silently abrogated Monge.

Legal Reasoning

1. Reconciling § 18-1.3-803 (2024) with Erlinger without Facial Invalidation

The statutory tension was direct: § 18-1.3-801(2)(a)(I) required proof that priors were “separately brought and tried” and arose from “separate and distinct criminal episodes,” while the pre-amendment procedural statute § 18-1.3-803 repeatedly assigned determination of habituality to “the trial judge.”

The court accepted that Erlinger requires a jury finding on the “separate episodes” question, because that inquiry goes beyond the narrow “fact of a prior conviction” exception recognized in Apprendi v. New Jersey and discussed in Alleyne v. United States. The court then asked whether the Colorado scheme was nonetheless capable of constitutional application (thus defeating a facial challenge under Dallman v. Ritter).

Drawing on Lopez v. People and the duty to adopt a constitutional construction where possible (People v. Schoondermark), the court crafted a hybrid procedure:

• Step 1 (jury’s role): The jury must determine whether the priors arose out of “separate and distinct criminal episodes” (and, by implication, the predicate facts needed for habitual status beyond the bare existence of convictions).
• Step 2 (judge’s role): If the jury finds habitual predicates proven, the trial judge reviews those findings for sufficiency of the evidence under the standard described in People v. LaRosa and People v. Bennett, and then enters judgment consistent with § 18-1.3-803(4)(b)’s direction that the judge “determine” whether the defendant “has been previously convicted as alleged.”

This approach preserves a post-verdict judicial function while locating constitutionally required factfinding in the jury, allowing the court to conclude the statute is not facially unconstitutional for pre-amendment cases.

2. Double Jeopardy: Habitual Adjudication as Part of a Single, Bifurcated Proceeding

The double jeopardy question turned on whether convening a second jury for habitual findings amounts to a prohibited “successive prosecution” after jeopardy has attached and concluded.

The court reaffirmed the framework of Monge v. California and People v. Porter: in noncapital sentencing proceedings, double jeopardy protections do not bar retrial of recidivism allegations because the defendant is not being placed in jeopardy for a separate “offense.”

Importantly, the court rejected Gregg’s contention that Erlinger implicitly destabilized Monge. The court read Erlinger’s double-jeopardy discussion as clarifying the distinct roles of the Double Jeopardy Clause and the jury-trial right—without altering the established noncapital sentencing rule.

Applying Colorado cases describing habitual criminality as “status” (People ex rel. Faulk v. Dist. Ct.) and habitual adjudication as one component of a bifurcated case (People v. Hampton), the court held that Gregg’s habitual counts remained “pending” within the same prosecution; therefore, empaneling a second jury to decide them does not trigger double jeopardy.

Impact

1. Immediate procedural rule for pre-2025 habitual cases

The decision supplies a statewide operating procedure for cases governed by the former version of § 18-1.3-803 (i.e., where the charged conduct occurred before the 2025 amendments and litigation remains ongoing): the habitual “separate episodes” predicate must be decided by a jury, with the trial judge performing sufficiency review before entering a habitual judgment.

2. Validation (and limits) of post-Erlinger habitual prosecutions

By rejecting facial invalidation, the court reduces the risk that pending habitual counts in older cases will be dismissed solely because the old statute spoke in judge-centric terms. Prosecutors may seek jury determinations of “separate and distinct criminal episodes” and still obtain habitual judgments if the evidence is sufficient.

3. Second-jury practice is constitutionally permissible

The double jeopardy holding has practical significance: where the merits jury has been discharged—whether due to prior practice, scheduling, or post-Erlinger uncertainty—trial courts may convene a new jury to decide habitual status, rather than losing the enhancement entirely.

4. Relationship to legislative amendment (S.B. 25-189)

The opinion explicitly notes that the legislature amended § 18-1.3-803 via S.B. 25-189 to require a jury to determine habitual predicates and to allow a new jury “when necessary and as constitutionally permissible.” The decision matters most for the transition period: cases controlled by the pre-amendment statute but litigated after Erlinger.

5. Likely future litigation focus

• Scope of the “separate and distinct criminal episodes” fact question: What specific subsidiary facts the jury must decide (and how verdict forms should be structured) will likely be litigated, especially where records of conviction are ambiguous.
• Role of the trial judge’s “sufficiency review”: Whether this review is purely legal (as in ordinary sufficiency review) or permits any additional fact resolution may be contested in future cases.
• Managing bifurcation and juror prejudice: The need to present prior-conviction evidence while avoiding undue prejudice will continue to shape evidentiary rulings and trial sequencing.

Complex Concepts Simplified

Habitual criminal “counts” as a sentencing status, not a new crime

Colorado habitual criminal allegations increase punishment based on recidivism; they do not define a separate substantive offense. This is why the court relies on cases like People ex rel. Faulk v. Dist. Ct. and Monge v. California to treat habitual adjudication as part of sentencing rather than a second prosecution.

“Separate and distinct criminal episodes” (and why a jury must decide it)

It is not enough to prove that the defendant has prior convictions. The enhancement also depends on whether the convictions arose from distinct events (not, for example, multiple charges stemming from the same incident). Under Erlinger v. United States, that kind of event-separation inquiry involves factual determinations beyond the mere existence of convictions and therefore must be decided by a jury beyond a reasonable doubt.

The “prior conviction exception”

Under Apprendi v. New Jersey, courts generally must submit sentence-enhancing facts to a jury, but there is a narrow exception allowing a judge to find “the fact of a prior conviction.” Erlinger emphasizes that the exception does not extend to additional factual questions like whether priors occurred on different occasions/episodes.

Facial unconstitutionality

A statute is facially unconstitutional only if it cannot be constitutionally applied in any situation. Here, because the court identified a procedure that places required factfinding with the jury while retaining a judicial role, it held the pre-2025 statute was not facially invalid under Dallman v. Ritter.

Sufficiency of the evidence review

This is a legal check on whether the evidence—viewed in the light most favorable to the verdict—could allow a reasonable factfinder to find each required element beyond a reasonable doubt. The court imported this standard from People v. LaRosa (quoting People v. Bennett) to define the judge’s post-jury role.

Double jeopardy vs. the jury-trial right

Double jeopardy prevents the government from trying someone again for the same offense after acquittal (and related protections), while the jury-trial right controls who must decide certain facts (jury vs. judge) and by what standard (beyond a reasonable doubt). Erlinger treats these as “complementary protections,” and this case uses Monge v. California and People v. Porter to hold that noncapital recidivism adjudications do not trigger double jeopardy the way a second prosecution does.

Conclusion

People v. Gregg (2025 CO 57) establishes two consequential rules for Colorado’s habitual criminal practice during the post-Erlinger transition:

1. For pre-2025 habitual cases, courts must structure proceedings so that a jury determines whether prior felonies arose from “separate and distinct criminal episodes,” after which the trial judge conducts a sufficiency-of-the-evidence review before entering habitual judgment.
2. The Double Jeopardy Clause does not prevent a trial court from empaneling a second jury to decide habitual criminal status after the merits jury has been discharged, because habitual adjudication remains a noncapital sentencing component within a single, bifurcated prosecution under Monge v. California and People v. Porter.

The decision both preserves the enforceability of habitual enhancements in older cases and clarifies that post-Erlinger jury factfinding can be implemented without converting habitual adjudication into a double-jeopardy-sensitive “second trial.”