People v. Gregg: Jury Fact‑Finding for Habitual Criminal Status and No Double Jeopardy Bar to a Second Jury

I. Introduction

In People v. Gregg, 2025 CO 57, 576 P.3d 725 (Colo. 2025), the Colorado Supreme Court confronted a pair of high‑stakes questions at the intersection of sentencing, the jury trial right, and double jeopardy:

1. How should Colorado trial courts apply the prior version of Colorado’s habitual criminal sentencing statute, § 18‑1.3‑803, in light of the U.S. Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024)?
2. Does the Double Jeopardy Clause bar a trial court from empaneling a second jury to determine a defendant’s habitual criminal status once the first jury has rendered verdicts on the substantive offenses and been discharged?

The case arises against the backdrop of the U.S. Supreme Court’s strengthening of the Apprendi/Blakely jury trial line in Erlinger, which held that any finding that prior convictions were committed on “separate occasions” for purposes of federal Armed Career Criminal Act (ACCA) enhancements must be made by a jury beyond a reasonable doubt. Colorado’s habitual criminal statute, by contrast, had—since a 1995 amendment—explicitly assigned that fact‑finding role to the trial judge.

The Colorado Supreme Court, in an original proceeding under C.A.R. 21, ultimately:

• upheld the constitutional viability of the prior version of § 18‑1.3‑803 by construing it to permit a jury‑first, judge‑review process, and
• held that the Double Jeopardy Clause does not bar empaneling a second jury to decide pending habitual criminal counts when the first jury has decided only the substantive charges.

Chief Justice Márquez, joined by Justice Hood, concurred in the double jeopardy ruling but dissented from the majority’s saving construction of the statute, arguing instead that the judge‑fact‑finder provisions are plainly unconstitutional under Erlinger and must be severed.

II. Factual and Procedural Background

Andrew Burgess Gregg was charged in Mesa County with:

• Aggravated robbery;
• Attempt to influence a public servant; and
• False reporting.

The prosecution also alleged four habitual criminal counts under § 18‑1.3‑801, asserting that Gregg had four prior felony convictions. Under Colorado’s habitual scheme, a defendant convicted of a felony who has been “three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes” is subject to dramatically enhanced penalties.

At trial, a jury convicted Gregg on the substantive charges. Pursuant to the then‑current version of § 18‑1.3‑803, the court discharged the jury and set a habitual criminal sentencing hearing, at which the statute expressly directed the trial judge to “try the issues of whether the defendant has been previously convicted as alleged.”

Before that habitual hearing occurred, however, the U.S. Supreme Court decided Erlinger. Relying on Erlinger, Gregg moved to dismiss the habitual counts, arguing:

1. The habitual sentencing statute was unconstitutional because it required judicial, not jury, fact‑finding on whether his prior convictions arose from “separate and distinct criminal episodes.”
2. Even if the court could constitutionally convene a jury for those findings, empaneling a new jury after discharge of the trial jury would violate the Double Jeopardy Clause.

The trial court granted the motion to dismiss the habitual counts. Without deciding the constitutional validity of the statute under Erlinger, it ruled that jeopardy had attached to the habitual counts and that a second jury could not constitutionally be empaneled to decide them.

The People sought extraordinary relief under C.A.R. 21. The Colorado Supreme Court issued an order to show cause and, recognizing the case as one of first impression with broad public importance, took up the matter.

III. Summary of the Court’s Decision

The Court’s holdings can be distilled into two core rulings:

1. Constitutionality and Application of the Prior Habitual Statute After Erlinger
   The Court held that the prior version of § 18‑1.3‑803 is not facially unconstitutional after Erlinger. It can be constitutionally applied in cases arising before the 2025 amendment by using a two‑step procedure:
   1. A jury first determines, unanimously and beyond a reasonable doubt, whether the prior convictions were “upon charges separately brought and tried, and arising out of separate and distinct criminal episodes.”
   2. The trial judge then reviews the jury’s findings for sufficiency of the evidence and, if sufficient, “determines” that the defendant “has been previously convicted as alleged” within the meaning of § 18‑1.3‑803(4).
   This approach, the Court reasoned, satisfies Erlinger while giving effect to the statutory command that the judge “shall determine” habitual status.
2. Double Jeopardy and a Second Jury on Habitual Counts
   The Court further held that the Double Jeopardy Clauses of the United States and Colorado Constitutions do not apply to habitual criminal adjudications, which are part of a single, bifurcated sentencing proceeding and do not constitute a separate “offense.” Following Monge v. California and the Court’s own decision in People v. Porter, the Court reaffirmed that double jeopardy protections are limited to successive prosecutions or multiple punishments for the same offense, and do not extend to non‑capital sentencing enhancements such as habitual criminal determinations. Hence, empaneling a second jury to decide Gregg’s habitual counts, which had never been tried to a jury, does not violate double jeopardy.

On that basis, the Court made the rule to show cause absolute and reinstated Gregg’s habitual criminal charges so that a jury could assess them. The opinion significantly clarifies how Colorado courts must navigate habitual criminal sentencing in the wake of Erlinger, especially for cases that arose before the 2025 legislative amendment (S.B. 25‑189) that now expressly requires jury fact‑finding.

IV. Analysis

A. Statutory and Doctrinal Framework

1. Colorado’s Habitual Criminal Scheme

Sections 18‑1.3‑801 to ‑804 set out Colorado’s habitual criminal sentencing scheme. It does not establish a separate substantive crime; instead, it provides sentence enhancements for repeat offenders. As the Court reiterated (quoting Campbell v. People), the scheme:

“does not establish a substantive offense but instead provides for increased penalties for repeat offenders based on a defendant’s previous convictions.”

A defendant qualifies as a habitual offender when:

• He is convicted of a felony, and
• He has been “three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes.” § 18‑1.3‑801(2)(a)(I).

The procedural mechanism for adjudicating those prior convictions was contained in § 18‑1.3‑803 (pre‑2025 version), which created a bifurcated process:

• The jury decides guilt on the substantive offense; and
• If guilty, the court holds a separate sentencing hearing to determine habitual status.

Crucially, § 18‑1.3‑803(4)(b) stated that after a guilty verdict:

“the trial judge … shall proceed to try the issues of whether the defendant has been previously convicted as alleged.”

The statute, as everyone in Gregg agreed, required judge fact‑finding on whether the prior convictions were separate and distinct criminal episodes.

2. The Apprendi/Blakely Line and Erlinger

Apprendi v. New Jersey (2000) held that, except for the fact of a prior conviction, any fact that increases the penalty beyond the statutory maximum must be found by a jury beyond a reasonable doubt. Blakely v. Washington (2004) clarified that “statutory maximum” means the maximum sentence a judge may impose based solely on the jury’s verdict (or the defendant’s admissions).

Alleyne v. United States (2013) extended this jury requirement to facts that increase mandatory minimums, but it, like Apprendi, recognized a “narrow” exception for the fact of a prior conviction, rooted in Almendarez‑Torres v. United States (1998).

Erlinger v. United States (2024) applied these principles to the ACCA’s “occasions clause,” under which a defendant faces a mandatory minimum if he has three prior convictions for violent felonies or serious drug offenses “committed on occasions different from one another.” The Court held:

• The “occasions” inquiry is more than the mere existence of prior convictions; it requires a factual determination about the relationship between those convictions.
• Therefore, it falls outside the prior‑conviction exception, and a defendant is “entitled to have a jury resolve ACCA’s occasions inquiry unanimously and beyond a reasonable doubt.”

Colorado’s habitual criminal statute employs functionally similar language—“separate and distinct criminal episodes.” The majority and dissent both accept that Erlinger applies to this inquiry.

3. Colorado’s Sentencing Fact‑Finding Case Law: Lopez

The leading Colorado case on sentencing fact‑finding is Lopez v. People, 113 P.3d 713 (Colo. 2005), which dealt with § 18‑1.3‑401(6), the “extraordinary aggravating circumstances” statute. That statute directs the court to impose a sentence above the presumptive range if it finds extraordinary aggravating circumstances based on evidence in the sentencing record.

After Apprendi and Blakely, Lopez held:

• The statute was not facially unconstitutional despite permitting judicial findings;
• It remained constitutional so long as aggravating facts were either:
  • Blakely‑compliant (admitted by the defendant; found by a jury; or found by a judge with the defendant’s consent to judicial fact‑finding), or
  • Blakely‑exempt (the fact of a prior conviction).
• A sentencing judge could look to facts already determined in a constitutionally sound manner (e.g., jury findings), thereby “narrowing” the statute to avoid unconstitutional applications.

Lopez is central to the majority’s approach in Gregg, which treats it as a model for salvaging a sentencing statute that otherwise authorizes unconstitutional judicial fact‑finding.

4. Double Jeopardy and Habitual Sentencing: Federal and Colorado Law

Double jeopardy doctrine, under the U.S. and Colorado Constitutions, prohibits:

• Successive prosecutions for the same offense after acquittal or conviction; and
• Multiple punishments for the same offense.

Historically, some decisions suggested that certain sentencing determinations could trigger double jeopardy protections where the sentencing phase had the “hallmarks of a trial,” as in Bullington v. Missouri. Colorado’s own Quintana once extended Bullington to habitual criminal proceedings.

However, in Monge v. California (1998), the U.S. Supreme Court limited Bullington to capital sentencing proceedings, holding that double jeopardy does not bar retrial on prior‑conviction allegations in noncapital sentencing contexts because such proceedings do not place a defendant in jeopardy for an “offense.” Colorado followed suit in People v. Porter, 2015 CO 34, and overruled Quintana, holding that under the Colorado Constitution, double jeopardy does not apply to noncapital sentencing.

Colorado has long characterized habitual criminal adjudications as:

• A determination of status, not a new crime (People ex rel. Faulk v. District Court);
• One component of a single, bifurcated proceeding, rather than a separate prosecution (People v. Hampton).

These principles undergird the majority’s rejection of Gregg’s double jeopardy arguments.

B. Issue One: Reconciling the Former Habitual Statute with Erlinger

1. Facial Unconstitutionality and Constitutional Avoidance

A statute is facially unconstitutional when it is unconstitutional “in all its applications.” Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010). Colorado courts apply a strong presumption of constitutionality and an interpretive directive: if a statute is capable of multiple constructions, one of which is constitutional, courts must adopt the constitutional construction (see Lopez; People v. Schoondermark).

The core interpretive question in Gregg is whether, after Erlinger, the pre‑2025 version of § 18‑1.3‑803 is:

• Facially invalid because it requires unconstitutional judge fact‑finding, or
• Capable of a saving construction that allows constitutionally compliant jury fact‑finding.

2. The Majority’s Construction: Jury First, Judge Second

The majority accepts several premises:

• Erlinger applies to Colorado’s “separate and distinct criminal episodes” requirement.
• A jury must find beyond a reasonable doubt that the prior convictions arose from separate and distinct criminal episodes; that determination is more than the “fact of a prior conviction.”
• The pre‑2025 statute expressly directed that the trial judge “determine whether the defendant has been previously convicted as alleged.”

But the majority emphasizes that § 18‑1.3‑803:

• Does not explicitly forbid a jury from making any factual findings on habitual status;
• Does not say that the judge’s fact‑finding must be independent of any jury determination; and
• Can be read to permit the judge’s “determination” to be a review of jury findings for sufficiency of the evidence.

Relying on Lopez, the Court adopts the following procedure for cases governed by the pre‑2025 statute:

1. Jury Phase (Habitual Component):
   • The jury decides, unanimously and beyond a reasonable doubt, whether the defendant has the qualifying prior felony convictions and whether those convictions were “upon charges separately brought and tried, and arising out of separate and distinct criminal episodes.”
2. Judicial Review Phase:
   • The trial judge reviews the jury’s findings under the sufficiency of the evidence standard, asking whether a reasonable juror could find each material element of the habitual allegation beyond a reasonable doubt (citing People v. LaRosa and People v. Bennett).
   • If sufficient, the judge “determines” that the defendant has been previously convicted as alleged, thereby satisfying the statutory command that the judge make the habitual finding.
   • If the jury does not find the habitual allegations proved, the court must acquit on those counts.

Because this procedure:

• Respects Erlinger by assigning the key factual determinations to the jury, and
• Respects the statute by giving the judge a determinative role via sufficiency review,

the majority concludes that the statute is not facially unconstitutional. In other words, there exists at least one constitutional application, so facial invalidation is improper.

3. The Dissent’s Counter‑View: Plain Unconstitutionality and Severance

Chief Justice Márquez, joined by Justice Hood, agrees that Erlinger requires a jury determination on the separate‑episodes element and that courts may empanel a second jury for that purpose without violating double jeopardy. They part ways with the majority on how to treat the statutory text.

The dissent’s core points are:

1. Plain Text and Legislative History
   The prior statute is not “silent” on the identity of the fact‑finder; it repeatedly assigns that role to the “trial judge” (§ 18‑1.3‑803(4)(b), (5)(b), (6)). In 1995, the General Assembly deliberately amended the habitual statute to replace the jury as fact‑finder with the trial judge. Under standard canons (e.g., McCullough), such an amendment evidences an intent to change the law.
2. Conflict with Erlinger
   Because the statute requires the judge to determine whether the prior convictions were separately brought, tried, and arose from distinct episodes, and because Erlinger holds that this determination must be made by a jury, the statutory scheme “plainly” violates the U.S. Constitution.
3. Lopez Is Not a Template Here
   Lopez involved a statute that permitted judicial reliance on facts in the sentencing record. The Court saved it by restricting judges to using facts that had already been validly found (by a jury, admission, or consent). In contrast:
   • The habitual statute mandates judicial fact‑finding of specific elements; and
   • The majority’s “fix” does not merely narrow the statute’s operation—it effectively rewrites it, creating a new jury fact‑finding process followed by sufficiency review.
4. Limits of Constitutional Avoidance
   The dissent invokes the principle that the canon of constitutional avoidance cannot justify “disingenuous evasion” of statutory text (United States v. Locke): courts may not add or subtract words under the guise of interpretation. Here, the majority’s reading is, in the dissent’s view, not a plausible textual construction, but a substantive rewrite.
5. Appropriate Remedy: Severance
   Under § 2‑4‑204 (severability), the unconstitutional references to “trial judge” as fact‑finder should be struck from § 18‑1.3‑803. The remaining scheme—notice, burden of proof, separate hearing, etc.—remains intact and administrable. Erlinger and the Colorado Constitution then “fill the gap” by requiring that a jury serve as fact‑finder on habitual elements.
6. Legislative Response Confirms Intent
   The 2025 amendment (S.B. 25‑189), enacted expressly in response to Erlinger, replaces “judge” with “jury” throughout § 18‑1.3‑803 and explicitly requires jury fact‑finding. Legislative debates in 2025 show that the sponsors understood the old statute to be unconstitutional as written and intended to update Colorado law to comply with Erlinger.

In short, the dissent would find the pre‑2025 “trial judge” language unconstitutional, sever it, and allow the Constitution and Erlinger to supply the requirement that a jury make the key findings— without reimagining the judge’s role as a sufficiency‑of‑the‑evidence reviewer.

4. Evaluating the Competing Approaches

Practically, both the majority and dissent envision that, for pre‑2025 cases:

• A jury will decide whether the prior convictions meet the habitual criteria, and
• The judge will apply ordinary legal standards (e.g., sufficiency of the evidence) before entering judgment and imposing a sentence.

The real difference lies in:

• Methodology: Is the statute saved by aggressive constitutional avoidance (majority), or is part of it struck and then reconstructed by severance and constitutional overlay (dissent)?
• Separation of Powers / Respect for Legislative Drafting: The dissent is more protective of the legislature’s textual choices, wary of judicial rewriting; the majority is more willing to mold statutory procedure to preserve a longstanding sentencing scheme.

For lawyers and judges, this methodological divide matters beyond this case: it signals how readily Colorado courts may “reinterpret” sentencing statutes in response to evolving constitutional doctrine. But in terms of immediate practice, both opinions converge on the key operational outcome: for habitual enhancements, the jury must decide whether prior convictions arose from separate, distinct criminal episodes.

C. Issue Two: Double Jeopardy and a Second Jury

1. Double Jeopardy Basics

The Double Jeopardy Clauses (U.S. Const. amend. V; Colo. Const. art. II, § 18) 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.

To trigger double jeopardy, there must be:

• Jeopardy attaching in a first proceeding (typically when a jury is sworn or the first witness is sworn in a bench trial); and
• A second proceeding involving the same “offense.”

2. Habitual Proceedings as Status, Not Offense

The majority, following longstanding precedent, emphasizes:

• Habitual criminal adjudication “does not involve a new crime or a substantive offense” but rather “describes a status rather than a substantive offense” (citing Hampton and Faulk).
• A trial with habitual counts is “bifurcated and proceeds in two phases,” but those phases together form a single proceeding, culminating in a single judgment.

Because habitual adjudication is part of one ongoing case, not a separate prosecution, the Court reasons, it does not create the kind of “second jeopardy” that the Double Jeopardy Clause forbids.

3. Monge, Porter, and the Scope of Double Jeopardy

In Monge v. California, 524 U.S. 721 (1998), the U.S. Supreme Court held that double jeopardy does not bar retrial of prior‑conviction allegations in noncapital sentencing proceedings. The Court distinguished Bullington v. Missouri, 451 U.S. 430 (1981), which had applied double jeopardy to capital penalty phases that strongly resembled a full trial. Monge reaffirmed that sentencing enhancements for recidivism do not put the defendant in jeopardy for an “offense.”

In People v. Porter, 2015 CO 34, the Colorado Supreme Court aligned Colorado’s double jeopardy jurisprudence with Monge, expressly overruling its earlier decision in People v. Quintana, which had extended Bullington to habitual proceedings. Porter held that “Colorado double jeopardy law does not apply to noncapital sentencing proceedings.”

In Gregg, the defendant argued that Erlinger had either undermined or implicitly abrogated Monge, and invited the Court to reconsider Porter. The majority rejected that invitation for two reasons:

• Erlinger’s silence on Monge: Erlinger did not conduct the kind of stare decisis analysis associated with overruling precedent (as described in Ramos v. Louisiana); indeed, it scarcely mentioned Monge, and then only in a different context (the prior‑conviction exception).
• Continued vitality of Monge: The Supreme Court has repeatedly affirmed that recidivism‑based enhancements are sentencing factors, not new offenses, and therefore fall outside double jeopardy.

The Court thus reaffirmed Porter and held that double jeopardy does not apply to Colorado’s habitual criminal proceedings.

4. Distinguishing Mason and Addressing the Second Jury

The trial court had relied, in part, on People v. Mason, 643 P.2d 745 (Colo. 1982), in concluding that jeopardy attached to the habitual counts when the first jury was discharged. In Mason, the then‑existing statute required the same jury that decided the substantive offense to decide the habitual counts. The trial court in Mason violated that statute by making habitual findings itself after discharging the jury, and this Court barred retrial on the habitual counts.

The current Court explains that Mason’s double jeopardy analysis is no longer sound in light of Monge and Porter. More fundamentally, in Gregg:

• The first jury never heard or decided the habitual counts; it only decided the substantive offenses.
• The habitual counts remained pending as part of the same criminal case.
• Empaneling a second jury to resolve those still‑pending counts does not amount to a “second prosecution” for the same offense.

Accordingly, the Court holds that “here, the Double Jeopardy Clause does not bar a trial court from empaneling a second jury to determine a defendant’s habitual criminal status,” and applies this directly:

“Those habitual criminal counts remain pending, meaning they are part of a single, ongoing proceeding. Thus, there is no double jeopardy issue with empaneling a second jury to decide Gregg’s habitual criminal counts.”

Chief Justice Márquez explicitly agrees with this double jeopardy result.

D. Practical Operation after Gregg

1. For Cases Arising Before S.B. 25‑189 (Pre‑June 2, 2025 Statute)

For offenses committed while the prior version of § 18‑1.3‑803 was in effect, Gregg provides guidance:

1. Substantive Trial:
   • The jury tries and decides guilt on the substantive felony charges.
2. Habitual Phase (Same or New Jury):
   • If the original jury is still available, it may be used; if it has been discharged, the court may empanel a second jury without violating double jeopardy.
   • That jury must decide:
     • Whether the defendant is the person who suffered the alleged prior felony convictions;
     • Whether those convictions were “separately brought and tried” and “arising out of separate and distinct criminal episodes,” as required by § 18‑1.3‑801(2)(a)(I).
   • The prosecution bears the burden of proof beyond a reasonable doubt.
3. Judicial Determination and Sentencing:
   • The judge reviews the jury’s findings using the sufficiency‑of‑the‑evidence standard.
   • If the evidence is sufficient to support the jury’s habitual findings, the judge “determines” the defendant has been previously convicted as alleged and imposes the enhanced habitual sentence.
   • If the jury fails to find the habitual elements proved, the defendant is acquitted on the habitual counts.

This framework directly addresses the many habitual cases that were stalled after Erlinger but arose before S.B. 25‑189’s effective date.

2. For Cases Governed by the Amended Statute (Post‑June 2, 2025)

S.B. 25‑189, effective June 2, 2025, amends § 18‑1.3‑803 to:

• Replace “trial judge” with “jury” as the fact‑finder on habitual allegations; and
• Expressly require a jury to decide whether the defendant suffered the prior convictions, whether they were separately brought and tried, and whether they arose out of separate and distinct criminal episodes.

The amended statute also allows the court to empanel a new jury to decide habitual status “when necessary and as constitutionally permissible.” Gregg definitively answers the double jeopardy portion of that inquiry: such a new jury is constitutionally permissible.

Because S.B. 25‑189 applies prospectively to sentencing hearings held on or after its effective date, Gregg primarily governs:

• Pre‑amendment cases still in the pipeline; and
• How courts should think about constitutional avoidance and severability in response to major U.S. Supreme Court decisions affecting sentencing.

V. Complex Concepts Simplified

1. “Facial” vs. “As‑Applied” Unconstitutionality

• A facial challenge claims the statute is unconstitutional in all of its potential applications.
• An as‑applied challenge concedes the statute may be valid in some contexts but unconstitutional in the specific way it is being applied.

In Gregg, the majority rejects facial invalidation of § 18‑1.3‑803 because it finds a way the statute can operate constitutionally (with a jury‑first, judge‑review structure), even if some other applications would be unconstitutional.

2. The “Prior Conviction” Exception

Under Apprendi, facts that increase a maximum penalty generally must be found by a jury, except for the “fact of a prior conviction”—a controversial but still operative exception (from Almendarez‑Torres).

Erlinger clarifies that this exception is narrow: it covers the fact that a defendant suffered prior convictions, but not broader questions about the relationship among those convictions (e.g., whether they were committed on separate occasions). Those broader determinations belong to the jury.

3. “Separate and Distinct Criminal Episodes” / “Occasions” Inquiry

Both ACCA and Colorado’s habitual statute require that prior convictions be temporally and factually distinct from each other. Courts often look to:

• Dates and locations of the prior offenses;
• Whether the crimes were interrupted by intervening events;
• Whether there were distinct victims or distinct criminal objectives.

After Erlinger and Gregg, determining whether prior offenses are sufficiently separate is a jury question, not a judicial one.

4. Bifurcated Trials and Habitual Proceedings

A “bifurcated” proceeding has two phases:

1. Guilt Phase: The jury decides whether the defendant committed the current charged offense.
2. Habitual (Sentencing) Phase: If guilty, the court conducts a separate hearing to determine whether the defendant qualifies for habitual enhancement.

Even though there are two phases, Colorado law treats them as components of a single criminal case, which is key to the Court’s double jeopardy analysis.

5. Sufficiency of the Evidence Review

When a judge reviews a jury’s verdict for “sufficiency of the evidence,” the question is:

Could any rational juror, viewing the evidence in the light most favorable to the prosecution, have found each essential element of the offense proved beyond a reasonable doubt?

This is distinct from making new factual findings. The majority leverages this distinction to say that, even under the old statute, the judge’s “determination” can constitutionally be implemented as this sort of legal review, once the jury has done the actual fact‑finding.

6. Constitutional Avoidance vs. Severability

• Constitutional Avoidance: When a statute is reasonably susceptible to more than one interpretation, courts should adopt the one that avoids serious constitutional problems. This is the Lopez/majority approach.
• Severability: When part of a statute is unconstitutional but the remainder can operate independently and in line with legislative intent, the invalid portion is “severed” and the rest remains in force. This is the dissent’s approach to the “trial judge” language.

The tension in Gregg is about the limits of avoidance: at what point does “interpretation” become “rewriting,” thus requiring severance instead.

VI. Impact and Significance

1. Immediate Impact on Colorado Habitual Cases

For ongoing cases where:

• The offenses occurred before June 2, 2025;
• The habitual counts were charged under the pre‑2025 statute; and
• Proceedings were delayed or derailed by Erlinger,

Gregg provides a clear path forward:

• Trial courts must submit the “separate and distinct criminal episodes” question to a jury; and
• Courts may empanel a new jury to decide habitual counts even after discharging the jury that decided the substantive offenses.

This likely reactivates a substantial number of habitual cases that had been in limbo.

2. Clarifying the Reach of Erlinger in State Law

Gregg confirms that Erlinger is not confined to ACCA; it applies equally to state recidivist statutes whenever they require findings about the separation of prior offenses. This cements a doctrinal rule:

Any “separate episodes” or “different occasions” requirement used to trigger a sentencing enhancement must be decided by a jury.

3. Double Jeopardy Doctrine in Colorado

The decision reaffirms and strengthens Porter’s holding that double jeopardy protections do not extend to noncapital sentencing proceedings in Colorado. It clarifies that:

• Habitual adjudication is part of a single, ongoing criminal case;
• Resentencing or re‑litigation of habitual status (within that same case) does not constitute a second prosecution for an offense; and
• Courts are free to empanel new juries at the habitual phase when necessary, without double jeopardy concerns, so long as the habitual counts have not previously been finally resolved by a jury.

4. Methodological Signal: How Colorado Will Respond to Future U.S. Supreme Court Shifts

On the methodological plane, the majority’s reliance on Lopez and aggressive constitutional avoidance shows a strong judicial preference for:

• Preserving existing sentencing schemes where possible;
• Minimizing the need to declare statutes unconstitutional; and
• Adapting procedural details by interpretation rather than striking and leaving gaps for the legislature (or constitutional text) to fill.

The dissent, by contrast, underscores concern for:

• Faithful adherence to statutory text, particularly where the legislature has clearly spoken on the identity of the fact‑finder;
• Respecting the separation of powers by avoiding judicial rewriting; and
• Using severability to reconcile statutory schemes with new constitutional constraints.

These differing approaches will likely influence how future Colorado courts harmonize older statutes with evolving federal constitutional doctrine.

5. Defendant and Prosecution Strategy

For defendants:

• Erlinger and Gregg provide a more robust role for the jury at sentencing, especially in habitual cases: defendants can contest whether prior offenses are sufficiently distinct to justify enhancement.
• Double jeopardy arguments against second juries in habitual phases are now foreclosed in Colorado.

For prosecutors:

• Habitual proofs now require more careful development of the evidence around the circumstances of prior offenses, not just certified convictions.
• If a trial jury is discharged before habitual counts are decided, prosecutors can confidently request a new jury without double jeopardy concerns.

VII. Conclusion

People v. Gregg is a pivotal decision in Colorado’s post‑Erlinger landscape. It establishes that:

• Colorado’s former habitual criminal sentencing statute can be applied constitutionally by requiring a jury to decide whether prior convictions arise from “separate and distinct criminal episodes,” with the judge then reviewing those findings for sufficiency of the evidence.
• Habitual criminal adjudication is a sentencing status determination within a single ongoing proceeding, not a separate offense, and therefore lies outside the protective scope of the Double Jeopardy Clause in noncapital cases.

While the Court divides over how best to harmonize the old statute with Erlinger—through interpretive reconstruction (majority) or severance (dissent)—both paths converge on a crucial substantive point:

In Colorado, any fact about prior convictions that increases punishment beyond the baseline— including whether those convictions arose from separate criminal episodes—must be decided by a jury.

Together with the legislature’s enactment of S.B. 25‑189, Gregg completes Colorado’s transition to a fully jury‑based model of habitual criminal fact‑finding while preserving the state’s longstanding habitual offender regime and clarifying that courts remain free to finish habitual adjudications with new juries when necessary, unencumbered by double jeopardy constraints.