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People v. Dominguez.

2021 COA 76. No. 20CA0081. Sentencing—Two Prior Felony Rule.

May 27, 2021

Defendant pleaded guilty to felony vehicular assault. The presentence investigation report (PSR) concluded that he was ineligible for probation under the two prior felony rule because he had been convicted of multiple prior felonies, including attempted burglary in Nevada. At sentencing, the court concluded that defendant was ineligible for probation and sentenced him to two years in the custody of the department of corrections.

On appeal, defendant argued that the court erred by concluding that he was ineligible for probation because foreign felony convictions can never satisfy the enumerated offense requirement under the two prior felony rule. However, under Colorado’s two prior felony rule, a defendant convicted of a felony who has two or more prior felonies at the time of sentencing is ineligible for probation if either the current or prior felonies include a conviction for one of several enumerated disqualifying offenses, regardless of whether the convictions were obtained in Colorado. Therefore, defendant’s Nevada attempted burglary conviction is not precluded from disqualifying him.

Defendant also argued that the court erred by concluding he was ineligible for probation because the elements of criminal attempt in Nevada are broader than the elements in Colorado, so the foreign conviction cannot be counted. The conduct encompassed by Nevada’s attempt statute necessarily fell within Colorado’s attempt statute as well. Further, defendant’s counsel conceded that the Nevada burglary statute “lined up” with the Colorado statute, which alone was enough to disqualify him from probation.

The sentence was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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