Pellegrin v. People.
2023 CO 37. No. 21SC796. Multiple Sentences or Punishments—Merger of Offenses—Statutory Interpretation—Offenses and Penalties—Jury Trial Right—Factors Enhancing Sentence.
June 12, 2023
In this case, the Supreme Court considered two issues. The first was whether CRS § 18-1-408(5)(c) creates a “single distinction” test, such that an offense is included in another offense if it involves either a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability, but not if both distinctions exist. The second was whether under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, criminal defendants have a Sixth Amendment right to have a jury—not the trial court—determine whether the crime for which they were convicted included an act of domestic violence under CRS § 18-6-801(1)(a).
The Court concluded that § 18-1-408(5)(c) does not create a single distinction test. Accordingly, an offense is included in another offense under § 18-1-408(5)(c) if it differs from the offense charged only in the respect that (1) a less serious injury or risk of injury, a lesser kind of culpability, or both a less serious injury or risk of injury and a lesser kind of culpability suffice to establish its commission; and (2) no other distinctions exist. Applying that construction here, the Court further concluded that because the offenses of harassment and stalking differ in more ways than the two distinctions identified in § 18-1-408(5)(c), harassment is not an included offense of stalking under that statutory provision and therefore Pellegrin’s convictions for harassment and stalking do not merge.
Last, the Court concluded that a domestic violence finding under § 18-6-801(1)(a) does not impose a “penalty” as contemplated by Apprendi and its progeny. Accordingly, Pellegrin had no Sixth Amendment right to have a jury, instead of the trial judge, determine whether the crimes for which he was convicted included an act of domestic violence.
Accordingly, the Court rejected the portion of the opinion of the division below adopting and applying a single distinction test but otherwise affirmed the division’s judgment.