People v. Gregg.

2025 CO 57. No. 24SA272. Criminal Procedure—Statutory Construction—Habitual Criminal Sentencing—Double Jeopardy Clause.

September 29, 2025

The US Supreme Court recently announced Erlinger v. United States, 602 U.S. 821 (2024), which held that defendants are entitled to have a jury resolve the Armed Career Criminal Act’s occasions inquiry. 602 U.S. at 835. The Colorado Supreme Court granted certiorari to address how Erlinger influences Colorado’s former habitual criminal sentencing scheme, CRS §§ 18-1.3-801 to -804, which instructed “the trial judge” to find the fact of such prior convictions. § 18-1.3-803(4). The court also considered whether the Double Jeopardy Clause bars a trial court from empaneling a second jury to determine a defendant’s habitual criminal status.

The court held that Colorado’s former habitual criminal sentencing statute is not facially unconstitutional and can operate within the constitutional limits set forth in Erlinger by requiring the jury to first determine whether prior convictions were based on charges arising out of separate and distinct criminal episodes. If the jury so finds, then the trial judge should review the jury’s findings for sufficiency of the evidence. The court also held that, in this case, the Double Jeopardy Clause does not bar a trial court from empaneling a second jury to determine a defendant’s habitual criminal status. Accordingly, the court made the order to show cause absolute and reinstated the habitual criminal charges so a jury can assess them.