author: Justice KOURLIS

text:
    The PEOPLE of the State of Colorado, Petitioner. v. Daryl C. ZIGLAR, Respondent.
    No. 01SC193.
    Supreme Court of Colorado, En Bane.
    March 25, 2002.

      Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, CO, Attorneys for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, CO, Attorneys for Respondent.
   Justice KOURLIS

delivered the Opinion of the Court.

We granted certiorari to determine whether the court of appeals erred in remanding Daryl Ziglar's conviction as a habitual criminal on the grounds that the trial court gave an incorrect Curtis advisement during the sentencing hearing. People v. Ziglar, No. 98CA2214, slip op. at 18 (Colo.App. Dec. 14, 2000) (not selected for official publication). We now conclude that the trial court's advisement, although unnecessary, was not in error because a defendant's admissions during the sentencing phase may serve as substantive evidence of the existence of prior felonies. We therefore reverse the judgment of the court of appeals and remand this case for reinstatement of Ziglar's habitual erimi-nal status.

I.

Daryl Ziglar went to trial on charges of having stabbed his wife. After the prosecution finished its case, the judge gave Ziglar a proper advisement pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984) (Curtis advisement), concerning his right to testify. Ziglar chose not to testify. The jury ultimately convicted him of second degree assault and one count of crime of violence. Because the prosecution also charged Ziglar with habitual criminality, the judge discharged the jury and then tried Ziglar on that issue.

During the habitual criminal proceedings, the prosecution presented its evidence of pri- or convictions, With defense approval, the prosecution requested the judge to give Zig-lar a second Curtis advisement. The judge agreed and then told Ziglar:

If you testify, of course, the prosecution can cross-examine you about the issue of there being prior convictions. He can confront you with those prior convictions in this case. The big difference from the other one in the prior case in front of the jury, the jury could only consider those prior convictions as relating to your eredi-bility. In this case, they are being submitted not only to establish whether there is a credible [sic] issue if you testify and substantively by me as evidence of your being a habitual offender. That is the difference in the advisement that I'll give you. I'll go through those in greater detail once you have consulted with [counsel]. That is essentially your right. Do you have any questions about those rights before I take a recess for a moment?

Ziglar answered the question negatively. When back from recess, the judge again asked Ziglar whether he understood the rights as related by the court, to which Zig-lar answered, "Yes, Sir." The judge then covered each of the Curtis advisement's five parts one by one, receiving affirmation after each that Ziglar understood. The judge finished by stating:

And you further understand that the felony convictions, of course, that is what we are discussing today, and I would consider [them] both for the issue of eredibility as well as for the issue of whether or not you are a habitual offender?

Ziglar again indicated his understanding, and told the judge that he had decided not to testify during the sentencing phase. The judge ultimately found beyond a reasonable doubt that Ziglar had been convicted of sufficient prior felonies to qualify as a habitual offender. Ziglar received the mandatory thirty-two year sentence and appealed on numerous bases.

While rejecting the bulk of Ziglar's contentions, the court of appeals ruled that during the sentencing hearing, the trial court had "twice incorrectly informed [Ziglar] that should he testify, evidence of his prior felony convictions could be used against him both substantively and for credibility purposes." People v. Ziglar, No. 98CA2214, slip op. at 18 (Colo.App. Dec. 14, 2000). The court relied on People v. Lefebre, 981 P.2d 650 (Colo.App. 1998), in holding that the prosecution must prove the habitual eriminal charges without the aid of Ziglar's testimony during the sentencing phase except to the extent that the defendant's testimony might reflect upon his credibility. The court then remanded pursuant to People v. Blehm, 988 P.2d 779, 792 (Colo.1999) (holding proper procedure is remand to determine whether waiver was nonetheless knowing, voluntary, and intelligent after trial court's advisement fails Curtis). This appeal followed.

IL.

As explained in Curtis and its progeny, the right of a defendant to testify in his or her own defense is rooted in both the United States and the Colorado Constitutions. Curtis, 681 P.2d at 509-10. It follows that, when a defendant chooses not to testify, he or she is waiving a constitutional right, Rock v. Arkansas, 483 U.S. 44, 50-51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); such waiver is valid only when made knowingly, intelligently, and voluntarily. See Curtis, 681 P.2d at 512; People v. Deskins, 927 P.2d 368, 870 (Colo.1996).

The Curtis advisement ensures that those facing prosecution understand not only their right to take the stand, but also the consequences thereof, and that they may testify notwithstanding contrary advice from counsel. Curtis, 681 P.2d at 514. We have previously held that the Curtis advisement is not a precise litany, but must address the following five elements:

1) The right to testify exists;
2) The right is personal, and no one can prevent the defendant from testifying;
3) The defendant will be subject to cross-examination;
4) The cross-examination may reveal to the jury defendant's felony convictions, if any; and
5) Any convictions so revealed may be used to impeach the defendant's eredi-bility.

Blehm, 983 P.2d at 798 (discussing Curtis, 681 P.2d at 514). In Blehm, we referred to elements three through five as the "consequences of testifying," necessary in the advisement to ensure the waiver is undertaken knowingly and intelligently. Id.

The final three elements of the Curtis advisement derive from section 18-90-1101, 5 C.R.S. (2001) (hereinafter "witness statute"). The witness statute mandates that "all persons" may be witnesses, including those with criminal convictions. Id. It further permits the credibility of every witness to be "drawn in question," and states specifically that prior felony convictions may be used for that purpose. Id. ("[The conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness."). The 1888 statute repealed a statutory prohibition on convicts taking the witness stand. See Trackmamn v. People, 22 Colo. 88, 84, 43 P. 662, 663 (1896). 'When it decided to allow those convicted to testify, the general assembly, in essence, directed that prior convie-tions are per se relevant to the issue of credibility. Defendants taking the stand are subject to the same credibility challenges as any other witness. People v. Neal, 181 Colo. 341, 348, 509 P.2d 598, 599 (1973). In short, the witness statute permits the admissibility of prior eriminal convictions for impeachment purposes.

The Habitual Criminal Statute, sections 16-18-101 to 108, 6 C.R.S. (2001), also bears on the questions presented here. In adopting the statute, the general assembly imposed more rigid sentencing provisions for defendants who have been convicted of felonies on at least two previous occasions, Le., "habitual criminals." Id. The statute includes not only sentencing guidelines, but also procedures that guide trial courts in the habitual offender phase of the proceedings. Id. We summarize those procedures relevant here.

First, at arraignment, the defendant must admit or deny the previous convictions alleged by the prosecution. § 16-13-1088). If the defendant admits the convictions, then "no proof of such previous conviction is required"; the statute considers such an admission as conclusive proof of the felony conviction for purposes of the habitual criminal adjudication. Id. A denial (or refusal to answer) at arraignment triggers a bifurcated proceeding, the first phase being the trial on the substantive offense (hereinafter "trial phase"), the second being the habitual erimi-nal determination (hereinafter "sentencing phase"). In the trial phase, the prosecution must prove the underlying offense beyond a reasonable doubt; in the sentencing phase, the prosecution must prove the existence of prior felonies beyond a reasonable doubt. See § 16-18-108(4)(b).

Pertinent here, the statute next addresses the defendant's testimony at the trial phase and the permissible use thereof,. Should the defendant choose to testify during trial, the statute acknowledges that prosecutors may confront him or her with prior felony convictions presumably in accord with the witness statute. Unlike the witness statute, however, the habitual eriminal statute substantially restricts the use of a defendant's trial phase admissions. Because the prosecution must later prove the prior felonies at the sentencing phase, the statute directs that prior felony evidence elicited during trial is for "the sole purpose of impeachment of the defendant's credibility." § 16-18-108(b)(a). The statute makes clear that a defendant's admissions during the trial phase are not "conclusive proof" of the existence of the prior convictions, as they would be had those same admissions emerged at arraignment. See § 16-13-1088). To remove any doubt, the statute adds:

If, upon the trial of the issues upon the substantive offense charged [i.e., the trial phase), the defendant testifies in his or her own defense and, after having denied the previous conviction [at arraignment], admits that he or she has been previously convicted as alleged, the trial judge ... shall, in any sentencing hearing, consider any admissions of prior convictions elicited from the defendant in connection with his or her testimony on the substantive offense only as they affect the defendant's credibility. In any sentencing hearing, the prosecution shall be required to meet its burden of proving beyond a reasonable doubt the defendant's prior convictions by evidence independent of the defendant's testimony.

§ 16-18-108(5)(b). Hence, a judge may not use a defendant's admissions of prior felonies, elicited during the trial phase, as evidence of the existence of those felonies during the sentencing phase.

The statute's restrictions reflect the rationale this court set forth in People v. Chaves, 621 P.2d 1362 (Colo.1981). Before Chaves, courts interpreted the habitual criminal statute as relieving the prosecution of its burden to prove prior convictions if it managed to elicit an admission thereof from the defendant during trial. We held that such procedure impermissibly forced the defendant to choose between his constitutional right to testify in his own defense and his constitutional right to have the state prove the elements of habitual criminality. Id. at 1366-67. The result was a restriction upon the use during the sentencing phase of a defendant's trial phase admissions. In 1981, the general assembly codified our holding in Chaves. See ch. 202, see. 1, § 16-18-1083, 1981 Colo. Sess. Laws 952, 952-58. The current statute remains unchanged in this respect. Thus, it is clear that if a defendant testifies at trial and admits a prior felony, that admission cannot later be used as substantive evidence in the sentencing phase.

IIL

However, the statute creates no such restriction with respect to the defendant's testimony during the sentencing phase itself, The language in the habitual criminal statute, "In any sentencing hearing, the prosecution shall be required to meet its burden ... by evidence independent of the defendant's testimony," cited by Ziglar, and relied upon by the court of appeals, cannot be read in isolation. See State v. Hartsough, 790 P.2d 836, 838 (Colo.1990) (instructing courts to examine the context in which statutory terms appear). The entire paragraph of section 16-13-103(5)(b), quoted above, clearly separates the sentencing phase from the trial phase. The paragraph's three references to testimony are all to a defendant's testimony elicited during the trial phase. Indeed the language could searcely be clearer: "any admissions of prior convictions elicited from the defendant in connection with his or her testimony on the substantive offense." The statute never mentions a defendant testifying at the sentencing phase, and we therefore do not read its restrictions as extending to testimony elicited there.

The witness statute offers no support to defendant's position in that it contains no requirement that prior felony convictions be used for impeachment purposes only. The statute's language is permissive, allowing the court to receive prior conviction evidence that might otherwise be inadmissible. See § 18-90-101.

Most importantly, we observe that the policy considerations behind restricting the substantive use of a defendant's trial phase admissions simply do not apply to the substantive use of a defendant's sentencing phase admissions. The two phases are purposefully bifurcated. Because the prosecution must prove entirely separate facts in each phase, entirely separate evidence is relevant.

Were it not for the witness statute and a few other exceptions unimportant here, evidence of a defendant's prior convictions would be inadmissible at trial, not because they are irrelevant, but because "the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it." 1 McCormick on Evidence § 186, at 650 n. 8 (John W. Strong, 5th ed. 1999) (quoting State v. Goebel, 36 Wash.2d 367, 218 P.2d 300, 306 (1950)); see also CRE 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."). When prior conviction evidence enters a trial, there is a risk the jury will "punish the accused for his prior anti-social behavior rather than weigh the evidence relevant to the specific occurrence in question." Arthur Best et al., Colorado Evidence 2001 Courtroom Manual 62 (2001).

In contrast, the prior convictions of an accused are wholly relevant to habitual criminal proceedings. Indeed, they are the crux of the hearing. The sentencing phase is bifurcated from the trial phase to avoid precisely the risks alluded to above. Because prior felony evidence is relevant to habitual criminal proceedings, we hold that when a defendant testifies during the sentencing phase, the judge may consider admissions elicited at that time as substantive evidence. While such admissions are not "conclusive proof," as they would be when admitted at arraignment, see § 16-18-1088), they are some evidence that those felonies exist.

The decision by the court of appeals in People v. Lefebre, 981 P.2d 650 (Colo.App. 1998), implies a different result. There, the court stated,

Concerning the prospect of a Curtis advisement in the habitual phase of a trial, the Supreme Court has indicated that there is no need for such, because, among other things, such could needlessly confuse a defendant, and ultimately the jury, concerning the fact that even his or her testimony in that phase cam be considered only for impeachment purposes and that the prosecution has an ongoing duty to prove the substantive charges of the habitual criminal counts with evidence other than the defendant's testimony.

Id. at 654 (citing People v. Gray, 920 P.2d 787 (Colo.1996)) (emphasis added). We observe that People v. Gray did not address a second Curtis advisement at the habitual phase. See Gray, 920 P.2d at 792-98. Rather, in Gray we reaffirmed Curtis's holding restricting the use of a defendant's trial phase admissions to impeachment, but we further ruled that a trial court's advisement omitting the words, "only for impeachment," when describing the use of prior felonies, was not error. Id. at 791 (emphasis in original). We also held in Gray that a trial court need not add an extra sentence to the Curtis advisement informing defendants of "the prosecution's continuing duty to prove a defendant's prior convictions by separate evidence." Id. at 798. Thus, we did not rule in Gray that a defendant's testimony during the sentencing phase is admissible only for impeachment. Our holding there was limited to a defendant's trial phase testimony. To the extent Lefebre comes to the contrary result, we overrule it.

IV.

We turn now to the advisement that the trial court gave in this case. Because we hold that a defendant's admissions are admissible as substantive evidence during the sentencing phase, we conclude that the trial court's advisement here was not error.

In Curtis, we acknowledged that the advisement was not meant for the "narrow class of cases where a prior felony conviction is an element of the crime charged." Curtis 681 P.2d at 514 n. 12. In People v. Rivera, 964 P.2d 561 (Colo.App.1998), the court of appeals stated correctly that it is error for a trial court to advise a defendant that elicited prior convictions will only be used to impeach credibility when those prior convictions are an element of the crime. Id. at 5683-64. The sentencing phase of habitual eriminal proceedings is precisely that class of cases: pri- or felonies are an element of habitual erimi-nal charges. § 16-13-101, 6 C.R.S. (2001). Hence, evidence of prior felonies, including those elicited by a defendant on the witness stand, are admissible, substantive evidence during habitual criminal proceedings. The trial judge's advisement was correct.

v.

Finally, we address the necessity of the second advisement delivered here and hold that the trial court need not give such an advisement.

We restate that in this case, the trial court gave the proper Curtis advisement during the trial phase of this proceeding, and the defendant chose not to testify. At the sentencing phase, the trial court gave the modified advisement-properly reflecting that the defendant's admissions could be used as substantive evidence-and the defendant again chose not to testify.

However, had the trial court declined to give the revised advisement, Ziglar would have continued in the belief that should he testify, his admissions could not be considered by the judge as substantive evidence, but only for impeachment. Such belief, while technically incorrect in light of our holding here, is harmless. Under that cireumstance, he would have assumed the most favorable cireumstance, and even in that light, made a decision not to testify. He could not claim prejudice because he was not "chilled" by a belief the convictions could be used substantively; he held no such belief.

If, on the other hand, a defendant testifies, and later learns that the judge relied upon his testimony substantively, that defendant might be able to challenge the habitual determination. But because we believe this presents a rare scenario, we decline to require every trial judge to re-advise defendants facing habitual criminal charges that their admissions of prior felonies may be used as substantive evidence.

Hence, we find no justification for imposing a requirement upon trial courts to give an amended advisement concerning the right to testify during the habitual phase. Accordingly, we reverse the judgment of the court of appeals and return this case for reinstatement of the trial court's ruling on habitual criminality.

      . § 18-3-203, 8B C.R.S. (Supp.1996).

      . § 16-11-309, 8A C.R.S. (Supp.1996).

      . § 16-13-101 to 103, 8A C.R.S. (Supp.1996).

      . We observe that People v. Blehm was decided before the court of appeals ruled in this case. Under Blekm, the proper forum for attacking a Curtis advisement is a post-conviction hearing, not direct appeal. Blekm, 983 P.2d at 792. Hence, the propriety of addressing this issue on direct appeal is questionable. However, in light of our decision that the second Curtis advisement was unnecessary, we choose to address the issues raised.

      . Of course other uses for prior crime evidence exist. CRE 404(b) accepts such evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

      . The trial judge is certainly not the sole or even primary source of information for defendants. Indeed, in the future, counsel will presumably advise defendants of the "consequences" of testifying during the habitual phase. We conclude that any "chilling" effect on a defendant's decision to testify in the sentencing phase is a permissible one in light of our analysis here. Unlike in Chavez, 621 P.2d at 1366-67, the prosecution here must still prove every element of the offense. Our decision simply acknowledges that a defendant's testimony is "some evidence" of those elements, i.e., some evidence the prior convictions exist.

      . In such a circumstance, the reviewing court could then examine the record to see whether sufficient evidence existed, apart from the defendant's testimony, to support the judgment of habitual criminality.


source: Caselaw Access Project

author: Justice HOBBS

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Christopher SALEH, Respondent.
    No. 01SC74.
    Supreme Court of Colorado, En Banc.
    April 29, 2002.
    Rehearing Denied May 20, 2002.

      Ken Salazar, Attorney General, Catherine P. Adkisson, First Assistant Attorney General, Denver, Colorado, for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Public Defender, Denver, Colorado, for Respondent.

       Justice COATS does not particiapte.

   Justice HOBBS

delivered the Opinion of the Court.

A jury found respondent, Christopher Sa-leh, guilty of second degree reckless assault under section 18-3-208(1)(d), 6 C.R.S. (2001). Saleh kicked the victim down a flight of stairs causing serious bodily injury. We granted certiorari in People v. Saleh, 25 P.3d 1248 (Colo.App.2000), to determine whether Saleh's foot qualified as a deadly weapon under section 18-1-901@8)(e), 6 CRS. (2001). Because his foot did not actually and directly cause the serious bodily injury, the court of appeals held that Saleh could not be convicted of second degree reckless assault, which requires the use of a deadly weapon. See § 18-3-203(1)(d), 6 CRS. (2001); Saleh, 25 P.3d at 1252. We disagree. Any object, including a foot, may be a deadly weapon depending upon the manner in which it was used. People v. Ross, 831 P.2d 1310, 1313 (Colo.1992).

I.

This case arises out of a domestic violence incident between Saleh and his then girlfriend, Janise Apodaca. On the afternoon of February 1, 1998, Saleh and Apodaca were arguing at a Denver bus stop. Following this argument, they went their separate ways. Apodaca decided later that day to end her relationship with Saleh. She arrived at their shared apartment around 9:80 p.m. to pick up some of her clothes, which she needed for a job interview the next morning. However, when Apodaca let herself into their apartment, Saleh was there.

Apodaca proceeded into the bedroom to gather her clothes when Saleh began to argue with her about the break up. Saleh shut the bedroom door and would not allow Apo-daca to leave the room for about two and one-half hours. During this extended argument, Saleh shoved Apodaca and she slapped him. Ultimately, Apodaca threatened to jump out of the second-story bedroom window if Saleh would not allow her to leave. Close to midnight, Saleh finally agreed to release Apodaca from the bedroom and she headed out of the room towards the stairs. As Apodaca reached the top of the stairs, Saleh came up behind her, raised his foot, and kicked Apodaca in the back between her shoulder blades, propelling her down the flight of stairs. Despite Apodaca's attempts to stop the fall, she tumbled all the way down thirteen wooden steps. She came to rest on her back at the bottom of the stairease. Due to the fall, Apodaca suffered a severely broken wrist, a sprained ankle, and a fractured pelvis and was hospitalized for six weeks.

The prosecution charged Saleh with one count of first degree assault with a deadly weapon under section 18-8-202(1)(a), 6 C.R.S. (2001). The prosecution added three habitual criminal counts at a later date. The trial court instructed the jury on first degree assault with a deadly weapon and two types of second degree assault as lesser-included offenses. The defense requested a lesser-included offense instruction for third degree assault, but the trial court did not instruct the jurors on that charge. During jury deliberations, the jury deadlocked eleven to one, with eleven jurors favoring conviction on the first degree assault charge. One remaining juror was willing to convict only on see-ond degree reckless assault by means of a deadly weapon. In response to the jury's request for further instructions, the trial court gave the jury a lesser included offense instruction:

If the jury deadlock centers solely on the degree of guilt rather than the issue of guilt or nonguilt, then the jury should return a guilty verdict on the lesser offense as long as every essential element of the lesser offense is necessarily included in the greater offense and all jurors unanimously agree on the defendant's guilt as to either the greater or lesser offense.

The jury then returned a verdict for second degree reckless assault pursuant to section 18-3-208(1)(d), 6 C.R.S. (2001). Saleh appealed his conviction to the court of appeals.

The court of appeals held that the evidence was insufficient as a matter of law to sustain Saleh's conviction of second degree assault under section 18-8-208(1)(d), and entered judgment on the lesser-included offense of third degree assault. The court of appeals reasoned that the foot itself must be the instrument that actually and directly caused the serious bodily injury in order to qualify as a deadly weapon for a second degree assault conviction. It found that the stairs, rather than Saleh's foot, were the direct cause of the injuries, because there was no evidence that Apodaca sustained any injury where Saleh's foot made contact with her body. Hence, it concluded that Saleh had not committed assault by means of a deadly weapon, and thus could be guilty only of third degree assault.

IL

We hold that Saleh's conviction for using a deadly weapon is proper under section 18-1-901(8)(e), 6 C.R.S. (2001), because he used his foot in a manner capable of producing serious bodily injury when he kicked the victim down the stairs. The court of appeals misapplied the definition of a "deadly weapon," when it held that "no violation of § 18-8-208(1)(d) occurs unless the foot is itself the instrument that actually and directly causes the serious bodily injury." People v. Saleh, 25 P.3d 1248, 1252 (Colo.App.2000).

A.

Deadly Weapon

Colorado has defined what constitutes a "deadly weapon" in section 18-1-901(8)(e), 6 C.R.S. (2001), which states:

"Deadly Weapon" means any of the following which in the manner it is used or intended to be used is capable of producing death or serious bodily injury:
(I) A firearm, whether loaded or unloaded;
(I1) A knife;
(III) A bludgeon; or
(IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate.

This case presents the question of whether an object may be a deadly weapon when the object itself does not directly cause the vie-tim's serious bodily injury.

We have consistently analyzed whether objects are deadly weapons by evaluating the manner in which the objects are used. People v. Ross, 831 P.2d 1310, 1312 (Colo.1992); see Bowers v. People, 617 P.2d 560, 562-63 (Colo.1980)(holding that a whiskey bottle may be a deadly weapon depending on the manner in which it is used); People v. Bramlett, 194 Colo. 205, 209, 578 P.2d 94, 96-96 (1977)(stating that any object used in a manner capable of producing death or bodily injury is a deadly weapon); Miller v. Dist. Court, 193 Colo. 404, 407, 566 P.2d 1063, 1066 (1977)("In evaluating whether a device is a deadly weapon, the real issue is whether, in the manner it was used, it could have caused death or serious injury."); Grass v. People, 172 Colo. 223, 229, 471 P.2d 602, 605 (1970)(holding that a shoe may be a deadly weapon depending on the manner of its use).

Any object can be a deadly weapon if it is used in a manner capable of producing death or serious bodily injury. Ross, 831 P.2d at 1313. Body parts can be deadly weapons depending upon the manner in which they are used. Id.; see also People v. Hayes, 923 P.2d 221, 227 (Colo.App. 1995)("Any object, including a fist, can be a deadly weapon if it is used or intended to be used in a manner capable of producing death or serious bodily injury."). Whether an object is a deadly weapon does not depend upon the ultimate result of an object's use. The statute does not require that the object actually cause serious bodily injury; rather, it must be "capable of producing" such injury. See People In Interest of J.R., 867 P.2d 125, 127 (Colo.App.1993)("In evaluating whether a device is a deadly weapon, the issue is whether, in the manner it was used, it could have caused death or serious bodily injury.").

In vacating Saleh's second degree assault conviction, the court of appeals reasoned that the object, here the foot, must "actually and directly" cause the serious bodily injury to qualify as a deadly weapon. Saleh, 25 P.3d at 1252. Because the stairs directly caused the victim's injuries, Saleh's foot could not be considered a deadly weapon. Id. Our case law does not support this statutory construction. See Ross, 831 P.2d at 1313; People v. Mozee, 728 P.2d 117, 128 (Colo.1986); Miller, 193 Colo. at 407, 566 P.2d at 1066 ("[Slection 18-1-901(8)(e) requires only that in its actual or intended use, the object is capable of producing death or serious injury.").

The court of appeals reasoned that because parts (I), (ID) and (III) of section 18-1-901(8)(e) referred to instruments that "can be used in a manner consistent with their design to inflict serious bodily injury," the General Assembly must also have intended part (IV) to apply only to those "things that are themselves the instruments that actually inflict serious bodily injury." Saleh, 25 P.3d at 1251. We disagree. The phrase "any other weapon, device, instrument, material or substance, whether animate or inanimate" in section 18-1-901(8)(e) is a general provision applying to any and all objects other than a firearm, knife, or bludgeon. Section 18-1-901(8)(e) limits the scope of "deadly weapon" by including only those objects which "in the manner [they are] used or intended to be used [are] capable of producing death or serious bodily injury." § 18-1-901(8)(e); Ross, 831 P.2d at 1818.

The court of appeals misconstrued our holding in Mogee, by requiring that the object be the "actual and direct" cause of the victim's injuries Saleh, 25 P.3d at 1252. We have not identified such a limitation upon the definition of a deadly weapon; rather, we have interpreted the definition more broadly. Ross, 831 P.2d at 1313 ("[We have interpreted the phrase to include any object or device."); Bowers, 617 P.2d at 563 ("Firearms, knives, and bludgeons are deadly weapons by their essential nature. All other items may or may not be deadly weapons, depending upon how they are used or intended to be used."). Our holding in Mozee requires the presence of "an element of causation linking the deadly weapon to the serious bodily injury" for the object to "actually" cause the injury and qualify as a deadly weapon. Mozee, 723 P.2d at 128. In Mogee, we upheld the defendant's first degree assault conviction for shooting the victim with a gun because there was an element of causation linking the gun to the injury; thus, the victim's injury occurred "by means of" a deadly weapon. Mozee, 723 P.2d at 128-29. Although we stated that it is necessary for the prosecution to prove "the use of the deadly weapon actually caused the serious bodily injury" in order to obtain a first degree assault convietion, our holding in Mogee does not require that the injury occur at or near the point on the victim's body where the deadly weapon made contact. Mozee, 723 P.2d at 128.

We hold that when an object is used in a manner capable of causing death or serious bodily injury, the object used is a deadly weapon within the statutory definition of section 18-1-901(8)(e). Objects which are not inherently deadly, such as feet and hands, can become deadly weapons when used to start an unbroken, foreseeable chain of events capable of producing serious bodily injury or death. Using one's hands to push a victim off a balcony or in front of an oncoming car, or, as in the present case, using one's foot to kick a victim down a flight of stairs are examples of such use.

The fact that the victim's injuries can be attributed to the pavement, car, or stairs, does not break the causal chain linking the object to the injury. The jury may properly consider any resulting injury sustained by the victim in making the determination of whether or not an object qualifies as a deadly weapon. See Bowers, 617 P.2d at 563 (considering evidence of the victim's injuries in determining that a bottle was used as a deadly weapon). "[IIf the fist or foot strikes the victim with sufficient foree to put in motion a sequence of events causing a serious bodily injury, then the evidence is sufficient to sustain the [second degree assault] conviction." People v. Saleh, 25 P.3d 1248, 1253 (Colo.App.2000)(Ruland, J., dissenting).

B.

Saleh's Foot as a Deadly Weapon

In this case, the prosecution argues that Saleh's foot was a deadly weapon because of the manner in which it was used. We agree. Saleh knew that the victim was at the top of the stairs with her back to him. With this knowledge, Saleh kicked the victim in the back between her shoulder blades in order to propel her down the staircase. Kicking someone down a flight of stairs is an action that is capable of causing death or serious bodily injury. By using his foot as he did, Saleh set in motion an unbroken, foreseeable chain of events that resulted in serious bodily injury to the victim. There is a sufficient causal connection between Saleh's foot and the victim's injury to support a second degree assault conviction.

IIL

The court of appeals erroneously vacated Saleh's conviction for second degree assault, section 18-3-208(1)(d), 6 C.R.S. (2001). Sa-leh used his foot in a manner which is "capable of producing death or serious bodily injury." § 18-1-901@8)(e), 6 CRS. (2001). Accordingly, we reverse the court of appeals' judgment and remand this case to that court with instructions to reinstate Sa-leh's conviction for second degree assault.

Justice COATS does not participate.

      . We granted certiorari on the following issue: "Whether the Court of Appeals erred both factually and legally in holding that the defendant's foot was not a deadly weapon under the facts of this case because it did not 'actually and directly' cause the victim's injuries?"

      . Section 18-3-203, 6 C.R.S. (2001), provides in part:
      Assault in the second degree. (1) A person commits the crime of assault in the second degree if:
      ... (b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or ... (d) He recklessly causes serious bodily injury to another person by means of a deadly weapon.

      . The court of appeals stated that a deadly weapon includes body parts not actually used to inflict the serious injury, the issue whether the defendant caused serious bodily injury 'by means of a deadly weapon' would be irrelevant in any second degree assault prosecution under § 18-3-203(1)(d), so long as it was proven that the victim sustained a 'serious bodily injury' resulting from the defendant's actions." Saleh, 25 P.3d at 1252. This conclusion is inconsistent with our prior case law and the deadly weapon definition.

      . If the shot fired in Mozee had not hit the victim, but rather caused him to dive down a flight of stairs to avoid the bullet, the conclusion would have been the same; the gun would still be considered a deadly weapon because it would have been used in a manner capable of causing serious bodily injury or death. People v. Saleh, 25 P.3d 1248, 1254 (Colo.App.2000)(Ruland, J., dissenting). An element of causation linking the gun to the injury would exist because the victim would not have been injured by the stairs but for his necessary avoidance of the bullet. In this hypothetical situation, the gun actually causes the serious bodily injury because of the manner in which it is used. It does not matter that the stairs ultimately injured the victim, rather than the gun itself. The injury still occurred "by means of" the gun for the purposes of an assault with a deadly weapon charge.

      . We are aware that the court in People v. Brake, 196 Colo. 575, 588 P.2d 869 (1979) used a contrary example in the context of an equal protection challenge. However, our more recent cases support the interpretation of the term "deadly weapon"" we hold to be Colorado law.

      . We recognize that a defendant may be guilty of first, second, or third degree assault depending upon the applicable mens rea. The mens rea requirement and severity of the victim's injury differ for assault in the first degree, second degree, and third degree, but the definition of a deadly weapon does not. In each circumstance, the use of the deadly weapon, the foot, is the same. It is the ultimate result of the foot's use, in combination with the defendant's mental state, that determines the degree of assault.


author: Justice COATS

text:
    Leonard Ray SHIPLEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 01SC83.
    Supreme Court of Colorado, En Banc.
    April 29, 2002.
    As Modified on Denial of Rehearing May 20, 2002.
    Edward J. LaBarre, Colorado Springs, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Respondent.
   Justice COATS

delivered the Opinion of the Court.

The defendant petitioned for review of the court of appeals' judgment upholding the trial court's refusal to reconsider his sentence. See People v. Shipley, 22 P.3d 564 (Colo.App. 2001). The trial court and court of appeals concluded that the special drug offender provision found at section 18-18-407, 8B C.R.S. (Supp.1993), required a sentence to the custody of the department of corrections, to the exclusion of any alternative sentences authorized by section 16-11-101, 8A C.R.S. (Supp. 1998). We hold that section 18-18-407(1) mandates only the length of sentence which a special drug offender must receive, without altering the sentencing options otherwise within the court's discretion. Because the defendant's underlying conviction did not require a sentence to the department of corrections, the judgment is reversed and the case is remanded with directions to order that the defendant's motion be considered.

L.

Following his arrest in August 1998, the defendant was convicted by a jury for possession of methamphetamine, a schedule II controlled substance (class 3 felony), possession of a schedule II controlled substance with intent to distribute (class 8 felony), and possession of an incendiary device (class 4 felony) In addition, because numerous firearms were discovered during the raid of the defendant's house, even though he was not home at the time, he was adjudicated a "special offender" under the then existing version of section 18-18-407(1)(f)("The defendant used, displayed, possessed, or had available for use a deadly weapon ...;"). The defendant was subsequently sentenced to twenty-four years in the custody of the department of corrections on the first count and to lesser concurrent sentences on the other counts.

In 1999, after the court of appeals' judgment affirming his convictions and sentence on direct appeal had become final, the defendant moved for a reduction of his sentence pursuant to Crim. P. 35(b). The sentencing court denied the motion on the grounds that it had no discretion to impose any sentence other than to the custody of the department of corrections in light of the defendant's special offender adjudication pursuant to section 18-18-407(1). The defendant subsequently appealed the denial of his motion, and the court of appeals affirmed. We granted the defendant's petition for writ of certiorari to consider the question whether the special offender statute requires a sentence to imprisonment in the department of corrections, to the exelusion of other sentencing alternatives.

IL.

Subject to constitutional limitations not at issue here, it is the prerogative of the legislature to define crimes and prescribe punishments. People v. Flenniken, 749 P.2d 895, 398 (Colo.1988); People v. Hinchman, 196 Colo. 526, 530, 589 P.2d 917, 920 (1979). Courts therefore exercise discretion in sentencing only to the extent permitted by statute. The goal in interpreting a sentencing statute must be to effect the legislative intent. See Reg'l Transp. Dist. v. Lopes, 916 P.2d 1187, 1192 (Colo.1992); Schubert v. People, 698 P.2d 788, 793 (Colo.1985). If that intent is not clear from the language of the statute alone, or if the statute appears to conflict with other statutes, various intrinsic and extrinsic aids to statutory construction may resolve the ambiguity. § 24-208, 1 C.R.S. (2001); Schubert, 698 P.2d at 793-94. Particularly, when a statute is clearly part of a comprehensive regulatory scheme, the scheme should be construed to give consistent, harmonious, and sensible effect to all its parts. Martin v. People, 27 P.3d 846, 851 (Colo.2001); N.A.H. v. S.L.S., 9 P.3d 854, 367 (Colo.2000); Left Hand Ditch Co. v. Hill, 983 P.2d 1, 8 (Colo.1997).

The special offender provision of section 18-18-407 at issue here is potentially applicable, by its own terms, to any felony convietion under part 4, article 18, title 18, which defines offenses involving controlled substances. The version of the statute in effect at the time of the defendant's 1998 crime required the court to sentence anyone con-viected of a felony under part 4 who was also found to have committed one of the aggravating factors enumerated in the statute to "a term greater than the presumptive range for a class 2 felony but not more than twice the maximum term for a class 2 felony authorized in the presumptive range for the punishment of such felony." § 18-18-407(1).

On its face, section 407 does not purport to deal with the nature of the required sentence or designate the official in whose custody it must be served. It merely requires a sentence to a term equal to a sentence in the aggravated range authorized for a class 2 felony. In doing so, however, the statute contains a clear, if implicit, reference to other provisions of a much broader sentencing scheme. Section 18-1-105 divides felonies into classes and distinguishes them from each other by authorizing specific ranges of penalties for each class. The penalties authorized for each class of felony are expressed in terms of dollar amounts of fines, specific numbers of years of mandatory parole, and presumptive ranges of years of "imprisonment." $ 18-18-105(1)(a)(V).

The court of appeals found that the reference in the special offender statute to a "term" greater than the "presumptive range" for a class two felony was necessarily a reference to the penalty ranges of section 18-1-105(1)(a)(V)(A), and that in making that reference, the General Assembly intended not only to mandate a specific length of sentence but also to incorporate section 18-1-105's characterization of the term as "imprisonment." In addition, the appellate court found that the reference to section 18-1-105 in the special offender statute implicitly required the defendant's sentence to be served in the custody of the executive director of the Colorado Department of Corrections. It therefore concluded that section 18-18-407(1) forecloses a trial court's discretion to impose a fine or sentence a special drug offender to a community corrections program, home detention, or probation.

A. "Imprisonment" Within the Meaning of Section 18-1-105

The word "imprisonment" is not expressly defined in the Criminal Code or the Criminal Procedure Code, but it generally connotes some kind of confinement or restraint of a person's liberty. Black's Law Dictionary 760 (7th ed.1999). As used in the statutes and case law of this jurisdiction, however, "imprisonment" is clearly not limited to confinement in a state penitentiary. Seq, eg., § 16-11-301(2)(allowing sentences to "imprisonment in a county jail" for certain young adults); § 18-1-106(1)("No term of imprisonment for conviction of a misdemeanor shall be served in any state correctional facility unless served concurrently with a term for conviction of a felony."); People v. Green, 734 P.2d 616, 618 (Colo.1987)(distinguishing imprisonment in state penitentiary from imprisonment in county jail); People v. Gibson, 628 P.2d 391, 398 (Colo.1981)(comparing sentences to imprisonment in the state reformatory with imprisonment in the state penitentiary). Imprisonment is listed among the sentencing alternatives available to courts in this jurisdiction generally, which at the time applicable to the defendant's crime also included probation, specialized restitution and community service, a fine, or compliance with any other court order authorized by law. Bee § 16-11-101, 8A CRS. (Supp.1993). "As a general rule, imprisonment for the conviction of a felony by an adult offender [is to] be served by confinement in an appropriate facility as determined by the executive director of the department of corrections," § 16-11-801(1); however, district courts are also given the express authority to "refer any offender convicted of a felony to a community corrections program unless such offender is required to be sentenced pursuant to section 16-11-809(1), C.R.S. [the crime of violence statute]." § 17-27-1105, 6 C.R.S. (2001).

In People v. Winters, 765 P.2d 1010, 1012, 18 (Colo.1988), this court considered the meaning of the synonymous term "incarceration," as it was used in the closely-related, mandatory sentencing statute for trafficking in large quantities of cocaine. See § 18-18-105(8), 8B C.R.S. (1986). We found the statutory language to be ambiguous with respect to the nature and place of confinement, despite an express provision excluding probation or suspension of sentence. Winters, 765 P.2d at 1012-18. Although we noted that the legislature had not generally used the terms "incarceration" or "imprisonment" with regard to community corrections programs, we nevertheless acknowledged certain statutory references suggesting that these terms may apply to placement or confinement in a community corrections setting. Id.; see also People v. Saucedo, 796 P.2d 11, 12 (Colo. App.1990)(finding term "incarceration" as used in section 18-1-105(9)(a) includes direct sentences to community corrections); cf. People v. Hoecher, 822 P.2d 8, 12 (Colo.1991)(finding that residential community corrections constitutes "confinement" for which defendant must receive credit against service of a sentence to imprisonment). Only by reference to the legislative history of that sentencing provision, disclosing "an unequivocal legislative intent that violators be sentenced to the custody of the Department of Corrections," Winters, 765 P.2d at 1013, were we able to resolve the ambiguity against authorizing a community corrections sentence for the sale of more than twenty-eight grams of cocaine.

Unlike section 18-18-1105 (now section 18-18-405), which expresses a legislative intention to enhance in a very specific way the sentences of a narrow group of drug crimes, section 18-1-105 classifies felonies in the jurisdiction generally and provides the mechanism for determining permissible sentences within each classification. The word "imprisonment" appears in section 18-1-105(1)(a)(V)(A) in prescribing the presumptive ranges of confinement authorized for each classification of felony and in distinguishing the authorized terms of confinement from terms of parole and amounts of fines. See also § 18-1-105(1)(b){ID("[A] person may be sentenced to imprisonment ... or to pay a fine ... or to both. ..."). Section 18-1-105 is primarily concerned with ranges and amounts of penalties rather than with facilities, confining authorities, and sentencing alternatives.

If the use of the word "imprisonment" alone were intended to mandate a sentence to the department of corrections, it would be unnecessary to modify it with any other language of limitation. In the few situations in which the legislature has intended that a particular consequence apply only to a sentence to the department of corrections, however, it has made that clear by further including the phrase "in" or "to the department of corrections." See, eg., § 18-1-105(1)(a)(V)(D) ("The mandatory period of parole shall commence immediately upon the discharge of an offender from imprisonment in the custody of the department of corrections.")(emphasis added); see also People v. Johnson, 13 P.3d 309 (Colo.2000)(holding that mandatory parole attaches only to a sentence to be served in the department of corrections and not to a sentence to be served in a community corrections facility).

The maximum and minimum sentences prescribed in section 18-1-105(1)(a)(V)(A) were clearly not intended to be sentences exclusively to the custody of the executive director of the department of corrections. Even the community corrections statute, itself, expressly authorizes sentences in terms of the "terms, lengths, and conditions pursuant to section 18-1-105, C.R.S." See § 17-27-105(1)(b), 6 C.R.S. (2001). The reference in any specific sentencing provision to the ranges authorized by § 18-1-105, without more, therefore does not prohibit a sentence to a community corrections program.

B. Other Sentencing Alternatives

Quite apart from various sentences to confinement that may properly be considered imprisonment, the language of the special drug offender statute does not betray any intent to bar even those sentencing alternatives that have been distinguished from imprisonment. Seq, e.g., People v. Flenniken, 749 P.2d 395, 398 (Colo.1988)("Because the new sentencing scheme did not require that offenders be sentenced to imprisonment, it was unnecessary to grant judges authority to suspend the imposition or execution of such a sentence in order to place an offender on probation.") Section 18-18-407(1) makes no reference to "imprisonment," "incarceration," or confinement of any kind. Unlike many of the other sentence enhancing-formulae used by the legislature, in which the presence of an aggravating factor elevates the classification of felony, eg., § 18-83-3802, 6 CRS. (2001)(second degree kidnapping becomes class 2 felony if victim was sexually assaulted), or specifically requires a sentence to incarceration, eg., § 18-4-202.1, 6 C.R.S. (2001)(habitual burglar offender "shall be sentenced to a term of incarceration"), or imprisonment, eg, § 16-13-101(2)(habitual criminal "shall be punished ... by imprisonment in a correctional facility"), or expressly excludes certain sentencing alternatives, e.g., § 18-18-105 ("Any person who is subject to the provisions of this subsection (8) shall not be eligible for probation or suspension of sentence."), section 18-18-407 merely requires that an aggravated drug felon be sentenced to a "term" in the range that is authorized for an aggravated class 2 felony. In this regard, the formula employed by the General Assembly in section 407 is virtually without analog in the sentencing provisions of this jurisdiction.

In finding a legislative intent to incorporate not only the time period specified in section 18-1-105(1)(a)(V)(A), but also its reference to imprisonment, the court of appeals relied on two considerations. It relied in part on the absence of any language expressly limiting the reference to a period of time. Although not further defined by statute, the word "term" in common usage connotes merely "a limited or definite extent of time." Merriam Webster's Collegiate Dictionary 1216 (10th ed.1993). It is difficult to conceive of more appropriate language for the legislature to have used if its intent were merely to lengthen the sentence. In addition, the court of appeals feared that such a limitation would contravene the clear legislative intent to more severely punish aggravated drug felonies. While the context makes clear the General Assembly's intent to enhance punishment based on the presence of an aggravating factor in section 407, that purpose is in no way contravened by merely increasing the length of the defendant's sentence. Nothing in the language suggests a legislative intent to change the nature of the sentence or otherwise restrict the discretion of a sentencing court, and unlike section 405, see Winters, no legislative history of section 407 similarly suggests such an intent.

Considering the context of the provision, it appears most likely that the legislature said precisely what it meant. At the time of the enactment, no further limitations were necessary to anticipate a sentence to the department of corrections for the vast majority of special drug offenders. Because the special offender statute was initially directed primarily at crimes involving large quantities of drugs or interstate trafficking, the crimes whose penalties were being enhanced typically already required substantial sentences, often expressly to the custody of the department of corrections. See §§ 18-18-105, - 107, C.R.S.1978 (Supp.1981). Even when it was enacted, however, the special drug offender provision was also potentially applicable to a number of less serious drug-related felonies. Seq eg., § 12-22-3815, C.R.8.1973 (obtaining prescription drugs by fraud or deceit). The number of aggravating factors and range of qualifying felonies has continued to expand. The special offender statute now enhances not only class 3 felonies that already require sentences to incarceration in the department of corrections, see § 18-18-405(8)(a), 6 CRS. (2001)(distribution of schedule I and II controlled substances), but also class 4 and 5 felonies without limitations on sentencing alternatives, see, eg., § 18-18-406 (fraudulently causing another to unknowingly consume controlled substance); § 18-18-408(a)(receiving proceeds derived from any conduct proscribed by the Controlled Substance Act); § 18-18-414(r)(knowingly omitting material information from required records by licensee); § 18-18-422, -428 (possession of imitation controlled substance). With such a wide disparity in the seriousness of the offenses and penalties being enhanced, it seems reasonable that the General Assembly intended merely to increase the length of the sentence already prescribed for each particular offense, rather than shifting discretion from the courts to the executive director of the department of corrections, regardless of the character and cireumstances of the underlying offense.

Some aggravating cireumstances may render certain sentencing alternatives statutorily unavailable. Other aggravating circumstances, as well as the mere length of an aggravated sentence, will undoubtedly make certain sentencing alternatives inappropriate. Nothing in the language of section 407 or the legislative history surrounding its passage or subsequent amendments makes available to the sentencing court any sentencing alternatives excluded by the defendant's underlying offense. Therefore, if the defendant's underlying offense requires a sentence to the custody of the department of corrections, an aggravated sentence pursuant to section 407 also requires a sentence to the department of corrections. Similarly, however, nothing in the statute forecloses consideration by the court of sentencing alternatives for which a defendant would otherwise be eligible. Accordingly, we hold that the special drug offender statute merely specifies the length of the sentence required for aggravated drug felonies.

C. Application to the Defendant

At the time of the defendant's offense in August 1998, the special offender statute required a sentence to a term greater than the presumptive range for a class 2 felony, which was twenty-four years. At that time, however, possession with the intent to distribute methamphetamine, though a schedule II controlled substance and a class 3 felony, was not an offense requiring a sentence to the department of corrections to the exclusion of other sentencing alternatives. See § 18-18-405, 8B C.R.S. (Supp.1993)(limiting required sentencing to incarceration in the department of corrections to offenses involving more than twenty-eight grams of cocaine). Therefore both the trial court and the court of appeals misperceived the actual limits of the sentencing court's discretion.

Relief pursuant to Crim. P. 85(b) is discretionary, and the exercise of the sentencing court's discretion is generally not subject to appeal. Cf. Christ v. People, 897 P.2d 809, 812 (Colo.1995). Here, however, because the sentencing court declined to entertain the defendant's motion and exercise its discretion for the reason that it erroneously considered itself bound to impose a sentence to the department of corrections by statute, the defendant's appeal was not barred. While nothing in this opinion suggests that the defendant is entitled to modification of his sentence, he is entitled to have his motion considered by the sentencing court under the correct construction of the controlling statute.

III. Conclusion

Because section 18-18-407 does not require a sentence to the custody of the department of corrections for the drug felony of which the defendant was convicted, the sentencing court was mistaken in believing that it lacked discretion to modify the defendant's sentence pursuant to Crim. P. 85(b). The judgment of the court of appeals is reversed and remanded with directions to order reconsideration of the defendant's motion.

      . § 18-18-405(2)(a)(I), 8B C.R.S. (Supp.1993).

      . Id.

      . § 18-12-109(2), 6 C.R.S. (2000).

      . Although the court of appeals affirmed the sentencing court's order, the cause was remanded with direction to add one day to the twenty-four year sentence to comply with the requirement that the sentence be "greater" than the minimum of the presumptive range. § 18-18-407(1).

      . Our grant of certiorari was as follows:
      Whether the court of appeals erred in holding that a conviction under the Special Offender Statute, C.RS. § 18-18-407(1)(f), requires a sentence of imprisonment only and does not allow for any sentencing alternatives, such as probation, community correction, or other sentencing alternatives, even if the offender is otherwise eligible for such alternative sentence.

      . The applicable version of the statute states in full:
      Upon a felony conviction under this part 4, the presence of any one or more of the following extraordinary aggravating circumstances designating the defendant a special offender shall require the court to sentence the defendant to a term greater than the presumptive range for a class 2 felony but not more than twice the maximum term for a class 2 felony authorized in the presumptive range for the punishment of such felony.
      § 18-18-407(1), 8B C.R.S. (Supp.1993).
      Effective for offenses committed on or after July 1, 1997, the sentence required for special drug offenders was reduced to a "term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony." Ch. 264, sec. 12, § 18-18-407(1), 1997 Colo. Sess. Laws 1539, 1545.

      . In 1987, prior to our opinion in Winters, section 18-18-105(3) was amended to expressly require a sentence to the department of corrections:
      [Any person convicted pursuant to paragraph (a) of subsection (2) of this section ... shall be sentenced to the department of corrections for at least the minimum term of incarceration in the presumptive range provided for such offense....
      § 18-18-105(3)(emphasis added).
      In 1992, part 1, article 18, title 18 was repealed and reenacted in substantially the same terms as part 4, article 18, title 18, renumbering section 105 as section 405.

      . Effective for offenses committed on or after July 1, 2000, section 407(2)(a), which provides an additional enhancement for selling drugs within a certain proximity of schools and public housing, was amended by adding a reference to "any sentence to imprisonment required by subsection 1 of this section." Ch. 171, sec. 40, 52, § 18-18-407(2)(a), 2000 Colo. Sess. Laws 692, 708, 714. Although the context of the amendment suggests that it was included to clarify that the fine prescribed by section (2)(a) is in addition to the already enhanced length of any sentence to imprisonment required by section 405 rather than merely to the sentence to imprisonment required by section 405 itself, the 2000 amendment clearly does not apply to the defendant's crime, and we need not determine its effect, if any, on future applications of section 18-18-407(1).

      . It is noteworthy that when section 407(1) was amended effective July 1, 1997, see supra note 6, two of the three occurrences of the word "term" were modified to even more clearly refer to a "term of years." § 18-18-407(1), 6 CRS. (1997).