Whether the Sixth Amendment requires a jury to find beyond a reasonable doubt that a prior misdemeanor conviction can be used to elevate a subsequent offense from a misdemeanor to a felony

No question identified. : APPLICATION To the Honorable Neal Gorsuch, Associate Justice of the Supreme Court of the United States and Circuit Justice for Colorado: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(c), Applicant Constance Eileen Caswell respectfully requests a 45-day extension of time, to and including February 16, 2024, within which to file a petition for a writ of certiorari to review the judgment of the Supreme Court of Colorado in this case. 1. The Colorado Supreme Court entered judgment on October 3, 2023. See Caswell v. People, 536 P.3d 323 (Colo. 2023); App. 1a-47a. Unless extended, the time to file a petition for a writ of certiorari will expire on January 2, 2024, accounting for the fact that 90 days from October 3, 2023, is January 1, 2024, a federal legal holiday listed in 5 U.S.C. § 6103. See Sup. Ct. R. 13.5; Sup. Ct. R. 30.1. This application is being filed more than ten days before the petition is currently due. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1257(a). 2. This case presents the question whether a prior misdemeanor conviction can be used to transform a subsequent conviction for the same offense into a felony without a jury being required to find beyond a reasonable doubt that the defendant was in fact convicted of that first offense. 3. In the spring of 2016, the State of Colorado charged Caswell with 43 felony counts of cruelty to animals. See App. 8a. In Colorado, “[clruelty to animals is generally a class 1 misdemeanor.” Id. But it becomes a “class 6 felony if the defendant has a prior conviction for that crime.” Id.; see Colo. Rev. Stat. § 18-9 202(2)(b)(I). Caswell had a prior cruelty-to-animals conviction, which the State identified in each count “as a fact that elevated the classification of the charge from a misdemeanor to a felony and enhanced the applicable sentence.” App. 8a. 4. The elevation of the offense from a misdemeanor to a felony carried serious consequences. It doubled Caswell’s presumptive sentencing exposure. See Colo. Rev. Stat. § 18-1.3-501(1)(a) (minimum presumptive sentence for class 1 misdemeanors: six months); id. § (minimum presumptive sentence for class 6 felonies: one year). And it also triggered a host of collateral consequences, including “the loss of the right to vote while incarcerated, the loss of the right to own firearms, the possibility of habitual criminal charges upon the subsequent commission of a felony, *** and the inability to obtain certain employment.” App. 27a. 5. In light of the significant consequences triggered by the prior-conviction provision’s elevation of the offense from a misdemeanor to a felony, Caswell explained to the trial court that her prior conviction was an element of the offense that, per the Sixth Amendment, must be found by a jury beyond a reasonable doubt. See App. 70a. This Court’s Sixth Amendment jurisprudence distinguishes between “elements” and “sentencing factors.” Under Apprendi v. New Jersey and its progeny, facts that increase a defendant’s sentencing exposure are elements of the offense that must be specifically charged and found by a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (announcing this rule in the context of facts that “increase[] the penalty for a crime beyond the prescribed statutory maximum”); Alleyne v. United States, 570 U.S. 99, 102 (2018) (extending Apprendi to facts that increase a defendant’s mandatory minimum sentence). This rule, however, is not universal. Pointing to Almendarez-Torres v. United States, 523 U.S. 224 (1998), this Court in Apprendi stated that “the fact of a prior conviction” need not be submitted to the jury. 530 U.S. at 490. This is “a narrow exception to the general rule.” Jd. In contrast to the general rule for elements, “[s]lentencing factors”—facts which “may guide or confine a judge’s discretion in sentencing an offender within the range prescribed by statute”’—“c