v. Session
Colo. Ct. App.
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 12, 2020
2020COA158
No. 14CA2083, People v. Session — Criminal Law — Sentencing
— Punishment for Habitual Criminals; Constitutional Law —
Eighth Amendment — Cruel and Unusual Punishments —
Proportionality Review
This case is before the court of appeals for a second time. The
first time this case was before the court of appeals, a division
affirmed defendant’s conviction and habitual sentence for
possession of a controlled substance. Following that decision, the
supreme court granted defendant’s petition for writ of certiorari,
vacated the court of appeals’ judgment, and remanded the case to
the court of appeals for the division to reconsider its decision in
light of Melton v. People, 2019 CO 89, Wells-Yates v. People,2019 CO 90M
, and People v. McRae,2019 CO 91
.
Upon this reconsideration, the division affirms defendant’s
judgment of conviction, rejecting defendant’s contention that his
Sixth Amendment right to counsel were violated when the trial
court denied his request to substitute appointed counsel. The
division also rejects defendant’s contention that he was entitled
have a jury, rather than a judge, adjudicate the habitual criminal
counts.
With respect to defendant’s challenge to his habitual sentence,
however, the division concludes that, under the standard
articulated in Wells-Yates, second degree burglary and attempted
burglary — two of defendant’s predicate offenses — are no longer
per se grave and serious crimes. The division further concludes
that, because none the defendant’s predicate offenses — nor his
triggering offense — are per se grave and serious, a proportionality
review is required before a habitual sentence is imposed. And
because of the fact-specific nature of that review, the division
remands the case to the trial court for further proceedings.
COLORADO COURT OF APPEALS 2020COA158
Court of Appeals No. 14CA2083
City and County of Denver District Court No. 12CR2805
Honorable J. Eric Elliff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Franky Lamont Session,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE WELLING
Dailey and Hawthorne*, JJ., concur
Announced November 12, 2020
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Karen Mahlman Gerash,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Franky Lamont Session, was convicted of
possession of more than four grams of a schedule II controlled
substance and sentenced to twenty-four years in prison after the
trial court adjudicated him a habitual offender.
¶2 On September 14, 2017, we issued our original opinion in this
case and affirmed both the judgment of conviction and sentence.
See People v. Session, slip op. at ¶ 38 (Colo. App. No. 14CA2083,
Sept. 14, 2017) (not published pursuant to C.A.R. 35(e)). In that
opinion, we concluded that the trial court didn’t err by imposing a
habitual sentence without undertaking a proportionality review.
Our conclusion in this regard rested on the premise that even
assuming Session’s four drug possession convictions — which were
his triggering offense and three of his predicate offenses — aren’t
per se grave and serious, because two of his predicate convictions
— second degree burglary and attempted second degree burglary —
were per se grave and serious, a proportionality review wasn’t
required. Id. at ¶¶ 4–17.
¶3 On February 10, 2020, the supreme court granted Session’s
petition for writ of certiorari, vacated our judgment, and remanded
the case to us for reconsideration in light of Melton v. People, 2019
1
CO 89, Wells-Yates v. People,2019 CO 90M
, and People v. McRae,2019 CO 91
. See Session v. People, (Colo. No. 17SC749, Feb. 10,
2020) (unpublished order). In Wells-Yates the supreme court made
explicit what we had assumed — that drug offenses such as
Session’s three predicate offenses and his triggering offense are no
longer per se grave and serious. In addition to that, the supreme
court reopened the issue of whether, under its newly articulated
standard for determining whether an offense is per se grave and
serious, second degree burglary or attempted burglary is per se
grave and serious.
¶4 On reconsideration, we affirm Session’s judgment of conviction
for the same reasons we did before. We conclude, however, that,
under the standard articulated in Wells-Yates, second degree
burglary and attempted burglary are no longer per se grave and
serious crimes. We further conclude that, because none of
Session’s predicate offenses — or his triggering offense — are per se
grave and serious, a proportionality review is required before a
habitual sentence can be imposed. And because of the fact-specific
nature of that review, we vacate Session’s sentence and remand the
case to the trial court for further proceedings.
2
I. Background
¶5 In June 2012, Session appeared at the Saint Joseph Hospital
emergency room with gunshot wounds. When hospital personnel
cut away Session’s clothing to assess his injuries, a sandwich bag
containing cocaine fell from his underwear. Police later arrived and
took possession of the bag.
¶6 In July 2012, Session was charged with possession of a
controlled substance with intent to distribute (a class 3 felony) and
possession of more than four grams of a schedule II controlled
substance (a class 4 felony). The prosecution later amended the
charges to include five habitual criminal counts.
¶7 The case went to trial in June 2014. The jury acquitted
Session of the possession with intent to distribute charge, but
convicted him of the class 4 felony of possession of more than four
grams of a schedule II controlled substance. The trial court
adjudicated Session a habitual criminal based on the possession
conviction and five previous felony convictions. The trial court
denied Session’s request for an extended proportionality review of
his sentence. Session was sentenced to twenty-four years in the
custody of the Department of Corrections.
3
II. Analysis
¶8 Session raises three issues on appeal. First, he contends that
his Sixth Amendment right to counsel was violated because the trial
court denied his request to substitute appointed counsel without
adequate inquiry. Second, he contends that his Sixth Amendment
right to a jury trial was violated because a judge, rather than a jury,
adjudicated the habitual criminal counts. Third, he contends that
the trial court erred by imposing a habitual sentence without
conducting a proportionality review. We address each contention,
in turn, below.1
A. Substitution of Appointed Counsel
¶9 Session contends that the trial court violated his Sixth
Amendment right to counsel because it denied his request to
substitute appointed counsel without conducting an adequate
inquiry. We disagree.
1Because our original opinion was unpublished and our judgment
was vacated, we choose to re-address all of the issues Session
raised in his original direct appeal here without reference to our
earlier opinion.
4
1. Additional Factual Background
¶ 10 Session made three requests to substitute counsel.2 He first
moved for substitution of counsel during a pretrial conference on
November 21, 2013. At a hearing without the prosecutor present,
Session alleged that his counsel had: refused to investigate and
subpoena information and witnesses, failed to provide mitigating
evidence to the prosecution, and failed to adequately communicate.
Defense counsel told the court that the evidence at issue had been
provided to the prosecution, although it had not affected the plea
offer. He also assured the court that he had an investigator
spending “quite a bit” of time on the cases. The trial court found
that there was no conflict, and that Session’s disagreements with
counsel related to strategic decisions. The trial court denied
Session’s motion to substitute counsel. Session declined to proceed
pro se.
2In addition to this case, Session was also charged with and
awaiting trial for distribution and possession with intent to
distribute (case number 12CR418) and pimping (case number
12CR4569). Because these trials were also pending, certain pretrial
matters were heard jointly.
5
¶ 11 Twelve days before trial, on June 12, 2014, Session again
alleged a conflict with his counsel based on particular evidentiary
details of the case and requested to proceed pro se. Session
prepared motions, and the court accepted them, informing Session
that it would review the information and hold a hearing if
necessary. The trial court made no further findings on the issue.
¶ 12 The morning of trial, Session informed the trial court that he
wanted to proceed pro se or have substitute counsel appointed.3
Session provided the court with more pleadings, including witness
subpoenas. Session voiced concerns about whether his counsel
had investigated certain witnesses and issues. Defense counsel
assured the court he had investigated the issues and was prepared
for trial. The trial court denied Session’s request, observing that
the disagreement related to trial strategy, it represented a
continuation of the disagreement previously heard, a fourth
continuance of trial wasn’t feasible, and the request appeared to be
a delay tactic.
3 Session doesn’t argue on appeal that he was denied the right to
represent himself at trial. Accordingly, that issue isn’t before us.
6
2. Legal Principles
¶ 13 We review a trial court’s decision to deny substitute counsel
for an abuse of discretion. People v. Weeks, 2015 COA 77, ¶ 101. ¶ 14 An indigent criminal defendant has a constitutional right to counsel, but he or she doesn’t have the right to demand a particular attorney. People v. Arguello,772 P.2d 87, 92
(Colo. 1989); see U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. Thus, a court isn’t required to substitute counsel unless a defendant establishes “good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.” Arguello,772 P.2d at 94
(citation
omitted).
¶ 15 To determine whether a district court erred by denying a
defendant’s request for substitution of counsel, we consider four
factors: (1) the timeliness of the defendant’s motion; (2) the
adequacy of the court’s inquiry; (3) whether the conflict between the
defendant and his attorney was so great that it resulted in a total
lack of communication or otherwise prevented an adequate defense;
and (4) whether the defendant substantially and unreasonably
7
contributed to the conflict with his attorney. People v. Bergerud,
223 P.3d 686, 695 (Colo. 2010).
3. Discussion
¶ 16 Our review of the four factors described in Bergerud reveals
adequate support for the trial court’s denial of Session’s motion for
substitution of counsel. Although better practice may have been for
the court to conduct further inquiry into each of Session’s separate
complaints and to make additional findings in support of its
decision, we conclude the court didn’t abuse its discretion.
¶ 17 First, Session’s second and third motions were late. In his
second request, Session asked the court to appoint a new attorney
just twelve days before trial in a serious felony case. Session’s third
request was made the same day as his trial was set to begin. To
accommodate either request, the court would have had to continue
the trial for a fourth time. Although the interest in judicial
efficiency doesn’t override a defendant’s right to counsel, it is a
relevant consideration in determining whether to allow substitution
of counsel. See Arguello, 772 P.2d at 94.
¶ 18 Second, under the circumstances, the court wasn’t required to
conduct further inquiry into Session’s second and third requests.
8
Generally, upon receiving a motion to substitute counsel, a court
must conduct a hearing or inquire into the reasons for the
defendant’s request. See Bergerud, 223 P.3d at 694. But when a defendant’s written motion describes his complaints in sufficient detail, the court need not inquire further. See id.; see also People v. Arko,159 P.3d 713, 719
(Colo. App. 2006), rev’d on other grounds,183 P.3d 555
(Colo. 2008). Here, the trial court was able to
evaluate the nature of Session’s dispute with his counsel on the
basis of Session’s written motions and Session’s statements during
the November 21, 2013, hearing.
¶ 19 Third, with respect to whether the conflict prevented the
preparation of an adequate defense, we agree with the trial court’s
determination that Session failed to demonstrate that defense
counsel’s performance had been detrimental to Session’s defense.
The conflict, according to Session, arose largely from defense
counsel’s alleged failure to investigate certain evidence and
witnesses and his alleged failure to make certain evidence available
to the prosecution. But the record indicates that counsel made
reasonable efforts to investigate the evidence and witnesses
complained of. The record further indicates that counsel provided
9
the complained-of evidence to the prosecution, but hadn’t made
Session aware that he had done so. Session later described this as
a “miscommunication.”
¶ 20 Fourth, the record is unclear whether Session contributed to
any conflict with defense counsel, but our analysis of the other
three factors reveals adequate support for the trial court’s decision.
Because the decision finds support in the record, we conclude the
court didn’t abuse its discretion when it denied Session’s motions
for substitution of counsel.
¶ 21 Accordingly, we discern no error.
B. Habitual Criminal Adjudication
¶ 22 Session contends that he was entitled to a jury trial for his
habitual criminal adjudication. We disagree.
¶ 23 Although this issue wasn’t preserved, we exercise our
discretion to review an unpreserved constitutional challenge for the
first time on appeal. People v. Wiedemer, 852 P.2d 424, 433 n.9 (Colo. 1993). We review for plain error. Hagos v. People,2012 CO 63
, ¶ 14.
10
1. Legal Principles
¶ 24 In habitual criminal proceedings, the prosecution bears the
burden of proving beyond a reasonable doubt that the defendant
has been previously convicted as alleged. People v. Nunn, 148 P.3d
222, 225-28(Colo. App. 2006). Generally, any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Blakely v. Washington,542 U.S. 296, 303
(2004); Apprendi v. New Jersey,530 U.S. 466, 490
(2000). “Although there is some doubt about the continued vitality of the prior conviction exception,” Lopez v. People,113 P.3d 713, 723
(Colo. 2005), the United States Supreme Court and the Colorado Supreme Court have repeatedly affirmed the exception, see United States v. Booker,543 U.S. 220, 244
(2005); Blakely,542 U.S. at 301
; People v. Huber,139 P.3d 628, 631
(Colo. 2006); Lopez,113 P.3d at 723
.
¶ 25 Apprendi’s prior conviction exception extends to the additional
statutory factual findings for each prior conviction necessary to
support a habitual criminal sentence, including: (1) that each prior
conviction was separately brought and tried; (2) that they arose out
11
of separate and distinct criminal episodes; and (3) that the accused
was the person named in each prior conviction. Nunn, 148 P.3d at
226-28; see Lopez,113 P.3d at 726
; People v. Benzor,100 P.3d 542, 545
(Colo. App. 2004).
2. Discussion
¶ 26 We are unpersuaded that Session’s constitutional rights were
violated. Session doesn’t allege any flaws in the proceedings
resulting in his prior convictions. The trial court properly made
findings of fact regarding the prior convictions pursuant to the
habitual criminal statute and, in light of Lopez, Blakely, and
Apprendi, didn’t violate Session’s Sixth Amendment right under the
United States Constitution or Session’s rights under article II,
section 16 of the Colorado Constitution in doing so.
¶ 27 We are also unpersuaded by Session’s contention that Alleyne
v. United States, 570 U.S. 99(2013), did away with the prior conviction exception under the Sixth Amendment. The Supreme Court in Alleyne overruled Harris v. United States,536 U.S. 545
(2002), but Harris didn’t involve Apprendi’s prior conviction exception. See generally Harris,536 U.S. at 549
. Similarly, the
Court’s analysis in Alleyne and its discussion of Apprendi didn’t
12
alter Apprendi’s prior conviction exception to its general holding
regarding the Sixth Amendment. See Alleyne, 570 U.S. at 108-09.
The prior conviction exception from Apprendi and Blakely therefore
remains supported. Because the habitual criminal statute is
constitutional under the prior conviction exception, there was a
sufficient basis for the trial court, instead of a jury, to make
findings of fact regarding Session’s habitual criminal charges. We,
therefore, reject Session’s constitutional claim.
C. Proportionality of Session’s Sentence
¶ 28 Session contends that the trial court erred by imposing a
twenty-four-year sentence — triggered by his possession conviction
and five previous felony convictions — without conducting a
proportionality review. We agree and remand for a proportionality
review.
1. Additional Facts
¶ 29 Session’s habitual criminal sentence was triggered by his
class 4 felony conviction for possession of more than four grams of
a schedule II controlled substance in violation of section 18-18-
403.5(2)(a)(II), C.R.S. 2012. By the time of Session’s sentencing,
13
that offense had been reclassified as a level 4 drug felony. § 18-18-
403.5(2)(a), C.R.S. 2019.
¶ 30 Session’s five prior felony convictions are, as follows:
an April 6, 2004, conviction for possession of a schedule
IV controlled substance (a class 5 felony at the time of
conviction; a level 1 drug misdemeanor now and at the
time of sentencing in this case);
a May 19, 2004, conviction for conspiracy to possess a
schedule II controlled substance (a class 4 felony at the
time of conviction; a level 4 drug felony now and at the
time of sentencing in this case);
a March 9, 2004, conviction for conspiracy to possess a
schedule II controlled substance (class 4 felony at the
time of conviction; a level 4 drug felony now and at the
time of sentencing in this case);
a January 26, 1995, conviction for second degree
burglary (a class 4 felony then, at the time of sentencing,
and now); and
14
a June 15, 1993, conviction for attempted second degree
burglary (a class 5 felony then, at the time of sentencing,
and now).
2. Applicable Law
¶ 31 The Eighth Amendment and article II, section 20 of the
Colorado Constitution prohibit cruel and unusual punishments.
Wells-Yates, ¶¶ 5, 10. Those provisions require a sentence to be
proportionate to the crime. Solem v. Helm, 463 U.S. 277, 290(1983); Alvarez v. People,797 P.2d 37, 38
(Colo. 1990), abrogated on other grounds by Melton, ¶ 18. We review proportionality determinations de novo. Wells-Yates, ¶ 35. ¶ 32 To ensure sentences aren’t disproportionate, a criminal defendant convicted of being a habitual criminal is “entitled, upon request, to a proportionality review of his sentence.” People v. Deroulet,48 P.3d 520, 522
(Colo. 2002), abrogated on other grounds
by Wells-Yates, ¶¶ 63-65. The initial proportionality review, called
an abbreviated review, considers the gravity or seriousness of the
offenses and the harshness of the penalty. Wells-Yates, ¶ 11.
¶ 33 Generally, the gravity or seriousness of the offense requires a
consideration of the harm caused or threatened to the victim or
15
society and the culpability of the offender. Factors pertinent to the
harm to the victim or society include the absolute magnitude of the
crime, whether the crime is a lesser included offense or the greater
inclusive offense, whether the crime involves a completed act or an
attempt to commit an act, and whether the defendant was a
principal or an accessory after the fact in the criminal episode. Id.
at ¶ 12. As it relates to the defendant’s culpability, motive is
relevant, as is whether the defendant’s acts were negligent,
reckless, knowing, intentional, or malicious. Id.
¶ 34 However, if a crime is considered per se grave or serious, “a
trial court may skip the first subpart of step one — the
determination regarding the gravity or seriousness of the crimes —
and ‘proceed directly to the second subpart’ of that step — the
assessment related to the harshness of the penalty.” Id. at ¶ 13
(quoting Close v. People, 48 P.3d 528, 538(Colo. 2002), abrogated on other grounds by Wells-Yates) (citing Deroulet,48 P.3d at 524
)). A per se grave and serious crime is one that has been declared inherently grave or serious, such as aggravated robbery or accessory to first degree murder.Id.
(first citing Deroulet,48 P.3d at 524
; then citing Close,48 P.3d at 538
).
16
¶ 35 Wells-Yates, ¶ 63, sets forth a new standard by which courts
determine whether an offense is per se grave or serious:
[T]he designation of per se grave or serious for
purposes of a proportionality review must be
reserved for those rare crimes which, based on
their statutory elements, necessarily involve
grave or serious conduct. Put differently, a
crime should not be designated per se grave or
serious unless the court concludes that the
crime would be grave or serious in every
potential factual scenario. Using the
designation otherwise is fraught with peril.
¶ 36 For those crimes that aren’t per se grave or serious, courts
should consider the facts and circumstances underlying both the
defendant’s triggering and predicate offenses. Id. at ¶¶ 37-39.
Subsequent legislative amendments reducing the penalties for
certain offenses are also relevant considerations when assessing
whether the offenses are grave or serious. Id. at ¶¶ 40-53.
¶ 37 The harshness of the penalty includes a consideration of the
length of the sentence as well as parole eligibility. Id. at ¶ 14.
¶ 38 Taking these factors into consideration, during an abbreviated
proportionality review of a habitual criminal sentence, the court
must consider each triggering offense and the predicate offenses
together and determine whether, in combination, they are so
17
lacking in gravity or seriousness as to raise an inference that the
sentence imposed on that triggering offense is grossly
disproportionate. If that inference exists, an extended
proportionality review must be undertaken. If not, the sentence is
proportionate. Id. at ¶ 76.
¶ 39 Certain drug offenses, such as simple possession and use of a
controlled substance and possession with intent to distribute, are
no longer considered per se grave or serious offenses. Id. at ¶¶ 68-
73. And, it is an open question whether second degree burglary
and attempted second degree burglary are per se grave or serious
offenses. Id. at ¶ 65 nn.17 & 18; see also People v. Tran, 2020 COA
99, ¶¶ 94, 98-101 (acknowledging that in Well-Yates “the supreme
court declined to decide whether second degree burglary is still a
per se grave and serious offense,” but concluding that “on remand,
the trial court should not treat [the defendant]’s second degree
burglary convictions as per se grave and serious” and should
instead “analyze the facts of each offense to determine whether it is
grave and serious”).
18
3. Application
¶ 40 We first address whether, in light of Wells-Yates, any of
Session’s triggering or predicate offenses are per se grave and
serious. Because we conclude that none of his offenses are per se
grave and serious, we remand the case to the trial court to conduct
a proportionality review with instructions to analyze the facts and
circumstances surrounding each offense.
a. Drug Offenses
¶ 41 Session’s habitual criminal sentence was triggered by his
class 4 felony conviction for possession of more than four grams of
a schedule II controlled substance. § 18-18-403.5(2)(a)(II), C.R.S.
2012; § 18-18-403.5(2)(a), C.R.S. 2019. By the time he was
sentenced in 2014, this offense had been reclassified as a level 4
drug felony. Three of Session’s prior felony convictions were also
for drug offenses that, by the time of his sentencing, had been
reclassified as lower level offenses.
¶ 42 Before Wells-Yates, all drug-related crimes were, at least
arguably, per se grave and serious offenses. Deroulet, 48 P.3d at
524; see also Wells-Yates, ¶ 13. But see Ch. 333,2013 Colo. Sess. Laws 1900
-44 (reclassifying drug offenses in Colorado, reducing
19
sentences for those offenses, and calling into question whether drug
offenses were still per se grave and serious offenses). However, in
Wells-Yates the supreme court held that “drug offenses of
possession and possession with intent should no longer be
considered per se grave or serious.” Wells-Yates, ¶ 66. Instead, a
court’s determination of whether a drug possession offense is grave
or serious must be an individualized determination that turns “on
the facts and circumstances surrounding the specific crime
committed — i.e., [it should be] based on consideration of the harm
caused or threatened to the victim or society and the offender’s
culpability.” Id. at ¶ 69.
¶ 43 Thus, Session’s triggering offense and his three felony drug
possession convictions are conclusively no longer per se grave and
serious.
b. Second Degree Burglary and Attempted Second Degree
Burglary
¶ 44 Previously, the supreme court had held that both second
degree burglary and attempted second degree burglary were per se
grave and serious crimes. Deroulet, 48 P.3d at 524(holding that burglary is per se grave or serious); Close,48 P.3d at 536
(holding
20
that attempted burglary is per se grave or serious). In Wells-Yates,
¶ 65, the supreme court said that crimes it had previously
considered per se grave and serious like “[a]ggravated robbery,
burglary, accessory to first degree murder, and the sale or
distribution of narcotics . . . satisfy the standard [it] announce[d].”
Id.(footnote omitted). But, in a pair of footnotes, the court called into question whether “the designation of burglary as a per se grave or serious crime extends to third degree burglary . . . or even second degree burglary . . . .”Id.
at ¶ 65 nn.17 & 18 (noting that it “need
not, and therefore d[id] not, decide whether [attempted burglary]
should be considered per se grave or serious”). Because the issue
of whether second degree burglary remains a per se grave or serious
offense wasn’t before the court in Wells-Yates, it declined to resolve
it. Id.; see also Tran, ¶¶ 94, 98-101 (acknowledging that Wells-
Yates left open the issue of whether second degree burglary was per
se grave and serious).
¶ 45 The supreme court did, however, lay out a roadmap for
determining whether a crime should be designated as per se grave
and serious. Wells-Yates, ¶¶ 62-63. First, the supreme court
admonished that we should be cautious when designating a crime
21
per se grave and serious. Id. at ¶ 62. Second, our concern when
designating a crime per se grave and serious should be “magnified
in the habitual criminal context, where every sentence under review
has been imposed without the trial court’s exercise of discretion.”
Id. And, third, we shouldn’t designate a crime per se grave and
serious “unless [we] conclude[] that the crime would be grave or
serious in every potential factual scenario.” Wells-Yates, ¶ 63
(emphasis added).
¶ 46 Applying these principles, we conclude that second degree
burglary and attempted second degree burglary aren’t per se grave
and serious offenses in the wake of Wells-Yates. This is because
they aren’t crimes that are grave or serious in every factual
scenario.
¶ 47 To be sure, first degree burglary is per se grave and serious
because it is grave and serious in every permutation. Id. at ¶ 65.
First degree burglary is committed when a person unlawfully enters
a “building or occupied structure” with the intent to commit a crime
therein against another person or property and, while doing so, “the
person or another participant in the crime assaults or menaces any
person, the person or another participant is armed with explosives,
22
or the person or another participant uses a deadly weapon or
possesses and threatens the use of a deadly weapon.” § 18-4-
202(1), C.R.S. 2019. Simply by satisfying the elements of first
degree burglary, the offender has placed others in grave danger.
¶ 48 In contrast, “[a] person commits second degree burglary, if the
person knowingly breaks an entrance into, enters unlawfully in, or
remains unlawfully after a lawful or unlawful entry in a building or
occupied structure with intent to commit therein a crime against
another person or property.” § 18-4-203, C.R.S. 2019. While this
crime can, in some cases, be grave or serious, it isn’t always. For
example, one can commit second degree burglary by entering an
unoccupied garage and stealing a bicycle. One could also commit
second degree burglary by entering an abandoned building to steal
copper wiring. Neither of these versions of second degree burglary
are likely to be grave or serious. But, one can also commit second
degree burglary by entering an occupied garage or home and
stealing the owner’s personal effects, risking a dangerous
confrontation. That would be grave and serious.
23
¶ 49 Thus, applying Wells-Yates we conclude that second degree
burglary (and attempted second degree burglary) are no longer per
se grave and serious crimes.4
c. Proportionality Review
¶ 50 Not having the benefit of Wells-Yates, McRae, or Melton, the
trial court — and this division in our earlier opinion — concluded
that Session’s sentence was proportionate under the then-governing
law. However, after Wells-Yates, none of Session’s prior convictions
4 Wells-Yates v. People, 2019 CO 90M, partially abrogated People v. Deroulet,48 P.3d 520
(Colo. 2002), and Close v. People,48 P.3d 528
(Colo. 2002). Deroulet held that burglary offenses, including second
degree burglary, were per se grave and serious crimes. 48 P.3d at
524. And Close held that attempted burglary offenses, including
attempted second degree burglary, were also per se grave and
serious crimes. 48 P.3d at 536. The supreme court in Wells-Yates
explicitly didn’t resolve whether second degree burglary or
attempted second degree burglary are still per se grave and serious
crimes. However, it did set a new standard for which offenses
constitute per se grave and serious crimes. In doing so, it cited to
Deroulet and Close in a footnote, calling into question whether,
under this new standard, second degree burglary or attempted
second degree burglary would still be per se grave and serious
crimes. Wells-Yates, ¶ 65 nn.17 & 18. By explicitly declining to
resolve the per se grave and serious status of second degree
burglary and attempted second degree burglary, Wells-Yates
partially abrogates both earlier opinions such that lower courts are
no longer bound by Deroulet’s and Close’s holdings on those issues
when determining whether second degree burglary or attempted
second degree burglary are per se grave and serious crimes.
24
— for drug possession, second degree burglary, and attempted
second degree burglary — are per se grave and serious.. We
recognize that in conducting a proportionality review of Session’s
sentence, it it now necessary for a court to consider and weigh the
following:
Session’s April 6, 2004, conviction for possession of a
schedule IV controlled substance was a class 5 felony
punishable by one to three years in prison plus two years
of mandatory parole. §§ 18-1.3-401(V)(A), 18-18-
405(2)(a)(III)(A), C.R.S. 2004. He was sentenced to two
years in prison. In 2013, the offense was reclassified.
Ch. 333, sec. 10, § 18-18-405, 2013 Colo. Sess. Laws
1909-13.
Session’s May 19, 2004, conviction for conspiracy to
possess a schedule II controlled substance was a class 4
felony punishable by two to six years in prison, plus
three years of mandatory parole. §§ 18-1.3-401(V)(A), 18-
18-405(2)(a), C.R.S. 2004. He was sentenced to six years
in prison. After October 2013, the offense would have
been a level 4 drug felony punishable by six months to
25
one year in prison, plus one year of mandatory parole.
§§ 18-1.3-401.5(2)(a), 18-18-405(2)(d), C.R.S. 2019.
Session’s March 9, 2004, conviction for conspiracy to
possess a schedule II controlled substance was a class 4
felony punishable by two to six years in prison, plus
three years of mandatory parole. §§ 18-1.3-
401(1)(a)(V)(A), 18-18-405(2)(a), C.R.S. 2004. He was
sentenced to five years in prison. After October 2013, the
offense would have been classified as a level 4 drug
felony and punishable by six months to one year in
prison, plus one year of mandatory parole. §§ 18-1.3-
401.5(2)(a), 18-18-405(2)(d), C.R.S. 2019.
As of March 1, 2020, a defendant convicted of the drug
possession offenses Session was convicted of may be
eligible, upon successful completion of a community-
based sentence and treatment, to have the court vacate
his felony conviction and enter a conviction for a level 1
drug misdemeanor conviction instead. § 18-1.3-
103.5(2)(a), (b), C.R.S. 2019.
26
Simple possession of narcotics or conspiracy to possess
narcotics isn’t per se grave and serious. Wells-Yates, ¶ 2;
Melton, ¶ 11.
Session was convicted of second degree burglary in
January 1995 and attempted second degree burglary in
June 1993. At the time of sentencing, second degree
burglary and attempted second degree burglary were
both considered per se grave and serious offenses.
Deroulet, 48 P.3d at 524; Close,48 P.3d at 536
. In light
of Wells-Yates, ¶ 65 nn.17 & 18, and our analysis above,
we conclude that neither crime is per se grave and
serious. See also Tran, ¶¶ 94, 98-101.
Case law has identified other considerations: the change
in drug laws in this state, the harm caused or threatened
by the offenses, the magnitude of the offenses, whether
they were lesser included offenses or attempts, the
defendant’s culpability or mental state, and the
defendant’s parole eligibility.
¶ 51 While we recognize that we may perform our own abbreviated
proportionality analysis, we decline to do so because such a review
27
requires “an analysis of the facts and circumstances surrounding
[each triggering offense] and the facts and circumstances
surrounding . . . [the] predicate offense[],” and because the trial
court is “‘uniquely suited’ to make these factual determinations.”
Wells-Yates, ¶ 75 (quoting People v. Gaskins, 825 P.2d 30, 35 (Colo.
1992)). We therefore remand to the trial court to conduct the
abbreviated proportionality review under Wells-Yates, Melton, and
McRae, and, if it determines it is warranted, an extended
proportionality review. We express no opinion on the outcome of
that review, including whether an extended proportionality review
will be warranted.
III. Conclusion
¶ 52 The judgment of conviction is affirmed, the sentence is
vacated, and the case is remanded for a new proportionality review.
JUDGE DAILEY and JUDGE HAWTHORNE concur.
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