People v. Wells-Yates

545 P.3d 529

2023 COA 120

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Belinda May WELLS-YATES, Defendant-Appellant.

Court of Appeals No. 21CA1147

Colorado Court of Appeals, Div. VII.

Announced December 14, 2023

Rehearing Denied January 18, 2024

El Paso County District Court No. 12CR2355, Honorable David L. Shakes, Judge

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffrey, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE SCHOCK

¶ 1 This case returns to us four years after our supreme court’s seminal opinion in the same case regarding proportionality review of a habitual criminal sentence. In that opinion, Wells-Yates v. People, 2019 CO 90M, 454 P.3d, 191, the court provided extensive guidance on how to conduct that review. But it did not decide whether the sentences imposed on defendant, Belinda May Wells-Yates, in this case were unconstitutional. It instead returned the case to the district court to conduct a new proportionality review in light of its opinion.

¶ 2 Now, after the district court upheld the sentences, Wells-Yates asks us to decide that question, as well as a preliminary one the supreme court did not address: What facts and evidence may a court consider in conducting an abbreviated proportionality review?

[1] ¶ 3 We hold that a district court has discretion to determine what evidence it considers in assessing the facts and circumstances of a predicate offense and that arrest warrant affidavits may serve as one such type of evidence. In exercising that discretion, however, the court must remain mindful that its purpose is to assess the gravity or seriousness of the offense of conviction. Although the court may look beyond the elements of that offense to the facts and circumstances of the offense as committed—including to facts that would constitute a greater or different offense—those facts may not substitute for consideration of the predicate offense itself.

¶ 4 We further conclude that Wells-Yates’s sixty-four-year sentence for possession with intent to distribute methamphetamine raises an inference of gross disproportionality sufficient to warrant an extended proportionality review, but that her other sentences do not. We therefore reverse the sentence for possession with intent to distribute and remand for the district court to conduct an extended proportionality review of that sentence. We otherwise affirm.

I. Background

¶ 5 Wells-Yates was convicted by a jury of second degree burglary (of a dwelling), conspiracy to commit second degree burglary (also of a dwelling), theft, possession with intent to distribute methamphetamine, and four counts of identity theft.

¶ 6 Six of the eight counts—all but possession with intent and one count of identity theft—stemmed from Wells-Yates’s burglary of a home that had been evacuated due to the approaching Waldo Canyon wildfire. See Wells-Yates, ¶ 30 (summarizing underlying facts). When Wells-Yates was arrested, she had "a bag containing a small amount of methamphetamine, a set of scales, small plastic bags, and other drug paraphernalia," which led to the possession with intent count. Id. The fourth identity theft count arose from Wells-Yates’s sale of a stolen birth certificate, social security card, and driver’s license to an undercover officer. Id. at ¶ 29.

¶ 7 Wells-Yates was adjudicated a habitual criminal based on three prior felony convictions: a 1996 conviction for possession with intent to distribute methamphetamine, a 1997 conviction for possession of methamphetamine, and a 1999 conviction for possession of methamphetamine. Id at ¶ 31. The habitual criminal adjudication dictated a sentence for each offense of four times the maximum of the presumptive range. Id at ¶ 32; § 18-1.3-801(2)(a)(I)(A), C.R.S. 2023. The court sentenced Wells-Yates accordingly to sixty-four years for possession with intent,¹ fortyeight years for second degree burglary, and twenty-four years for each of the other counts. The sentences for second degree burglary and the fourth identity theft count were ordered to run consecutively, with all other sentences running concurrently.

¶ 8 Wells-Yates requested an abbreviated proportionality review of her sentences. The district court conducted that review and concluded that the sentences were not unconstitutionally disproportionate. A division of this court affirmed on appeal.

¶ 9 The supreme court then reversed the division’s decision in an opinion that clarified several issues relating to the proportionality review framework. But the court did not decide whether Wells-Yates’s sentences were unconstitutional. Wells-Yates, ¶ 74. Instead, it remanded the case to the district court to conduct a new proportionality review consistent with the opinion. Id at ¶ 76.

¶ 10 On remand, the district court held an evidentiary hearing and issued a written order, again concluding that none of the sentences created an inference of gross disproportionality. At the hearing, the district court admitted and considered, over Wells-Yates’s objection, arrest warrant affidavits for Wells-Yates’s predicate convictions.

II. Analysis

¶ 11 Wells-Yates argues that each of her sentences raises an inference of gross disproportionality, thus requiring an extended proportionality review of those sentences. She further contends that, by concluding otherwise, the district court violated the supreme court’s mandate by (1) failing to consider the relative seriousness of her offenses based on objective criteria and (2) failing to consider the nature and effect of legislative changes.

¶ 12 We reject Wells-Yates’s framing of this issue as a violation of the mandate rule. See Owners Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 24, 499 P.3d 1069. The supreme court’s mandate in this case was for the district court to conduct a new abbreviated proportionality review consistent with the supreme court opinion. Wells-Yates, ¶ 76. The district court did that. In doing so, it expressly considered several of the objective factors of seriousness identified in Wells-Yates, including changes in the relevant statutes concerning drug offenses and habitual criminal sentencing.

[13] What Wells-Yates really challenges is the district court’s conclusion that her sentences do not give rise to inferences of gross disproportionality—-a point the supreme court did not decide, Id at ¶ 75, Thus, although we conclude that the district court complied with the supreme court’s mandate, we will proceed to consider Wells-Yates’s substantive challenge to its conclusions,

A. Proportionality Framework

[2] ¶ 14 Both the United States and Colorado Constitutions prohibit "grossly disproportionate" sentences, Wells-Yates, ¶¶ 5, 10. Proportionality is a "foundational ‘precept of justice’ " that "dictates that the punishment should fit the crime," Id at ¶ 1 (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). That inquiry is not static but must take into account "the evolving standards of decency that mark the progress of a maturing society." Id at ¶ 46 (quoting Graham v. Florida, 560 U.S, 48, 58, 130 g.Ct. 2011, 176 L.Ed.2d 825 (2010)). "The standard itself remains the same, but its applicability must change as the basic mores of society change." Graham, 560 U.S. at 58, 130 S.Ct, 2011 (quoting Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. .2641, 171 L.Ed.2d 525 (2008)).

[3–5] ¶ 15 When a defendant challenges the proportionality of a sentence, the court must first conduct an abbreviated proportionality review. Wells-Yates, ¶¶ 7, 11. At this stage, the court must consider the gravity or seriousness of the offense and the harshness of the penalty to determine whether the sentence gives rise to "an inference of gross disproportionality." Id. at ¶¶ 7, 8, 11. If (and only if) it does, the court conducts an extended proportionality review, comparing the defendant’s sentence to sentences for other crimes in the same jurisdiction and sentences for the same crime in other jurisdictions to "validate [the] initial judgment" that the sentence is grossly disproportionate to the crime. Id. at ¶¶ 7, 8,17 (quoting Hamelin v. Michigan, 501 U.S. 957,1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)).

[6–8] ¶ 16 Habitual criminal sentences present unique proportionality concerns because they drastically increase the punishment for a crime and strip the sentencing court of its discretion. Id. at ¶¶ 19–20. Even so, the proportionality of such a sentence cannot be divorced from the defendant’s history of recidivism. Id. at ¶ 23. Thus, in conducting an abbreviated proportionality review of a habitual criminal sentence, the court must consider (1) the gravity or seriousness of all the offenses in question—the triggering and predicate offenses; and (2) the harshness of the sentence on the triggering offense. Id. When there are multiple triggering offenses, the court reviews each sentence separately to determine "whether the corresponding triggering offense and the predicate offenses, considered together, are so lacking in gravity or seriousness as to suggest that the sentence is grossly disproportionate." Id. at ¶ 24.

[9–11] ¶ 17 Gross disproportionality is a question of law that we review de novo, "not a sentencing decision requiring deference to the trial court." Id. at ¶ 35. Necessarily, then, the two subparts of that inquiry—the gravity or seriousness of the offense and the harshness of the penalty—are also questions of law that we review de novo. See People v. Kennedy, 2023 COA 83M, ¶¶ 26–31, 541 P.3d 11 (considering whether the defendant’s offense was grave or serious after rejecting district court’s conclusion that it was per se grave or serious). We defer to the district court’s factual findings, including those concerning the facts and circumstances surrounding the offense, if they...