People v. Wayne Tc Sellers IV ( 2022 )

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
September 8, 2022
2022COA102No. 19CA2033, People v. Sellers — Crimes — Felony Murder;
Criminal Law — Sentencing — Presumption of Concurrence —
Life Imprisonment Without the Possibility of Parole;
Constitutional Law — Eighth Amendment — Cruel and Unusual
Punishments — Proportionality Review — Per Se Grave or
Serious Offenses
A division of the court of appeals addresses three issues of
first impression, holding that (1) when a court imposes sentence on
multiple counts contemporaneously, and the court’s
pronouncement is silent or ambiguous as to whether the sentences
are concurrent or consecutive, the sentences are presumed to be
concurrent; (2) a sentence of life without the possibility of parole for
the crime of felony murder is not categorically unconstitutional; and
(3) felony murder is a per se grave or serious offense for purposes of
an abbreviated proportionality review.
COLORADO COURT OF APPEALS 2022COA102Court of Appeals No. 19CA2033
El Paso County District Court No. 18CR6275
Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Wayne Tc Sellers IV,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART,
VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Dailey and Hawthorne*, JJ., concur
Announced September 8, 2022
Philip J. Weiser, Attorney General, Katharine J. Gillespie, Assistant Attorney
General, Carson D. Schneider, Assistant Attorney General Fellow, Denver,
Colorado, for Plaintiff-Appellee
Krista A. Schelhaas, Alternate Defense Counsel, Littleton, 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. 2021.
¶1 Defendant, Wayne Tc Sellers IV, and several companions
robbed two drug dealers at gunpoint. One of Sellers’s companions
shot and killed the second victim. A jury convicted Sellers of five
charges related to the victim who was killed: felony murder, three
counts of attempted aggravated robbery, and conspiracy to commit
aggravated robbery. The jury also convicted Sellers of aggravated
robbery related to the other victim.
¶2 Sellers appeals his conviction and also challenges his
sentence. We affirm his conviction and his sentence for felony
murder but vacate his consecutive sentence for aggravated robbery.
In addressing the challenges to his sentence, we address three
issues of first impression: (1) we reject his categorical attack on his
sentence to life without the possibility of parole for felony murder;
(2) we conclude that felony murder is a per se grave or serious
offense for purposes of an abbreviated proportionality review; and
(3) we hold that where the trial court does not specify whether a
defendant’s contemporaneously announced sentences are to be
concurrent with or consecutive to one another, they are presumed
to run concurrently.
1
I. Sellers’s Attacks on His Conviction
¶3 Sellers raises two challenges to his conviction. He argues that
the trial court erred by denying his motion to suppress statements
he made to a detective. And he contends that the prosecutor
engaged in misconduct warranting reversal. We address, and
reject, each contention.
A. Motion to Suppress
¶4 According to the testimony at the motions hearing, El Paso
County Detective Jason Darbyshire, who had located Sellers in
Holyoke, Colorado, arrested Sellers with the assistance of local law
enforcement officers. Before Sellers was taken to the Phillips
County Sheriff’s Office, Darbyshire told him,
You are under arrest currently for an active
warrant for first degree murder. Okay. Uh,
basically, what I want to tell you is I would like
to give you an opportunity to get your version
of events out there; speak with you; see what
went down. Okay? Obviously, I’ve got a lot of
information ‘cause that’s why I’m here talking
to you. But, it’s up to you, if you don’t want to
talk to me then, then that’s your right to. But
if you do want to speak then we can go back to
their police station we can have a chat and
maybe iron a couple of things out.
2
Darbyshire asked Sellers what he wanted to do, and Sellers replied,
“[U]h, which would be better?” Darbyshire responded,
Well, I mean, it’s totally up to you man. Okay.
You are under arrest either way. Okay. So
there’s a lot of. Before we can talk about the
specifics of the case there’s a lot of
administrative parts and stuff that we’ve got to
cover and a lot of legal stuff that you need to
be aware of. Okay? So, do you think that is
something you would like to do is make a
statement in reference to this case? Or, is that
not something you would like to do?
¶5 Sellers answered, “It is.” Darbyshire then explained to him
that he would be transported to the Phillips County Sheriff’s Office
to “hopefully get some things squared out.”
¶6 At the sheriff’s office, Darbyshire read Sellers his Miranda
rights, see Miranda v. Arizona, 384 U.S. 436 (1966).1 After reading
1 The Miranda advisement was as follows:
There are certain constitutional rights that are
afforded to you. You’ve probably heard it a
million times in television, movies, whatever,
but I’m going to explain those to you now.
Okay. Just so we’re on the same page. You do
have the right to remain silent. Anything you
say can and will be used against you in a court
of law. You have the right to hire an attorney
and have him or her present during any
questioning if you wish. If you cannot afford to
3
Sellers his rights, Darbyshire asked him, “[D]o you understand
those rights as I’ve explained them to you?” Sellers said, “Yes.”
Darbyshire then confirmed that Sellers still wished to speak with
him. Sellers, again, said yes.
¶7 The questioning, which was video-recorded, took place shortly
after midnight and lasted ninety minutes. Sellers gave his version
of the events, answered Darbyshire’s questions, and even drew
pictures to help illustrate certain scenes from the robberies.
¶8 Before trial, Sellers moved to suppress the initial audio-
recorded police stop and the video-recorded interview at the sheriff’s
office. The trial court denied the motion as to both recordings. At
trial, only the video-recorded interview was admitted.
1. Standard of Review
¶9 When reviewing a suppression order, we defer to the trial
court’s factual findings if they are supported by competent evidence
in the record. Verigan v. People, 2018 CO 53, ¶ 18. However,
hire an attorney, one will be appointed to
represent you before any questioning if you
decide to do that route. You can decide at any
time not to make any statements or answer
any questions.
4
“[w]hen the interrogation is audio or video-recorded, and there are
no disputed facts outside the recording pertinent to the suppression
issue, we are in the same position as the trial court in determining
whether the statements should or should not be suppressed under
the totality of the circumstances.” People v. Ramadon, 2013 CO 68,
¶ 21. In that case, we review de novo the legal effect of those facts.
People v. Liggett, 2014 CO 72, ¶ 19.
2. Analysis
¶ 10 We disagree with Sellers’s contention that his waiver of his
Miranda rights was not voluntary, intelligent, and knowing.
¶ 11 “A waiver of Miranda rights is involuntary ‘only if coercive
governmental conduct — whether physical or psychological —
played a significant role in inducing the defendant to make the
confession or statement.’” People v. Jiminez, 863 P.2d 981, 984
(Colo. 1993) (quoting People v. May, 859 P.2d 879, 883 (Colo.
1993)). We look to the totality of the circumstances to determine
whether an interrogation was coercive and consider the following
nonexclusive factors:
 whether the defendant was in custody;
 whether the defendant was free to leave;
5
 whether the defendant was aware of the situation;
 whether the police read Miranda rights to the defendant;
 whether the defendant understood and waived Miranda
rights;
 whether the defendant had an opportunity to confer with
counsel or anyone else prior to or during the
interrogation;
 whether the statement was made during the
interrogation or volunteered later;
 whether the police threatened the defendant or promised
anything expressly or impliedly;
 the method of the interrogation;
 the defendant’s mental and physical condition just prior
to the interrogation;
 the length of the interrogation;
 the location of the interrogation; and
 the physical conditions of the location where the
interrogation occurred.
People v. Zadran, 2013 CO 69M, ¶ 11.
6
¶ 12 We disagree with Sellers that his waiver was invalid because
he was encouraged to speak before being read his Miranda rights.
Rather, Darbyshire told Sellers twice that he was giving him the
option to tell his version of the events. Darbyshire also said, “[I]f
you don’t want to talk to me then, then that’s your right to” and “it’s
totally up to you man.” Moreover, Darbyshire needed to know
where to take Sellers: if Sellers wished to talk, he would be taken to
the sheriff’s office for questioning; if not, he would be taken to the
jail for booking. None of these statements encouraged Sellers to
speak; they merely gave Sellers the option to do so.
¶ 13 We further disagree with Sellers that the following statements
made by Darbyshire were improper promises that induced him to
speak:
 “I kinda just want to give you a chance to explain
what happened and how all that went down just so I
have a clear picture of how everything transpired.”
 “Here’s the deal, I know you don’t know me, but I
mean this isn’t an act. I’m a [sic] shoot straight
with you and if stuff is not good news, I’ll tell you
it’s not good news.”
7
 “I’m going to make sure that you get a fair shake as
well.”
These statements are not promises and were not coercive. See id.
at ¶ 19 (concluding that the statement made by an officer that “it
would be in [the defendant’s] best interest” to speak was not
coercive).
¶ 14 And we disagree with Sellers that his experience in the army,
where soldiers are expected to answer questions in a
command-heavy environment, influenced him to waive his Miranda
rights.2 First, we note that there is no evidence that Darbyshire
was aware of Sellers’s military background or attempted in any way
to take advantage of it. See People v. Cisneros, 2014 COA 49, ¶ 84
(“[A] defendant’s weakened mental condition, in the absence of
deliberate exploitation and intimidation by law enforcement officers,
is insufficient to render the defendant’s statements involuntary.”).
In any event, the trial court noted that Sellers was only in the
military for two years. And he was discharged for underage
2At the motions hearing, Sellers provided expert testimony
explaining the impact his military service had on his ability to
consent for an interview.
8
drinking after being pulled over for driving under the influence.
Based on these facts, the trial court concluded, with record
support, that Sellers’s military background and experience did not
impact the voluntariness of his waiver.
¶ 15 Lastly, we disagree with Sellers’s emphasis that his age —
twenty years old — contributed to him believing he had no choice
but to speak with Darbyshire. See People v. Kaiser, 32 P.3d 480,
484 (Colo. 2001) (holding that age is another factor for courts to
consider in analyzing whether a Miranda waiver is valid); Fare v.
Michael C., 442 U.S. 707, 726-28 (1979) (noting that even juveniles
can validly waive their Miranda rights).
¶ 16 Under the totality of the circumstances, Darbyshire’s behavior
did not overbear Sellers’s will and, therefore, we conclude that
Sellers’s waiver and his subsequent statements were voluntary. See
Zadran, ¶ 10.
¶ 17 Next, we disagree with Sellers that his waiver was not knowing
and intelligent because he was intoxicated and not properly advised
of his Miranda rights.
¶ 18 A waiver must be made with full awareness regarding the
nature of the rights being abandoned and the consequences of
9
abandoning them. See Jiminez, 863 P.2d at 984. “[I]ntoxication
only invalidates an otherwise valid Miranda waiver if the court finds
by a preponderance of the evidence that the defendant was so
intoxicated as to be incapable of understanding the nature of his or
her rights and the ramifications of waiving them.” People v. Bryant,
2018 COA 53, ¶ 38. Sellers self-reported that he used marijuana
two hours before the interrogation and cocaine nearly five hours
before the interrogation. However, Sellers was not so intoxicated
that he did not understand his rights and the consequences of
waiving them. See id. Rather, as is clear from the video recording,
Sellers was coherent, alert, and responsive during the interrogation.
¶ 19 We also disagree with Sellers that the Miranda advisement was
insufficient because Darbyshire emphasized the word “hire,” did not
say that an appointed attorney would be free, did not pause to ask
Sellers if he understood each sentence, and read the advisement
quickly and in a casual tone.
¶ 20 When officers inform suspects of their rights, the rights need
not be rigidly expressed exactly as described in Miranda.
Duckworth v. Eagan, 492 U.S. 195, 202 (1989). Rather, the
warning needs to reasonably convey to the suspect their rights as
10
required by Miranda. Id. at 203; see Sanchez v. People, 2014 CO
56, ¶¶ 16-17 (noting that Miranda advisements do not need to
include terms like “free of charge”). When Darbyshire told Sellers
that if he could not “afford to hire an attorney, one [would] be
appointed to represent [him] before any questioning,” he clearly
communicated that an appointed attorney is free.3 Further,
Darbyshire also emphasized that Sellers could “decide at any time
not to make any statements or answer any questions.” Finally, we
are aware of no Colorado case law — and Sellers points us to none
— requiring an officer to pause after each advisement to ask
whether the suspect understood it. Thus, we conclude that
Darbyshire reasonably conveyed Sellers’s rights to him.
¶ 21 In sum, Sellers voluntarily, intelligently, and knowingly waived
his rights. And his statements during the interrogation were
voluntary. Thus, the trial court did not err by denying the motion
to suppress.
3 Contrary to Sellers’s argument, Darbyshire’s vocal emphasis on
the word “hire” actually drew a clear distinction between Sellers’s
right to hire an attorney and, if he could not afford one, his right to
have an attorney appointed to represent him.
11
B. Prosecutorial Misconduct
¶ 22 We also disagree with Sellers that the prosecutor committed
misconduct in opening statement and closing statement by
improperly (1) expressing a personal opinion about Sellers’s guilt,
and (2) vouching for the credibility of witnesses.
1. Standard of Review
¶ 23 We determine whether a prosecutor’s conduct was improper
based on the totality of the circumstances. Wend v. People, 235
P.3d 1089, 1096 (Colo. 2010). In doing so, we evaluate claims of
improper argument in the context of the argument as a whole and
in light of the evidence before the jury. People v. Conyac, 2014 COA
8M, ¶ 132.
2. Analysis
¶ 24 We disagree with Sellers that the prosecutor expressed her
personal opinion about his guilt during opening and closing
statements by repeating that he “knew what he was doing.” In the
prosecutor’s opening statement, she used this phrase to preview the
evidence that she planned to introduce at trial and drew a
reasonable inference from that evidence — that Sellers was a
knowing participant in the offenses. See People v. Samson, 2012
12
COA 167, ¶ 31 (Prosecutors may “employ rhetorical devices and
engage in oratorical embellishment and metaphorical nuance.”).
Similarly, during her closing argument the prosecutor used this
same phrase to summarize the evidence presented and to draw the
same reasonable inference from that evidence. See id. (“Prosecutors
may comment on the evidence admitted at trial and the reasonable
inferences that can be drawn therefrom.”). Contrary to Sellers’s
argument, nothing in the prosecutor’s theme in any way expressed
the prosecutor’s personal beliefs.
¶ 25 Nor did the prosecutor express her personal opinion about
Sellers’s guilt when, in closing argument, she said that “the
defendant[] is absolutely guilty of all the crimes we’ve charged” him
with. “Whether a statement improperly expresses the personal
opinion of a prosecutor . . . requires a reviewing court to consider
the language used, the context in which the statement was made,
and any other relevant factors.” Domingo-Gomez v. People, 125 P.3d
1043, 1051 (Colo. 2005).
¶ 26 The prosecutor was prefacing her argument that the evidence
contradicted Sellers’s abandonment theory and was emphasizing
the lack of evidence to support such a theory. See People v.
13
Denhartog, 2019 COA 23, ¶ 55 (noting that a prosecutor’s
comments in direct response to defense arguments were not
prejudicial misconduct); cf. People v. Esquivel-Alaniz, 985 P.2d 22,
23 (Colo. App. 1999) (“[C]omment on the lack of evidence confirming
a defendant’s theory of the case is permissible . . . .”). Further, the
prosecutor’s statement was not preceded by an assertion of
personal belief. See Samson, ¶¶ 33, 38 (perceiving no prosecutorial
misconduct where prosecutor’s statements that “[t]he defendant is
guilty” and “[h]e did this” were not preceded by a phrase like “I
believe”). Indeed, a prosecutor would effectively be prohibited from
arguing their case if they could not even express that the admitted
evidence was sufficient to convict the defendant. See People v.
Merchant, 983 P.2d 108, 115 (Colo. App. 1999) (concluding that
prosecutor’s comment “that the ‘[defendant’s] guilty of the crime of
theft,’ merely expressed the proposition that the evidence was
sufficient to sustain a conviction” and was proper) (alteration in
original).
¶ 27 Similarly, when viewed in context, the prosecutor’s statement
during rebuttal that “[w]e believe we met our burden” was not
improper. She made this statement while discussing a question on
14
the jury verdict form that the jurors would only reach if they first
found that the prosecution had met its burden of proving the
underlying offenses. The full context of her statement is important:
If you don’t think we’ve proved beyond a
reasonable doubt he’s guilty of these crimes,
you don’t ever have to get to this, but we
believe we did. We believe we met our burden.
And if you believe likewise, we’re gonna ask
you to find the easy question, that he also had
a deadly weapon.
¶ 28 Although the reference to the prosecution’s “belief” was
unnecessary and inartful, in context it is clear that the prosecutor
was merely asserting that the evidence of Sellers’s guilt was
sufficient for the jury to reach the question of whether he possessed
a deadly weapon. And, significantly, the prosecutor emphasized
that it was the jury’s job to decide this issue. Thus, we do not
consider these statements “to have fallen to the level of improper
expressions of the prosecutor’s personal opinion.” Domingo-Gomez,
125 P.3d at 1052.
¶ 29 We also disagree with Sellers that the prosecutor improperly
vouched for the credibility of witnesses in her opening statement
when she said,
15
Now, I’m going to be up front with you. We
had to make a deal with witnesses in order to
get their truthful testimony. Now, we don’t like
doing that. And you probably don’t like to
hear that. But it is literally the only way we
get an inside view of what happened that
night. And I’m being up front with you so you
know that.
¶ 30 In opening statement, a prosecutor is permitted to mention
evidence that they believe in good faith will be admissible. See
People v. Lucero, 714 P.2d 498, 503 (Colo. App. 1985) (citing 1 ABA,
Standards for Criminal Justice, Standard 3-5.5 (2d ed. 1982)). The
specifics of a plea agreement between the prosecution and a witness
— including the requirement that the witness provide “truthful
testimony” — is admissible, at least where the prosecutor does not
express an opinion that the witness actually told the truth and
there is no suggestion that the prosecutor possesses information
unavailable to the jury. People v. Coughlin, 304 P.3d 575, 582-83
(Colo. App. 2011).
¶ 31 The plea agreement for one of the witnesses, which provides
that the witness was agreeing to “testify truthfully,” was admitted
into evidence. Moreover, nothing in the prosecutor’s statement
amounted to an expression of the prosecutor’s personal opinion
16
that the witness would in fact testify truthfully (as opposed to
merely stating that the witness agreed to do so). Nor did the
statement suggest that the prosecutor “appeared to possess
information unavailable to the jury.” Id. at 582. Thus, the
prosecutor’s statement about the plea agreement was proper.
¶ 32 In sum, we discern no prosecutorial misconduct and, thus, no
error by the trial court in failing to intervene.4
II. Sellers’s Attacks on His Sentence
¶ 33 Sellers levies two attacks on his sentence, the second of which
has two alternative bases. He contends that the imposition of a
consecutive sentence for his aggravated robbery conviction
constitutes double jeopardy because, although the court did not
address whether the sentence would be concurrent or consecutive
to the felony murder sentence in its oral remarks, the mittimus
later provided that it was consecutive. And he argues that his
sentence to life without the possibility of parole for felony murder is
4 Sellers contends that even if the purported instances of
prosecutorial misconduct addressed in Part I.B of this opinion do
not individually rise to reversible error, their cumulative prejudicial
effect does. See Howard-Walker v. People, 2019 CO 69, ¶¶ 24-25.
However, because we discern no error at all, there can be no
cumulative error.
17
categorically or, alternatively, grossly disproportionate. We agree
with his first contention but reject both aspects of his second.
A. Consecutive Sentence
¶ 34 We review de novo whether a sentence is illegal. People v.
Chirinos-Raudales, 2021 COA 37, ¶ 33 (cert. granted Dec. 20, 2021).
¶ 35 A court may not change a sentence from concurrent to
consecutive after a defendant has begun serving it. People v.
Sandoval, 974 P.2d 1012, 1015 (Colo. App. 1998). “Such an
increase in the sentence is impermissible even if the court alters the
sentence solely to conform to or clarify its original intent.” Id. In
Sandoval, a division of this court held that “where the trial court is
advised of a pre-existing Colorado sentence but does not specify
whether the new sentence is to be concurrent with or consecutive to
the prior sentence, the new sentence will be presumed to run
concurrently with the prior sentence.” Id. However, no published
Colorado case addresses whether this presumption of concurrency
applies to contemporaneously announced sentences — rather than
a pre-existing sentence and a new sentence — when the record is
silent as to whether the defendant’s sentences are to be concurrent
or consecutive. Doing so for the first time, we conclude that it does.
18
¶ 36 In discussing the presumption of concurrency,5 the division in
Sandoval cited cases that applied a presumption of concurrency to
sentences announced contemporaneously where the record was
similarly silent. Id. at 1014-15. For example, the division cited
Borum v. United States, 409 F.2d 433, 440 (D.C. Cir. 1967), in
which the court held that absent a specification of consecutiveness,
multiple sentences operate concurrently whether they are
pronounced contemporaneously or at different times or pertain to
the same or different matters. Sandoval, 974 P.2d at 1014-15. And
the division noted that “[i]n Graham v. Cooper, 874 P.2d 390 (Colo.
1994), the [S]upreme [C]ourt cited federal cases applying the
presumption of concurrency [for contemporaneous sentences], but
found them inapplicable where the original sentence
unambiguously imposed consecutive sentences.” Sandoval, 974
P.2d at 1014.
5 Although the division used the phrase “presumption of
concurrency,” People v. Sandoval, 974 P.2d 1012, 1015 (Colo. App.
1998), the presumption goes to whether the sentences imposed
were to run concurrently. The term is not intended to suggest that
there is an evidentiary presumption that must be overcome before a
sentencing court may exercise its discretion to impose a consecutive
sentence.
19
¶ 37 We see no reason why, where the record is silent, a
presumption that the court intended to impose concurrent
sentences would not apply when the trial court contemporaneously
sentences the defendant on more than one offense. “Sentences in
criminal cases should reveal with fair certainty the intent of the
court and exclude any serious misapprehensions by those who
must execute them.” Id. at 1015. “Adopting a presumption of
concurrency comports with ‘the general notion of holding the
Government to precision before a defendant can be jailed,’ and
requires that the prosecution and the court affirmatively suggest
and impose consecutive sentences if such are intended.” Id.(quoting United States v. Wenger, 457 F.2d 1082, 1084 (2d Cir.
1972)).
¶ 38 As noted, the trial court did not say during the sentencing
hearing that the sentence for aggravated robbery would be
consecutive to the sentence for felony murder. Of course, the
courts need not specifically use the word “consecutive.” See, e.g.,
Graham, 874 P.2d at 394 (noting that the transcript of the
sentencing proceeding unambiguously reflected a consecutive
sentence, in part because the court said the aggregate sentences
20
would “total ‘80 years’”). But we do not view the court’s sentencing
pronouncement as unambiguously indicating such an intent.
¶ 39 At the sentencing hearing, the trial court merged the five
convictions related to the victim who was killed, entering a single
conviction for felony murder, and sentenced Sellers to life without
the possibility of parole in the custody of the Department of
Corrections. Regarding his sentence for the aggravated robbery of
the other victim, the trial court said,
I do find that Count 13, the [aggravated
robbery] conviction, is a separate offense. It’s
further supported by a proven crime of
violence sentencing enhancer. The Court finds
that the maximum sentence of 32 years in the
Department of Corrections, followed by a
five-year period of parole, for Count 13 reflects
the serious violent nature of the event as the
Court heard the evidence and reflects the
jury’s verdict. It is an aggravated robbery.
¶ 40 Contrary to the People’s contention, the trial court’s language
does not evince an intent to impose a consecutive sentence.
Rather, the trial court had just explained that the other convictions
merged into the felony murder conviction, and its statements about
the aggravated robbery conviction and sentence being for a separate
21
offense explained why that conviction was not merged into the
felony murder conviction.
¶ 41 Accordingly, applying the presumption of concurrency, we
conclude that the court’s oral pronouncement imposed concurrent
sentences. Thus, the trial court impermissibly increased Sellers’s
sentence when, after Sellers had already begun serving his
sentence, it issued the mittimus providing that Sellers’s aggravated
robbery sentence would run consecutively to his felony murder
sentence.
B. Eighth Amendment Challenges
¶ 42 Embodied in the Eighth Amendment is the principle that
punishment for a crime must be proportionate to the offense.
Graham v. Florida, 560 U.S. 48, 59 (2010). There are two types of
Eighth Amendment challenges to sentences: (1) challenges to the
excessiveness of a particular punishment for a particular offender,
and (2) categorical challenges to sentences imposed based on the
“nature of the offense” or the “characteristics of the offender.” See
id. at 59-61; see also People in Interest of T.B., 2021 CO 59, ¶ 27.
¶ 43 Sellers contends that a sentence of life without the possibility
of parole for felony murder is categorically unconstitutional; in the
22
alternative, he contends that we should remand the case to the trial
court to conduct a proportionality review. We disagree that the
categorical approach is applicable. And because the record is
sufficient for us to do so, we conduct an abbreviated proportionality
review and conclude that Sellers’s sentence is proportional. See
People v. Cooper, 205 P.3d 475, 480 (Colo. App. 2008) (“Only when
an extended proportionality review is required must an appellate
court remand.”), abrogated on other grounds by Scott v. People, 2017
CO 16.
1. The Statutory Amendment
¶ 44 Sellers committed his offense on October 7, 2018. At that
time, felony murder was a class 1 felony. § 18-3-102(1)(b), C.R.S.
2018. As such, the minimum sentence was life in prison without
the possibility of parole. § 18-1.3-401(1)(a)(V)(A.1), (4)(a), C.R.S.
2018.
¶ 45 In 2021, the General Assembly reclassified felony murder as a
class 2 felony. Ch. 58, sec. 2, § 18-3-103, 2021 Colo. Sess. Laws
236. As a result, the maximum length of a sentence for this offense
was lowered to forty-eight years. § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I),
C.R.S. 2021. The General Assembly explicitly provided that the
23
reclassification only applies to offenses committed on or after
September 15, 2021. Ch. 58, sec. 6, 2021 Colo. Sess. Laws at 238.
2. Categorical Challenge
¶ 46 Sellers contends that a sentence of life without the possibility
of parole for felony murder is categorically unconstitutional, in large
part because of the subsequent legislative amendments to the
classification of and penalty for felony murder. We disagree
because the categorical approach is inapplicable.
a. Standard of Review and Applicable Law
¶ 47 We review de novo the constitutionality of statutes. T.B., ¶ 25.
¶ 48 Eighth Amendment challenges to criminal sentences usually
involve “comparing the gravity of the offense and the severity of the
sentence.” Graham, 560 U.S. at 60. However, on a few occasions,
the Supreme Court has “used categorical rules to define Eighth
Amendment standards.” Id.
¶ 49 Cases adopting categorical rules under the Eighth Amendment
employ a two-part test. Id. at 61. First, we look to ‘“objective
indicia of society’s standards’ . . . to determine whether there is a
national consensus against the sentencing practice at issue.” Id.
(quoting Roper v. Simmons, 543 U.S. 551, 572 (2005)). Then we
24
“determine in the exercise of [our] own independent judgment
whether the punishment in question violates the Constitution.” Id.b. Analysis
¶ 50 Until Graham, the only cases in which the Supreme Court had
used the categorical approach involved a determination that the
death penalty was impermissible for certain offenses or certain
types of offenders. Id. at 60; see also Coker v. Georgia, 433 U.S.
584, 593-96 (1977) (defendants convicted of sexual assault where
the victim did not die); Enmund v. Florida, 458 U.S. 782, 789-93
(1982) (defendants convicted of felony murder but who did not
actively participate in the use of lethal force); Ford v. Wainwright,
477 U.S. 399, 409 (1986) (defendants who are insane); Atkins v.
Virginia, 536 U.S. 304, 313-21 (2002) (defendants with cognitive
disabilities); Roper, 543 U.S. at 568 (juvenile offenders); Kennedy v.
Louisiana, 554 U.S. 407, 421 (2008) (defendants convicted of sexual
offense against a child where death neither occurred nor was
intended).
¶ 51 In Graham, the Supreme Court applied the categorical
approach in holding that the Eighth Amendment prohibits the
imposition of a life sentence without the possibility of parole on a
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juvenile offender who did not commit homicide. 560 U.S. at 61-62,
82. Then in Miller v. Alabama, 567 U.S. 460, 476 (2012), the
Supreme Court held that even for homicide offenses, a juvenile may
not be subject to a mandatory sentence of life without the
possibility of parole, and that the sentencing authority must take
into account the mitigating qualities of “an offender’s age and the
wealth of characteristics and circumstances attendant to it.”
¶ 52 Graham categorically prohibited a certain punishment for
certain offenses involving juveniles — namely, life without the
possibility of parole for nonhomicide offenses. Contrary to Sellers’s
argument, however, in Miller, the Supreme Court explicitly said that
its decision “does not categorically bar a penalty for a class of
offenders or type of crime.” 567 U.S. at 483. Rather, “it mandates
only that a sentencer follow a certain process — considering an
offender’s youth and attendant characteristics — before imposing a
particular penalty.” Id.6
6 In the wake of Miller v. Alabama, 567 U.S. 460 (2012), the
Supreme Court’s handling of this qualifying language has been
inconsistent. Compare Montgomery v. Louisiana, 577 U.S. 190,
201-04 (2016) (treating the rule announced in Miller as akin to a
“categorical constitutional guarantee[],” and thus a substantive rule
26
¶ 53 Significantly, however, in neither case did the Supreme Court
hold or even suggest that the categorical approach should be
applied to a life-without-parole sentence imposed on an adult in a
homicide offense. To the contrary, the Supreme Court noted in
Graham that “defendants who do not kill, intend to kill, or foresee
that life will be taken are categorically less deserving of the most
serious forms of punishment than are murderers.” 560 U.S. at 69
(emphasis added). And in Miller, the Supreme Court noted that
“children are constitutionally different from adults for purposes of
sentencing.” 567 U.S. at 471.
¶ 54 Sellers cites no case — and we are aware of none — extending
the categorical approach to cases not involving the death penalty or
juvenile offenders. In fact, the Supreme Court has upheld a life-
without-parole sentence for an adult offender — even in a
nonhomicide case. Harmelin v. Michigan, 501 U.S. 957 (1991)
(possession of over 650 grams of cocaine). And the Supreme Court
to be applied retroactively to cases already final), with Jones v.
Mississippi, 593 U.S. ___, ___, 141 S. Ct. 1307, 1316 (2021)
(reiterating the description of Miller as noncategorical and noting
that “Montgomery did not purport to add to Miller’s requirements”).
Thus, it appears that the Supreme Court’s characterization of the
decision in Miller as noncategorical remains accurate.
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in Miller unequivocally clarified that it was not overruling Harmelin.
Miller, 567 U.S. at 482. Thus, because neither the Supreme Court
nor, apparently, any other appellate court in the nation has applied
the categorical analysis to cases not involving either the death
penalty or juvenile offenders, we decline to do so.
3. Proportionality of Sellers’s Sentence
¶ 55 We also reject Sellers’s alternative request to remand for an
abbreviated proportionality review. Instead, conducting that review
ourselves, we conclude that the sentence is not unconstitutionally
disproportionate despite subsequent legislative amendments to the
sentencing range for felony murder.
a. Preservation and Standard of Review
¶ 56 To the extent the People contend that Sellers’s proportionality
challenge was not preserved because he did not request a
proportionality review, we need not resolve this issue because,
reviewing de novo whether the sentence is grossly disproportionate,
see Wells-Yates v. People, 2019 CO 90M, ¶ 35, we perceive no error.
b. Applicable Law
¶ 57 A sentence that is grossly disproportionate to the crime is
unconstitutional. Wells-Yates, ¶ 5 (citing Harmelin, 501 U.S. at
28
1001 (Kennedy, J., concurring in part and concurring in the
judgment)). While most proportionality challenges occur in habitual
criminal cases, the same principles apply in nonhabitual cases.
See People v. Smith, 848 P.2d 365, 374 (Colo. 1993).
¶ 58 To determine whether a sentence is grossly disproportionate,
the court conducts a two-step analysis. Wells-Yates, ¶ 10. First,
the sentencing court conducts an abbreviated proportionality
review. Id. at ¶¶ 11-14. And second, if necessary, it conducts an
extended proportionality review. Id. at ¶ 15. In an abbreviated
proportionality review, the court compares the gravity and
seriousness of the offense with the harshness of the sentence.
Valenzuela v. People, 856 P.2d 805, 809 (Colo. 1993); see also
Wells-Yates, ¶¶ 7, 10. This analysis generally requires a
consideration of the facts and circumstances underlying the
defendant’s conviction. People v. Session, 2020 COA 158, ¶ 36.
¶ 59 Certain crimes have been designated per se grave or serious
offenses. Wells-Yates, ¶ 13. “For these crimes, . . . a trial court
may skip the first subpart of step one — the determination
regarding the gravity or seriousness of the crimes . . . .” Id. A crime
should not be designated per se grave or serious unless, based on
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the statutory elements and in every potential factual scenario, it
involves grave or serious conduct. Id. at ¶¶ 63-64 (explaining, for
example, that robbery is a per se grave or serious offense).
¶ 60 Even when the offense is per se grave or serious, “it would be
improper for a court to skip the second subpart of an abbreviated
proportionality review and neglect to consider the harshness of the
penalty.” Id. at ¶ 27. Our determination of the harshness of the
penalty takes into account parole eligibility. Id. at ¶ 14.
c. Analysis
¶ 61 Sellers argues that the 2021 statutory amendment should be
considered when assessing the proportionality of his sentence.
True, our supreme court in Wells-Yates observed that even
statutory amendments that apply only to future offenses should
nevertheless be considered “as objective indicia of the evolving
standards of decency to determine the gravity or seriousness of the
triggering offense.” Wells-Yates, ¶ 47. But the court also
acknowledged that such an amendment is “not determinative.” Id.
at ¶ 50.
¶ 62 Initially, we note that even after the statutory amendment, the
legislature has still made clear that it considers felony murder a
30
serious matter. Indeed, the legislature classified felony murder as
second degree murder, a class 2 felony. Thus, while the General
Assembly has (prospectively) significantly lowered the sentencing
range for such acts, the amendment cannot be seen as a signal that
the “evolving standards of decency” reflected by the statute no
longer consider felony murder to be grave or serious.
¶ 63 No Colorado appellate court has yet addressed whether felony
murder is per se grave or serious. We now consider that question
and conclude that it is.
¶ 64 A person commits felony murder when,
[a]cting either alone or with one or more
persons, he or she commits or attempts to
commit felony arson, robbery, burglary,
kidnapping, sexual assault as prohibited by
section 18-3-402, sexual assault in the first or
second degree as prohibited by section
18-3-402 or 18-3-403, as those sections
existed prior to July 1, 2000, or a class 3
felony for sexual assault on a child as provided
in section 18-3-405(2), or the felony crime of
escape as provided in section 18-8-208, and,
in the course of or in furtherance of the crime
that he or she is committing or attempting to
commit, or of immediate flight therefrom, the
death of a person, other than one of the
participants, is caused by any participant.
§ 18-3-103(1)(b), C.R.S. 2021.
31
¶ 65 Felony murder is a per se grave or serious offense because it
necessarily involves committing a violent predicate felony that
results in the death of a person. Thus, every factual scenario giving
rise to a charge of felony murder will be grave or serious. See
Wells-Yates, ¶¶ 63-64; People v. Mandez, 997 P.2d 1254, 1273
(Colo. App. 1999) (agreeing with the trial court that “felony murder
is a serious crime”); Smith, 848 P.2d at 374 (noting that felony
murder is a crime of “the utmost gravity”). Notably, the legislature
has also defined it as a per se crime of violence and an
extraordinary risk crime. § 18-3-103(4); § 18-1.3-406(2)(a)(II)(B),
C.R.S. 2021. At least one division of this court has considered a
crime’s classification as a per se crime of violence as support for the
conclusion that the crime is also per se grave or serious. People v.
Gee, 2015 COA 151, ¶ 37.
¶ 66 In sum, nothing in the statutory reclassification of felony
murder suggests that the legislature no longer considers felony
murder to be grave or serious.
¶ 67 As to the harshness of the penalty, we conclude that his life
sentence is not grossly disproportionate. While we recognize that
this life sentence is potentially substantially longer than the
32
maximum forty-eight years a defendant in Sellers’s shoes could
receive under the amended statute, and that Sellers is not eligible
for parole, those differences do not mean that the sentence is
grossly disproportionate. See Mandez, 997 P.2d at 1273(concluding that a life sentence without parole for felony murder
was not grossly disproportionate). Thus, we conclude that Sellers’s
sentence is not grossly disproportionate.
III. Disposition
¶ 68 We affirm the convictions and the sentence for felony murder
but vacate the consecutive sentence for aggravated robbery and
remand to the trial court with instructions to impose a concurrent
sentence.
JUDGE DAILEY and JUDGE HAWTHORNE concur.
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