v. Wright , 2021 COA 106 ( 2021 )

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
August 12, 2021
2021COA106
No. 18CA1408, People v. Wright — Crimes — Harassment —
Second Degree Burglary
A division of the court of appeals concludes, as a matter of
first impression, that the crime of harassment, as described in
section 18-9-111(1)(a), C.R.S. 2020, is necessarily a “crime against
another person,” and can thus serve as a predicate offense for the
crime of burglary under section 18-4-203(1), C.R.S. 2020. In
addition, the division concludes that the crime of possession of a
weapon by a previous offender is not a per se grave and serious
crime for purposes of conducting a proportionality review,
disagreeing with People v. Allen, 111 P.3d 518 (Colo. App. 2004).
COLORADO COURT OF APPEALS 2021COA106
Court of Appeals No. 18CA1408
El Paso County District Court No. 17CR5863
Honorable William B. Bain, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Thomas Jean Wright,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE TOW
Furman and Gomez, JJ., concur
Announced August 12, 2021
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael Thomas Jean Wright, appeals her1
judgment of conviction entered on jury verdicts finding her guilty of
second degree burglary, child abuse, resisting arrest, obstruction of
a peace officer, harassment, and possession of drug paraphernalia.
This appeal requires that we address an apparent issue of first
impression: Is harassment under section 18-9-111(1)(a), C.R.S.
2020, a “crime against another person” that can serve as a
predicate offense for second degree burglary under section
18-4-203, C.R.S. 2020?2 Because the statutory elements of the
1 The record shows that the court, the prosecutor, the defense
attorney, and the witnesses all used “Mister” and male pronouns
when referencing Wright at trial. However, according to Wright’s
appellate counsel, Wright is a transgender woman whose pronouns
are she/her. We will thus refer to her accordingly. Although
counsel also indicates that Wright now goes by a different name, we
nevertheless use the name under which Wright was prosecuted,
convicted, and sentenced, in order to avoid any confusion or errors
in the judicial and prison records, as well as the statewide and
nationwide criminal information databases. We mean no disrespect
in doing so.
2 There are several subsections of section 18-9-111, C.R.S. 2020,
which describe different forms of the crime of harassment. See
§ 18-9-111(1)(a)-(h), C.R.S. 2020. This case, and particularly our
analysis in Part II, involves only subsection (1)(a). Thus, when we
refer to harassment, we mean only harassment under section 18-9-
111(1)(a). We express no opinion regarding whether any other type
of harassment can serve as a predicate offense of second degree
burglary.
1
offense necessarily constitute “a crime against another person,” we
decline to follow the fact-specific approach to resolving such
inquiries espoused in People v. Poindexter, 2013 COA 93. Instead,
we conclude, as a matter of law, that the offense can serve as a
predicate to second degree burglary.
¶2 Having so concluded, and because we also reject Wright’s
contention that the trial court’s ex parte communications with the
jury violated her constitutional rights to counsel and to be present,
we affirm her conviction.
¶3 Wright also challenges, on proportionality grounds, the
habitual criminal sentence imposed on her second degree burglary
conviction. Applying the standard announced in Wells-Yates v.
People, 2019 CO 90M, we conclude that possession of a weapon by
a previous offender (POWPO) is not a per se grave or serious crime
for purposes of a proportionality review. Because the trial court
incorrectly considered POWPO and second degree burglary to be per
se grave or serious crimes, we vacate Wright’s sentence and remand
for a new proportionality review.
I. Background
¶4 The jury heard the following evidence.
2
¶5 On October 12, 2017, Wright went to an apartment complex in
Colorado Springs ostensibly to search for her daughter, apparently
under the belief that her daughter was being held in one of the
apartments and was possibly in danger.
¶6 Wright began banging on the door of one of the apartment
units and indicated that she was looking for “Alexis,” who she said
was her daughter and whom she believed to be inside the unit. The
resident of the unit eventually answered the door and told Wright
that her daughter was not there. After a lengthy exchange, the
resident closed the door without permitting Wright to enter.
¶7 Wright continued her search, banging on the doors of several
other nearby apartment units. Eventually, Wright knocked on the
door of the unit in which Phillip Bloch was residing with his son.
Before answering, Bloch asked who was at the door, to which
Wright responded that she was looking for someone named
“Jasmine.” Bloch opened the door. Wright continued to inquire
about “Jasmine,” and Bloch indicated that he did not know anyone
by that name. Bloch then shut the door.
¶8 After knocking on the doors of several other units, Wright
returned to Bloch’s unit and knocked again. Bloch opened the
3
door, warned Wright to leave the premises, and closed the door
again. before closing the door once again. Wright, however,
continued to knock on Bloch’s door. When Bloch opened the door
to warn Wright he was going to call the police, Wright rushed into
the unit and tried to grab Bloch by the throat.
¶9 A physical altercation ensued, during which Bloch retrieved a
firearm from his bedroom. Bloch pointed his firearm at Wright, who
was standing near the doorway, and demanded that she “move.”
Wright began pushing farther into the unit, again asking for
“Jasmine.” The altercation escalated: Bloch pushed Wright up
against a wall and aimed the firearm at her stomach while Wright
continued to grab Bloch by his throat. Bloch’s two-year-old son
approached the scuffle, and Wright, apparently in an effort to attack
Bloch, kicked Bloch’s son across the room. Bloch pulled the trigger
of his firearm three times, but it failed to fire. Bloch tossed the
firearm aside and pushed Wright out of the apartment. He then
called the police.
¶ 10 Police responded to the apartment complex and arrested
Wright after having to subdue her with physical force. The police
4
searched her person and discovered a pipe that later tested positive
for methamphetamine.
¶ 11 Wright was charged with possession of drug paraphernalia,
obstruction of a peace officer, resisting arrest, child abuse,
harassment, and second degree burglary (predicated on
harassment).3 She was also charged with five habitual offender
counts.
¶ 12 Following a two-day trial, a jury found Wright guilty on all
substantive counts.
¶ 13 At Wright’s sentencing hearing, the trial court adjudicated
Wright to be a habitual offender. After conducting an abbreviated
proportionality review, the court sentenced her to forty-eight years
in the custody of the Department of Corrections for her second
degree burglary conviction consistent with the habitual criminal
sentencing statute. The court merged Wright’s harassment
conviction into her second degree burglary conviction.4 It imposed
3 As charged, second degree burglary was a class 3 felony because
Wright was alleged to have specifically burglarized a “dwelling.”
§ 18-4-203(2)(a), C.R.S. 2020.
4 The People do not separately appeal this decision. Thus, we
express no opinion as to whether such merger was required.
5
a concurrent ninety-day sentence for Wright’s child abuse, resisting
arrest, and obstruction of a peace officer convictions.5
II. Sufficiency of the Evidence
¶ 14 Wright contends that the crime of harassment, as charged
under section 18-9-111(1)(a), cannot serve as a predicate offense for
second degree burglary because it is not “a crime against another
person.” And even if it can, she contends, there was insufficient
evidence presented at trial to support her burglary conviction
predicated on harassment. Accordingly, she argues, her conviction
and sentence for burglary must be vacated. We disagree with both
contentions.
A. Harassment is Necessarily a “Crime Against Another Person”
¶ 15 We first address Wright’s contention that her burglary
conviction cannot be predicated on harassment.
¶ 16 As relevant here, “[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
5The crime of possession of drug paraphernalia is punishable only
by a fine. § 18-18-428(2), C.R.S. 2020. At Wright’s sentencing, the
court found her to be indigent and waived the fine.
6
in a building or occupied structure with intent to commit therein a
crime against another person or property.” § 18-4-203(1). Thus,
only those crimes “against another person or property” can serve as
a predicate offense for second degree burglary. Whether the crime
of harassment can be so classified presents a question of statutory
interpretation that we review de novo. See Poindexter, ¶ 6.6
¶ 17 The General Assembly has not defined the term “crime against
another person.” However, in Poindexter, a division of this court
ascribed to the term the following definitions:
1. “[a] category of criminal offenses in which the perpetrator
uses or threatens to use force”; or
2. “[a] crime against the body of another human being.”
Poindexter, ¶ 11 (quoting Black’s Law Dictionary 401, 1112 (8th ed.
2004)); see id. at ¶ 29 (applying those definitions). We agree with
the division in Poindexter that these definitions accord the term its
plain and ordinary meaning. See id. at ¶ 26. Thus, we apply these
definitions here to effectuate the legislature’s intent. See, e.g.,
6The People do not contend that harassment is a “crime against . . .
property.” Thus, we address only whether it is a “crime against
another person.”
7
McCoy v. People, 2019 CO 44, ¶ 37 (“[T]o ascertain and give effect to
the legislature’s intent . . . , we look first to the language of the
statute, giving its words and phrases their plain and ordinary
meanings.”).
¶ 18 Under section 18-9-111(1)(a), “[a] person commits harassment
if, with intent to harass, annoy, or alarm another person, he or she
. . . [s]trikes, shoves, kicks, or otherwise touches a person or
subjects him to physical contact.” Thus, to commit harassment,
one necessarily must subject another to some form of “physical
contact.” Unequivocally, then, the offense requires that one engage
in an act “against the body of another human being.” Accordingly,
we conclude, as a matter of law, that harassment is a “crime
against another person.”
¶ 19 Wright advances two arguments opposing such an
interpretation. Neither is persuasive.
¶ 20 First, Wright points out that the harassment statute is located
in article 9 of title 18 (entitled “Offenses Against Public Peace,
Order, and Decency”), not in article 3 (entitled “Offenses Against the
Person”). She suggests, therefore, that harassment is not a “crime
against another person,” but is instead an offense against “public
8
peace, order, and decency,” placing it outside the class of crimes
designated by the legislature as possible predicates to burglary. Yet
Wright also acknowledges that “the placement of criminal statutes
in particular articles does not necessarily reflect the legislature’s
intent.” Poindexter, ¶ 28. The titles of the specific articles and
parts in the statutory code “are generally left to the revisor of
statutes, who possesses no authority to make substantive statutory
changes.” People v. Borghesi, 66 P.3d 93, 102 (Colo. 2003). And
even if we were to assume that the statute’s organizational
placement reflects the will of the legislature, the plain language of
the statute — which unambiguously indicates that harassment is a
“crime against another person” — is controlling in our
interpretation.7 See McCoy, ¶ 37 (“[T]o ascertain and give effect to
the legislature’s intent . . . , we look first to the language of the
statute . . . .”).
¶ 21 Second, Wright argues, relying on Poindexter, that we ought to
avoid categorizing harassment as “a crime against another person”
7 Notably, the statute does not say “with the intent to commit an
offense against the person as described in article 3 of title 18” or
include any similar specific cross-reference.
9
as a matter of law and instead consider the particular factual
circumstances of her case.
¶ 22 In Poindexter, a division of this court considered whether
obstructing a peace officer under section 18-8-104(1)(a), C.R.S.
2020, was a “crime against another person” such that it could serve
as a predicate offense for second degree burglary. But the division
ultimately cautioned against any “sweeping attempt to categorize
offenses as a matter of law” and declined to do so. Poindexter, ¶ 26.
Instead, the division concluded that “the proper approach” to
determining whether an offense can serve as a predicate for
burglary “involves a case-by-case examination of the underlying
elements of the offense as charged and proved.” Id. In other words,
the court must consider the particular factual circumstances of
each case and whether the evidence established that the offender
intended to either act “against the body of another human being” or
“use[] or threaten[] to use force.” See id. at ¶¶ 11, 29 (quoting
Black’s Law Dictionary at 401, 1112).
¶ 23 Applying that case-specific approach, the division
acknowledged that the defendant, in unlawfully entering a building,
only had the intent to hide from police officers in pursuit of him,
10
not to engage with them physically. Id. at ¶¶ 29-30. Thus, while
the evidence indicated that the defendant had the intent to commit
obstruction of a peace officer, see § 18-8-104(1)(a), it did not show
that he had the intent to commit a “crime against another person.”
Poindexter, ¶¶ 29, 30, 34. “Under these circumstances,” the
division concluded, obstruction of a peace officer “could not be used
as a predicate offense for second degree burglary.” Id. at ¶ 34.
¶ 24 In reaching its conclusion, though, the division clarified that
“under a different set of facts, the crime of obstructing a peace
officer could be a crime against another person.” Id. at ¶ 31. Thus,
the division recognized that proving the elements of the offense
cannot be dispositive as to whether an offender committed a “crime
against another person.” Accordingly, as to the crime of obstructing
a peace officer, whether the commission of the offense constitutes a
“crime against another person” must necessarily be a fact-specific
inquiry.
¶ 25 We do not read Poindexter to suggest that such a fact-based
inquiry is necessary with all crimes. Indeed, the division noted that
crimes such as child abuse, pandering of a child, and resisting
arrest by physical force are “obviously” crimes against a person. Id.
11
at ¶ 27. In our view, harassment is also obviously a crime against a
person.
¶ 26 As noted above, because subjecting another to “physical
contact” is an essential element of harassment, there is no factual
scenario that can constitute harassment that would not also
constitute a “crime against another person.” And where there is no
question as to whether the commission of an offense would equate
to the commission of a “crime against another person,” we see no
reason to follow the case-specific approach employed in Poindexter.
Thus, we decline to do so. See People v. Smoots, 2013 COA 152,
¶ 21 (“[W]e are not bound by the decisions of other divisions of this
court.”), aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15.
¶ 27 Accordingly, we conclude, as a matter of law, that harassment
under section 18-9-111(1)(a) is a “crime against another person”
that can serve as a predicate offense for second degree burglary.
B. The Evidence Was Sufficient To Support Wright’s Burglary
Conviction
¶ 28 Having so concluded, we now address, and reject, Wright’s
contention that the People failed to present sufficient evidence to
sustain her conviction for second degree burglary.
12
¶ 29 When addressing a challenge to the sufficiency of the evidence,
“[w]e review the record de novo to determine whether the evidence
presented was sufficient in both quantity and quality to sustain a
defendant’s conviction.” McCoy, ¶ 63 (citing Clark v. People, 232
P.3d 1287, 1291 (Colo. 2010)). We assess whether the evidence,
when viewed in the light most favorable to the prosecution, “is
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant is guilty of the charge beyond a reasonable
doubt.” Id. (quoting Clark, 232 P.3d at 1291).
¶ 30 Wright contends only that there was insufficient evidence to
establish that, at the time she entered Bloch’s apartment, she had
the specific intent to commit harassment. Instead, she contends,
the evidence showed that she simply intended to look for her
daughter. Wright’s argument, however, is premised on the flawed
assumption that she could not have simultaneously held both
intentions.
¶ 31 True, there was substantial evidence presented that Wright
was searching the apartment complex in an attempt to find her
13
daughter.8 But there was also evidence that when she ultimately
entered Bloch’s apartment, she did so with the intent to subject him
to physical contact. Indeed, Bloch testified that when he opened
his door to tell Wright to leave, she immediately “bum rushed” him
and tried to grab him by his throat — which a reasonable jury could
infer involved forcibly shoving him and/or striking him on her way
into his apartment. He further testified that immediately after
Wright had forcibly entered his apartment, a lengthy physical
altercation ensued.
¶ 32 Though Wright argued to the jury that Bloch’s testimony was
not credible, she does not argue that his testimony was incredible
as a matter of law. See People v. Dash, 104 P.3d 286, 289 (Colo.
App. 2004) (“[T]he fact finder, not an appellate court, determines
the credibility of witnesses, and only when testimony is ‘so palpably
incredible and so totally unbelievable’ may we reject it as a matter
of law.” (quoting Kogan v. People, 756 P.2d 945, 950 (Colo. 1988)).
And when viewed in the light most favorable to the prosecution, we
8 Of course, there was evidence that could lead a jury to reject that
contention as well, including that Wright told one person she was
looking for “Alexis” and told Bloch she was looking for “Jasmine.”
14
conclude that Bloch’s testimony was sufficient to support a
conclusion by a reasonable mind that Wright entered the apartment
with an intent to commit harassment. See § 18-9-111(1)(a); see
also Dash, 104 P.3d at 289; People v. Chase, 2013 COA 27, ¶ 50 (“If
there is evidence upon which one may reasonably infer an element
of the crime, the evidence is sufficient to sustain that element.”).
That Wright may have also harbored an intention to search for her
daughter is of no import. Accordingly, we reject Wright’s sufficiency
challenge. See McCoy, ¶ 63.
III. The Trial Court’s Ex Parte Communications with the Jury
¶ 33 Next, Wright argues that the trial court violated her
constitutional right to counsel and right to be present by holding an
impromptu scheduling conference with the jury outside the
presence of Wright and her defense counsel. We disagree.
A. Additional Facts
¶ 34 The jury began its deliberations on March 2, 2018 — a Friday
— at around 2:00 p.m. At 4:51 p.m., without either Wright or her
15
defense counsel present,9 the trial court released the jurors for the
weekend and instructed them on how they should conduct
themselves:
Members of the jury, it’s five minutes till 5:00.
And so I’m going to go ahead and release you
for the weekend. I want to thank you for the
hard work you put into deliberations so far.
What I’ll order that you do is leave your notes
and your notebook and anything related to this
case in the jury deliberation room. Nobody is
going to go in there looking through it. It will
be safe and sound.
I want you to just take a break from the case.
Just take a break from the case. Remember
that admonition, no independent research, not
talking to anybody. You may be tempted after
a couple of hours after deliberation, oh, I just
need a little bit of information, and hit the
Internet. Don’t do it. Don’t do it. I think it
will be helpful for you all to have a whole
weekend off and then hit the ground running
on Monday at — let’s do 8:30. All right. And
we’re thinking along the line on a Monday
morning, so you want to be in line by 8:15 to
get up here by 8:30. Okay. And keep in mind
that as people start arriving on Monday
morning, you can’t talk about the case until
the 12th person walks into the room. And
9 The People point out that the original transcript of the March 2,
2018, proceedings indicated that Wright’s defense counsel was
present when the court excused the jury. However, in response to
Wright’s motion to settle the record, the trial court confirmed that
the reference to Wright’s defense counsel was a clerical error and
that neither Wright nor her defense counsel was present.
16
once that 12th person walks in, then you can
resume the deliberations where you left off.
Okay.
¶ 35 Following this instruction, one of the jurors asked several
questions about what would happen the following week:
The Juror: We don’t see you tomorrow. We
just go straight in that room, and as soon as
everyone arrives, we continue?
....
The Court: On Monday.
The Juror: Sorry, did I say tomorrow?
The Court: We’re not going to be here
tomorrow. So Monday, you’ll just go right
back, you won’t see any of the parties or me,
you’ll just get going with your deliberation.
The Juror: Okay. So can we have the further
process once we are done with deliberations.
What happens?
The Court: I can’t tell you other than once you
reach a verdict we’ll certainly announce the
verdict.
The Juror: Do we tell her?
The Court: Yes. As soon as you reach a
verdict, you’ll buzz for [court employees]. They
will come back and presumably you would tell
her you have a verdict, and then we’ll call the
parties in and take care of the case.
17
The Juror: Do you do sentencing the same day
or is that a different day?
The Court: Sentencing doesn’t play any role in
this phase of things and so just follow that
instruction. Doesn’t have to do anything with
the case. So but with that, I need to let you
go. Okay. Have a good weekend, and we’ll see
you Monday.
The Juror: Have a good weekend.
The Court: Thank you. You too.
B. Right to Counsel
¶ 36 Both the United States and Colorado Constitutions guarantee
a defendant the right to counsel “at every critical stage of a criminal
proceeding.” Key v. People, 865 P.2d 822, 825 (Colo. 1994) (first
citing U.S. Const. amend. VI; then citing Colo. Const. art. II, § 16;
then citing United States v. Cronic, 466 U.S. 648, 659 (1984); and
then citing People v. Roybal, 618 P.2d 1121, 1126 (Colo. 1980)).
“We review whether a defendant has been denied representation at
a critical stage of the proceedings de novo.” People v. Guzman-
Rincon, 2015 COA 166M, ¶ 15.
¶ 37 “Stages of criminal proceedings have been held to be ‘critical’
where there exists more than a ‘minimal risk’ that the absence of
the defendant’s counsel might impair the defendant’s right to a fair
18
trial.” Key, 865 P.2d at 825 (first citing Gilbert v. California, 388
U.S. 263, 267 (1967); and then citing Sandoval v. People, 172 Colo.
383, 389, 473 P.2d 722, 725 (1970)). As it pertains to ex parte
communications,
[n]ot every communication between the judge
and jury constitutes a critical stage of the trial.
However, an impromptu conference with the
jury during its deliberations may constitute a
critical stage of the proceedings even where the
discussions are purportedly confined to
“scheduling” matters, because the content of
such ex parte communications and the context
in which they occur may create more than a
“minimal risk” that counsel’s absence would
impair the defendant’s right to a fair trial.
Id.¶ 38 Wright argues that two specific communications between the
trial court and the jury created such a risk, and thus the ex parte
conference constituted a critical stage of her criminal proceedings.
However, in our view, neither created a level of risk sufficient to
implicate her constitutional right to counsel.
¶ 39 First, Wright directs us to the court’s remark that “I think it
will be helpful for you all to have a whole weekend off and then hit
the ground running on Monday.” She contends that the jury may
have understood the statement as a criticism of the amount of time
19
the jury was taking to deliberate. Thus, she suggests, the
statement may have had a coercive impact on the jury.
¶ 40 Yet the court’s statement was a far cry from the type of
“scheduling pressures” that Colorado courts have found to create a
risk of coercion on the jury’s deliberative process. Indeed, generally
only those scheduling discussions that allude to a deadline for
deliberations are considered coercive. See id. at 825-26 (deciding
that a scheduling conference implicated a defendant’s right to
counsel where two jurors’ comments — which indicated a
substantial incentive to reach a verdict that afternoon — were
analogous to a “time-fuse” instruction); People v. Urrutia, 893 P.2d
1338, 1343 (Colo. App. 1994) (“Discussing scheduling problems
with the jury may . . . be coercive if those scheduling problems
create an impression that the jury is under a short time limit to
reach a verdict.”); see also Martin v. People, 2014 CO 68, ¶ 25
(recognizing where a trial court failed to provide a mistrial
advisement that “discussing scheduling pressures with the jury
may be coercive if those discussions effectively impose a deadline
for the jury to end its deliberations with a verdict or have a mistrial
declared”). Here, the trial court’s statement, in our view, was not
20
suggestive of any deadline for deliberations. On the contrary, the
trial court’s decision to give the jurors two days off indicated, if
anything, a lack of urgency. Thus, we reject Wright’s argument that
the statement carried a risk of coercion sufficient to implicate her
constitutional right to counsel.
¶ 41 Second, Wright directs us to the exchange concerning
sentencing procedures. She construes the juror’s question as to
when sentencing occurs as an implication that the jury intended to
find Wright guilty. And the court’s visible response, she argues,
may have suggested an affirmation of that finding. But the court
was careful to avoid answering the question. In its brief response,
it merely cautioned that “[s]entencing doesn’t play any role in this
phase of things” and “[d]oesn’t have to do anything with the case.”
Thus, while the record does not reveal the court’s visible response,
it nonetheless shows that the court was dismissive of the question
and sought to avoid any response that would suggest an opinion as
to Wright’s guilt or innocence. Moreover, to the extent Wright
suggests that the exchange could be construed as a scheduling
discussion, neither the juror’s question nor the court’s response
alluded to the length of deliberations such that they carried a risk
21
of coercing the jury. See Key, 865 P.2d at 825. Accordingly, under
the circumstances, we conclude that any risk created by the
exchange was minimal at best.
¶ 42 In sum, we reject Wright’s contention that the court’s ex parte
conference carried the “more than . . . ‘minimal risk’” necessary to
constitute a critical stage of her prosecution. Id. Thus, we discern
no violation of her constitutional right to counsel in holding the
conference without defense counsel present. See id.
C. Right to be Present
¶ 43 Nor do we discern a violation of Wright’s right to be present.
¶ 44 The United States and Colorado Constitutions guarantee a
criminal defendant the right to be present “whenever [her] presence
has a relation, reasonably substantial, to the fullness of [her]
opportunity to defend against the charge.” Zoll v. People, 2018 CO
70, ¶ 20 (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)).
“In other words, the defendant’s presence is only required ‘to the
extent that a fair and just hearing would be thwarted by [her]
absence.’” Id. (quoting Stincer, 482 U.S. at 745). “Consequently,
the right to be present is not constitutionally guaranteed when the
defendant’s presence would be useless or when the benefit of the
22
defendant’s presence would be ‘but a shadow.’” Id. (quoting Stincer,
482 U.S. at 745). “Whether a trial court violated a defendant’s right
to be present is a constitutional question that is reviewed de novo.”
Id. at ¶ 15 (quoting Guzman-Rincon, ¶ 29).
¶ 45 We first note that, in her briefs, Wright appears to conflate the
right to counsel and the right to be present. She cites inapposite
authorities addressing only the right to counsel to support her
distinct claim that her right to be present was violated. And it
appears, at times, that her arguments concerning her right to
counsel are also intended to apply to her right to be present. But to
the extent she argues that the two specific communications
addressed in Part III.B also implicated her constitutional right to be
present, we disagree. For the reasons expressed above, neither
casts any doubt on the fairness of the proceedings, nor required
Wright’s presence to ensure that “a fair and just hearing [was not]
thwarted by [her] absence.” Id. (quoting Stincer, 482 U.S. at 745).
¶ 46 Otherwise, Wright appears only to assert, in conclusory
fashion, that she ought to have “the right to know the jurors’
questions and concerns expressed in open court” and “be able to
observe and assess the jurors’ questions and the court’s
23
instructions.” But Wright ignores that the constitution only
guarantees her presence where “a fair and just hearing would be
thwarted by [her] absence.’” Id. (quoting Stincer, 482 U.S. at 745).
She advances no specific argument as to why her presence, as
distinguished from that of her counsel, was necessary to ensure the
fairness of the proceeding. Nor does our own review of the record
indicate that the communications between the court and the jury so
required her presence.
¶ 47 Accordingly, we reject Wright’s contention that the ex parte
conference violated her constitutional right to be present.
IV. Proportionality of Wright’s Sentence
¶ 48 Finally, Wright argues that her forty-eight-year sentence for
second degree burglary raised an inference of gross
disproportionality, and thus the trial court erred by failing to
conduct an extended proportionality review. Because we conclude
that the trial court’s abbreviated review was flawed, we remand for
the court to reconsider the proportionality of Wright’s sentence.
A. Additional Facts
¶ 49 At Wright’s sentencing hearing, the trial court found that the
People had presented sufficient evidence to support a finding that
24
Wright had previously been convicted of the following felonies:
robbery, POWPO, first degree trespass, criminal impersonation, and
aggravated motor vehicle theft. Thus, the trial court adjudicated
Wright a habitual offender. Accordingly, it was required by section
18-1.3-801, C.R.S. 2020 — the habitual criminal sentencing statute
— to impose a forty-eight-year sentence for Wright’s burglary
conviction. See § 18-1.3-801(2)(a)(I)(A); § 18-1.3-401(1)(a)(V)(A),
C.R.S. 2020; § 18-4-203(1), (2)(a).
¶ 50 Wright requested that the trial court conduct a review of the
mandatory forty-eight-year sentence to determine if it was
unconstitutionally disproportionate. In an abbreviated
proportionality review, the court determined that second degree
burglary, robbery, and POWPO were per se grave or serious crimes.
However, it found that Wright’s other crimes — trespass,
impersonation, and aggravated motor vehicle theft — were not grave
or serious. Ultimately, though, the court concluded that the
sentence was not unconstitutionally disproportionate. The court
reasoned that while three of Wright’s predicate offenses were not
grave or serious, when considered in combination with Wright’s
three offenses that were per se grave or serious, the sentence did
25
not raise an inference of gross disproportionality. Accordingly, it
found that an extended proportionality review was not warranted
and imposed the forty-eight-year sentence.
B. Standard of Review and Applicable Law
¶ 51 The Eighth Amendment to the United States Constitution and
article II, section 20 of the Colorado Constitution both prohibit the
imposition of a sentence grossly disproportionate to the severity of a
defendant’s crime. See Wells-Yates, ¶¶ 5, 10. Whether a sentence
is grossly disproportionate is a question of law that we review de
novo. Id. at ¶ 35.
1. Proportionality Review in General
¶ 52 The determination of whether a sentence is unconstitutionally
disproportionate entails a two-step analysis. See Wells-Yates, ¶ 10.
¶ 53 First, the court conducts an “abbreviated proportionality
review,” in which the court considers “the gravity or seriousness of
the offense and the harshness of the penalty.” Id. at ¶ 11.
¶ 54 “[T]he determination regarding the gravity or seriousness of
the offense is ‘somewhat imprecise . . . .’” Id. at ¶ 12 (quoting
People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992), abrogated on other
grounds by Wells-Yates, ¶¶ 26-27). Generally, however, it “requires
26
a consideration of the harm caused or threatened to the victim or
society and the culpability of the offender.” People v. Session, 2020
COA 158, ¶ 33; accord Wells-Yates, ¶ 12. Thus, the court should
consider
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.
Session, ¶ 33 (citing Wells-Yates, ¶ 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. (citing Wells-Yates, ¶ 12).
¶ 55 Our supreme court has recognized, however, that some crimes
may be considered per se grave or serious for proportionality
purposes. Wells-Yates, ¶ 13 (first citing Close v. People, 48 P.3d
528, 538 (Colo. 2002), abrogated on other grounds by Wells-Yates,
¶¶ 16-17, 26-27; then citing People v. Deroulet, 48 P.3d 520, 524
(Colo. 2002), abrogated on other grounds by Wells-Yates, ¶¶ 16-17,
26-27; and then citing Gaskins, 825 P.2d at 37). A crime is per se
grave or serious if, “based on [its] statutory elements, [it] necessarily
27
involve[s] grave or serious conduct.” Id. at ¶ 63; see also Session, ¶
35 (recognizing that this is the “new standard by which courts
determine whether an offense is per se grave or serious”). “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.” Wells-Yates, ¶ 63. 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 crime[] — and ‘proceed directly to the second
subpart’ of that step — the assessment related to the harshness of
the penalty.” Id. at ¶ 13 (quoting Close, 48 P.3d at 538).
¶ 56 As to the harshness of the penalty, which is weighed against
the gravity of the offense, the court must consider the length of the
sentence as well as parole eligibility. Id. at ¶ 14.
¶ 57 Second, if the abbreviated proportionality review gives rise to
an inference of gross disproportionality, then the court conducts an
extended proportionality review, which compares the sentence at
issue to sentences for other crimes in the same jurisdiction and
sentences for the same crime in other jurisdictions. Id. at ¶¶ 15-17.
2. Proportionality Review of a Habitual Criminal Sentence
28
¶ 58 Section 18-1.3-801, which governs habitual criminal
punishment in Colorado, “‘create[s] a unique possibility’ that a
defendant will receive a sentence that ‘is not proportionate to the
crime for which [she] has been convicted.’” Wells-Yates, ¶ 20
(quoting Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990)).
¶ 59 As pertinent here, when a defendant is convicted of a felony (a
triggering offense), she may be adjudicated a habitual criminal if
she “has been three times previously convicted . . . of a felony”
based on charges separately brought and tried that arose out of
separate and distinct criminal episodes (predicate offenses).
§ 18-1.3-801(2)(a)(I). A defendant adjudicated a habitual criminal
based on three or more predicate offenses must be punished for the
triggering offense “by imprisonment in the department of
corrections for a term of four times the maximum of the
presumptive range . . . for the class or level of felony” of the
triggering offense. § 18-1.3-801(2)(a)(I)(A).
¶ 60 “The concern” as to the potential disproportionality of a
habitual criminal sentence “lies in the ‘formulaic and formalistic
nature’ of the habitual criminal statute.” Wells-Yates, ¶ 20 (quoting
Deroulet, 48 P.3d at 526). Still, “in habitual criminal cases, as in
29
other cases raising Eighth Amendment challenges, an abbreviated
proportionality review will almost always yield a finding that the
sentence is not unconstitutionally disproportionate.” Id. at ¶ 21.
¶ 61 During 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 offense
and the predicate offenses; and (2) the harshness of the sentence
imposed on the triggering offense.” Id. at ¶ 23. “The court must
scrutinize the triggering offense and the predicate offenses and
determine whether in combination they are so lacking in gravity or
seriousness so as to suggest that the sentence is unconstitutionally
disproportionate to the crime, taking into account the defendant’s
eligibility for parole.” Id. The supreme court clarified, however, that
“when the triggering offenses and/or the predicate offenses
supporting a habitual criminal sentence include grave or serious
crimes . . . , 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. If an
inference exists that the sentence is disproportionate, “an extended
30
proportionality review must be undertaken. If not, the sentence is
proportionate.” Session, ¶ 38 (citing Wells-Yates, ¶ 76).
C. Analysis
¶ 62 Wright argues that the trial court erred by (1) finding that
robbery, second degree burglary, and POWPO are per se grave or
serious crimes and (2) misapplying the law by not assessing the
harshness of Wright’s penalty in its review. Thus, she argues, the
court engaged in a flawed proportionality analysis, and she urges
us to set aside its decision and make a finding that her sentence
raises an inference of gross disproportionality. We agree that the
court erred in finding that the crimes of second degree burglary and
POWPO are per se grave or serious. We also agree that the court’s
analysis did not follow the analytical framework set forth in Wells-
Yates. We, of course, recognize that the court did not have the
benefit of the Wells-Yates decision at the time it sentenced Wright.
Nevertheless, Wright is entitled to the benefit of both the new
standard for determining whether a crime is to be considered per se
grave or serious and the clarification of the analytical framework
that must be followed. See Session, ¶¶ 50-51; People v. Tran, 2020
COA 99, ¶ 103.
31
¶ 63 However, as further discussed below, we decline Wright’s
invitation to find an inference of gross disproportionality. Instead,
we remand for the trial court to conduct a new proportionality
review.
1. Per Se Grave or Serious Designations Do Not Violate United
States Supreme Court Precedent
¶ 64 As an initial matter, Wright contends that the designation of a
crime as per se grave or serious violates the principle announced in
Solem v. Helm, 463 U.S. 277, 290 (1983), that “no penalty is per se
constitutional.” We are not persuaded.
¶ 65 Wright overlooks that finding an offense grave or serious —
either per se or in light of the particular factual circumstances of
the offense committed — does not end a court’s inquiry into the
proportionality of a sentence. See Wells-Yates, ¶ 10. A court must
still consider the harshness of the penalty before it can conclude
that a sentence does not raise an inference of gross
disproportionality and affirm its constitutionality. See id. And the
same is true of habitual criminal sentences. See id. at ¶ 23.
Indeed, as noted above, the court in Wells-Yates made clear that
even when the triggering offenses and/or the predicate offenses
32
supporting a habitual criminal sentence include grave or serious
crimes, a court must consider the harshness of the penalty. Id. at
¶ 27. The court explicitly cautioned that a sentencing court could
not conclude that, in such circumstances, “there can be no
inference of gross disproportionality.” Id. Thus, a per se grave or
serious designation does not, as Wright suggests, effectively render
an accompanying sentence constitutional. And in any event, we are
bound to follow our supreme court’s decision in Wells-Yates, in
which the court reiterated that per se designations may be
appropriate for certain offenses. See id. at ¶¶ 13, 63.
2. Second Degree Burglary and POWPO Are Not Per Se Grave or
Serious Crimes
¶ 66 Having rejected Wright’s challenge to Colorado’s per se
designation scheme, we next consider the propriety of the trial
court’s designations of Wright’s robbery, second degree burglary,
and POWPO convictions as per se grave or serious. We address
each in turn.
a. Robbery
¶ 67 As to robbery, our supreme court has consistently recognized
that the offense is per se grave or serious. See Gaskins, 825 P.2d at
33
37; Close, 48 P.3d at 538; Wells-Yates, ¶ 64. This is because “[n]o
matter what facts and circumstances may be involved, if a
defendant is convicted of robbery, it necessarily means that he
knowingly took something of value from the person or presence of
another by the use of force, threats, or intimidation.” Wells-Yates,
¶ 64 (citing § 18-4-301(1), C.R.S. 2020). “Thus, robbery, by its very
nature, involves knowing conduct and grave harm (or the threat of
grave harm) to the victim or society (or both).” Id. In other words, it
meets the standard for per se grave or serious crimes articulated in
Wells-Yates. See id. at ¶ 63.
¶ 68 Wright does not contend that robbery falls short of the
Wells-Yates standard; she only reiterates her claim that it is
unlawful to designate any offense per se grave or serious under
Solem. Having rejected that argument, and in light of our supreme
court precedent, we discern no error in the trial court’s conclusion
that Wright’s prior robbery conviction was per se grave or serious.
b. Second Degree Burglary
¶ 69 However, we cannot say the same of the court’s designation of
second degree burglary as per se grave or serious.
34
¶ 70 In Wells-Yates, our supreme court acknowledged that it had
previously held burglary to be a per se grave or serious crime.
Wells-Yates, ¶¶ 13, 65; see also Deroulet, 48 P.3d at 524 (noting
that burglary is inherently “‘grave or serious’ for purposes of
proportionality review”). But it called into question “whether the
designation of burglary as a per se grave or serious crime extends to
. . . second degree burglary” under the new standard it announced.
Wells-Yates, ¶ 65 n.17.10 Because the issue was not before the
court, however, the court declined to resolve it. Id.
¶ 71 In the wake of Wells-Yates, though, a division of this court
concluded that second degree burglary is not a per se grave or
serious crime under Wells-Yates’s newly announced standard.
Session, ¶ 46. The division, offering two specific examples,
reasoned that the commission of second degree burglary may not be
grave or serious in every factual permutation. See id. at ¶¶ 46, 48
(“Neither of these versions of second degree burglary are likely to be
grave or serious”: (1) entering an unoccupied garage and stealing a
bicycle and (2) entering an abandoned building to steal copper
10The burglary conviction in People v. Deroulet, 48 P.3d 520, 522
(Colo. 2002), was for first degree burglary.
35
wiring.). Accordingly, the division concluded that the offense failed
to meet the Wells-Yates standard. Id. at ¶ 49; see Wells-Yates, ¶ 63.
¶ 72 We agree with the division’s reasoning in Session and see no
reason to depart from its holding. Applying that holding here, we
conclude that the trial court erred by finding Wright’s second degree
burglary conviction per se grave or serious. Rather, the court was
required to examine the underlying factual circumstances of
Wright’s crime to determine its gravity or seriousness. See Session,
¶ 36 (citing Wells-Yates, ¶¶ 37-39). But it did not do so.
c. POWPO
¶ 73 Nor do we agree with the trial court’s conclusion that Wright’s
POWPO conviction is per se grave or serious.
¶ 74 “[D]esignating a crime per se grave or serious has significant
consequences and courts should therefore do so cautiously.” Wells-
Yates, ¶ 62. This is because such a designation may “render[] a
sentence nearly impervious to attack on proportionality grounds” in
light of the “great deference” afforded to “the legislature’s
establishment of the harshness of the penalty.” Id. (quoting Close,
48 P.3d at 538). “This concern is magnified in the habitual criminal
36
context, where every sentence under review has been imposed
without the trial court’s exercise of discretion.” Id.
¶ 75 With those guiding principles in mind, we address, as a matter
of first impression, whether POWPO meets the standard announced
in Wells-Yates.
¶ 76 A person commits POWPO if
the person knowingly possesses, uses, or
carries upon his or her person a firearm as
described in section 18-1-901(3)(h)[, C.R.S.
2020,] or any other weapon that is subject to
the provisions of this article subsequent to the
person’s conviction for a felony, or subsequent
to the person’s conviction for attempt or
conspiracy to commit a felony, under Colorado
or any other state’s law or under federal law.
§ 18-12-108(1), C.R.S. 2020.
¶ 77 Thus, to commit POWPO, a convicted felon need only
knowingly possess a weapon; the offender need not actually use the
weapon or even intend to do so. And the mere possession — or in
some cases even the use — of a weapon may not always be grave or
serious, even where the person with the weapon has a prior felony
conviction. Take, for example, a person who was previously
convicted of embezzlement of public property — a nonviolent felony.
See § 18-8-407, C.R.S. 2020. By simply going elk hunting, that
37
person has committed POWPO. Such conduct, in our view, does
not present a sufficient level of harm or threat of harm such that it
could be considered inherently grave or serious. See Wells-Yates,
¶ 12.
¶ 78 To be sure, some, if not most, factual permutations of POWPO
may indeed be considered grave or serious. See id. But, as shown
above, the commission of the crime may not “be grave or serious in
every potential factual scenario.” Id. at ¶ 63. Thus, POWPO is not
one of “those rare crimes which, based on their statutory elements,
necessarily involve grave or serous conduct.” Id. Accordingly, we
conclude that POWPO does not meet the standard from Wells-Yates,
and thus the trial court’s designation of the crime as per se grave or
serious was erroneous.11
11 Neither party cited People v. Allen, 111 P.3d 518, 520 (Colo. App.
2004), a case that predated Wells-Yates v. People, 2019 CO 90M, in
which a division of this court concluded that POWPO is a per se
grave or serious crime. However, in light of Wells-Yates’s newly
announced standard for designating crimes per se grave or serious,
we disagree with Allen and decline to follow it. See People v.
Smoots, 2013 COA 152, ¶ 21 (“[W]e are not bound by the decisions
of other divisions of this court.”), aff’d sub nom. Reyna-Abarca v.
People, 2017 CO 15.
38
¶ 79 Consequently, like Wright’s second degree burglary conviction,
the court was required to consider the particular factual
circumstances of her POWPO conviction. See Session, ¶ 36 (citing
Wells-Yates, ¶¶ 37-39). It failed to do so.
¶ 80 In sum, then, the court erred in its proportionality review by
(1) designating Wright’s second degree burglary and POWPO
convictions per se grave or serious and, consequently, (2) failing to
consider the particular factual circumstances of those convictions.
Thus, a new proportionality review must be conducted to determine
whether Wright’s sentence is unconstitutionally disproportionate.
See id. at ¶ 51. Wright requests that we do so now — she urges us
to engage in our own abbreviated proportionality review and find
that her sentence raises an inference of gross disproportionality.
¶ 81 However, whether Wright’s second degree burglary and
POWPO convictions are grave or serious “will entail an analysis of
the facts and circumstances surrounding [those] offense[s].” Wells-
Yates, ¶ 75. And “the trial court is ‘uniquely suited’ to make these
factual determinations.” Id. (quoting Gaskins, 825 P.2d at 35).
This is particularly true where the appellate record may not be
complete with respect to the details of one or more of the predicate
39
offenses. Thus, while it may be proper in some circumstances for
us to conduct an abbreviated proportionality review on appeal, see
Session, ¶ 51 (suggesting as much), we decline to do so here.
Instead, we vacate Wright’s sentence and remand to the trial court
to conduct a new abbreviated proportionality review and, if
necessary, an extended proportionality review. See Wells-Yates,
¶ 75; Session, ¶ 51.
3. The Court Must Consider the Harshness of Wright’s Penalty
¶ 82 Not having the benefit of Wells-Yates, which was announced
several months after the trial court sentenced Wright, the court may
have committed another error in its proportionality review.
¶ 83 After finding robbery and second degree burglary to be per se
grave or serious crimes, the trial court stated,
My understanding of grave or serious crimes is
if they fall into that category, I don’t even look
past what the conviction is for to see what the
actual facts were. The fact that that conviction
exists means there’s not going to be a
disproportionate sentence.
¶ 84 The trial court was correct in observing that there is no need
to consider the specific factual circumstances of a crime to
determine its gravity or seriousness where the crime is per se grave
40
or serious. See Wells-Yates, ¶ 13. But its suggestion that a
sentence imposed on a per se grave or serious crime will always be
constitutionally proportionate is at odds with Solem’s
admonishment that “no penalty is per se constitutional.” 463 U.S.
at 290. And the court’s apparent belief that it need not also
consider the harshness of the penalty in an abbreviated
proportionality review is inconsistent with the supreme court’s
guidance in Wells-Yates. See Wells-Yates, ¶¶ 26-27.
¶ 85 Moreover, after finding POWPO to be a per se grave or serious
crime, the court noted, “I don’t need to look beyond that fact to
determine whether an extended, proportionality review is merited.”
Again, the court improperly suggested that a finding that a crime is
per se grave or serious ended its abbreviated proportionality
inquiry. See id.¶ 86 The People point out, however, that the court nonetheless
appeared to consider the length of Wright’s sentence and her
eligibility for parole — factors pertinent to an analysis of the
harshness of her penalty. See id. at ¶ 14; Session, ¶ 37. Having
already vacated Wright’s sentence, we need not determine whether
the court properly weighed the harshness of Wright’s penalty
41
despite its insistence that it need not do so. However, because the
issue will arise again on remand, we reiterate that “even when the
triggering offenses and/or the predicate offenses supporting a
habitual criminal sentence include grave or serious crimes” —
either per se grave or serious crimes or those crimes where the
underlying conduct is found to have been 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 or to conclude that when the
circumstances described are present there can be no inference of
gross disproportionality.” Wells-Yates, ¶ 27.
V. Conclusion
¶ 87 The judgment of conviction is affirmed, the forty-eight-year
sentence for second degree burglary is vacated, and the case is
remanded for a new proportionality review consistent with this
opinion. In conducting its abbreviated proportionality review on
remand, the trial court is specifically instructed to (1) consider the
factual circumstances underlying Wright’s second degree burglary
and POWPO convictions to determine the gravity or seriousness of
those crimes and (2) consider the harshness of Wright’s
42
forty-eight-year sentence in light of the gravity or seriousness — or
lack thereof — of Wright’s triggering and predicate offenses.
JUDGE FURMAN and JUDGE GOMEZ concur.
43