20CA1600 Peo v Alexander 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1600
City and County of Denver District Court No. 07CR6666
Honorable John W. Madden IV, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Darrick Damon Alexander,
Defendant-Appellant.
ORDER AFFIRMED
Division III
Opinion by JUDGE LIPINSKY
J. Jones and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Darrick Damon Alexander, Pro Se
1
¶ 1
Darrick Damon Alexander appeals the district court’s order
denying his motion seeking a change to his sentences to conform to
the drug classification and sentencing statutes that were amended
after he was convicted and sentenced. We affirm.
I. Background
¶ 2
The prosecution charged Alexander with offenses that
occurred in 2007. A jury convicted him of second degree assault of
a peace officer, a class 4 felony; possession with intent to distribute
a schedule II controlled substance, a class 3 felony; and possession
of a schedule II controlled substance, a class 4 felony. The court
subsequently adjudicated him a habitual criminal based on three
prior felonies, and sentenced him to a controlling sentence of sixty-
four years in the custody of the Department of Corrections for the
class 3 felony. A division of this court affirmed Alexander’s
convictions, and the mandate was issued on May 17, 2016. See
People v. Alexander, (Colo. App. No. 10CA0047, Oct. 8, 2015) (not
published pursuant to C.A.R. 35(f)).
¶ 3
In July 2020, Alexander filed a pro se motion requesting that
the district court adjust or correct his sentences. Specifically, he
argued that he was entitled to have his sentences corrected because
2
legislative changes to the drug and habitual criminal statutes
(1) rendered his drug offense convictions no longer felonies; and
(2) eliminated habitual criminal aggravation for drug offenses.
¶ 4
The district court denied the motion, finding that, while
section 18-1-410, C.R.S. 2021, allows for retroactive application of
a significant change in the law, a defendant is only entitled to the
benefit of ameliorative amendatory legislation if he seeks such relief
before his conviction becomes final. And, because Alexander did
not seek that benefit before his conviction became final in May
2016, the court held that the legislative changes did not apply to
him.
II. Discussion
¶ 5
Alexander contends that he is entitled to have his sentences
reduced because (1) his drug offense convictions are no longer
felonies but are now drug felonies subject to reduced sentencing
ranges; and (2) drug felonies are no longer subject to habitual
criminal sentencing. We disagree.
¶ 6
We note initially that, based on his adjudication as a habitual
criminal, Alexander’s sixty-four-year sentence for possession with
intent to distribute a schedule II controlled substance was
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authorized by the statutes in effect when he committed that crime
in 2007. See § 18-1.3-401(1)(a)(V)(A), C.R.S. 2007 (providing that
the class 3 felony sentencing range is four to twelve years in the
custody of the Department of Corrections); § 18-1.3-401(10)(a),
(b)(XI), C.R.S. 2007 (providing that possession with intent to
distribute is an extraordinary risk crime that increases the
presumptive sentencing range maximum by four years);
§ 18-18-405(1)(a), (2)(a)(I)(A), C.R.S. 2007 (providing that possession
with intent to distribute a schedule II controlled substance is a
class 3 felony); § 18-1.3-801(2), C.R.S. 2007 (stating that, upon
being adjudicated a habitual criminal based on three prior felonies,
the court shall sentence the offender to four times the maximum of
the presumptive range).
A. Retroactivity
¶ 7
Whether a court may apply a statute retroactively is a question
of statutory interpretation that we review de novo. People v.
Gregory, 2020 COA 162, ¶ 15, 479 P.3d 76, 80 (citing People v.
Stellabotte, 2018 CO 66, ¶ 3, 421 P.3d 174, 175).
¶ 8
“[A]meliorative, amendatory legislation applies retroactively to
non-final convictions . . . unless the amendment contains language
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indicating it applies only prospectively.” Stellabotte, ¶ 38, 421 P.3d
at 182 (emphasis added). Courts are bound by statutory language
providing that the statute applies prospectively. See People v.
Summers, 208 P.3d 251, 257 (Colo. 2009).
¶ 9
In 2013, the General Assembly amended the controlled
substance statutes to reclassify drug offenses into different levels of
drug felonies and to create a new sentencing scheme for drug
felonies. See Ch. 333, secs. 4, 10, §§ 18-1.3-401.5, 18-18-405,
2013 Colo. Sess. Laws 1903-07, 1909-13. However, that legislation
expressly provided that those changes only apply to offenses
committed on or after October 1, 2013. See Ch. 333, sec. 71,
2013 Colo. Sess. Laws 1943.
¶ 10
Because Alexander committed his offenses in 2007, before the
effective date of the new legislation, he is not entitled to the
retroactive benefit of this amendment. See Stellabotte, ¶ 3,
451 P.3d 835, 839 (holding that the defendant was not entitled to
the retroactive benefit of statutory amendments because “the
amendments were enacted after the date of the triggering offense
and were intended to apply prospectively”).
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¶ 11
Accordingly, the district court did not err by denying
Alexander’s motion. See People v. Glover, 2015 COA 16, ¶ 22,
363 P.3d 736, 741 (holding that we may affirm a district court’s
ruling on any grounds supported by the record).
¶ 12
Moreover, an application for postconviction review alleging
that “there has been significant change in the law, applied to the
applicant’s conviction or sentence, allowing in the interests of
justice retroactive application of the changed legal standard,”
§ 18-1-410(1)(f)(I), C.R.S. 2021, only applies if the defendant
requests that relief before the conviction becomes final.
459 P.3d 516, 520-21 (holding that, when a defendant does not
raise the issue of whether he is entitled to the benefits of
amendatory legislation that substantially reduces the penalty for
the crime before his conviction becomes final, the trial court is
without authority to apply that amendatory legislation to his
conviction); Stellabotte, ¶ 33, 421 P.3d at 181 (holding that
retroactive application of a significant change in the law to a
defendant’s conviction or sentence applies only before the
conviction is final); Glazier v. People, 193 Colo. 268, 269, 565 P.2d
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935, 936 (1977) (“As we have repeatedly held, a defendant is
entitled to the benefits of amendatory legislation when relief is
sought before finality has attached to the judgment of conviction.”).
B. Drug Felonies Are Subject to the Habitual Criminal Statute
¶ 13
We likewise reject Alexander’s contention that his sentences
should be reduced because the 2013 amendments to the habitual
criminal statute removed drug felonies from the scope of the
habitual criminal sentencing statutes.
¶ 14
First, like the reclassification of drug offenses discussed above,
the 2013 amendments to the habitual criminal statute are effective
for offenses committed on or after October 1, 2013. See Ch. 333,
sec. 36, § 18-1.3-801, 2013 Colo. Sess. Laws 1927-28; Ch. 333,
sec. 71, 2013 Colo. Sess. Laws 1943. Thus, any changes to that
statute would not apply to Alexander’s convictions.
¶ 15
Second, contrary to Alexander’s contention, those
amendments did not remove drug felonies from the scope of the
habitual criminal sentencing statutes. See § 18-1.3-801(2)(a)(I),
C.R.S. 2021; see also People v. Loris, 2018 COA 101, ¶¶ 38-41,
434 P.3d 754, 759-60 (concluding that drug felony convictions are
still subject to habitual criminal sentencing).
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III. Conclusion
¶ 16
The order is affirmed.
JUDGE J. JONES and JUDGE GOMEZ concur.
