22CA1486 Peo v Carey 04-17-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1486 El Paso County District Court No. 15CR1394 Honorable Erin Sokol, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
John Clifford Carey,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025
Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, John Clifford Carey, appeals the postconviction
court’s denial of his Crim. P. 35(c) motion. We affirm.
I. Background
¶2 On March 25, 2015, Carey went to the properties of T.S. and
S.B. in search of his wife. While wielding a machete, Carey forcibly
entered T.S.’s trailer, grabbed T.S. by the beard, held the machete
against his face, and questioned T.S. about his wife. After T.S. told
him he did not know where his wife was, Carey punched T.S. in the
face and left.
¶3 Carey then went to the adjacent trailer, which belonged to S.B.
Upon entering, he saw his wife and another man, B.K., sitting in
the living room. Still holding the machete, Carey approached B.K.
and asked if B.K. was “getting [his wife] high.” When B.K. said
“[N]o,” Carey punched him several times before following his wife
into another room. Carey then saw S.B. and asked her if she was
“getting [his wife] high,” and S.B. responded, “[N]o.”
¶4 Carey returned to T.S.’s trailer, used the machete to cut T.S.’s
face, pulled out part of his beard, and punched him again. Carey
then went back to S.B.’s trailer, argued with his wife, and left as the
police arrived.
1 ¶5 During trial, at which Carey represented himself, Carey argued
that his actions were justified because he reasonably believed that
his wife was in danger and did not intend to harm anyone. A jury
rejected this defense and found Carey guilty of first degree burglary,
second degree burglary, third degree assault, and two counts of
felony menacing. Following a hearing on Carey’s habitual criminal
charges, the trial court merged his third degree assault conviction
into his conviction for first degree burglary and sentenced him to a
controlling term of sixty-four years in the custody of the
Department of Corrections.
¶6 In June 2019, a division of this court affirmed Carey’s
convictions and sentences on direct appeal in People v. Carey,
(Colo. App. No. 16CA0358, Feb. 21, 2019) (not published pursuant
2 to C.A.R. 35(e)) (Carey I).1 Carey filed a timely motion for
postconviction relief pursuant to Crim P. 35(c) and requested the
appointment of counsel. The postconviction court granted a partial
hearing and denied Carey’s postconviction claims.2
II. Competence to Proceed Pro Se
¶7 Carey contends that he was incompetent to represent himself
at trial and that the postconviction court erroneously conflated the
standard for determining competence to waive the right to counsel
with the standard for competence to represent oneself at trial under
1 In the direct appeal, Carey alleged that (1) the trial court failed to
inquire into an alleged conflict of interest between him and appointed counsel; (2) the trial court failed to advise him of his right to conflict-free counsel; (3) his waiver of counsel was not knowing, voluntary, or intelligent; (4) he was never advised of the sentencing exposure he’d face if adjudicated an habitual offender; (5) he was confused about whether certain matters could be litigated if counsel were reappointed; (6) the trial court improperly denied his right to proceed on a plea of not guilty by reason of insanity; (7) the trial court abused its discretion in denying his request for a continuance; and (8) the prosecution presented insufficient evidence to support his burglary convictions.
2 Carey’s Crim. P. 35(c) motion raised issues that were not reraised
here and that are therefore abandoned. They include Carey’s contention that the trial court erred when it precluded him from introducing certain evidence and properly cross-examining witnesses; erroneously instructed the jury; and erroneously rejected evidence of his mental condition.
3 Indiana v. Edwards, 554 U.S. 164 (2008). He further claims the
court should have granted him a hearing on this issue. We
disagree.
A. Additional Facts
¶8 On June 1, 2015, Carey filed a motion to proceed pro se and
for access to his discovery. He argued that he “ha[d] been ke[pt] in
the dark on his intire [sic] case”; had not been able to review his
discovery; and, therefore, wished to represent himself.
¶9 At a pretrial hearing on June 11, 2015, Carey expressed
displeasure with his public defender. The trial court found no
conflict of interest in the representation; explained that it would not
be conducting another preliminary hearing; and then advised Carey
concerning a waiver of the right to counsel, consistent with People
v. Arguello, 772 P.2d 87 (Colo. 1989). The court explained that
Carey faced a maximum sentence of forty-eight years of
incarceration. See id.
¶ 10 During the Arguello advisement, Carey said (1) he did not
know what a Curtis advisement was; (2) he had six prior felonies;
and (3) he believed that if one of the named victims said she did not
want to press charges, he could “have got one of those charges
4 dismissed,” even after the court had found probable cause at the
preliminary hearing. See People v. Curtis, 681 P.2d 504, 514 (Colo.
1984). Carey agreed to speak with his public defender once more
before deciding whether to waive his right to counsel.
¶ 11 A week later, the trial court reminded Carey of the earlier
Arguello advisement and asked if he had consulted with counsel.
Carey said he had but that counsel still did not want to give him
access to discovery, “and that’s the biggest thing with me.” The
court then asked Carey if he wanted more time to think about
whether to proceed pro se, and Carey said, “Your Honor, it’s – – I’m
going to have to go pro se on this matter. I’m going to have to do
it.” When the court asked Carey to clarify what he meant, Carey
said,
It’s the only way I feel I’m going to get a fair trial to where I can examine all the case against me, if I have access to that, and the only way I’m going to have access to my discovery and to all of the evidence that is filed against me is for me to go pro se.
¶ 12 The court then asked whether Carey remembered their earlier
discussion about the “very substantial prison sentences [he was]
looking at if convicted of these charges,” and Carey said, “[Y]es.”
5 Carey also confirmed his understanding that he would not receive
another preliminary hearing. Carey further confirmed that he had
no ethical or legal conflict with the public defender’s office. And he
also acknowledged the following:
• He was not under the influence of drugs except for
prescribed medications, had no history of mental health
problems, had sufficient time to consult with counsel, and
had completed a GED.
• He had represented himself in a prior mediation, was
familiar with the Colorado Rules of Evidence and Criminal
Procedure, had previously admitted evidence at a motions
hearing and conducted cross-examinations, and knew how
to use process servers to subpoena witnesses for trial.
• He knew that law library access may be limited, that the
State could not provide him a computer, and that
communication with the prosecution may be difficult.
• He understood his right to not testify and knew that
proceeding pro se may impact that right, and he had never
undergone a competency examination.
6 ¶ 13 The court inquired again about prior felonies, and the
prosecutor stated his belief that Carey had six. Carey understood
that those convictions could be used against him for credibility
purposes if he testified and that they might be used to aggravate his
sentence if convicted. The court then explained his right to the
assistance of advisory counsel and to have an investigator. It
concluded by saying,
You can be a very smart and intelligent individual, but this is a complex issue and rules of evidence and rule[s] of procedure are significant and important. My concern is you don’t have sufficient knowledge and training to do as good of a job as [the public defender] or any other attorney would. Do you still want to represent yourself?
Carey responded affirmatively.
¶ 14 Approximately one week later, the prosecutor amended the
charges to add five habitual criminal counts. Carey appeared pro
se the same day, and the trial court appointed advisory counsel.
¶ 15 On August 27, 2015, Carey conceded that he “[could not]
adequately defend [himself].” The court discussed reappointing the
public defender, and Carey stated his willingness to waive speedy
7 trial to accommodate this. Intending to reappoint the public
defender at the next hearing, the court dismissed advisory counsel.
¶ 16 On September 3, 2015, the trial court offered to reappoint the
public defender and gave Cary additional time to consider the
decision. One week later, Carey decided he wished to continue pro
se.
¶ 17 In his postconviction motion, Carey argued that his
“confusion, frustration, and bewilderment” at trial demonstrated
that he had invalidly waived his right to counsel. He argued that
because the trial court relied in part on a psychiatric evaluation3
finding him competent to stand trial in its decision to permit him to
represent himself, it neglected to consider or to apply the
heightened standard for determining competence to represent
oneself set forth in Edwards. He also argued that appellate counsel
was ineffective for failing to raise this issue in the direct appeal.
¶ 18 The postconviction court found the merits of Carey’s argument
successive because they could have been raised in the direct
3 Before trial, the court raised Carey’s competency and received a
report finding him competent. Carey did not object to the court’s finding, nor did he request a second evaluation.
8 appeal. Turning to the effectiveness of appellate counsel, the
postconviction court found no prejudice, based on People v. Davis,
2015 CO 36M, because this argument was not stronger than the
other issues raised. In Davis, the supreme court rejected the need
for a heightened standard and held that “Colorado’s existing
analytical framework provides the standards necessary for trial
courts to exercise the discretion described in Edwards.” Id. at ¶ 25.
B. Standard of Review and Applicable Law
¶ 19 We review a postconviction court’s denial of a Crim. P. 35(c)
motion without a hearing de novo. People v. Wilson, 397 P.3d 1090,
1094 (Colo. App. 2011). We also review interpretations of the rules
of criminal procedure de novo, People v. Corson, 2016 CO 33, ¶ 44,
including whether a postconviction motion is successive, People v.
Thompson, 2020 COA 117, ¶ 42.
¶ 20 Crim. P. 35(c) permits postconviction review of alleged
constitutional errors in criminal proceedings. People v. Sherman,
172 P.3d 911, 915-16 (Colo. App. 2006). A postconviction court
may deny a Rule 35(c) motion without a hearing when (1) the
motion, files, and record clearly establish that the defendant is not
entitled to relief; (2) the allegations, even if true, do not provide a
9 basis for relief; or (3) the claims are bare and conclusory in nature
and lack supporting factual allegations. See Crim. P. 35(c)(3)(IV);
People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). If a court
summarily denies a postconviction motion, it “shall enter written
findings of fact and conclusions of law in denying the motion.”
Crim. P. 35(c)(3)(IV).
¶ 21 The rule also bars claims that are successive. A Crim. P. 35(c)
claim is successive if it was previously raised and resolved or could
have been previously raised and resolved in a prior appeal or
postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII). “Rule 35
proceedings are intended to prevent injustices after conviction and
sentencing, not to provide perpetual review.” People v. Rodriguez,
914 P.2d 230, 249 (Colo. 1996). Subject to exceptions inapplicable
here, a court is required to deny any successive postconviction
claims. See Crim. P. 35(c)(3)(VI)-(VII).
¶ 22 Finally, “[a]ppellate counsel is not required to raise on appeal
every nonfrivolous issue a defendant desires to raise.” People v.
Trujillo, 169 P.3d 235, 238 (Colo. App. 2007). Appellate counsel’s
choice of which issues to raise is a strategic decision that is
presumed effective and can be overcome “only when ignored issues
10 are clearly stronger than those presented.” Id. (alteration and
citation omitted).
C. Analysis
¶ 23 We agree with the postconviction court that Carey’s claim
concerning his competence to represent himself at trial is
successive and could have been raised in his direct appeal. Indeed,
the record shows that appellate counsel challenged, and a division
of this court specifically addressed, Carey’s waiver of the right to
counsel in the direct appeal. Carey I, No. 16CA0358, slip op. at ¶ 7.
Moreover, while Carey did not object to the competency evaluation’s
findings in the trial court, nothing prevented him from challenging
those findings under the plain error standard of review on direct
appeal.
¶ 24 Additionally, Carey’s argument in his postconviction motion
concerning his incompetence was based on information already in
the record — including his behavior at trial, his equivocation about
whether to represent himself, and the legal standard the district
court applied. He did not identify any specific evidence outside the
record, beyond an assertion that he would have presented a
psychological report addressing the heightened standard, that
11 would necessitate a hearing. See Wilson, 397 P.3d at 1094-95
(competency issue found successive when the record on direct
appeal contained all the information relevant to the competency
determination, and it was unclear what additional information
defendant would have included); cf. Moore v. People, 2014 CO 8, ¶¶
14, 16 (holding that a challenge to a waiver of the right to testify
cannot be raised on direct appeal because whether the waiver was
knowing, voluntary, and intelligent requires consideration of facts
outside the record). Nor did he otherwise explain why this issue
could not have been raised on direct appeal. However, because the
Colorado Supreme Court has held that no such heightened
standard exists in Colorado, supra Part II. A, such a report would
have been immaterial. Therefore, we discern no error in the court’s
decision not to grant a hearing on this issue.
¶ 25 Concerning Carey’s ineffective assistance of appellate counsel
argument, we first note that the opening brief does not challenge
the postconviction court’s basis for denying his claim, i.e., the
holding in Davis, 2015 CO 36M. Instead, Carey argues generally
that an evidentiary hearing was required to show how this
particular claim was a stronger appellate issue than the issues
12 actually raised. But his strength claim is predicated on there being
a heightened standard of competency to proceed to trial, which
Davis specifically rejected. See id. at ¶ 25. He does not distinguish
Davis or otherwise explain why the postconviction court erred in
relying on it. And because the postconviction court and this court
are bound by decisions of the supreme court, we discern no error in
the postconviction court’s finding that there was no ineffective
assistance of appellate counsel. See People v. Harmon, 2019 COA
156, ¶ 3 n.1 (noting that the Colorado Court of Appeals is bound by
holdings of the Colorado Supreme Court)
III. Continuing Arguello Advisement
¶ 26 Carey next contends that the trial court should have given him
another Arguello advisement following the filing of habitual criminal
counts. Specifically, he argues that a court has a continuing duty
to reassess whether a pro se defendant’s waiver of the right to
counsel is voluntary, knowing, and intelligent and that the
postconviction court erroneously denied him a hearing on this
issue. He further argues that appellate counsel was ineffective in
failing to raise this issue on direct appeal. We disagree.
13 A. Standard of Review and Applicable Law
¶ 27 We employ the same standard for reviewing postconviction
motions as set forth above. An indigent defendant has a Sixth
Amendment right to the assistance of counsel in a criminal case.
King v. People, 728 P.2d 1264, 1268 (Colo. 1986). A defendant also
has a correlative Sixth Amendment right of self-representation.
Faretta v. California, 422 U.S. 806, 819 (1975); People v. Johnson,
2015 COA 54, ¶ 16.
¶ 28 “Effective waiver of counsel is a mixed question of fact and
law that we review de novo.” People v. Alengi, 148 P.3d 154, 159
(Colo. 2006). “Courts indulge every reasonable presumption against
a waiver of [the] fundamental right [to counsel],” King, 728 P.2d at
1268, and “[a]ny doubts regarding the waiver must be resolved in
[the] defendant’s favor,” Arguello, 772 P.2d at 93.
¶ 29 We similarly employ the same standard for reviewing the
effectiveness of appellate counsel set forth above. Trujillo, 169 P.3d
at 238.
B. Analysis
¶ 30 We begin with the People’s assertion that this issue is not
preserved for our review and agree that Carey’s motion did not
14 specifically argue a continuing duty to assess the waiver of counsel
under Arguello. Nevertheless, his motion extensively analyzed the
waiver of counsel issue, which arguably included this issue.
Therefore, assuming, without deciding that the issue was preserved,
we conclude, for the same reasons described above, supra Part II.C,
that it could have been raised in the direct appeal and is therefore
successive.
¶ 31 Regarding the effectiveness of appellate counsel in failing to
raise this issue on direct appeal, Carey does not cite any authority
requiring a continuing duty to reassess the validity of a waiver of
counsel. Therefore, we conclude he has failed to show that this
issue was clearly stronger than the issues raised in the direct
appeal. See Trujillo, 169 P.3d at 238.
IV. Conflict of Interest
¶ 32 Carey next contends the postconviction court should have
granted a hearing on whether the trial court failed to properly
inquire into his conflict of interest with the public defender.4 We
4 Carey’s brief groups two other issues with this contention: (1) an
evidentiary issue and (2) an argument that appellate counsel was ineffective. Because he does not develop these arguments, we do
15 conclude this issue is successive because it was raised and resolved
in the direct appeal.
¶ 33 Because this issue was decided in Carey’s direct appeal, we
conclude it is successive. Indeed, as the previous division noted,
“[o]nce a trial court is put on notice of a potential conflict of interest
between the defendant and defense counsel, it has a duty to inquire
into the propriety of continued representation by counsel.” Carey I,
No. 16CA0358, slip op. at ¶ 23 (citing People v. Edebohls, 944 P.2d
552, 556 (Colo. App. 1996)).
¶ 34 Additionally, and contrary to his claim here, Carey specifically
told the trial court that there was no ethical or legal conflict with
the public defender — he simply wanted full access to his discovery.
Thus, by his own admission, the trial court had nothing to conduct
an inquiry about.
¶ 35 Finally, we are not persuaded by Carey’s assertion that a
hearing was necessary because he had an expert who would testify
about appellate counsel’s ineffectiveness in failing to raise this
not address them. See People v. Liggett, 2021 COA 51, ¶ 53 (appellate courts do not address undeveloped arguments), aff’d, 2023 CO 22.
16 claim. Appellate counsel did raise this conflict claim in the direct
¶ 36 Accordingly, we discern no error in the postconviction court’s
ruling.
V. Ineffective Assistance of Pretrial Counsel
¶ 37 Carey next contends that pretrial counsel’s ineffective
assistance and, in particular, counsel’s failure to investigate
coerced him into waiving his right to counsel and, thus, that his
waiver was not knowing, intelligent, and voluntary. He further
contends the postconviction court erred in failing to recognize the
connection between these two events. He also argues that the
cumulative effect of counsel’s errors denied him a fair trial. We
¶ 38 In its original ruling on the Rule 35(c) motion, the
postconviction court granted Carey a hearing on “the issue of
ineffective assistance of pre-trial counsel, cumulative error, and
proportionality review” and requested supplemental briefing.
¶ 39 At his postconviction hearing, Carey’s counsel presented
affidavits from T.S. and S.B., the trailer owners, that stated neither
17 believed any criminal charges should have been filed. Specifically,
S.B. said that she did not believe that Carey’s actions constituted a
burglary and also said the case should have been settled or resolved
without a criminal trial.
¶ 40 Postconviction counsel then argued that if the ineffective
assistance of pretrial counsel induces the defendant into waiving
his right to counsel, such waiver cannot be deemed knowing,
intelligent, and voluntary. Counsel further argued that Carey’s
pretrial counsel was ineffective in failing to conduct even the most
minimal investigation into the alleged victim’s potential statements.
Carey’s counsel argued that had pretrial counsel interviewed T.S.
and S.B. at the outset of the case, the court would have learned
that each of them had “reservations about whether a crime was
committed, whether the crime went anything beyond misdemeanor
third-degree assault, and whether [Carey] should have been
prosecuted at all.” Counsel further argued that, had pretrial
counsel conducted these interviews, Carey would not have waived
his right to counsel and elected to represent himself.
¶ 41 In a thorough, written order, the postconviction court
concluded that the record did not support Carey’s failure to
18 investigate claim. Citing pretrial hearings, the court found that “the
primary reason [Carey] chose to proceed pro se was based on
pretrial counsel’s decision not to allow [Carey] unfettered access to
discovery during [Carey’s] pretrial incarceration.” It further found
that Carey failed to prove prejudice, noting that (1) the prosecution
was fully aware of the witnesses’ feelings about the case and did not
dismiss it; (2) before trial, Carey litigated whether he could
introduce this information at trial; (3) Carey admitted that he asked
the prosecution to dismiss the case based on these witnesses’
feelings; and (4) the jury heard the witnesses’ feelings and still
convicted him. The court found that because Carey could not
demonstrate that he received ineffective assistance of pretrial
counsel, his claim that his waiver of counsel was coerced by
counsel’s failure to investigate failed.
¶ 42 Because the postconviction court is the trier of fact at an
evidentiary hearing on a postconviction motion, we defer to the
court’s factual findings when they are supported by the record, but
we review its legal conclusions de novo. West v. People, 2015 CO 5,
¶ 11.
19 ¶ 43 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense. Dunlap v.
People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
¶ 44 Under the first prong, to establish deficient performance, the
defendant must show that counsel’s representation “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688.
“[J]udicial scrutiny of counsel’s performance must be highly
deferential, evaluate particular acts and omissions from counsel’s
perspective at the time, and indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Ardolino v. People, 69 P.3d 73, 76 (Colo.
2003). Under the second prong, to establish prejudice, the
defendant must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. A
reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id.
20 C. Analysis
¶ 45 We agree with the postconviction court that Carey failed to
establish the ineffective assistance of pretrial counsel by a
preponderance of the evidence, for three reasons. First, Carey’s
motion alleged counsel failed to interview unidentified relevant
witnesses, but he produced the affidavits of only two witnesses
whose statements and feelings about the case were disclosed to the
prosecution well before trial and to the jury during trial.
¶ 46 Second, his motion alleged that pretrial counsel failed to
appropriately test the machete and to advise him on the law. But at
the hearing, Carey produced no testing results, expert testimony, or
investigation by his private investigator to establish that any
particular testing would have been more appropriate or possibly
yielded different results. Moreover, Carey’s motion did not identify,
nor did he argue at the hearing, the particular area of law on which
counsel should have advised him.
¶ 47 Finally, the record supports the court’s finding that a lack of
pretrial investigation did not coerce Carey to waive his right to
counsel. Indeed, the numerous pretrial hearings are replete with
Carey’s complaints concerning counsel’s decision not to give him
21 unfettered access to his discovery and Carey’s decision to proceed
pro se to remedy this situation. Because the record supports the
court’s findings, we affirm its ruling.
VI. Proportionality
¶ 48 Carey last contends that his sixty-four-year habitual criminal
sentence raises an inference of gross disproportionality that
requires an extended proportionality review. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 49 We review de novo whether a defendant’s sentence is grossly
disproportionate. Wells-Yates v. People, 2019 CO 90M, ¶ 35 (Wells-
Yates I).
¶ 50 The Eighth Amendment to the United States Constitution and
article II, section 20, of the Colorado Constitution both prohibit
cruel and unusual punishments. These provisions forbid extreme
sentences that are grossly disproportionate to the crime. Wells-
Yates I, ¶¶ 5, 10 (citing Harmelin v. Michigan, 501 U.S. 957, 1001
(1991) (Kennedy, J., concurring)).
¶ 51 In assessing a defendant’s challenge to the proportionality of
their sentence, a court first conducts an abbreviated proportionality
review. People v. Wells-Yates, 2023 COA 120, ¶ 15 (Wells-Yates II).
22 During an abbreviated proportionality review, the court considers
two subparts to determine whether the sentence gives rise to an
inference of gross disproportionality: (1) the gravity or seriousness
of the offense and (2) the harshness of the penalty. Wells-Yates I,
¶¶ 7-8, 11.
¶ 52 The analysis expands slightly, however, when a defendant
challenges the proportionality of a habitual criminal sentence. In
that instance, the court must analyze the gravity or seriousness of
all the offenses in question (the triggering offense and the predicate
offenses) and the harshness of the sentence imposed on the
triggering offense. Id. at ¶ 23. If this first step gives rise to an
inference of gross disproportionality, the court must proceed to the
second step and conduct an extended proportionality review. See
id. at ¶ 7 (discussing the step-two analysis). But if the step-one
analysis does not give rise to an inference of gross
disproportionality, the proportionality challenge fails, and the court
must uphold the sentence. Id. at ¶ 8.
¶ 53 Some offenses are “per se” grave or serious, allowing the court
to skip over the first step of the abbreviated proportionality review.
Id. at ¶ 13. The standard for designating offenses per se grave or
23 serious is whether the offense in question “necessarily involve[s]
grave or serious conduct.” Wells-Yates I, ¶ 63. For offenses that
are not deemed per se grave or serious, the court may still
determine on a case-by-case basis that a defendant’s particular
crime constituted a grave or serious offense after considering the
surrounding facts and circumstances. Id. at ¶ 71; see, e.g., People
v. Tran, 2020 COA 99, ¶ 101.
¶ 54 Carey challenges only the predicate offenses the court found to
be grave or serious, including his second degree burglary and motor
vehicle theft convictions in El Paso County Case No. 86CR3817, a
sexual assault on a child conviction in El Paso County Case No.
87CR2842, and a possession of a controlled substance with intent
to distribute conviction in El Paso County Case No. 06CR1847. We
address each predicate offense separately and affirm the court’s
findings that each is grave or serious.
1. Case No. 86CR3817
¶ 55 In this case, Carey pleaded guilty to breaking into a John
Deere facility with an accomplice by cutting a wire fence, hotwiring
and stealing a truck, stealing a generator, and stealing cases of oil.
24 The court noted that both convictions were class four felonies and
were completed rather than attempted crimes and that Carey acted
as the principal. While acknowledging that these were not the most
grave or serious offenses, the court found both to be grave or
serious due to the significant financial losses suffered by the victim
and Carey’s substantial culpability. See Wells-Yates I, ¶ 12 (listing
factors relevant to the gravity or seriousness of an offense).
Considering the “facts and circumstances of the particular crime
committed,” id. at ¶ 71, we agree with the postconviction court that
these convictions are somewhat grave or serious, see Wells Yates II,
¶¶ 48-51 (finding that a nonviolent second degree burglary of an
unoccupied home to steal property was grave or serious).
2. Case No. 87CR2842
¶ 56 In this case, Carey pleaded guilty to having sexual relations
with a fourteen-year-old child he knew. The postconviction court
rejected his arguments that the victim’s consent and that he had
originally pleaded guilty under a deferred judgment mitigated the
seriousness of the offense. Because the record supports the court’s
factual findings and because numerous courts have found sexual
assault on a child to be grave or serious, we similarly conclude this
25 predicate offense is grave or serious. See People v. McCulloch, 198
P.3d 1264, 1269 (Colo. App. 2008) (finding an attempt to lure a
seventeen-year-old boy into a consensual sexual encounter to be
grave or serious); People v. Strean, 74 P.3d 387, 396 (Colo. App.
2002) (finding sexual assault on a child to be grave or serious).
3. Case No. 06CR1947
¶ 57 In this case, Carey pleaded guilty to possession of a controlled
substance (a class 2 felony), possession of a controlled substance
with intent to distribute (a class 2 felony) and resisting arrest.
Following a traffic stop, police officers recovered a large amount of
cocaine and methamphetamine from Carey’s vehicle, along with
scales, numerous plastic bags, needles, and spoons. The court
found these crimes grave or serious due to the large quantity of
drugs and materials needed to distribute the drugs, Carey’s
admitted culpability, the high-level felony classification, and the
fact that they were completed. Because the record supports the
court’s findings, and considering the specific circumstances of these
crimes, we discern no error in the court’s finding that both crimes
are grave or serious.
26 4. Triggering Offenses
¶ 58 The postconviction court then considered the triggering
offenses and found them to be grave or serious. We first conclude
that Carey’s first degree burglary conviction is per se grave or
serious. See Wells-Yates I, ¶ 65. Next, we conclude that Carey’s
second degree burglary conviction is grave or serious based on the
fact that he broke into an occupied residence armed with a deadly
weapon and then threatened and injured two occupants. Finally,
we conclude that Carey’s two felony menacing convictions, which
involved breaking into a residence while brandishing a deadly
weapon, are also grave or serious. See Well-Yates I, ¶ 64 (finding
any offense involving knowing conduct and grave harm or
threatened harm to the victim is grave or serious).
¶ 59 Considering these triggering offenses, together with the
predicate offenses and their relative harm to society, we conclude
that this is not one of those “‘rare case[s]’ in which [an] abbreviated
proportionality review leads to an inference of gross
disproportionality.” Wells-Yates II, ¶ 64. Nor do we find the
postconviction court’s finding that two of his prior offenses were not
grave or serious to be dispositive. We need not deem every
27 predicate offense grave or serious to reject Carey’s proportionality
challenge. See Wells-Yates I, ¶ 24 (“[T]he inquiry is whether the
corresponding triggering offense and the predicate offenses,
considered together, are so lacking in gravity or seriousness as to
suggest that the sentence is grossly disproportionate.”); see also
Wells-Yates II, ¶¶ 65-66 (finding no inference of gross
disproportionality in habitual sentence for second degree burglary,
despite deeming the predicate offenses “not especially grave or
serious”). Accordingly, we affirm the sentence.
VII. Disposition
¶ 60 The judgment is affirmed.
JUDGE SCHOCK and JUDGE SULLIVAN concur.