23CA1987 Peo v Clark 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1987 El Paso County District Court No. 17CR5348 Honorable Frances Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Patrick Allen Clark,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE FOX Kuhn and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Erin Hunn, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Patrick Allen Clark, appeals the district court’s
order reinstating his sentence to life in prison without the
possibility of parole (LWOP) for first degree kidnapping following an
extended proportionality review. We affirm.
I. Sentence Proportionality Reviews
¶2 Both the Eighth Amendment to the U.S. Constitution and
article II, section 20 of the Colorado Constitution prohibit the
imposition of a sentence grossly disproportionate to the severity of a
defendant’s crime. See Wells-Yates v. People, 2019 CO 90M, ¶¶ 5,
10.
¶3 A sentence proportionality review is a two-step process. Id. at
¶ 7. The district court must first conduct an abbreviated
proportionality review, comparing the gravity or seriousness of the
offense to the harshness of the penalty to determine if the sentence
gives rise to an “inference of gross disproportionality.” Id. at ¶ 8.
The gravity or seriousness of the offense turns on the “facts and
circumstances surrounding that offense.” Id. at ¶ 75. But when an
offense is “grave or serious in every potential factual scenario,” it is
per se grave or serious, and the court may proceed directly to
consider the harshness of the penalty. Id. at ¶ 63. If, at this step,
1 the sentence does not give rise to an inference of gross
disproportionality, no further analysis is required, and the sentence
is constitutional. Id. at ¶ 15.
¶4 But if the abbreviated proportionality review does give rise to
an inference of gross disproportionality, the court must proceed to
the second step of the analysis — an extended proportionality
review. Id. During this step, the court conducts an
intrajurisdictional and interjurisdictional review, comparing the
defendant’s sentence to “sentences for other crimes in the same
jurisdiction” and to “sentences for the same crime in other
jurisdictions.” Id. at ¶¶ 7, 15-17.
II. Case Background
¶5 The relevant facts giving rise to this case were detailed in the
opinion resolving Clark’s direct appeal:
The victim, Kenneth Foor, rented a bedroom in Clark’s basement. Foor testified that one night, while asleep, he awoke to Clark punching him and hitting him with the handle of a hammer. Foor testified that Clark assaulted him for approximately ten minutes. Foor sustained bruising and a fractured hip, which he testified rendered him immobile and unable to stand up or leave the bedroom.
2 During the assault, Clark accused Foor of stealing his belongings. Clark told Foor he could not leave the house until he returned Clark’s possessions. Clark placed a video camera on a table in Foor’s room, telling Foor, “Don’t fucking move from that couch,” and “We’ll know if you move.” According to Foor, the camera beeped and flashed a red light when he moved, which Clark had told Foor meant the camera was sending alerts to Clark’s phone. When the police found the video camera, it was unplugged. Investigators never tested the camera.
....
Foor remained in the bedroom with the door closed until his parole officer arrived to pick him up on a parole violation almost twenty-four hours later. Regarding whether the bedroom door was locked during this time: Foor said he was unsure, Foor’s parole officer said the door was not locked when he arrived, and another witness said the latches on the door did not align and therefore the door could not be locked.
When the parole officer arrived, Clark told the officer that Foor was not in the house and that aggressive dogs were in Foor’s bedroom. Nonetheless, the officer entered the house, opened the bedroom door, found Foor, and escorted him to the police car. Foor told the officer what had occurred as he was transported.
People v. Clark, slip op. at ¶¶ 2-6 (Colo. App. No. 18CA2293, Aug.
26, 2021) (not published pursuant to C.A.R. 35(e)).
3 ¶6 A jury convicted Clark of class 1 felony first degree kidnapping
involving injury1, class 5 felony false imprisonment, and
misdemeanor third degree assault. Clark received an LWOP
sentence for kidnapping, plus concurrent sentences for the other
two convictions.
¶7 On direct appeal, a division of this court affirmed Clark’s
convictions but concluded that an abbreviated proportionality
review of Clark’s LWOP sentence raised an inference of gross
disproportionality. Id. at ¶¶ 40-41. In doing so, the division
declined to designate first degree kidnapping a per se grave or
serious offense. Id. at ¶ 33 n.2. The division vacated the
kidnapping sentence and remanded to the district court for an
extended proportionality review. Id. at ¶ 41. The Colorado
Supreme Court denied certiorari.
1 Clark was charged and convicted under section 18-3-301(1)(c), (2),
C.R.S. 2025. A person commits first degree kidnapping if they “[i]mprison[] or forcibly secret[] any person” with the intent to “force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender’s actual or apparent control.” § 18-3-301(1)(c). First degree kidnapping is a class 1 felony “if the person kidnapped . . . suffered bodily injury.” § 18-3-301(2).
4 ¶8 On remand, the prosecution and Clark filed briefs supporting
their respective positions. For its intrajurisdictional comparison,
the prosecution compared Clark’s sentence to sentences for other
class 1 felonies in the Fourth Judicial District, arguing that these
defendants were most “similarly situated” to Clark. The
prosecution asserted that, because the court had no discretion to
impose a different sentence in those cases, all of those defendants
were also sentenced to LWOP. For the interjurisdictional
comparison, the prosecution argued that “[t]his is generally
interpreted as other jurisdictions within the same state,” although it
cited no authority for this assertion. It determined that “[a]ny
sentence within the state of Colorado for a similarly situated
defendant would have the exact same sentence as the conviction
does not leave a discretionary range for the court to consider.”
¶9 For Clark’s intrajurisdictional comparison, he first argued
that, of Colorado’s six class 1 felonies, first degree kidnapping is the
only crime that has resulted in an LWOP sentence in the past
twenty years where the victim did not die and there was no use of
force or a deadly weapon. He also asserted that he was one of two
people in the last twenty years who received an LWOP sentence for
5 first degree kidnapping in a case that did not also include another
conviction for murder, attempted murder, sexual assault, first
degree assault, or aggravated robbery. Clark further argued that
first degree kidnapping does not require proof of use of a deadly
weapon or serious bodily injury and yet mandates a harsher
sentence than many other crimes that do require proof of these
elements, like second degree murder, human trafficking, first
degree assault, and manslaughter.
¶ 10 In his interjurisdictional comparison, Clark asserted that
Colorado is one of only eight states that mandate an LWOP
sentence for first degree kidnapping. He claimed that twenty states
have a maximum sentence of “[forty] years or fewer,” and twelve of
those states have a maximum of “[twenty-five] years or fewer.” He
also asserted that federal courts can only impose a life sentence for
kidnapping if a person dies as a result of the offense. Clark further
argued that Colorado is one of only two states for which first degree
kidnapping “contains a theory of liability that does not require the
use of force, serious bodily injury, or even actual control.”
¶ 11 After hearing oral arguments from the parties, the district
court issued a written order in which it conducted an extended
6 proportionality review. For the intrajurisdictional comparison, the
court found that “[f]or every first-degree felony conviction in the
past five to twenty years in El Paso County,” the defendant was
sentenced to LWOP. For the interjurisdictional comparison, the
court limited the analysis to first degree kidnapping convictions
“outside of El Paso County, but within Colorado.” It found that
there were at least eight convictions and each of those defendants
was sentenced to LWOP.
¶ 12 The court cited Harmelin v. Michigan, 501 U.S. 957, 998-99
(1991), and People v. Deroulet, 48 P.3d 520, 527 (Colo. 2002),
abrogated by, Wells-Yates, 2019 CO 90M, to say that it was
required “to give deference to the legislature’s determination of the
appropriate punishment for first-degree kidnapping.” And in the
framework of this deference, the court could not see “how the only
legally authorized sentence for a first-degree kidnapping sentence
could ever be disproportionate.” Therefore, the court found that
“the only legally authorized sentence” for Clark’s kidnapping
conviction was not grossly disproportionate to the crime and
reinstated the LWOP sentence.
7 III. Discussion
¶ 13 Clark contends that the district court’s extended
proportionality review was erroneous because the court (1) failed to
consider the sentences for crimes other than class 1 felonies during
its intrajurisdictional comparison; (2) failed to consider the
sentences for first degree kidnapping in jurisdictions outside of
Colorado during its interjurisdictional comparison; and (3) declined
to exercise its discretion to impose a constitutional sentence and
instead deferred to the legislative sentencing scheme. While we
agree that the court engaged in a somewhat deficient extended
review, we conclude that the court’s ultimate determination that
Clark’s LWOP sentence was not grossly disproportionate was
correct.
¶ 14 We review de novo whether a sentence is grossly
disproportionate in violation of the U.S. and Colorado
Constitutions. Wells-Yates, ¶ 35.
A. Intrajurisdictional Comparison
¶ 15 Clark was convicted of first degree kidnapping under section
18-3-301(1)(c), (2), C.R.S. 2025. A person commits first degree
kidnapping if they “[i]mprison[] or forcibly secret[] any person” with
8 the intent to “force the victim or any other person to make any
concession or give up anything of value in order to secure a release
of a person under the offender’s actual or apparent control.”
§ 18-3-301(1)(c). They are guilty of a class 1 felony “if the person
kidnapped . . . suffered bodily injury.” § 18-3-301(2). Clark
committed the offense between September 13, 2017, and September
14, 2017. In Colorado, all class 1 felonies committed on or after
July 1, 1993, and before July 1, 2018, carry a statutorily mandated
LWOP sentence. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2025.
¶ 16 As we have said, in this first part of an extended
proportionality review, the court must compare the defendant’s
sentence to “sentences for other crimes in the same jurisdiction.”
Wells-Yates, ¶ 17. “Other crimes” has not been defined by Colorado
statute or case law. However, the United States Supreme Court has
said that, in the context of an extended proportionality review, “[i]f
more serious crimes are subject to the same penalty, or to less
serious penalties, that is some indication that the punishment at
issue may be excessive.” Solem v. Helm, 463 U.S. 277, 291 (1983).
¶ 17 Citing this language from Solem, Clark argues that this means
the district court “should have considered the facts of [his] case to
9 determine which crimes are more serious [regardless of felony class]
and compared the sentences for those crimes to the sentence of a
class one felony.” We disagree. The question is, “Do ‘more serious
crimes’ in the same jurisdiction have the same penalty or a less
serious penalty?” And “class 1 felonies are plainly the most serious
of offenses.” People v. Turley, 18 P.3d 802, 805 (Colo. App. 2000).
Therefore, by definition, anything less than a class 1 felony is not a
“more serious crime” than first degree kidnapping. And whether
first degree kidnapping should remain a class 1 felony, in light of
lower level felonies involving things like death or serious bodily
injury, is not the issue before us; nor is it an issue we would be at
liberty to decide.
¶ 18 Thus, the only sentences for crimes other than first degree
kidnapping that can be used in this intrajurisdictional comparison
are sentences for other class 1 felonies. The other five class 1
felonies in Colorado are:
1. First degree murder, § 18-3-102(3), C.R.S. 2025;
2. First degree murder of a peace officer, firefighter, or
emergency medical service provider, § 18-3-107, C.R.S.
2025;
10 3. Child abuse where a person in a position of trust
knowingly causes the death of a child under twelve years
of age, § 18-6-401(7)(c), C.R.S. 2025;
4. Assault during escape where the person has been
convicted of a class 1 felony, § 18-8-206(1)(a), C.R.S.
2025; and
5. Treason, § 18-11-101(2), C.R.S. 2025.
As class 1 felonies, these five offenses also require LWOP sentences.
See § 18-1.3-401(1)(a)(V)(A).
¶ 19 The first three felonies listed all require the death of a person
as an element of the crime. Arguably then, these qualify as “more
serious crimes . . . subject to the same penalty,” Solem, 463 U.S. at
291, than first degree kidnapping because first degree kidnapping
only requires “bodily injury,” § 18-3-301(2).
¶ 20 Assault during escape requires only an assault (1) with the
intent to commit bodily injury with a deadly weapon or (2) by use of
force that is “likely” to result in serious bodily injury. See
§ 18-8-206(1) (“Any person confined in any lawful place of
confinement within the state who, while escaping or attempting to
escape, commits an assault with intent to commit bodily injury
11 upon the person of another with a deadly weapon, or by any means
of force likely to produce serious bodily injury, commits . . . [a] class
1 felony, if the person has been convicted of a class 1 felony . . . .”).
One could say that this offense is less serious than first degree
kidnapping because first degree kidnapping requires actual bodily
injury and assault during escape does not. Yet both require an
LWOP sentence.
¶ 21 As for treason, that offense requires no injury at all. See
§ 18-11-101(1) (“A person commits treason if he levies war against
the state of Colorado or adheres to its enemies, giving them aid and
comfort.”). But it is indeed a class 1 felony subject to LWOP
sentencing.
¶ 22 In the end, although we could compare each class 1 felony to
determine relative seriousness, the legislature has effectively
signaled that all six are equally severe by assigning them the same
punishment. Accordingly, although an intrajurisdictional
comparison appears largely uninformative for class 1 felonies, it
confirms that Clark’s LWOP sentence for first degree kidnapping is
12 not grossly disproportionate compared to the other class 1 felonies
in the same jurisdiction.2
¶ 23 Clark argues that, even if we limit our comparison to class 1
felonies, “it is still apparent that if every sentence to [LWOP] in a
twenty-year period involved murder with the exclusion of [his] case,
[his] sentence was excessive.” But this argument misstates the
record. In his brief to the district court, Clark asserted that no one
has been sentenced for treason or assault during escape in the last
twenty years, and, therefore, first degree kidnapping is the only
class 1 felony that has resulted in an LWOP sentence in the past
twenty years where the victim did not die and there was no use of
force or a deadly weapon. And he claimed that of the 786 people
who have received LWOP sentences since 2003, the victim was
murdered in 773 of those cases, and the remaining 13 cases were
2 We acknowledge Clark’s argument that class 1 felonies are unique
because they have a mandatory sentence and an intrajurisdictional comparison will always yield the same result. However, the interjurisdictional comparison will still evaluate whether one of the punishments for a crime in that class is constitutionally disproportionate compared to other states. See Solem v. Helm, 463 U.S. 277, 299-300 (1983) (determining whether the defendant “was treated more severely than he would have been in any other State” after comparing his LWOP sentence to the sentences he would have received in the other forty-nine states).
13 for first degree kidnapping and included “non-murder LWOP
sentences.” Therefore, according to Clark’s own research that he
presented to the district court, in a twenty-year period he and
twelve other defendants received LWOP sentences where the victim
was not murdered — he was not the only one.
¶ 24 As to the twelve other first degree kidnapping cases, Clark
attempted to distinguish his case from four of them by highlighting
the additional convictions in those cases for things like attempted
murder, aggravated robbery, and first degree assault. He argued
these were more serious than his other convictions for false
imprisonment and third degree assault. But, like in his case, the
LWOP sentences in those cases were for first degree kidnapping, not
the other convictions. And Clark cites no authority, nor have we
found any, for the proposition that we must consider the other
crimes for which a defendant was convicted when conducting an
extended proportionality review of a sentence on a single count.
¶ 25 For these reasons, our intrajurisdictional comparison does not
result in a conclusion that Clark’s kidnapping sentence was grossly
disproportionate. Cf. Solem, 463 U.S. at 303 (holding that the
defendant’s sentence was grossly disproportionate, in part, because
14 “[h]e has been treated more harshly than other criminals in the
State who have committed more serious crimes”).
B. Interjurisdictional Comparison
¶ 26 In an interjurisdictional comparison, the court must compare
the defendant’s sentence to “sentences for the same crime in other
jurisdictions.” Wells-Yates, ¶ 17; see also Helm v. Solem, 684 F.2d
582, 586 (8th Cir. 1982) (“When a disproportionality analysis is
appropriate, however, the punishment that other states authorize
for similar offenses provides an objective backdrop against which to
judge the sentence under attack.”), aff’d, 463 U.S. 277 (1983).
¶ 27 We agree with Clark that the district court erred by limiting
its comparison to other jurisdictions within Colorado. See Solem,
463 U.S. at 299-300 (concluding that, for purposes of a
proportionality review, the defendant “was treated more severely
than he would have been in any other State” after comparing his
LWOP sentence to the sentences he would have received in the
other forty-nine states); People v. Medina, 926 P.2d 149, 152 (Colo.
App. 1996) (“In examining the habitual offender statutes from
neighboring states, we find that, were the defendant to have
committed these crimes in those states, she would not have been
15 subject to such a harsh penalty.”); People v. Gaskins, 923 P.2d 292,
297 (Colo. App. 1996) (concluding that the defendant’s life sentence
with parole eligibility was “disproportionate to allowable sentencing
for similar offenses in neighboring states”). Nonetheless, we cannot
conclude that a proper interjurisdictional comparison shows Clark’s
kidnapping sentence to be grossly disproportionate.
¶ 28 Colorado is one of nine states that impose mandatory life
sentences (or the death penalty) for their most serious kidnapping
offense where the victim suffered bodily injury or serious bodily
injury. The other eight states are California, Georgia, Idaho, Iowa,
Louisiana, Nebraska, South Dakota, and West Virginia. See Cal.
Penal Code § 209(a) (West 2025); Ga. Code Ann. § 16-5-40(d)(4)
(West 2025); Idaho Code Ann. § 18-4504(1) (West 2025); Iowa Code
Ann. §§ 710.2, 902.1(1) (West 2025); La. Stat. Ann. § 14:44 (2025);
Neb. Rev. Stat. Ann. §§ 28-313, 28-105(1) (West 2025); S.D.
Codified Laws §§ 22-6-1, 22-19-1, 24-15-4.1 (2025); W. Va. Code
Ann. § 61-2-14a (West 2025). Our comparison of the laws of other
states demonstrates that Colorado is not, as Clark argued in his
brief to the district court, “an outlier” when it comes to sentencing
defendants for first degree kidnapping. Cf. Solem, 463 U.S. at 303
16 (holding that the defendant’s sentence was grossly disproportionate,
in part, because “[h]e has been treated more harshly than he would
have been in any other jurisdiction, with the possible exception of a
single State”) (emphasis added).
¶ 29 Clark argued in the district court that, of the states listed
above, “only Colorado, Iowa, and West Virginia have abolished the
death penalty, making Colorado one of just three states in the
country that subjects defendants convicted of kidnapping to the
state’s most serious penalty.” Plus, he asserted, West Virginia
includes the potential for parole based on a jury’s recommendation,
and Iowa requires the defendant to seriously injure, intentionally
torture, or sexually abuse the victim. We fail to see how these
arguments support Clark’s position. If any of the remaining states
still authorize the death penalty for first degree kidnapping, e.g.,
Georgia, Ga. Code Ann. § 16-5-40(d)(4), then Colorado’s mandatory
LWOP sentence would be considered more lenient. This is contrary
to Clark’s stance that “Colorado has the most draconian sentencing
scheme for First-Degree Kidnapping of any state in the country.”
¶ 30 Clark further argued that, of the states that mandate a life
sentence for first degree kidnapping, only Colorado and Louisiana
17 use “a theory of liability that does not require the use of force,
serious bodily injury, or even actual control.” As we have said, the
comparison we must make here is of Clark’s sentence to “sentences
for the same crime in other jurisdictions.” Wells-Yates, ¶ 17
(emphasis added). Because not all states have a crime called “first
degree kidnapping,” we necessarily look at each state’s most serious
kidnapping offense for comparison. Clark cited no authority, and
we are aware of none, that requires a court to go a step further and
compare the elemental requirements for the same crime in other
jurisdictions during an interjurisdictional comparison.
¶ 31 Based on our extended proportionality review, we conclude
that Clark’s LWOP sentence for first degree kidnapping was not
grossly disproportionate, and the district court did not err in so
deciding. We recognize that LWOP is the most severe sentence
authorized by the legislature. “Nonetheless, the Supreme Court has
concluded that sentencing certain defendants who have committed
felonies to LWOP does not necessarily run afoul of the Eighth
Amendment.” Sellers v. People, 2024 CO 64, ¶ 52 (citing Harmelin,
501 U.S. at 994-96).
18 ¶ 32 In light of our conclusion, we need not address Clark’s
challenge to the district court’s deference to the legislative
sentencing scheme.
IV. Disposition
¶ 33 The order is affirmed.
JUDGE KUHN and JUDGE SULLIVAN concur.