22CA1678 Peo v Devoe 03-12-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1678 Arapahoe County District Court No. 21CR1353 Honorable Ryan J. Stuart, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Frank Adam Devoe,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE WELLING Grove and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 12, 2026
Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Frank Adam Devoe, appeals his conviction and
sentence as a special offender. Devoe argues there was insufficient
evidence to support his conviction as a special offender, that the
trial court failed to properly consider all the sentencing factors, and
that the trial court erred when it imposed a sentence that isn’t
proportional to his conviction. We affirm.
I. Background
¶2 On June 15, 2021, while Devoe was on parole, two parole
officers, Elesia Barnes and Wendy Beach, arrived at Devoe’s home
to conduct a search. When the officers knocked, William Wilson,
who didn’t live there, answered the door. The officers entered the
home, and Wilson informed them that Devoe was in the back
bedroom. The officers called for Devoe to come out but he didn’t
emerge for a few minutes.
¶3 Once Devoe emerged from the bedroom, Wilson fled the scene.
After Wilson’s escape, Officer Barnes placed Devoe in handcuffs and
searched his person. Officer Barnes discovered a bag containing a
white substance in one of Devoe’s pockets, and money in the other.
¶4 Next, the officers searched Devoe’s apartment. Barnes found a
handgun inside a medical boot next to the kitchen table. In Devoe’s
1 bedroom, the officers discovered more bundles of money, another
baggie containing a white substance, and another handgun on the
bed, under some pillows and blankets. In total, officers found
$5,100 in bundles of cash — despite Devoe being unemployed at
the time; 232 grams of suspected illegal drugs — later confirmed to
be cocaine; 3 scales; and 2 loaded handguns.
¶5 Devoe was arrested and charged with possession with intent to
manufacture or distribute over 225 grams of a controlled
substance, a level 1 drug felony; two special offender sentence
enhancers based on his possession of a deadly weapon; and two
counts of possession of a weapon by a previous offender (POWPO).
Devoe pleaded guilty to one of the POWPO counts in exchange for
the dismissal of the other POWPO count. Devoe pleaded not guilty
to the remaining charges.
¶6 The possession with intent to distribute charge was later
reduced to possession with intent to distribute between 14 grams
and 225 grams of cocaine — a level 2 drug felony. §§ 18-18-
405(1)(a), (2)(b)(1)(A), C.R.S. 2025. The presumptive sentencing
range for a level 2 drug felony is four to eight years in the custody of
the Department of Corrections (DOC). § 18-1.3-401.5(2)(a), C.R.S.
2 2025. The two special offender sentence enhancers, however,
raised the level 2 drug felony to a level 1 drug felony with an
increased sentencing range of twelve to thirty-two years in the
custody of the DOC. § 18-18-407(1), C.R.S. 2025; § 18-1.3-
401.5(7). One of the special offender charges required the jury to
find that Devoe “used, displayed, or possessed on his . . . person or
within his . . . immediate reach, a deadly weapon” while he
possessed the drugs. § 18-18-407(1)(d)(I). The other special
offender charge required the jury to find that Devoe or his
confederate possessed and had access to a gun “in a manner that
posed a risk to others” while Devoe possessed the drugs. § 18-18-
407(1)(d)(II).
¶7 Following a three-day trial, the jury found Devoe guilty of the
possession with intent to distribute charge and the special offender
sentence enhancer that required the gun to be within Devoe’s
“immediate reach.” § 18-18-407(1)(d)(1). But the jury acquitted
Devoe of the other special offender charge.
¶8 The defense requested a twelve-year sentence, while the
prosecution requested a twenty-four-year sentence. Ultimately, the
court sentenced Devoe to thirty-two years — the maximum
3 sentence within the presumptive sentencing range. § 18-1.3-
401.5(7). The court also imposed a three-year sentence for the
POWPO conviction to run concurrently with the thirty-two-year
sentence.
II. Issues on Appeal
¶9 Devoe makes three arguments on appeal. First, he contends
that there was insufficient evidence presented at trial to show that
either of the guns found in the apartment were within his
“immediate reach” so as to subject him to the special offender
enhancer. § 18-18-407(1)(d)(I). Second, Devoe contends that the
court abused its discretion when it sentenced Devoe to thirty-two
years in the custody of DOC without properly considering all of the
sentencing factors. Third, Devoe contends that his thirty-two-year
sentence is constitutionally disproportionate to his convictions. We
consider and reject his contentions, in turn, below.
A. Sufficiency of the Evidence
¶ 10 Devoe contends that the trial court erred by denying his
motion for a judgment of acquittal because the prosecution failed to
present sufficient evidence that either gun was within his
4 “immediate reach” while he was in possession of the drugs. We
disagree.
1. Standard of Review and Relevant Law
¶ 11 We review de novo a court’s ruling on a motion for judgment of
acquittal for insufficient evidence. People v. Hill, 2025 COA 12,
¶ 19. Whether a motion for judgment of acquittal should have been
granted is determined by the substantial evidence test. Id. “We
consider ‘whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and 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.’” McCoy v. People, 2019 CO
44, ¶ 63 (quoting Clark v. People, 232 P.3d 1287, 1291 (Colo.
2010)).
¶ 12 As noted before, section 18-18-407(1)(d)(I) defines a special
offender as a defendant who “used, displayed, or possessed on
his . . . person or within his . . . immediate reach, a deadly
weapon . . . at the time of the commission of a violation.”
5 2. Additional Facts
¶ 13 At trial, Officer Barnes described her interaction with Devoe on
the day that she and Officer Beach showed up to search Devoe’s
home. To begin, Officer Barnes testified that she didn’t see Devoe
until he came out of the bedroom:
[Prosecutor:] Okay. When you first walked into the home, could you see Mr. Devoe?
[Officer Barnes:] No.
[Prosecutor:] Do you know now where he was?
[Officer Barnes:] Yes. He was in the back bedroom.
[Prosecutor:] Okay. Did he ever emerge from that back bedroom?
[Officer Barnes:] Yes.
[Prosecutor:] Okay. Did you shout for him to come out or anything like that?
[Officer Barnes:] Yes, we called for him.
[Prosecutor:] Okay. And did he come out of that back room?
[Officer Barnes:] He did.
¶ 14 Officer Barnes confirmed that neither officer saw Devoe until
he emerged from the bedroom:
[Prosecutor:] Aside from Mr. Wilson, when you first entered the home, did you see anybody?
6 [Officer Barnes:] Not right away. Mr. Wilson said that Mr. Devoe was in the back bedroom. He went to get him to tell him to come — come to the living room.
[Prosecutor:] And did Mr. Devoe emerge from that back bedroom?
[Officer Barnes:] Yes, he did.
¶ 15 Officer Barnes also testified that “a few minutes” passed before
Devoe emerged from the bedroom. However, neither officer saw
Devoe inside the bedroom before he emerged, and no evidence was
offered at trial regarding the size of the bedroom.
¶ 16 After the prosecution rested, Devoe’s counsel moved for a
judgment of acquittal on the two special offender charges, arguing
that insufficient evidence had been offered to prove that either gun
had been within Devoe’s immediate reach. The court disagreed and
found that there was sufficient evidence to support both special
offender charges:
The evidence that was presented to the jury included that two handguns were found near [Devoe]; that the handguns were operational and loaded; that a reasonable jury could conclude, based upon this evidence, that at some point in the possession with intent to distribute, even before police officers arrived, that [Devoe] had that gun [sic] in his
7 possession on his person or within his immediate reach.
3. Analysis
¶ 17 Devoe raises the same argument he raised below in his motion
for a judgment of acquittal as to why he can’t be subject to the
special offender sentence enhancer. To support his contention, he
highlights the lack of evidence presented at trial on the size of the
bedroom or his position within that bedroom in relation to the gun.
We aren’t persuaded.
a. “Immediate Reach”
¶ 18 Before addressing whether the evidence that the gun was
within “immediate reach” was sufficient, we must first consider the
meaning of the phrase. The phrase isn’t statutorily defined, and no
published appellate decision in Colorado has defined “immediate
reach” in the context of the special offender statute.
¶ 19 The only Colorado case that addresses when a deadly weapon
is within a defendant’s immediate reach as an element of the special
offender statute is People v. Serna-Lopez, 2023 COA 21. In Serna-
Lopez, the division determined that a gun found in the trunk of a
car wasn’t within the driver’s, or his passenger’s, immediate reach.
8 Id. at ¶ 29 n.2. Despite discussing the phrase, the division in
Serna-Lopez didn’t define it.
¶ 20 In the absence of a definition in the statute or case law, we
construe the phrase according to its common usage. § 2-4-101,
C.R.S. 2025. Merriam-Webster Dictionary defines “immediate” as
“occurring, acting, or accomplished without loss or interval of time,”
“existing without intervening space or substance,” and “acting or
being without the intervention of another object, cause, or agency.”
Merriam-Webster Dictionary, https://perma.cc/5T77-36VH.
Merriam-Webster defines “reach” as “to touch or grasp by extending
a part of the body.” Merriam-Webster Dictionary,
https://perma.cc/UR2U-GKNG.
¶ 21 Taken together, the phrase “immediate reach” means able to
touch or grasp instantly and without obstruction. This definition is
consistent with the decision in Serna-Lopez because there the gun
was obstructed by the closed trunk. Accordingly, we will conduct
our analysis under the common usage definition of “immediate
reach” — within grasp without delay or obstruction.
¶ 22 To start, this case is readily distinguishable from Serna-Lopez.
The gun in Serna-Lopez wasn’t immediately available because it was
9 locked away in a separate compartment of the car from where the
driver and his passenger were sitting. Here, however, the gun was
found on Devoe’s bed in the bedroom where he was for a few
minutes after officers arrived on scene. The gun wasn’t locked away
in a closet or drawer. Instead, the gun was on top of the bed,
covered only by blankets and pillows within his immediate reach.
And when he emerged from the bedroom, a search of his person
revealed that he had cocaine in the pocket of his pants — meaning
he was in possession of the cocaine while in the bedroom.
¶ 23 From this evidence, a jury could reasonably infer that the gun
was within grasp without delay or obstruction while he was in
possession of cocaine.
b. Circumstantial Evidence Is Sufficient
¶ 24 While it’s true that the prosecution didn’t present any direct
evidence establishing that Devoe was within the immediate reach of
either gun in the apartment while he was in possession of cocaine,
there was ample circumstantial evidence supporting such a finding.
See People v. Bennett, 515 P.2d 466, 469-70 (Colo. 1973) (holding
that same test for assessing the sufficiency of evidence applies
whether the evidence is direct or circumstantial). Specifically, the
10 circumstantial evidence presented at trial was sufficient for the jury
to draw the following inferences:
Evidence Reasonable Inference
The officers’ testimony that Devoe was in the bedroom — and Devoe emerged from the free to move about it without bedroom a few minutes after being observed — for a few they announced their arrival at minutes after being summoned Devoe’s home. by the officers. Officer Barnes’ testimony that Devoe had the gun either on his she discovered the gun hidden person or nearby in the bedroom on the bed under the sheets when the officers arrived and hid after Devoe emerged from the it when he heard the officers bedroom. outside. Officer Barnes’ testimony that Devoe possessed cocaine while in Devoe had cocaine in his the bedroom with the gun. pocket when he was searched immediately after emerging from the bedroom. ¶ 25 This evidence taken together supports at least one of two
reasonable inferences: (1) the gun was immediately available to
Devoe while he was in the bedroom since it was on the bed under
blankets and pillows; or (2) Devoe hid the gun under the blankets
and pillows before leaving the bedroom, meaning he actually
possessed the gun at some point while he was in the bedroom and
in possession of cocaine.
¶ 26 Neither of these reasonable inferences require evidence of the
size of Devoe’s bedroom or his position in the bedroom in relation to
11 the gun. Instead, there is sufficient evidence that Devoe had ample
time and opportunity — either before the officers arrived or after
they arrived and before he emerged from the bedroom — to be
within immediate reach of the gun and in possession of drugs at the
same time.
¶ 27 Simply put, the circumstantial evidence presented at trial and
the reasonable inferences that can be drawn from that evidence are
sufficient in quality and quantity to support the jury’s finding that
at some point, either while officers were present during the
moments that Devoe was in the bedroom, or before officers arrived,
Devoe had been in possession of drugs and also had a gun within
his immediate reach inside the apartment.
¶ 28 Therefore, the evidence presented at trial, when viewed in the
light most favorable to the prosecution, was sufficient to support
the jury’s verdict that on the day in question, Devoe was in
possession of cocaine and had come within immediate reach of one
of the two guns in his apartment. Accordingly, we discern no error
in the court’s decision to deny Devoe’s motion for a judgment of
acquittal.
12 B. The Court Considered All the Necessary Sentencing Factors
¶ 29 Next, Devoe argues that the court didn’t consider all the
necessary sentencing factors when it sentenced him to thirty-two
years in the custody of the DOC and instead impermissibly focused
on Devoe’s lack of potential for rehabilitation. We disagree that the
court erred.
¶ 30 We review a trial court’s sentencing decision for an abuse of
discretion. People v. Linares-Guzman, 195 P.3d 1130, 1137 (Colo.
App. 2008). A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair. People v. Heredia-
Cobos, 2017 COA 130, ¶ 30. When exercising its sentencing
discretion, a court must consider: (1) the nature of the offense;
(2) the character and rehabilitative potential of the offender; (3) the
deterrence of crime; and (4) the protection of the public. People v.
Herrera, 2014 COA 20, ¶ 17; see §§ 18-1-102.5, 18-1-409(1),
C.R.S. 2025.
2. Additional Facts
¶ 31 At sentencing, the prosecutor began by outlining Devoe’s
lengthy criminal history:
13 This is [Devoe]’s ninth felony case — felony conviction. His first felony conviction was also for dealing drugs when he was [twenty-six] years old in the mid[-eighties] . . . .
Notably, of course, Your Honor, [Devoe] also has a conviction from 2012 for a different type of illegal trafficking. That one, human chattel for the procurement of a child.
¶ 32 The defense offered details of Devoe’s past as mitigation for his
conviction, arguing as follows:
In talking with Mr. Devoe, one thing became very clear that he has had issues related to addiction and drugs his entire life. Both with his parents abusing it, with his own personal use.
Mr. Devoe graduated high school. He was beginning community college when his mother passed away from an overdose. And Mr. Devoe told me that, you know, at that point, he basically spiraled. He had a lot of depression. He began using. He dropped out of school. He, in essence, continued a cycle his parents had started. He had significant issues. Looking at his criminal history, almost all of it relates to his drug use in one way or the other.
¶ 33 Afterwards, the court explained the purposes of a sentence:
The purpose of sentences [is] to punish in relation to the seriousness of the offense, to assure fair and consistent treatment of convicted offenders, to prevent crime, promote respect for the law, and to deter others likely to commit similar offenses, promote rehabilitation, address the individual needs of
14 the defendant, to reduce recidivism, and promote accountability for the offender and healing and restoration for the victim.
I’ve considered all of the factors that I’m to consider under the sentencing statute.
¶ 34 Thereafter, the court explained its decision to sentence Devoe
to thirty-two years in the custody of the DOC by discussing at least
four factors. First, the court acknowledged the defense’s mitigation
argument. The court stated that despite the adversities Devoe has
faced, he has still chosen a life of crime — specifically noting that
he has preyed on children and other drug users. Second, as to his
criminal history, the court found that despite having multiple
opportunities to be rehabilitated in connection with his nine felony
convictions, Devoe has continued to reoffend. The court
acknowledged that the prosecution “could have filed criminal
habitual charges” but chose not to. Third, the court characterized
Devoe’s specific conviction as “selling drugs with guns.” Finally, the
court found that it needed to keep Devoe out of the community to
“keep people safe from [him].”
15 ¶ 35 With these factors in mind, the court sentenced Devoe to the
maximum sentence permitted by the sentencing range with the
special offender sentence enhancer.
¶ 36 Devoe argues that the trial court didn’t consider all the
sentencing factors and impermissibly focused on his lack of
potential for rehabilitation. We disagree for two reasons.1
¶ 37 First, the record contradicts Devoe’s assertion. The trial court
began its sentencing decision by listing the factors it was required
to consider and concluded, “I’ve considered all of the factors that
I’m to consider under the sentencing statute.” And the factors the
court listed covered all the factors it was required to consider. See
Herrera, ¶ 17.
¶ 38 Moreover, the court made detailed findings on several of the
factors. “It is sufficient that the record contains evidence to support
the reasons for the sentence, a reasonable explanation of the
sentence imposed, and information that permits the conclusion that
1 The parties disagree over whether the issue is preserved.Because we discern no error, we don’t need to address whether the issue is preserved.
16 the sentencing court considered all essential factors.” Linares-
Guzman, 195 P.3d at 1137.
¶ 39 Regarding the nature of the crime, the court noted that the
crime was selling drugs with guns. The court’s comments that
Devoe preyed on children and drug users were also relevant to the
nature of the crime.
¶ 40 Next, the court made findings on Devoe’s rehabilitative
potential. The court found that Devoe had exhibited a lifelong
pattern of preying on drug users and children — the latter a
reference to Devoe’s conviction for procurement of a child. The
court also found that Devoe had demonstrated a lack of
rehabilitative potential based on his lifetime of selling drugs and
pattern of reoffending. The court even addressed the defense’s
mitigation by saying that an addiction to drugs didn’t excuse the
crimes Devoe had committed.
¶ 41 The court also expressly considered the last statutory factor,
protection of the public. It stated, “[T]he community needs you to
go away forever,” and “I want you to understand it’s not so much to
punish as just to keep people safe from you.”
17 ¶ 42 Therefore, the record demonstrates that the court considered
all the relevant factors and made specific findings regarding all but
one of them. See Linares-Guzman, 195 P.3d at 1137 (“Trial courts
are not required to ‘engage in a point-by-point discussion of each
and every one of [the sentencing] factors when it explains the
sentence to be imposed.’” (quoting People v. Walker, 724 P.2d 666,
669 (Colo. 1986))).
¶ 43 Second, the trial court’s decision to focus on Devoe’s lack of
rehabilitative potential wasn’t an abuse of discretion. To be sure,
the trial court can’t place undue emphasis on one sentencing factor
to the exclusion of all the others. People v. Piro, 701 P.2d 878, 879
(Colo. App. 1985). But finding aggravating factors to be more
compelling than any arguably mitigating factors doesn’t constitute
an abuse of discretion or indicate that the court failed to consider
evidence of mitigation. Linares-Guzman, 195 P.3d at 1137.
¶ 44 Here, the court stated that it had considered all appropriate
factors. Further, the court made detailed findings on nearly every
sentencing factor — including Devoe’s argued mitigating factors.
Accordingly, we discern no abuse of discretion in the court’s
decision to sentence Devoe to thirty-two years in prison.
18 C. Proportionality
¶ 45 Finally, Devoe argues that his thirty-two-year sentence isn’t
proportional to his convictions and violates the Eighth
Amendment’s prohibition on cruel and unusual punishment. We
aren’t persuaded.
1. Standard of Review and Preservation
¶ 46 We review the constitutionality of a sentence de novo. Wells-
Yates v. People, 2019 CO 90M, ¶ 35. An unpreserved claim that a
sentence is unconstitutionally disproportionate is reviewed for plain
error. People v. Walker, 2022 COA 15, ¶ 60. Plain error is one that
is obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14. We
only reverse for plain error if the error “so undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the judgment.” Id. (quoting People v. Miller, 113
P.3d 743, 750 (Colo. 2005)).
¶ 47 As Devoe concedes, he didn’t request a proportionality review
from the trial court. Thus, the issue isn’t preserved, and we will
reverse only upon a finding of plain error.
19 2. Relevant Law
¶ 48 The Eighth Amendment prohibits “sentences that are
disproportionate to the crime committed.” Wells-Yates, ¶ 5 (quoting
Solem v. Helm, 463 U.S. 277, 284 (1983)). “It is ‘exceedingly rare’
for a sentence to be deemed so extreme that it is grossly
disproportionate to the crime.” Id. (quoting Harmelin v. Michigan,
501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)).
Proportionality review is most commonly applied to cases where a
defendant’s sentence exceeds the presumptive sentencing range
pursuant to the habitual criminal statute. See generally id. at ¶ 20;
Rutter v. People, 2015 CO 71; People v. Session, 2020 COA 158.
¶ 49 Our proportionality review involves two steps: (1) an
“abbreviated proportionality review”; and (2) an “extended
proportionality review.” Wells-Yates, ¶ 10. The abbreviated
proportionality review compares the gravity or seriousness of the
offense to the harshness of the penalty. Id. at ¶ 11.
¶ 50 Certain crimes have been deemed per se grave or serious, and
for those offenses, courts may skip the first part of the abbreviated
proportionality review. Id. at ¶ 13. For crimes that are not per se
grave or serious, courts review “the facts and circumstances
20 underlying the offense.” People v. Hargrove, 2013 COA 165, ¶ 12,
abrogated on other grounds by, Wells-Yates, ¶¶ 16-17.
¶ 51 In assessing the gravity or seriousness of an offense, courts
consider the harm caused or threatened to the victim or society and
the culpability of the offender. Wells-Yates, ¶ 12. In terms of harm
to the victim or society, courts should focus on the following factors:
(1) the magnitude of the offense; (2) whether the offense was a
lesser included or greater included offense; (3) whether the
defendant was the principal or an accessory; and (4) whether the
crime was completed or only attempted. Id.
¶ 52 Review of a sentence’s harshness “is substantially
circumscribed because the legislature’s establishment of the
harshness of the penalty deserves great deference.” Id. at ¶ 62. “In
assessing the harshness of the penalty, we must take into account
both the length of the sentence and parole eligibility.” People v.
Lopez, 2025 COA 73, ¶ 12.
¶ 53 If the abbreviated proportionality review doesn’t give rise to an
inference of gross disproportionality, we need not conduct an
extended proportionality review. Wells-Yates, ¶ 15.
21 3. Analysis
¶ 54 Devoe argues that his sentence was disproportionate because
only two of his previous offenses were arguably per se grave or
serious and the trial court failed to make the requisite findings that
the remaining previous offenses were grave or serious. Devoe,
however, erroneously frames his argument as though he was
sentenced under a habitual offender statute — which requires the
imposition of a maximum sentence. But because he was instead
sentenced under a special offender statute, the trial court exercised
its discretion to impose the sentence and in the course of doing so
made specific findings regarding the propriety of the sentence based
on all the attendant circumstances.
a. Habitual Offender Sentencing and Special Offender Sentencing
¶ 55 First, Devoe’s argument misconstrues his sentence as having
been imposed under a habitual offender statute. Under this
apparent misapprehension, Devoe argues that his previous offenses
aren’t grave or serious, and thus, his sentence is disproportionate.
To properly understand our proportionality review, we must
understand exactly how Devoe was sentenced.
22 ¶ 56 As previously stated, Devoe was convicted of possession with
intent to distribute and a special offender sentence enhancer for
committing the crime within immediate reach of a deadly weapon.
The special offender statute elevates the underlying conviction from
a level 2 drug felony to a level 1 drug felony, thus changing the
presumptive sentencing range accordingly. § 18-18-407(1). This is
distinct from how Colorado’s habitual offender statute operates.
¶ 57 Under Colorado’s habitual offender statute, a defendant
convicted of a felony (a triggering offense) may be adjudicated a
habitual criminal if he has two or more previous felony convictions
(predicate offenses). § 18-1.3-801(1.5)(a), (2)(a)(I)(A), C.R.S. 2025. A
conviction as a habitual offender with three or more felony
convictions receives a mandatory sentence of four times the
maximum of the presumptive sentencing range of the triggering
offense. § 18-1.3-801(2)(a)(I)(A). “By increasing a defendant’s
punishment based on mandatory provisions, the habitual criminal
statute ‘strip[s] the sentencing court of any discretion in
sentencing.’” Wells-Yates, ¶ 20 (emphasis added) (citation omitted).
The only discretion exercised is when the prosecution decides
whether to adjudicate the defendant a habitual criminal. Id.
23 ¶ 58 Stated differently, the special offender statute subjects a
defendant to a different presumptive sentencing range while still
permitting the sentencing court to exercise its sentencing
discretion. In contrast, the habitual offender statute requires
mandatory sentencing outside of the triggering offense’s
presumptive sentencing range.
¶ 59 Here, the maximum sentence Devoe could have received on
the possession charge alone was eight years. Had he been
convicted as a habitual criminal with three or more previous
felonies, the court would have been required to sentence Devoe to
four times that maximum — resulting in a mandatory thirty-two-
year sentence. While the sentencing court ultimately imposed a
thirty-two-year sentence, it wasn’t required to do so by the special
offender statute. Instead, thirty-two years was the maximum
sentence within the sentencing range for a level 1 drug felony. This
allowed the court to exercise its discretion, consider aggravating
and mitigating factors, and conclude the maximum sentence was
appropriate.
¶ 60 As we have previously concluded, the court properly
considered the sentencing factors under the current sentencing
24 scheme. The court didn’t make findings on Devoe’s predicate
offenses because it wasn’t required to under the special offender
sentencing scheme. Further, even if Devoe’s sentence was
submitted to a proportionality review, as discussed below, we
conclude that the crime he committed was independently grave or
serious, and thus Devoe was sentenced appropriately.
b. The Gravity of the Offense
¶ 61 In Wells-Yates, the Colorado Supreme Court held that, while
possession with intent to distribute offenses are not grave or
serious per se, oftentimes they can rise to that level based on the
circumstances of the offense. Id. at ¶ 70. Weighing the factors laid
out in Wells-Yates, we conclude the offense here is grave or serious.
¶ 62 First, we consider the magnitude of the offense. The amount
of drugs involved is an important consideration when determining if
a possession charge is grave or serious. Id. at ¶ 69. Devoe was
found with a large quantity of drugs — 232 grams of cocaine. This
is much more than what one might expect for personal use and
thus strongly suggests that the offense was grave or serious. See
Harmelin, 501 U.S. at 1002; cf. Wells-Yates, ¶ 71 (noting that “an
addict found in possession of baggies, a scale, and a very small
25 quantity of narcotics” might not be engaged in a grave or serious
crime).
¶ 63 Additionally, Devoe — who was unemployed at the time — had
$5,100 in cash when he was arrested. The large quantity of drugs
and amount of cash combined with Devoe’s unemployment suggest
that Devoe had likely been selling the cocaine, even though he
wasn’t charged with distribution — which is a per se grave or
serious offense. Wells-Yates, ¶ 66.
¶ 64 Further, officers found two loaded handguns in different areas
of the home. Indeed, the jury found that Devoe had one of those
guns within his immediate reach while possessing cocaine with
intent to distribute. For the foregoing reasons, we conclude that
the magnitude of this specific crime suggests that the offense is
grave or serious.
¶ 65 The next two Wells-Yates factors are straightforward. The
possession with intent to distribute offense wasn’t a lesser included
offense, and Devoe was the principal actor involved in the offense.
These factors also suggest the offense is grave or serious.
¶ 66 Finally, we look to whether the crime was completed or only
attempted. “Possession with intent requires less than the
26 completed (or even the attempted) sale, distribution, manufacture,
or dispensation of narcotics; it requires simply an intent to sell,
distribute, manufacture, or dispense narcotics.” Id. at ¶ 72. While
this is a compelling factor against designating Devoe’s crime as
grave or serious, it’s outweighed by the other factors.
¶ 67 Considering all the factors together, we have no difficulty in
concluding that Devoe’s possession with intent to distribute
conviction, and the accompanying special offender sentence
enhancer, is a grave or serious offense.
c. The Harshness of the Penalty
¶ 68 Next, we consider whether the thirty-two-year sentence was
unduly harsh. We conclude that it wasn’t for at least two reasons.
¶ 69 First, “the fixing of prison terms for specific crimes involves a
substantive penological judgment that, as a general matter, is
‘properly within the province of legislatures, not courts.’” Harmelin,
501 U.S. at 998 (quoting Rummel v. Estelle, 445 U.S. 263, 275-76
(1980)). “Thus, ‘[r]eviewing courts . . . should grant substantial
deference to the broad authority that legislatures necessarily
possess in determining the types and limits of punishments for
27 crimes.’” Id. at 999 (quoting Solem, 463 U.S. at 290). Devoe’s
thirty-two-year sentence is within the range permitted by statute.
¶ 70 Second, the thirty-two-year sentence is the maximum allowed
by statute. Devoe, however, will be eligible for parole after serving
no more than half of his sentence — sixteen years.2 See § 17-22.5-
403(1), C.R.S. 2025. While the maximum sentence may appear
harsh on its face, Devoe’s eligibility for parole “can reduce the
actual period of confinement and render the penalty less harsh.”
Wells-Yates, ¶ 14.
¶ 71 Because Devoe’s sentence falls within the range fixed by the
legislature and he will be eligible for parole, we conclude that his
sentence isn’t unduly or unconstitutionally harsh.
¶ 72 Given that the circumstances of Devoe’s possession with
intent to distribute conviction are sufficient to render the crime
grave and serious, and the sentence doesn’t raise any inference of
disproportionality, we don’t discern any error by the trial court,
2 Indeed, Devoe suggests in his opening brief that he will be parole
eligible in October 2036, citing the DOC Inmate Locator information page. If Devoe is correct, then this would mean he is parole eligible after fourteen years instead of sixteen, further bolstering our determination that there is no inference of gross disproportionality.
28 much less a plain error, or find any basis for conducting an
extended proportionality review. See id. at ¶ 15.
III. Disposition
¶ 73 The judgment is affirmed.
JUDGE GROVE and JUDGE JOHNSON concur.