Peo v. Douglas

• Court: Colorado Court of Appeals
• Decided: January 29, 2026
• Docket: 23CA1192
• Status: Unpublished

Opinion

23CA1192 Peo v Douglas 01-29-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1192 City and County of Denver District Court No. 15CR6591 Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kiki Lamount Douglas,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE FOX Schutz, J., concurs Harris, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 29, 2026

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Kiki Lamount Douglas, appeals the district court’s

order rejecting his constitutional challenge to his habitual criminal

sentences. Because we conclude that an abbreviated

proportionality review of Douglas’s sentences raises an inference of

gross disproportionality, we reverse the order and remand the case

for the court to conduct an extended proportionality review.

I. Background

¶2 A jury found Douglas guilty of class 2 felony attempted first

degree murder – after deliberation, see § 18-3-102(1)(a), (3), C.R.S.

2025; § 18-2-101(4), C.R.S. 2025; two related crime of violence

counts, see § 18-1.3-406(2)(a)(I), (II)(B), C.R.S. 2025; and class 3

felony first degree assault – causing serious bodily injury with a

deadly weapon, see § 18-3-202(1)(a), (2)(b), C.R.S. 2025. The

district court later adjudicated Douglas a habitual criminal, finding

that the prosecution proved that Douglas had five prior felony

convictions: three instances of possession of a controlled substance,

attempted escape, and accessory to a crime.

¶3 At the sentencing hearing, the district court conducted a

proportionality review of the habitual criminal sentences and

determined that they were not grossly disproportionate. The court

1 then sentenced Douglas to ninety-six years in the custody of the

Department of Corrections (DOC) on the attempted murder charge

and to a concurrent sixty-four years on the assault charge. A

division of this court affirmed the judgment of conviction, the

habitual criminal adjudication, and the sentence, but it remanded

“[t]he case . . . for the district court to conduct a new proportionality

review under [recently announced Colorado Supreme Court

opinions].” People v. Douglas, slip op. at ¶ 48 (Colo. App. No.

17CA0613, Dec. 26, 2019) (not published pursuant to C.A.R. 35(e))

(Douglas I).

¶4 On remand, Douglas filed a pro se motion for the court to

conduct the proportionality review. Among other things, he asked

that the court’s review consider relevant legislative amendments.

¶5 The district court denied Douglas’s pro se motion without a

hearing or the appointment of counsel. In reviewing the

proportionality of the sentences, the court first considered the

gravity or seriousness of Douglas’s attempted first degree murder

and first degree assault convictions (triggering offenses) and his

prior convictions (predicate offenses). The court determined that

two of Douglas’s prior drug possession convictions were not grave

2 and serious because they involved less than four grams of a

controlled substance and because relevant legislative amendments

enacted after the convictions lowered the applicable penalties and

precluded those convictions from being used as predicate offenses

for habitual criminal purposes. But the court found that Douglas’s

triggering offenses and his three remaining predicate offenses were

grave and serious.

¶6 As relevant here, the district court determined that Douglas’s

other prior drug conviction was grave and serious because he

possessed 7.3 grams of cocaine. The court stated that this large

amount of narcotics represented an intent to distribute the

controlled substance and noted that the legislature’s reduction in

the consequences related to drug convictions did not include

convictions for possession of more than four grams of a controlled

substance.

¶7 The district court further found that Douglas’s accessory to

crime conviction was grave and serious because (1) Douglas was the

passenger of a car that fled the scene of a drug transaction; (2)

during the flight, the car struck another vehicle and caused the

death of the other vehicle’s driver; (3) Douglas purportedly did not

3 assist the gravely injured party; and (4) Douglas provided incorrect

information to the police. The court determined that “providing

false information, participating in a drug transaction, and failing to

aid a dying individual after being the passenger in the car that hit

the individual[] are all actions that pose a significant danger and

harm to society.”

¶8 Lastly, the district court considered, but rejected, Douglas’s

assertion that amendments to the habitual criminal statute

precluded the use of his attempted escape conviction as a predicate

offense. The court found that the conviction was grave and serious

because of “the potential danger of having a convicted felon escape

detainment and harm society prior to fully serving his time” and

because “[t]he attempted escape shows a disrespect, and disregard

of the justice system, and a lack of remorse and willingness to

change.”

¶9 After making these findings, the district court then determined

that a comparison of the gravity and seriousness of the triggering

and predicate offenses to the harshness of Douglas’s parole-eligible

habitual criminal sentences did not give rise to an inference of gross

disproportionality.

4 II. Legal Authority and Standard of Review

¶ 10 The habitual criminal statute, when applicable, strips a

district court of its discretion in sentencing. Wells-Yates v. People,

2019 CO 90M, ¶ 20. As relevant here, a defendant convicted of a

felony who has been previously convicted of three felonies shall be

adjudicated a habitual criminal, and the court shall impose a

prison sentence for a term of four times the maximum of the

presumptive sentencing range for the class of felony of which the

person was convicted. § 18-1.3-801(2)(a)(I)(A), C.R.S. 2025.

¶ 11 “But the legislature’s authority to prescribe harsher

punishment for habitual criminals is not without constitutional

contours. It is limited by the principle of proportionality that is

embedded in the constitutional prohibition against the infliction of

cruel and unusual punishment.” Wells-Yates, ¶ 1.

¶ 12 The Eighth Amendment to the United States Constitution

prohibits the imposition of a sentence that is grossly

disproportionate to the severity of the crime committed. Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in

part and concurring in the judgment); Wells-Yates, ¶ 5. The

Amendment “does not require strict proportionality between crime

5 and sentence.” Harmelin, 501 U.S. at 1001 (Kennedy, J.,

concurring in part and concurring in the judgment). Rather, it

forbids only extreme sentences that are grossly disproportionate to

the crime. Close v. People, 48 P.3d 528, 536 (Colo. 2002),

abrogated on other grounds by, Wells-Yates, ¶¶ 16-17.

¶ 13 Review of the constitutional proportionality of a sentence

involves a two-step process: an abbreviated proportionality review

and, if needed, an extended proportionality review. Wells-Yates,

¶¶ 7, 10. “If there are multiple triggering offenses, the reviewing

court must look at the sentence imposed for each such offense and

engage in a proportionality review of that sentence because each

sentence represents a separate punishment for a distinct and

separate crime.” Id. at ¶ 24.

¶ 14 An abbreviated proportionality review involves a comparison of

two subparts, the gravity or seriousness of the offense and the

harshness of the penalty, to determine whether an inference of

gross disproportionality exists. Id. at ¶¶ 7-9, 11, 14, 23. When the

proportionality of a habitual criminal sentence is challenged, “[t]he

court must scrutinize the triggering offense and the predicate

offenses and determine whether in combination they are so lacking

6 in gravity or seriousness so as to suggest that the sentence is

unconstitutionally disproportionate to the crime, taking into

account the defendant’s eligibility for parole.” Id. at ¶ 23.

¶ 15 Ordinarily, the determination of whether a crime is grave or

serious depends on the facts and circumstances underlying the

offense. People v. Duran, 2025 COA 34, ¶ 29; People v. Hargrove,

2013 COA 165, ¶ 12, abrogated on other grounds by, Wells-Yates,

¶¶ 16-17. Specifically,

[t]o determine the gravity or seriousness of an offense, courts may consider a number of factors, including but not limited to (1) “the harm caused or threatened to the victim or society”; (2) whether the offense involved violence or the threat of violence; (3) “[t]he absolute magnitude of the crime”; (4) whether the offense is the lesser included or greater offense; (5) whether the offense was an attempted or a completed crime; (6) whether the defendant was an accessory, complicitor, or principal; and (7) the defendant’s culpability and motive.

McDonald v. People, 2024 CO 75, ¶ 12 (quoting Solem v. Helm, 463

U.S. 277, 292-94 (1983)). Also, “[i]n determining the gravity or

seriousness of [an] offense during an abbreviated proportionality

review, the trial court should consider relevant legislative

7 amendments enacted after the date of the offense, even if the

amendments do not apply retroactively.” Wells-Yates, ¶ 45.

¶ 16 Some crimes, however, have been designated as inherently, or

“per se,” grave or serious for purposes of a proportionality review.

Id. at ¶ 13. A per se grave and serious designation is reserved for

those crimes that, based on their statutory elements, necessarily

involve grave and serious conduct. Id. at ¶ 63. In other words, per

se grave and serious offenses “are always grave and serious

regardless of the underlying facts of the conviction.” People v. Tran,

2020 COA 99, ¶ 79. “For these crimes, . . . a trial court may skip

the first subpart of step one — the determination regarding the

gravity or seriousness of the crimes — and ‘proceed directly to the

second subpart’ of that step — the assessment related to the

harshness of the penalty.” Wells-Yates, ¶ 13 (quoting Close, 48

P.3d at 538).

¶ 17 When considering the harshness of the penalty, “a great deal

of deference is due to legislative determinations regarding

sentencing.” People v. Deroulet, 48 P.3d 520, 523 (Colo. 2002),

abrogated on other grounds by, Wells-Yates, ¶¶ 16-17. Accordingly,

“in almost every case, the abbreviated proportionality review will

8 result in a finding that the sentence is constitutionally

proportionate, thereby preserving the primacy of the General

Assembly in crafting sentencing schemes.” Id. at 526.

¶ 18 If an abbreviated proportionality review reveals no inference of

gross disproportionality, no further analysis is required. Wells-

Yates, ¶ 15; Close, 48 P.3d at 542. The court should proceed to the

extended proportionality review only when the comparison between

the gravity and seriousness of the offense and the harshness of the

penalty gives rise to an inference of gross disproportionality. Duran,

¶ 28; People v. Strock, 252 P.3d 1148, 1157 (Colo. App. 2010),

overruled by, People v. Kennedy, 2025 CO 63.

¶ 19 Whether a sentence is grossly disproportionate is a question of

law, which we review de novo. Wells-Yates, ¶ 35.

¶ 20 The district court’s order acknowledged Douglas I’s mandate

but employed standards applicable to a Crim. P. 35(c) proceeding.

See People v. Moore-El, 160 P.3d 393, 395-96 (Colo. App. 2007) (a

defendant can make a postconviction request for a proportionality

review, which is cognizable under Crim. P. 35(c)). Because this is a

second appeal after remand from a prior appeal, not a

postconviction proceeding, we do not apply Crim. P. 35(c) standards

9 but rather assess the proportionality review in the procedural

context it was considered by the district court on remand.

III. Habitual Criminal Adjudication

¶ 21 First, we note that, in addition to addressing the

proportionality of his habitual criminal sentence, the parties’

appellate briefs raise questions about the validity of Douglas’s

habitual criminal adjudication. Indeed, the People concede that

Douglas’s prior small-quantity drug possession convictions should

not have been used as predicate offenses. See § 18-1.3-801(2)(b),

C.R.S. 2016; Thomas v. People, 2021 CO 84, ¶¶ 59-65. And

Douglas maintains that his attempted escape conviction is also not

eligible to be used as a predicate offense.

¶ 22 Consequently, we requested supplemental briefing to address

whether we could revisit Douglas I’s affirmance of Douglas’s

habitual criminal adjudication and, if so, whether the attempted

escape conviction could be used as a predicate offense to adjudicate

Douglas a habitual criminal in light of amendments to the habitual

criminal statute. In their briefing, the parties disagree on whether

we can reconsider the adjudication and whether Douglas may avail

himself of the amended language in the habitual criminal statute.

10 Further, the People assert that we should not address this issue at

all because it was not properly raised.

¶ 23 Having considered the parties’ original and supplemental

briefs, we agree with the People that the validity of the habitual

criminal adjudication is not properly at issue in this proceeding.

¶ 24 First, we are reviewing the appeal of an order entered on

remand from Douglas I. The habitual criminal adjudication was not

within the scope of Douglas I’s specific remand language for the

district court to conduct a new proportionality review. See

Musgrave v. Indus. Claim Appeals Off., 762 P.2d 686, 687-88 (Colo.

App. 1988) (“When an appellate court remands a case with specific

directions . . . to pursue a prescribed course, a trial court has no

discretion except to comply with such directions”; only when a case

is generally remanded for further proceedings consistent with the

appellate court’s opinion can a court “make new findings and

conclusions so long as there is no conflict with the ruling of the

appellate court.”); Molinary v. Powell Mountain Coal Co., 173 F.3d

920, 923 (4th Cir. 1999) (“On remand, a lower court may decide

matters left open only insofar as they reflect proceedings consistent

with the appellate court’s mandate.”); see also Wells-Yates, ¶ 48

11 (“Whether statutory revisions apply retroactively ‘is a separate and

distinct question from whether a defendant’s sentence is

constitutionally proportionate.’” (quoting Rutter v. People, 2015 CO

71, ¶ 35 (Gabriel, J., dissenting))).

¶ 25 Further, the law of the case doctrine renders Douglas I’s

affirmance of the habitual criminal adjudication binding unless we

can say that application of that prior ruling would result in error.

See People v. Robbins, 87 P.3d 120, 122 (Colo. App. 2003), aff’d,

107 P.3d 384 (Colo. 2005); People v. Dunlap, 975 P.2d 723, 758

(Colo. 1999). Douglas did not address the law of the case doctrine

or sufficiently demonstrate why Douglas I’s ruling was error. See

People v. Houser, 2020 COA 128, ¶ 24 (we will not consider a bald

legal proposition presented without argument or development).

¶ 26 For those reasons, we decline to address the validity of

Douglas’s habitual criminal adjudication.

IV. Constitutional Proportionality

¶ 27 Accordingly, we turn to the focus of the remanded proceeding

— the constitutional proportionality of Douglas’s habitual criminal

sentences. We conclude that the district court erred in its

consideration of the gravity or seriousness of Douglas’s triggering

12 and predicate convictions during the abbreviated proportionality

review.

¶ 28 The version of the habitual criminal statute in effect when

Douglas was adjudicated allowed a prior attempted escape

conviction to be used as a predicate offense if the defendant

attempted to escape from a correctional facility. See § 18-1.3-

801(5), C.R.S. 2016. A correctional facility was defined as “any

facility under the supervision of the [DOC] in which persons are or

may be lawfully held in custody as a result of conviction of a crime.”

§ 17-1-102(1.7), (2), C.R.S. 2016. As relevant here, a community

corrections facility could fall within the definition of correctional

facility. See § 17-27-102(3), C.R.S. 2016.

¶ 29 But the legislature later amended the habitual criminal statute

to provide that, “for the purposes of this section, ‘correctional

facility’ does not include a community corrections facility, as

defined in section 17-27-102(2.5)[, C.R.S. 2017].” § 18-1.3-801(5),

C.R.S. 2017; see Ch. 374, sec. 1, § 18-1.3-801(5), 2017 Colo. Sess.

Laws 1937. In their supplemental briefs, the parties agree that

Douglas’s prior conviction was based on an attempted escape from

13 a community corrections facility. See Lawson v. Zavaras, 966 P.2d

581, 582-83, 586 (Colo. 1998).

¶ 30 The district court erred in its gravity or seriousness

determination by (1) incorrectly finding that the amendment to the

habitual criminal statute did not implicate the use of Douglas’s

attempted escape conviction as a predicate offense; and (2) thus not

considering the effect of the amended habitual criminal statute, if it

applied, on the use of Douglas’s attempted escape conviction as a

predicate offense. Because the considerations necessary to conduct

the abbreviated proportionality review in this case are largely

questions of law, we turn to that issue. See People v. Gaskins, 825

P.2d 30, 37-38 (Colo. 1992) (“In the absence of a need for a refined

analysis inquiring into the details of the specific offenses or a

detailed comparison of sentences imposed for other crimes in this

or other jurisdictions, an appellate court is as well positioned as a

trial court to conduct a proportionality review.”), abrogated on other

grounds by, Wells-Yates, ¶¶ 55-56, 66; People v. Castillo, 2022 COA

20, ¶ 38.

¶ 31 First, we conclude that Douglas’s triggering convictions

(attempted first degree murder – after deliberation and first degree

14 assault – causing serious bodily injury by means of a deadly

weapon) are per se grave and serious offenses. See Wells-Yates,

¶¶ 65, 71 (accessory to first degree murder is a per se grave and

serious offense because its statutory elements ensure that the

defendant will have committed a crime that is necessarily grave or

serious); Castillo, ¶ 42 (the defendant’s first degree extreme

indifference murder conviction under a complicity theory was a per

se grave and serious offense); see also People v. Lopez, 2025 COA

73, ¶¶ 1, 13-15 (first degree assault – causing serious bodily injury

with a deadly weapon is a per se grave and serious offense); Duran,

¶¶ 3, 33-36 (extreme indifference first degree assault is per se grave

and serious).

¶ 32 However, we are not convinced that Douglas’s predicate

offenses, individually or viewed together, are necessarily grave or

serious. As the district court found, two of Douglas’s drug

possession convictions were not grave and serious due to the small

quantities of controlled substances involved in each matter and the

convictions’ ineligibility for use as predicate offenses. For the

reasons set forth above, Douglas’s conviction for attempted escape

15 from a community corrections facility would no longer qualify for

use as a predicate offense.

¶ 33 With regard to the accessory to a crime conviction, we

recognize the gravity and seriousness of the fatal motor vehicle

accident that occurred. But the record indicates that Douglas’s

culpability in the incident was as a nonviolent accessory to the

driver’s criminal actions. See McDonald, ¶ 12. And we are unaware

of any record support for the district court’s findings that Douglas

was in the vehicle at the time of the fatal accident and that he

purportedly refused to provide aid to the injured party.

¶ 34 In any event, the second subpart of the abbreviated

proportionality review — consideration of the harshness of the

sentence imposed on each triggering conviction — is concerning.

See Wells-Yates, ¶ 13.

¶ 35 The jury’s guilty finding on the attempted first degree murder

count and the two related crime of violence counts would have

subjected Douglas to an aggravated sentencing range of sixteen to

forty-eight years in the DOC. See § 18-1.3-401(1)(a)(V)(A), (8)(a)(I),

C.R.S. 2025; § 18-1.3-406(1)(a); People v. Villarreal, 131 P.3d 1119,

1129 (Colo. App. 2005). And the jury’s guilty finding on the first

16 degree assault count, which is a per se crime of violence and an

extraordinary risk crime, would have subjected Douglas to an

aggravated sentencing range of ten to thirty-two years in the DOC.

See § 18-3-202(2)(c); § 18-1.3-401(10)(a), (b)(XII); People v. Palmer,

2018 COA 38, ¶ 18. Recognizing the seriousness of these offenses,

the court’s initial sentences on each of these two counts were at the

top of the aggravated sentencing ranges — forty-eight and thirty-

two years. But, because Douglas was adjudicated a habitual

criminal, the district court was stripped of its discretion to impose a

sentence within the aggravated ranges and was instead required to

impose habitual criminal sentences that were double the aggravated

sentences. See § 18-1.3-801(2)(a)(I)(A), C.R.S. 2016; People v. Lahr,

2013 COA 57, ¶¶ 28, 34-35, 39.

¶ 36 We recognize that, “[o]nce a crime has been deemed per se

grave or serious, . . . any review in the second subpart [of the

abbreviated proportionality review] is substantially circumscribed

because the legislature’s establishment of the harshness of the

penalty deserves great deference.” Wells-Yates, ¶ 62. But, “when

the General Assembly subsequently amends a criminal sentencing

statute, even though the statute is to be applied prospectively, the

17 trial court may properly consider it when determining whether a

defendant’s sentence was grossly disproportionate.” People v.

Anaya, 894 P.2d 28, 32 (Colo. App. 1994); see also Wells-Yates,

¶¶ 44-45 (favorably citing Anaya for this proposition).

¶ 37 Here, after Douglas’s habitual criminal adjudication, the

legislature amended the habitual criminal statute to narrow the

type of attempted escape conviction that could be used as a

predicate offense to subject a defendant to mandatory habitual

criminal sentencing. Considering the effect of this amendment, as

well as the habitual criminal statute’s provision regarding the use of

the small-quantity drug possession convictions, three of Douglas’s

five prior convictions would not have been eligible for use as

predicate offenses, and, accordingly, he would not have been

adjudicated a habitual criminal. And the court would have thus

retained the discretion to impose sentences within ranges that

could have resulted in prison terms as low as sixteen years and ten

years. See People v. Penrod, 892 P.2d 383, 387-88 (Colo. App.

1994) (legislative amendments to the habitual criminal statute that

significantly reduced a defendant’s sentencing exposure should be

considered when reviewing for constitutional proportionality).

18 ¶ 38 Thus, considering the effect the legislative amendments would

have had on the district court’s discretion in sentencing Douglas,

we conclude that a comparison of Douglas’s predicate convictions

and his triggering attempted first degree murder conviction — in

combination — to the harshness of his mandatory ninety-six-year

habitual criminal sentence raises an inference of gross

disproportionality. And we similarly conclude that a comparison of

Douglas’s predicate convictions and his triggering first degree

assault conviction — in combination — to the harshness of his

sixty-four-year habitual criminal sentence also raises an inference

of gross disproportionality. Accordingly, a remand of the case is

necessary for the district court to conduct an extended

proportionality review.

V. Disposition

¶ 39 The order is reversed, and the case is remanded for further

proceedings consistent with this opinion.

JUDGE SCHUTZ concurs.

JUDGE HARRIS specially concurs.

19 JUDGE HARRIS, specially concurring.

¶ 40 I agree with the majority’s thoughtful and thorough opinion,

as far as it goes — that the habitual criminal sentence imposed on

defendant, Kiki L. Douglas, raises an inference of gross

disproportionality. But I write separately because I do not think the

opinion goes far enough.

¶ 41 The majority acknowledges that this is the second appeal of

Douglas’s judgment of conviction, see People v. Douglas, (Colo. App.

No. 17CA0613, Dec. 26, 2019) (not published pursuant to C.A.R.

35(e)) (Douglas I); during the pendency of the first appeal, an August

2017 amendment to the habitual criminal sentencing statute

“narrow[ed] the type of attempted escape conviction that could be

used as a predicate offense”; and, if the amendment had been

applied in the prior appeal or on remand, Douglas “would not have

been adjudicated a habitual criminal.” Supra ¶ 37. Nonetheless,

the majority declines to review the validity of Douglas’s habitual

criminal adjudication.

¶ 42 Because “ameliorative, amendatory legislation applies

retroactively to non-final convictions” unless the amendment

expressly provides otherwise, People v. Stellabotte, 2018 CO 66,

20 ¶ 38, the August 2017 amendment unequivocally applies, meaning

Douglas is not a habitual criminal. Accordingly, I would reverse the

district court’s order and remand the case for resentencing under

the general sentencing statutes.

I. The Gravity and Seriousness of Douglas’s Predicate Offenses

¶ 43 I turn first to the common ground. Like the majority, I

conclude that Douglas’s predicate offenses are so lacking in gravity

and seriousness that they cannot support the habitual criminal

sentence, at least not without further review.

¶ 44 No one disputes that Douglas’s triggering offenses —

attempted murder and first degree assault, which involved him

shooting the victim five times at close range — are grave and

serious violent crimes. As punishment, the legislature has

mandated substantial prison time: sixteen to forty-eight years (twice

the presumptive maximum) for attempted murder, § 18-1.3-

401(1)(a)(V), C.R.S. 2025; § 18-1.3-406(1)(a), (2)(a)(I)-(II); § 18-2-

101(3.5), C.R.S. 2025; and ten to thirty-two years (twice the

presumptive maximum for an extraordinary risk crime) for first

degree assault, § 18-1.3-401(1)(a)(V); § 18-1.3-406(1)(a), (2)(a)(I)-(II);

21 18-1.3-401(10)(a), C.R.S. 2025. But upon a finding that Douglas

had three qualifying prior felony convictions, the court was required

to quadruple the presumptive maximum sentence for each offense,

resulting in a mandatory controlling term of ninety-six years in

prison. See § 18-1.3-801(2)(a)(I)(A), C.R.S. 2025.

¶ 45 Before this case, Douglas had never been convicted of a violent

felony or sentenced to more than three years in prison. As the

majority notes, he had prior convictions for possession of cocaine,

two involving less than four grams and a third allegedly involving

around seven grams; accessory to a crime; and attempted escape.

All but the accessory conviction were more than ten years old at the

time Douglas committed the underlying offenses in this case.

¶ 46 Everyone now agrees that Douglas’s two low-level drug

convictions could not be used to adjudicate him a habitual

criminal, see Thomas v. People, 2021 CO 84, ¶ 63 (Drug felonies

involving less than four grams of cocaine “qualify as neither

triggering offenses nor predicate offenses for habitual criminal

purposes.”), despite the prior division’s contrary conclusion, see

Douglas I, slip op. at ¶¶ 42-43.

22 ¶ 47 That leaves three potential qualifying prior convictions — the

2003 conviction for possession of seven grams of crack cocaine, the

2014 conviction for accessory to a crime, and the 2004 attempted

escape conviction.

¶ 48 As an initial matter, I agree with the majority that the district

court erred in its characterization of Douglas’s predicate offenses as

grave and serious.1

A. Possession of a Controlled Substance Conviction

¶ 49 In March 2003, Douglas was stopped in north Denver for “no

license plate light.” After officers saw Douglas reach into the front

of his pants, they searched him and found a baggie of suspected

crack cocaine. Officers issued Douglas a summons charging him

with possession of a controlled substance. Later, the prosecution

filed a complaint and information (Case No. 03CR1485) that

included an additional charge of possession with intent to distribute

the controlled substance. The presentence investigation report (PSI)

1 The Attorney General acknowledges that we are in as good a

position as the district court to review the documentary evidence and determine the gravity and seriousness of the predicate offenses. See, e.g., People v. Ramadon, 2013 CO 68, ¶ 21; see also People v. Wells-Yates, 2023 COA 120, ¶ 17 (appellate court reviews the district court’s gravity and seriousness findings de novo).

23 prepared in 2016 in connection with the attempted murder case

indicates that the substance in the baggie ultimately tested positive

for “cocaine base in the amount of 7.30 grams.”

¶ 50 Douglas pleaded guilty to possession of a controlled

substance, and the prosecution dismissed the possession with

intent to distribute charge. The record does not contain the plea

agreement, and the court’s form order concerning the plea states

only that “there is a factual basis for (1) the charge(s) to which the

Defendant has pled guilty or; (2) the defendant knowingly waives a

factual basis for the lesser charge(s) to which he/she has actually

pled guilty.” In other words, nothing in the record shows that, as

part of the plea proceedings, the prosecution established, or

Douglas admitted, that he possessed 7.3 grams of crack cocaine.

¶ 51 For this offense, the court sentenced Douglas to three years in

community corrections and ordered the sentence to run

concurrently with Douglas’s sentence for his other 2003 drug

possession conviction (Case No. 03CR2395).

¶ 52 The district court found this possession offense to be grave

and serious because the “amount of cocaine shows an intention or

24 ability to sell and/or share cocaine, a dangerous drug.” I see a few

problems with this finding.

¶ 53 For one thing, the question for proportionality purposes is “the

gravity or seriousness of the offense of conviction — not the greater

offense,” even though “the aggravating facts may be part of that

inquiry.” People v. Wells-Yates, 2023 COA 120, ¶ 29 (Wells-Yates

II). So even if the facts of the case show a potential for distribution,

“[t]he offense is still possession — ‘among the least (and arguably

the least) grave or serious of all drug offenses.’” Id. at ¶ 30 (quoting

Wells-Yates v. People, 2019 CO 90M, ¶ 69 (Wells-Yates I)).

¶ 54 But also, do the facts show an intent to sell cocaine? Though

the court found that 7.3 grams constitutes a “large amount” of

cocaine, that amount is only 3.3 grams (a little more than the

weight of a penny) above the cutoff for possession offenses eligible

for habitual criminal sentencing. See id. at ¶ 38 (concluding that

possession of 6.5 grams of methamphetamine is “not especially

grave or serious” and noting that the defendant received a

suspended sentence). Moreover, there was no other evidence in the

vehicle of an intent to distribute — no large amounts of cash, no

baggies, no scale. See, e.g., People v. Munoz-Casteneda, 2012 COA

25 109, ¶ 35 (evidence that the defendant possessed two ounces of

cocaine, divided into smaller amounts and packaged in separate

bags; digital scales; and “stacks of cash” established that he

intended to distribute the cocaine). Even the district court hedged

its bets, finding that the amount of cocaine could indicate that

Douglas had the “ability” but not necessarily the “intention” to

distribute, and that, in any case, “distribute” might just mean

“share.” And if the worst the court could say is that Douglas

possessed enough cocaine for his own use (four grams, according to

the legislature) plus an additional three grams to potentially share

with others, that strikes me as an offense that “lies at the bottom”

of the severity scale. Wells Yates II, ¶ 40.

B. Accessory to a Crime Conviction

¶ 55 The accessory to a crime conviction arises from an incident in

2013 (Case No. 13CR1539). The district court found this offense to

be grave and serious based on the following findings:

The Defendant was convicted of Accessory to a crime (F3) and False Reporting-False Identification. On the night of the incident, Defendant (passenger in the car) and the co- defendant (driver), had been contacted by security in a Burger King in regard to a narcotics transaction. The driver, the co-

26 defendant, fled the parking lot. Upon later contact by Police Officers, Defendant provided incorrect information about the driver and himself. The co-Defendant and the Defendant were involved in a hit [and] run that resulted in the death of the third-party driver. Both Defendant and the co-defendant lied to police about their identities and involvement. . . . [I]t is clear that the Defendant, providing false information, participating in a drug transaction, and failing to aid a dying individual after being the passenger in the car that hit the individual, are all actions that pose a significant danger and harm to society, such that clearly qualify as a grave and serious crime.

But the documentary evidence contradicts most of the court’s

findings.

¶ 56 First, to be clear, Douglas pleaded guilty to a class 5 felony.

And in exchange for pleading guilty to the accessory charge, the

prosecution dismissed the false reporting charge and stipulated to a

sentence of probation.

¶ 57 Second, Douglas was not charged in this case as a

codefendant with the driver of the vehicle. His charges involved

only allegations that he gave false information to the police.

¶ 58 Third, nothing in the police report suggests that Douglas

provided “incorrect information about . . . himself.” To the contrary,

27 the report indicates that when police responded to the Burger King

after the accident, Douglas provided his name and date of birth,

both of which are denoted in the report.

¶ 59 Fourth, the evidence in the record shows that Douglas was not

in the car at the time of the accident. The police report says that

Douglas and a woman were contacted by security personnel in the

Burger King parking lot. At that point, the driver “took off without”

Douglas, almost immediately hit the other car (per the report, the

accident occurred two blocks from the Burger King), and fled the

scene of the accident, leaving her own car behind. Douglas could

not have been in the car during the accident and fled with the

driver because, just after the accident, a detective “responded [to

the Burger King] and contacted” Douglas, and then a second

detective, the report’s author, contacted Douglas “on scene of the

accident and conducted a follow up interview.” The PSI prepared in

this case confirms these facts. According to the PSI, just before the

accident, the “passenger, Kiki Douglas, had been detained[,] and

the driver fled the parking lot, striking a security guard and parked

car as she did.” The PSI recounts that a witness at the accident

scene “helped the [at-fault] driver . . . out of the car and stated she

28 then fled the scene without providing aid or notifying [p]olice as

required by law.” The witness did not mention a second person in

the car. Thus, the district court’s finding that Douglas was

“involved” in a fatal “hit and run” incident and then “lied to police”

about his involvement in the collision is unsupported by the record.

Wells-Yates II, ¶ 17 (appellate court defers to district court’s factual

findings concerning the facts and circumstances of the prior

offenses only if they are “adequately supported by competent

evidence in the record”).

¶ 60 Fifth, shortly after Douglas incorrectly identified the driver —

he and the second detective were still at the scene — he gave the

detective the driver’s real name and additional information about

her, and identified her in a mug shot produced by the detective on

his patrol car’s computer. In all, the initial false information

appears to have delayed the hit-and-run investigation by a matter of

a couple of minutes. Indeed, the driver was arrested later that

night.

¶ 61 Sixth, Douglas was never convicted of any drug offense in

connection with the incident. See id. at ¶ 27 (in determining

whether a predicate offense is grave and serious, the court must

29 focus on the offense of conviction, not “any other offense the

defendant might have committed at or around the same time”).

¶ 62 “In assessing the gravity or seriousness of an offense, we

consider ‘the harm caused or threatened to the victim or society’

and ‘the culpability of the offender.’” Id. at ¶ 33 (quoting Wells-

Yates I, ¶ 12). Honesty is generally the best practice, but in light of

the record, it is hard to say that Douglas’s offense of conviction (one

lie, quickly followed by the truth) had a substantial impact on

society.

C. Attempted Escape Conviction

¶ 63 In October 2004, Douglas pleaded guilty to attempted escape

from the “Mountain Park[s] facility” (Case No. 04CR2987), in

violation of section 18-8-208.1, C.R.S. 2004. Mountain Parks was a

community corrections program through which inmates remained

in the custody of the Department of Corrections (DOC), under the

supervision of the Denver County Jail, but would “leave the jail to

go to work” and “return to the jail in the evening and on weekends.”

Lawson v. Zavaras, 966 P.2d 581, 582-83 (Colo. 1998).

¶ 64 As the majority notes, the attempted escape conviction could

have qualified as a predicate offense for purposes of habitual

30 criminal sentencing in February 2017, when the court initially

adjudicated Douglas a habitual criminal. But six months later, the

General Assembly amended the relevant provision, section 18-1.3-

801(5), C.R.S. 2017; see Ch. 374, sec. 1, § 18-1.3-801(5), 2017

Colo. Sess. Laws 1937. Thus, by the time of Douglas’s first appeal

and the remand proceedings, the conviction could no longer serve

as a predicate offense. The district court, though, failed to consider

the amendment in determining whether attempted escape from a

community corrections facility is a grave and serious offense. See

Wells-Yates I, ¶ 52.

¶ 65 The Attorney General contends that, regardless, the prior

offense is grave and serious because attempted escape is

“dangerous to the personnel at the facility and to the community.”

But in determining gravity and seriousness of an offense, the court

does not consider the crime generally; rather, the determination

“entail[s] an analysis of . . . the facts and circumstances

surrounding” each predicate offense as committed by the

defendant. Id. at ¶ 75. There is no evidence that Douglas’s

attempted escape from the community corrections facility placed

any jail personnel or member of the public in harm’s way. Indeed,

31 for all we know, Douglas went to work and simply failed to return to

the facility. As well, the offense of conviction was a lesser included

offense, not “the greater-inclusive offense,” and involved “an

attempt to commit an act,” not a completed act. Id. at ¶ 12 (citing

Solem v. Helm, 463 U.S. 277, 293 (1983)). Accordingly, I agree with

the majority that this crime is not grave and serious.

II. Habitual Criminal Sentencing Does Not Apply Here

¶ 66 But all that being said, I cannot agree with the majority’s

disposition. A remand for an extended proportionality review is

insufficient because it presupposes that habitual criminal

sentencing applies here, when it does not. And by perpetuating the

prior division’s error, the majority leaves open the possibility that

Douglas’s unlawful life sentence could be reimposed — an egregious

and unacceptable result.

A. 2017 Amendments to Habitual Criminal Sentencing Statute

¶ 67 First, an explanation as to why the prior attempted escape

conviction does not qualify as a predicate offense.

¶ 68 In February 2017, when the district court adjudicated Douglas

a habitual criminal, the habitual criminal sentencing statute

provided that a conviction for attempted escape “shall not be used

32 for the purpose of adjudicating a person an habitual criminal . . .

unless the conviction is based on the offender’s . . . attempt to

escape from a correctional facility, as defined in section 17-1-102,

C.R.S., or from physical custody within a county jail.” § 18-1.3-

801(5), C.R.S. 2016. A “correctional facility” is “any facility under

the supervision of the [DOC] in which persons are or may be

lawfully held in custody as a result of conviction of a crime.” § 17-

1-102(1.7), C.R.S. 2016. Because inmates at the Mountain Parks

facility remained in the custody of the DOC, the earlier version of

the statute did not expressly preclude the use of Douglas’s prior

attempted escape conviction as a predicate offense for habitual

criminal sentencing purposes.

¶ 69 But, as noted, in August 2017, the legislature amended

section 18-1.3-801(5). The amendatory language clarified that “for

purposes of [subsection (5)], ‘correctional facility’ does not include a

community corrections facility . . . or a halfway house.” 2017 Colo.

Sess. Laws at 1937. In my view, the amendment is intended to

preclude use of a prior conviction for attempted escape from any

community corrections facility, whether it is operated by a unit of

local government, like Mountain Parks, or by a private corporation.

33 See § 17-27-102(2.5), (3), C.R.S. 2025 (a “community corrections

facility” is a “facility used by a community corrections program,”

and a “community corrections program” means any “community-

based or community-oriented program” that is “operated by a unit

of local government, the [DOC], or any private individual,

partnership, corporation, or association.”). The Attorney General

does not argue otherwise.

¶ 70 Instead, the Attorney General says that the amended statute

does not apply to Douglas because he committed the triggering

offenses in 2015, when the prior version of the habitual criminal

sentencing statute was in effect. I disagree.

¶ 71 In 2018, while Douglas’s first appeal was pending — and

before the prior division issued its opinion — the Colorado Supreme

Court announced its decision in People v. Stellabotte. The

defendant in that case was charged with theft, then a class 4 felony.

Stellabotte, ¶ 6. Before trial, the legislature amended the theft

statute, rendering the defendant’s alleged criminal act a class 5

felony. The amendment was silent regarding whether it applied

prospectively or retroactively. Id. The defendant was convicted of

theft and sentenced under the prior version of the statute. Id. On

34 appeal, he argued that he should have received the benefit of the

amendment’s reclassification. Id. at ¶ 7. The supreme court

agreed. Reaffirming its holdings in People v. Thomas, 525 P.2d

1136, 1138 (Colo. 1974), and People v. Thornton, 529 P.2d 628, 628

(Colo. 1974), the court ruled that “ameliorative, amendatory

legislation applies retroactively to non-final convictions under

section 18-1-410(1)(f), [C.R.S. 2025,] unless the amendment

contains language indicating it applies only prospectively.”

Stellabotte, ¶ 3.

¶ 72 The August 2017 amendment to section 18-1.3-801(5) is silent

regarding whether it applies prospectively or retroactively. Thus,

under Stellabotte, Douglas is entitled to the benefit of the

amendatory legislation, as his judgment of conviction is not yet

final. See Stellabotte, ¶ 26 (“Thomas and Thornton provide a rule

that gives convicted criminal defendants the benefit of amendatory

legislation that became effective at any time before the conviction

became final on direct appeal under section 18-1-410(1)(f).”).

¶ 73 It makes no difference that Douglas did not seek relief

specifically pursuant to section 18-1-410(1)(f). In Thornton, the

defendant sought the benefit of amendatory legislation on direct

35 appeal rather than through a postconviction motion. The supreme

court concluded that although “the procedure followed in People v.

Thomas . . . was by way of post-conviction relief[,] . . . there is no

valid reason not to grant similar relief under the Thomas rule,

where, as here, the application for relief is sought by direct appeal.”

Thornton, 529 P.2d at 628; see also Stellabotte, ¶ 17 (“[I]n People v.

Thornton we extended the Thomas rule to apply to defendants

seeking the benefit of ameliorative changes in sentencing laws on

direct appeal.”).

¶ 74 Accordingly, in 2019, when the Douglas I division considered

Douglas’s first appeal, Douglas was entitled to the benefit of the

amendatory language in section 18-1.3-801(5).

B. The Validity of Douglas’s Habitual Criminal Adjudication

¶ 75 In his December 2018 opening brief, filed in the first appeal,

Douglas argued that “under the most recent version of the habitual

[criminal] statute” (emphasis added), his prior conviction for

attempted escape “in [Case No.] 04CR2987” did not qualify under

section 18-1.3-801(5) as a predicate offense for purposes of

adjudicating him a habitual offender. Douglas’s lawyer did not

36 mention that the Case No. 04CR2987 conviction concerned an

attempted escape from a community corrections facility.

¶ 76 Nonetheless, the prior division knew that Douglas’s conviction

was based on an attempted escape from “the Mountain Parks

facility.” Doulgas I, slip op. at ¶ 45. And it understood that

Douglas was challenging the use of that conviction as a qualifying

predicate under the then-current (2019) version of section 18-1.3-

801(5). Id. at ¶ 41. But when the division discussed section 18-

1.3-801(5) for purposes of its analysis, it disregarded the relevant

amendatory language concerning the exemption of community

correction facilities from the definition of “correctional facility.” Id.

at ¶ 44. As a result, the division simply adopted the argument

advanced by the prosecutor at the February 2017 adjudication

hearing, when the prior version of the statute was in effect, that

“Mountain Parks was a correctional facility under the control of the

Department of Corrections.” Id. at ¶ 45. By 2019, though, that was

wrong.

¶ 77 As the majority notes, throughout the appellate proceedings,

Douglas has continued to challenge the use of his prior attempted

escape conviction as a predicate offense. Given the procedural

37 history, I disagree with the Attorney General that Douglas “has

never suggested” that the amended statute applies. He has

consistently argued, albeit cursorily, that the more recent version of

the statute precluded the court from using the conviction to

adjudicate him a habitual criminal. The prior division analyzed the

issue and, in my view, arrived at the wrong conclusion.

¶ 78 But, in any event, the majority gives a different reason for

declining to review the validity of Douglas’s habitual criminal

adjudication. It says that the law of the case doctrine binds us to

the prior division’s ruling “unless we can say that application of

that prior ruling would result in error.” Supra ¶ 25. The problem,

according to the majority, is that Douglas did not “address the law

of the case doctrine or sufficiently demonstrate why Douglas I’s

ruling was error.” Supra ¶ 25.

¶ 79 When an appellate court rules on an issue in a case, that

ruling becomes the law of the case. People v. Roybal, 672 P.2d

1003, 1005 (Colo. 1983). The law of the case doctrine generally

requires a court to follow its prior relevant rulings in the case. See

Owners Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114,

¶ 23. However, the doctrine is “merely discretionary when applied

38 to a court’s power to reconsider its own prior rulings.” Giampapa v.

Am. Fam. Mut. Ins. Co., 64 P.3d 230, 243 (Colo. 2003). “Thus, a

division of this court may review another division’s ruling in the

same case where ‘the previous decision is no longer sound because

of changed conditions or law, or legal or factual error, or if the prior

decision would result in manifest injustice.’” Core-Mark

Midcontinent, Inc. v. Sonitrol Corp., 2012 COA 120, ¶ 10 (citation

omitted). “[T]he law of the case doctrine neither requires nor

encourages courts to support erroneous judgments.” Giampapa, 64

P.3d at 243.

¶ 80 In our request for supplemental briefing, we asked the parties

whether this division had “authority to revisit Douglas I’s conclusion

regarding the habitual adjudication.” True enough, in his

supplemental brief, Douglas did not refer to the law of the case

doctrine. Instead, he cited the broader (more favorable) rule that

one division of this court is not bound by the decisions of other

divisions. See, e.g., Chavez v. Chavez, 2020 COA 70, ¶ 13. I do not

understand, and the majority does not explain, why Douglas’s

failure to address the doctrine of law of the case as an obstacle to

our review somehow ties our hands. The doctrine exists, whether

39 Douglas acknowledges it or not, but it does not prevent us from

revisiting the prior division’s habitual criminal adjudication ruling if

we are convinced that the ruling rests on a legal error.

¶ 81 Nor am I persuaded that Douglas failed to show that there was

an error. The bar was not high in this respect — all Douglas had to

do was argue that his prior conviction involved an attempted escape

from a community corrections facility and that, under the current

version of the statute, that conviction does not qualify as a

predicate offense for habitual criminal sentencing purposes. He did

that much. His argument would have been more fulsome if he had

cited Stellabotte, but to be fair, that case did not come up in the

Attorney General’s brief either. Passable but weak briefing is not a

reason to “support [an] erroneous judgment[],” Giampapa, 64 P.3d

at 243, particularly where the erroneous judgment might consign a

person to die in prison when he should not have to.2

2 If we are letting the erroneous judgment stand because of the

lawyer’s deficient performance — either in the first appeal or this appeal — we are just postponing the inevitable: a meritorious postconviction motion based on ineffective assistance of counsel. One way or the other, a division of this court will have to determine if Douglas is a habitual criminal. I see no good reason to delay that determination.

40 ¶ 82 The majority’s other reason for sidestepping the adjudication

issue is that it was not before the district court on remand. True,

but that just highlights the problem. Under the mandate rule, the

district court had to follow the prior division’s ruling — right or

wrong. Owners Ins. Co., ¶ 24. It seems odd to say that because the

error could not be corrected earlier, it should not be corrected now.

¶ 83 For these reasons, I can only concur in the judgment reversing

the district court’s order; I cannot concur in the majority’s decision

to remand for further proportionality proceedings under the

habitual criminal sentencing statute.