Peo v. Kramer

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 23CA0955
• Status: Unpublished

Opinion

23CA0955 Peo v Kramer 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0955 Mesa County District Court No. 20CR1238 Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Patrick Walter Kramer,

Defendant-Appellant.

SENTENCE AFFIRMED

Division III Opinion by JUDGE TOW Dunn and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Patrick Walter Kramer, appeals his sentence for

first degree criminal trespass. We affirm.

I. Background

¶2 In March 2021, Kramer pleaded guilty to first degree criminal

trespass, following an incident in which he took up residence in an

unoccupied house. The district court accepted the plea agreement

and sentenced Kramer to a two-year probationary sentence.

Probation filed a complaint, alleging that Kramer committed

multiple violations. Kramer admitted the violations, and the court

revoked and reinstated his probation. Probation filed another

complaint, alleging more violations, and Kramer again admitted to

them. The court sentenced Kramer to thirty-two months in the

custody of the Department of Corrections (DOC), noting, among

other reasons, that

[T]his isn’t an insignificant crime. I understand it’s a trespass Class 5. It’s not the most aggravated set of circumstances, but this was someone’s house. This was your fourth felony, and you were given all of that mitigating consideration when I put you on probation in the first place. And then I put you on probation again and then again.

¶3 This appeal followed.

1 II. Analysis

¶4 Kramer contends that the district court erred by not explicitly

considering legislative changes that reclassified first degree criminal

trespass of an unoccupied dwelling to a misdemeanor when

resentencing him to the DOC. We disagree.

¶5 Kramer pleaded guilty to first degree criminal trespass under

section 18-4-502, C.R.S. 2020, which made trespass a class 5

felony. After Kramer’s plea, however, the legislature amended

section 18-4-502 to make first degree criminal trespass a

misdemeanor, so long as the dwelling entered was not inhabited or

occupied. Ch. 462, sec. 211, § 18-4-502(2)(a), 2021 Colo. Sess.

Laws 3178.

¶6 We review a district court’s sentencing decision for an abuse of

discretion. People v. Dominguez, 2021 COA 76, ¶ 9. A court abuses

its discretion if “it fails to consider the nature of the offense, the

character and rehabilitative potential of the offender, the

development of respect for the law and the deterrence of crime, and

the protection of the public.” People v. Linares-Guzman, 195 P.3d

1130, 1137 (Colo. App. 2008). Likewise, a district court abuses its

2 discretion if its decision is based on a misapplication of the law.

Margerum v. People, 2019 CO 100, ¶ 9.

¶7 Here, there is no misapplication of the law, because the court

sentenced Kramer within the presumptive range applicable to the

offense as of the day Kramer committed it. “[A]meliorative,

amendatory legislation applies retroactively to non-final convictions

under section 18-1-410(1)(f), [C.R.S. 2024,] unless the amendment

contains language indicating it applies only prospectively.” People

v. Stellabotte, 2018 CO 66, ¶ 3. The legislation that reduced first

degree criminal trespass under section 18-4-502 from a class 5

felony to a misdemeanor expressly “applies to offenses committed

on or after” March 1, 2022. Sec. 803, 2021 Colo. Sess. Laws at

3331-32. There is no dispute that Kramer committed trespass

before March 1, 2022. Because the amendment to section 18-4-502

applies prospectively only, it does not affect Kramer’s trespass

conviction, and therefore it was not an erroneous understanding or

misapplication of the law. Indeed, as Kramer acknowledges, “the

district court was not required to apply the new laws.”

¶8 Nor did the sentencing court fail to take into account the

required considerations. Contrary to Kramer’s argument, the

3 sentencing court considered the severity of the offense, saying that

it was not “an insignificant crime,” but that it was “not the most

aggravated set of circumstances.” More importantly, however, the

court focused on other appropriate considerations, including

Kramer’s rehabilitative potential (or, here, the lack thereof). The

court noted Kramer’s multiple prior felonies, his failures at every

level of supervision, and the fact that he had even been to prison

before, yet he continued to commit crimes. And the court

considered the value of deterrence — both deterring Kramer as well

as the public at large — noting that simply giving a short sentence

and closing the case was “not a good message to send to [Kramer]

or to anyone else.” Even with the significant aggravation identified

by the court, however, it declined to sentence Kramer in the

aggravated range.

¶9 Nevertheless, Kramer contends that the district court abused

its discretion by not considering the reclassification of the offense to

a misdemeanor as part of the “nature of the offense.”1 True, our

supreme court has held that, at least when ruling on a Crim. P.

1 Notably, Kramer does not contend that his sentence is grossly

disproportionate, nor has he ever asked for a proportionality review.

4 35(b) motion to reconsider a sentence, a sentencing court is

permitted to consider significant subsequent changes to the

sentencing scheme. See, e.g., People v. Bridges, 662 P.2d 161, 165

(Colo. 1983) (“To require that a court be oblivious to the great

reductions in authorized sentences . . . would not be consistent

with the salutary goal of Crim. P. 35(b) to ‘contribute to the

imposition of more consistently uniform sentences for those

convicted of like crimes.’” (quoting People v. Smith, 536 P.2d 820,

822 (Colo. 1975))).

¶ 10 But Kramer cites no case, nor are we aware of any, requiring a

sentencing court to explicitly consider a prospective-only

reclassification of an offense as part of the “nature of the offense”

when determining an appropriate sentence.

¶ 11 In sum, the sentence is within the range authorized by the

applicable statute and supported by appropriate considerations.

Thus, the court did not abuse its discretion.

III. Disposition

¶ 12 The sentence is affirmed.

JUDGE DUNN and JUDGE BERGER concur.