Peo v. Pulliam

• Court: Colorado Court of Appeals
• Decided: April 9, 2026
• Docket: 23CA1219
• Status: Unpublished

Opinion

23CA1219 Peo v Pulliam 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1219 Larimer County District Court No. 18CR265 Honorable Juan G. Villaseñor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donny Ray Pulliam,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE LUM J. Jones and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Donny Ray Pulliam, appeals the district court’s

order concluding that his habitual criminal sentences don’t raise an

inference of gross disproportionality. We affirm.

I. Background

¶2 In 2018, Pulliam met with Jordan Williams, Justin Bigfeather,

and Dylan Salas to buy drugs from Williams. People v. Pulliam, slip

op. at ¶ 2 (Colo. App. No. 19CA0347, Aug. 5, 2022) (not published

pursuant to C.A.R. 35(e)). During the meeting, Pulliam pointed his

gun at Bigfeather and Salas and told them to give him all their

“shit.” Id. at ¶¶ 2, 4-6. At some point during the confrontation,

Pulliam’s gun discharged, killing Salas. Id. at ¶¶ 2, 5. The jury

convicted Pulliam of first degree murder (felony murder) of Salas,

attempted first degree murder (after deliberation) of Bigfeather, and

aggravated robbery of Williams. Id. at ¶ 3; see § 18-3-102(1)(a), (b),

C.R.S. 2018; § 18-4-302(1)(b), C.R.S. 2021; § 18-2-101, C.R.S.

2021.

¶3 After his conviction, the district court held a separate hearing

at which it adjudicated Pulliam a habitual criminal based on three

prior felony convictions: (1) accessory to a crime (riot in a detention

center) under section 18-8-105(1), (5), C.R.S. 2010; (2) theft (more

1 than $1,000 but less than $20,000) under section 18-4-401(1),

(2)(c), C.R.S. 2010; and (3) attempt to commit second degree assault

on a peace officer under section 18-3-203(1)(f), C.R.S. 2006.

¶4 At the habitual criminal hearing, and in a separate motion,

Pulliam moved for an extended proportionality review. During its

abbreviated proportionality review, the court concluded that

Pulliam’s crimes — the triggering offenses of aggravated robbery

and attempted first degree murder and the three predicate offenses

— were grave or serious when considered in “totality.” Given that,

the court also concluded that the habitual criminal “combined”

sentence for aggravated robbery and attempted murder did not

raise an inference of gross disproportionality. The court sentenced

Pulliam consecutively to life without the possibility of parole for

felony murder, sixty-four years for aggravated robbery, and

ninety-six years for attempted first degree murder. See

§§ 18-3-102(1)(a), (b), 18-2-101, 18-4-302(1)(b).

¶5 As relevant here, Pulliam appealed the habitual criminal

sentences.1 Pulliam, No. 19CA0347, slip op. at ¶¶ 47-58. A division

1 Pulliam didn’t challenge his conviction or sentence for felony

murder.

2 of this court remanded for a new proportionality review because

(1) the record “lack[ed] ample support to conclude that all three

predicate crimes were grave [or] serious,” and (2) the district court

erroneously considered the aggravated robbery and attempted

murder sentences together rather than separately. Id. at ¶¶ 53-58.

¶6 After conducting a new abbreviated proportionality review on

remand, the district court made the following findings and

conclusions about Pulliam’s triggering offenses:

• Aggravated robbery is per se grave or serious.

• Attempted first degree murder is per se grave or serious

because it is grave or serious in every potential factual

scenario. Wells-Yates v. People, 2019 CO 90M, ¶ 63

(Wells-Yates I).

• In the alternative, Pulliam’s attempted first degree

murder conviction was grave or serious under the facts of

the case because Pulliam (1) took a substantial step with

the requisite intent to shoot Bigfeather; and (2) as

principal actor, was solely culpable for the robbery of the

drugs and using or threatening gun violence.

3 ¶7 As to Pulliam’s predicate offenses, the district court concluded

that while none were per se grave or serious, the attempted second

degree assault and accessory to crime offenses were grave or

serious under the facts and circumstances of each incident. (The

court declined to conclude that Pulliam’s theft conviction was grave

or serious because the record lacked information about Pulliam’s

role in the theft, and the information about the value of the stolen

items was inconsistent.)

¶8 Finally, considering together each of Pulliam’s triggering

offenses with his predicate offenses, the court determined that

Pulliam’s triggering offenses involved violence, caused great harm to

society, and occurred during a murder. And Pulliam’s predicate

offenses established his “predilection for violence, his disregard for

human life, and his propensity toward repeated criminal conduct.”

The court therefore concluded that Pulliam’s habitual sentences

didn’t give rise to an inference of gross disproportionality.

II. Applicable Law and Standard of Review

¶9 When a defendant is convicted of a felony (a triggering offense),

he may be adjudicated a habitual criminal if he has been convicted

of three or more previous felonies arising out of separate and

4 distinct criminal episodes (predicate offenses). § 18-1.3-801(2)(a)(I),

C.R.S. 2025. In that event, the court must impose a prison

sentence for the triggering offense of a term that is four times the

maximum of the presumptive range for that offense.

§ 18-1.3-801(2)(a)(I)(A).

¶ 10 The legislature has broad authority to regulate the sentencing

of habitual criminals. Wells-Yates I, ¶ 21. However, that authority

“is limited by the principle of proportionality that is embedded in

the constitutional prohibition against the infliction of cruel and

unusual punishment.” Wells-Yates I, ¶ 1; see U.S. Const. Amend.

VIII; Colo. Const. art. II, § 20. “Proportionality is a ‘foundational

“precept of justice”’ that ‘dictates that the punishment should fit the

crime.’” People v. Wells-Yates, 2023 COA 120, ¶ 14 (Wells-Yates II)

(citations omitted).

¶ 11 “When a defendant challenges the proportionality of a

sentence, the court must first conduct an abbreviated

proportionality review.” Id. at ¶ 15. “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

5 sentence because each sentence represents a separate punishment

for a distinct and separate crime.” Wells-Yates I, ¶ 24.

¶ 12 During an abbreviated proportionality review, the court must

consider (1) the gravity or seriousness of the triggering offense and

the predicate offenses and (2) the harshness of the penalty for the

triggering offense. Id. at ¶¶ 23-24. The court then determines

whether the triggering and predicate offenses, “considered together,

are so lacking in gravity or seriousness” as to give rise to an

inference of gross disproportionality. Id. at ¶ 24. If the answer is

“yes,” the court then conducts an extended proportionality review.

Wells-Yates II, ¶ 15.

¶ 13 Certain offenses are considered per se grave or serious,

meaning courts need not specifically analyze gravity or seriousness

and may skip to the second step — assessing the harshness of the

penalty. Wells-Yates I, ¶¶ 13, 63. For an offense that isn’t per se

grave or serious, the court must assess the gravity or seriousness

by reviewing the facts and circumstances attending the commission

of the crime. People v. Duran, 2025 COA 34, ¶ 29; People v.

Hargrove, 2013 COA 165, ¶ 12, abrogated on other grounds by

Wells-Yates I, ¶¶ 16-17. In doing so, the court may consider

6 multiple 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) whether the offense

was an attempted or a completed crime; (4) whether the defendant

was an accessory, complicitor, or principal; and (5) the defendant’s

culpability and motive. McDonald v. People, 2024 CO 75, ¶ 12.

¶ 14 In assessing the gravity and seriousness of a crime, the

district court isn’t limited to considering “the elements of the

offense and other facts . . . found by a jury or admitted by the

defendant.” Wells-Yates II, ¶ 21. Rather, a court may consider the

facts and circumstances that “‘surround[]’” or “flesh out” the

offense. Id. at ¶¶ 22, 27 (citation omitted). For example, a division

of this court has concluded that when a defendant is convicted of

possession of a controlled substance, the court may consider the

defendant’s distribution of that substance, at least when the

distribution “is of the same drugs and occurs at the same time as

the possession offense.” Id. at ¶ 30. However, a court cannot

consider the defendant’s commission of “factually and legally

unrelated crimes.” Id. at ¶ 28.

7 ¶ 15 The gravity and seriousness inquiry is “not binary” but is one

of degree, entailing a consideration of “how serious . . . the offense”

is “as a precursor to the next step of balancing the seriousness of

the offense against the harshness of the penalty.” Id. at ¶ 36.

¶ 16 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 I, ¶¶ 16-17. Accordingly,

“in almost every case, the abbreviated proportionality review will

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.

¶ 17 If an abbreviated proportionality review reveals no inference of

gross disproportionality, no further analysis is required.

Wells-Yates I, ¶ 15; Close v. People, 48 P.3d 528, 542 (Colo. 2002),

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

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

law that we review de novo. Wells-Yates I, ¶ 35. But “[w]e defer to

the district court’s factual findings, including those concerning the

facts and circumstances surrounding the offense, if they are

8 adequately supported by competent evidence in the record.”

Wells-Yates II, ¶¶ 3, 17.

III. Analysis

¶ 19 Pulliam contends that the district court went outside the

scope of facts and circumstances it was permitted to consider when

assessing the gravity and seriousness of his triggering offense of

attempted first degree murder and his predicate offenses of

attempted second degree assault and accessory to crime. Relatedly,

he argues that the court erred when it determined that the

sentences don’t give rise to an inference of gross disproportionality.

(The district court correctly determined that aggravated robbery is

per se grave or serious, Wells-Yates I, ¶ 65, and Pulliam doesn’t

contend otherwise.).

A. Triggering Offense — Attempted First Degree Murder

¶ 20 Pulliam argues that the district court improperly considered

facts and circumstances relating to the robbery and the completed

murder when assessing whether the attempted murder was grave or

serious under the circumstances surrounding its commission.

Given that all three crimes occurred in the space of “maybe a

minute or so,” it isn’t entirely clear which facts Pulliam thinks the

9 district court shouldn’t have considered. Nevertheless, we discern

no basis for reversal.

¶ 21 Even if we don’t consider the completed murder, Pulliam still

pointed a loaded gun at Bigfeather after deliberation and with the

intent to kill him. See § 18-2-101(1), C.R.S. 2025 (a person

commits criminal attempt if he, with the mental state required for

commission of the offense, engages in conduct constituting a

substantial step toward the commission of the offense);

§ 18-3-102(1)(a), C.R.S. 2025 (A person commits first degree murder

if, “[a]fter deliberation and with the intent to cause the death of a

person other than himself, he causes the death of that person.”).

¶ 22 To the extent Pulliam contends that it’s improper to consider

the robbery, we disagree. Pulliam’s motive for threatening

Bigfeather (and Salas) with the gun was to steal drugs. See

McDonald, ¶ 12. The crime therefore involved a threat of violence

and significant harm to society. See id. Further, Pulliam was the

principal actor and was solely culpable for the crime. See id.

Accordingly, we agree with the district court that the attempted

murder was grave or serious as committed.

10 ¶ 23 Because of our resolution of this argument, we need not

consider whether the district court erred by concluding that

attempted first degree murder is per se grave or serious.

B. Predicate Offense — Attempted Second Degree Assault

¶ 24 The court relied on the arrest affidavit to make the following

factual findings about the incident underlying Pulliam’s attempted

second degree assault conviction:

• Pulliam was caught breaking into vehicles when the

police arrived at the scene.

• While fleeing the scene in his own vehicle, Pulliam drove

straight at a police officer’s vehicle while the officer was

inside; the officer had to “back out of the way” to avoid

being hit.

• Pulliam’s motive in committing the crime was to elude

police, and he ultimately crashed his vehicle and ran

from police before being apprehended.

¶ 25 The district court concluded that Pulliam’s conduct was grave

or serious. It noted that, while Pulliam’s attempted assault

constituted a low-level felony, he nonetheless took a “substantial

step” to commit the crime of assault. The court went on to say that

11 Pulliam’s conduct threatened substantial harm to society because

he demonstrated “utter disregard for police” and could have caused

“serious bodily injury to th[e] officer.”

¶ 26 Pulliam first contends that the district court erred by

considering (1) that he was breaking into cars prior to the arrival of

law enforcement and (2) that he attempted to flee after he crashed

his car. Relying on Wells-Yates II, Pulliam argues that

consideration of these aggravating facts was inappropriate because

theft and eluding are “factually and legally unrelated” to the

attempted assault. Relatedly, Pulliam argues that the court erred

by considering the crime grave or serious because no one was

injured, and the offense was an attempted rather than completed

crime.

¶ 27 Even if we set aside the acts that Pulliam says the court

shouldn’t have considered, we conclude on our de novo review that

the attempted assault conviction is grave or serious in light of the

other facts considered by the district court. Wells-Yates II, ¶ 36

(gravity or seriousness inquiry isn’t binary but rather a question of

degree). That Pulliam didn’t actually hit the officer doesn’t detract

from the fact that, while in an attempt to flee from police, he drove

12 his vehicle straight at another vehicle with someone inside it and

that he continued eluding the police until he crashed his car.2 As

the district court noted, he could have seriously injured the officer.

Further, Pulliam was solely culpable for his conduct and was

motivated by a desire to elude the officers. See McDonald, ¶ 12.

Accordingly, the district court didn’t err by concluding that this

offense was grave or serious.

C. Predicate Offense — Accessory to Crime

¶ 28 In 2010, Pulliam was charged with two counts of rioting in a

detention facility. He pleaded guilty to an added count of accessory

to crime in exchange for dismissal of the original rioting charges.

The district court made the following findings as to Pulliam’s

offense:

• Pulliam was an inmate when he committed the offense.

2 To the extent Pulliam contends that the court erroneously

considered any of this conduct because attempted second degree assault of a peace officer isn’t a lesser included offense of first degree assault on a peace officer and he didn’t stipulate to a factual basis for a “greater offense,” we disagree. The court appropriately considered Pulliam’s motive to commit the attempted assault, see McDonald v. People, 2024 CO 75, ¶ 12, as well as the facts underlying the attempt itself.

13 • He went to another housing area within the jail without

authorization.

• Pulliam and a fellow gang member started a fight with

rival gang members.

• Pulliam and the other combatants ignored the jail staff’s

commands to cease fighting.

• Jail staff ultimately had to pepper spray Pulliam to get

him to stop.

¶ 29 The court concluded that Pulliam’s offense was grave or

serious because (1) the crime occurred while he was in custody;

(2) by going to a different housing area without authorization and

starting a fight with rival gang members, Pulliam placed the staff

and inmates at the jail in great danger; and (3) the crime was

inherently violent and required jail staff to exercise force to stop

him.

¶ 30 Pulliam contends the court erred by considering facts that

went to his original charge of rioting in a detention facility, not his

accessory-to-crime conviction, which he notes isn’t a lesser

included offense of the rioting charge. He additionally faults the

14 district court for relying on gang affiliation information, which he

says wasn’t included in the arrest affidavit.

¶ 31 However, even setting aside the details about Pulliam’s gang

affiliation and motive for entering the unauthorized area as part of

our de novo review, Wells-Yates I, ¶ 35, we agree with the district

court’s conclusion that Pulliam’s offense was grave or serious under

the circumstances. First, we are “not foreclosed from considering

the aggravating facts of the offense as it was actually committed.”

Wells-Yates II, ¶ 29. Second, Pulliam’s conduct — fighting with

other inmates in a detention facility and refusing to stop fighting

when told to do so — could have resulted in serious injury to jail

staff and inmates alike.3

3 Pulliam argues that “it appears [he] acted in self-defense or

defense of others because he only engaged [in the fight] after another person was attacked,” but cites no record evidence supporting this claim. Therefore, we don’t consider it. C.A.R. 28(a)(7)(B) (An appellant’s brief must support the arguments by identifying the “parts of the record on which the appellant relies.”); Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996), aff’d, 940 P.2d 348 (Colo. 1997) (“[I]t is not the duty of the reviewing court to search the record for evidence to support bald assertions.”).

15 D. Harshness of the Penalty

¶ 32 Pulliam’s sixty-four-year sentence for the aggravated robbery

conviction and ninety-six-year sentence for the attempted murder

conviction are harsh, even taking into account the length of time he

will serve before he is eligible for parole. See Wells-Yates II, ¶ 60.

¶ 33 Given the per se grave or serious nature of the aggravated

robbery, combined with the seriousness of two of Pulliam’s

predicate offenses — which involved a disregard for law enforcement

and either violence, the possibility of serious injury, or both — the

sixty-four-year aggravated robbery sentence doesn’t give rise to an

inference of gross disproportionality. Wells-Yates I, ¶ 24; see People

v. Loris, 2018 COA 101, ¶ 29 (“It is not necessary for each offense to

be grave or serious for a court to conclude that a sentence is not

grossly disproportionate.”).

¶ 34 Much the same analysis applies to the attempted murder

sentence. Pulliam’s conduct was grave or serious: motivated by his

desire to steal, he took a substantial step toward killing Bigfeather

after deliberation and with intent. See McDonald, ¶ 12. When

considered in combination with his predicate offenses, the

ninety-six-year sentence he received for that crime doesn’t give rise

16 to an inference of gross disproportionality either. Wells-Yates I,

¶ 24.

IV. Disposition

¶ 35 The order is affirmed.

JUDGE J. JONES and JUDGE MEIRINK concur.