The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY December 14, 2023
2023COA120
No. 21CA1147, People v. Wells-Yates — Criminal Law — Sentencing — Punishment for Habitual Criminals; Constitutional Law — Eighth Amendment — Cruel and Unusual Punishments — Proportionality Review — Gravity or Seriousness of Predicate Offenses
A division of the court of appeals addresses what facts and
evidence a district court may consider in assessing the gravity or
seriousness of a predicate offense for purposes of an abbreviated
proportionality review of a habitual criminal sentence. The division
holds that the district court exercises discretion to determine what
evidence is appropriate and may consider arrest warrant affidavits
as one such type of evidence. But the focus of the inquiry remains
the gravity or seriousness of the offense of conviction. Although the
court may consider facts beyond the elements of the offense, such
additional facts do not substitute for the predicate offense itself. Applying that standard to this case, the division concludes
that the defendant’s sixty-four-year habitual criminal sentence for
possession with intent to distribute methamphetamine — based on
two prior convictions for possession of methamphetamine and one
for possession with intent to distribute methamphetamine — raises
an inference of gross disproportionality. The division concludes
that the defendant’s other sentences do not raise that inference. COLORADO COURT OF APPEALS 2023COA120
Court of Appeals No. 21CA1147 El Paso County District Court No. 12CR2355 Honorable David L. Shakes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Belinda May Wells-Yates,
Defendant-Appellant.
SENTENCE AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE SCHOCK Tow and Graham*, JJ., concur
Announced December 14, 2023
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Shann Jeffrey, 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. 2023. ¶1 This case returns to us four years after our supreme court’s
seminal opinion in the same case regarding proportionality review of
a habitual criminal sentence. In that opinion, Wells-Yates v. People,
2019 CO 90M, the court provided extensive guidance on how to
conduct that review. But it did not decide whether the sentences
imposed on defendant, Belinda May Wells-Yates, in this case were
unconstitutional. It instead returned the case to the district court
to conduct a new proportionality review in light of its opinion.
¶2 Now, after the district court upheld the sentences, Wells-Yates
asks us to decide that question, as well as a preliminary one the
supreme court did not address: What facts and evidence may a
court consider in conducting an abbreviated proportionality review?
¶3 We hold that a district court has discretion to determine what
evidence it considers in assessing the facts and circumstances of a
predicate offense and that arrest warrant affidavits may serve as
one such type of evidence. In exercising that discretion, however,
the court must remain mindful that its purpose is to assess the
gravity or seriousness of the offense of conviction. Although the
court may look beyond the elements of that offense to the facts and
circumstances of the offense as committed — including to facts that
1 would constitute a greater or different offense — those facts may
not substitute for consideration of the predicate offense itself.
¶4 We further conclude that Wells-Yates’s sixty-four-year
sentence for possession with intent to distribute methamphetamine
raises an inference of gross disproportionality sufficient to warrant
an extended proportionality review, but that her other sentences do
not. We therefore reverse the sentence for possession with intent to
distribute and remand for the district court to conduct an extended
proportionality review of that sentence. We otherwise affirm.
I. Background
¶5 Wells-Yates was convicted by a jury of second degree burglary
(of a dwelling), conspiracy to commit second degree burglary (also of
a dwelling), theft, possession with intent to distribute
methamphetamine, and four counts of identity theft.
¶6 Six of the eight counts — all but possession with intent and
one count of identity theft — stemmed from Wells-Yates’s burglary
of a home that had been evacuated due to the approaching Waldo
Canyon wildfire. See Wells-Yates, ¶ 30 (summarizing underlying
facts). When Wells-Yates was arrested, she had “a bag containing a
small amount of methamphetamine, a set of scales, small plastic
2 bags, and other drug paraphernalia,” which led to the possession
with intent count. Id. The fourth identity theft count arose from
Wells-Yates’s sale of a stolen birth certificate, social security card,
and driver’s license to an undercover officer. Id. at ¶ 29.
¶7 Wells-Yates was adjudicated a habitual criminal based on
three prior felony convictions: a 1996 conviction for possession with
intent to distribute methamphetamine, a 1997 conviction for
possession of methamphetamine, and a 1999 conviction for
possession of methamphetamine. Id. at ¶ 31. The habitual
criminal adjudication dictated a sentence for each offense of four
times the maximum of the presumptive range. Id. at ¶ 32; § 18-1.3-
801(2)(a)(I)(A), C.R.S. 2023. The court sentenced Wells-Yates
accordingly to sixty-four years for possession with intent,1 forty-
eight years for second degree burglary, and twenty-four years for
each of the other counts. The sentences for second degree burglary
and the fourth identity theft count were ordered to run
consecutively, with all other sentences running concurrently.
1 The district court originally sentenced Wells-Yates to forty-eight
years for possession with intent to distribute, but it corrected that sentence to sixty-four years on remand, as directed by the supreme court. See Wells-Yates v. People, 2019 CO 90M, ¶ 32 n.9. 3 ¶8 Wells-Yates requested an abbreviated proportionality review of
her sentences. The district court conducted that review and
concluded that the sentences were not unconstitutionally
disproportionate. A division of this court affirmed on appeal.
¶9 The supreme court then reversed the division’s decision in an
opinion that clarified several issues relating to the proportionality
review framework. But the court did not decide whether
Wells-Yates’s sentences were unconstitutional. Wells-Yates, ¶ 74.
Instead, it remanded the case to the district court to conduct a new
proportionality review consistent with the opinion. Id. at ¶ 76.
¶ 10 On remand, the district court held an evidentiary hearing and
issued a written order, again concluding that none of the sentences
created an inference of gross disproportionality. At the hearing, the
district court admitted and considered, over Wells-Yates’s objection,
arrest warrant affidavits for Wells-Yates’s predicate convictions.
II. Analysis
¶ 11 Wells-Yates argues that each of her sentences raises an
inference of gross disproportionality, thus requiring an extended
proportionality review of those sentences. She further contends
that, by concluding otherwise, the district court violated the
4 supreme court’s mandate by (1) failing to consider the relative
seriousness of her offenses based on objective criteria and (2) failing
to consider the nature and effect of legislative changes.
¶ 12 We reject Wells-Yates’s framing of this issue as a violation of
the mandate rule. See Owners Ins. Co. v. Dakota Station II Condo.
Ass’n, 2021 COA 114, ¶ 24. The supreme court’s mandate in this
case was for the district court to conduct a new abbreviated
proportionality review consistent with the supreme court opinion.
Wells-Yates, ¶ 76. The district court did that. In doing so, it
expressly considered several of the objective factors of seriousness
identified in Wells-Yates, including changes in the relevant statutes
concerning drug offenses and habitual criminal sentencing.
¶ 13 What Wells-Yates really challenges is the district court’s
conclusion that her sentences do not give rise to inferences of gross
disproportionality — a point the supreme court did not decide. Id.
at ¶ 75. Thus, although we conclude that the district court
complied with the supreme court’s mandate, we will proceed to
consider Wells-Yates’s substantive challenge to its conclusions.
5 A. Proportionality Framework
¶ 14 Both the United States and Colorado Constitutions prohibit
“grossly disproportionate” sentences. Wells-Yates, ¶¶ 5, 10.
Proportionality is a “foundational ‘precept of justice’” that “dictates
that the punishment should fit the crime.” Id. at ¶ 1 (quoting
Weems v. United States, 217 U.S. 349, 367 (1910)). That inquiry is
not static but must take into account “the evolving standards of
decency that mark the progress of a maturing society.” Id. at ¶ 46
(quoting Graham v. Florida, 560 U.S. 48, 58 (2010)). “The standard
itself remains the same, but its applicability must change as the
basic mores of society change.” Graham, 560 U.S. at 58 (quoting
Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)).
¶ 15 When a defendant challenges the proportionality of a sentence,
the court must first conduct an abbreviated proportionality review.
Wells-Yates, ¶¶ 7, 11. At this stage, the court must consider the
gravity or seriousness of the offense and the harshness of the
penalty to determine whether the sentence gives rise to “an
inference of gross disproportionality.” Id. at ¶¶ 7, 8, 11. If (and
only if) it does, the court conducts an extended proportionality
review, comparing the defendant’s sentence to sentences for other
6 crimes in the same jurisdiction and sentences for the same crime in
other jurisdictions to “validate [the] initial judgment” that the
sentence is grossly disproportionate to the crime. Id. at ¶¶ 7, 8, 17
(quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)).
¶ 16 Habitual criminal sentences present unique proportionality
concerns because they drastically increase the punishment for a
crime and strip the sentencing court of its discretion. Id. at
¶¶ 19-20. Even so, the proportionality of such a sentence cannot
be divorced from the defendant’s history of recidivism. Id. at ¶ 23.
Thus, in conducting an abbreviated proportionality review of a
habitual criminal sentence, the court must consider (1) the gravity
or seriousness of all the offenses in question — the triggering and
predicate offenses; and (2) the harshness of the sentence on the
triggering offense. Id. When there are multiple triggering offenses,
the court reviews each sentence separately to determine “whether
the corresponding triggering offense and the predicate offenses,
considered together, are so lacking in gravity or seriousness as to
suggest that the sentence is grossly disproportionate.” Id. at ¶ 24.
¶ 17 Gross disproportionality is a question of law that we review de
novo, “not a sentencing decision requiring deference to the trial
7 court.” Id. at ¶ 35. Necessarily, then, the two subparts of that
inquiry — the gravity or seriousness of the offense and the
harshness of the penalty — are also questions of law that we review
de novo. See People v. Kennedy, 2023 COA 83M, ¶¶ 26-31
(considering whether the defendant’s offense was grave or serious
after rejecting district court’s conclusion that it was per se grave or
serious). We defer to the district court’s factual findings, including
those concerning the facts and circumstances surrounding the
offense, if they are adequately supported by competent evidence in
the record. People v. Mershon, 874 P.2d 1025, 1035 (Colo. 1994),
abrogated on other grounds by Melton v. People, 2019 CO 89, ¶ 18.
B. Facts and Evidence the Court May Consider
¶ 18 Before we conduct our abbreviated proportionality review, we
must first address a threshold question: What evidence may a court
consider in determining the facts and circumstances surrounding
the triggering and predicate offenses? Wells-Yates, ¶ 75.
Wells-Yates contends that a court may look only to the conviction
itself and not to allegations in an arrest warrant affidavit that go
8 beyond the elements of the offense.2 The People, on the other hand,
assert that a court may consider any information that it could
consider at sentencing, including evidence of uncharged conduct,
dismissed charges, and even conduct for which the defendant was
acquitted. See People v. Newman, 91 P.3d 369, 372 (Colo. 2004).
¶ 19 We disagree with the People that answering this question is as
easy as looking to sentencing law. The purpose of sentencing is to
determine an appropriate sentence within the penalty ranges
established by the legislature. Id. at 371. That decision, over which
district courts exercise broad discretion, requires a holistic look at
several factors that go beyond the offense — including the character
of the offender, the risk of future criminal conduct, the potential for
rehabilitation, the public interest, unrelated criminal conduct, and
“even aspects of [the defendant’s] life that go beyond antisocial
2 At the proportionality hearing, defense counsel initially objected to
the admission of the arrest warrant affidavits for the predicate offenses but then narrowed his objection to the court taking judicial notice of them, stating, “I’m not telling the court that it may not look at this, but for the court to take judicial notice of something is for the court to take it as a fact. We are arguing that would be inappropriate.” We conclude that this objection, combined with the later objection to the court’s consideration of facts beyond the offense of conviction, sufficiently preserved this argument. 9 conduct.” Id. at 371-72; see also People v. Linares-Guzman, 195
P.3d 1130, 1137 (Colo. App. 2008); § 18-1-102.5, C.R.S. 2023.
¶ 20 Proportionality review, in contrast, is not a sentencing
decision. Wells-Yates, ¶ 35. Its purpose is to determine whether
the chosen (or prescribed) sentence is constitutional. That question
— a legal one, not a discretionary one — turns solely on the severity
of the offense and the harshness of the sentence. Id. at ¶¶ 11-14.
¶ 21 But we also disagree with Wells-Yates’s view that the Sixth
Amendment limits the court’s consideration to the elements of the
offense and other facts necessarily found by a jury or admitted by
the defendant. See Lopez v. People, 113 P.3d 713, 723 (Colo. 2005);
Blakely v. Washington, 542 U.S. 296, 301-05 (2004). That
limitation applies to “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum.” Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000); see also Lopez, 113 P.3d at 721.
Proportionality review cannot justify a sentence that exceeds the
statutory maximum authorized by the jury verdict or guilty plea.
Instead, it asks whether a particular sentence within the statutory
range for that offense is grossly disproportionate to the crime.
10 ¶ 22 Thus, we look to our proportionality case law for guidance,
beginning with Wells-Yates. In Wells-Yates, the supreme court
explained that abbreviated proportionality review “entail[s] an
analysis of the facts and circumstances surrounding [the triggering]
offense and the facts and circumstances surrounding each”
predicate offense. Wells-Yates, ¶ 75. And though abrogating People
v. Gaskins, 825 P.2d 30 (Colo. 1992), on other grounds, the court
cited Gaskins for the proposition that “the trial court is ‘uniquely
suited’ to make these factual determinations.” Wells-Yates, ¶ 75.
Gaskins contemplated that “proportionality review may require
factual findings concerning the crime, the level of violence, and the
other factors Solem [v. Helm, 463 U.S. 277 (1983),] identified in
evaluating the severity of the crimes in question.” 825 P.2d at 38.
¶ 23 Gaskins elaborated on the district court’s “discretion to control
the character and scope of the evidence that is presented” as part of
that factfinding process. Id. at 38 n.13. The trial court is “in the
best position to evaluate, as the hearing progresses, the
extensiveness of the factual inquiries necessary to make a fully
informed and legally sound proportionality determination.” Id.
11 In some cases, for instance, it may be necessary that the trial court review part or all of the record of a trial in order to evaluate the seriousness of a prior offense. In others, a record of a providency hearing, a presentence investigation report, or other abbreviated summary of the facts underlying the conviction may provide adequate, reliable information for the purpose of proportionality review. The court, with the assistance of the parties, may devise other ways of obtaining the necessary information. The trial court should exercise its discretion to control evidentiary presentations to serve the dual goals of obtaining adequate information to assure an informed decision and conserving judicial resources by curtailing presentation of unnecessarily extensive evidence.
Id.
¶ 24 Wells-Yates and Gaskins make two things clear. First, in
conducting an abbreviated proportionality review, a court may
make factual findings that go beyond the fact of conviction.
Second, the district court exercises broad discretion in determining
what evidence it may consider in making those factual findings, so
long as it is guided by the “dual goals” of ensuring adequate
information while limiting unnecessarily extensive evidence. Id.
¶ 25 We decline Wells-Yates’s invitation to constrain that discretion
by imposing a categorical bar on the consideration of arrest warrant
12 affidavits for predicate offenses. See People v. Patnode, 126 P.3d
249, 261 (Colo. App. 2005) (considering police affidavit for predicate
offense as part of proportionality review). We acknowledge the
pitfalls of uncritically treating allegations in a police affidavit as fact
— and we caution courts not to do so. See United States v. Jordan,
742 F.3d 276, 280 (7th Cir. 2014) (noting reliability concerns with
police reports); United States v. Johnson, 710 F.3d 784, 789 (8th
Cir. 2013) (same). But we also do not think a court must conduct a
minitrial — replete with witnesses and admissible evidence — for
every predicate offense. See Wells-Yates, ¶ 75 n.20 (noting that “in
the vast majority of cases,” review of the facts and circumstances of
an offense “will not be time-consuming or burdensome”).
¶ 26 Rather, in finding the facts and circumstances surrounding a
predicate offense, a court may consider arrest affidavits as one piece
of evidence, subject to being disputed or challenged like any other
evidence. The reliability and weight to be afforded such an affidavit
should be determined by the district court on a case-by-case basis.
¶ 27 But answering the question of what evidence the court may
consider still leaves the question of what purpose the court may
consider it for. Wells-Yates instructs that a court’s task in
13 conducting an abbreviated proportionality review is to assess the
gravity or seriousness of the offense — not the totality of the
defendant’s conduct or any other offense the defendant might have
committed at or around the same time. Id. at ¶ 12; cf. People v.
Oldright, 2017 COA 91, ¶ 17 (declining to treat dismissed charges
as part of the facts and circumstances of the offense).3 The inquiry
must therefore be limited to those facts and circumstances that
flesh out the offense for which the defendant was convicted.
¶ 28 We recognize that it will not always be easy to draw the line
between the facts and circumstances of the offense and facts that
go beyond that offense. But Wells-Yates offers an example that is
particularly relevant here: the quantity of drugs. Possession of a
large quantity of drugs may be grave or serious, while possession of
3 In People v. Austin, 799 P.2d 408, 413 (Colo. App. 1990), a
division of this court cited the rule that a sentencing court may consider dismissed charges and then stated, without analysis, that “it is appropriate for the court conducting the proportionality review to consider such factors.” Not only did Austin predate Wells-Yates by nearly three decades, but it did not address the fundamental differences between sentencing and proportionality review that we describe above. Moreover, Austin did not consider the nature of any dismissed charges, making its reference to such charges dicta. See id. at 412-13. We therefore decline to follow this passing statement in Austin. See Chavez v. Chavez, 2020 COA 70, ¶ 13 (“[D]ivisions are not bound by the decisions of other divisions . . . .”). 14 a very small quantity may not be. Wells-Yates, ¶¶ 60, 69. Melton
offers another: the value of stolen property. Theft of a large amount
is more serious than theft of a small amount. Melton, ¶ 24. The
defendant’s motive for the offense and the degree of violence
involved in the offense may also be relevant. Wells-Yates, ¶ 12. In
contrast, the defendant’s commission of other factually and legally
unrelated crimes — while perhaps relevant at sentencing to the
severity of the defendant’s overall course of conduct — is not
relevant to the gravity or seriousness of the offense of conviction.
¶ 29 This does not mean that the inquiry is limited to the elements
of that offense. Such a limitation would defy Wells-Yates’s directive
to consider “the facts and circumstances surrounding [the] offense.”
Id. at ¶ 75. Thus, for example, if a defendant pleads guilty to a
lesser included offense arising out of the same facts as a charged
greater offense, the court is not foreclosed from considering the
aggravating facts of the offense as it was actually committed.
Similarly, if a defendant stipulates to a factual basis for an offense
that encompasses a greater offense than the offense to which the
defendant pleads guilty, the court may properly consider those
additional facts. In either case, the question must remain the
15 gravity or seriousness of the offense of conviction — not the greater
offense — but the aggravating facts may be part of that inquiry.
¶ 30 The specific question in this case is whether, in assessing the
gravity or seriousness of a predicate offense of possession of a
controlled substance, a court may consider the defendant’s alleged
distribution of that substance. We conclude that, at least where the
distribution is of the same drugs and occurs at the same time as
the possession offense, such distribution may be considered as part
of the facts and circumstances surrounding the offense.4 See id. at
¶ 12 (noting that “motive is relevant”). Importantly, however, it does
not convert the offense to one of distribution — a per se grave or
serious crime. Id. at ¶¶ 66, 72. The offense is still possession —
“among the least (and arguably the least) grave or serious of all
drug offenses.” Id. at ¶ 69. But the defendant’s distribution of the
drugs possessed may serve as one component of the “individualized
determination” of “the specific [possession] crime committed.” Id.
4 We do not consider a scenario in which a defendant is found to
have distributed different drugs than those the defendant is convicted of possessing. 16 C. Abbreviated Proportionality Review
¶ 31 Having addressed the scope of an abbreviated proportionality
review, we now conduct that review, “consider[ing] each triggering
offense and the predicate offenses together [to] determine whether,
in combination, they are so lacking in gravity or seriousness as to
raise an inference that the sentence imposed on that triggering
offense is grossly disproportionate.” Wells-Yates, ¶ 2.
¶ 32 Before we do, we pause to highlight two points. First, at this
stage, our task is not to decide the ultimate question of whether the
sentences are unconstitutional. Instead, we consider only whether
those sentences give rise to an inference of gross disproportionality,
such that an extended proportionality review is warranted. Id. at
¶ 15. Second, because fixing criminal penalties involves policy
judgments ordinarily left to the legislature, sentences that are
consistent with the legislative scheme will rarely raise such an
inference. Id. at ¶¶ 7, 21. But rarely does not mean never. And it
remains our role to determine de novo whether the legislature’s
choice raises that inference in a particular case. Id. at ¶ 35.
17 1. Gravity or Seriousness of Offenses
¶ 33 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 ¶ 12 (quoting Solem, 463
U.S. at 292). This inquiry is “somewhat imprecise.” Id. (citation
omitted). But pertinent factors may include (1) the absolute
magnitude of the crime; (2) whether the crime is a lesser included
offense or the greater inclusive offense; (3) whether the crime
involves a completed act or an attempt; (4) whether the defendant
was a principal or an accessory after the fact; (5) the defendant’s
motive; and (6) the defendant’s mental state. Id. In addition,
“nonviolent crimes are less serious than crimes marked by violence
or the threat of violence.” Solem, 463 U.S. at 292-93.
¶ 34 These factors are not exhaustive, however. Wells-Yates, ¶ 12.
A proper assessment of the seriousness of an offense requires
consideration of any relevant “facts and circumstances surrounding
that offense.” Id. at ¶ 75. Contrary to Wells-Yates’s suggestion, a
fact is not impermissibly “subjective” simply because it is case-
specific or because it does not fit neatly within one of the
enumerated factors. Although assessing the seriousness of an
18 offense necessarily requires a degree of judgment, the risk of
unmoored subjectivity is sufficiently constrained by the overarching
criteria of harm and culpability. Id. at ¶ 12; Solem, 463 U.S. at 292.
¶ 35 We also consider statutory amendments enacted after the date
of the offense — not because they apply retroactively but because
they are “the most valid indicia of Colorado’s evolving standards of
decency.” Wells-Yates, ¶¶ 45, 48. Such amendments are not
“determinative of whether an offense is grave or serious” but must
be considered along with the “facts and circumstances surrounding
the crime committed.” People v. McRae, 2019 CO 91, ¶ 16.
¶ 36 Except for per se grave or serious offenses, the gravity or
seriousness inquiry is not binary: the question is not “is the offense
serious or not?” A crime may be serious enough to warrant one
sentence but not another. Instead, the question is one of degree —
how serious is the offense — as a precursor to the next step of
balancing the seriousness of the offense against the harshness of
the penalty. Id. at ¶ 8; see Solem, 463 U.S. at 292 (explaining that
courts can judge the gravity of an offense “on a relative scale”).
19 a. Predicate Offenses
¶ 37 Each of Wells-Yates’s sentences is based on the same three
predicate offenses: one for possession with intent to sell or
distribute methamphetamine and two for simple possession of
methamphetamine. See Wells-Yates, ¶ 34. None of these offenses
are per se grave or serious. Id. at ¶ 68. We therefore must consider
the relative gravity or seriousness of each offense. Id. at ¶¶ 12-13.
¶ 38 We have little trouble concluding that Wells-Yates’s two
possession convictions are not especially grave or serious. As found
by the district court, the first involved quantities of 1.2 grams and
0.8 grams of methamphetamine (worth $210), and the second
involved 6.5 grams (worth $350).5 Although aggravated by the fact
that Wells-Yates committed the offenses while she was on
probation, both were nonviolent, lesser included offenses. See id. at
¶ 12; Solem, 463 U.S. at 292. For the first, Wells-Yates was
sentenced to probation, and for the second, she received a
suspended sentence (which was later revoked when Wells-Yates
failed to complete a residential substance abuse program).
5 The value of the drugs is based on the district court’s findings as
to their sale price, drawn from the arrest warrant affidavits. 20 ¶ 39 Perhaps most importantly, these offenses lie at the core of the
“sea change in our General Assembly’s philosophy regarding the
handling of drug offenses.” Wells-Yates, ¶ 47. Those offenses —
though class 4 felonies at the time — have since been reclassified as
a level 1 drug misdemeanor (less than four grams) and a level 4
drug felony (more than four grams) with substantially reduced
sentencing ranges. § 18-18-403.5(2)(a), (c), C.R.S. 2023; § 18-1.3-
401.5(2)(a), C.R.S. 2023; § 18-1.3-501(1)(d), (d.5)(I)(A), C.R.S. 2023
(providing that purpose of sentencing for most drug possession is
treatment). And they no longer qualify as predicate offenses under
the habitual criminal statute. § 18-1.3-801(2)(b); Wells-Yates,
¶¶ 42-43; Thomas v. People, 2021 CO 84, ¶ 63 (holding that “level 4
drug felonies qualify as neither triggering offenses nor predicate
offenses for habitual criminal purposes”). The reclassification of an
offense is “trustworthy evidence of the legislature’s view of the
gravity or seriousness of the crime.” Wells-Yates, ¶ 50.
¶ 40 The district court noted that methamphetamine is a
“pernicious” drug, and we do not disagree. Nor do we minimize the
drug’s destructive effects on the user and society. But the severity
of an offense must be judged “on a relative scale.” Solem, 463 U.S.
21 at 292. And on that scale, “drug offenses are generally less grave or
serious than previously thought” and “less grave or serious than the
vast majority of felony offenses.” Wells-Yates, ¶¶ 51, 59. Simple
possession — particularly possession of a small amount — lies at
the bottom of that scale. See id. at ¶ 69 (noting that “possession
may be grave or serious . . . when a defendant possesses a large
quantity of narcotics”); cf. Harmelin, 501 U.S. at 1002 (Kennedy, J.,
concurring in part and concurring in the judgment) (concluding
that offense was serious where defendant possessed more than 650
grams of cocaine with a potential yield of 32,500 to 65,000 doses).
¶ 41 Wells-Yates’s prior conviction for possession with intent to sell
or distribute is one step up on the seriousness scale, but it is still
less grave or serious than distribution. Wells-Yates, ¶ 70. The
seriousness of that offense requires “a case-by-case evaluation” of
the surrounding facts and circumstances, including the quantity of
drugs involved. Id. at ¶¶ 70-72. Wells-Yates’s offense involved a
“very small quantity” — one-sixteenth of an ounce (worth $150). Id.
at ¶ 71. It was a nonviolent, lesser offense (as compared to
distribution), for which she was sentenced to probation. Moreover,
like Wells-Yates’s other offenses, the legislature has since reduced
22 the classification of the offense “from an extraordinary risk class 3
felony to a level 3 drug felony that carries less severe penalties and
is not considered an extraordinary risk crime.” Id. at ¶ 43.
¶ 42 In concluding that Wells-Yates’s predicate offenses were grave
or serious, the district court relied heavily on its finding — based on
arrest affidavits — that Wells-Yates distributed methamphetamine
on each occasion. As we note above, Wells-Yates’s distribution of
the drugs she was convicted of possessing elevates the seriousness
of her predicate offenses. But the volume of that distribution was
small, with each offense involving one or two transactions between
$90 and $350. And while that distribution is one of the facts and
circumstances surrounding the predicate offenses, the offenses
were not distribution offenses. To the contrary, Wells-Yates’s
predicate offenses were possession and possession with intent — a
crime that “refers to someone who, while intending to sell [or]
distribute . . . narcotics, does not actually do so.” Id. at ¶ 72.
b. Triggering Offenses
¶ 43 We now turn to the gravity or seriousness of the triggering
offenses. In doing so, we separately consider each triggering
offense, together with the predicate offenses. Id. at ¶¶ 37-38. As
23 with the predicate offenses, none of the triggering offenses are per
se grave or serious, so we consider the “facts and circumstances of
the particular crime committed.” Id. at ¶ 71; see People v. Session,
2020 COA 158, ¶ 46 (holding that second degree burglary is not a
per se grave or serious offense); People v. Wright, 2021 COA 106,
¶ 72 (applying Session to second degree burglary of a dwelling);
Melton, ¶ 18 (holding that theft is not per se grave or serious).
i. Possession with Intent to Distribute
¶ 44 Much of what we have said above applies equally to the
triggering offense of possession with intent to distribute, which has
similarly been reclassified as a level 3 drug felony. Wells-Yates,
¶ 43. Like the predicate offenses, this offense involved a small
amount of methamphetamine and no violence. Wells-Yates was
also in possession of scales, small plastic bags, drug paraphernalia,
and a transaction book. Wells-Yates offered that precise scenario —
“an addict found in possession of baggies, a scale, and a very small
quantity of narcotics” — as an example of possession with intent
that does not “rise[] to the level of grave or serious.” Id. at ¶ 71.
¶ 45 There is one additional factor here, however. Wells-Yates was
also in possession of a handgun. The presence of a gun
24 undoubtedly increases the seriousness of a drug offense. See
People v. Hopper, 284 P.3d 87, 91 (Colo. App. 2011) (noting “the
well-known potential for danger that exists whenever drugs and
deadly weapons are present”); § 18-18-407(1)(d), C.R.S. 2023
(providing that a felony drug offense is a level 1 drug felony if, at the
time of the offense, the defendant possessed a deadly weapon “on
his or her person or within his or her immediate reach” or a firearm
“to which the defendant . . . had access in a manner that posed a
risk to others or in a vehicle the defendant was occupying”).
¶ 46 But the district court did not make any specific findings as to
the location of the gun or the nature of Wells-Yates’s access to it at
the time of her offense. The court said only that “[t]he evidence at
trial indicated that she was in possession of a handgun” and that
Wells-Yates was “found with a handgun.” And while we agree with
the district court that Wells-Yates’s possession of a gun aggravates
her offense, it does not transform that offense into one under the
special offender statute. See § 18-18-407(1)(d). Wells-Yates was
not convicted (or even charged) under the special offender statute in
effect at the time of her offense. See § 18-18-407(1)(f), C.R.S. 2012.
25 ¶ 47 Moreover, in weighing the gravity or seriousness of the
triggering and predicate offenses in combination, we must also take
into account Wells-Yates’s “history of felony recidivism.” Wells-
Yates, ¶ 23. That means that Wells-Yates’s triggering possession
with intent offense is more serious because it was her fourth
methamphetamine-related conviction than if it had been her first.
But we do not consider recidivism in the abstract. Solem, 463 U.S.
at 296-97. Instead, the seriousness of that recidivism must take
into account the seriousness of the predicate offenses. Id. Because
Wells-Yates’s predicate offenses were not especially grave or serious,
the repeat nature of the triggering offense weighs less heavily. Id.
ii. Second Degree Burglary of a Dwelling
¶ 48 We view the triggering burglary offense — second degree
burglary of a dwelling — differently. There has been no similar “sea
change” with respect to that crime. Wells-Yates, ¶ 47. Instead, it
has remained a class 3 felony since Wells-Yates committed the
offense. See id. at ¶ 50 (“[T]he more grave or serious an offense, the
more serious the level of classification assigned . . . .”). And the
facts and circumstances of that offense, as found by the district
court, make it substantially more serious than the drug offense.
26 ¶ 49 Wells-Yates broke into a home and stole the residents’
personal property, much of which was never returned. See Session,
¶ 48 (observing that a second degree burglary committed by
entering a home and stealing the owner’s personal effects would be
grave or serious). She did so as the “ring-leader” of a scheme to
burglarize the homes of residents who had been ordered to evacuate
due to an approaching wildfire. Thus, she intentionally targeted
victims she knew were vulnerable. These circumstances are
indicative of a high degree of culpability. Wells-Yates, ¶ 12.
¶ 50 Moreover, although the crime was (perhaps fortuitously) not
violent, it was not victimless. To the contrary, the victims testified
that the burglary had a significant emotional impact on them. See
id. at ¶ 12 (instructing courts to consider “the harm caused or
threatened to the victim or society”). And the lack of violence was
certainly not a given. Any unlawful entry into another’s home
necessarily “risk[s] a dangerous confrontation.” Session, ¶ 48.
¶ 51 Wells-Yates stresses that the home was unoccupied, which
was part of her plan to burglarize homes that had been evacuated.
And perhaps that factor somewhat lessens her culpability —
particularly because she knew (or believed) the home to be
27 unoccupied. See id. But even the burglary of an unoccupied home
under the circumstances here causes substantial harm to the
victim and reflects a high degree of culpability on the part of the
offender. Wells-Yates, ¶ 12. Thus, we conclude that Wells-Yates’s
triggering burglary offense was considerably grave or serious —
made even more so by her history of felony recidivism. Id. at ¶ 23.
iii. Other Triggering Offenses
¶ 52 The remaining triggering offenses — conspiracy to commit
second degree burglary, theft, and four counts of identity theft —
are all nonviolent and lower class felonies than second degree
burglary, thus indicating the legislature’s view that they are less
serious. Id. at ¶ 50. But there are other aspects of each of those
crimes that increase their gravity or seriousness as well.
¶ 53 We emphasize that the sentence for each triggering offense is
entitled to its own abbreviated proportionality review. Id. at ¶ 74.
Thus, we do not lump all of the triggering offenses together and
consider the gravity or seriousness of Wells-Yates’s criminal
conduct as a whole. See id at ¶ 38. Instead, we must consider
each triggering offense independently and make an “individualized
28 determination” of the gravity or seriousness of that particular
offense, when combined with the predicate offenses. Id. at ¶ 69.
¶ 54 The conspiracy offense shares many, but not all, of the
aggravating facts of the burglary offense. Like the burglary, the
conspiracy intentionally targeted victims who had evacuated their
homes because of the approaching wildfire. Wells-Yates was the
“ring-leader” of the plot and enlisted others to assist her, thus
increasing her culpability. And the object of the conspiracy was to
steal guns. Although Wells-Yates did not complete this burglary —
making this offense less serious than the burglary offense — that
does not detract from the seriousness of the conspiracy itself.
¶ 55 Three of the identity theft offenses involved Wells-Yates’s use
of identity information she stole during the burglary and, thus,
targeted the same vulnerable victims. The fourth involved her sale
of identity documents she had taken from a victim’s car. As to that
offense, the district court found that the nature of the documents
that were stolen and sold — a birth certificate, a social security
card, and a driver’s license — “could have allowed someone to
create a complete fictitious and fraudulent identity of [the victim].”
Although it does not appear that the victims suffered any actual
29 loss, the district court noted that the potential financial loss and
emotional harm to the victim were substantial. See id. at ¶ 12
(directing courts to consider the harm threatened to the victim).
¶ 56 The theft offense involved items taken from the victims’ home
during the burglary. The district court did not specify the value of
the items stolen, but it stated that the value was “large.” See
Melton, ¶ 24 (noting that the value of stolen items is relevant to
whether theft offense is grave or serious). One victim testified at the
proportionality hearing that the stolen items included a guitar,
company checks, jewelry, a gas card used to charge around $500
(later clarified to be $324), and other “family heirloom” items.
¶ 57 We must take into account the recent legislative amendments
to the theft statute, which reduce the classification of theft offenses
at designated value thresholds. Id. at ¶ 15. At the time of Wells-
Yates’s offense, theft of items valued anywhere between $1,000 and
$20,000 was a class 4 felony. § 18-4-401(1), (2)(c), C.R.S. 2012.
But today, theft of items valued up to $2,000 is a misdemeanor and
not subject to the habitual criminal statute at all. Melton, ¶ 15;
§ 18-4-401(1), (2)(e), C.R.S. 2023. Theft of items valued between
$2,000 and $5,000 is a class 6 felony, and theft of items valued
30 between $5,000 and $20,000 is a class 5 felony. § 18-4-401(2)(f),
(g). These statutory changes, though “not dispositive,” are relevant
to the gravity or seriousness of the theft offense. Melton, ¶ 15.
¶ 58 Finally, the gravity or seriousness of each of these triggering
offenses is exacerbated by Wells-Yates’s “history of felony
recidivism” — though not to as great of a degree as if those
predicate offenses were more serious. Wells-Yates, ¶ 23.
2. Harshness of Penalties
¶ 59 We now consider the harshness of the penalty imposed for
each of the triggering offenses, taking into account Wells-Yates’s
eligibility for parole “because parole can reduce the actual period of
confinement and render the penalty less harsh.” Wells-Yates, ¶ 14.
¶ 60 The sentences are harsh — sixty-four years for possession
with intent to distribute, forty-eight years for second degree
burglary, and twenty-four years each for the other offenses. Driven
by the habitual criminal adjudication, these sentences are four
times the maximum presumptive sentence that would otherwise
apply. Id. at ¶ 19; § 18-1.3-801(2)(a)(I)(A). Taking into account
parole eligibility and maximum good time and earned time credit,
31 Wells-Yates will spend at least twenty-nine years, twenty-one years,
and nine years, respectively, in prison for these offenses.
¶ 61 But like the gravity or seriousness inquiry, the harshness
inquiry is not binary. A harsh sentence may be constitutional if
“the punishment . . . fit[s] the crime.” Wells-Yates, ¶ 1. Conversely,
a sentence that is not harsh in the abstract may be grossly
disproportionate to a particular crime. See Robinson v. California,
370 U.S. 660, 667 (1962) (“Even one day in prison would be a cruel
and unusual punishment for the ‘crime’ of having a common cold.”).
Even a sentence for a serious offense can support an inference of
gross disproportionality. Wells-Yates, ¶ 27. Thus, the question we
must answer is not simply whether the penalties imposed in this
case are harsh, but whether they are so harsh as to give rise to an
inference of disproportionality, given the gravity or seriousness of
the triggering and predicate offenses together. Id. at ¶ 23.
¶ 62 With respect to the sentence for possession with intent to
distribute, we conclude that it is. For being “found in possession of
baggies, a scale, and a very small quantity of narcotics” (as well as
drug paraphernalia and a transaction book), id. at ¶ 71, Wells-Yates
was sentenced to prison for sixty-four years (likely the rest of her
32 life) and will serve at least twenty-nine years. Cf. Harmelin, 501
U.S. at 996 (noting that life imprisonment with the possibility of
parole is the “third most severe” sentence known to law). This for a
crime that, had she committed it sixteen months later, would have
resulted in a sentence of two to four years. Wells-Yates, ¶ 43.
¶ 63 Under the circumstances here, where all of Wells-Yates’s
predicate offenses are also non-distribution drug offenses for which
the penalties have been drastically reduced, we conclude that this
sentence raises an inference of gross disproportionality. Id. at ¶ 76;
see also Oldright, ¶ 26 (“The answer [to whether a sentence raises
an inference of gross disproportionality] lies in the nature and
number of [the defendant’s] prior convictions.”). We therefore
reverse this sentence and remand to the district court to conduct
an extended proportionality review. See Oldright, ¶ 27.
¶ 64 In reaching this conclusion, we recognize that it will be a “rare
case” in which abbreviated proportionality review leads to an
inference of gross disproportionality. Id. at ¶¶ 7, 21. But rarely do
we have such an unequivocal indication of the “evolving standards
of decency” that apply to both the triggering and predicate offenses.
Id. at ¶ 47. And while the legislative changes came sixteen months
33 too late to help Wells-Yates, the evolving standards they reflect are
not so confined. Id. at ¶ 48; see also Graham, 560 U.S. at 85
(Stevens, J., concurring) (“Punishments that did not seem cruel and
unusual at one time may, in the light of reason and experience, be
found cruel and unusual at a later time; unless we are to abandon
the moral commitment embodied in the Eight Amendment,
proportionality review must never become effectively obsolete.”).
¶ 65 While a close call, we reach a different conclusion with respect
to the sentence for second degree burglary. That offense was
serious for the reasons discussed above. Breaking into another’s
home to steal not only their property, but their identity, causes or
threatens to cause serious harm to the victim — financial,
emotional, and in the event of a confrontation, physical. Targeting
a victim who is fleeing from a natural disaster is more culpable still.
¶ 66 We acknowledge that this sentence too was quadrupled based
on predicate offenses we have deemed not especially grave or
serious, including two that would no longer qualify as predicate
offenses under the habitual criminal statute. But unlike possession
with intent, there is no similar legislative expression of evolving
standards of decency applicable to the burglary offense itself.
34 Considering the facts and circumstances surrounding the burglary
offense, in combination with the predicate offenses, we cannot
conclude that this is one of those rare situations in which the
legislature’s habitual criminal sentencing determination raises an
inference of gross disproportionality. See Wells-Yates, ¶ 21.
¶ 67 We reach the same conclusion with respect to Wells-Yates’s
other sentences. Initially, we note that these twenty-four-year
sentences are, in absolute terms, substantially less harsh than the
other two. Although there is no minimum threshold for gross
disproportionality, the constitutional line-drawing becomes more
challenging (and less objective) as the sentence length decreases.
See Solem, 463 U.S. at 294 (“It is clear that a 25-year sentence
generally is more severe than a 15-year sentence, but in most cases
it would be difficult to decide that the former violates the Eighth
Amendment while the latter does not.”) (footnote omitted).
¶ 68 True, these sentences were all a product of the same formulaic
quadrupling that dictated the others — a multiplier made all the
more troubling by the nature of the predicate offenses and the fact
that the sentences would be substantially less today. The theft
offense, in particular, may not even have been a felony under the
35 current statute. But given the serious aspects of the offenses that
we discuss above and the history of recidivism, we cannot conclude
that any one of the triggering offenses and the predicate offenses,
“considered together, are so lacking in gravity or seriousness as to
suggest” that a twenty-four-year sentence, with the possibility of
parole after nine years, crosses the constitutional line. Wells-Yates,
¶ 24; see also id. at ¶ 5 (“‘The Eighth Amendment does not require
strict proportionality between crime and sentence’; instead, ‘it
forbids only extreme sentences that are “grossly disproportionate”
to the crime.’”) (quoting Harmelin, 501 U.S. at 1001).
¶ 69 In short, Wells-Yates — and the “sea change” in legislative
attitudes toward certain drug offenses — makes sentences for non-
distribution, non-manufacturing drug offenses under the old regime
unique in the proportionality analysis. Although Wells-Yates’s
other sentences were impacted by that old regime based on her
predicate offenses, the same considerations do not apply to the
other triggering offenses. For those offenses, we heed the general
guidance that “in habitual criminal cases . . . an abbreviated
proportionality review will almost always yield a finding that the
sentence is not unconstitutionally disproportionate.” Id. at ¶ 21.
36 ¶ 70 We therefore reverse Wells-Yates’s sentence for possession of
methamphetamine with intent to distribute, and we remand the
case to the district court to conduct an extended proportionality
review of that sentence. We affirm the remaining sentences.6
D. Categorical Rule
¶ 71 Wells-Yates asks us to go further and declare a categorical
rule that quadrupling the sentence for an offense based solely on
prior drug possession convictions is per se unconstitutional.
¶ 72 We decline to do so for four reasons. First, Wells-Yates did not
raise this argument below. See People v. Grassi, 364 P.3d 1144,
1149 (Colo. App. 2011) (declining to address argument because the
defendant did not raise it on remand). Second, it is inconsistent
with the supreme court’s mandate that proportionality review of the
sentences in this case requires “an analysis of the facts and
circumstances” surrounding each triggering and predicate offense.
Wells-Yates, ¶ 75; see also Owners Ins. Co., ¶ 24 (noting that we
6 We recognize that a finding of gross disproportionality on the
possession with intent conviction would not reduce Wells-Yates’s overall term of imprisonment, given the consecutive forty-eight-year and twenty-four-year sentences on the burglary and identity theft counts. But each sentence is nevertheless entitled to its own independent proportionality review. Wells-Yates, ¶ 74. 37 must follow the supreme court’s mandate). Third, it is inconsistent
with Wells-Yates’s direction that (1) the seriousness of a possession
offense should turn on “an individualized determination” of “the
facts and circumstances surrounding the specific crime committed,”
Wells-Yates, ¶ 69; and (2) proportionality review of a habitual
criminal sentence must take into account the triggering offense and
predicate offenses together, id. at ¶ 76. Fourth, Wells-Yates’s
sentences were not quadrupled based solely on prior convictions for
simple possession; one of her predicate offenses was for possession
with intent to distribute. See id. at ¶ 70 (noting that “many
convictions for possession with intent will be grave or serious”).
III. Disposition
¶ 73 The sixty-four-year sentence for possession with intent to
distribute methamphetamine is reversed, and the case is remanded
for the district court to conduct an extended proportionality review
of that sentence. The remaining sentences are affirmed.
JUDGE TOW and JUDGE GRAHAM concur.