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 March 27, 2025
2025COA34
No. 23CA1134, People v. Duran — Criminal Procedure — Postconviction Remedies; Crimes — Assault in the First Degree — Extreme Indifference; Constitutional Law — Eighth Amendment — Proportionality Review — Per Se Grave or Serious Offenses
In this appeal from the summary denial of a Crim. P. 35(c)
motion, a division of the court of appeals examines two challenges
to a sentence imposed under a plea agreement.
First, the division considers the defendant’s contention that
the postconviction court erred by denying his claim that his plea
counsel provided ineffective assistance by incorrectly advising him
about his parole eligibility. The division concludes that the
defendant’s assertion that he would have gone to trial but for his
plea counsel’s incorrect advice is conclusory and refuted by the
record because the prosecution’s case against him was
exceptionally strong, he faced the potential for a substantially longer prison sentence if convicted at trial, and the record
demonstrates that he was willing to accept the same parole
eligibility date that he ultimately received.
Next, the division conducts an abbreviated proportionality
review of the defendant’s sentence and addresses an issue of first
impression: whether extreme indifference first degree assault in
violation of section 18-3-202(1)(c), C.R.S. 2024, is per se grave or
serious under Wells-Yates v. People, 2019 CO 90M. The division
concludes that it is per se grave or serious and that the defendant’s
sentence does not give rise to an inference of gross proportionality.
Accordingly, the division affirms the postconviction court’s
order. COLORADO COURT OF APPEALS 2025COA34
Court of Appeals No. 23CA1134 Jefferson County District Court No. 18CR5043 Honorable Jason Carrithers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Juan Ignacio Duran,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur
Announced March 27, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado, for Defendant-Appellant ¶1 Juan Ignacio Duran appeals the postconviction court’s order
denying, without a hearing, his Crim. P. 35(c) motion alleging
ineffective assistance of plea counsel and requesting an extended
proportionality review of his sentence. He claims that (1) his plea
counsel provided ineffective assistance by incorrectly advising him
about his parole eligibility and (2) the twenty-two-year sentence for
his first degree assault conviction is disproportionately harsh.
¶2 We first conclude that Duran’s claim that he would have gone
to trial but for his plea counsel’s incorrect advice is conclusory and
refuted by the record because the prosecution’s case against him
was exceptionally strong, he faced the potential for a substantially
longer prison sentence if convicted at trial, and the record
¶3 We then perform our own abbreviated proportionality review
and encounter an issue of first impression: Is extreme indifference
first degree assault in violation of section 18-3-202(1)(c), C.R.S.
2024, per se grave or serious under Wells-Yates v. People, 2019 CO
90M? We conclude that it is per se grave or serious and that
1 Duran’s sentence is not disproportionately harsh. We therefore
affirm the postconviction court’s order, albeit on different grounds.
I. Background
¶4 Duran got off from work early on the Friday before New Year’s
Eve and went out drinking with some coworkers. After consuming
a substantial amount of alcohol — eight shots and two beers,
according to the People — he decided to drive to pick up his
daughter from daycare.
¶5 Multiple bystanders called 911 to report that Duran was
driving recklessly — running multiple red lights, nearly sideswiping
cars, and hitting curbs. At one point, Duran drove around a
pedestrian-only promenade and even across a footbridge that
spanned a major street.
¶6 A police officer responding to the 911 calls encountered Duran
barreling toward the officer’s car on the wrong side of a road at
around sixty miles per hour in a forty-mile-per-hour zone. The
police officer managed to swerve out of Duran’s path, but the
drivers behind the officer were not so lucky. Duran sideswiped one
car before colliding head on with a second, pushing it back into a
2 third vehicle. Tragically, the driver of the second car was killed in
the crash.
¶7 After his arrest, Duran admitted to the police that he had
consumed “three half-packs of beer” before driving that night. A
blood test revealed that his blood alcohol content was 0.219 —
nearly three times the level at which a person commits driving
under the influence per se, see § 42-4-1301(2)(a), C.R.S. 2024 —
and that his blood contained a significant amount of THC.
¶8 Duran pleaded guilty to vehicular homicide, extreme
indifference first degree assault, and attempted extreme indifference
first degree assault. The sentencing range under the plea
agreement was fifteen to forty years in prison. The agreement did
not address how much of his sentence Duran would need to serve
before he would be eligible for parole.
¶9 During the plea hearing, Duran confirmed to the district court
that he understood he was waiving his right to a jury trial. He
further acknowledged that, under the plea agreement, the sentence
to be imposed would be “entirely within the Court’s discretion, and
it [was] up to 40 years in the [D]epartment of [C]orrections, and [he
would] not be allowed to withdraw [his] guilty plea if [he did not] like
3 or disagree[d] with the sentence the Court imposes.” But the
sentencing court did not discuss how much of his sentence Duran
would need to serve before becoming eligible for parole.
¶ 10 The court sentenced Duran to twelve years for vehicular
homicide, twenty-two years for extreme indifference first degree
assault, and seven years for attempted extreme indifference first
degree assault. The twelve- and twenty-two-year sentences were to
run concurrently with each other and consecutively to the
seven-year sentence, resulting in an aggregate sentence of
twenty-nine years in the custody of the Department of Corrections.
After imposing the sentence, the sentencing court noted, “[B]ecause
he’s [pleaded] to violent crime, [Duran] generally at this point in
time will serve about 75[%] of that sentence before he goes to
halfway houses and out on parole.” To be precise, Duran will need
to serve 75% of his twenty-two-year sentence, see
§ 17-22.5-403(2.5)(a), C.R.S. 2024, and 50% of his seven-year
sentence, see § 17-22.5-403(1) — for a total of twenty years, less
any earned time granted under section 17-22.5-405, C.R.S.
4 20241 — before becoming eligible for parole.2 See Owens v. Carlson,
2022 CO 33, ¶¶ 44-45 (for consecutive sentences, the time required
to become eligible for parole for each sentence is calculated
individually, and then those calculations are added together to
determine the final parole eligibility date).
¶ 11 Duran timely filed a Crim. P. 35(c) motion. He alleged that his
plea counsel had provided ineffective assistance by incorrectly
advising him that he would need to serve only 50% of his sentence
before becoming eligible for parole. He also argued that his
twenty-nine-year sentence was grossly disproportionate because his
conduct was more akin to vehicular homicide than first degree
assault.
1 Section 17-22.5-405(1)(a), C.R.S. 2024, allows a defendant to earn
up to ten days of “earned time” each month for demonstrating consistent progress in various areas, such as work and training, group living, participation in counseling sessions, and other positive behaviors. As a result, a defendant has the potential to reduce the time he must serve by up to 30% of the length of his sentence. § 17-22.5-405(4)(a). 2 Duran’s sentence for vehicular homicide does not affect his parole
eligibility because it runs concurrently with his longer extreme indifference first degree assault sentence. See Thiret v. Kautzky, 792 P.2d 801, 808 (Colo. 1990) (“[T]he ‘governing’ sentence is the longest sentence . . . , and the relevant parole provisions of that sentence apply to the entire ‘composite’ sentence.”).
5 ¶ 12 In a detailed order, the postconviction court denied the motion
without a hearing. In addressing the ineffective assistance claim,
the postconviction court found that, “even if the failure to advise as
to parole eligibility was ineffective, [Duran] ha[d] not shown that
there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to
trial.” The court reasoned that the case against Duran was
“exceptionally strong” and that, had he gone to trial, Duran would
have “faced a minimum sentence of [twenty] years in prison and a
maximum aggregate term of [sixty-four] years.” And the court noted
that Duran had accepted a plea agreement for a sentence of up to
forty years, which means that, even “under the mistaken
assumption that he would be eligible for parole after serving 50% of
his sentence, [Duran] was fully prepared to serve up to [twenty]
years” of his sentence before becoming eligible for parole.
¶ 13 Turning to Duran’s constitutional challenge to his sentence,
the postconviction court concluded that Duran’s sentence does not
give rise to an inference of gross disproportionality because Duran’s
actions were grave and serious, his conduct “fully support[ed] the
6 charge of [f]irst [d]egree [a]ssault,” and he “was not sentenced to
anywhere near the maximum” for his convictions.
II. Ineffective Assistance of Plea Counsel
¶ 14 Duran first contends that the postconviction court erred by
declining to hold a hearing on the claim that Duran’s plea counsel
provided ineffective assistance by misadvising him that he would be
eligible for parole after serving only 50% of his sentence.3 We agree
with the postconviction court that a hearing was not required
because the record refutes Duran’s conclusory assertion that he
was prejudiced by the alleged deficient performance.
A. Standard of Review and Governing Law
¶ 15 We review the summary denial of a Crim. P. 35(c) motion de
novo. People v. Luong, 2016 COA 13M, ¶ 7. A postconviction court
may deny a Crim. P. 35(c) motion without an evidentiary hearing if
the allegations are bare and conclusory; the allegations, even if
true, do not warrant relief; or the record directly refutes the
3 Duran also states that his plea counsel “advised him that the
court would likely impose a sentence at the lower end of the range.” But because he does not develop this argument, we decline to address it. See People v. Liggett, 2021 COA 51, ¶ 53 (appellate courts do not address undeveloped arguments), aff’d, 2023 CO 22.
7 allegations. People v. Joslin, 2018 COA 24, ¶ 4; see also Ardolino v.
People, 69 P.3d 73, 77 (Colo. 2003).
¶ 16 A criminal defendant has a constitutional right to the effective
assistance of counsel. People v. Rainey, 2023 CO 14, ¶ 1. To
prevail on an ineffective assistance of counsel claim, a defendant
must show that (1) counsel’s performance was deficient, meaning it
fell below an objective standard of reasonableness; and (2) counsel’s
deficient performance prejudiced the defense, meaning there is a
reasonable probability that, but for counsel’s deficient performance,
the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984). “Because a
defendant must show both deficient performance and prejudice, a
court may resolve the claim solely on the basis that the defendant
has failed in either regard.” People v. Karpierz, 165 P.3d 753, 759
(Colo. App. 2006).
¶ 17 In the context of a guilty plea, the prejudice prong requires the
defendant to “show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985); see People v. Corson, 2016 CO 33, ¶ 35; People v. Sifuentes,
8 2017 COA 48M, ¶ 20. “This is an objective inquiry.” Corson, ¶ 35.
“Some objective evidence must corroborate the defendant’s
testimony that he would have made a different decision about the
plea if he had been properly advised.” Sifuentes, ¶ 20. Ultimately,
the defendant “must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.”
Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
¶ 18 In determining whether a decision to reject the guilty plea
would have been rational, a court should consider the strength of
the prosecution’s case, the attractiveness of the plea deal, and the
risks of going to trial. Id. at ¶ 21; see Carmichael v. People,
206 P.3d 800, 806 (Colo. 2009) (recognizing that the comparative
sentencing exposure between standing trial and accepting a plea
offer may be important to the decision whether to plead guilty);
Corson, ¶ 35 (same).
B. Discussion
¶ 19 Even if we assume that Duran received incorrect advice
regarding his parole eligibility and that this constituted deficient
performance by plea counsel, Duran’s claim of prejudice — i.e., that
he would have gone to trial but for the incorrect advice — is
9 conclusory and refuted by the record. See Karpierz, 165 P.3d at
759.
¶ 20 Duran’s Crim. P. 35(c) motion contained only the following
conclusory allegation addressing prejudice: “[H]ad [Duran] been
properly advised on the issue of parole eligibility, he would have
exercised his constitutional right to trial.” See People v. Villanueva,
2016 COA 70, ¶ 68 (A “conclusory allegation is insufficient to
establish prejudice under Strickland.”); see also Carmichael,
206 P.3d at 807 (a defendant’s self-serving claim of prejudice is
insufficient without some objective, corroborating evidence). In the
motion, Duran did not allege that objective evidence would
corroborate his assertion that he would have made a different
decision about the plea had he been properly advised. See
Sifuentes, ¶ 20. Duran did not allege that the prosecution’s case
was weak or flawed, nor did he identify a meritorious defense to the
charges against him. See id. at ¶ 21. And Duran did not address
in the motion the benefits of the plea agreement compared to the
risks he would have faced had he gone to trial. See id.; Carmichael,
206 P.3d at 806; Corson, ¶ 35.
10 ¶ 21 Even on appeal, Duran does not address a rationale for
rejecting the plea agreement and risking a trial. Instead, he argues
that “a defendant is not required to ‘prove’ his allegations in his
postconviction motion” to be entitled to an evidentiary hearing.
While this is a correct statement of law, see White v. Denver Dist.
Ct., 766 P.2d 632, 635 (Colo. 1988), a postconviction court may
deny a motion without a hearing if “the files and record of the case
show to the satisfaction of the court that the defendant is not
entitled to relief,” Crim. P. 35(c)(3)(IV); see Joslin, ¶ 4. That is the
case here — the record clearly refutes Duran’s conclusory
allegation.
¶ 22 As the district court noted, the case against Duran was
“exceptionally strong.” See Sifuentes, ¶ 21. Video footage from the
bar showed Duran consuming eight shots and two beers. The
arrest affidavit and providency hearing revealed that, immediately
after Duran left the bar, numerous witnesses called 911 to report
his erratic driving and strange behavior — running multiple red
lights, driving over curbs, driving over a pedestrian bridge, nearly
sideswiping other cars, and public urination. A police officer
witnessed Duran speeding up a main thoroughfare in the wrong
11 direction toward him. After the officer swerved to avoid him, Duran
sideswiped one vehicle and collided head on with another.
Moreover, a blood test taken near the time of the accident
demonstrated that Duran’s blood alcohol content was 0.219. And
had he been convicted at trial, Duran would have faced a maximum
aggregate prison term of sixty-four years — twenty-four years longer
than the maximum under the plea agreement. See Carmichael,
206 P.3d at 806; Corson, ¶ 35. Under these circumstances, it
would not have been rational for Duran to reject the plea agreement
and insist on going to trial based solely on the difference in parole
eligibility, as Duran claims.
¶ 23 More importantly, the record demonstrates that Duran was
willing and prepared to accept a forty-year prison sentence. During
the plea hearing, the sentencing court specifically asked him
whether he was willing to accept the plea knowing that the court
could impose a sentence “up to [forty] years in the [D]epartment of
[C]orrections.” The court even warned him that “you will not be
allowed to withdraw your guilty plea if you don’t like or disagree
with the sentence the Court imposes.” Despite this, he accepted the
plea. This means that, even under the mistaken belief that he
12 would need to serve only half of his sentence, Duran was prepared
to spend twenty years in prison before becoming eligible for parole.
That is the same amount of time he is required to serve before
becoming parole eligible now. Accordingly, Duran’s
twenty-nine-year sentence with parole eligibility after twenty years
is less harsh than the forty-year sentence with parole eligibility after
twenty years that he was willing to accept.
¶ 24 The record therefore refutes the claim that Duran would have
insisted on going to trial but for his plea counsel’s parole advice.
See Hill, 474 U.S. at 59; Corson, ¶ 35. Consequently, Duran’s
allegation of prejudice is insufficient, and the postconviction court
did not err by denying his ineffective assistance of counsel claim
without a hearing.
III. Proportionality Review
¶ 25 Next, Duran contends that his twenty-two-year sentence for
extreme indifference first degree assault4 is disproportionately
4 Duran does not contend that his sentences for vehicular homicide
or attempted extreme indifference first degree assault are individually disproportionate. And to the extent Duran argues that his twenty-nine-year aggregate sentence is grossly disproportionate, “that aggregate imprisonment term is not subject to proportionality review.” Wells-Yates v. People, 2019 CO 90M, ¶ 74.
13 harsh when compared to his conduct. Specifically, he argues that
(1) his conduct resembles that of vehicular homicide more than
extreme indifference first degree assault, so we should consider
vehicular homicide the applicable offense for our proportionality
review; (2) vehicular homicide is not per se grave or serious, nor
was his underlying conduct; and (3) his twenty-two-year sentence is
unduly harsh, particularly given that he has no prior felony
convictions. We address and reject each contention in turn.
¶ 26 We review de novo whether a sentence raises an inference of
gross disproportionality. Wells-Yates, ¶ 35. If the analysis does not
require an inquiry into facts that are outside the appellate record,
as is the case here, we are as well positioned as the postconviction
court to conduct an abbreviated proportionality review. People v.
Loris, 2018 COA 101, ¶ 10. And we may affirm the postconviction
court’s order on any ground supported by the record, whether or
not the postconviction court relied on or considered that ground.
People v. Cooper, 2023 COA 113, ¶ 7.
¶ 27 The Eighth Amendment to the United States Constitution
prohibits the imposition of a sentence that is grossly
14 disproportionate to the severity of the crime committed. Solem v.
Helm, 463 U.S. 277, 284-85 (1983); Wells-Yates, ¶ 5. But it “does
not require strict proportionality between crime and sentence.”
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment) (citing Solem,
463 U.S. at 288, 303); see also Close v. People, 48 P.3d 528, 536
(Colo. 2002), abrogated on other grounds by Wells-Yates, ¶¶ 16-17.
Rather, it forbids only extreme sentences that are grossly
disproportionate to the crime. Close, 48 P.3d at 536.
¶ 28 Colorado courts conduct a two-step analysis when considering
a proportionality challenge. Wells-Yates, ¶ 10. In step one — an
abbreviated proportionality review — the court compares the gravity
and seriousness of the offense with the harshness of the penalty.
Id. at ¶¶ 7-14. In step two — an extended proportionality review —
the court compares the challenged sentence to sentences for other
crimes in the same jurisdiction and the same crime in other
jurisdictions. Id. at ¶¶ 15-17. The court should proceed to step two
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. Id. at ¶ 15.
15 ¶ 29 Ordinarily, “the determination of whether the crime is grave or
serious depends on the facts and circumstances underlying the
offense.” People v. Hargrove, 2013 COA 165, ¶ 12, abrogated on
other grounds by Wells-Yates, ¶¶ 16-17. The gravity or seriousness
of an offense can be determined by considering “the harm caused or
threatened to the victim or society,” as well as “the culpability of the
offender.” Wells-Yates, ¶ 12 (quoting Solem, 463 U.S. at 292);
People v. Session, 2020 COA 158, ¶ 33.
¶ 30 But some crimes are designated per se grave or serious for
purposes of a proportionality review. See Wells-Yates, ¶ 13. For
these crimes, the court may skip the fact-focused gravity or
seriousness analysis and proceed directly to considering the
harshness of the penalty. Id.; Session, ¶ 34.
¶ 31 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. “[I]n 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
16 sentencing schemes.” Id. at 526; see also Wells-Yates, ¶ 21. The
assessment of the harshness of the penalty includes consideration
of the sentence’s length and the defendant’s parole eligibility.
Wells-Yates, ¶ 14. Indeed, whether a defendant is parole eligible is
relevant to an abbreviated proportionality review because parole can
reduce the actual period of confinement and render the penalty less
harsh. Id.
B. Extreme Indifference First Degree Assault Is the Applicable Offense
¶ 32 As an initial matter, Duran argues that his “underlying
conduct” should be viewed as more consistent with vehicular
homicide rather than extreme indifference first degree assault.
Therefore, he contends that we should use vehicular homicide for
our proportionality analysis. But Duran is challenging the sentence
imposed on his conviction for extreme indifference first degree
assault, and his guilty plea was “an admission of all material
facts — including that he committed each of the elements of” that
offense. People v. Crawley, 2024 COA 49, ¶ 16. It makes no sense
to evaluate the harshness of the penalty for a particular offense by
treating that offense as something it is not. Consequently, extreme
17 indifference first degree assault is the applicable offense for our
analysis. See id.
C. Extreme Indifference First Degree Assault Is Per Se Grave or Serious
¶ 33 In an abbreviated proportionality review, we first assess the
gravity or seriousness of the offense, starting with the threshold
question of whether it is per se grave or serious. Before Wells-Yates
was announced, a division of this court held that first degree
assault is per se grave or serious. See People v. Gee, 2015 COA
151, ¶ 60. “But Wells-Yates called into question all pre-existing per
se designations” — including first degree assault — “apart from
those it identified as satisfying the new definition” of per se grave or
serious.” Crawley, ¶ 18. And no published appellate opinion has
addressed whether extreme indifference first degree assault is a per
se grave or serious offense under the standard announced in
Wells-Yates. We now consider the question and conclude that it is.
¶ 34 Wells-Yates held that “the designation of per se grave or
serious for purposes of a proportionality review must be reserved for
those rare crimes which, based on their statutory elements,
necessarily involve grave or serious conduct,” meaning a crime
18 should not be given the designation unless it is grave or serious in
every potential factual scenario. Wells-Yates, ¶ 63. As an example,
robbery is per se grave or serious because, in every potential factual scenario, a person convicted of robbery “knowingly took something of value from the person or presence of another by the use of force, threats or intimidation,” which always involves “knowing conduct and grave harm (or the threat of grave harm) to the victim or society (or both).” Put differently, robbery is per se grave or serious because the statutory elements ensure that there is no way to commit the crime in a manner that is not grave or serious.
Crawley, ¶ 20 (quoting Wells-Yates, ¶ 64); see Wells-Yates, ¶ 65
(holding aggravated robbery, burglary, accessory to first degree
murder, and the sale or distribution of narcotics satisfy the new
standard and remain per se grave or serious).
¶ 35 With this standard in mind, we now examine extreme
indifference first degree assault. A person commits extreme
indifference first degree assault when, “[u]nder circumstances
manifesting extreme indifference to the value of human life, he
knowingly engages in conduct which creates a grave risk of death to
another person, and thereby causes serious bodily injury to any
person.” § 18-3-202(1)(c). According to this definition, extreme
19 indifference first degree assault always involves knowing conduct
and grave harm — serious bodily injury. See Wells-Yates, ¶ 64; see
also Gee, ¶ 60 (“[B]y its nature, first degree assault involves violence
or the potential for violence . . . .”). Moreover, the knowing conduct
involves “circumstances manifesting extreme indifference to the
value of human life” and “creates a grave risk of death to another
person,” thereby risking harm to society at large. § 18-3-202(1)(c);
see Wells-Yates, ¶ 64. And the General Assembly has determined
that extreme indifference first degree assault is a per se crime of
violence and an extraordinary risk crime. § 18-3-202(2)(c);
§ 18-1.3-406(2)(a)(II)(C), C.R.S. 2024; see Crawley, ¶ 21 (considering
second degree murder’s classification as a crime of violence and
extraordinary risk crime in concluding it is per se grave or serious).
¶ 36 Thus, given the statutory elements of extreme indifference first
degree assault, “regardless of the facts and circumstances involved,
a defendant who stands convicted of [the] offense will have
committed a crime that is necessarily grave or serious.”
Wells-Yates, ¶ 65. Accordingly, extreme indifference first degree
assault satisfies the standard articulated in Wells-Yates and is per
se grave or serious.
20 ¶ 37 Because Duran committed a per se grave or serious offense,
we skip the gravity or seriousness analysis based on the specific
facts of this case and proceed directly to the harshness of the
penalty. See id. at ¶ 13.
D. The Penalty Is Not Disproportionately Harsh
¶ 38 Any review of the harshness of a penalty “is substantially
circumscribed because the legislature’s establishment of the
harshness of the penalty deserves great deference. Consequently, a
per se grave or serious designation ‘renders a sentence nearly
impervious to attack on proportionality grounds.’” Wells-Yates,
¶ 62 (citations omitted); see Deroulet, 48 P.3d at 523; Rutter v.
People, 2015 CO 71, ¶ 16 (“[I]n non-capital cases, courts will rarely
conclude that a defendant’s sentence is grossly disproportionate.”).
¶ 39 Duran’s twenty-two-year sentence was toward the middle of
the sentencing range for extreme indifference first degree assault.
See § 18-3-202(2)(b); § 18-1.3-401(1)(a)(V)(A.1), (10)(a), C.R.S. 2024;
§ 18-1.3-406(1)(a); Deroulet, 48 P.3d at 526. And Duran will be
eligible for parole after serving 75% of his sentence, see
§ 17-22.5-403(2.5)(a), potentially shortening the actual period of
confinement for that crime to about sixteen and a half years or even
21 less depending on any earned time granted under section
17-22.5-405. See Wells-Yates, ¶ 14.
¶ 40 Even so, Duran contends the sentence is too harsh because he
had no prior felony convictions. But while that is a factor we
consider, it does not outweigh the other circumstances, especially
given that Duran’s per se grave or serious crime resulted in the
death of the victim — a result more grave than serious bodily
injury. See People v. Myers, 45 P.3d 756, 757 (Colo. App. 2001)
(“[A] lengthy sentence may be justified even in the absence of a prior
criminal record when the offense is particularly egregious.”).
¶ 41 Duran’s sentence near the midpoint of the range set by the
General Assembly is not unduly harsh when compared to the
gravity and seriousness of extreme indifference first degree assault.
Because we find no inference of gross disproportionality, we agree
with the postconviction court that an extended proportionality
review is not warranted. See Wells-Yates, ¶ 8.
IV. Disposition
¶ 42 The order is affirmed.
JUDGE J. JONES and JUDGE BROWN concur.