v. Wright

2021 COA 106

• Court: Colorado Court of Appeals
• Decided: August 17, 2021
• Docket: 18CA1408, People
• Status: Published

Opinion

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 August 12, 2021

2021COA106

No. 18CA1408, People v. Wright — Crimes — Harassment — Second Degree Burglary

A division of the court of appeals concludes, as a matter of

first impression, that the crime of harassment, as described in

section 18-9-111(1)(a), C.R.S. 2020, is necessarily a “crime against

another person,” and can thus serve as a predicate offense for the

crime of burglary under section 18-4-203(1), C.R.S. 2020. In

addition, the division concludes that the crime of possession of a

weapon by a previous offender is not a per se grave and serious

crime for purposes of conducting a proportionality review,

disagreeing with People v. Allen, 111 P.3d 518 (Colo. App. 2004). COLORADO COURT OF APPEALS 2021COA106

Court of Appeals No. 18CA1408 El Paso County District Court No. 17CR5863 Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Thomas Jean Wright,

Defendant-Appellant.

JUDGMENT AFFIRMED, SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE TOW Furman and Gomez, JJ., concur

Announced August 12, 2021

Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Thomas Jean Wright, appeals her1

judgment of conviction entered on jury verdicts finding her guilty of

second degree burglary, child abuse, resisting arrest, obstruction of

a peace officer, harassment, and possession of drug paraphernalia.

This appeal requires that we address an apparent issue of first

impression: Is harassment under section 18-9-111(1)(a), C.R.S.

2020, a “crime against another person” that can serve as a

predicate offense for second degree burglary under section

18-4-203, C.R.S. 2020?2 Because the statutory elements of the

1 The record shows that the court, the prosecutor, the defense attorney, and the witnesses all used “Mister” and male pronouns when referencing Wright at trial. However, according to Wright’s appellate counsel, Wright is a transgender woman whose pronouns are she/her. We will thus refer to her accordingly. Although counsel also indicates that Wright now goes by a different name, we nevertheless use the name under which Wright was prosecuted, convicted, and sentenced, in order to avoid any confusion or errors in the judicial and prison records, as well as the statewide and nationwide criminal information databases. We mean no disrespect in doing so. 2 There are several subsections of section 18-9-111, C.R.S. 2020,

which describe different forms of the crime of harassment. See § 18-9-111(1)(a)-(h), C.R.S. 2020. This case, and particularly our analysis in Part II, involves only subsection (1)(a). Thus, when we refer to harassment, we mean only harassment under section 18-9- 111(1)(a). We express no opinion regarding whether any other type of harassment can serve as a predicate offense of second degree burglary.

1 offense necessarily constitute “a crime against another person,” we

decline to follow the fact-specific approach to resolving such

inquiries espoused in People v. Poindexter, 2013 COA 93. Instead,

we conclude, as a matter of law, that the offense can serve as a

predicate to second degree burglary.

¶2 Having so concluded, and because we also reject Wright’s

contention that the trial court’s ex parte communications with the

jury violated her constitutional rights to counsel and to be present,

we affirm her conviction.

¶3 Wright also challenges, on proportionality grounds, the

habitual criminal sentence imposed on her second degree burglary

conviction. Applying the standard announced in Wells-Yates v.

People, 2019 CO 90M, we conclude that possession of a weapon by

a previous offender (POWPO) is not a per se grave or serious crime

for purposes of a proportionality review. Because the trial court

incorrectly considered POWPO and second degree burglary to be per

se grave or serious crimes, we vacate Wright’s sentence and remand

for a new proportionality review.

I. Background

¶4 The jury heard the following evidence.

2 ¶5 On October 12, 2017, Wright went to an apartment complex in

Colorado Springs ostensibly to search for her daughter, apparently

under the belief that her daughter was being held in one of the

apartments and was possibly in danger.

¶6 Wright began banging on the door of one of the apartment

units and indicated that she was looking for “Alexis,” who she said

was her daughter and whom she believed to be inside the unit. The

resident of the unit eventually answered the door and told Wright

that her daughter was not there. After a lengthy exchange, the

resident closed the door without permitting Wright to enter.

¶7 Wright continued her search, banging on the doors of several

other nearby apartment units. Eventually, Wright knocked on the

door of the unit in which Phillip Bloch was residing with his son.

Before answering, Bloch asked who was at the door, to which

Wright responded that she was looking for someone named

“Jasmine.” Bloch opened the door. Wright continued to inquire

about “Jasmine,” and Bloch indicated that he did not know anyone

by that name. Bloch then shut the door.

¶8 After knocking on the doors of several other units, Wright

returned to Bloch’s unit and knocked again. Bloch opened the

3 door, warned Wright to leave the premises, and closed the door

again. before closing the door once again. Wright, however,

continued to knock on Bloch’s door. When Bloch opened the door

to warn Wright he was going to call the police, Wright rushed into

the unit and tried to grab Bloch by the throat.

¶9 A physical altercation ensued, during which Bloch retrieved a

firearm from his bedroom. Bloch pointed his firearm at Wright, who

was standing near the doorway, and demanded that she “move.”

Wright began pushing farther into the unit, again asking for

“Jasmine.” The altercation escalated: Bloch pushed Wright up

against a wall and aimed the firearm at her stomach while Wright

continued to grab Bloch by his throat. Bloch’s two-year-old son

approached the scuffle, and Wright, apparently in an effort to attack

Bloch, kicked Bloch’s son across the room. Bloch pulled the trigger

of his firearm three times, but it failed to fire. Bloch tossed the

firearm aside and pushed Wright out of the apartment. He then

called the police.

¶ 10 Police responded to the apartment complex and arrested

Wright after having to subdue her with physical force. The police

4 searched her person and discovered a pipe that later tested positive

for methamphetamine.

¶ 11 Wright was charged with possession of drug paraphernalia,

obstruction of a peace officer, resisting arrest, child abuse,

harassment, and second degree burglary (predicated on

harassment).3 She was also charged with five habitual offender

counts.

¶ 12 Following a two-day trial, a jury found Wright guilty on all

substantive counts.

¶ 13 At Wright’s sentencing hearing, the trial court adjudicated

Wright to be a habitual offender. After conducting an abbreviated

proportionality review, the court sentenced her to forty-eight years

in the custody of the Department of Corrections for her second

degree burglary conviction consistent with the habitual criminal

sentencing statute. The court merged Wright’s harassment

conviction into her second degree burglary conviction.4 It imposed

3 As charged, second degree burglary was a class 3 felony because Wright was alleged to have specifically burglarized a “dwelling.” § 18-4-203(2)(a), C.R.S. 2020. 4 The People do not separately appeal this decision. Thus, we

express no opinion as to whether such merger was required.

5 a concurrent ninety-day sentence for Wright’s child abuse, resisting

arrest, and obstruction of a peace officer convictions.5

II. Sufficiency of the Evidence

¶ 14 Wright contends that the crime of harassment, as charged

under section 18-9-111(1)(a), cannot serve as a predicate offense for

second degree burglary because it is not “a crime against another

person.” And even if it can, she contends, there was insufficient

evidence presented at trial to support her burglary conviction

predicated on harassment. Accordingly, she argues, her conviction

and sentence for burglary must be vacated. We disagree with both

contentions.

A. Harassment is Necessarily a “Crime Against Another Person”

¶ 15 We first address Wright’s contention that her burglary

conviction cannot be predicated on harassment.

¶ 16 As relevant here, “[a] person commits second degree burglary

. . . if the person knowingly breaks an entrance into, enters

unlawfully in, or remains unlawfully after a lawful or unlawful entry

5The crime of possession of drug paraphernalia is punishable only by a fine. § 18-18-428(2), C.R.S. 2020. At Wright’s sentencing, the court found her to be indigent and waived the fine.

6 in a building or occupied structure with intent to commit therein a

crime against another person or property.” § 18-4-203(1). Thus,

only those crimes “against another person or property” can serve as

a predicate offense for second degree burglary. Whether the crime

of harassment can be so classified presents a question of statutory

interpretation that we review de novo. See Poindexter, ¶ 6.6

¶ 17 The General Assembly has not defined the term “crime against

another person.” However, in Poindexter, a division of this court

ascribed to the term the following definitions:

1. “[a] category of criminal offenses in which the perpetrator

uses or threatens to use force”; or

2. “[a] crime against the body of another human being.”

Poindexter, ¶ 11 (quoting Black’s Law Dictionary 401, 1112 (8th ed.

2004)); see id. at ¶ 29 (applying those definitions). We agree with

the division in Poindexter that these definitions accord the term its

plain and ordinary meaning. See id. at ¶ 26. Thus, we apply these

definitions here to effectuate the legislature’s intent. See, e.g.,

6The People do not contend that harassment is a “crime against . . . property.” Thus, we address only whether it is a “crime against another person.”

7 McCoy v. People, 2019 CO 44, ¶ 37 (“[T]o ascertain and give effect to

the legislature’s intent . . . , we look first to the language of the

statute, giving its words and phrases their plain and ordinary

meanings.”).

¶ 18 Under section 18-9-111(1)(a), “[a] person commits harassment

if, with intent to harass, annoy, or alarm another person, he or she

. . . [s]trikes, shoves, kicks, or otherwise touches a person or

subjects him to physical contact.” Thus, to commit harassment,

one necessarily must subject another to some form of “physical

contact.” Unequivocally, then, the offense requires that one engage

in an act “against the body of another human being.” Accordingly,

we conclude, as a matter of law, that harassment is a “crime

against another person.”

¶ 19 Wright advances two arguments opposing such an

interpretation. Neither is persuasive.

¶ 20 First, Wright points out that the harassment statute is located

in article 9 of title 18 (entitled “Offenses Against Public Peace,

Order, and Decency”), not in article 3 (entitled “Offenses Against the

Person”). She suggests, therefore, that harassment is not a “crime

against another person,” but is instead an offense against “public

8 peace, order, and decency,” placing it outside the class of crimes

designated by the legislature as possible predicates to burglary. Yet

Wright also acknowledges that “the placement of criminal statutes

in particular articles does not necessarily reflect the legislature’s

intent.” Poindexter, ¶ 28. The titles of the specific articles and

parts in the statutory code “are generally left to the revisor of

statutes, who possesses no authority to make substantive statutory

changes.” People v. Borghesi, 66 P.3d 93, 102 (Colo. 2003). And

even if we were to assume that the statute’s organizational

placement reflects the will of the legislature, the plain language of

the statute — which unambiguously indicates that harassment is a

“crime against another person” — is controlling in our

interpretation.7 See McCoy, ¶ 37 (“[T]o ascertain and give effect to

the legislature’s intent . . . , we look first to the language of the

statute . . . .”).

¶ 21 Second, Wright argues, relying on Poindexter, that we ought to

avoid categorizing harassment as “a crime against another person”

7 Notably, the statute does not say “with the intent to commit an offense against the person as described in article 3 of title 18” or include any similar specific cross-reference.

9 as a matter of law and instead consider the particular factual

circumstances of her case.

¶ 22 In Poindexter, a division of this court considered whether

obstructing a peace officer under section 18-8-104(1)(a), C.R.S.

2020, was a “crime against another person” such that it could serve

as a predicate offense for second degree burglary. But the division

ultimately cautioned against any “sweeping attempt to categorize

offenses as a matter of law” and declined to do so. Poindexter, ¶ 26.

Instead, the division concluded that “the proper approach” to

determining whether an offense can serve as a predicate for

burglary “involves a case-by-case examination of the underlying

elements of the offense as charged and proved.” Id. In other words,

the court must consider the particular factual circumstances of

each case and whether the evidence established that the offender

intended to either act “against the body of another human being” or

“use[] or threaten[] to use force.” See id. at ¶¶ 11, 29 (quoting

Black’s Law Dictionary at 401, 1112).

¶ 23 Applying that case-specific approach, the division

acknowledged that the defendant, in unlawfully entering a building,

only had the intent to hide from police officers in pursuit of him,

10 not to engage with them physically. Id. at ¶¶ 29-30. Thus, while

the evidence indicated that the defendant had the intent to commit

obstruction of a peace officer, see § 18-8-104(1)(a), it did not show

that he had the intent to commit a “crime against another person.”

Poindexter, ¶¶ 29, 30, 34. “Under these circumstances,” the

division concluded, obstruction of a peace officer “could not be used

as a predicate offense for second degree burglary.” Id. at ¶ 34.

¶ 24 In reaching its conclusion, though, the division clarified that

“under a different set of facts, the crime of obstructing a peace

officer could be a crime against another person.” Id. at ¶ 31. Thus,

the division recognized that proving the elements of the offense

cannot be dispositive as to whether an offender committed a “crime

against another person.” Accordingly, as to the crime of obstructing

a peace officer, whether the commission of the offense constitutes a

“crime against another person” must necessarily be a fact-specific

inquiry.

¶ 25 We do not read Poindexter to suggest that such a fact-based

inquiry is necessary with all crimes. Indeed, the division noted that

crimes such as child abuse, pandering of a child, and resisting

arrest by physical force are “obviously” crimes against a person. Id.

11 at ¶ 27. In our view, harassment is also obviously a crime against a

person.

¶ 26 As noted above, because subjecting another to “physical

contact” is an essential element of harassment, there is no factual

scenario that can constitute harassment that would not also

constitute a “crime against another person.” And where there is no

question as to whether the commission of an offense would equate

to the commission of a “crime against another person,” we see no

reason to follow the case-specific approach employed in Poindexter.

Thus, we decline to do so. See People v. Smoots, 2013 COA 152,

¶ 21 (“[W]e are not bound by the decisions of other divisions of this

court.”), aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15.

¶ 27 Accordingly, we conclude, as a matter of law, that harassment

under section 18-9-111(1)(a) is a “crime against another person”

that can serve as a predicate offense for second degree burglary.

B. The Evidence Was Sufficient To Support Wright’s Burglary Conviction

¶ 28 Having so concluded, we now address, and reject, Wright’s

contention that the People failed to present sufficient evidence to

sustain her conviction for second degree burglary.

12 ¶ 29 When addressing a challenge to the sufficiency of the evidence,

“[w]e review the record de novo to determine whether the evidence

presented was sufficient in both quantity and quality to sustain a

defendant’s conviction.” McCoy, ¶ 63 (citing Clark v. People, 232

P.3d 1287, 1291 (Colo. 2010)). We assess whether the evidence,

when viewed in the light most favorable to the prosecution, “is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt.” Id. (quoting Clark, 232 P.3d at 1291).

¶ 30 Wright contends only that there was insufficient evidence to

establish that, at the time she entered Bloch’s apartment, she had

the specific intent to commit harassment. Instead, she contends,

the evidence showed that she simply intended to look for her

daughter. Wright’s argument, however, is premised on the flawed

assumption that she could not have simultaneously held both

intentions.

¶ 31 True, there was substantial evidence presented that Wright

was searching the apartment complex in an attempt to find her

13 daughter.8 But there was also evidence that when she ultimately

entered Bloch’s apartment, she did so with the intent to subject him

to physical contact. Indeed, Bloch testified that when he opened

his door to tell Wright to leave, she immediately “bum rushed” him

and tried to grab him by his throat — which a reasonable jury could

infer involved forcibly shoving him and/or striking him on her way

into his apartment. He further testified that immediately after

Wright had forcibly entered his apartment, a lengthy physical

altercation ensued.

¶ 32 Though Wright argued to the jury that Bloch’s testimony was

not credible, she does not argue that his testimony was incredible

as a matter of law. See People v. Dash, 104 P.3d 286, 289 (Colo.

App. 2004) (“[T]he fact finder, not an appellate court, determines

the credibility of witnesses, and only when testimony is ‘so palpably

incredible and so totally unbelievable’ may we reject it as a matter

of law.” (quoting Kogan v. People, 756 P.2d 945, 950 (Colo. 1988)).

And when viewed in the light most favorable to the prosecution, we

8 Of course, there was evidence that could lead a jury to reject that contention as well, including that Wright told one person she was looking for “Alexis” and told Bloch she was looking for “Jasmine.”

14 conclude that Bloch’s testimony was sufficient to support a

conclusion by a reasonable mind that Wright entered the apartment

with an intent to commit harassment. See § 18-9-111(1)(a); see

also Dash, 104 P.3d at 289; People v. Chase, 2013 COA 27, ¶ 50 (“If

there is evidence upon which one may reasonably infer an element

of the crime, the evidence is sufficient to sustain that element.”).

That Wright may have also harbored an intention to search for her

daughter is of no import. Accordingly, we reject Wright’s sufficiency

challenge. See McCoy, ¶ 63.

III. The Trial Court’s Ex Parte Communications with the Jury

¶ 33 Next, Wright argues that the trial court violated her

constitutional right to counsel and right to be present by holding an

impromptu scheduling conference with the jury outside the

presence of Wright and her defense counsel. We disagree.

A. Additional Facts

¶ 34 The jury began its deliberations on March 2, 2018 — a Friday

— at around 2:00 p.m. At 4:51 p.m., without either Wright or her

15 defense counsel present,9 the trial court released the jurors for the

weekend and instructed them on how they should conduct

themselves:

Members of the jury, it’s five minutes till 5:00. And so I’m going to go ahead and release you for the weekend. I want to thank you for the hard work you put into deliberations so far. What I’ll order that you do is leave your notes and your notebook and anything related to this case in the jury deliberation room. Nobody is going to go in there looking through it. It will be safe and sound.

I want you to just take a break from the case. Just take a break from the case. Remember that admonition, no independent research, not talking to anybody. You may be tempted after a couple of hours after deliberation, oh, I just need a little bit of information, and hit the Internet. Don’t do it. Don’t do it. I think it will be helpful for you all to have a whole weekend off and then hit the ground running on Monday at — let’s do 8:30. All right. And we’re thinking along the line on a Monday morning, so you want to be in line by 8:15 to get up here by 8:30. Okay. And keep in mind that as people start arriving on Monday morning, you can’t talk about the case until the 12th person walks into the room. And

9 The People point out that the original transcript of the March 2, 2018, proceedings indicated that Wright’s defense counsel was present when the court excused the jury. However, in response to Wright’s motion to settle the record, the trial court confirmed that the reference to Wright’s defense counsel was a clerical error and that neither Wright nor her defense counsel was present.

16 once that 12th person walks in, then you can resume the deliberations where you left off. Okay.

¶ 35 Following this instruction, one of the jurors asked several

questions about what would happen the following week:

The Juror: We don’t see you tomorrow. We just go straight in that room, and as soon as everyone arrives, we continue?

....

The Court: On Monday.

The Juror: Sorry, did I say tomorrow?

The Court: We’re not going to be here tomorrow. So Monday, you’ll just go right back, you won’t see any of the parties or me, you’ll just get going with your deliberation.

The Juror: Okay. So can we have the further process once we are done with deliberations. What happens?

The Court: I can’t tell you other than once you reach a verdict we’ll certainly announce the verdict.

The Juror: Do we tell her?

The Court: Yes. As soon as you reach a verdict, you’ll buzz for [court employees]. They will come back and presumably you would tell her you have a verdict, and then we’ll call the parties in and take care of the case.

17 The Juror: Do you do sentencing the same day or is that a different day?

The Court: Sentencing doesn’t play any role in this phase of things and so just follow that instruction. Doesn’t have to do anything with the case. So but with that, I need to let you go. Okay. Have a good weekend, and we’ll see you Monday.

The Juror: Have a good weekend.

The Court: Thank you. You too.

B. Right to Counsel

¶ 36 Both the United States and Colorado Constitutions guarantee

a defendant the right to counsel “at every critical stage of a criminal

proceeding.” Key v. People, 865 P.2d 822, 825 (Colo. 1994) (first

citing U.S. Const. amend. VI; then citing Colo. Const. art. II, § 16;

then citing United States v. Cronic, 466 U.S. 648, 659 (1984); and

then citing People v. Roybal, 618 P.2d 1121, 1126 (Colo. 1980)).

“We review whether a defendant has been denied representation at

a critical stage of the proceedings de novo.” People v. Guzman-

Rincon, 2015 COA 166M, ¶ 15.

¶ 37 “Stages of criminal proceedings have been held to be ‘critical’

where there exists more than a ‘minimal risk’ that the absence of

the defendant’s counsel might impair the defendant’s right to a fair

18 trial.” Key, 865 P.2d at 825 (first citing Gilbert v. California, 388

U.S. 263, 267 (1967); and then citing Sandoval v. People, 172 Colo.

383, 389, 473 P.2d 722, 725 (1970)). As it pertains to ex parte

communications,

[n]ot every communication between the judge and jury constitutes a critical stage of the trial. However, an impromptu conference with the jury during its deliberations may constitute a critical stage of the proceedings even where the discussions are purportedly confined to “scheduling” matters, because the content of such ex parte communications and the context in which they occur may create more than a “minimal risk” that counsel’s absence would impair the defendant’s right to a fair trial.

Id.

¶ 38 Wright argues that two specific communications between the

trial court and the jury created such a risk, and thus the ex parte

conference constituted a critical stage of her criminal proceedings.

However, in our view, neither created a level of risk sufficient to

implicate her constitutional right to counsel.

¶ 39 First, Wright directs us to the court’s remark that “I think it

will be helpful for you all to have a whole weekend off and then hit

the ground running on Monday.” She contends that the jury may

have understood the statement as a criticism of the amount of time

19 the jury was taking to deliberate. Thus, she suggests, the

statement may have had a coercive impact on the jury.

¶ 40 Yet the court’s statement was a far cry from the type of

“scheduling pressures” that Colorado courts have found to create a

risk of coercion on the jury’s deliberative process. Indeed, generally

only those scheduling discussions that allude to a deadline for

deliberations are considered coercive. See id. at 825-26 (deciding

that a scheduling conference implicated a defendant’s right to

counsel where two jurors’ comments — which indicated a

substantial incentive to reach a verdict that afternoon — were

analogous to a “time-fuse” instruction); People v. Urrutia, 893 P.2d

1338, 1343 (Colo. App. 1994) (“Discussing scheduling problems

with the jury may . . . be coercive if those scheduling problems

create an impression that the jury is under a short time limit to

reach a verdict.”); see also Martin v. People, 2014 CO 68, ¶ 25

(recognizing where a trial court failed to provide a mistrial

advisement that “discussing scheduling pressures with the jury

may be coercive if those discussions effectively impose a deadline

for the jury to end its deliberations with a verdict or have a mistrial

declared”). Here, the trial court’s statement, in our view, was not

20 suggestive of any deadline for deliberations. On the contrary, the

trial court’s decision to give the jurors two days off indicated, if

anything, a lack of urgency. Thus, we reject Wright’s argument that

the statement carried a risk of coercion sufficient to implicate her

constitutional right to counsel.

¶ 41 Second, Wright directs us to the exchange concerning

sentencing procedures. She construes the juror’s question as to

when sentencing occurs as an implication that the jury intended to

find Wright guilty. And the court’s visible response, she argues,

may have suggested an affirmation of that finding. But the court

was careful to avoid answering the question. In its brief response,

it merely cautioned that “[s]entencing doesn’t play any role in this

phase of things” and “[d]oesn’t have to do anything with the case.”

Thus, while the record does not reveal the court’s visible response,

it nonetheless shows that the court was dismissive of the question

and sought to avoid any response that would suggest an opinion as

to Wright’s guilt or innocence. Moreover, to the extent Wright

suggests that the exchange could be construed as a scheduling

discussion, neither the juror’s question nor the court’s response

alluded to the length of deliberations such that they carried a risk

21 of coercing the jury. See Key, 865 P.2d at 825. Accordingly, under

the circumstances, we conclude that any risk created by the

exchange was minimal at best.

¶ 42 In sum, we reject Wright’s contention that the court’s ex parte

conference carried the “more than . . . ‘minimal risk’” necessary to

constitute a critical stage of her prosecution. Id. Thus, we discern

no violation of her constitutional right to counsel in holding the

conference without defense counsel present. See id.

C. Right to be Present

¶ 43 Nor do we discern a violation of Wright’s right to be present.

¶ 44 The United States and Colorado Constitutions guarantee a

criminal defendant the right to be present “whenever [her] presence

has a relation, reasonably substantial, to the fullness of [her]

opportunity to defend against the charge.” Zoll v. People, 2018 CO

70, ¶ 20 (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)).

“In other words, the defendant’s presence is only required ‘to the

extent that a fair and just hearing would be thwarted by [her]

absence.’” Id. (quoting Stincer, 482 U.S. at 745). “Consequently,

the right to be present is not constitutionally guaranteed when the

defendant’s presence would be useless or when the benefit of the

22 defendant’s presence would be ‘but a shadow.’” Id. (quoting Stincer,

482 U.S. at 745). “Whether a trial court violated a defendant’s right

to be present is a constitutional question that is reviewed de novo.”

Id. at ¶ 15 (quoting Guzman-Rincon, ¶ 29).

¶ 45 We first note that, in her briefs, Wright appears to conflate the

right to counsel and the right to be present. She cites inapposite

authorities addressing only the right to counsel to support her

distinct claim that her right to be present was violated. And it

appears, at times, that her arguments concerning her right to

counsel are also intended to apply to her right to be present. But to

the extent she argues that the two specific communications

addressed in Part III.B also implicated her constitutional right to be

present, we disagree. For the reasons expressed above, neither

casts any doubt on the fairness of the proceedings, nor required

Wright’s presence to ensure that “a fair and just hearing [was not]

thwarted by [her] absence.” Id. (quoting Stincer, 482 U.S. at 745).

¶ 46 Otherwise, Wright appears only to assert, in conclusory

fashion, that she ought to have “the right to know the jurors’

questions and concerns expressed in open court” and “be able to

observe and assess the jurors’ questions and the court’s

23 instructions.” But Wright ignores that the constitution only

guarantees her presence where “a fair and just hearing would be

thwarted by [her] absence.’” Id. (quoting Stincer, 482 U.S. at 745).

She advances no specific argument as to why her presence, as

distinguished from that of her counsel, was necessary to ensure the

fairness of the proceeding. Nor does our own review of the record

indicate that the communications between the court and the jury so

required her presence.

¶ 47 Accordingly, we reject Wright’s contention that the ex parte

conference violated her constitutional right to be present.

IV. Proportionality of Wright’s Sentence

¶ 48 Finally, Wright argues that her forty-eight-year sentence for

second degree burglary raised an inference of gross

disproportionality, and thus the trial court erred by failing to

conduct an extended proportionality review. Because we conclude

that the trial court’s abbreviated review was flawed, we remand for

the court to reconsider the proportionality of Wright’s sentence.

¶ 49 At Wright’s sentencing hearing, the trial court found that the

People had presented sufficient evidence to support a finding that

24 Wright had previously been convicted of the following felonies:

robbery, POWPO, first degree trespass, criminal impersonation, and

aggravated motor vehicle theft. Thus, the trial court adjudicated

Wright a habitual offender. Accordingly, it was required by section

18-1.3-801, C.R.S. 2020 — the habitual criminal sentencing statute

— to impose a forty-eight-year sentence for Wright’s burglary

conviction. See § 18-1.3-801(2)(a)(I)(A); § 18-1.3-401(1)(a)(V)(A),

C.R.S. 2020; § 18-4-203(1), (2)(a).

¶ 50 Wright requested that the trial court conduct a review of the

mandatory forty-eight-year sentence to determine if it was

unconstitutionally disproportionate. In an abbreviated

proportionality review, the court determined that second degree

burglary, robbery, and POWPO were per se grave or serious crimes.

However, it found that Wright’s other crimes — trespass,

impersonation, and aggravated motor vehicle theft — were not grave

or serious. Ultimately, though, the court concluded that the

sentence was not unconstitutionally disproportionate. The court

reasoned that while three of Wright’s predicate offenses were not

grave or serious, when considered in combination with Wright’s

three offenses that were per se grave or serious, the sentence did

25 not raise an inference of gross disproportionality. Accordingly, it

found that an extended proportionality review was not warranted

and imposed the forty-eight-year sentence.

B. Standard of Review and Applicable Law

¶ 51 The Eighth Amendment to the United States Constitution and

article II, section 20 of the Colorado Constitution both prohibit the

imposition of a sentence grossly disproportionate to the severity of a

defendant’s crime. See Wells-Yates, ¶¶ 5, 10. Whether a sentence

is grossly disproportionate is a question of law that we review de

novo. Id. at ¶ 35.

1. Proportionality Review in General

¶ 52 The determination of whether a sentence is unconstitutionally

disproportionate entails a two-step analysis. See Wells-Yates, ¶ 10.

¶ 53 First, the court conducts an “abbreviated proportionality

review,” in which the court considers “the gravity or seriousness of

the offense and the harshness of the penalty.” Id. at ¶ 11.

¶ 54 “[T]he determination regarding the gravity or seriousness of

the offense is ‘somewhat imprecise . . . .’” Id. at ¶ 12 (quoting

People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992), abrogated on other

grounds by Wells-Yates, ¶¶ 26-27). Generally, however, it “requires

26 a consideration of the harm caused or threatened to the victim or

society and the culpability of the offender.” People v. Session, 2020

COA 158, ¶ 33; accord Wells-Yates, ¶ 12. Thus, the court should

consider

the absolute magnitude of the crime, whether the crime is a lesser included offense or the greater inclusive offense, whether the crime involves a completed act or an attempt to commit an act, and whether the defendant was a principal or an accessory after the fact in the criminal episode.

Session, ¶ 33 (citing Wells-Yates, ¶ 12). “As it relates to the

defendant’s culpability, motive is relevant, as is whether the

defendant’s acts were negligent, reckless, knowing, intentional, or

malicious.” Id. (citing Wells-Yates, ¶ 12).

¶ 55 Our supreme court has recognized, however, that some crimes

may be considered per se grave or serious for proportionality

purposes. Wells-Yates, ¶ 13 (first citing Close v. People, 48 P.3d

528, 538 (Colo. 2002), abrogated on other grounds by Wells-Yates,

¶¶ 16-17, 26-27; then citing People v. Deroulet, 48 P.3d 520, 524

(Colo. 2002), abrogated on other grounds by Wells-Yates, ¶¶ 16-17,

26-27; and then citing Gaskins, 825 P.2d at 37). A crime is per se

grave or serious if, “based on [its] statutory elements, [it] necessarily

27 involve[s] grave or serious conduct.” Id. at ¶ 63; see also Session, ¶

35 (recognizing that this is the “new standard by which courts

determine whether an offense is per se grave or serious”). “Put

differently, a crime should not be designated per se grave or serious

unless the court concludes that the crime would be grave or serious

in every potential factual scenario.” Wells-Yates, ¶ 63. If a crime is

considered per se grave or serious, “a trial court may skip the first

subpart of step one — the determination regarding the gravity or

seriousness of the crime[] — and ‘proceed directly to the second

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

the penalty.” Id. at ¶ 13 (quoting Close, 48 P.3d at 538).

¶ 56 As to the harshness of the penalty, which is weighed against

the gravity of the offense, the court must consider the length of the

sentence as well as parole eligibility. Id. at ¶ 14.

¶ 57 Second, if the abbreviated proportionality review gives rise to

an inference of gross disproportionality, then the court conducts an

extended proportionality review, which compares the sentence at

issue to sentences for other crimes in the same jurisdiction and

sentences for the same crime in other jurisdictions. Id. at ¶¶ 15-17.

2. Proportionality Review of a Habitual Criminal Sentence

28 ¶ 58 Section 18-1.3-801, which governs habitual criminal

punishment in Colorado, “‘create[s] a unique possibility’ that a

defendant will receive a sentence that ‘is not proportionate to the

crime for which [she] has been convicted.’” Wells-Yates, ¶ 20

(quoting Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990)).

¶ 59 As pertinent here, when a defendant is convicted of a felony (a

triggering offense), she may be adjudicated a habitual criminal if

she “has been three times previously convicted . . . of a felony”

based on charges separately brought and tried that arose out of

separate and distinct criminal episodes (predicate offenses).

§ 18-1.3-801(2)(a)(I). A defendant adjudicated a habitual criminal

based on three or more predicate offenses must be punished for the

triggering offense “by imprisonment in the department of

corrections for a term of four times the maximum of the

presumptive range . . . for the class or level of felony” of the

triggering offense. § 18-1.3-801(2)(a)(I)(A).

¶ 60 “The concern” as to the potential disproportionality of a

habitual criminal sentence “lies in the ‘formulaic and formalistic

nature’ of the habitual criminal statute.” Wells-Yates, ¶ 20 (quoting

Deroulet, 48 P.3d at 526). Still, “in habitual criminal cases, as in

29 other cases raising Eighth Amendment challenges, an abbreviated

proportionality review will almost always yield a finding that the

sentence is not unconstitutionally disproportionate.” Id. at ¶ 21.

¶ 61 During 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 offense

and the predicate offenses; and (2) the harshness of the sentence

imposed on the triggering offense.” Id. at ¶ 23. “The court must

scrutinize the triggering offense and the predicate offenses and

determine whether in combination they are so lacking in gravity or

seriousness so as to suggest that the sentence is unconstitutionally

disproportionate to the crime, taking into account the defendant’s

eligibility for parole.” Id. The supreme court clarified, however, that

“when the triggering offenses and/or the predicate offenses

supporting a habitual criminal sentence include grave or serious

crimes . . . , it would be improper for a court to skip the second

subpart of an abbreviated proportionality review and neglect to

consider the harshness of the penalty . . . .” Id. at ¶ 27. If an

inference exists that the sentence is disproportionate, “an extended

30 proportionality review must be undertaken. If not, the sentence is

proportionate.” Session, ¶ 38 (citing Wells-Yates, ¶ 76).

C. Analysis

¶ 62 Wright argues that the trial court erred by (1) finding that

robbery, second degree burglary, and POWPO are per se grave or

serious crimes and (2) misapplying the law by not assessing the

harshness of Wright’s penalty in its review. Thus, she argues, the

court engaged in a flawed proportionality analysis, and she urges

us to set aside its decision and make a finding that her sentence

raises an inference of gross disproportionality. We agree that the

court erred in finding that the crimes of second degree burglary and

POWPO are per se grave or serious. We also agree that the court’s

analysis did not follow the analytical framework set forth in Wells-

Yates. We, of course, recognize that the court did not have the

benefit of the Wells-Yates decision at the time it sentenced Wright.

Nevertheless, Wright is entitled to the benefit of both the new

standard for determining whether a crime is to be considered per se

grave or serious and the clarification of the analytical framework

that must be followed. See Session, ¶¶ 50-51; People v. Tran, 2020

COA 99, ¶ 103.

31 ¶ 63 However, as further discussed below, we decline Wright’s

invitation to find an inference of gross disproportionality. Instead,

we remand for the trial court to conduct a new proportionality

review.

1. Per Se Grave or Serious Designations Do Not Violate United States Supreme Court Precedent

¶ 64 As an initial matter, Wright contends that the designation of a

crime as per se grave or serious violates the principle announced in

Solem v. Helm, 463 U.S. 277, 290 (1983), that “no penalty is per se

constitutional.” We are not persuaded.

¶ 65 Wright overlooks that finding an offense grave or serious —

either per se or in light of the particular factual circumstances of

the offense committed — does not end a court’s inquiry into the

proportionality of a sentence. See Wells-Yates, ¶ 10. A court must

still consider the harshness of the penalty before it can conclude

that a sentence does not raise an inference of gross

disproportionality and affirm its constitutionality. See id. And the

same is true of habitual criminal sentences. See id. at ¶ 23.

Indeed, as noted above, the court in Wells-Yates made clear that

even when the triggering offenses and/or the predicate offenses

32 supporting a habitual criminal sentence include grave or serious

crimes, a court must consider the harshness of the penalty. Id. at

¶ 27. The court explicitly cautioned that a sentencing court could

not conclude that, in such circumstances, “there can be no

inference of gross disproportionality.” Id. Thus, a per se grave or

serious designation does not, as Wright suggests, effectively render

an accompanying sentence constitutional. And in any event, we are

bound to follow our supreme court’s decision in Wells-Yates, in

which the court reiterated that per se designations may be

appropriate for certain offenses. See id. at ¶¶ 13, 63.

2. Second Degree Burglary and POWPO Are Not Per Se Grave or Serious Crimes

¶ 66 Having rejected Wright’s challenge to Colorado’s per se

designation scheme, we next consider the propriety of the trial

court’s designations of Wright’s robbery, second degree burglary,

and POWPO convictions as per se grave or serious. We address

each in turn.

a. Robbery

¶ 67 As to robbery, our supreme court has consistently recognized

that the offense is per se grave or serious. See Gaskins, 825 P.2d at

33 37; Close, 48 P.3d at 538; Wells-Yates, ¶ 64. This is because “[n]o

matter what facts and circumstances may be involved, if a

defendant is convicted of robbery, it necessarily means that he

knowingly took something of value from the person or presence of

another by the use of force, threats, or intimidation.” Wells-Yates,

¶ 64 (citing § 18-4-301(1), C.R.S. 2020). “Thus, robbery, by its very

nature, involves knowing conduct and grave harm (or the threat of

grave harm) to the victim or society (or both).” Id. In other words, it

meets the standard for per se grave or serious crimes articulated in

Wells-Yates. See id. at ¶ 63.

¶ 68 Wright does not contend that robbery falls short of the

Wells-Yates standard; she only reiterates her claim that it is

unlawful to designate any offense per se grave or serious under

Solem. Having rejected that argument, and in light of our supreme

court precedent, we discern no error in the trial court’s conclusion

that Wright’s prior robbery conviction was per se grave or serious.

b. Second Degree Burglary

¶ 69 However, we cannot say the same of the court’s designation of

second degree burglary as per se grave or serious.

34 ¶ 70 In Wells-Yates, our supreme court acknowledged that it had

previously held burglary to be a per se grave or serious crime.

Wells-Yates, ¶¶ 13, 65; see also Deroulet, 48 P.3d at 524 (noting

that burglary is inherently “‘grave or serious’ for purposes of

proportionality review”). But it called into question “whether the

designation of burglary as a per se grave or serious crime extends to

. . . second degree burglary” under the new standard it announced.

Wells-Yates, ¶ 65 n.17.10 Because the issue was not before the

court, however, the court declined to resolve it. Id.

¶ 71 In the wake of Wells-Yates, though, a division of this court

concluded that second degree burglary is not a per se grave or

serious crime under Wells-Yates’s newly announced standard.

Session, ¶ 46. The division, offering two specific examples,

reasoned that the commission of second degree burglary may not be

grave or serious in every factual permutation. See id. at ¶¶ 46, 48

(“Neither of these versions of second degree burglary are likely to be

grave or serious”: (1) entering an unoccupied garage and stealing a

bicycle and (2) entering an abandoned building to steal copper

10The burglary conviction in People v. Deroulet, 48 P.3d 520, 522 (Colo. 2002), was for first degree burglary.

35 wiring.). Accordingly, the division concluded that the offense failed

to meet the Wells-Yates standard. Id. at ¶ 49; see Wells-Yates, ¶ 63.

¶ 72 We agree with the division’s reasoning in Session and see no

reason to depart from its holding. Applying that holding here, we

conclude that the trial court erred by finding Wright’s second degree

burglary conviction per se grave or serious. Rather, the court was

required to examine the underlying factual circumstances of

Wright’s crime to determine its gravity or seriousness. See Session,

¶ 36 (citing Wells-Yates, ¶¶ 37-39). But it did not do so.

c. POWPO

¶ 73 Nor do we agree with the trial court’s conclusion that Wright’s

POWPO conviction is per se grave or serious.

¶ 74 “[D]esignating a crime per se grave or serious has significant

consequences and courts should therefore do so cautiously.” Wells-

Yates, ¶ 62. This is because such a designation may “render[] a

sentence nearly impervious to attack on proportionality grounds” in

light of the “great deference” afforded to “the legislature’s

establishment of the harshness of the penalty.” Id. (quoting Close,

48 P.3d at 538). “This concern is magnified in the habitual criminal

36 context, where every sentence under review has been imposed

without the trial court’s exercise of discretion.” Id.

¶ 75 With those guiding principles in mind, we address, as a matter

of first impression, whether POWPO meets the standard announced

in Wells-Yates.

¶ 76 A person commits POWPO if

the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901(3)(h)[, C.R.S. 2020,] or any other weapon that is subject to the provisions of this article subsequent to the person’s conviction for a felony, or subsequent to the person’s conviction for attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law.

§ 18-12-108(1), C.R.S. 2020.

¶ 77 Thus, to commit POWPO, a convicted felon need only

knowingly possess a weapon; the offender need not actually use the

weapon or even intend to do so. And the mere possession — or in

some cases even the use — of a weapon may not always be grave or

serious, even where the person with the weapon has a prior felony

conviction. Take, for example, a person who was previously

convicted of embezzlement of public property — a nonviolent felony.

See § 18-8-407, C.R.S. 2020. By simply going elk hunting, that

37 person has committed POWPO. Such conduct, in our view, does

not present a sufficient level of harm or threat of harm such that it

could be considered inherently grave or serious. See Wells-Yates,

¶ 12.

¶ 78 To be sure, some, if not most, factual permutations of POWPO

may indeed be considered grave or serious. See id. But, as shown

above, the commission of the crime may not “be grave or serious in

every potential factual scenario.” Id. at ¶ 63. Thus, POWPO is not

one of “those rare crimes which, based on their statutory elements,

necessarily involve grave or serous conduct.” Id. Accordingly, we

conclude that POWPO does not meet the standard from Wells-Yates,

and thus the trial court’s designation of the crime as per se grave or

serious was erroneous.11

11 Neither party cited People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004), a case that predated Wells-Yates v. People, 2019 CO 90M, in which a division of this court concluded that POWPO is a per se grave or serious crime. However, in light of Wells-Yates’s newly announced standard for designating crimes per se grave or serious, we disagree with Allen and decline to follow it. See People v. Smoots, 2013 COA 152, ¶ 21 (“[W]e are not bound by the decisions of other divisions of this court.”), aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15.

38 ¶ 79 Consequently, like Wright’s second degree burglary conviction,

the court was required to consider the particular factual

circumstances of her POWPO conviction. See Session, ¶ 36 (citing

Wells-Yates, ¶¶ 37-39). It failed to do so.

¶ 80 In sum, then, the court erred in its proportionality review by

(1) designating Wright’s second degree burglary and POWPO

convictions per se grave or serious and, consequently, (2) failing to

consider the particular factual circumstances of those convictions.

Thus, a new proportionality review must be conducted to determine

whether Wright’s sentence is unconstitutionally disproportionate.

See id. at ¶ 51. Wright requests that we do so now — she urges us

to engage in our own abbreviated proportionality review and find

that her sentence raises an inference of gross disproportionality.

¶ 81 However, whether Wright’s second degree burglary and

POWPO convictions are grave or serious “will entail an analysis of

the facts and circumstances surrounding [those] offense[s].” Wells-

Yates, ¶ 75. And “the trial court is ‘uniquely suited’ to make these

factual determinations.” Id. (quoting Gaskins, 825 P.2d at 35).

This is particularly true where the appellate record may not be

complete with respect to the details of one or more of the predicate

39 offenses. Thus, while it may be proper in some circumstances for

us to conduct an abbreviated proportionality review on appeal, see

Session, ¶ 51 (suggesting as much), we decline to do so here.

Instead, we vacate Wright’s sentence and remand to the trial court

to conduct a new abbreviated proportionality review and, if

necessary, an extended proportionality review. See Wells-Yates,

¶ 75; Session, ¶ 51.

3. The Court Must Consider the Harshness of Wright’s Penalty

¶ 82 Not having the benefit of Wells-Yates, which was announced

several months after the trial court sentenced Wright, the court may

have committed another error in its proportionality review.

¶ 83 After finding robbery and second degree burglary to be per se

grave or serious crimes, the trial court stated,

My understanding of grave or serious crimes is if they fall into that category, I don’t even look past what the conviction is for to see what the actual facts were. The fact that that conviction exists means there’s not going to be a disproportionate sentence.

¶ 84 The trial court was correct in observing that there is no need

to consider the specific factual circumstances of a crime to

determine its gravity or seriousness where the crime is per se grave

40 or serious. See Wells-Yates, ¶ 13. But its suggestion that a

sentence imposed on a per se grave or serious crime will always be

constitutionally proportionate is at odds with Solem’s

admonishment that “no penalty is per se constitutional.” 463 U.S.

at 290. And the court’s apparent belief that it need not also

consider the harshness of the penalty in an abbreviated

proportionality review is inconsistent with the supreme court’s

guidance in Wells-Yates. See Wells-Yates, ¶¶ 26-27.

¶ 85 Moreover, after finding POWPO to be a per se grave or serious

crime, the court noted, “I don’t need to look beyond that fact to

determine whether an extended, proportionality review is merited.”

Again, the court improperly suggested that a finding that a crime is

per se grave or serious ended its abbreviated proportionality

inquiry. See id.

¶ 86 The People point out, however, that the court nonetheless

appeared to consider the length of Wright’s sentence and her

eligibility for parole — factors pertinent to an analysis of the

harshness of her penalty. See id. at ¶ 14; Session, ¶ 37. Having

already vacated Wright’s sentence, we need not determine whether

the court properly weighed the harshness of Wright’s penalty

41 despite its insistence that it need not do so. However, because the

issue will arise again on remand, we reiterate that “even when the

triggering offenses and/or the predicate offenses supporting a

habitual criminal sentence include grave or serious crimes” —

either per se grave or serious crimes or those crimes where the

underlying conduct is found to have been grave or serious — “it

would be improper for a court to skip the second subpart of an

abbreviated proportionality review and neglect to consider the

harshness of the penalty or to conclude that when the

circumstances described are present there can be no inference of

gross disproportionality.” Wells-Yates, ¶ 27.

V. Conclusion

¶ 87 The judgment of conviction is affirmed, the forty-eight-year

sentence for second degree burglary is vacated, and the case is

remanded for a new proportionality review consistent with this

opinion. In conducting its abbreviated proportionality review on

remand, the trial court is specifically instructed to (1) consider the

factual circumstances underlying Wright’s second degree burglary

and POWPO convictions to determine the gravity or seriousness of

those crimes and (2) consider the harshness of Wright’s

42 forty-eight-year sentence in light of the gravity or seriousness — or

lack thereof — of Wright’s triggering and predicate offenses.

JUDGE FURMAN and JUDGE GOMEZ concur.