People v. Belinda May Wells-Yates

     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

                               

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                                         

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,

 

, 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. 

 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, 

, ¶ 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, 

. 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, 

 (1910)). That inquiry is

  not static but must take into account “the evolving standards of

  decency that mark the progress of a maturing society.” 

 at ¶ 46

  (quoting Graham v. Florida, 

 (2010)). “The standard

  itself remains the same, but its applicability must change as the

  basic mores of society change.” Graham, 

 (quoting

  Kennedy v. Louisiana, 

 (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, 

 (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, 

, ¶¶ 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, 

 (Colo. 1994),

  abrogated on other grounds by Melton v. People, 

.

            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, 

 (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. 

. 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.” 

; see also People v. Linares-Guzman, 

 (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, 

 (Colo. 2005);

  Blakely v. Washington, 

 (2004). That

  limitation applies to “any fact that increases the penalty for a crime

  beyond the prescribed statutory maximum.” Apprendi v. New

  Jersey, 

 (2000); see also Lopez, 

.

  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, 

 (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, 

 (1983),] identified in

  evaluating the severity of the crimes in question.” 

.

¶ 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. 

 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.” 

                                    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.

  

¶ 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. 

¶ 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, 

 (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,

  

 (7th Cir. 2014) (noting reliability concerns with

  police reports); United States v. Johnson, 

 (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, 

 (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, 

 (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
  

. We therefore decline to follow this passing statement
  in Austin. See Chavez v. Chavez, 

 (“[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, 

). This inquiry is “somewhat imprecise.” 

 (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. 

 In addition,

  “nonviolent crimes are less serious than crimes marked by violence

  or the threat of violence.” Solem, 

.

¶ 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, 

.

¶ 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, 

.

¶ 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, 

 (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, 

. 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, 

, ¶ 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, 

. 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, 

 (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,

  

 (holding that second degree burglary is not a

  per se grave or serious offense); People v. Wright, 

 (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, 

 (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, 

. Instead, the seriousness of that recidivism must take

  into account the seriousness of the predicate offenses. 

 Because

  Wells-Yates’s predicate offenses were not especially grave or serious,

  the repeat nature of the triggering offense weighs less heavily. 

               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,

  

 (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, 

 (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, 

  (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, 

 (“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, 

).

¶ 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, 

 (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.




                                    38