People v. Allen, 02CA1061.

• Decision Date: 07 October 2004
• Docket Number: No. 02CA1061.,02CA1061.
• Citation: 111 P.3d 518
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn Dewitt ALLEN, Defendant-Appellant.
• Court: Colorado Court of Appeals

111 P.3d 518

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn Dewitt ALLEN, Defendant-Appellant.

No. 02CA1061.

Colorado Court of Appeals, Div. II.

October 7, 2004.

Certiorari Denied May 16, 2005.

Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Cynthia M. Mardian, Denver, Colorado, for Defendant-Appellant.

NIETO, J.

Defendant, Shawn Dewitt Allen, appeals the habitual criminal sentence imposed upon his conviction for robbery. We affirm.

The evidence at trial proved that defendant and an accomplice attacked the victim, stole his car keys, and refused to return the keys until the victim paid them twenty dollars. Defendant was convicted of robbery and theft.

In the second phase of the trial, the court adjudicated defendant a habitual criminal based on the following prior convictions: unlawful possession of a firearm by a convicted felon, attempted possession of a controlled substance, eluding a pursuing police vehicle, and robbery. Pursuant to § 18-1.3-801(2), C.R.S.2003, the trial court sentenced defendant to twenty-four years in the custody of the Department of Corrections—four times the maximum presumptive range sentence for the class four offense of robbery under § 18-1.3-401(1)(a)(V)(A), C.R.S.2003. After conducting an abbreviated proportionality review, the trial court made a finding that defendant's sentence was not disproportionate. Defendant then filed this appeal.

Defendant contends that the trial court erred by finding that the convictions underlying the habitual offender charges were grave and serious offenses. We disagree.

A defendant sentenced under the habitual criminal statute is entitled to an abbreviated proportionality review of his or her sentence even if the sentence under review is less than a life term. People v. Deroulet, 48 P.3d 520, 527 (Colo.2002).

"[A]n abbreviated proportionality review consists of a comparison of two sub-parts, the gravity of the offense and the harshness of the penalty, to discern whether an inference of gross disproportionality is raised." People v. Deroulet, supra, 48 P.3d at 527.

In almost every case, "the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate, thereby preserving the primacy of the General Assembly in crafting sentencing schemes." People v. Deroulet, supra, 48 P.3d at 526. Only if an inference of gross disproportionality is raised must the "abbreviated" proportionality review be followed by an "extended" proportionality review. People v. Deroulet, supra, 48 P.3d at 524-27 (in an extended proportionality review, the court must compare the sentences imposed on other criminals who commit the same crime in the same jurisdiction and compare the sentences imposed for commission of the same crime in other jurisdictions).

Where the triggering crime in a habitual criminal case is grave and serious, generally only an abbreviated proportionality review is required, and only rarely will the prior felony crimes supporting the habitual criminal case be so lacking in inherent gravity that an extended proportionality review will be required. Close v. People, 48 P.3d 528 (Colo.2002). We are not persuaded by defendant's claim that the supreme court's decision in Close v. People, supra,

is contrary to the United States Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Moreover, we are bound by the decisions of the Colorado Supreme Court.

Certain Colorado crimes have been determined to be grave and serious for purposes of proportionality review. Here, defendant's triggering robbery conviction and his prior convictions for robbery and attempted possession of a controlled substance are all convictions for grave and serious offenses. People v. Deroulet, supra, 48 P.3d at 524 (certain crimes, such as robbery and "narcotic-related crimes," are per se grave and serious for purposes of proportionality review).

Insofar as defendant argues that the crimes determined to be grave and serious in People v. Deroulet, supra,

and Close v. People, supra, are an exclusive list, we reject that argument, and we consider whether defendant's other prior offenses are grave and serious.

We conclude defendant's out-of-state conviction for eluding a pursuing police vehicle and defendant's federal conviction for possession of a gun by a convicted felon are also grave and serious offenses. When the court determines whether an offense is grave or serious, it considers "the harm caused or threatened to the victim or to society and the culpability of the offender." People v. Deroulet, supra, 48 P.3d at 524.

In Colorado, vehicular eluding is a class five felony, and the General Assembly has determined that the offense poses great risks to the public and can be...