People v. Kennedy
| Docket Number | 21CA1203 |
| Decision Date | 21 September 2023 |
| Citation | 2023 COA 83 M |
| Parties | The People of the State of Colorado, Plaintiff-Appellee, v. Kari Mobley Kennedy, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Crimes - Vehicular Homicide (DUI); Constitutional Law - Eighth Amendment - Cruel and Unusual Punishments - Proportionality Review - Per Se Grave or Serious Offenses
A division of the court of appeals considers whether vehicular homicide under section 18-3-106(1)(b)(I), C.R.S. 2023, is a per se grave or serious offense in light of Wells-Yates v. People, 2019 CO 90M, ¶ 63. The division concludes that, because the offense is not grave or serious in every potential factual scenario, it should not be considered a per se grave or serious offense for purposes of proportionality review. Id. In so doing, the division disagrees with another division of this court that reached the opposite conclusion, albeit before Wells-Yates. See People v. Strock, 252 P.3d 1148 1157-59 (Colo.App. 2010).
Larimer County District Court No. 18CR2412 Honorable Susan Blanco, Judge. AFFIRMED.
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado for Defendant-Appellant
OPINION is modified as follows:
Page 1, ¶ 2 currently reads:
Kennedy appeals the district court's denial of her Crim. P. 35(c)(2)(I) motion on the grounds that the twenty-nine-year sentence is grossly disproportionate and violates the Eighth Amendment.
Opinion now reads:
Kennedy appeals the district court's denial of her Crim. P. 35(c)(2)(I) motion on the grounds that the twenty-four-year sentence is grossly disproportionate and violates the Eighth Amendment.
Page 1, ¶ 3 currently reads:
On September 18, 2018, twenty-two-year-old B.S. drove with his mother and sister from Denver to Estes Park for a day trip.
Opinion now reads:
On September 18, 2018, twenty-two-year-old B.S. drove with his mother and his mother's friend from Denver to Estes Park for a day trip.
Page 2, ¶ 4 currently reads:
B.S.'s sister was also injured.
Opinion now reads:
The friend was also injured.
Page 8, ¶ 19 currently reads:
After concluding that it is not, we then analyze whether Kennedy's twenty-nine-year sentence gives rise to an inference of gross disproportionality, ultimately concluding that it does not.
Opinion now reads:
After concluding that it is not, we then analyze whether Kennedy's twenty-four-year sentence gives rise to an inference of gross disproportionality, ultimately concluding that it does not.
Page 13, ¶ 30 currently reads:
We now turn to the harshness of the penalty. The sentences are both within the ranges deemed appropriate by the General Assembly. And the aggregate sentence here is parole eligible, meaning that Kennedy will likely not serve the entirety of her sentence.
Opinion now reads:
We now turn to the harshness of the penalty. The sentence is within the range deemed appropriate by the General Assembly. And the sentence here is parole eligible, meaning that Kennedy will likely not serve the entirety of her sentence.
¶ 1 In 2019, defendant, Kari Mobley Kennedy, pleaded guilty to (1) vehicular homicide under section 18-3-106(1)(b)(I), C.R.S. 2023; and (2) vehicular assault under section 18-3-205(1)(b), C.R.S. 2023. She received a combined sentence of twenty-nine years in the custody of the Department of Corrections for vehicular homicide (twenty-four years) and vehicular assault (five years). Kennedy petitioned for review of her sentence under Crim. P. 35(c)(2)(I), which the district court denied in a written order.
¶ 2 Kennedy appeals the district court's denial of her Crim. P. 35 (c)(2) (I) motion on the grounds that the twenty-four-year sentence is grossly disproportionate and violates the Eighth Amendment. Although we agree with Kennedy that the court erred by designating vehicular homicide as a per se grave or serious offense, we nevertheless conclude that her sentence does not give rise to an inference of gross disproportionality. Accordingly, we affirm.
¶ 3 On September 18, 2018, twenty-two-year-old B.S. drove with his mother and his mother's friend from Denver to Estes Park for a day trip. B.S. offered to drive the car back to Denver that evening. The family was traveling safely on Highway 36 toward Lyons when the car in front of them suddenly veered off the road to avoid a car barreling down the wrong lane. B.S.'s car and the incoming car smashed into one another at a high rate of speed.
¶ 4 B.S. died at the scene. His mother, who had been sitting behind him, sustained severe injuries that left her partially paralyzed. The friend was also injured.
¶ 5 Kennedy, the other driver, was unharmed. Bystanders noticed that she was visibly intoxicated. Several vodka shooters were in her car, some open and empty, some closed. Kennedy was arrested, and approximately two hours after the crash, her blood alcohol content (BAC) registered as 0.282g/ 100ml - three and a half times the legal limit.
¶ 6 This was not Kennedy's first experience drinking and driving. Kennedy had three prior drinking and driving offenses. She had struggled with alcoholism and addiction for years; indeed, she claimed she was driving to Estes Park that evening to check into a rehab facility.
¶ 7 Kennedy pleaded guilty to vehicular homicide for killing B.S. and to vehicular assault for seriously injuring his mother. Although the standard sentencing ranges for these crimes are four to twelve years and two to six years, respectively, Kennedy pleaded guilty to an aggravated sentencing range. See § 18-1.3-40l(1)(a)(V)(A. 1), (6), C.R.S. 2023. This ratcheted the respective maximum sentences to twenty-four years and twelve years. See §18-1.3-401 (6). The aggravating factors were (1) Kennedy's extensive history of drinking and driving and (2) her degree of intoxication at the time of the accident. Id.
¶ 8 The prosecution sought twenty-two years for vehicular homicide and eleven years for vehicular assault, to be served consecutively. Kennedy asked for probation. After receiving statements from interested parties, the court conducted a sentencing hearing.
¶ 9 At the hearing's conclusion, the court imposed a twenty-four-year sentence for the vehicular homicide conviction. In so doing, it relied on Kennedy's three prior drinking and driving offenses and her failure to complete probationary sentences for those crimes. It also looked to the fact that, while released on bond for these charges, Kennedy repeatedly violated her bond conditions by drinking and abusing medication, which led the court to revoke it. Kennedy's history of driving while intoxicated and inability to stay sober, combined with her extreme BAC level at the time of this crash, informed the court's conclusion that it simply "did not feel safe with [Kennedy] in the community." Finally, it imposed a five-year sentence for vehicular assault to be served consecutively - thus bringing Kennedy's total sentence to twenty-nine years.
¶ 10 Pursuant to Crim. P. 35(c)(2)(I), Kennedy sought review of her sentence. She claimed that, because both crimes were strict liability offenses, neither should be considered per se grave or serious for purposes of proportionality review. She reasoned that the absence of mens rea prohibited the court from examining her culpability. She also claimed that, in this instance, she was not particularly culpable because her mental illnesses drove her alcohol abuse.
¶ 11 The court disagreed. It first concluded that vehicular homicide under section 18-3-106(1)(b)(I) is per se grave or serious because it results in the death of another. The court then observed that the penalty here is not excessively harsh given the aggravating circumstances and the ongoing threat Kennedy poses to the community. But it agreed that vehicular assault under section 18-3-205(1)(b) was not a per se grave or serious offense. Nevertheless, it concluded that the five-year sentence did not give rise to an inference of gross disproportionality because of the aggravating circumstances of the crime and Kennedy's ongoing threat to the community.
¶ 12 The Eighth Amendment's prohibition on cruel and unusual punishment proscribes sentences that are grossly disproportionate to the crime. Wells-Yates v. People, 2019 CO 90M, ¶¶ 5, 10. Review of the constitutional proportionality of a sentence involves a two-step process: an abbreviated proportionality review and, if needed, an extended proportionality review. Id. at ¶¶ 7, 10.
¶ 13 Upon request, a trial court must conduct an abbreviated proportionality review of a defendant's sentence. See Crim. P. 35(c)(2)(I); People v. Gee, 2015 COA 151, ¶ 57. An abbreviated proportionality review involves a comparison of two subparts: (1) the gravity or seriousness of the offense and (2) the harshness of the penalty. Wells-Yates, ¶¶ 11-14, 18. The purpose of this comparison is to determine whether it gives rise to an inference of gross disproportionality - in other words, that the sentence is grossly disproportionate to the gravity or seriousness of the crime. Id. at ¶ 7.
¶ 14 "[W]hether [a] crime is grave or serious depends on the facts and circumstances underlying the offense." People v. Hargrove, 2013 COA 165, ¶ 12, abrogated on other grounds by Wells-Yates, ¶¶ 16-17. The gravity or seriousness of an offense is determined by considering the "harm caused or threatened to the victim or society, and the culpability of the offender." Solem v. Helm, 463 U.S. 277, 292 (1983).
¶ 15 As for the harshness of the penalty, we may consider whether a sentence is parole eligible. W...
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