People v. Session

• Decision Date: 12 November 2020
• Docket Number: Court of Appeals No. 14CA2083
• Citation: 480 P.3d 747
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Franky Lamont SESSION, Defendant-Appellant.
• Court: Colorado Court of Appeals

480 P.3d 747

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Franky Lamont SESSION, Defendant-Appellant.

Court of Appeals No. 14CA2083

Colorado Court of Appeals, Division II.

Announced November 12, 2020

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WELLING

¶ 1 Defendant, Franky Lamont Session, was convicted of possession of more than four grams of a schedule II controlled substance and sentenced to twenty-four years in prison after the trial court adjudicated him a habitual offender.

¶ 2 On September 14, 2017, we issued our original opinion in this case and affirmed both the judgment of conviction and sentence. See People v. Session , slip op. at ¶ 38, 2017 WL 4081839 (Colo. App. No. 14CA2083, Sept. 14, 2017) (not published pursuant to C.A.R. 35(e) ). In that opinion, we concluded that the trial court didn't err by imposing a habitual sentence without undertaking a proportionality review. Our conclusion in this regard rested on the premise that even assuming Session's four drug possession convictions — which were his triggering offense and three of his predicate offenses — aren't per se grave and serious, because two of his predicate convictions — second degree burglary and attempted second degree burglary — were per se grave and serious, a proportionality review wasn't required. Id. at ¶¶ 4–17.

¶ 3 On February 10, 2020, the supreme court granted Session's petition for writ of certiorari, vacated our judgment, and remanded the case to us for reconsideration in light of Melton v. People , 2019 CO 89, 451 P.3d 415, Wells-Yates v. People , 2019 CO 90M, 454 P.3d 191, and People v. McRae , 2019 CO 91, 451 P.3d 835. See Session v. People, 2020 WL 622916 (Colo. No. 17SC749, Feb. 10, 2020) (unpublished order). In Wells-Yates the supreme court made explicit what we had assumed — that drug offenses such as Session's three predicate offenses and his triggering offense are no longer per se grave and serious. In addition to that, the supreme court reopened the issue of whether, under its newly articulated standard for determining whether an offense is per se grave and serious, second degree burglary or attempted burglary is per se grave and serious.

¶ 4 On reconsideration, we affirm Session's judgment of conviction for the same reasons we did before. We conclude, however, that, under the standard articulated in Wells-Yates , second degree burglary and attempted burglary are no longer per se grave and serious crimes. We further conclude that, because none of Session's predicate offenses — or his triggering offense — are per se grave and serious, a proportionality review is required before a habitual sentence can be imposed. And because of the fact-specific nature of that review, we vacate Session's sentence and remand the case to the trial court for further proceedings.

I. Background

¶ 5 In June 2012, Session appeared at the Saint Joseph Hospital emergency room with gunshot wounds. When hospital personnel cut away Session's clothing to assess his injuries, a sandwich bag containing cocaine fell from his underwear. Police later arrived and took possession of the bag.

¶ 6 In July 2012, Session was charged with possession of a controlled substance with intent to distribute (a class 3 felony) and possession of more than four grams of a schedule II controlled substance (a class 4 felony). The prosecution later amended the charges to include five habitual criminal counts.

¶ 7 The case went to trial in June 2014. The jury acquitted Session of the possession with intent to distribute charge, but convicted him of the class 4 felony of possession of more than four grams of a schedule II controlled substance. The trial court adjudicated Session a habitual criminal based on the possession conviction and five previous felony convictions. The trial court denied Session's request for an extended proportionality review of his sentence. Session was sentenced to twenty-four years in the custody of the Department of Corrections.

II. Analysis

¶ 8 Session raises three issues on appeal. First, he contends that his Sixth Amendment right to counsel was violated because the trial court denied his request to substitute appointed counsel without adequate inquiry. Second, he contends that his Sixth Amendment right to a jury trial was violated because a judge, rather than a jury, adjudicated the habitual criminal counts. Third, he contends that the trial court erred by imposing a habitual sentence without conducting a proportionality review. We address each contention, in turn, below.¹

A. Substitution of Appointed Counsel

¶ 9 Session contends that the trial court violated his Sixth Amendment right to counsel because it denied his request to substitute appointed counsel without conducting an adequate inquiry. We disagree.

1. Additional Factual Background

¶ 10 Session made three requests to substitute counsel.² He first moved for substitution of counsel during a pretrial conference on November 21, 2013. At a hearing without the prosecutor present, Session alleged that his counsel had: refused to investigate and subpoena information and witnesses, failed to provide mitigating evidence to the prosecution, and failed to adequately communicate. Defense counsel told the court that the evidence at issue had been provided to the prosecution, although it had not affected the plea offer. He also assured the court that he had an investigator spending "quite a bit" of time on the cases. The trial court found that there was no conflict, and that Session's disagreements with counsel related to strategic decisions. The trial court denied Session's motion to substitute counsel. Session declined to proceed pro se.

¶ 11 Twelve days before trial, on June 12, 2014, Session again alleged a conflict with his counsel based on particular evidentiary details of the case and requested to proceed pro se. Session prepared motions, and the court accepted them, informing Session that it would review the information and hold a hearing if necessary. The trial court made no further findings on the issue.

¶ 12 The morning of trial, Session informed the trial court that he wanted to proceed pro se or have substitute counsel appointed.³ Session provided the court with more pleadings, including witness subpoenas. Session voiced concerns about whether his counsel had investigated certain witnesses and issues. Defense counsel assured the court he had investigated the issues and was prepared for trial. The trial court denied Session's request, observing that the disagreement related to trial strategy, it represented a continuation of the disagreement previously heard, a fourth continuance of trial wasn't feasible, and the request appeared to be a delay tactic.

2. Legal Principles

¶ 13 We review a trial court's decision to deny substitute counsel for an abuse of discretion. People v. Weeks , 2015 COA 77, ¶ 101, 369 P.3d 699.

¶ 14 An indigent criminal defendant has a constitutional right to counsel, but he or she doesn't have the right to demand a particular attorney. People v. Arguello , 772 P.2d 87, 92 (Colo. 1989) ; see U.S. Const. amends. VI, XIV ; Colo. Const. art. II, § 16. Thus, a court isn't required to substitute counsel unless a defendant establishes "good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." Arguello , 772 P.2d at 94 (citation omitted).

¶ 15 To determine whether a district court erred by denying a defendant's request for substitution of counsel, we consider four factors: (1) the timeliness of the defendant's motion; (2) the adequacy of the court's inquiry; (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication or otherwise prevented an adequate defense; and (4) whether the defendant substantially and unreasonably contributed to the conflict with his attorney. People v. Bergerud , 223 P.3d 686, 695 (Colo. 2010).

3. Discussion

¶ 16 Our review of the four factors described in Bergerud reveals adequate support for the trial court's denial of Session's motion for substitution of counsel. Although better practice may have been for the court to conduct further inquiry into each of Session's separate complaints and to make additional findings in support of its decision, we conclude the court didn't abuse its discretion.

¶ 17 First, Session's second and third motions were late. In his second request, Session asked the court to appoint a new attorney just twelve days before trial in a serious felony case. Session's third request was made the same day as his trial was set to begin. To accommodate either request, the court would have had to continue the trial for a fourth time. Although the interest in judicial efficiency doesn't override a defendant's right to counsel, it is a relevant consideration in determining whether to allow substitution of counsel. See Arguello , 772 P.2d at 94.

¶ 18 Second, under the circumstances, the court wasn't required to conduct further inquiry into Session's second and third requests. Generally, upon receiving a motion to substitute counsel, a court must conduct a hearing or inquire into the reasons for the defendant's request. See Bergerud , 223 P.3d at 694. But when a defendant's written motion describes his complaints in sufficient detail, the court need not inquire further. See id. ; see also People v. Arko , 159 P.3d 713, 719 (Colo. App. 2006), rev'd on other grounds , 183 P.3d 555 (Colo. 2008). Here, the trial court was able to evaluate the nature of Session's dispute with his counsel on the basis of Session's written motions and Session's statements during the November 21, 2013, hearing.

¶ 19 Third, with respect to whether the...