People v. Kadell
2017 COA 124
| Colo. Ct. App. | 2017Background
- Roger Jay Kadell was convicted by jury of six counts of robbery and one count of aggravated motor vehicle theft (class 4 felonies); at sentencing the trial court adjudicated him a "big habitual" criminal based on three prior felonies (1997 attempted cultivation of marijuana; 2005 theft-by-receiving; 2006 aggravated motor vehicle theft) and imposed 24 years (four times the presumptive maximum).
- Kadell challenged (on appeal) the sufficiency of the evidence that his 1997 attempted cultivation conviction qualified as a predicate felony for habitual sentencing because Colorado law changed: by 2011 cultivation was a felony only if it involved more than six plants; six or fewer plants made the offense a misdemeanor.
- The habitual-criminal statute (§ 18-1.3-801(3)) provides that no drug-law conviction counts as a prior felony "unless such prior offense would be a felony if committed in this state at the time of the commission of the new offense." The People did not introduce evidence at the habitual phase proving the 1997 conviction involved more than six plants.
- The trial court counted the 1997 conviction as a predicate felony without resolving whether subsection (3) applied to prior Colorado convictions or whether the 1997 conviction would have been a felony in 2011.
- The Court of Appeals held that subsection (3) applies to Colorado convictions and the prosecution bore the burden to prove the prior drug conviction remained a felony under Colorado law at the time of the new offense; because the People failed to prove the number of plants, the 1997 conviction could not be counted and the habitual adjudication/sentence was reversed and remanded for resentencing and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18-1.3-801(3) applies only to out-of-state drug convictions or also to prior Colorado drug convictions | Subsection (3) applies only to out-of-state convictions; nothing required proof that a Colorado conviction remain a felony | Subsection (3) applies broadly to any "drug law conviction"; therefore prior Colorado drug convictions count only if they would be felonies in Colorado when the new offense was committed | Held: Subsection (3) applies to Colorado convictions; the prior drug conviction counts only if it would be a felony in Colorado at time of the new offense |
| Whether the People met their burden to prove the 1997 cultivation conviction remained a felony in 2011 (i.e., involved >6 plants) | The statute allows counting when the prior offense could be a felony under Colorado law; the People argued the 1997 conviction was under a felony statute and thus qualified | Kadell argued People had to prove the specific factual predicate (number of plants) and failed to do so at sentencing | Held: People failed to prove the 1997 conviction involved >6 plants; insufficient evidence to count that conviction as a predicate felony |
| Standard of appellate review for this unpreserved statutory-sufficiency claim | People urged plain-error review (trial objection not raised on this statutory interpretation) | Kadell argued sufficiency claim can be raised for first time on appeal and reviewed de novo | The majority assumed plain-error review but reversed on that ground; concurrence argued plain-error is the correct and controlling standard and would affirm because error not "obvious" |
| Whether remand should permit the People to prove the 1997 conviction qualified (or whether sentencing should be reduced now) | People contended trial court ruling should stand or that remand should allow proving the factual predicate | Kadell asked for resentencing as if he only had two priors | Held: Remand for resentencing and proceedings to allow the People to prove whether the 1997 conviction would have been a felony in 2011 (no double jeopardy bar to such proof) |
Key Cases Cited
- People v. Dist. Court, 711 P.2d 666 (Colo. 1985) (describing purpose of Habitual Criminal Act to punish recidivists)
- Wiedemer v. People, 852 P.2d 424 (Colo. 1993) (excusable neglect factors for collateral attacks on prior convictions)
- Close v. People, 180 P.3d 1015 (Colo. 2008) (factors to evaluate excusable neglect in collateral attacks)
- Bernal v. People, 44 P.3d 184 (Colo. 2002) (de novo review of Confrontation Clause errors; discussion of preserved/unpreserved error frameworks)
- Solem v. Helm, 463 U.S. 277 (U.S. 1983) (Eighth Amendment proportionality review)
- Robinson v. Shell Oil Co., 519 U.S. 337 (U.S. 1997) (statutory interpretation; give words their ordinary meaning)
- Johnson v. United States, 520 U.S. 461 (U.S. 1997) (plain-error review applies even to structural-error claims)
- Monge v. California, 524 U.S. 721 (U.S. 1998) (double jeopardy does not bar retrial/resentencing on prior-conviction allegations in noncapital cases)