v. Session, 2020 COA 158

Background

In June 2012 defendant Franky Lamont Session arrived at a hospital with gunshot wounds; a bag of cocaine fell from his clothing and police charged him with drug offenses.
In June 2014 a jury convicted Session of possession of more than four grams of a schedule II controlled substance (class 4/level 4 felony) and acquitted him on a distribution charge.
The trial court adjudicated Session a habitual criminal based on that conviction plus five prior felony convictions (three drug-related convictions and convictions for second-degree burglary and attempted second-degree burglary) and sentenced him to 24 years.
Session made multiple requests to substitute appointed counsel before trial; the trial court denied those requests and also had a judge (not a jury) adjudicate the habitual criminal counts.
The Colorado Court of Appeals originally affirmed; the Colorado Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Melton, Wells-Yates, and McRae.
On remand the Court of Appeals reaffirmed the conviction, rejected the substitution-of-counsel and jury-adjudication claims, but held that under Wells-Yates drug possession and (on reconsideration) second-degree burglary/attempted burglary are not per se grave and serious, so the habitual sentence must be vacated and the case remanded for a fact-specific proportionality review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial court denial of substitution of appointed counsel	Court properly exercised discretion; no constitutional violation	Session argued the court failed to adequately inquire and denied his Sixth Amendment right to counsel	Denial was not an abuse of discretion: motions were late, court had written motions/statements to evaluate complaints, and record showed no total breakdown in communication
Right to a jury trial for habitual adjudication	Prior-conviction exception permits judge to make the habitual findings	Session argued Alleyne and related rulings eliminate the prior-conviction exception and require a jury	Rejected; prior-conviction exception remains controlling for habitual-adjudication facts and judge adjudication did not violate the Sixth Amendment
Whether predicate offenses are per se "grave or serious" for abbreviated proportionality review	Court need not perform individualized review if any predicate is per se grave or serious	Session argued his triggering and predicate offenses are not per se grave or serious under Wells-Yates and thus require proportionality review	Held that none of Session's triggering or predicate offenses (drug possession, 2d-degree burglary, attempted 2d-degree burglary) are per se grave or serious under Wells-Yates; sentence vacated and remanded for abbreviated (and if warranted, extended) proportionality review

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (principle that facts increasing penalty beyond statutory maximum must be proven beyond a reasonable doubt; prior-conviction exception)
Blakely v. Washington, 542 U.S. 296 (Apprendi principles reaffirmed)
Alleyne v. United States, 570 U.S. 99 (clarified facts increasing mandatory minimum must be jury-found; did not eliminate Apprendi prior-conviction exception)
Solem v. Helm, 463 U.S. 277 (Eighth Amendment proportionality framework)
People v. Deroulet, 48 P.3d 520 (Colo. 2002) (prior Colorado precedent treating burglary as per se grave or serious)
Close v. People, 48 P.3d 528 (Colo. 2002) (prior Colorado precedent treating attempted burglary as per se grave or serious)
Wells-Yates v. People, 2019 CO 90M (announced standard that a crime is per se grave or serious only if it is grave or serious in every potential factual scenario)
People v. Gaskins, 825 P.2d 30 (Colo. 1992) (trial court uniquely suited to make factual proportionality determinations)
Lopez v. People, 113 P.3d 713 (Colo. 2005) (discussed the prior-conviction exception)
People v. Nunn, 148 P.3d 222 (Colo. App. 2006) (elements the prosecution must prove to establish habitual status)
People v. Huber, 139 P.3d 628 (Colo. 2006) (discussing Apprendi and prior-conviction exception)
People v. Bergerud, 223 P.3d 686 (Colo. 2010) (factors for evaluating substitution-of-counsel requests)
People v. Argaello, 772 P.2d 87 (Colo. 1989) (indigent defendant has right to counsel but not to a particular attorney)