2021 COA 106
Colo. Ct. App.2021Background
- On October 12, 2017, Wright went to an apartment complex looking for a purported daughter, knocked on multiple doors, and forcibly entered Phillip Bloch’s unit.
- Upon entry Wright allegedly tried to grab Bloch by the throat, engaged in a physical struggle during which Bloch retrieved a firearm (which failed to fire), and Wright kicked Bloch’s two-year-old son; police later found a meth pipe on Wright.
- Wright was charged with (among other counts) second-degree burglary predicated on harassment under § 18-9-111(1)(a), harassment, child abuse, resisting/obstruction, and possession of paraphernalia; a jury convicted her on all counts.
- At sentencing the trial court adjudicated Wright a habitual offender based on multiple prior felonies and imposed a mandatory 48-year sentence for second-degree burglary; the court treated robbery, burglary, and POWPO as per se grave or serious in a cursory proportionality review.
- On appeal the court addressed (1) whether harassment § 18-9-111(1)(a) is necessarily a “crime against another person” and thus a valid predicate for second-degree burglary; (2) sufficiency of evidence of intent to commit harassment; (3) whether ex parte jury scheduling remarks violated Wright’s rights to counsel and presence; and (4) whether the habitual sentence survived constitutional proportionality review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether harassment under § 18-9-111(1)(a) is a “crime against another person” for burglary predicate | Harassment requires physical contact with another person and therefore is necessarily a crime against a person and may serve as a burglary predicate. | Harassment resides in the public-peace article and, per Poindexter, predicate status should be resolved case-by-case; harassment should not be categorized per se. | Harassment (subsection (1)(a)) necessarily involves physical contact and is a crime against another person as a matter of law; it may serve as a burglary predicate. |
| Sufficiency of evidence that Wright entered with intent to commit harassment (burglary element) | Evidence (Bloch’s testimony of being bum-rushed, throat-grabbing, ensuing struggle and injury to child) supports an inference of intent to commit harassment. | Wright intended only to search for her daughter and therefore lacked specific intent to commit harassment when entering. | Evidence was sufficient; jury reasonably could find Wright simultaneously intended to search and to commit harassment. |
| Whether judge’s ex parte scheduling communications with jury violated right to counsel / right to be present | Scheduling remarks were administrative, non-coercive, and did not create more-than-minimal risk to fairness; the court avoided commenting on guilt. | Judicial remarks (suggesting haste or commenting about sentencing) risked coercion and deprived Wright of presence and counsel at a critical stage. | No violation: the communications were scheduling in nature and posed only minimal risk; defendant’s presence/counsel not required under the circumstances. |
| Whether the habitual 48-year sentence was proportionate and whether POWPO and second-degree burglary are per se grave or serious | Trial court: robbery, second-degree burglary, and POWPO are per se grave/serious; combined with other predicates the sentence is not grossly disproportionate. | Wright: under Wells‑Yates standard POWPO and second-degree burglary are not per se grave/serious; the court failed to properly assess harshness and factual circumstances, requiring new review. | Robbery is per se grave/serious; second-degree burglary and POWPO are not per se grave/serious under Wells‑Yates. The trial court erred by treating them as per se and by not properly conducting the abbreviated proportionality review. Sentence vacated and remanded for renewed proportionality analysis. |
Key Cases Cited
- Solem v. Helm, 463 U.S. 277 (1983) (no penalty is per se constitutional)
- United States v. Cronic, 466 U.S. 648 (1984) (right to counsel analysis for critical stages)
- Kentucky v. Stincer, 482 U.S. 730 (1987) (defendant’s presence required when it substantially relates to ability to defend)
- Key v. People, 865 P.2d 822 (Colo. 1993) (ex parte jury communications may be a critical stage when risk to fairness exceeds minimal)
- Gaskins v. People, 825 P.2d 30 (Colo. 1992) (factors for assessing gravity/seriousness in proportionality review)
- Close v. People, 48 P.3d 528 (Colo. 2002) (discussion of per se grave/serious designations)
- Deroulet v. People, 48 P.3d 520 (Colo. 2002) (context on burglary as grave/serious)
- People v. Allen, 111 P.3d 518 (Colo. App. 2004) (prior division holding POWPO per se grave/serious; disagreed with here)
- Dash v. People, 104 P.3d 286 (Colo. App. 2004) (appellate deference to jury credibility determinations)
- Borghesi v. People, 66 P.3d 93 (Colo. 2003) (statutory placement in code titles does not control substantive meaning)