People v. Duran.
2025 COA 34. No. 23CA1134. Postconviction Remedies—Assault in the First Degree—Extreme Indifference—Eighth Amendment—Proportionality Review—Per Se Grave or Serious Offenses.
March 27, 2025
After Duran consumed a substantial amount of alcohol, he drove to pick up his daughter from daycare. Multiple bystanders called 911 and reported that Duran was running multiple red lights, nearly sideswiping cars, and hitting curbs. A responding police officer encountered Duran coming toward the officer’s car on the wrong side of the road at about 60 mph in a 40-mph zone. While the officer swerved out of Duran’s path, Duran sideswiped a car behind the officer’s car, then collided head-on with a second vehicle, pushing that into a third vehicle. The second car’s driver was killed in the crash. Duran pleaded guilty to vehicular homicide, extreme indifference first degree assault, and attempted extreme indifference first degree assault. The sentencing range under the plea agreement was 15 to 40 years in prison, but the agreement did not address how much of his sentence Duran would need to serve before he would be eligible for parole. Duran confirmed to the district court that he understood he was waiving his right to a jury trial and acknowledged that the sentence to be imposed would be within the court’s discretion. The court sentenced Duran to 12 years for vehicular homicide, 22 years for extreme indifference first degree assault, and seven years for attempted extreme indifference first degree assault. The 12- and 22-year sentences were to run concurrently with each other and consecutively to the seven-year sentence, resulting in an aggregate sentence of 29 years in Department of Corrections custody. The court noted that Duran would have to serve 75% of his 22-year sentence and 50% of his seven-year sentence, for a total of 20 years, less any earned time granted under CRS § 17-22.5-405, before becoming eligible for parole. Duran filed a Crim. P. 35(c) motion alleging that (1) his plea counsel provided ineffective assistance by incorrectly advising him that he would need to serve only 50% of his sentence before becoming eligible for parole and (2) his 29-year sentence was grossly disproportionate because his conduct was more similar to vehicular homicide than first degree assault. The postconviction court denied the motion without a hearing.
On appeal, Duran argued that the postconviction court erred by not holding a hearing on his claim that his plea counsel provided ineffective assistance by incorrectly advising him about his parole eligibility. However, Duran’s motion contained only a conclusory allegation regarding prejudice, and under the case circumstances, it would not have been rational for Duran to reject the plea agreement and insist on going to trial based solely on the difference in parole eligibility. Further, the record shows that Duran was willing and prepared to accept a 40-year prison sentence. Therefore, the postconviction court did not err by denying Duran’s ineffective assistance of counsel claim without a hearing.
Duran also contended that his 22-year sentence for extreme indifference first degree assault is disproportionately harsh when compared to his conduct because (1) his conduct was more like vehicular homicide than extreme indifference first degree assault, so vehicular homicide should be the applicable offense for the court of appeals’ proportionality review; (2) vehicular homicide is not per se grave or serious, nor was his underlying conduct; and (3) his 22-year sentence is unduly harsh given his lack of prior felony convictions. The court first concluded that because Duran challenged his sentence for extreme indifference first degree assault, and his guilty plea admitted all material facts, extreme indifference first degree assault is the applicable offense for analysis. The court then conducted an abbreviated proportionality review of the Duran’s sentence, addressing for the first time whether extreme indifference first degree assault in violation of CRS § 18-3-202(1)(c) is per se grave or serious under Wells-Yates v. People, 2019 CO 90M. The court concluded that such conduct is per se grave or serious, and because Duran committed a per se grave or serious offense, the court proceeded directly to the harshness of the penalty. The court determined that the Duran’s sentence does not give rise to an inference of gross proportionality because the 22-year sentence was toward the middle of the sentencing range for extreme indifference first degree assault, and Duran will be eligible for parole after serving 75% of his sentence. Further, Duran’s lack of prior felony convictions does not outweigh the other circumstances, notably that Duran’s per se grave or serious crime resulted in the victim’s death. Accordingly, there is no inference of gross disproportionality, and the postconviction court properly determined that an extended proportionality review was not warranted.
The order was affirmed.