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People v. Kennedy.

2023 COA 83. No. 21CA1203. Vehicular Homicide (DUI)—Eighth Amendment—Cruel and Unusual Punishment—Proportionality Review—Per Se Grave or Serious Offenses.

September 21, 2023

Kennedy pleaded guilty to vehicular homicide under CRS § 18-3-106(1)(b)(I) and vehicular assault under CRS § 18-3-205(1)(b). The standard sentencing ranges for these crimes are 4 to 12 years and 2 to 6 years, respectively, but Kennedy pleaded guilty to an aggravated sentencing range based on her extensive history of drinking and driving and her extreme degree of intoxication at the time of the accident. She received a combined sentence of 29 years in the custody of the Department of Corrections for vehicular homicide (24 years) and vehicular assault (5 years). Kennedy petitioned for review of her sentence under Crim. P. 35(c)(2)(I), which the district court denied.

On appeal, Kennedy argued that the district court erred in denying her Crim. P. 35(c)(2)(I) motion on grounds that the 29-year sentence is grossly disproportionate and violates the Eighth Amendment. The court of appeals first concluded that vehicular homicide is not a per se grave or serious offense because the offense is not grave or serious in every potential factual scenario, so it should not be considered a per se grave or serious offense for purposes of proportionality review. Accordingly, the district court erred in concluding that vehicular homicide under CRS § 18-3-106(1)(b)(I) is a per se grave or serious offense. However, Kennedy’s vehicular homicide offense was grave or serious, given that her BAC level was three and a half times the legal limit; she killed a young man and left his mother permanently paralyzed; and there was ample evidence that she would continue to pose a threat to society. Further, Kennedy’s sentences are within the ranges deemed appropriate by the General Assembly, and the aggregate sentence is parole-eligible, so the penalty is not unconstitutionally harsh on its own terms. Therefore, comparing Kennedy’s offense to the harshness of the penalty does not suggest that the penalty is grossly disproportionate to the crime.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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