People v. Wright.
2021 COA 106. No. 18CA1408. Harassment—Second Degree Burglary—Right to Counsel—Right to be Present—Sentencing—Gross Disproportionality—Proportionality Review.
August 12, 2021
Defendant went to an apartment complex under the apparent belief that her daughter was being held in an apartment there and was possibly in danger. Defendant knocked on the doors of several units and asked residents if they had seen her daughter. Defendant then rushed into a residence and grabbed the resident by the throat. A physical altercation ensued, and defendant assaulted both the resident and his 2-year-old son. Police arrived, and they searched defendant and discovered a pipe that later tested positive for methamphetamine.
A jury found defendant guilty of possession of drug paraphernalia, obstruction of a peace officer, resisting arrest, child abuse, harassment, and second degree burglary (predicated on harassment). The court merged defendant’s harassment conviction into her second degree burglary conviction. It adjudicated defendant a habitual offender, and after conducting an abbreviated proportionality review, sentenced her to 48 years in the custody of the Department of Corrections for the second degree burglary conviction. The court also imposed a concurrent 90-day sentence for the child abuse, resisting arrest, and obstruction of a peace officer convictions.
On appeal, defendant contended that the crime of harassment cannot serve as a predicate offense for second degree burglary because it is not a crime against another person; and even if it can, insufficient evidence supported her burglary conviction predicated on harassment. However, as a matter of law, harassment under CRS § 18-9-111(1)(a) is a “crime against another person” that can serve as a predicate offense for second degree burglary. Further, substantial evidence showed that defendant entered the apartment with an intent to commit harassment.
Defendant also argued that the trial court violated her constitutional right to counsel and right to be present by holding an impromptu scheduling conference with the jury without her or defense counsel present. However, the conference was not a critical stage of prosecution, so no constitutional right was violated.
Defendant further argued that her 48-year sentence for second degree burglary raised an inference of gross disproportionality, so the trial court erred by failing to conduct an extended proportionality review. Here, the trial court found that defendant had previously been convicted of several felonies, including possession of a weapon by a previous offender and second degree burglary, but it erred in finding that these crimes are per se grave or serious for purposes of a proportionality review. Further, the court did not follow the analytical framework set forth in recent case law, which was not available at the time of defendant’s sentencing. Accordingly, the court erred in its proportionality review.
The judgment of conviction was affirmed, the 48-year sentence for second degree burglary was vacated, and the case was remanded for a new proportionality review consistent with this opinion.