Peo v. Sparks

23CA1893 Peo v Sparks 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1893
El Paso County District Court No. 15CR1916
Honorable Monica J. Gomez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rustin Dean Sparks,

Defendant-Appellant.

SENTENCE AFFIRMED

Division II
Opinion by JUDGE FOX
Gomez and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Jeffrey C. Parsons, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Rustin Dean Sparks, appeals his sixty-four-year

habitual criminal sentence. He contends that the trial court erred

by concluding that this sentence did not raise an inference of gross

disproportionality. We affirm.

I. Background

¶2 The People charged Sparks with attempted murder, first

degree assault, and felony menacing after he shot a man. People v.

Sparks, slip op. at ¶ 1, (Colo. App. No. 18CA0288, Feb. 4, 2021)

(not published pursuant to C.A.R. 35(e)) (Sparks I). The convictions

stemmed from evidence that, as the victim sat in a car with

Sparks’s girlfriend, Sparks struck the driver’s side window with a

gun, pointed the gun at the victim, and fired two shots, hitting the

victim in the arm. Id. at ¶ 35.

¶3 A jury found Sparks guilty of first degree assault and felony

menacing, but it deadlocked on the attempted murder charge. Id.

at ¶ 1. The trial court sentenced Sparks as a habitual criminal to a

term of sixty-four years in prison for the first degree assault. Id.

¶4 On appeal, a division of this court affirmed Sparks’s

convictions but vacated his habitual criminal sentence and

remanded for the trial court to conduct an abbreviated

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proportionality review of the sentence in light of the supreme court’s

decision in Wells-Yates v. People, 2019 CO 90M. Sparks I, slip op.

at ¶¶ 3, 48, 59-60.

¶5 On remand, the trial court received briefing from the parties,

and Sparks acknowledged — as he does on appeal — that his

triggering first degree assault offense was grave and serious. But

he argued that none of his predicate offenses were grave and

serious based on their underlying facts, which, consistent with the

guidance in Wells-Yates, he urged the court to consider and argued

did not involve violence.

¶6 In response, the People agreed that Sparks’s triggering first

degree assault offense was grave and serious. Relying on the

records from the cases underlying Sparks’s predicate offenses —

including the arrest warrant affidavits, attached to the People’s

response as exhibits — the People asserted that all of the predicate

offenses were grave and serious based on their factual

circumstances.

¶7 The People urged the court to find that, taken together with

the triggering offense, Sparks’s criminal history supported a finding

that the sixty-four-year sentence imposed in this case was not

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grossly disproportionate. They noted that both the triggering

offense and predicate offenses involved violence, physical injury,

grave risk of serious bodily injury or death, or reckless behavior

posing a threat to the public. And they noted that Sparks was the

principal actor in each offenses.

¶8 In his reply, Sparks did not dispute the People’s recitation of

the underlying facts of his predicate offenses or the information

contained in the arrest warrant affidavits. Instead, he reiterated

that, in his view, none of the predicate offenses involved violence

toward others. Further, though he acknowledged that he was

parole eligible, he argued that the court should consider the

statistical unlikelihood that he would be paroled in his lifetime,

given that his mandatory release date would not come until after

the end of his prison life expectancy.

¶9 After considering the parties’ briefing, the trial court issued a

detailed written order concluding that Sparks’s sixty-four-year

sentence did not raise an inference of gross disproportionality

under Wells-Yates.

¶ 10 The court noted Sparks’s concession that his triggering offense

was grave and serious and the “egregious facts” of the offense.

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Considering both Sparks’s observations about the underlying facts

of the predicate offenses and the People’s summary of those facts,

along with the arrest warrant affidavits, the court found that the

five predicate offenses were also grave and serious. The court found

that all of the offenses presented a significant threat of harm to

society, they involved completed acts, and Sparks was the principal

actor and admitted his culpability in each case.

¶ 11 Specifically, the court found the following:

• In El Paso County case number 97CR4104, Sparks pleaded

guilty to an amended count of sexual assault on a child, a

class 4 felony. The charge stemmed from allegations that

Sparks had sexual intercourse with a thirteen-year-old and

was aware of the illegality of his conduct, telling the victim

that he could go to jail and that “he didn’t know her and

she didn’t know him” if the relationship was discovered.

• In El Paso County case number 99CR2449, Sparks abused

the trust of the victim, using a key to gain access to her

home and repeatedly stealing coins valued collectively at

between $20,000 and $45,000, which he sold for personal

gain. He pleaded guilty to theft, a class 4 felony.

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• In El Paso County case number 06CR744, Sparks was

running a “chop shop” out of his garage, with harm to

society and many victims. He pleaded guilty to theft of auto

parts, a class 5 felony.

• In Teller County case number 07CR132, Sparks pleaded

guilty to vehicular eluding, a class 5 felony. While on bond,

Sparks (1) was observed travelling at a high rate of speed on

a motorcycle with a passenger; (2) reached speeds over 100

mph after officers pursued him; (3) ran three red lights; and

(4) lost control of the motorcycle and crashed, resulting in

injuries to him and his passenger.

• In El Paso County case number 08CR1254, Sparks pleaded

guilty to attempted aggravated motor vehicle theft and

trespass of an auto, both class 5 felonies. During the

criminal episode underlying his plea, which occurred a day

before his sentencing in two of the above cases, he activated

a cordless drill and brandished it toward the victim’s torso.

¶ 12 Considering the triggering and predicate offenses together, the

court found they were not so lacking in gravity or seriousness as to

suggest that the sixty-four-year sentence in this case was grossly

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disproportionate. The court rejected Sparks’s suggestion that it

should consider the unlikelihood of him being paroled, instead

considering the fact that he is indeed parole eligible, potentially

reducing his actual period of confinement and rendering the penalty

less harsh.

II. Discussion

¶ 13 Sparks contends that the trial court erred. He challenges the

court’s determination that his predicate offenses were grave and

serious based on their facts. And he asserts error related to the

court’s conclusion that his parole eligibility rendered his sixty-four-

year sentence less harsh. We discern no error.

A. Applicable Law and Standard of Review

¶ 14 The United States and Colorado Constitutions both prohibit

“extreme sentences that are ‘grossly disproportionate’ to the crime.”

Wells-Yates, ¶ 5 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (Kennedy, J., concurring in part and concurring in the

judgment)); see also U.S. Const. amend. VIII; Colo. Const. art. II,

§ 20.

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¶ 15 Review of the constitutional proportionality of a sentence

involves a two-step process: an abbreviated proportionality review

and, if needed, an extended one. Wells-Yates, ¶ 10.

¶ 16 In conducting an abbreviated proportionality review of a

habitual criminal sentence, we (1) assess the gravity or seriousness

of the offenses in question — the triggering offense and the

predicate offenses; and (2) consider the harshness of the sentence

imposed on the triggering offense. Id. at ¶ 23. We determine

whether the triggering offense and the predicate offenses, in

combination, “are so lacking in gravity or seriousness so as to

suggest that the sentence is unconstitutionally disproportionate to

the crime, taking into account the defendant’s eligibility for parole.”

Id. If the abbreviated proportionality review reveals no inference of

gross disproportionality, no further analysis is required. People v.

Strock, 252 P.3d 1148, 1157 (Colo. App. 2010).

¶ 17 We review de novo whether a sentence is constitutionally

disproportionate. Wells-Yates, ¶ 35.

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B. Gravity and Seriousness of the Triggering and Predicate
Offenses

¶ 18 In general, the gravity or seriousness of an offense requires

consideration of the harm caused or threatened to the victim or

society and the culpability of the offender. People v. Session, 2020

COA 158, ¶ 33. Relevant factors in determining whether a crime is

grave or serious include the magnitude of the offense; whether the

offense involved violence; whether the crime is a lesser-included

offense or the greater-inclusive offense; whether the crime involves

a completed act or an attempt; and whether the defendant was a

principal or an accessory after the fact in the criminal episode.

Wells-Yates, ¶ 12. The court should also consider “whether the

defendant’s acts were negligent, reckless, knowing, intentional, or

malicious.” Id. A court may omit this fact-specific analysis if the

offense in question is per se grave or serious. Id. at ¶ 13; Session,

¶ 34.

¶ 19 The parties agree that Sparks’s triggering offense of first

degree assault was grave and serious. Sparks asserts, however,

that none of his predicate offenses were grave and serious. The

People respond that Sparks challenges the court’s grave and serious

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determination by “cherry-pick[ing] a few facts” to argue that the

predicate offenses were not grave and serious.

¶ 20 Reviewing the facts and circumstances underlying the

predicate offenses leads us to the same conclusion as the trial

court.

1. 97CR4104

¶ 21 Sparks claims that his sexual assault on a child offense did

not involve violence, forced sexual contact, or a position of trust,

and he was sentenced to only five years of probation for that crime.

Further, he was “only 19 years old, immature,” and “it was his first

adult conviction of any kind.” Be that as it may, the record shows

that Sparks engaged in a sexual relationship with a thirteen-year-

old, was aware that she was thirteen, and knew that his conduct

was illegal. Sparks acted knowingly as a principal in the

commission of this offense, and child sexual assault is a crime that

causes great harm to victims and society. People v. Strean, 74 P.3d

387, 396 (Colo. App. 2002) (The crime of sexual assault on a child

“involve[s] situations in which an adult treats a vulnerable child as

a tool for sexual gratification, often causing a devastating and life-

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long effect.”). Thus, we conclude that Sparks’s crime of sexual

assault on a child was grave and serious.

2. 07CR132 and 08CR1254

¶ 22 Sparks asserts that his vehicular eluding conviction in

07CR132 involved no overt acts of violence. Although he suggests

that violence is a prerequisite to a finding that an offense is grave

and serious, Wells-Yates does not require this. And the facts

underlying Sparks’s vehicular eluding offense involved significant

harm or threatened harm to both a specific individual and society.

The record shows that police radar confirmed Sparks drove a

motorcycle at eighty-three miles per hour (mph) in a sixty mph

zone. When law enforcement pursued him, he accelerated to

speeds over 100 mph, ran several steady red lights, and crashed the

motorcycle. He told officers that he ran because he had no driver’s

license. His passenger reported that she was screaming at Sparks

to stop and was scared. Sparks’s culpability was high. His conduct

was knowing, and the factual circumstances of the crime indicate a

willful and wanton disregard for the general safety of others. See

People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004) (legislative

intent in enacting the vehicular eluding statute is to protect the

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public from the great risks created by a driver attempting to elude a

police officer). Thus, we reject Sparks’s claims that his vehicular

eluding offense was not grave and serious.

¶ 23 Likewise, we reject his assertion that his threatened use of a

cordless drill in 08CR1254 involved no injury to another person and

thus the factual circumstances underpinning his convictions in that

case meant his conduct wasn’t grave and serious. As noted, it is

not just harm but threatened harm that drives a determination that

a crime is grave and serious. Sparks acknowledges that he

threatened the use of a cordless drill on another person. Given the

violence inherent in such action, we likewise conclude that the

offenses in 08CR1254 were grave and serious.

3. 99CR2449 and 06CR744

¶ 24 Having concluded that three of the five predicate offenses were

grave and serious, even if we assume (for the sake of argument) that

the two theft offenses in case numbers 99CR2449 and 06CR744

were not grave and serious, a court may conclude that Spark’s

offenses, taken together, are grave and serious. See Strock, 252

P.3d at 1158 (it is not necessary for each offense to be grave and

serious for a court to conclude that the offenses taken together are

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grave and serious); People v. Reese, 155 P.3d 477, 480 (Colo. App.

2006) (forty-eight-year sentence not grossly disproportionate even

though three of five predicate offenses were not grave and serious).

4. Challenge to the Court’s Reliance on Affidavits

¶ 25 For the first time in his reply brief, Sparks challenges the trial

court’s reliance on the arrest warrant affidavits for the five predicate

offenses. But he did not dispute or challenge the veracity or

reliability of the affidavits in his trial court brief or opening brief on

appeal. Under these circumstances, the issue is not properly before

us and we will not address it. See People v. Czemerynski, 786 P.2d

1100, 1107 (Colo. 1990), abrogated on other grounds by Rojas v.

People, 2022 CO 8. In any event, in finding the facts and

circumstances surrounding a predicate offense, a court may

consider arrest affidavits as one source of evidence in a

proportionality review, subject to being disputed or challenged like

any other evidence. Wells-Yates, ¶ 26.

C. Harshness of the Penalty

¶ 26 Sparks agrees that he is eligible for parole, which “is relevant

during an abbreviated proportionality review because parole can

reduce the actual period of confinement and render the penalty less

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harsh.” Id. at ¶ 14. He argues, however, that the simple fact of

parole eligibility “is not the end of the analysis.” Rather, relying on

People v. Drake, 785 P.2d 1257 (Colo. 1990), he asserts that the

trial court should have considered “the unlikelihood” that he will

actually be paroled in his lifetime. He asserts that Drake “relied on

the specific number of years in which the defendant in that case

would be eligible for parole,” and that such analysis is required.

¶ 27 True, Drake observed that the defendant was “eligible for

parole . . . after he has served twenty years” of his sentence. Id. at

1275. But Drake reiterated that “[t]he availability of parole” is the

factor a court must consider in its proportionality determination.

Id. (emphasis added). Thus, we perceive no error in the court’s

determination that Sparks’s parole eligibility was relevant to its

analysis, not the unlikelihood of being paroled within his estimated

life expectancy. See Wells-Yates, ¶ 14 (“We have expressly

concluded that whether a sentence is parole eligible is relevant

during an abbreviated proportionality review because parole can

reduce the actual period of confinement and render the penalty less

harsh.”) (emphases added); see also People v. Cisneros, 855 P.2d

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822, 827-29 (Colo. 1993), abrogated in part on other grounds by

Wells-Yates, 2019 CO 90M.

III. Disposition

¶ 28 Considering the triggering offense with the predicate offenses,

we conclude that they are not so lacking in gravity or seriousness

as to suggest that Sparks’s sixty-four-year habitual criminal

sentence is unconstitutionally disproportionate to his crime and

criminal recidivism. See Wells-Yates, ¶ 23 (“[W]hen the

proportionality of a habitual criminal sentence is challenged, the

grave or serious inquiry includes consideration of the defendant’s

history of felony recidivism.”).

¶ 29 And considering the fact that he is parole eligible, we cannot

conclude that the penalty was unduly harsh. See id. at ¶ 62

(Consideration of the harshness of the penalty “is substantially

circumscribed because the legislature’s establishment of the

harshness of the penalty deserves great deference.”).

¶ 30 Thus, an extended proportionality review is not warranted.

¶ 31 The sentence is affirmed.

JUDGE GOMEZ and JUDGE LUM concur.

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