People v. Duran

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 27, 2025

2025COA34

No. 23CA1134, People v. Duran — Criminal Procedure —
Postconviction Remedies; Crimes — Assault in the First Degree
— Extreme Indifference; Constitutional Law — Eighth
Amendment — Proportionality Review — Per Se Grave or
Serious Offenses

In this appeal from the summary denial of a Crim. P. 35(c)

motion, a division of the court of appeals examines two challenges

to a sentence imposed under a plea agreement.

First, the division considers the defendant’s contention that

the postconviction court erred by denying his claim that his plea

counsel provided ineffective assistance by incorrectly advising him

about his parole eligibility. The division concludes that the

defendant’s assertion that he would have gone to trial but for his

plea counsel’s incorrect advice is conclusory and refuted by the

record because the prosecution’s case against him was

exceptionally strong, he faced the potential for a substantially
longer prison sentence if convicted at trial, and the record

demonstrates that he was willing to accept the same parole

eligibility date that he ultimately received.

Next, the division conducts an abbreviated proportionality

review of the defendant’s sentence and addresses an issue of first

impression: whether extreme indifference first degree assault in

violation of section 18-3-202(1)(c), C.R.S. 2024, is per se grave or

serious under Wells-Yates v. People, 2019 CO 90M. The division

concludes that it is per se grave or serious and that the defendant’s

sentence does not give rise to an inference of gross proportionality.

Accordingly, the division affirms the postconviction court’s

order.
COLORADO COURT OF APPEALS 2025COA34

Court of Appeals No. 23CA1134
Jefferson County District Court No. 18CR5043
Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Juan Ignacio Duran,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

Announced March 27, 2025

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado, for
Defendant-Appellant
¶1 Juan Ignacio Duran appeals the postconviction court’s order

denying, without a hearing, his Crim. P. 35(c) motion alleging

ineffective assistance of plea counsel and requesting an extended

proportionality review of his sentence. He claims that (1) his plea

counsel provided ineffective assistance by incorrectly advising him

about his parole eligibility and (2) the twenty-two-year sentence for

his first degree assault conviction is disproportionately harsh.

¶2 We first conclude that Duran’s claim that he would have gone

to trial but for his plea counsel’s incorrect advice is conclusory and

refuted by the record because the prosecution’s case against him

was exceptionally strong, he faced the potential for a substantially

longer prison sentence if convicted at trial, and the record

demonstrates that he was willing to accept the same parole

eligibility date that he ultimately received.

¶3 We then perform our own abbreviated proportionality review

and encounter an issue of first impression: Is extreme indifference

first degree assault in violation of section 18-3-202(1)(c), C.R.S.

2024, per se grave or serious under Wells-Yates v. People, 2019 CO

90M? We conclude that it is per se grave or serious and that

1
Duran’s sentence is not disproportionately harsh. We therefore

affirm the postconviction court’s order, albeit on different grounds.

I. Background

¶4 Duran got off from work early on the Friday before New Year’s

Eve and went out drinking with some coworkers. After consuming

a substantial amount of alcohol — eight shots and two beers,

according to the People — he decided to drive to pick up his

daughter from daycare.

¶5 Multiple bystanders called 911 to report that Duran was

driving recklessly — running multiple red lights, nearly sideswiping

cars, and hitting curbs. At one point, Duran drove around a

pedestrian-only promenade and even across a footbridge that

spanned a major street.

¶6 A police officer responding to the 911 calls encountered Duran

barreling toward the officer’s car on the wrong side of a road at

around sixty miles per hour in a forty-mile-per-hour zone. The

police officer managed to swerve out of Duran’s path, but the

drivers behind the officer were not so lucky. Duran sideswiped one

car before colliding head on with a second, pushing it back into a

2
third vehicle. Tragically, the driver of the second car was killed in

the crash.

¶7 After his arrest, Duran admitted to the police that he had

consumed “three half-packs of beer” before driving that night. A

blood test revealed that his blood alcohol content was 0.219 —

nearly three times the level at which a person commits driving

under the influence per se, see § 42-4-1301(2)(a), C.R.S. 2024 —

and that his blood contained a significant amount of THC.

¶8 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 fifteen to forty years in prison. The agreement did

not address how much of his sentence Duran would need to serve

before he would be eligible for parole.

¶9 During the plea hearing, Duran confirmed to the district court

that he understood he was waiving his right to a jury trial. He

further acknowledged that, under the plea agreement, the sentence

to be imposed would be “entirely within the Court’s discretion, and

it [was] up to 40 years in the [D]epartment of [C]orrections, and [he

would] not be allowed to withdraw [his] guilty plea if [he did not] like

3
or disagree[d] with the sentence the Court imposes.” But the

sentencing court did not discuss how much of his sentence Duran

would need to serve before becoming eligible for parole.

¶ 10 The court sentenced Duran to twelve years for vehicular

homicide, twenty-two years for extreme indifference first degree

assault, and seven years for attempted extreme indifference first

degree assault. The twelve- and twenty-two-year sentences were to

run concurrently with each other and consecutively to the

seven-year sentence, resulting in an aggregate sentence of

twenty-nine years in the custody of the Department of Corrections.

After imposing the sentence, the sentencing court noted, “[B]ecause

he’s [pleaded] to violent crime, [Duran] generally at this point in

time will serve about 75[%] of that sentence before he goes to

halfway houses and out on parole.” To be precise, Duran will need

to serve 75% of his twenty-two-year sentence, see

§ 17-22.5-403(2.5)(a), C.R.S. 2024, and 50% of his seven-year

sentence, see § 17-22.5-403(1) — for a total of twenty years, less

any earned time granted under section 17-22.5-405, C.R.S.

4
20241 — before becoming eligible for parole.2 See Owens v. Carlson,

2022 CO 33, ¶¶ 44-45 (for consecutive sentences, the time required

to become eligible for parole for each sentence is calculated

individually, and then those calculations are added together to

determine the final parole eligibility date).

¶ 11 Duran timely filed a Crim. P. 35(c) motion. He alleged that his

plea counsel had provided ineffective assistance by incorrectly

advising him that he would need to serve only 50% of his sentence

before becoming eligible for parole. He also argued that his

twenty-nine-year sentence was grossly disproportionate because his

conduct was more akin to vehicular homicide than first degree

assault.

1 Section 17-22.5-405(1)(a), C.R.S. 2024, allows a defendant to earn

up to ten days of “earned time” each month for demonstrating
consistent progress in various areas, such as work and training,
group living, participation in counseling sessions, and other positive
behaviors. As a result, a defendant has the potential to reduce the
time he must serve by up to 30% of the length of his sentence.
§ 17-22.5-405(4)(a).
2 Duran’s sentence for vehicular homicide does not affect his parole

eligibility because it runs concurrently with his longer extreme
indifference first degree assault sentence. See Thiret v. Kautzky,
792 P.2d 801, 808 (Colo. 1990) (“[T]he ‘governing’ sentence is the
longest sentence . . . , and the relevant parole provisions of that
sentence apply to the entire ‘composite’ sentence.”).

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¶ 12 In a detailed order, the postconviction court denied the motion

without a hearing. In addressing the ineffective assistance claim,

the postconviction court found that, “even if the failure to advise as

to parole eligibility was ineffective, [Duran] ha[d] not shown that

there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to

trial.” The court reasoned that the case against Duran was

“exceptionally strong” and that, had he gone to trial, Duran would

have “faced a minimum sentence of [twenty] years in prison and a

maximum aggregate term of [sixty-four] years.” And the court noted

that Duran had accepted a plea agreement for a sentence of up to

forty years, which means that, even “under the mistaken

assumption that he would be eligible for parole after serving 50% of

his sentence, [Duran] was fully prepared to serve up to [twenty]

years” of his sentence before becoming eligible for parole.

¶ 13 Turning to Duran’s constitutional challenge to his sentence,

the postconviction court concluded that Duran’s sentence does not

give rise to an inference of gross disproportionality because Duran’s

actions were grave and serious, his conduct “fully support[ed] the

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charge of [f]irst [d]egree [a]ssault,” and he “was not sentenced to

anywhere near the maximum” for his convictions.

II. Ineffective Assistance of Plea Counsel

¶ 14 Duran first contends that the postconviction court erred by

declining to hold a hearing on the claim that Duran’s plea counsel

provided ineffective assistance by misadvising him that he would be

eligible for parole after serving only 50% of his sentence.3 We agree

with the postconviction court that a hearing was not required

because the record refutes Duran’s conclusory assertion that he

was prejudiced by the alleged deficient performance.

A. Standard of Review and Governing Law

¶ 15 We review the summary denial of a Crim. P. 35(c) motion de

novo. People v. Luong, 2016 COA 13M, ¶ 7. A postconviction court

may deny a Crim. P. 35(c) motion without an evidentiary hearing if

the allegations are bare and conclusory; the allegations, even if

true, do not warrant relief; or the record directly refutes the

3 Duran also states that his plea counsel “advised him that the

court would likely impose a sentence at the lower end of the range.”
But because he does not develop this argument, we decline to
address it. See People v. Liggett, 2021 COA 51, ¶ 53 (appellate
courts do not address undeveloped arguments), aff’d, 2023 CO 22.

7
allegations. People v. Joslin, 2018 COA 24, ¶ 4; see also Ardolino v.

People, 69 P.3d 73, 77 (Colo. 2003).

¶ 16 A criminal defendant has a constitutional right to the effective

assistance of counsel. People v. Rainey, 2023 CO 14, ¶ 1. To

prevail on an ineffective assistance of counsel claim, a defendant

must show that (1) counsel’s performance was deficient, meaning it

fell below an objective standard of reasonableness; and (2) counsel’s

deficient performance prejudiced the defense, meaning there is a

reasonable probability that, but for counsel’s deficient performance,

the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984). “Because a

defendant must show both deficient performance and prejudice, a

court may resolve the claim solely on the basis that the defendant

has failed in either regard.” People v. Karpierz, 165 P.3d 753, 759

(Colo. App. 2006).

¶ 17 In the context of a guilty plea, the prejudice prong requires the

defendant to “show that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

(1985); see People v. Corson, 2016 CO 33, ¶ 35; People v. Sifuentes,

8
2017 COA 48M, ¶ 20. “This is an objective inquiry.” Corson, ¶ 35.

“Some objective evidence must corroborate the defendant’s

testimony that he would have made a different decision about the

plea if he had been properly advised.” Sifuentes, ¶ 20. Ultimately,

the defendant “must convince the court that a decision to reject the

plea bargain would have been rational under the circumstances.”

Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

¶ 18 In determining whether a decision to reject the guilty plea

would have been rational, a court should consider the strength of

the prosecution’s case, the attractiveness of the plea deal, and the

risks of going to trial. Id. at ¶ 21; see Carmichael v. People,

206 P.3d 800, 806 (Colo. 2009) (recognizing that the comparative

sentencing exposure between standing trial and accepting a plea

offer may be important to the decision whether to plead guilty);

Corson, ¶ 35 (same).

B. Discussion

¶ 19 Even if we assume that Duran received incorrect advice

regarding his parole eligibility and that this constituted deficient

performance by plea counsel, Duran’s claim of prejudice — i.e., that

he would have gone to trial but for the incorrect advice — is

9
conclusory and refuted by the record. See Karpierz, 165 P.3d at

759.

¶ 20 Duran’s Crim. P. 35(c) motion contained only the following

conclusory allegation addressing prejudice: “[H]ad [Duran] been

properly advised on the issue of parole eligibility, he would have

exercised his constitutional right to trial.” See People v. Villanueva,

2016 COA 70, ¶ 68 (A “conclusory allegation is insufficient to

establish prejudice under Strickland.”); see also Carmichael,

206 P.3d at 807 (a defendant’s self-serving claim of prejudice is

insufficient without some objective, corroborating evidence). In the

motion, Duran did not allege that objective evidence would

corroborate his assertion that he would have made a different

decision about the plea had he been properly advised. See

Sifuentes, ¶ 20. Duran did not allege that the prosecution’s case

was weak or flawed, nor did he identify a meritorious defense to the

charges against him. See id. at ¶ 21. And Duran did not address

in the motion the benefits of the plea agreement compared to the

risks he would have faced had he gone to trial. See id.; Carmichael,

206 P.3d at 806; Corson, ¶ 35.

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¶ 21 Even on appeal, Duran does not address a rationale for

rejecting the plea agreement and risking a trial. Instead, he argues

that “a defendant is not required to ‘prove’ his allegations in his

postconviction motion” to be entitled to an evidentiary hearing.

While this is a correct statement of law, see White v. Denver Dist.

Ct., 766 P.2d 632, 635 (Colo. 1988), a postconviction court may

deny a motion without a hearing if “the files and record of the case

show to the satisfaction of the court that the defendant is not

entitled to relief,” Crim. P. 35(c)(3)(IV); see Joslin, ¶ 4. That is the

case here — the record clearly refutes Duran’s conclusory

allegation.

¶ 22 As the district court noted, the case against Duran was

“exceptionally strong.” See Sifuentes, ¶ 21. Video footage from the

bar showed Duran consuming eight shots and two beers. The

arrest affidavit and providency hearing revealed that, immediately

after Duran left the bar, numerous witnesses called 911 to report

his erratic driving and strange behavior — running multiple red

lights, driving over curbs, driving over a pedestrian bridge, nearly

sideswiping other cars, and public urination. A police officer

witnessed Duran speeding up a main thoroughfare in the wrong

11
direction toward him. After the officer swerved to avoid him, Duran

sideswiped one vehicle and collided head on with another.

Moreover, a blood test taken near the time of the accident

demonstrated that Duran’s blood alcohol content was 0.219. And

had he been convicted at trial, Duran would have faced a maximum

aggregate prison term of sixty-four years — twenty-four years longer

than the maximum under the plea agreement. See Carmichael,

206 P.3d at 806; Corson, ¶ 35. Under these 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, as Duran claims.

¶ 23 More importantly, the record demonstrates that Duran was

willing and prepared to accept a forty-year prison sentence. During

the plea hearing, the sentencing court specifically asked him

whether he was willing to accept the plea knowing that the court

could impose a sentence “up to [forty] years in the [D]epartment of

[C]orrections.” The court even warned him that “you will not be

allowed to withdraw your guilty plea if you don’t like or disagree

with the sentence the Court imposes.” Despite this, he accepted the

plea. This means that, even under the mistaken belief that he

12
would need to serve only half of his sentence, Duran was prepared

to spend twenty years in prison before becoming eligible for parole.

That is the same amount of time he is required to serve before

becoming parole eligible now. Accordingly, Duran’s

twenty-nine-year sentence with parole eligibility after twenty years

is less harsh than the forty-year sentence with parole eligibility after

twenty years that he was willing to accept.

¶ 24 The record therefore refutes the claim that Duran would have

insisted on going to trial but for his plea counsel’s parole advice.

See Hill, 474 U.S. at 59; Corson, ¶ 35. Consequently, Duran’s

allegation of prejudice is insufficient, and the postconviction court

did not err by denying his ineffective assistance of counsel claim

without a hearing.

III. Proportionality Review

¶ 25 Next, Duran contends that his twenty-two-year sentence for

extreme indifference first degree assault4 is disproportionately

4 Duran does not contend that his sentences for vehicular homicide

or attempted extreme indifference first degree assault are
individually disproportionate. And to the extent Duran argues that
his twenty-nine-year aggregate sentence is grossly disproportionate,
“that aggregate imprisonment term is not subject to proportionality
review.” Wells-Yates v. People, 2019 CO 90M, ¶ 74.

13
harsh when compared to his conduct. Specifically, he argues that

(1) his conduct resembles that of vehicular homicide more than

extreme indifference first degree assault, so we should consider

vehicular homicide the applicable offense for our proportionality

review; (2) vehicular homicide is not per se grave or serious, nor

was his underlying conduct; and (3) his twenty-two-year sentence is

unduly harsh, particularly given that he has no prior felony

convictions. We address and reject each contention in turn.

A. Standard of Review and Governing Law

¶ 26 We review de novo whether a sentence raises an inference of

gross disproportionality. Wells-Yates, ¶ 35. If the analysis does not

require an inquiry into facts that are outside the appellate record,

as is the case here, we are as well positioned as the postconviction

court to conduct an abbreviated proportionality review. People v.

Loris, 2018 COA 101, ¶ 10. And we may affirm the postconviction

court’s order on any ground supported by the record, whether or

not the postconviction court relied on or considered that ground.

People v. Cooper, 2023 COA 113, ¶ 7.

¶ 27 The Eighth Amendment to the United States Constitution

prohibits the imposition of a sentence that is grossly

14
disproportionate to the severity of the crime committed. Solem v.

Helm, 463 U.S. 277, 284-85 (1983); Wells-Yates, ¶ 5. But it “does

not require strict proportionality between crime and sentence.”

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment) (citing Solem,

463 U.S. at 288, 303); see also Close v. People, 48 P.3d 528, 536

(Colo. 2002), abrogated on other grounds by Wells-Yates, ¶¶ 16-17.

Rather, it forbids only extreme sentences that are grossly

disproportionate to the crime. Close, 48 P.3d at 536.

¶ 28 Colorado courts conduct a two-step analysis when considering

a proportionality challenge. Wells-Yates, ¶ 10. In step one — an

abbreviated proportionality review — the court compares the gravity

and seriousness of the offense with the harshness of the penalty.

Id. at ¶¶ 7-14. In step two — an extended proportionality review —

the court compares the challenged sentence to sentences for other

crimes in the same jurisdiction and the same crime in other

jurisdictions. Id. at ¶¶ 15-17. The court should proceed to step two

only when the comparison between the gravity and seriousness of

the offense and the harshness of the penalty gives rise to an

inference of gross disproportionality. Id. at ¶ 15.

15
¶ 29 Ordinarily, “the determination of whether the crime is grave or

serious depends on the facts and circumstances underlying the

offense.” People v. Hargrove, 2013 COA 165, ¶ 12, abrogated on

other grounds by Wells-Yates, ¶¶ 16-17. The gravity or seriousness

of an offense can be determined by considering “the harm caused or

threatened to the victim or society,” as well as “the culpability of the

offender.” Wells-Yates, ¶ 12 (quoting Solem, 463 U.S. at 292);

People v. Session, 2020 COA 158, ¶ 33.

¶ 30 But some crimes are designated per se grave or serious for

purposes of a proportionality review. See Wells-Yates, ¶ 13. For

these crimes, the court may skip the fact-focused gravity or

seriousness analysis and proceed directly to considering the

harshness of the penalty. Id.; Session, ¶ 34.

¶ 31 When considering the harshness of the penalty, “a great deal

of deference is due to legislative determinations regarding

sentencing.” People v. Deroulet, 48 P.3d 520, 523 (Colo. 2002),

abrogated on other grounds by Wells-Yates, ¶¶ 16-17. “[I]n almost

every case, the abbreviated proportionality review will result in a

finding that the sentence is constitutionally proportionate, thereby

preserving the primacy of the General Assembly in crafting

16
sentencing schemes.” Id. at 526; see also Wells-Yates, ¶ 21. The

assessment of the harshness of the penalty includes consideration

of the sentence’s length and the defendant’s parole eligibility.

Wells-Yates, ¶ 14. Indeed, whether a defendant is parole eligible is

relevant to an abbreviated proportionality review because parole can

reduce the actual period of confinement and render the penalty less

harsh. Id.

B. Extreme Indifference First Degree Assault
Is the Applicable Offense

¶ 32 As an initial matter, Duran argues that his “underlying

conduct” should be viewed as more consistent with vehicular

homicide rather than extreme indifference first degree assault.

Therefore, he contends that we should use vehicular homicide for

our proportionality analysis. But Duran is challenging the sentence

imposed on his conviction for extreme indifference first degree

assault, and his guilty plea was “an admission of all material

facts — including that he committed each of the elements of” that

offense. People v. Crawley, 2024 COA 49, ¶ 16. It makes no sense

to evaluate the harshness of the penalty for a particular offense by

treating that offense as something it is not. Consequently, extreme

17
indifference first degree assault is the applicable offense for our

analysis. See id.

C. Extreme Indifference First Degree Assault
Is Per Se Grave or Serious

¶ 33 In an abbreviated proportionality review, we first assess the

gravity or seriousness of the offense, starting with the threshold

question of whether it is per se grave or serious. Before Wells-Yates

was announced, a division of this court held that first degree

assault is per se grave or serious. See People v. Gee, 2015 COA

151, ¶ 60. “But Wells-Yates called into question all pre-existing per

se designations” — including first degree assault — “apart from

those it identified as satisfying the new definition” of per se grave or

serious.” Crawley, ¶ 18. And no published appellate opinion has

addressed whether extreme indifference first degree assault is a per

se grave or serious offense under the standard announced in

Wells-Yates. We now consider the question and conclude that it is.

¶ 34 Wells-Yates held that “the designation of per se grave or

serious for purposes of a proportionality review must be reserved for

those rare crimes which, based on their statutory elements,

necessarily involve grave or serious conduct,” meaning a crime

18
should not be given the designation unless it is grave or serious in

every potential factual scenario. Wells-Yates, ¶ 63. As an example,

robbery is per se grave or serious because, in
every potential factual scenario, a person
convicted of robbery “knowingly took
something of value from the person or
presence of another by the use of force, threats
or intimidation,” which always involves
“knowing conduct and grave harm (or the
threat of grave harm) to the victim or society
(or both).” Put differently, robbery is per se
grave or serious because the statutory
elements ensure that there is no way to
commit the crime in a manner that is not
grave or serious.

Crawley, ¶ 20 (quoting Wells-Yates, ¶ 64); see Wells-Yates, ¶ 65

(holding aggravated robbery, burglary, accessory to first degree

murder, and the sale or distribution of narcotics satisfy the new

standard and remain per se grave or serious).

¶ 35 With this standard in mind, we now examine extreme

indifference first degree assault. A person commits extreme

indifference first degree assault when, “[u]nder circumstances

manifesting extreme indifference to the value of human life, he

knowingly engages in conduct which creates a grave risk of death to

another person, and thereby causes serious bodily injury to any

person.” § 18-3-202(1)(c). According to this definition, extreme

19
indifference first degree assault always involves knowing conduct

and grave harm — serious bodily injury. See Wells-Yates, ¶ 64; see

also Gee, ¶ 60 (“[B]y its nature, first degree assault involves violence

or the potential for violence . . . .”). Moreover, the knowing conduct

involves “circumstances manifesting extreme indifference to the

value of human life” and “creates a grave risk of death to another

person,” thereby risking harm to society at large. § 18-3-202(1)(c);

see Wells-Yates, ¶ 64. And the General Assembly has determined

that extreme indifference first degree assault is a per se crime of

violence and an extraordinary risk crime. § 18-3-202(2)(c);

§ 18-1.3-406(2)(a)(II)(C), C.R.S. 2024; see Crawley, ¶ 21 (considering

second degree murder’s classification as a crime of violence and

extraordinary risk crime in concluding it is per se grave or serious).

¶ 36 Thus, given the statutory elements of extreme indifference first

degree assault, “regardless of the facts and circumstances involved,

a defendant who stands convicted of [the] offense will have

committed a crime that is necessarily grave or serious.”

Wells-Yates, ¶ 65. Accordingly, extreme indifference first degree

assault satisfies the standard articulated in Wells-Yates and is per

se grave or serious.

20
¶ 37 Because Duran committed a per se grave or serious offense,

we skip the gravity or seriousness analysis based on the specific

facts of this case and proceed directly to the harshness of the

penalty. See id. at ¶ 13.

D. The Penalty Is Not Disproportionately Harsh

¶ 38 Any review of the harshness of a penalty “is substantially

circumscribed because the legislature’s establishment of the

harshness of the penalty deserves great deference. Consequently, a

per se grave or serious designation ‘renders a sentence nearly

impervious to attack on proportionality grounds.’” Wells-Yates,

¶ 62 (citations omitted); see Deroulet, 48 P.3d at 523; Rutter v.

People, 2015 CO 71, ¶ 16 (“[I]n non-capital cases, courts will rarely

conclude that a defendant’s sentence is grossly disproportionate.”).

¶ 39 Duran’s twenty-two-year sentence was toward the middle of

the sentencing range for extreme indifference first degree assault.

See § 18-3-202(2)(b); § 18-1.3-401(1)(a)(V)(A.1), (10)(a), C.R.S. 2024;

§ 18-1.3-406(1)(a); Deroulet, 48 P.3d at 526. And Duran will be

eligible for parole after serving 75% of his sentence, see

§ 17-22.5-403(2.5)(a), potentially shortening the actual period of

confinement for that crime to about sixteen and a half years or even

21
less depending on any earned time granted under section

17-22.5-405. See Wells-Yates, ¶ 14.

¶ 40 Even so, Duran contends the sentence is too harsh because he

had no prior felony convictions. But while that is a factor we

consider, it does not outweigh the other circumstances, especially

given that Duran’s per se grave or serious crime resulted in the

death of the victim — a result more grave than serious bodily

injury. See People v. Myers, 45 P.3d 756, 757 (Colo. App. 2001)

(“[A] lengthy sentence may be justified even in the absence of a prior

criminal record when the offense is particularly egregious.”).

¶ 41 Duran’s sentence near the midpoint of the range set by the

General Assembly is not unduly harsh when compared to the

gravity and seriousness of extreme indifference first degree assault.

Because we find no inference of gross disproportionality, we agree

with the postconviction court that an extended proportionality

review is not warranted. See Wells-Yates, ¶ 8.

IV. Disposition

¶ 42 The order is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

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