Peo v. Carey

22CA1486 Peo v Carey 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1486
El Paso County District Court No. 15CR1394
Honorable Erin Sokol, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Clifford Carey,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 17, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, John Clifford Carey, appeals the postconviction

court’s denial of his Crim. P. 35(c) motion. We affirm.

I. Background

¶2 On March 25, 2015, Carey went to the properties of T.S. and

S.B. in search of his wife. While wielding a machete, Carey forcibly

entered T.S.’s trailer, grabbed T.S. by the beard, held the machete

against his face, and questioned T.S. about his wife. After T.S. told

him he did not know where his wife was, Carey punched T.S. in the

face and left.

¶3 Carey then went to the adjacent trailer, which belonged to S.B.

Upon entering, he saw his wife and another man, B.K., sitting in

the living room. Still holding the machete, Carey approached B.K.

and asked if B.K. was “getting [his wife] high.” When B.K. said

“[N]o,” Carey punched him several times before following his wife

into another room. Carey then saw S.B. and asked her if she was

“getting [his wife] high,” and S.B. responded, “[N]o.”

¶4 Carey returned to T.S.’s trailer, used the machete to cut T.S.’s

face, pulled out part of his beard, and punched him again. Carey

then went back to S.B.’s trailer, argued with his wife, and left as the

police arrived.

1
¶5 During trial, at which Carey represented himself, Carey argued

that his actions were justified because he reasonably believed that

his wife was in danger and did not intend to harm anyone. A jury

rejected this defense and found Carey guilty of first degree burglary,

second degree burglary, third degree assault, and two counts of

felony menacing. Following a hearing on Carey’s habitual criminal

charges, the trial court merged his third degree assault conviction

into his conviction for first degree burglary and sentenced him to a

controlling term of sixty-four years in the custody of the

Department of Corrections.

¶6 In June 2019, a division of this court affirmed Carey’s

convictions and sentences on direct appeal in People v. Carey,

(Colo. App. No. 16CA0358, Feb. 21, 2019) (not published pursuant

2
to C.A.R. 35(e)) (Carey I).1 Carey filed a timely motion for

postconviction relief pursuant to Crim P. 35(c) and requested the

appointment of counsel. The postconviction court granted a partial

hearing and denied Carey’s postconviction claims.2

II. Competence to Proceed Pro Se

¶7 Carey contends that he was incompetent to represent himself

at trial and that the postconviction court erroneously conflated the

standard for determining competence to waive the right to counsel

with the standard for competence to represent oneself at trial under

1 In the direct appeal, Carey alleged that (1) the trial court failed to

inquire into an alleged conflict of interest between him and
appointed counsel; (2) the trial court failed to advise him of his right
to conflict-free counsel; (3) his waiver of counsel was not knowing,
voluntary, or intelligent; (4) he was never advised of the sentencing
exposure he’d face if adjudicated an habitual offender; (5) he was
confused about whether certain matters could be litigated if counsel
were reappointed; (6) the trial court improperly denied his right to
proceed on a plea of not guilty by reason of insanity; (7) the trial
court abused its discretion in denying his request for a
continuance; and (8) the prosecution presented insufficient
evidence to support his burglary convictions.

2 Carey’s Crim. P. 35(c) motion raised issues that were not reraised

here and that are therefore abandoned. They include Carey’s
contention that the trial court erred when it precluded him from
introducing certain evidence and properly cross-examining
witnesses; erroneously instructed the jury; and erroneously rejected
evidence of his mental condition.

3
Indiana v. Edwards, 554 U.S. 164 (2008). He further claims the

court should have granted him a hearing on this issue. We

disagree.

A. Additional Facts

¶8 On June 1, 2015, Carey filed a motion to proceed pro se and

for access to his discovery. He argued that he “ha[d] been ke[pt] in

the dark on his intire [sic] case”; had not been able to review his

discovery; and, therefore, wished to represent himself.

¶9 At a pretrial hearing on June 11, 2015, Carey expressed

displeasure with his public defender. The trial court found no

conflict of interest in the representation; explained that it would not

be conducting another preliminary hearing; and then advised Carey

concerning a waiver of the right to counsel, consistent with People

v. Arguello, 772 P.2d 87 (Colo. 1989). The court explained that

Carey faced a maximum sentence of forty-eight years of

incarceration. See id.

¶ 10 During the Arguello advisement, Carey said (1) he did not

know what a Curtis advisement was; (2) he had six prior felonies;

and (3) he believed that if one of the named victims said she did not

want to press charges, he could “have got one of those charges

4
dismissed,” even after the court had found probable cause at the

preliminary hearing. See People v. Curtis, 681 P.2d 504, 514 (Colo.

1984). Carey agreed to speak with his public defender once more

before deciding whether to waive his right to counsel.

¶ 11 A week later, the trial court reminded Carey of the earlier

Arguello advisement and asked if he had consulted with counsel.

Carey said he had but that counsel still did not want to give him

access to discovery, “and that’s the biggest thing with me.” The

court then asked Carey if he wanted more time to think about

whether to proceed pro se, and Carey said, “Your Honor, it’s – – I’m

going to have to go pro se on this matter. I’m going to have to do

it.” When the court asked Carey to clarify what he meant, Carey

said,

It’s the only way I feel I’m going to get a fair
trial to where I can examine all the case
against me, if I have access to that, and the
only way I’m going to have access to my
discovery and to all of the evidence that is filed
against me is for me to go pro se.

¶ 12 The court then asked whether Carey remembered their earlier

discussion about the “very substantial prison sentences [he was]

looking at if convicted of these charges,” and Carey said, “[Y]es.”

5
Carey also confirmed his understanding that he would not receive

another preliminary hearing. Carey further confirmed that he had

no ethical or legal conflict with the public defender’s office. And he

also acknowledged the following:

• He was not under the influence of drugs except for

prescribed medications, had no history of mental health

problems, had sufficient time to consult with counsel, and

had completed a GED.

• He had represented himself in a prior mediation, was

familiar with the Colorado Rules of Evidence and Criminal

Procedure, had previously admitted evidence at a motions

hearing and conducted cross-examinations, and knew how

to use process servers to subpoena witnesses for trial.

• He knew that law library access may be limited, that the

State could not provide him a computer, and that

communication with the prosecution may be difficult.

• He understood his right to not testify and knew that

proceeding pro se may impact that right, and he had never

undergone a competency examination.

6
¶ 13 The court inquired again about prior felonies, and the

prosecutor stated his belief that Carey had six. Carey understood

that those convictions could be used against him for credibility

purposes if he testified and that they might be used to aggravate his

sentence if convicted. The court then explained his right to the

assistance of advisory counsel and to have an investigator. It

concluded by saying,

You can be a very smart and intelligent
individual, but this is a complex issue and
rules of evidence and rule[s] of procedure are
significant and important. My concern is you
don’t have sufficient knowledge and training to
do as good of a job as [the public defender] or
any other attorney would. Do you still want to
represent yourself?

Carey responded affirmatively.

¶ 14 Approximately one week later, the prosecutor amended the

charges to add five habitual criminal counts. Carey appeared pro

se the same day, and the trial court appointed advisory counsel.

¶ 15 On August 27, 2015, Carey conceded that he “[could not]

adequately defend [himself].” The court discussed reappointing the

public defender, and Carey stated his willingness to waive speedy

7
trial to accommodate this. Intending to reappoint the public

defender at the next hearing, the court dismissed advisory counsel.

¶ 16 On September 3, 2015, the trial court offered to reappoint the

public defender and gave Cary additional time to consider the

decision. One week later, Carey decided he wished to continue pro

se.

¶ 17 In his postconviction motion, Carey argued that his

“confusion, frustration, and bewilderment” at trial demonstrated

that he had invalidly waived his right to counsel. He argued that

because the trial court relied in part on a psychiatric evaluation3

finding him competent to stand trial in its decision to permit him to

represent himself, it neglected to consider or to apply the

heightened standard for determining competence to represent

oneself set forth in Edwards. He also argued that appellate counsel

was ineffective for failing to raise this issue in the direct appeal.

¶ 18 The postconviction court found the merits of Carey’s argument

successive because they could have been raised in the direct

3 Before trial, the court raised Carey’s competency and received a

report finding him competent. Carey did not object to the court’s
finding, nor did he request a second evaluation.

8
appeal. Turning to the effectiveness of appellate counsel, the

postconviction court found no prejudice, based on People v. Davis,

2015 CO 36M, because this argument was not stronger than the

other issues raised. In Davis, the supreme court rejected the need

for a heightened standard and held that “Colorado’s existing

analytical framework provides the standards necessary for trial

courts to exercise the discretion described in Edwards.” Id. at ¶ 25.

B. Standard of Review and Applicable Law

¶ 19 We review a postconviction court’s denial of a Crim. P. 35(c)

motion without a hearing de novo. People v. Wilson, 397 P.3d 1090,

1094 (Colo. App. 2011). We also review interpretations of the rules

of criminal procedure de novo, People v. Corson, 2016 CO 33, ¶ 44,

including whether a postconviction motion is successive, People v.

Thompson, 2020 COA 117, ¶ 42.

¶ 20 Crim. P. 35(c) permits postconviction review of alleged

constitutional errors in criminal proceedings. People v. Sherman,

172 P.3d 911, 915-16 (Colo. App. 2006). A postconviction court

may deny a Rule 35(c) motion without a hearing when (1) the

motion, files, and record clearly establish that the defendant is not

entitled to relief; (2) the allegations, even if true, do not provide a

9
basis for relief; or (3) the claims are bare and conclusory in nature

and lack supporting factual allegations. See Crim. P. 35(c)(3)(IV);

People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). If a court

summarily denies a postconviction motion, it “shall enter written

findings of fact and conclusions of law in denying the motion.”

Crim. P. 35(c)(3)(IV).

¶ 21 The rule also bars claims that are successive. A Crim. P. 35(c)

claim is successive if it was previously raised and resolved or could

have been previously raised and resolved in a prior appeal or

postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII). “Rule 35

proceedings are intended to prevent injustices after conviction and

sentencing, not to provide perpetual review.” People v. Rodriguez,

914 P.2d 230, 249 (Colo. 1996). Subject to exceptions inapplicable

here, a court is required to deny any successive postconviction

claims. See Crim. P. 35(c)(3)(VI)-(VII).

¶ 22 Finally, “[a]ppellate counsel is not required to raise on appeal

every nonfrivolous issue a defendant desires to raise.” People v.

Trujillo, 169 P.3d 235, 238 (Colo. App. 2007). Appellate counsel’s

choice of which issues to raise is a strategic decision that is

presumed effective and can be overcome “only when ignored issues

10
are clearly stronger than those presented.” Id. (alteration and

citation omitted).

C. Analysis

¶ 23 We agree with the postconviction court that Carey’s claim

concerning his competence to represent himself at trial is

successive and could have been raised in his direct appeal. Indeed,

the record shows that appellate counsel challenged, and a division

of this court specifically addressed, Carey’s waiver of the right to

counsel in the direct appeal. Carey I, No. 16CA0358, slip op. at ¶ 7.

Moreover, while Carey did not object to the competency evaluation’s

findings in the trial court, nothing prevented him from challenging

those findings under the plain error standard of review on direct

appeal.

¶ 24 Additionally, Carey’s argument in his postconviction motion

concerning his incompetence was based on information already in

the record — including his behavior at trial, his equivocation about

whether to represent himself, and the legal standard the district

court applied. He did not identify any specific evidence outside the

record, beyond an assertion that he would have presented a

psychological report addressing the heightened standard, that

11
would necessitate a hearing. See Wilson, 397 P.3d at 1094-95

(competency issue found successive when the record on direct

appeal contained all the information relevant to the competency

determination, and it was unclear what additional information

defendant would have included); cf. Moore v. People, 2014 CO 8, ¶¶

14, 16 (holding that a challenge to a waiver of the right to testify

cannot be raised on direct appeal because whether the waiver was

knowing, voluntary, and intelligent requires consideration of facts

outside the record). Nor did he otherwise explain why this issue

could not have been raised on direct appeal. However, because the

Colorado Supreme Court has held that no such heightened

standard exists in Colorado, supra Part II. A, such a report would

have been immaterial. Therefore, we discern no error in the court’s

decision not to grant a hearing on this issue.

¶ 25 Concerning Carey’s ineffective assistance of appellate counsel

argument, we first note that the opening brief does not challenge

the postconviction court’s basis for denying his claim, i.e., the

holding in Davis, 2015 CO 36M. Instead, Carey argues generally

that an evidentiary hearing was required to show how this

particular claim was a stronger appellate issue than the issues

12
actually raised. But his strength claim is predicated on there being

a heightened standard of competency to proceed to trial, which

Davis specifically rejected. See id. at ¶ 25. He does not distinguish

Davis or otherwise explain why the postconviction court erred in

relying on it. And because the postconviction court and this court

are bound by decisions of the supreme court, we discern no error in

the postconviction court’s finding that there was no ineffective

assistance of appellate counsel. See People v. Harmon, 2019 COA

156, ¶ 3 n.1 (noting that the Colorado Court of Appeals is bound by

holdings of the Colorado Supreme Court)

III. Continuing Arguello Advisement

¶ 26 Carey next contends that the trial court should have given him

another Arguello advisement following the filing of habitual criminal

counts. Specifically, he argues that a court has a continuing duty

to reassess whether a pro se defendant’s waiver of the right to

counsel is voluntary, knowing, and intelligent and that the

postconviction court erroneously denied him a hearing on this

issue. He further argues that appellate counsel was ineffective in

failing to raise this issue on direct appeal. We disagree.

13
A. Standard of Review and Applicable Law

¶ 27 We employ the same standard for reviewing postconviction

motions as set forth above. An indigent defendant has a Sixth

Amendment right to the assistance of counsel in a criminal case.

King v. People, 728 P.2d 1264, 1268 (Colo. 1986). A defendant also

has a correlative Sixth Amendment right of self-representation.

Faretta v. California, 422 U.S. 806, 819 (1975); People v. Johnson,

2015 COA 54, ¶ 16.

¶ 28 “Effective waiver of counsel is a mixed question of fact and

law that we review de novo.” People v. Alengi, 148 P.3d 154, 159

(Colo. 2006). “Courts indulge every reasonable presumption against

a waiver of [the] fundamental right [to counsel],” King, 728 P.2d at

1268, and “[a]ny doubts regarding the waiver must be resolved in

[the] defendant’s favor,” Arguello, 772 P.2d at 93.

¶ 29 We similarly employ the same standard for reviewing the

effectiveness of appellate counsel set forth above. Trujillo, 169 P.3d

at 238.

B. Analysis

¶ 30 We begin with the People’s assertion that this issue is not

preserved for our review and agree that Carey’s motion did not

14
specifically argue a continuing duty to assess the waiver of counsel

under Arguello. Nevertheless, his motion extensively analyzed the

waiver of counsel issue, which arguably included this issue.

Therefore, assuming, without deciding that the issue was preserved,

we conclude, for the same reasons described above, supra Part II.C,

that it could have been raised in the direct appeal and is therefore

successive.

¶ 31 Regarding the effectiveness of appellate counsel in failing to

raise this issue on direct appeal, Carey does not cite any authority

requiring a continuing duty to reassess the validity of a waiver of

counsel. Therefore, we conclude he has failed to show that this

issue was clearly stronger than the issues raised in the direct

appeal. See Trujillo, 169 P.3d at 238.

IV. Conflict of Interest

¶ 32 Carey next contends the postconviction court should have

granted a hearing on whether the trial court failed to properly

inquire into his conflict of interest with the public defender.4 We

4 Carey’s brief groups two other issues with this contention: (1) an

evidentiary issue and (2) an argument that appellate counsel was
ineffective. Because he does not develop these arguments, we do

15
conclude this issue is successive because it was raised and resolved

in the direct appeal.

¶ 33 Because this issue was decided in Carey’s direct appeal, we

conclude it is successive. Indeed, as the previous division noted,

“[o]nce a trial court is put on notice of a potential conflict of interest

between the defendant and defense counsel, it has a duty to inquire

into the propriety of continued representation by counsel.” Carey I,

No. 16CA0358, slip op. at ¶ 23 (citing People v. Edebohls, 944 P.2d

552, 556 (Colo. App. 1996)).

¶ 34 Additionally, and contrary to his claim here, Carey specifically

told the trial court that there was no ethical or legal conflict with

the public defender — he simply wanted full access to his discovery.

Thus, by his own admission, the trial court had nothing to conduct

an inquiry about.

¶ 35 Finally, we are not persuaded by Carey’s assertion that a

hearing was necessary because he had an expert who would testify

about appellate counsel’s ineffectiveness in failing to raise this

not address them. See People v. Liggett, 2021 COA 51, ¶ 53
(appellate courts do not address undeveloped arguments), aff’d,
2023 CO 22.

16
claim. Appellate counsel did raise this conflict claim in the direct

appeal.

¶ 36 Accordingly, we discern no error in the postconviction court’s

ruling.

V. Ineffective Assistance of Pretrial Counsel

¶ 37 Carey next contends that pretrial counsel’s ineffective

assistance and, in particular, counsel’s failure to investigate

coerced him into waiving his right to counsel and, thus, that his

waiver was not knowing, intelligent, and voluntary. He further

contends the postconviction court erred in failing to recognize the

connection between these two events. He also argues that the

cumulative effect of counsel’s errors denied him a fair trial. We

disagree.

A. Additional Facts

¶ 38 In its original ruling on the Rule 35(c) motion, the

postconviction court granted Carey a hearing on “the issue of

ineffective assistance of pre-trial counsel, cumulative error, and

proportionality review” and requested supplemental briefing.

¶ 39 At his postconviction hearing, Carey’s counsel presented

affidavits from T.S. and S.B., the trailer owners, that stated neither

17
believed any criminal charges should have been filed. Specifically,

S.B. said that she did not believe that Carey’s actions constituted a

burglary and also said the case should have been settled or resolved

without a criminal trial.

¶ 40 Postconviction counsel then argued that if the ineffective

assistance of pretrial counsel induces the defendant into waiving

his right to counsel, such waiver cannot be deemed knowing,

intelligent, and voluntary. Counsel further argued that Carey’s

pretrial counsel was ineffective in failing to conduct even the most

minimal investigation into the alleged victim’s potential statements.

Carey’s counsel argued that had pretrial counsel interviewed T.S.

and S.B. at the outset of the case, the court would have learned

that each of them had “reservations about whether a crime was

committed, whether the crime went anything beyond misdemeanor

third-degree assault, and whether [Carey] should have been

prosecuted at all.” Counsel further argued that, had pretrial

counsel conducted these interviews, Carey would not have waived

his right to counsel and elected to represent himself.

¶ 41 In a thorough, written order, the postconviction court

concluded that the record did not support Carey’s failure to

18
investigate claim. Citing pretrial hearings, the court found that “the

primary reason [Carey] chose to proceed pro se was based on

pretrial counsel’s decision not to allow [Carey] unfettered access to

discovery during [Carey’s] pretrial incarceration.” It further found

that Carey failed to prove prejudice, noting that (1) the prosecution

was fully aware of the witnesses’ feelings about the case and did not

dismiss it; (2) before trial, Carey litigated whether he could

introduce this information at trial; (3) Carey admitted that he asked

the prosecution to dismiss the case based on these witnesses’

feelings; and (4) the jury heard the witnesses’ feelings and still

convicted him. The court found that because Carey could not

demonstrate that he received ineffective assistance of pretrial

counsel, his claim that his waiver of counsel was coerced by

counsel’s failure to investigate failed.

B. Standard of Review and Applicable Law

¶ 42 Because the postconviction court is the trier of fact at an

evidentiary hearing on a postconviction motion, we defer to the

court’s factual findings when they are supported by the record, but

we review its legal conclusions de novo. West v. People, 2015 CO 5,

¶ 11.

19
¶ 43 To prevail on a claim of ineffective assistance of counsel, a

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

and (2) the deficient performance prejudiced the defense. Dunlap v.

People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

¶ 44 Under the first prong, to establish deficient performance, the

defendant must show that counsel’s representation “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688.

“[J]udicial scrutiny of counsel’s performance must be highly

deferential, evaluate particular acts and omissions from counsel’s

perspective at the time, and indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Ardolino v. People, 69 P.3d 73, 76 (Colo.

2003). Under the second prong, to establish prejudice, the

defendant must show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. A

reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Id.

20
C. Analysis

¶ 45 We agree with the postconviction court that Carey failed to

establish the ineffective assistance of pretrial counsel by a

preponderance of the evidence, for three reasons. First, Carey’s

motion alleged counsel failed to interview unidentified relevant

witnesses, but he produced the affidavits of only two witnesses

whose statements and feelings about the case were disclosed to the

prosecution well before trial and to the jury during trial.

¶ 46 Second, his motion alleged that pretrial counsel failed to

appropriately test the machete and to advise him on the law. But at

the hearing, Carey produced no testing results, expert testimony, or

investigation by his private investigator to establish that any

particular testing would have been more appropriate or possibly

yielded different results. Moreover, Carey’s motion did not identify,

nor did he argue at the hearing, the particular area of law on which

counsel should have advised him.

¶ 47 Finally, the record supports the court’s finding that a lack of

pretrial investigation did not coerce Carey to waive his right to

counsel. Indeed, the numerous pretrial hearings are replete with

Carey’s complaints concerning counsel’s decision not to give him

21
unfettered access to his discovery and Carey’s decision to proceed

pro se to remedy this situation. Because the record supports the

court’s findings, we affirm its ruling.

VI. Proportionality

¶ 48 Carey last contends that his sixty-four-year habitual criminal

sentence raises an inference of gross disproportionality that

requires an extended proportionality review. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 49 We review de novo whether a defendant’s sentence is grossly

disproportionate. Wells-Yates v. People, 2019 CO 90M, ¶ 35 (Wells-

Yates I).

¶ 50 The Eighth Amendment to the United States Constitution and

article II, section 20, of the Colorado Constitution both prohibit

cruel and unusual punishments. These provisions forbid extreme

sentences that are grossly disproportionate to the crime. Wells-

Yates I, ¶¶ 5, 10 (citing Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (Kennedy, J., concurring)).

¶ 51 In assessing a defendant’s challenge to the proportionality of

their sentence, a court first conducts an abbreviated proportionality

review. People v. Wells-Yates, 2023 COA 120, ¶ 15 (Wells-Yates II).

22
During an abbreviated proportionality review, the court considers

two subparts to determine whether the sentence gives rise to an

inference of gross disproportionality: (1) the gravity or seriousness

of the offense and (2) the harshness of the penalty. Wells-Yates I,

¶¶ 7-8, 11.

¶ 52 The analysis expands slightly, however, when a defendant

challenges the proportionality of a habitual criminal sentence. In

that instance, the court must analyze the gravity or seriousness of

all the offenses in question (the triggering offense and the predicate

offenses) and the harshness of the sentence imposed on the

triggering offense. Id. at ¶ 23. If this first step gives rise to an

inference of gross disproportionality, the court must proceed to the

second step and conduct an extended proportionality review. See

id. at ¶ 7 (discussing the step-two analysis). But if the step-one

analysis does not give rise to an inference of gross

disproportionality, the proportionality challenge fails, and the court

must uphold the sentence. Id. at ¶ 8.

¶ 53 Some offenses are “per se” grave or serious, allowing the court

to skip over the first step of the abbreviated proportionality review.

Id. at ¶ 13. The standard for designating offenses per se grave or

23
serious is whether the offense in question “necessarily involve[s]

grave or serious conduct.” Wells-Yates I, ¶ 63. For offenses that

are not deemed per se grave or serious, the court may still

determine on a case-by-case basis that a defendant’s particular

crime constituted a grave or serious offense after considering the

surrounding facts and circumstances. Id. at ¶ 71; see, e.g., People

v. Tran, 2020 COA 99, ¶ 101.

B. Analysis

¶ 54 Carey challenges only the predicate offenses the court found to

be grave or serious, including his second degree burglary and motor

vehicle theft convictions in El Paso County Case No. 86CR3817, a

sexual assault on a child conviction in El Paso County Case No.

87CR2842, and a possession of a controlled substance with intent

to distribute conviction in El Paso County Case No. 06CR1847. We

address each predicate offense separately and affirm the court’s

findings that each is grave or serious.

1. Case No. 86CR3817

¶ 55 In this case, Carey pleaded guilty to breaking into a John

Deere facility with an accomplice by cutting a wire fence, hotwiring

and stealing a truck, stealing a generator, and stealing cases of oil.

24
The court noted that both convictions were class four felonies and

were completed rather than attempted crimes and that Carey acted

as the principal. While acknowledging that these were not the most

grave or serious offenses, the court found both to be grave or

serious due to the significant financial losses suffered by the victim

and Carey’s substantial culpability. See Wells-Yates I, ¶ 12 (listing

factors relevant to the gravity or seriousness of an offense).

Considering the “facts and circumstances of the particular crime

committed,” id. at ¶ 71, we agree with the postconviction court that

these convictions are somewhat grave or serious, see Wells Yates II,

¶¶ 48-51 (finding that a nonviolent second degree burglary of an

unoccupied home to steal property was grave or serious).

2. Case No. 87CR2842

¶ 56 In this case, Carey pleaded guilty to having sexual relations

with a fourteen-year-old child he knew. The postconviction court

rejected his arguments that the victim’s consent and that he had

originally pleaded guilty under a deferred judgment mitigated the

seriousness of the offense. Because the record supports the court’s

factual findings and because numerous courts have found sexual

assault on a child to be grave or serious, we similarly conclude this

25
predicate offense is grave or serious. See People v. McCulloch, 198

P.3d 1264, 1269 (Colo. App. 2008) (finding an attempt to lure a

seventeen-year-old boy into a consensual sexual encounter to be

grave or serious); People v. Strean, 74 P.3d 387, 396 (Colo. App.

2002) (finding sexual assault on a child to be grave or serious).

3. Case No. 06CR1947

¶ 57 In this case, Carey pleaded guilty to possession of a controlled

substance (a class 2 felony), possession of a controlled substance

with intent to distribute (a class 2 felony) and resisting arrest.

Following a traffic stop, police officers recovered a large amount of

cocaine and methamphetamine from Carey’s vehicle, along with

scales, numerous plastic bags, needles, and spoons. The court

found these crimes grave or serious due to the large quantity of

drugs and materials needed to distribute the drugs, Carey’s

admitted culpability, the high-level felony classification, and the

fact that they were completed. Because the record supports the

court’s findings, and considering the specific circumstances of these

crimes, we discern no error in the court’s finding that both crimes

are grave or serious.

26
4. Triggering Offenses

¶ 58 The postconviction court then considered the triggering

offenses and found them to be grave or serious. We first conclude

that Carey’s first degree burglary conviction is per se grave or

serious. See Wells-Yates I, ¶ 65. Next, we conclude that Carey’s

second degree burglary conviction is grave or serious based on the

fact that he broke into an occupied residence armed with a deadly

weapon and then threatened and injured two occupants. Finally,

we conclude that Carey’s two felony menacing convictions, which

involved breaking into a residence while brandishing a deadly

weapon, are also grave or serious. See Well-Yates I, ¶ 64 (finding

any offense involving knowing conduct and grave harm or

threatened harm to the victim is grave or serious).

¶ 59 Considering these triggering offenses, together with the

predicate offenses and their relative harm to society, we conclude

that this is not one of those “‘rare case[s]’ in which [an] abbreviated

proportionality review leads to an inference of gross

disproportionality.” Wells-Yates II, ¶ 64. Nor do we find the

postconviction court’s finding that two of his prior offenses were not

grave or serious to be dispositive. We need not deem every

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predicate offense grave or serious to reject Carey’s proportionality

challenge. See Wells-Yates I, ¶ 24 (“[T]he inquiry is whether the

corresponding triggering offense and the predicate offenses,

considered together, are so lacking in gravity or seriousness as to

suggest that the sentence is grossly disproportionate.”); see also

Wells-Yates II, ¶¶ 65-66 (finding no inference of gross

disproportionality in habitual sentence for second degree burglary,

despite deeming the predicate offenses “not especially grave or

serious”). Accordingly, we affirm the sentence.

VII. Disposition

¶ 60 The judgment is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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