Peo v. Alexander

20CA1600 Peo v Alexander 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1600

City and County of Denver District Court No. 07CR6666

Honorable John W. Madden IV, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Darrick Damon Alexander,

Defendant-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE LIPINSKY

J. Jones and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Darrick Damon Alexander, Pro Se

1

¶ 1

Darrick Damon Alexander appeals the district court’s order

denying his motion seeking a change to his sentences to conform to

the drug classification and sentencing statutes that were amended

after he was convicted and sentenced. We affirm.

I. Background

¶ 2

The prosecution charged Alexander with offenses that

occurred in 2007. A jury convicted him of second degree assault of

a peace officer, a class 4 felony; possession with intent to distribute

a schedule II controlled substance, a class 3 felony; and possession

of a schedule II controlled substance, a class 4 felony. The court

subsequently adjudicated him a habitual criminal based on three

prior felonies, and sentenced him to a controlling sentence of sixty-

four years in the custody of the Department of Corrections for the

class 3 felony. A division of this court affirmed Alexander’s

convictions, and the mandate was issued on May 17, 2016. See

People v. Alexander, (Colo. App. No. 10CA0047, Oct. 8, 2015) (not

published pursuant to C.A.R. 35(f)).

¶ 3

In July 2020, Alexander filed a pro se motion requesting that

the district court adjust or correct his sentences. Specifically, he

argued that he was entitled to have his sentences corrected because

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legislative changes to the drug and habitual criminal statutes

(1) rendered his drug offense convictions no longer felonies; and

(2) eliminated habitual criminal aggravation for drug offenses.

¶ 4

The district court denied the motion, finding that, while

section 18-1-410, C.R.S. 2021, allows for retroactive application of

a significant change in the law, a defendant is only entitled to the

benefit of ameliorative amendatory legislation if he seeks such relief

before his conviction becomes final. And, because Alexander did

not seek that benefit before his conviction became final in May

2016, the court held that the legislative changes did not apply to

him.

II. Discussion

¶ 5

Alexander contends that he is entitled to have his sentences

reduced because (1) his drug offense convictions are no longer

felonies but are now drug felonies subject to reduced sentencing

ranges; and (2) drug felonies are no longer subject to habitual

criminal sentencing. We disagree.

¶ 6

We note initially that, based on his adjudication as a habitual

criminal, Alexander’s sixty-four-year sentence for possession with

intent to distribute a schedule II controlled substance was

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authorized by the statutes in effect when he committed that crime

in 2007. See § 18-1.3-401(1)(a)(V)(A), C.R.S. 2007 (providing that

the class 3 felony sentencing range is four to twelve years in the

custody of the Department of Corrections); § 18-1.3-401(10)(a),

(b)(XI), C.R.S. 2007 (providing that possession with intent to

distribute is an extraordinary risk crime that increases the

presumptive sentencing range maximum by four years);

§ 18-18-405(1)(a), (2)(a)(I)(A), C.R.S. 2007 (providing that possession

with intent to distribute a schedule II controlled substance is a

class 3 felony); § 18-1.3-801(2), C.R.S. 2007 (stating that, upon

being adjudicated a habitual criminal based on three prior felonies,

the court shall sentence the offender to four times the maximum of

the presumptive range).

A. Retroactivity

¶ 7

Whether a court may apply a statute retroactively is a question

of statutory interpretation that we review de novo. People v.

Gregory, 2020 COA 162, ¶ 15, 479 P.3d 76, 80 (citing People v.

Stellabotte, 2018 CO 66, ¶ 3, 421 P.3d 174, 175).

¶ 8

“[A]meliorative, amendatory legislation applies retroactively to

non-final convictions . . . unless the amendment contains language

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indicating it applies only prospectively.” Stellabotte, ¶ 38, 421 P.3d

at 182 (emphasis added). Courts are bound by statutory language

providing that the statute applies prospectively. See People v.

Summers, 208 P.3d 251, 257 (Colo. 2009).

¶ 9

In 2013, the General Assembly amended the controlled

substance statutes to reclassify drug offenses into different levels of

drug felonies and to create a new sentencing scheme for drug

felonies. See Ch. 333, secs. 4, 10, §§ 18-1.3-401.5, 18-18-405,

2013 Colo. Sess. Laws 1903-07, 1909-13. However, that legislation

expressly provided that those changes only apply to offenses

committed on or after October 1, 2013. See Ch. 333, sec. 71,

2013 Colo. Sess. Laws 1943.

¶ 10

Because Alexander committed his offenses in 2007, before the

effective date of the new legislation, he is not entitled to the

retroactive benefit of this amendment. See Stellabotte, ¶ 3,

421 P.3d at 175; see also People v. McRae, 2019 CO 91, ¶ 15,

451 P.3d 835, 839 (holding that the defendant was not entitled to

the retroactive benefit of statutory amendments because “the

amendments were enacted after the date of the triggering offense

and were intended to apply prospectively”).

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¶ 11

Accordingly, the district court did not err by denying

Alexander’s motion. See People v. Glover, 2015 COA 16, ¶ 22,

363 P.3d 736, 741 (holding that we may affirm a district court’s

ruling on any grounds supported by the record).

¶ 12

Moreover, an application for postconviction review alleging

that “there has been significant change in the law, applied to the

applicant’s conviction or sentence, allowing in the interests of

justice retroactive application of the changed legal standard,”

§ 18-1-410(1)(f)(I), C.R.S. 2021, only applies if the defendant

requests that relief before the conviction becomes final.

§ 18-1-410(1)(f)(II); see also People v. Cali, 2020 CO 20, ¶¶ 22-24,

459 P.3d 516, 520-21 (holding that, when a defendant does not

raise the issue of whether he is entitled to the benefits of

amendatory legislation that substantially reduces the penalty for

the crime before his conviction becomes final, the trial court is

without authority to apply that amendatory legislation to his

conviction); Stellabotte, ¶ 33, 421 P.3d at 181 (holding that

retroactive application of a significant change in the law to a

defendant’s conviction or sentence applies only before the

conviction is final); Glazier v. People, 193 Colo. 268, 269, 565 P.2d

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935, 936 (1977) (“As we have repeatedly held, a defendant is

entitled to the benefits of amendatory legislation when relief is

sought before finality has attached to the judgment of conviction.”).

B. Drug Felonies Are Subject to the Habitual Criminal Statute

¶ 13

We likewise reject Alexander’s contention that his sentences

should be reduced because the 2013 amendments to the habitual

criminal statute removed drug felonies from the scope of the

habitual criminal sentencing statutes.

¶ 14

First, like the reclassification of drug offenses discussed above,

the 2013 amendments to the habitual criminal statute are effective

for offenses committed on or after October 1, 2013. See Ch. 333,

sec. 36, § 18-1.3-801, 2013 Colo. Sess. Laws 1927-28; Ch. 333,

sec. 71, 2013 Colo. Sess. Laws 1943. Thus, any changes to that

statute would not apply to Alexander’s convictions.

¶ 15

Second, contrary to Alexander’s contention, those

amendments did not remove drug felonies from the scope of the

habitual criminal sentencing statutes. See § 18-1.3-801(2)(a)(I),

C.R.S. 2021; see also People v. Loris, 2018 COA 101, ¶¶ 38-41,

434 P.3d 754, 759-60 (concluding that drug felony convictions are

still subject to habitual criminal sentencing).

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III. Conclusion

¶ 16

The order is affirmed.

JUDGE J. JONES and JUDGE GOMEZ concur.