Opinion by JUDGE BERGER
Boulder County District Court Nos. 11CR1849 & 11CR1850
Honorable Maria E. Berkenkotter, Judge
Honorable Roxanne Bailin, Judge JUDGMENT AND SENTENCE AFFIRMED Division II
Opinion by JUDGE BERGER
Dailey and J. Jones, JJ., concur Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶ 1 A jury convicted defendant, Kyle Brooks, of eight substantive offenses, including two counts of tampering with a witness or victim. The district court adjudicated Brooks a habitual criminal under section 18-1.3-801(2), C.R.S. 2016, and imposed a statutorily mandated sentence of twenty-four years' imprisonment. ¶ 2 Brooks appeals, claiming that (1) there was insufficient evidence to support one of his convictions of tampering with a witness or victim; (2) in adjudicating him a habitual criminal, the district court improperly took judicial notice of material in court files; (3) his guilty plea in one of the underlying convictions on the habitual criminal charges was constitutionally invalid, thus voiding his habitual criminal conviction; and (4) the court erred in concluding that his sentence was not disproportionate and in failing to conduct an extended proportionality review of his sentence. Because we hold as a matter of first impression that the tampering with a witness or victim statute does not require that the "attempt" to tamper actually be communicated to the victim or witness, we reject Brooks' sufficiency argument. We also reject his other contentions and affirm the judgment and sentence.
I. Relevant Facts and Procedural History
¶ 3 Brooks discovered that his girlfriend was pregnant with another man's child, argued with her, and then assaulted her. A bystander called the police. Before the police arrived, Brooks fled. ¶ 4 The police planned to arrest Brooks when he appeared for an unrelated court appearance. When officers contacted Brooks at the courthouse, he resisted arrest and struggled with them. The officers restrained and arrested him. ¶ 5 While in jail, Brooks repeatedly telephoned his girlfriend (the victim) and others in an attempt to persuade them not to testify against him on the domestic violence charge or to testify falsely. The jail recorded these conversations and turned them over to the prosecution. These telephone calls were the basis for Brooks' first conviction for tampering with a witness or victim, a class 4 felony. Brooks does not appeal that conviction. ¶ 6 After the jail officers learned of these telephone calls, Brooks' telephone privileges were discontinued, but that did not stop him from further trying to tamper with the victim. Instead of phone calls, he wrote letters to the victim to persuade her either not to testify or to testify falsely on his behalf. Because he knew that if he habitual criminal. The court imposed a twenty-four-year sentence of imprisonment, as mandated by the habitual criminal statute. ¶ 9 Brooks requested and received an abbreviated proportionality review of the mandatory sentence. At the conclusion of that hearing, the district court concluded that Brooks' sentence was not disproportionate to his offenses and denied him an extended proportionality review.
II. There Was Sufficient Evidence to Support Brooks' Conviction
For Tampering With a Witness or Victim
¶ 10 Brooks argues that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them. Because this argument relies on an unwarranted reading of the tampering statute, we reject it. ¶ 11 The statute provides as follows:
A person commits tampering with a witness or victim if he
intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to:
(a) Testify falsely or unlawfully withhold any testimony; or
(b) Absent himself from any official proceeding to which he has been legally summoned; or
(c) Avoid legal process summoning him to testify.
§ 18-8-707(1), C.R.S. 2016 (emphasis added). ¶ 12 Statutory interpretation is a question of law that we review de novo.
Marsh v.
People, 2017 CO 10M, ¶ 19;
Wolf Ranch,
LLC v.
City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009). We begin by applying two principles to the words and phrases at issue in the statute. First, we give the words and phrases their plain and ordinary meaning according to the rules of grammar and common usage.
People v.
Voth, 2013 CO 61, ¶ 21,
Sidman v.
Sidman, 2016 COA 44, ¶ 13;
§ 2-4-101, C.R.S. 2016. Second, we consider the words or phrases both in the context of the statute and in the context of any comprehensive statutory scheme of which the statute
was entitled to find that Brooks did everything within his power to attempt to unlawfully influence the victim. He wrote the letters, concealed them from the jail staff, and asked another inmate to deliver them to the victim. The fact that Brooks' scheme failed provides him no defense. ¶ 19 For these reasons, we conclude that there was sufficient evidence to support Brooks' second conviction for tampering with a witness or victim.
Contrary to the Attorney General's claim, Brooks did not waive this argument. Brooks conceded there was sufficient evidence to convict him of the supposed inchoate crime of attempt to tamper with a witness or victim, but he did not concede there was sufficient evidence to convict him of the substantive crime of tampering with a witness or victim. Because Brooks contended the inchoate crime and the substantive crime were substantially different, his concession that there was sufficient evidence to convict him of the uncharged inchoate crime did not waive his sufficiency of the evidence claim regarding the substantive crime of which he was convicted.
Brooks did not waive this argument either. He acquiesced in the trial court's elemental instruction on tampering with a witness or victim but did not waive his argument that, to sustain a conviction, the tampering had to actually be communicated to the victim.
Brooks makes a perfunctory argument that the trial court erred when it defined the word "attempt" by utilizing the definition contained in the criminal attempt statute, section 18-2-101, C.R.S. 2016. Brooks contends that the common dictionary definition of "attempt" should have been used instead. The common meaning of the word attempt is "to make an effort to do, accomplish, solve, or effect." Webster's Third New International Dictionary 140 (2002). But the use of the statutory definition of criminal attempt was more favorable to Brooks than the dictionary definition because it imposed a greater proof burden on the prosecution. Therefore, any error in this respect could not have harmed Brooks. This conclusion also makes it unnecessary for us to determine in this case what meaning should be given to the word "attempt" in the tampering statute. "[I]f it is not necessary to decide more, it is necessary not to decide more[.]" PDK Labs. Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).
III. The District Court Did Not Abuse Its Discretion in Taking
Judicial Notice of Court Files in the Habitual Criminal
Adjudication, and Sufficient Evidence Supported the Habitual
Criminal Adjudication
¶ 20 Brooks argues that the district court abused its discretion in taking judicial notice of the complete case files of his prior felony convictions and that without such improper judicial notice there was insufficient evidence to support the habitual criminal adjudication. ¶ 24 The registers of actions for these felony convictions establish the following:
• In Boulder District Court case number 10CR716, Brooks pleaded guilty to first degree trespass of a dwelling on June 18, 2010, with an offense date of February 5, 2010.
• In Boulder District Court case number 10CR760, Brooks pleaded guilty to theft from a person June 18, 2010, with an offense date of April 17, 2010.
The information contained in the registers of actions made a prima facie showing that these cases addressed different criminal conduct that occurred on different dates. ¶ 25 But because Brooks entered guilty pleas in both cases on the same date and in the same court, whether the prosecution separately brought and tried these cases is a closer question. The proof required to establish whether two guilty pleas entered on the same date would have been separately tried is whether — under the mandatory joinder statute — they arose out of separate and distinct criminal episodes.
People v.
Jones, 967 P.2d 166, 169 (Colo. App. 1997). Information such as the dates on which the crimes were committed and the types of crimes committed may prove that the
informations, with separate docket numbers, arising out of separate criminal incidents."
Id. ¶ 28 While Brooks was free to attempt to disprove these facts, he chose not to do so. It follows that sufficient evidence supported Brooks' habitual criminal conviction.
IV. Brooks' Guilty Plea to Felony Theft Was Valid
¶ 29 Brooks argues that his plea of guilty to felony theft from a person — his third underlying felony conviction — was constitutionally invalid and thus could not support his habitual criminal conviction. ¶ 30 "A prior conviction obtained in a constitutionally invalid manner cannot be used against an accused in a subsequent criminal proceeding to support guilt or to increase punishment." Lacy v. People, 775 P.2d 1, 4 (Colo. 1989). ¶ 31 To attack the constitutional validity of his prior conviction, a defendant must make a prima facie showing that the challenged conviction was unconstitutionally obtained. Watkins v. People, 655 P.2d 834, 837 (Colo. 1982). "A prima facie showing in the context of this case means evidence which, when considered in a light most favorable to the defendant with all reasonable inferences drawn in his favor, will permit the court to conclude that the defendant's plea of guilty was not understandingly made." Id. ¶ 32 Brooks arguably made such a prima facie case by demonstrating that the plea court did not advise him of all the "critical elements" of felony theft, section 18-4-401(5), C.R.S. 2016. During the providency hearing, the court had the following exchange with Brooks:
Court: How do you plead with respect to that added Count 2 which charges on or about April 17, 2010, in or triable in the County of Boulder, State of Colorado, you unlawfully, feloniously and knowingly took a thing of value, namely a purse, from the person of [female victim], in violation of
Section 18-4-401, sub 1, sub 5, CRS?
. . . Mr. Brooks, how do you plead with respect to added Count 2?
Brooks: I wish to plead guilty, Your Honor.
¶ 33 The court's advisement and the charging document (which mirrored the court's advisement) did not advise Brooks of the specific intent element of the crime: a defendant must "[i]ntend[] to deprive the other person permanently of the use or benefit of the thing of value."
§ 18-4-401(1)(a). Thus, for present purposes we assume that Brooks' conviction was constitutionally invalid unless
involvement in the crime of theft. Thus, unlike in
Martin, the court did not render Brooks' plea unconstitutional by failing to explain the elements of complicity. ¶ 49 For these reasons, we conclude that Brooks made his plea voluntarily and knowingly and that the district court did not err in finding that it was a valid prior felony conviction under the habitual criminal statute.
Although we conclude that Brooks' plea was voluntary and knowing, we do not agree with the Attorney General that this is so solely because Brooks conferred with his counsel. "[A] showing that defense counsel gave some explanation to his client of the charge to which the guilty plea is tendered does not by itself sufficiently demonstrate that the defendant knew the critical elements of the crime when the plea was entered." Lacy v. People, 775 P.2d 1, 6 (Colo. 1989).
V. Brooks' Habitual Criminal Sentence Was Not Grossly
Disproportionate to His Crimes
¶ 50 A habitual criminal sentence violates the Eighth Amendment if it is grossly disproportionate to the defendant's crimes. See People v. Deroulet, 48 P.3d 520, 523-24 (Colo. 2002). Brooks argues that the district court erred in concluding that his sentence was not grossly disproportionate to his crimes and in not granting him an extended proportionality review. We reject his argument. ¶ 53 "If, and only if, that abbreviated proportionality review gives rise to an inference of gross disproportionality does a . . . court need to engage in an extended proportionality review," in which it compares the sentence at issue to sentences for the same offense in the same jurisdiction and other jurisdictions. Close v. People, 48 P.3d 528, 536 (Colo. 2002). If the abbreviated proportionality review yields no inference of gross disproportionality, the district court must impose the sentence mandated by the habitual criminal statute. Hargrove, ¶ 14. ¶ 54 Whether an abbreviated proportionality review yields an inference of gross disproportionality is a question of law that we review de novo. People v. McNally, 143 P.3d 1062, 1064 (Colo. App. 2005).
A. Triggering Offenses
¶ 55 Tampering with a witness or victim is not a per se "grave or serious" offense. However, we agree with the district court that the facts underlying these crimes were grave or serious. ¶ 56 The district court explained that Brooks' attempts to tamper with the victim constituted "an extensive and extreme scheme to tamper with the witness; in fact, I have never seen anything like it." ¶ 57 The prosecution identified at least 250 phone conversations in which Brooks attempted to tamper with a witness or victim. Further, as noted above, even after his conduct came to light, his phone privileges were suspended, and he was charged with the first count of tampering, Brooks continued his attempts to tamper with the victim. For these reasons, we conclude that his conduct demonstrated a blatant disregard for the law and thus constituted a grave or serious offense.
To the extent that Brooks argues that his alcohol and drug problems mitigated the seriousness of his conduct regarding tampering with a witness or victim, we reject the argument because we assume that he was not under the influence of drugs or alcohol while he was in jail pending trial.
B. Predicate Offenses
¶ 58 We agree with Brooks that his predicate offenses of criminal trespass of a motor vehicle, criminal trespass of a dwelling, and theft from a person were not per se grave or serious. None of these offenses fall within the list of offenses designated as per se grave or serious by Colorado courts. See Deroulet, 48 P.3d at 524. But, as we have explained above, that does not end the inquiry. We must also consider the particular facts of these offenses to determine if they were grave or serious. Hargrove, ¶ 12. ¶ 59 The underlying facts of the criminal trespass of a motor vehicle conviction were that Brooks broke into a victim's car and stole some property. As for the criminal trespass of a dwelling conviction, the underlying facts were that Brooks took property from a house during a party to which he had been invited. The underlying facts of Brooks' theft from a person conviction were that he distracted a woman by asking for a cigarette, so that another man could steal her purse. ¶ 60 Even if we assume without deciding that the predicate offenses were not grave or serious, that too does not end the matter. Instead, we must consider the triggering and predicate offenses as a whole. Deroulet, 48 P.3d at 524-25.
C. Comparison of Gravity of Crimes to Severity of Punishment
¶ 61 We now compare the gravity of Brooks' offenses as a whole to the severity of his twenty-four-year habitual criminal sentence, giving great deference to the General Assembly's determinations of criminal penalties. Id. at 527. lesser included misdemeanor offenses of two counts of assault in the third degree against his pregnant girlfriend, two counts of third degree assault against a peace officer, and resisting arrest. All of these crimes involved violence. Following Austin, we consider Brooks' conduct underlying these misdemeanor convictions in determining whether the sentence imposed was grossly disproportionate. Considering all of the convictions and the underlying circumstances as a whole, we agree with the district court that Brooks' twenty-four-year mandatory sentence was not grossly disproportionate.
In addition to the offenses discussed above, the district court considered Brooks' separate felony conviction for contributing to the delinquency of a minor, which was entered after his conviction under the habitual criminal statute. The contributing to the delinquency of a minor conviction was based on events that predated the triggering offenses, but the judgment of conviction was not entered until Brooks was sentenced under the habitual criminal statute. Therefore, this conviction could not have served as a predicate offense (and indeed, it was not pleaded as such). People v. Loyas, 259 P.3d 505, 512 (Colo. App. 2010). Whether erroneous or not, the district court's consideration of this conviction does not alter our analysis or conclusion. --------
VI. Conclusion
¶ 64 The judgment of conviction and sentence are affirmed. JUDGE DAILEY and JUDGE J. JONES concur.