COLORADO COURT OF APPEALS                                       2017COA80


Court of Appeals No. 13CA1750
Boulder County District Court Nos. 11CR1849 & 11CR1850
Honorable Maria E. Berkenkotter, Judge
Honorable Roxanne Bailin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kyle Brooks,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                    Division II
                          Opinion by JUDGE BERGER
                         Dailey and J. Jones, JJ., concur

                           Announced June 15, 2017


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.




                                    1
             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


                                    2
 attempted to mail the letters to the victim they would be intercepted

 by the jail, he hid them in an issue of Westword magazine and

 asked his cellmate to deliver them to the victim after the cellmate

 was released from jail. His cellmate refused to participate and

 instead gave the letters to a jail officer. As a result of this

 interception, the victim never received the letters. These letters

 formed the basis of the prosecution’s second count of tampering

 with a witness or victim.

¶7    The jury acquitted Brooks of assault in the second degree

 (either a class 4 or class 6 felony) and two counts of disarming a

 peace officer (a class 5 felony), but the jury convicted him of two

 counts of assault in the third degree against the victim (a class 1

 misdemeanor), two counts of assault in the third degree against a

 peace officer (a class 1 misdemeanor), resisting arrest (a class 2

 misdemeanor), violation of a protection order (a class 1

 misdemeanor), and the two counts of tampering with a witness or

 victim (both class 4 felonies) discussed above.

¶8    After the jury returned its verdicts, the district court held a

 trial on the habitual criminal count and adjudicated Brooks a




                                     3
  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.1

  Because this argument relies on an unwarranted reading of the

  tampering statute, we reject it.


  1 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.

                                     4
¶ 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

                                    5
  is a part. Doubleday v. People, 2016 CO 3, ¶ 20; Jefferson Cty. Bd.

  of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). By

  applying these principles, we attempt to determine the General

  Assembly’s intended meaning of the words or phrases, and

  harmonize that meaning with the comprehensive statutory scheme.

  Id. If the statutory language is not susceptible of more than one

  reasonable meaning, we enforce it as written and do not resort to

  other rules of statutory construction. Davison v. Indus. Claim

  Appeals Office, 84 P.3d 1023, 1036 (Colo. 2004); People v. Dist.

  Court, 713 P.2d 918, 921 (Colo. 1986).

¶ 13   Brooks argues that while an attempt to tamper need not be

  successful, the statute nevertheless requires that the attempt to

  tamper must at least reach the victim or witness.2 Because it is

  undisputed that the letters did not reach the victim, Brooks claims

  that there was insufficient evidence to support his conviction. He

  concedes that he is guilty of a criminal attempt, as defined in

  section 18-2-101(1), C.R.S. 2016, to tamper with a witness or


  2 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.

                                    6
  victim, but notes that he was not charged with this crime (a crime

  that, as we discuss below, does not exist).

¶ 14   We reject this argument because the concept of attempt is

  built into the tampering statute — the crime is completed when a

  defendant “intentionally attempts” to tamper with a victim or

  witness. § 18-8-707(1). If there were such a crime as attempted

  tampering with a witness or victim, it would be defined as “engaging

  in conduct constituting a substantial step toward the commission of

  the offense” of “intentionally attempt[ing]” to tamper with a witness

  or victim. See §§ 18-2-101(1), 18-8-707. We conclude that no such

  crime exists because it would be illogical to recognize a crime

  premised on an attempt to attempt, and “[a] statutory interpretation

  leading to an illogical or absurd result will not be followed.” Frazier

  v. People, 90 P.3d 807, 811 (Colo. 2004).

¶ 15   People v. Yascavage, 101 P.3d 1090 (Colo. 2004), does not

  require a different result. In Yascavage, the Colorado Supreme

  Court held that there was insufficient evidence to support the

  defendant’s conviction for solicitation to tamper with a witness or

  victim. Id. at 1096. Brooks argues that the court’s recognition of

  the crime of solicitation to tamper with a witness or victim


                                     7
  necessitates the recognition of the crime of attempting to tamper

  with a witness or victim. Brooks cites no authority, and we have

  found none, for the proposition that the existence of one inchoate

  form of an offense requires the existence of other inchoate forms of

  the offense.

¶ 16   We also observe that the Yascavage court held that “[t]he

  purpose of the [tampering with a witness or victim statute] was to

  punish any attempt to induce another to testify falsely or otherwise

  to subvert the administration of justice.” Id. at 1092 (emphasis

  added). Thus, Yascavage provides no support for Brooks’

  contention that there is a crime of attempt to attempt to tamper

  with a witness or victim.

¶ 17   Neither does People v. Scialabba, 55 P.3d 207 (Colo. App.

  2002), in which the division held that the defendant, who was

  charged with witness tampering, was not entitled to an instruction

  on the affirmative defense of abandonment. The defendant sent a

  letter to the victim trying to convince her not to appear in court and

  also asked his mother to tell the victim not to appear in court. Id.

  at 210. Because the defendant had completed the crime when he

  sent the letter and asked his mother to dissuade the victim from


                                    8
  testifying, the division held that he was not entitled to an

  abandonment instruction. Id. at 210-11. Contrary to Brooks’

  contention, the division did not hold that attempted but

  unaccomplished communication with the victim or witness could

  not support a conviction under the statute.

¶ 18   Nothing in the plain language of the statute requires that the

  defendant actually contact a witness or victim either. Rather, an

  attempt by the defendant to do so is all the statute requires in this

  respect. The trial court instructed the jury that “attempt” in the

  tampering with a witness or victim statute means, “intentionally

  engaging in conduct constituting a substantial step toward the

  commission of the crime of Tampering with a Witness.”3 The jury



  3 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

                                     9
  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.

   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.




  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).

                                      10
¶ 21   A conviction under the habitual criminal statute at issue

  requires the prosecution to prove beyond a reasonable doubt that a

  defendant has three prior felony convictions arising out of separate

  and distinct criminal episodes. § 18-1.3-801(2)(a)(I)(A).

¶ 22   Brooks contends that only by taking judicial notice of

  documents that were not properly subject to judicial notice could

  the court have found that his prior convictions for criminal trespass

  of a dwelling and theft from a person “relate to different criminal

  conduct on separate dates and that the People have separately

  brought and tried those offenses.” Because the predicate of his

  argument is wrong, we reject it.

¶ 23   Brooks concedes (for good reason) that the district court was

  entitled to take judicial notice of the registers of actions contained

  in the Integrated Colorado Online Network in the underlying cases.

  See, e.g., People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (“A

  court may take judicial notice of the contents of court records in a

  related proceeding.”). But he argues that the registers of actions

  themselves were insufficient to make a prima facie case that two of

  his three prior felonies related to different criminal conduct on

  separate dates and were separately brought and tried.


                                     11
¶ 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

                                      12
  crimes were separate and distinct criminal episodes. People v.

  Copeland, 976 P.2d 334, 342 (Colo. App. 1998), aff’d, 2 P.3d 1283

  (Colo. 2000).

¶ 26   In People v. Jones, 967 P.2d 166, 170 (Colo. App. 1997), it was

  plausible that two crimes, which were both burglaries, committed

  on consecutive dates, and in the same area, could have arisen from

  a single criminal episode. Therefore, without additional evidence

  about the underlying convictions, the division concluded that there

  was insufficient proof that the defendant’s convictions arose from

  separate and distinct criminal episodes. Id.

¶ 27   However, unlike in Jones, the registers of actions relevant to

  this case showed that the two prior felony convictions were for

  distinct criminal offenses that occurred months apart. Thus, even

  though Brooks pleaded guilty on the same day and in the same

  court, the registers of actions made a prima facie case that his

  criminal trespassing of a dwelling and theft from a person

  convictions arose “from charges which, had they not been

  adjudicated through the entry of guilty pleas, would have been tried

  separately.” Gimmy v. People, 645 P.2d 262, 267 (Colo. 1982).

  Both cases were “separately ‘brought’ — i.e., in separate


                                   13
  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


                                    14
  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


                                    15
  the prosecution established by a preponderance of the evidence that

  Brooks’ plea met constitutional requirements. Watkins, 655 P.2d at

  837.

¶ 34     A plea is constitutionally valid when the defendant enters it

  voluntarily and knowingly. Lacy, 775 P.2d at 4. Colorado cases

  “have recognized that the degree of explanation that a court should

  provide depends on the nature and complexity of the crime and that

  no particular litany need be followed in accepting a tendered plea of

  guilty.” Id. at 6. The record as a whole must demonstrate that the

  defendant understood the critical elements of the crime and the

  possible penalty or penalties. Id. at 4-5.

¶ 35     Based on the record as a whole, the district court found that

  Brooks’ plea to the theft charge was voluntary and that Brooks

  understood the elements of the crime to which he pleaded guilty.

  The court found that the facts of the underlying crime were that

  Brooks distracted a woman so that another man could steal her

  purse. Considering these facts, the court held that “the very nature

  of the underlying crime would advise Mr. Brooks . . . that this theft

  was one that involved an intent to permanently deprive.” We agree.




                                     16
¶ 36   If the law were as Brooks contends — that the defendant must

  always be advised expressly of every element of the crime to validate

  the conviction under the habitual criminal statute — we would

  agree with him. But the law is otherwise.

¶ 37   Brooks relies on two Colorado Supreme Court cases, People v.

  Colosacco, 177 Colo. 219, 493 P.2d 650 (1972), and Lacy, 775 P.2d

  1, where the trial court’s failure to include a meaningful explanation

  of the specific intent element of the crime was fatal to the validity of

  the conviction. But Colosacco and Lacy are factually

  distinguishable because in those cases, unlike this one, the

  underlying nature of the crime required the court to inform the

  defendant of the crime’s specific intent element.

¶ 38   In Colosacco, the defendant pleaded guilty to possession of

  counterfeit checks after the judge advised him that the nature of

  the charge was “possession of the forged or counterfeit [checks] with

  knowledge that they were counterfeit.” 177 Colo. at 221, 493 P.2d

  at 650. Under the facts presented, the defendant could have

  reasonably believed that he was guilty of the crime simply by

  possessing checks, irrespective of whether he intended to pass them

  with the intent to defraud. Thus, because the judge “failed . . . to


                                     17
  advise the defendant that the intent to utter and pass the notes

  with intent to defraud was an essential element of the charge,” the

  supreme court concluded that the defendant’s guilty plea was

  invalid. Id. at 221-22, 493 P.2d at 650-51.

¶ 39   In Lacy, the Colorado Supreme Court considered a guilty plea

  to theft of a car. 775 P.2d at 8. The victim testified that she had

  loaned the car to the defendant on past occasions but that she had

  not given him permission to use it on the occasion that gave rise to

  the theft charge. Id. Therefore, without an explanation of the

  specific intent element, the defendant could have reasonably

  believed that he was guilty of theft for borrowing the victim’s car,

  even if he did not intend to permanently deprive her of it. Because

  the providency hearing was “entirely devoid of any accurate or

  understandable explanation of the charge,” the defendant’s plea

  was invalid. Id. at 9.

¶ 40   The facts and crimes in Colosacco and Lacy are

  distinguishable from Brooks’ theft of a purse from a person whom

  he did not know. We agree with the district court that it is

  inconceivable that forcibly grabbing a stranger’s purse would be for




                                    18
  any purpose other than to permanently deprive the owner of her

  property.

¶ 41   Several out-of-state cases further support this analysis.

¶ 42   In State v. Gabert, 564 A.2d 1356, 1358 (Vt. 1989), the

  defendant pleaded guilty to lewd and lascivious conduct. He

  conceded that he understood the charge, but he argued that his

  plea was invalid because of “the court’s failure to explain that the

  crime involves acts intentionally done ‘with a view to excite

  unchaste feelings and passions.’” Id. (citation omitted). The

  Vermont Supreme Court rejected this argument, concluding that

  the plea was valid because “under the circumstances here further

  inquiry about intent was unnecessary. The alleged acts could

  hardly give rise to an equivocal motivation . . . .” Id.

¶ 43   In State v. Brooks, 586 P.2d 1270, 1271 (Ariz. 1978), the

  defendant challenged the validity of his guilty plea to child

  molestation. He argued there was no evidence that he understood

  intent to be an essential element of the crime. Id. Under Arizona

  law, “[a]n essential element of the offense of child molestation . . . is

  that the acts involved be ‘motivated by an unnatural or abnormal

  sexual interest or intent with respect to children.’” Id. at 1272


                                     19
  (citation omitted). But “[a]t no time during [the court’s] questioning

  of defendant prior to [the court’s] acceptance of his guilty plea did

  [the court] inquire into his motivation for the offense.” Id. The

  Arizona Supreme Court rejected the defendant’s argument because

  the “defendant’s acts by their very nature manifest that he was

  motivated by an unnatural or abnormal sexual interest or intent

  with respect to children.” Id. at 1273.

¶ 44    By contrast, in Patton v. State, 810 N.E.2d 690, 691 (Ind.

  2004), the defendant pleaded “guilty to attempted murder without

  knowing that specific intent to kill was an element of that offense.”

  The Indiana Supreme Court found the defendant’s plea was invalid

  because the evidence did not demonstrate specific intent beyond a

  reasonable doubt. Id. at 698-99. But the court also held that

  “failure of notice that specific intent is an element of attempted

  murder will constitute harmless error . . . where during the course

  of the guilty plea or sentencing proceedings, the defendant

  unambiguously admits to, or there is other evidence of, facts that

  demonstrate specific intent beyond a reasonable doubt.” Id. at 696-

  97.




                                    20
¶ 45   For all of these reasons, we conclude that the felony theft

  conviction was constitutionally valid and that the district court

  properly found it to be a predicate felony conviction for Brooks’

  habitual criminal adjudication.

¶ 46   Brooks also argues that, in addition to the specific intent

  element of theft, the court should have explained the elements of

  complicity to him, as was required in People v. Martin, 791 P.2d

  1159, 1161-62 (Colo. App. 1989).

¶ 47   In Martin, a division of this court held that a defendant’s guilty

  plea was constitutionally defective because the court did not explain

  the elements of complicity to him. Id. Defense counsel explained to

  the court that the defendant had accepted the fruits of a burglary

  and only pleaded guilty to burglary based on a theory of complicity.

  Id. at 1161.

¶ 48   However, Martin is different from the present case for three

  reasons. First, Brooks was more directly involved in the theft than

  the defendant in Martin was in the burglary. Second, Brooks

  pleaded guilty as a principal and not, like the defendant in Martin,

  as a complicitor. Finally, complicity liability in a burglary by after-

  the-fact involvement is more complex than Brooks’ immediate


                                     21
  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.4

       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.




  4 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).

                                    22
¶ 51   If a defendant challenges the proportionality of a habitual

  criminal sentence, the defendant “is entitled to an abbreviated

  proportionality review of his or her sentence under the habitual

  criminal statute.” People v. Cooper, 205 P.3d 475, 479 (Colo. App.

  2008), abrogated on other grounds as recognized by Scott v. People,

  2017 CO 16. When conducting an abbreviated proportionality

  review, a reviewing court scrutinizes the triggering and predicate

  offenses in question to determine “‘whether in combination they are

  so lacking in gravity or seriousness’ so as to suggest that the

  sentence is grossly disproportionate.” Deroulet, 48 P.3d at 524-25

  (citation omitted).

¶ 52   Colorado courts have held that certain crimes are per se grave

  or serious. People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). These

  crimes are grave or serious “by their very nature.” Id. For other

  crimes, “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. Specifically, courts look to

  “whether the crime involves violence, and the absolute magnitude of

  the crime” and compare that to the culpability and motive of the

  defendant. Gaskins, 825 P.2d at 36-37.


                                    23
¶ 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.”


                                    24
¶ 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.5 For these reasons, we conclude that his conduct

  demonstrated a blatant disregard for the law and thus constituted a

  grave or serious offense.

                         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




  5 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.

                                     25
  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.




                                        26
¶ 62   While Brooks’ predicate offenses were not per se grave or

  serious, Brooks’ triggering offenses were grave or serious. As the

  district court explained, Brooks’ tampering was a “persuasive and

  unrelenting campaign to manipulate the cooperation of the victim.”

  The tampering offenses are notable not only for the number of times

  Brooks tried to influence the victim (the prosecution cited 250

  phone calls in its first tampering charge) and the blatantly

  manipulative nature of the communications, but also for the fact

  that Brooks could not be dissuaded from tampering with the victim.

  Brooks continued tampering with the victim after the prosecution

  charged him with the first count of tampering and his phone

  privileges were discontinued. As the district court noted, the nature

  of these offenses demonstrates that Brooks was “uncontrollable in

  the community and commits crimes and doesn’t appear to be able

  to stop committing crimes.”

¶ 63   Further, “it is appropriate for the court conducting the

  proportionality review to consider” aggravating or mitigating

  information about the defendant. People v. Austin, 799 P.2d 408,

  413 (Colo. App. 1990). We recognize that Brooks was acquitted of

  several felony charges but also note that he was convicted of the


                                    27
  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.6

                           VI.   Conclusion

¶ 64   The judgment of conviction and sentence are affirmed.

       JUDGE DAILEY and JUDGE J. JONES concur.


  6 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.

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