Peo v. Klein - Proportionality Review Denial Affirmed

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April 16, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Klein

Colorado Court of Appeals

• Citations: None known
• Docket Number: 24CA0266

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

24CA0266 Peo v Klein 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0266
Arapahoe County District Court No. 88CR1352
Honorable Jacob Edson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Bret Steven Klein,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE KUHN
Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 16, 2026

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Bret Steven Klein, appeals the district court’s order

denying his postconviction motion for a proportionality review. We

affirm.

I. Background

¶2 Following a 1989 jury trial, Klein was convicted of five counts

of second degree kidnapping, three counts of aggravated robbery,

two counts of first degree burglary, ten related crime of violence

counts, and four habitual criminal counts. He received a

cumulative 400-year prison sentence based on ten consecutive

forty-year terms. His convictions were affirmed on direct appeal.

See People v. Klein, (Colo. App. No. 90CA0613, Oct. 1, 1992) (not

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

¶3 In 1994, Klein moved for postconviction relief under Crim. P.

35(c). As relevant here, he sought a proportionality review of his

habitual criminal sentences. After an evidentiary hearing and a

proportionality analysis, the district court denied Klein’s motion,

and a division of this court affirmed the ruling. People v. Klein, slip

op. at 1, 37 (Colo. App. No. 04CA1960, Aug. 10, 2006) (not

published pursuant to C.A.R. 35(f)). In doing so, the division

conducted an abbreviated proportionality review and concluded

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that (1) the triggering offenses giving rise to Klein’s ten consecutive

sentences were grave and serious; (2) three of his four predicate

felony convictions for second degree burglary and attempted escape

were also grave and serious; and (3) accordingly, the triggering and

predicate offenses, considered together, did not suggest gross

disproportionality or warrant an extended proportionality review.

Id. at 28-35 (substantially relying on Close v. People, 48 P.3d 528,

538-39 (Colo. 2002), abrogated by Wells-Yates v. People, 2019 CO

90M, ¶¶ 16-17, and People v. Deroulet, 48 P.3d 520, 524 (Colo.

2002), abrogated by Wells-Yates, ¶¶ 16-17).

¶4 In 2023, Klein once again collaterally attacked his sentences.

In connection with that attack, he sought an additional

proportionality review, arguing that (1) under the standards detailed

in Wells-Yates, his predicate offenses were no longer grave or

serious and (2) his sentences were grossly disproportionate. See

People v. Session, 2020 COA 158, ¶ 46 (concluding that in the wake

of Wells-Yates, second degree burglary is not grave and serious in

every factual scenario); see also § 18-1.3-801(5), C.R.S. 2025

(limiting the circumstances in which attempted escape can be used

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to adjudicate someone a habitual criminal).1 He further argued that

the principles discussed in Wells-Yates should apply retroactively to

his sentences because Wells-Yates established new substantive

rules. The district court summarily denied the motion.

II. Analysis

¶5 On appeal, Klein contends that he is entitled to a new

proportionality review because Wells-Yates announced new

substantive rules. Reviewing de novo the denial of his Rule 35(c)

motion without a hearing, see People v. Marquez, 2020 COA 170M,

¶ 17, we agree with the district court that Klein’s claim does not

merit postconviction relief.

¶6 Klein’s claim that his sentences were grossly disproportionate

to his crimes is a challenge to the constitutionality of his sentences

— a claim that arises under Rule 35(c). See Lucero v. People, 2017

CO 49, ¶ 26. Rule 35(c) claims that were raised and resolved in a

prior appeal — like this one — must be denied, except, as relevant

here, “any claim based on a new rule of constitutional law that was

1 He also claimed that his sentences were illegal because none of his

predicate offenses would support a habitual adjudication, but he
abandoned that claim on appeal.

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previously unavailable, if that rule has been applied retroactively by

the United States Supreme Court or Colorado appellate courts.”

Crim. P. 35(c)(3)(VI)(b). But while this appeal was pending, our

supreme court decided that Wells-Yates announced no new rules

eligible for this exception, concluding that “Wells-Yates’s holdings

don’t apply retroactively to cases on collateral review, and [the

defendant] isn’t entitled to a second proportionality review of his

habitual criminal sentence.” McDonald v. People, 2024 CO 75, ¶ 34.

¶7 Because Klein’s claim that his sentences were grossly

disproportionate was raised and resolved in a prior appeal, and

McDonald forecloses his argument that an exception applies to the

procedural bar on such claims, we conclude that Rule 35(c)(3)(VI)

bars his claim as successive.

¶8 On appeal, Klein urges us to conclude that McDonald was

wrongly decided because it runs afoul of Montgomery v. Louisiana,

577 U.S. 190 (2016). We cannot do so. It’s true that we are bound

by the decisions of the United States Supreme Court on questions

of federal law. People v. Washington, 2014 COA 41, ¶ 26; Brotman

v. E. Lake Creek Ranch, L.L.P., 31 P.3d 886, 890 (Colo. 2001).

Likewise, we are bound by decisions of the Colorado Supreme

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Court, and we are not free to depart from its precedents. See, e.g.,

People v. Melendez, 2024 COA 21M, ¶ 19. In McDonald, the

Colorado Supreme Court explicitly considered and distinguished

Montgomery when deciding that the new rules announced in Wells-

Yates — its own prior case — were procedural, not substantive, and

do not retroactively apply to postconviction cases. See McDonald,

¶¶ 33-34. We are bound by that decision.

III. Disposition

¶9 The order is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.

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