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April 2, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Clark

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1987

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.8K)

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Combined Opinion

23CA1987 Peo v Clark 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1987
El Paso County District Court No. 17CR5348
Honorable Frances Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Patrick Allen Clark,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Kuhn and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Erin Hunn, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Patrick Allen Clark, appeals the district court’s

order reinstating his sentence to life in prison without the

possibility of parole (LWOP) for first degree kidnapping following an

extended proportionality review. We affirm.

I. Sentence Proportionality Reviews

¶2 Both the Eighth Amendment to the U.S. Constitution and

article II, section 20 of the Colorado Constitution prohibit the

imposition of a sentence grossly disproportionate to the severity of a

defendant’s crime. See Wells-Yates v. People, 2019 CO 90M, ¶¶ 5,

10.

¶3 A sentence proportionality review is a two-step process. Id. at

¶ 7. The district court must first conduct an abbreviated

proportionality review, comparing the gravity or seriousness of the

offense to the harshness of the penalty to determine if the sentence

gives rise to an “inference of gross disproportionality.” Id. at ¶ 8.

The gravity or seriousness of the offense turns on the “facts and

circumstances surrounding that offense.” Id. at ¶ 75. But when an

offense is “grave or serious in every potential factual scenario,” it is

per se grave or serious, and the court may proceed directly to

consider the harshness of the penalty. Id. at ¶ 63. If, at this step,

1
the sentence does not give rise to an inference of gross

disproportionality, no further analysis is required, and the sentence

is constitutional. Id. at ¶ 15.

¶4 But if the abbreviated proportionality review does give rise to

an inference of gross disproportionality, the court must proceed to

the second step of the analysis — an extended proportionality

review. Id. During this step, the court conducts an

intrajurisdictional and interjurisdictional review, comparing the

defendant’s sentence to “sentences for other crimes in the same

jurisdiction” and to “sentences for the same crime in other

jurisdictions.” Id. at ¶¶ 7, 15-17.

II. Case Background

¶5 The relevant facts giving rise to this case were detailed in the

opinion resolving Clark’s direct appeal:

The victim, Kenneth Foor, rented a bedroom in
Clark’s basement. Foor testified that one
night, while asleep, he awoke to Clark
punching him and hitting him with the handle
of a hammer. Foor testified that Clark
assaulted him for approximately ten minutes.
Foor sustained bruising and a fractured hip,
which he testified rendered him immobile and
unable to stand up or leave the bedroom.

2
During the assault, Clark accused Foor of
stealing his belongings. Clark told Foor he
could not leave the house until he returned
Clark’s possessions. Clark placed a video
camera on a table in Foor’s room, telling Foor,
“Don’t fucking move from that couch,” and
“We’ll know if you move.” According to Foor,
the camera beeped and flashed a red light
when he moved, which Clark had told Foor
meant the camera was sending alerts to
Clark’s phone. When the police found the
video camera, it was unplugged. Investigators
never tested the camera.

....

Foor remained in the bedroom with the door
closed until his parole officer arrived to pick
him up on a parole violation almost
twenty-four hours later. Regarding whether
the bedroom door was locked during this time:
Foor said he was unsure, Foor’s parole officer
said the door was not locked when he arrived,
and another witness said the latches on the
door did not align and therefore the door could
not be locked.

When the parole officer arrived, Clark told the
officer that Foor was not in the house and that
aggressive dogs were in Foor’s bedroom.
Nonetheless, the officer entered the house,
opened the bedroom door, found Foor, and
escorted him to the police car. Foor told the
officer what had occurred as he was
transported.

People v. Clark, slip op. at ¶¶ 2-6 (Colo. App. No. 18CA2293, Aug.

26, 2021) (not published pursuant to C.A.R. 35(e)).

3
¶6 A jury convicted Clark of class 1 felony first degree kidnapping

involving injury1, class 5 felony false imprisonment, and

misdemeanor third degree assault. Clark received an LWOP

sentence for kidnapping, plus concurrent sentences for the other

two convictions.

¶7 On direct appeal, a division of this court affirmed Clark’s

convictions but concluded that an abbreviated proportionality

review of Clark’s LWOP sentence raised an inference of gross

disproportionality. Id. at ¶¶ 40-41. In doing so, the division

declined to designate first degree kidnapping a per se grave or

serious offense. Id. at ¶ 33 n.2. The division vacated the

kidnapping sentence and remanded to the district court for an

extended proportionality review. Id. at ¶ 41. The Colorado

Supreme Court denied certiorari.

1 Clark was charged and convicted under section 18-3-301(1)(c), (2),

C.R.S. 2025. A person commits first degree kidnapping if they
“[i]mprison[] or forcibly secret[] any person” with the intent to “force
the victim or any other person to make any concession or give up
anything of value in order to secure a release of a person under the
offender’s actual or apparent control.” § 18-3-301(1)(c). First
degree kidnapping is a class 1 felony “if the person kidnapped . . .
suffered bodily injury.” § 18-3-301(2).

4
¶8 On remand, the prosecution and Clark filed briefs supporting

their respective positions. For its intrajurisdictional comparison,

the prosecution compared Clark’s sentence to sentences for other

class 1 felonies in the Fourth Judicial District, arguing that these

defendants were most “similarly situated” to Clark. The

prosecution asserted that, because the court had no discretion to

impose a different sentence in those cases, all of those defendants

were also sentenced to LWOP. For the interjurisdictional

comparison, the prosecution argued that “[t]his is generally

interpreted as other jurisdictions within the same state,” although it

cited no authority for this assertion. It determined that “[a]ny

sentence within the state of Colorado for a similarly situated

defendant would have the exact same sentence as the conviction

does not leave a discretionary range for the court to consider.”

¶9 For Clark’s intrajurisdictional comparison, he first argued

that, of Colorado’s six class 1 felonies, first degree kidnapping is the

only crime that has resulted in an LWOP sentence in the past

twenty years where the victim did not die and there was no use of

force or a deadly weapon. He also asserted that he was one of two

people in the last twenty years who received an LWOP sentence for

5
first degree kidnapping in a case that did not also include another

conviction for murder, attempted murder, sexual assault, first

degree assault, or aggravated robbery. Clark further argued that

first degree kidnapping does not require proof of use of a deadly

weapon or serious bodily injury and yet mandates a harsher

sentence than many other crimes that do require proof of these

elements, like second degree murder, human trafficking, first

degree assault, and manslaughter.

¶ 10 In his interjurisdictional comparison, Clark asserted that

Colorado is one of only eight states that mandate an LWOP

sentence for first degree kidnapping. He claimed that twenty states

have a maximum sentence of “[forty] years or fewer,” and twelve of

those states have a maximum of “[twenty-five] years or fewer.” He

also asserted that federal courts can only impose a life sentence for

kidnapping if a person dies as a result of the offense. Clark further

argued that Colorado is one of only two states for which first degree

kidnapping “contains a theory of liability that does not require the

use of force, serious bodily injury, or even actual control.”

¶ 11 After hearing oral arguments from the parties, the district

court issued a written order in which it conducted an extended

6
proportionality review. For the intrajurisdictional comparison, the

court found that “[f]or every first-degree felony conviction in the

past five to twenty years in El Paso County,” the defendant was

sentenced to LWOP. For the interjurisdictional comparison, the

court limited the analysis to first degree kidnapping convictions

“outside of El Paso County, but within Colorado.” It found that

there were at least eight convictions and each of those defendants

was sentenced to LWOP.

¶ 12 The court cited Harmelin v. Michigan, 501 U.S. 957, 998-99

(1991), and People v. Deroulet, 48 P.3d 520, 527 (Colo. 2002),

abrogated by, Wells-Yates, 2019 CO 90M, to say that it was

required “to give deference to the legislature’s determination of the

appropriate punishment for first-degree kidnapping.” And in the

framework of this deference, the court could not see “how the only

legally authorized sentence for a first-degree kidnapping sentence

could ever be disproportionate.” Therefore, the court found that

“the only legally authorized sentence” for Clark’s kidnapping

conviction was not grossly disproportionate to the crime and

reinstated the LWOP sentence.

7
III. Discussion

¶ 13 Clark contends that the district court’s extended

proportionality review was erroneous because the court (1) failed to

consider the sentences for crimes other than class 1 felonies during

its intrajurisdictional comparison; (2) failed to consider the

sentences for first degree kidnapping in jurisdictions outside of

Colorado during its interjurisdictional comparison; and (3) declined

to exercise its discretion to impose a constitutional sentence and

instead deferred to the legislative sentencing scheme. While we

agree that the court engaged in a somewhat deficient extended

review, we conclude that the court’s ultimate determination that

Clark’s LWOP sentence was not grossly disproportionate was

correct.

¶ 14 We review de novo whether a sentence is grossly

disproportionate in violation of the U.S. and Colorado

Constitutions. Wells-Yates, ¶ 35.

A. Intrajurisdictional Comparison

¶ 15 Clark was convicted of first degree kidnapping under section

18-3-301(1)(c), (2), C.R.S. 2025. A person commits first degree

kidnapping if they “[i]mprison[] or forcibly secret[] any person” with

8
the intent to “force the victim or any other person to make any

concession or give up anything of value in order to secure a release

of a person under the offender’s actual or apparent control.”

§ 18-3-301(1)(c). They are guilty of a class 1 felony “if the person

kidnapped . . . suffered bodily injury.” § 18-3-301(2). Clark

committed the offense between September 13, 2017, and September

14, 2017. In Colorado, all class 1 felonies committed on or after

July 1, 1993, and before July 1, 2018, carry a statutorily mandated

LWOP sentence. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2025.

¶ 16 As we have said, in this first part of an extended

proportionality review, the court must compare the defendant’s

sentence to “sentences for other crimes in the same jurisdiction.”

Wells-Yates, ¶ 17. “Other crimes” has not been defined by Colorado

statute or case law. However, the United States Supreme Court has

said that, in the context of an extended proportionality review, “[i]f

more serious crimes are subject to the same penalty, or to less

serious penalties, that is some indication that the punishment at

issue may be excessive.” Solem v. Helm, 463 U.S. 277, 291 (1983).

¶ 17 Citing this language from Solem, Clark argues that this means

the district court “should have considered the facts of [his] case to

9
determine which crimes are more serious [regardless of felony class]

and compared the sentences for those crimes to the sentence of a

class one felony.” We disagree. The question is, “Do ‘more serious

crimes’ in the same jurisdiction have the same penalty or a less

serious penalty?” And “class 1 felonies are plainly the most serious

of offenses.” People v. Turley, 18 P.3d 802, 805 (Colo. App. 2000).

Therefore, by definition, anything less than a class 1 felony is not a

“more serious crime” than first degree kidnapping. And whether

first degree kidnapping should remain a class 1 felony, in light of

lower level felonies involving things like death or serious bodily

injury, is not the issue before us; nor is it an issue we would be at

liberty to decide.

¶ 18 Thus, the only sentences for crimes other than first degree

kidnapping that can be used in this intrajurisdictional comparison

are sentences for other class 1 felonies. The other five class 1

felonies in Colorado are:

1. First degree murder, § 18-3-102(3), C.R.S. 2025;

2. First degree murder of a peace officer, firefighter, or

emergency medical service provider, § 18-3-107, C.R.S.

2025;

10
3. Child abuse where a person in a position of trust

knowingly causes the death of a child under twelve years

of age, § 18-6-401(7)(c), C.R.S. 2025;

1. Assault during escape where the person has been

convicted of a class 1 felony, § 18-8-206(1)(a), C.R.S.

2025; and

1. Treason, § 18-11-101(2), C.R.S. 2025.

As class 1 felonies, these five offenses also require LWOP sentences.

See § 18-1.3-401(1)(a)(V)(A).

¶ 19 The first three felonies listed all require the death of a person

as an element of the crime. Arguably then, these qualify as “more

serious crimes . . . subject to the same penalty,” Solem, 463 U.S. at

291, than first degree kidnapping because first degree kidnapping

only requires “bodily injury,” § 18-3-301(2).

¶ 20 Assault during escape requires only an assault (1) with the

intent to commit bodily injury with a deadly weapon or (2) by use of

force that is “likely” to result in serious bodily injury. See

§ 18-8-206(1) (“Any person confined in any lawful place of

confinement within the state who, while escaping or attempting to

escape, commits an assault with intent to commit bodily injury

11
upon the person of another with a deadly weapon, or by any means

of force likely to produce serious bodily injury, commits . . . [a] class

1 felony, if the person has been convicted of a class 1 felony . . . .”).

One could say that this offense is less serious than first degree

kidnapping because first degree kidnapping requires actual bodily

injury and assault during escape does not. Yet both require an

LWOP sentence.

¶ 21 As for treason, that offense requires no injury at all. See

§ 18-11-101(1) (“A person commits treason if he levies war against

the state of Colorado or adheres to its enemies, giving them aid and

comfort.”). But it is indeed a class 1 felony subject to LWOP

sentencing.

¶ 22 In the end, although we could compare each class 1 felony to

determine relative seriousness, the legislature has effectively

signaled that all six are equally severe by assigning them the same

punishment. Accordingly, although an intrajurisdictional

comparison appears largely uninformative for class 1 felonies, it

confirms that Clark’s LWOP sentence for first degree kidnapping is

12
not grossly disproportionate compared to the other class 1 felonies

in the same jurisdiction.2

¶ 23 Clark argues that, even if we limit our comparison to class 1

felonies, “it is still apparent that if every sentence to [LWOP] in a

twenty-year period involved murder with the exclusion of [his] case,

[his] sentence was excessive.” But this argument misstates the

record. In his brief to the district court, Clark asserted that no one

has been sentenced for treason or assault during escape in the last

twenty years, and, therefore, first degree kidnapping is the only

class 1 felony that has resulted in an LWOP sentence in the past

twenty years where the victim did not die and there was no use of

force or a deadly weapon. And he claimed that of the 786 people

who have received LWOP sentences since 2003, the victim was

murdered in 773 of those cases, and the remaining 13 cases were

2 We acknowledge Clark’s argument that class 1 felonies are unique

because they have a mandatory sentence and an intrajurisdictional
comparison will always yield the same result. However, the
interjurisdictional comparison will still evaluate whether one of the
punishments for a crime in that class is constitutionally
disproportionate compared to other states. See Solem v. Helm, 463
U.S. 277, 299-300 (1983) (determining whether the defendant “was
treated more severely than he would have been in any other State”
after comparing his LWOP sentence to the sentences he would have
received in the other forty-nine states).

13
for first degree kidnapping and included “non-murder LWOP

sentences.” Therefore, according to Clark’s own research that he

presented to the district court, in a twenty-year period he and

twelve other defendants received LWOP sentences where the victim

was not murdered — he was not the only one.

¶ 24 As to the twelve other first degree kidnapping cases, Clark

attempted to distinguish his case from four of them by highlighting

the additional convictions in those cases for things like attempted

murder, aggravated robbery, and first degree assault. He argued

these were more serious than his other convictions for false

imprisonment and third degree assault. But, like in his case, the

LWOP sentences in those cases were for first degree kidnapping, not

the other convictions. And Clark cites no authority, nor have we

found any, for the proposition that we must consider the other

crimes for which a defendant was convicted when conducting an

extended proportionality review of a sentence on a single count.

¶ 25 For these reasons, our intrajurisdictional comparison does not

result in a conclusion that Clark’s kidnapping sentence was grossly

disproportionate. Cf. Solem, 463 U.S. at 303 (holding that the

defendant’s sentence was grossly disproportionate, in part, because

14
“[h]e has been treated more harshly than other criminals in the

State who have committed more serious crimes”).

B. Interjurisdictional Comparison

¶ 26 In an interjurisdictional comparison, the court must compare

the defendant’s sentence to “sentences for the same crime in other

jurisdictions.” Wells-Yates, ¶ 17; see also Helm v. Solem, 684 F.2d

582, 586 (8th Cir. 1982) (“When a disproportionality analysis is

appropriate, however, the punishment that other states authorize

for similar offenses provides an objective backdrop against which to

judge the sentence under attack.”), aff’d, 463 U.S. 277 (1983).

¶ 27 We agree with Clark that the district court erred by limiting

its comparison to other jurisdictions within Colorado. See Solem,

463 U.S. at 299-300 (concluding that, for purposes of a

proportionality review, the defendant “was treated more severely

than he would have been in any other State” after comparing his

LWOP sentence to the sentences he would have received in the

other forty-nine states); People v. Medina, 926 P.2d 149, 152 (Colo.

App. 1996) (“In examining the habitual offender statutes from

neighboring states, we find that, were the defendant to have

committed these crimes in those states, she would not have been

15
subject to such a harsh penalty.”); People v. Gaskins, 923 P.2d 292,

297 (Colo. App. 1996) (concluding that the defendant’s life sentence

with parole eligibility was “disproportionate to allowable sentencing

for similar offenses in neighboring states”). Nonetheless, we cannot

conclude that a proper interjurisdictional comparison shows Clark’s

kidnapping sentence to be grossly disproportionate.

¶ 28 Colorado is one of nine states that impose mandatory life

sentences (or the death penalty) for their most serious kidnapping

offense where the victim suffered bodily injury or serious bodily

injury. The other eight states are California, Georgia, Idaho, Iowa,

Louisiana, Nebraska, South Dakota, and West Virginia. See Cal.

Penal Code § 209 (a) (West 2025); Ga. Code Ann. § 16-5-40 (d)(4)

(West 2025); Idaho Code Ann. § 18-4504 (1) (West 2025); Iowa Code

Ann. §§ 710.2, 902.1(1) (West 2025); La. Stat. Ann. § 14:44 (2025);

Neb. Rev. Stat. Ann. §§ 28-313, 28-105(1) (West 2025); S.D.

Codified Laws §§ 22-6-1, 22-19-1, 24-15-4.1 (2025); W. Va. Code

Ann. § 61-2 -14a (West 2025). Our comparison of the laws of other

states demonstrates that Colorado is not, as Clark argued in his

brief to the district court, “an outlier” when it comes to sentencing

defendants for first degree kidnapping. Cf. Solem, 463 U.S. at 303

16
(holding that the defendant’s sentence was grossly disproportionate,

in part, because “[h]e has been treated more harshly than he would

have been in any other jurisdiction, with the possible exception of a

single State”) (emphasis added).

¶ 29 Clark argued in the district court that, of the states listed

above, “only Colorado, Iowa, and West Virginia have abolished the

death penalty, making Colorado one of just three states in the

country that subjects defendants convicted of kidnapping to the

state’s most serious penalty.” Plus, he asserted, West Virginia

includes the potential for parole based on a jury’s recommendation,

and Iowa requires the defendant to seriously injure, intentionally

torture, or sexually abuse the victim. We fail to see how these

arguments support Clark’s position. If any of the remaining states

still authorize the death penalty for first degree kidnapping, e.g.,

Georgia, Ga. Code Ann. § 16-5-40 (d)(4), then Colorado’s mandatory

LWOP sentence would be considered more lenient. This is contrary

to Clark’s stance that “Colorado has the most draconian sentencing

scheme for First-Degree Kidnapping of any state in the country.”

¶ 30 Clark further argued that, of the states that mandate a life

sentence for first degree kidnapping, only Colorado and Louisiana

17
use “a theory of liability that does not require the use of force,

serious bodily injury, or even actual control.” As we have said, the

comparison we must make here is of Clark’s sentence to “sentences

for the same crime in other jurisdictions.” Wells-Yates, ¶ 17

(emphasis added). Because not all states have a crime called “first

degree kidnapping,” we necessarily look at each state’s most serious

kidnapping offense for comparison. Clark cited no authority, and

we are aware of none, that requires a court to go a step further and

compare the elemental requirements for the same crime in other

jurisdictions during an interjurisdictional comparison.

¶ 31 Based on our extended proportionality review, we conclude

that Clark’s LWOP sentence for first degree kidnapping was not

grossly disproportionate, and the district court did not err in so

deciding. We recognize that LWOP is the most severe sentence

authorized by the legislature. “Nonetheless, the Supreme Court has

concluded that sentencing certain defendants who have committed

felonies to LWOP does not necessarily run afoul of the Eighth

Amendment.” Sellers v. People, 2024 CO 64, ¶ 52 (citing Harmelin,

501 U.S. at 994-96).

18
¶ 32 In light of our conclusion, we need not address Clark’s

challenge to the district court’s deference to the legislative

sentencing scheme.

IV. Disposition

¶ 33 The order is affirmed.

JUDGE KUHN and JUDGE SULLIVAN concur.

19