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March 12, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Devoe

Colorado Court of Appeals

• Citations: None known
• Docket Number: 22CA1678

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.6K)

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Combined Opinion

22CA1678 Peo v Devoe 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1678
Arapahoe County District Court No. 21CR1353
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Frank Adam Devoe,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE WELLING
Grove and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 12, 2026

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Frank Adam Devoe, appeals his conviction and

sentence as a special offender. Devoe argues there was insufficient

evidence to support his conviction as a special offender, that the

trial court failed to properly consider all the sentencing factors, and

that the trial court erred when it imposed a sentence that isn’t

proportional to his conviction. We affirm.

I. Background

¶2 On June 15, 2021, while Devoe was on parole, two parole

officers, Elesia Barnes and Wendy Beach, arrived at Devoe’s home

to conduct a search. When the officers knocked, William Wilson,

who didn’t live there, answered the door. The officers entered the

home, and Wilson informed them that Devoe was in the back

bedroom. The officers called for Devoe to come out but he didn’t

emerge for a few minutes.

¶3 Once Devoe emerged from the bedroom, Wilson fled the scene.

After Wilson’s escape, Officer Barnes placed Devoe in handcuffs and

searched his person. Officer Barnes discovered a bag containing a

white substance in one of Devoe’s pockets, and money in the other.

¶4 Next, the officers searched Devoe’s apartment. Barnes found a

handgun inside a medical boot next to the kitchen table. In Devoe’s

1
bedroom, the officers discovered more bundles of money, another

baggie containing a white substance, and another handgun on the

bed, under some pillows and blankets. In total, officers found

$5,100 in bundles of cash — despite Devoe being unemployed at

the time; 232 grams of suspected illegal drugs — later confirmed to

be cocaine; 3 scales; and 2 loaded handguns.

¶5 Devoe was arrested and charged with possession with intent to

manufacture or distribute over 225 grams of a controlled

substance, a level 1 drug felony; two special offender sentence

enhancers based on his possession of a deadly weapon; and two

counts of possession of a weapon by a previous offender (POWPO).

Devoe pleaded guilty to one of the POWPO counts in exchange for

the dismissal of the other POWPO count. Devoe pleaded not guilty

to the remaining charges.

¶6 The possession with intent to distribute charge was later

reduced to possession with intent to distribute between 14 grams

and 225 grams of cocaine — a level 2 drug felony. §§ 18-18-

405(1)(a), (2)(b)(1)(A), C.R.S. 2025. The presumptive sentencing

range for a level 2 drug felony is four to eight years in the custody of

the Department of Corrections (DOC). § 18-1.3-401.5(2)(a), C.R.S.

2
2025. The two special offender sentence enhancers, however,

raised the level 2 drug felony to a level 1 drug felony with an

increased sentencing range of twelve to thirty-two years in the

custody of the DOC. § 18-18-407(1), C.R.S. 2025; § 18-1.3-

401.5(7). One of the special offender charges required the jury to

find that Devoe “used, displayed, or possessed on his . . . person or

within his . . . immediate reach, a deadly weapon” while he

possessed the drugs. § 18-18-407(1)(d)(I). The other special

offender charge required the jury to find that Devoe or his

confederate possessed and had access to a gun “in a manner that

posed a risk to others” while Devoe possessed the drugs. § 18-18-

407(1)(d)(II).

¶7 Following a three-day trial, the jury found Devoe guilty of the

possession with intent to distribute charge and the special offender

sentence enhancer that required the gun to be within Devoe’s

“immediate reach.” § 18-18-407(1)(d)(1). But the jury acquitted

Devoe of the other special offender charge.

¶8 The defense requested a twelve-year sentence, while the

prosecution requested a twenty-four-year sentence. Ultimately, the

court sentenced Devoe to thirty-two years — the maximum

3
sentence within the presumptive sentencing range. § 18-1.3-

401.5(7). The court also imposed a three-year sentence for the

POWPO conviction to run concurrently with the thirty-two-year

sentence.

II. Issues on Appeal

¶9 Devoe makes three arguments on appeal. First, he contends

that there was insufficient evidence presented at trial to show that

either of the guns found in the apartment were within his

“immediate reach” so as to subject him to the special offender

enhancer. § 18-18-407(1)(d)(I). Second, Devoe contends that the

court abused its discretion when it sentenced Devoe to thirty-two

years in the custody of DOC without properly considering all of the

sentencing factors. Third, Devoe contends that his thirty-two-year

sentence is constitutionally disproportionate to his convictions. We

consider and reject his contentions, in turn, below.

A. Sufficiency of the Evidence

¶ 10 Devoe contends that the trial court erred by denying his

motion for a judgment of acquittal because the prosecution failed to

present sufficient evidence that either gun was within his

4
“immediate reach” while he was in possession of the drugs. We

disagree.

1. Standard of Review and Relevant Law

¶ 11 We review de novo a court’s ruling on a motion for judgment of

acquittal for insufficient evidence. People v. Hill, 2025 COA 12,

¶ 19. Whether a motion for judgment of acquittal should have been

granted is determined by the substantial evidence test. Id. “We

consider ‘whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.’” McCoy v. People, 2019 CO

44, ¶ 63 (quoting Clark v. People, 232 P.3d 1287, 1291 (Colo.

2010)).

¶ 12 As noted before, section 18-18-407(1)(d)(I) defines a special

offender as a defendant who “used, displayed, or possessed on

his . . . person or within his . . . immediate reach, a deadly

weapon . . . at the time of the commission of a violation.”

5
2. Additional Facts

¶ 13 At trial, Officer Barnes described her interaction with Devoe on

the day that she and Officer Beach showed up to search Devoe’s

home. To begin, Officer Barnes testified that she didn’t see Devoe

until he came out of the bedroom:

[Prosecutor:] Okay. When you first walked into
the home, could you see Mr. Devoe?

[Officer Barnes:] No.

[Prosecutor:] Do you know now where he was?

[Officer Barnes:] Yes. He was in the back
bedroom.

[Prosecutor:] Okay. Did he ever emerge from
that back bedroom?

[Officer Barnes:] Yes.

[Prosecutor:] Okay. Did you shout for him to
come out or anything like that?

[Officer Barnes:] Yes, we called for him.

[Prosecutor:] Okay. And did he come out of
that back room?

[Officer Barnes:] He did.

¶ 14 Officer Barnes confirmed that neither officer saw Devoe until

he emerged from the bedroom:

[Prosecutor:] Aside from Mr. Wilson, when you
first entered the home, did you see anybody?

6
[Officer Barnes:] Not right away. Mr. Wilson
said that Mr. Devoe was in the back bedroom.
He went to get him to tell him to come — come
to the living room.

[Prosecutor:] And did Mr. Devoe emerge from
that back bedroom?

[Officer Barnes:] Yes, he did.

¶ 15 Officer Barnes also testified that “a few minutes” passed before

Devoe emerged from the bedroom. However, neither officer saw

Devoe inside the bedroom before he emerged, and no evidence was

offered at trial regarding the size of the bedroom.

¶ 16 After the prosecution rested, Devoe’s counsel moved for a

judgment of acquittal on the two special offender charges, arguing

that insufficient evidence had been offered to prove that either gun

had been within Devoe’s immediate reach. The court disagreed and

found that there was sufficient evidence to support both special

offender charges:

The evidence that was presented to the jury
included that two handguns were found near
[Devoe]; that the handguns were operational
and loaded; that a reasonable jury could
conclude, based upon this evidence, that at
some point in the possession with intent to
distribute, even before police officers arrived,
that [Devoe] had that gun [sic] in his

7
possession on his person or within his
immediate reach.

1. Analysis

¶ 17 Devoe raises the same argument he raised below in his motion

for a judgment of acquittal as to why he can’t be subject to the

special offender sentence enhancer. To support his contention, he

highlights the lack of evidence presented at trial on the size of the

bedroom or his position within that bedroom in relation to the gun.

We aren’t persuaded.

a. “Immediate Reach”

¶ 18 Before addressing whether the evidence that the gun was

within “immediate reach” was sufficient, we must first consider the

meaning of the phrase. The phrase isn’t statutorily defined, and no

published appellate decision in Colorado has defined “immediate

reach” in the context of the special offender statute.

¶ 19 The only Colorado case that addresses when a deadly weapon

is within a defendant’s immediate reach as an element of the special

offender statute is People v. Serna-Lopez, 2023 COA 21. In Serna-

Lopez, the division determined that a gun found in the trunk of a

car wasn’t within the driver’s, or his passenger’s, immediate reach.

8
Id. at ¶ 29 n.2. Despite discussing the phrase, the division in

Serna-Lopez didn’t define it.

¶ 20 In the absence of a definition in the statute or case law, we

construe the phrase according to its common usage. § 2-4-101,

C.R.S. 2025. Merriam-Webster Dictionary defines “immediate” as

“occurring, acting, or accomplished without loss or interval of time,”

“existing without intervening space or substance,” and “acting or

being without the intervention of another object, cause, or agency.”

Merriam-Webster Dictionary, https://perma.cc/5T77-36VH.

Merriam-Webster defines “reach” as “to touch or grasp by extending

a part of the body.” Merriam-Webster Dictionary,

https://perma.cc/UR2U-GKNG.

¶ 21 Taken together, the phrase “immediate reach” means able to

touch or grasp instantly and without obstruction. This definition is

consistent with the decision in Serna-Lopez because there the gun

was obstructed by the closed trunk. Accordingly, we will conduct

our analysis under the common usage definition of “immediate

reach” — within grasp without delay or obstruction.

¶ 22 To start, this case is readily distinguishable from Serna-Lopez.

The gun in Serna-Lopez wasn’t immediately available because it was

9
locked away in a separate compartment of the car from where the

driver and his passenger were sitting. Here, however, the gun was

found on Devoe’s bed in the bedroom where he was for a few

minutes after officers arrived on scene. The gun wasn’t locked away

in a closet or drawer. Instead, the gun was on top of the bed,

covered only by blankets and pillows within his immediate reach.

And when he emerged from the bedroom, a search of his person

revealed that he had cocaine in the pocket of his pants — meaning

he was in possession of the cocaine while in the bedroom.

¶ 23 From this evidence, a jury could reasonably infer that the gun

was within grasp without delay or obstruction while he was in

possession of cocaine.

b. Circumstantial Evidence Is Sufficient

¶ 24 While it’s true that the prosecution didn’t present any direct

evidence establishing that Devoe was within the immediate reach of

either gun in the apartment while he was in possession of cocaine,

there was ample circumstantial evidence supporting such a finding.

See People v. Bennett, 515 P.2d 466, 469-70 (Colo. 1973) (holding

that same test for assessing the sufficiency of evidence applies

whether the evidence is direct or circumstantial). Specifically, the

10
circumstantial evidence presented at trial was sufficient for the jury

to draw the following inferences:

Evidence Reasonable Inference

The officers’ testimony that Devoe was in the bedroom — and
Devoe emerged from the free to move about it without
bedroom a few minutes after being observed — for a few
they announced their arrival at minutes after being summoned
Devoe’s home. by the officers.
Officer Barnes’ testimony that Devoe had the gun either on his
she discovered the gun hidden person or nearby in the bedroom
on the bed under the sheets when the officers arrived and hid
after Devoe emerged from the it when he heard the officers
bedroom. outside.
Officer Barnes’ testimony that Devoe possessed cocaine while in
Devoe had cocaine in his the bedroom with the gun.
pocket when he was searched
immediately after emerging
from the bedroom.
¶ 25 This evidence taken together supports at least one of two

reasonable inferences: (1) the gun was immediately available to

Devoe while he was in the bedroom since it was on the bed under

blankets and pillows; or (2) Devoe hid the gun under the blankets

and pillows before leaving the bedroom, meaning he actually

possessed the gun at some point while he was in the bedroom and

in possession of cocaine.

¶ 26 Neither of these reasonable inferences require evidence of the

size of Devoe’s bedroom or his position in the bedroom in relation to

11
the gun. Instead, there is sufficient evidence that Devoe had ample

time and opportunity — either before the officers arrived or after

they arrived and before he emerged from the bedroom — to be

within immediate reach of the gun and in possession of drugs at the

same time.

¶ 27 Simply put, the circumstantial evidence presented at trial and

the reasonable inferences that can be drawn from that evidence are

sufficient in quality and quantity to support the jury’s finding that

at some point, either while officers were present during the

moments that Devoe was in the bedroom, or before officers arrived,

Devoe had been in possession of drugs and also had a gun within

his immediate reach inside the apartment.

¶ 28 Therefore, the evidence presented at trial, when viewed in the

light most favorable to the prosecution, was sufficient to support

the jury’s verdict that on the day in question, Devoe was in

possession of cocaine and had come within immediate reach of one

of the two guns in his apartment. Accordingly, we discern no error

in the court’s decision to deny Devoe’s motion for a judgment of

acquittal.

12
B. The Court Considered All the Necessary Sentencing Factors

¶ 29 Next, Devoe argues that the court didn’t consider all the

necessary sentencing factors when it sentenced him to thirty-two

years in the custody of the DOC and instead impermissibly focused

on Devoe’s lack of potential for rehabilitation. We disagree that the

court erred.

1. Standard of Review and Relevant Law

¶ 30 We review a trial court’s sentencing decision for an abuse of

discretion. People v. Linares-Guzman, 195 P.3d 1130, 1137 (Colo.

App. 2008). A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair. People v. Heredia-

Cobos, 2017 COA 130, ¶ 30. When exercising its sentencing

discretion, a court must consider: (1) the nature of the offense;

(2) the character and rehabilitative potential of the offender; (3) the

deterrence of crime; and (4) the protection of the public. People v.

Herrera, 2014 COA 20, ¶ 17; see §§ 18-1-102.5, 18-1-409(1),

C.R.S. 2025.

1. Additional Facts

¶ 31 At sentencing, the prosecutor began by outlining Devoe’s

lengthy criminal history:

13
This is [Devoe]’s ninth felony case — felony
conviction. His first felony conviction was also
for dealing drugs when he was [twenty-six]
years old in the mid[-eighties] . . . .

Notably, of course, Your Honor, [Devoe] also
has a conviction from 2012 for a different type
of illegal trafficking. That one, human chattel
for the procurement of a child.

¶ 32 The defense offered details of Devoe’s past as mitigation for his

conviction, arguing as follows:

In talking with Mr. Devoe, one thing became
very clear that he has had issues related to
addiction and drugs his entire life. Both with
his parents abusing it, with his own personal
use.

Mr. Devoe graduated high school. He was
beginning community college when his mother
passed away from an overdose. And Mr. Devoe
told me that, you know, at that point, he
basically spiraled. He had a lot of depression.
He began using. He dropped out of school.
He, in essence, continued a cycle his parents
had started. He had significant issues.
Looking at his criminal history, almost all of it
relates to his drug use in one way or the other.

¶ 33 Afterwards, the court explained the purposes of a sentence:

The purpose of sentences [is] to punish in
relation to the seriousness of the offense, to
assure fair and consistent treatment of
convicted offenders, to prevent crime, promote
respect for the law, and to deter others likely to
commit similar offenses, promote
rehabilitation, address the individual needs of

14
the defendant, to reduce recidivism, and
promote accountability for the offender and
healing and restoration for the victim.

I’ve considered all of the factors that I’m to
consider under the sentencing statute.

¶ 34 Thereafter, the court explained its decision to sentence Devoe

to thirty-two years in the custody of the DOC by discussing at least

four factors. First, the court acknowledged the defense’s mitigation

argument. The court stated that despite the adversities Devoe has

faced, he has still chosen a life of crime — specifically noting that

he has preyed on children and other drug users. Second, as to his

criminal history, the court found that despite having multiple

opportunities to be rehabilitated in connection with his nine felony

convictions, Devoe has continued to reoffend. The court

acknowledged that the prosecution “could have filed criminal

habitual charges” but chose not to. Third, the court characterized

Devoe’s specific conviction as “selling drugs with guns.” Finally, the

court found that it needed to keep Devoe out of the community to

“keep people safe from [him].”

15
¶ 35 With these factors in mind, the court sentenced Devoe to the

maximum sentence permitted by the sentencing range with the

special offender sentence enhancer.

1. Analysis

¶ 36 Devoe argues that the trial court didn’t consider all the

sentencing factors and impermissibly focused on his lack of

potential for rehabilitation. We disagree for two reasons.1

¶ 37 First, the record contradicts Devoe’s assertion. The trial court

began its sentencing decision by listing the factors it was required

to consider and concluded, “I’ve considered all of the factors that

I’m to consider under the sentencing statute.” And the factors the

court listed covered all the factors it was required to consider. See

Herrera, ¶ 17.

¶ 38 Moreover, the court made detailed findings on several of the

factors. “It is sufficient that the record contains evidence to support

the reasons for the sentence, a reasonable explanation of the

sentence imposed, and information that permits the conclusion that

1 The parties disagree over whether the issue is preserved.Because
we discern no error, we don’t need to address whether the issue is
preserved.

16
the sentencing court considered all essential factors.” Linares-

Guzman, 195 P.3d at 1137.

¶ 39 Regarding the nature of the crime, the court noted that the

crime was selling drugs with guns. The court’s comments that

Devoe preyed on children and drug users were also relevant to the

nature of the crime.

¶ 40 Next, the court made findings on Devoe’s rehabilitative

potential. The court found that Devoe had exhibited a lifelong

pattern of preying on drug users and children — the latter a

reference to Devoe’s conviction for procurement of a child. The

court also found that Devoe had demonstrated a lack of

rehabilitative potential based on his lifetime of selling drugs and

pattern of reoffending. The court even addressed the defense’s

mitigation by saying that an addiction to drugs didn’t excuse the

crimes Devoe had committed.

¶ 41 The court also expressly considered the last statutory factor,

protection of the public. It stated, “[T]he community needs you to

go away forever,” and “I want you to understand it’s not so much to

punish as just to keep people safe from you.”

17
¶ 42 Therefore, the record demonstrates that the court considered

all the relevant factors and made specific findings regarding all but

one of them. See Linares-Guzman, 195 P.3d at 1137 (“Trial courts

are not required to ‘engage in a point-by-point discussion of each

and every one of [the sentencing] factors when it explains the

sentence to be imposed.’” (quoting People v. Walker, 724 P.2d 666,

669 (Colo. 1986))).

¶ 43 Second, the trial court’s decision to focus on Devoe’s lack of

rehabilitative potential wasn’t an abuse of discretion. To be sure,

the trial court can’t place undue emphasis on one sentencing factor

to the exclusion of all the others. People v. Piro, 701 P.2d 878, 879

(Colo. App. 1985). But finding aggravating factors to be more

compelling than any arguably mitigating factors doesn’t constitute

an abuse of discretion or indicate that the court failed to consider

evidence of mitigation. Linares-Guzman, 195 P.3d at 1137.

¶ 44 Here, the court stated that it had considered all appropriate

factors. Further, the court made detailed findings on nearly every

sentencing factor — including Devoe’s argued mitigating factors.

Accordingly, we discern no abuse of discretion in the court’s

decision to sentence Devoe to thirty-two years in prison.

18
C. Proportionality

¶ 45 Finally, Devoe argues that his thirty-two-year sentence isn’t

proportional to his convictions and violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. We

aren’t persuaded.

1. Standard of Review and Preservation

¶ 46 We review the constitutionality of a sentence de novo. Wells-

Yates v. People, 2019 CO 90M, ¶ 35. An unpreserved claim that a

sentence is unconstitutionally disproportionate is reviewed for plain

error. People v. Walker, 2022 COA 15, ¶ 60. Plain error is one that

is obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14. We

only reverse for plain error if the error “so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the judgment.” Id. (quoting People v. Miller, 113

P.3d 743, 750 (Colo. 2005)).

¶ 47 As Devoe concedes, he didn’t request a proportionality review

from the trial court. Thus, the issue isn’t preserved, and we will

reverse only upon a finding of plain error.

19
2. Relevant Law

¶ 48 The Eighth Amendment prohibits “sentences that are

disproportionate to the crime committed.” Wells-Yates, ¶ 5 (quoting

Solem v. Helm, 463 U.S. 277, 284 (1983)). “It is ‘exceedingly rare’

for a sentence to be deemed so extreme that it is grossly

disproportionate to the crime.” Id. (quoting Harmelin v. Michigan,

501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)).

Proportionality review is most commonly applied to cases where a

defendant’s sentence exceeds the presumptive sentencing range

pursuant to the habitual criminal statute. See generally id. at ¶ 20;

Rutter v. People, 2015 CO 71; People v. Session, 2020 COA 158.

¶ 49 Our proportionality review involves two steps: (1) an

“abbreviated proportionality review”; and (2) an “extended

proportionality review.” Wells-Yates, ¶ 10. The abbreviated

proportionality review compares the gravity or seriousness of the

offense to the harshness of the penalty. Id. at ¶ 11.

¶ 50 Certain crimes have been deemed per se grave or serious, and

for those offenses, courts may skip the first part of the abbreviated

proportionality review. Id. at ¶ 13. For crimes that are not per se

grave or serious, courts review “the facts and circumstances

20
underlying the offense.” People v. Hargrove, 2013 COA 165, ¶ 12,

abrogated on other grounds by, Wells-Yates, ¶¶ 16-17.

¶ 51 In assessing the gravity or seriousness of an offense, courts

consider the harm caused or threatened to the victim or society and

the culpability of the offender. Wells-Yates, ¶ 12. In terms of harm

to the victim or society, courts should focus on the following factors:

(1) the magnitude of the offense; (2) whether the offense was a

lesser included or greater included offense; (3) whether the

defendant was the principal or an accessory; and (4) whether the

crime was completed or only attempted. Id.

¶ 52 Review of a sentence’s harshness “is substantially

circumscribed because the legislature’s establishment of the

harshness of the penalty deserves great deference.” Id. at ¶ 62. “In

assessing the harshness of the penalty, we must take into account

both the length of the sentence and parole eligibility.” People v.

Lopez, 2025 COA 73, ¶ 12.

¶ 53 If the abbreviated proportionality review doesn’t give rise to an

inference of gross disproportionality, we need not conduct an

extended proportionality review. Wells-Yates, ¶ 15.

21
3. Analysis

¶ 54 Devoe argues that his sentence was disproportionate because

only two of his previous offenses were arguably per se grave or

serious and the trial court failed to make the requisite findings that

the remaining previous offenses were grave or serious. Devoe,

however, erroneously frames his argument as though he was

sentenced under a habitual offender statute — which requires the

imposition of a maximum sentence. But because he was instead

sentenced under a special offender statute, the trial court exercised

its discretion to impose the sentence and in the course of doing so

made specific findings regarding the propriety of the sentence based

on all the attendant circumstances.

a. Habitual Offender Sentencing and Special Offender Sentencing

¶ 55 First, Devoe’s argument misconstrues his sentence as having

been imposed under a habitual offender statute. Under this

apparent misapprehension, Devoe argues that his previous offenses

aren’t grave or serious, and thus, his sentence is disproportionate.

To properly understand our proportionality review, we must

understand exactly how Devoe was sentenced.

22
¶ 56 As previously stated, Devoe was convicted of possession with

intent to distribute and a special offender sentence enhancer for

committing the crime within immediate reach of a deadly weapon.

The special offender statute elevates the underlying conviction from

a level 2 drug felony to a level 1 drug felony, thus changing the

presumptive sentencing range accordingly. § 18-18-407(1). This is

distinct from how Colorado’s habitual offender statute operates.

¶ 57 Under Colorado’s habitual offender statute, a defendant

convicted of a felony (a triggering offense) may be adjudicated a

habitual criminal if he has two or more previous felony convictions

(predicate offenses). § 18-1.3-801(1.5)(a), (2)(a)(I)(A), C.R.S. 2025. A

conviction as a habitual offender with three or more felony

convictions receives a mandatory sentence of four times the

maximum of the presumptive sentencing range of the triggering

offense. § 18-1.3-801(2)(a)(I)(A). “By increasing a defendant’s

punishment based on mandatory provisions, the habitual criminal

statute ‘strip[s] the sentencing court of any discretion in

sentencing.’” Wells-Yates, ¶ 20 (emphasis added) (citation omitted).

The only discretion exercised is when the prosecution decides

whether to adjudicate the defendant a habitual criminal. Id.

23
¶ 58 Stated differently, the special offender statute subjects a

defendant to a different presumptive sentencing range while still

permitting the sentencing court to exercise its sentencing

discretion. In contrast, the habitual offender statute requires

mandatory sentencing outside of the triggering offense’s

presumptive sentencing range.

¶ 59 Here, the maximum sentence Devoe could have received on

the possession charge alone was eight years. Had he been

convicted as a habitual criminal with three or more previous

felonies, the court would have been required to sentence Devoe to

four times that maximum — resulting in a mandatory thirty-two-

year sentence. While the sentencing court ultimately imposed a

thirty-two-year sentence, it wasn’t required to do so by the special

offender statute. Instead, thirty-two years was the maximum

sentence within the sentencing range for a level 1 drug felony. This

allowed the court to exercise its discretion, consider aggravating

and mitigating factors, and conclude the maximum sentence was

appropriate.

¶ 60 As we have previously concluded, the court properly

considered the sentencing factors under the current sentencing

24
scheme. The court didn’t make findings on Devoe’s predicate

offenses because it wasn’t required to under the special offender

sentencing scheme. Further, even if Devoe’s sentence was

submitted to a proportionality review, as discussed below, we

conclude that the crime he committed was independently grave or

serious, and thus Devoe was sentenced appropriately.

b. The Gravity of the Offense

¶ 61 In Wells-Yates, the Colorado Supreme Court held that, while

possession with intent to distribute offenses are not grave or

serious per se, oftentimes they can rise to that level based on the

circumstances of the offense. Id. at ¶ 70. Weighing the factors laid

out in Wells-Yates, we conclude the offense here is grave or serious.

¶ 62 First, we consider the magnitude of the offense. The amount

of drugs involved is an important consideration when determining if

a possession charge is grave or serious. Id. at ¶ 69. Devoe was

found with a large quantity of drugs — 232 grams of cocaine. This

is much more than what one might expect for personal use and

thus strongly suggests that the offense was grave or serious. See

Harmelin, 501 U.S. at 1002; cf. Wells-Yates, ¶ 71 (noting that “an

addict found in possession of baggies, a scale, and a very small

25
quantity of narcotics” might not be engaged in a grave or serious

crime).

¶ 63 Additionally, Devoe — who was unemployed at the time — had

$5,100 in cash when he was arrested. The large quantity of drugs

and amount of cash combined with Devoe’s unemployment suggest

that Devoe had likely been selling the cocaine, even though he

wasn’t charged with distribution — which is a per se grave or

serious offense. Wells-Yates, ¶ 66.

¶ 64 Further, officers found two loaded handguns in different areas

of the home. Indeed, the jury found that Devoe had one of those

guns within his immediate reach while possessing cocaine with

intent to distribute. For the foregoing reasons, we conclude that

the magnitude of this specific crime suggests that the offense is

grave or serious.

¶ 65 The next two Wells-Yates factors are straightforward. The

possession with intent to distribute offense wasn’t a lesser included

offense, and Devoe was the principal actor involved in the offense.

These factors also suggest the offense is grave or serious.

¶ 66 Finally, we look to whether the crime was completed or only

attempted. “Possession with intent requires less than the

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completed (or even the attempted) sale, distribution, manufacture,

or dispensation of narcotics; it requires simply an intent to sell,

distribute, manufacture, or dispense narcotics.” Id. at ¶ 72. While

this is a compelling factor against designating Devoe’s crime as

grave or serious, it’s outweighed by the other factors.

¶ 67 Considering all the factors together, we have no difficulty in

concluding that Devoe’s possession with intent to distribute

conviction, and the accompanying special offender sentence

enhancer, is a grave or serious offense.

c. The Harshness of the Penalty

¶ 68 Next, we consider whether the thirty-two-year sentence was

unduly harsh. We conclude that it wasn’t for at least two reasons.

¶ 69 First, “the fixing of prison terms for specific crimes involves a

substantive penological judgment that, as a general matter, is

‘properly within the province of legislatures, not courts.’” Harmelin,

501 U.S. at 998 (quoting Rummel v. Estelle, 445 U.S. 263, 275-76

(1980)). “Thus, ‘[r]eviewing courts . . . should grant substantial

deference to the broad authority that legislatures necessarily

possess in determining the types and limits of punishments for

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crimes.’” Id. at 999 (quoting Solem, 463 U.S. at 290). Devoe’s

thirty-two-year sentence is within the range permitted by statute.

¶ 70 Second, the thirty-two-year sentence is the maximum allowed

by statute. Devoe, however, will be eligible for parole after serving

no more than half of his sentence — sixteen years.2 See § 17-22.5-

403(1), C.R.S. 2025. While the maximum sentence may appear

harsh on its face, Devoe’s eligibility for parole “can reduce the

actual period of confinement and render the penalty less harsh.”

Wells-Yates, ¶ 14.

¶ 71 Because Devoe’s sentence falls within the range fixed by the

legislature and he will be eligible for parole, we conclude that his

sentence isn’t unduly or unconstitutionally harsh.

¶ 72 Given that the circumstances of Devoe’s possession with

intent to distribute conviction are sufficient to render the crime

grave and serious, and the sentence doesn’t raise any inference of

disproportionality, we don’t discern any error by the trial court,

2 Indeed, Devoe suggests in his opening brief that he will be parole

eligible in October 2036, citing the DOC Inmate Locator information
page. If Devoe is correct, then this would mean he is parole eligible
after fourteen years instead of sixteen, further bolstering our
determination that there is no inference of gross disproportionality.

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much less a plain error, or find any basis for conducting an

extended proportionality review. See id. at ¶ 15.

III. Disposition

¶ 73 The judgment is affirmed.

JUDGE GROVE and JUDGE JOHNSON concur.

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