Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The appeals court upheld the validity of Timothy Gemelli’s waived right to counsel in his trial and affirmed the judgment of the trial court.
In January 2017, Gemelli’s 23 year-old daughter reported to police in Colorado that Gemelli had sexually abused her for about seven years, beginning when she was six years old. Four of the daughter’s childhood friends reported similar sexual abuse by Gemelli during the same time period.
Gemelli was charged with five counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse and one count of aggravated incest.
Gemelli filed a motion to proceed pro se with an appointed “co-counsel” or to have substitute counsel appointed. The trial court held a hearing and determined Gemelli’s disagreement with his lawyer didn’t amount to a complete breakdown in communication and ruled Gemelli wasn’t entitled to substitute counsel.
The trial court discussed the risks of proceeding pro se with Gemelli, including the complicating factor of his incarceration. Gemelli, according to the opinion, claimed he could afford to hire a lawyer if he could “bound out,” but the court advised him to make his pro se decision under the assumption that it wouldn’t occur. Gemelli then withdrew his request for pro se.
At a hearing on pending motions, the trial court denied Gemelli’s request to reduce bond. Gemelli immediately informed the court that he would “appear pro se and go forward.” The trial court reiterated its warning, and he affirmed his decision to represent himself. The trial court appointed Gemelli an advisory counsel, but told Gemelli it was unlikely the counsel would be adequately prepared to assist him with the trial starting in just over a month.
At no time in Gemelli’s trial did he seek reappointment of counsel or request advisory counsel take over the representation, according to the opinion. The jury returned guilty verdicts on all counts. Gemelli appealed.
Gemelli’s appeal was based on four contentions: he didn’t validly waive his right to counsel; the trial court’s errors, the prosecution’s misconduct and jail officials’ interference with his preparation together deprived him of his right to self-representation; the trial court erred by not requiring advisory counsel to take over the representation during trial; and the trial court erred in responding to a jury question during deliberations.
The appeals court acknowledged Gemelli faced a difficult decision on the matter of representation, but found the choice wasn’t constitutionally offensive and didn’t render his waiver of the right to counsel involuntary. The appeals court concluded Gemelli validly waived his right to counsel.
Gemelli further contended trial court errors, prosecutorial misconduct and interference by jail officials deprived him of his right to self-representation. The appeals court viewed Gemelli’s arguments concerning the trial court errors and prosecutorial misconduct as undeveloped and declined to address them.
The appeals court also rejected Gemelli’s claim that jail officials interfered with his right to self-representation, on the basis that he failed to show actual injury or harm.
Additionally, the appeals found no error on the trial court’s part when it didn’t override Gemelli’s valid waiver of his right to counsel, ordered advisory counsel to take over his representation or in its response to jury questions.
The appeals court affirmed the judgment.
The case returned to the appeals court four years after the state Supreme Court provided extensive guidance on how to conduct proportionality review of a habitual criminal sentence, based on their opinion in the Wells-Yates v. People case. The Colorado Supreme Court didn’t decide whether the sentences imposed on Belinda Wells-Yates were unconstitutional, and the district court upheld her sentences. The appeals court reversed Wells-Yates’ sentence for possession with intent to distribute and remanded to the district court to conduct an extended proportionality review of that sentence and affirmed Wells-Yates’ other sentences.
Wells-Yates was convicted by a jury of second-degree burglary, conspiracy to commit second-degree burglary, theft, possession with intent to distribute methamphetamine and four counts of identity theft.
Six of the eight counts, all but possession with intent and one count of identity theft, stemmed from Wells-Yates’ burglary of a home that had been evacuated due to the approaching Waldo Canyon wildfire.
Wells-Yates was adjudicated a habitual criminal based on three prior felony convictions: a 1996 conviction for possession with intent to distribute methamphetamine, a 1997 conviction for possession of methamphetamine and a 1999 conviction for possession of methamphetamine.
The habitual criminal adjudication dictated a sentence for each offense of four times the maximum of the presumptive range.
The court sentenced Wells-Yates to 64 years for possession with intent, 48 years for second-degree burglary and 24 years for each of the other counts. The sentences for second-degree burglary and the four identity theft counts were ordered to run consecutively, with all other sentences running concurrently.
Wells-Yates requested an abbreviated proportionality review of her sentences. The district court conducted the review and concluded the sentences weren’t unconstitutionally disproportionate. A division of the appeals court affirmed on appeal.
The state Supreme Court then reversed the division’s decision in an opinion that clarified several issues relating to the proportionality review framework. But the court didn’t decide whether Wells-Yates’ sentences were unconstitutional. Instead, it remanded the case to the district court to conduct a new proportionality review consistent with the opinion.
On remand, the district court held an evidentiary hearing and issued a written order, again concluding that none of the sentences created an inference of gross disproportionality. At the hearing, the district court admitted and considered, over Wells-Yates’ objection, arrest warrant affidavits for Wells-Yates’ predicate convictions.
The appeals court concluded the district court complied with the Colorado Supreme Court’s mandate but considered Wells-Yates’ substantive challenge to its conclusions.
The appeals court viewed the specific question in this case as whether, in assessing the gravity or seriousness of a predicate offense of possession of a controlled substance, a court may consider the defendant’s alleged distribution of that substance. The appeals court concluded, at least where the distribution is of the same drugs and occurs at the same time as the possession offense, such distribution may be considered as part of the facts and circumstances surrounding the offense.
The appeals court also concluded Wells-Yates’ two possession convictions weren’t especially grave or serious. The opinion continued, noting these offenses lie at the core of the “sea change in our General Assembly’s philosophy regarding the handling of drug offenses.” In addition, those offenses were reclassified from class 4 felonies to a level 1 drug misdemeanor and a level 4 drug felony with substantially reduced sentencing ranges, and the offenses no longer qualify as predicate offenses under the habitual criminal statute.
The opinion further noted the prior conviction for possession with intent to sell or distribute is one step up on the seriousness scale, but less grave or serious than distribution. The legislature also reduced the classification of the offense from an extraordinary risk class 3 felony to a level 3 drug felony.
The appeals court viewed the triggering offense as weighing less heavily regarding these triggering offenses, as they weren’t especially grave or serious.
However, the appeals court viewed the triggering burglary offense differently. The appeals court found the offense substantially more serious than the drug offense. The appeals court concluded Wells-Yates’ triggering burglary offense considerably grave or serious, made even more so by her history of felony recidivism.
Regarding Wells-Yates’ charges of conspiracy and identity theft, the appeals court found the gravity or seriousness of each of these triggering offenses exacerbated by Wells-Yates’ history, though not to as great of a degree as if those predicate offenses were more serious.
On the sentence of 64 years for possession with intent to distribute, the appeals court concluded the sentence raised an inference of gross disproportionality. For the other sentences, the court couldn’t conclude they were a case in which the legislature’s habitual criminal sentencing determination raises an inference of gross disproportionality.
The appeals court also declined to declare a categorical rule that quadrupling the sentence for an offense based solely on prior drug possession convictions is per se unconstitutional.
The appeals court reversed the 64-year sentence for possession with intent to distribute methamphetamine and remanded the case to the district court to conduct an extended proportionality review. The remaining sentences were affirmed.