author: Opinion by JUDGE WELLING

text:
    Carl A. CORDELL and Wanda M. Cordell, Plaintiffs-Appellants, v. Bradley KLINGSHEIM, Defendant-Appellee.
    Court of Appeals No. 17CA0233
    Colorado Court of Appeals, Division V.
    Announced May 31, 2018
    Jon Lewis Kelly, P.C., Jon Lewis Kelly, Dolores, Colorado, for Plaintiffs-Appellants
    The Baty Law Firm P.C., Michael W. Baty, Durango, Colorado, for Defendant-Appellee
   Opinion by JUDGE WELLING

¶ 1 Carl A. and Wanda M. Cordell (the Cordells) appeal the trial court's 2016 order reinstating a treasurer's deed for a tract of land in La Plata County (the reinstatement order). But this is not these parties' first visit to this court. In 2014, a division of this court affirmed a trial court order voiding a treasurer's deed following a 2013 tax sale of the disputed tract (the voiding order). See Cordell v. Klingsheim , 2014 COA 133, 412 P.3d 629 ( Cordell I ). In 2016, our supreme court reversed Cordell I . See Klingsheim v. Cordell , 2016 CO 18, 379 P.3d 270 ( Cordell II ).

¶ 2 The trial court issued the reinstatement order on remand following the decision in Cordell II . It did so without substantive analysis of its own. On appeal, the Cordells contend that the trial court was not required to reinstate the treasurer's deed on remand because the holding in Cordell II reached only one of the two grounds on which the trial court rested the voiding order. In other words, they contend that the alternative ground for voiding the treasurer's deed remained viable following Cordell II and that alternative basis was meritorious. Although we agree with the Cordells that their alternative argument for voiding the treasurer's deed was not foreclosed by Cordell II , we affirm the trial court's reinstatement order because we reject the contention on its merits.

I. Facts and Procedural History

¶ 3 The Cordells were the record owners of a tract of land located in La Plata County (Tract 1). After the Cordells failed to pay the taxes owed on Tract 1 for several years, Brenda Heller purchased a tax lien for the property. Heller assigned that lien to Bradley Klingsheim, who later requested a deed to the property from the La Plata County Treasurer.

¶ 4 Before issuing the requested deed, the Treasurer sent the Cordells a copy of the notice of the application for a treasurer's deed on Tract 1 by certified mail. The Treasurer mailed the notice to the Cordells in one envelope addressed to "Carl A. Cordell" and "Wanda M. Cordell" to 705 N. Vine in Farmington, New Mexico, the address listed for the Cordells in the county tax records. The Treasurer later received a return receipt indicating that the notice had been received by Mr. Cordell's mother, Cleo Cordell. When the Cordells failed to exercise their rights to redeem the property, the Treasurer issued the treasurer's deed to Tract 1 to Klingsheim.

¶ 5 The Cordells learned of the notice some time later, at which time they filed suit seeking a declaratory judgment that they were the owners of Tract 1, and that the treasurer's deed was void. After a bench trial, the trial court ruled that the Treasurer had not complied with section 39-11-128, C.R.S. 2017, because he had not made "diligent inquiry" in attempting to notify the Cordells that their land may be sold to satisfy a tax lien. Because it concluded that the Treasurer had not made the diligent inquiry required under the statute, the trial court voided the deed. The trial court also ruled that the treasurer's deed was void because no "separate notice" was mailed to Ms. Cordell. This is the alternative basis referred to at the outset of this opinion.

¶ 6 Klingsheim appealed. He argued that the Treasurer satisfied his statutory duty of diligent inquiry and that the Treasurer was not required to mail a separate notice to Ms. Cordell. In Cordell I , a division of this court concluded that the Treasurer failed to make the diligent inquiry required by section 39-11-128, and on that basis affirmed the voiding order. See Cordell I , ¶¶ 6-20. Having concluded that the Treasurer failed to comply with section 39-11-128, the division stated that it "need not address Klingsheim's additional contention concerning the treasurer's failure to mail separate notices to each record owner." Id. at ¶ 20.

¶ 7 Judge Jones dissented from the majority's opinion in Cordell I . In his dissenting opinion, he considered and rejected the argument that the Treasurer's notice to Ms. Cordell "was defective as to her because it was not sent to her in a separate envelope." Id. at ¶¶ 22, 65-68 (J. Jones, J., dissenting).

¶ 8 Klingsheim petitioned our supreme court for certiorari review, which it granted to decide "[w]hether the court of appeals' decision in [ Cordell I ] erroneously construed county treasurers' 'diligent inquiry' duties under section 39-11-128(1)(a) and (b)." Cordell II , ¶ 13 n.2. It concluded that the Treasurer fulfilled the duty of diligent inquiry required by section 39-11-128. Id. at ¶¶ 15-41. The supreme court also concluded that the Treasurer's transmission of the notices by certified mail to the Cordells' address listed in the tax rolls, where the return receipt indicated that the notices were received by the person (Cleo Cordell, Mr. Cordell's mother) whom the Cordells anticipated would receive mail on their behalf, satisfied due process. Id. at ¶¶ 42-46. Having so concluded, it reversed the judgment in Cordell I and remanded the case "for further proceedings consistent with th[e] opinion." Id. at ¶ 48.

¶ 9 On remand to this court, the Cordells requested that the division from Cordell I consider the issue of whether due process required the Treasurer to mail a separate notice to Ms. Cordell. The division declined to do so. Judge Jones dissented, indicating that he would address "appellee's additional contention concerning the failure to mail separate notices to each record owner." Cordell v. Klingsheim , (Colo. App. No. 13CA388, July 13, 2016) (unpublished order). A mandate was ultimately issued reversing the voiding order and remanding the case to the trial court "for further proceedings consistent with the opinion of the Colorado Supreme Court" in Cordell II .

¶ 10 On remand to the trial court, Klingsheim moved for the trial court to reverse the voiding order and reinstate both treasurer's deeds, arguing that doing so was consistent with and required by Cordell II . Specifically, he argued that Cordell II was a "complete reversal" of the voiding order and, therefore, reinstatement was required by the supreme court's holding in the case. The Cordells, on the other hand, contended that neither Cordell I nor Cordell II reached the separate notice issue, and, therefore, the trial court remained free to and should-as it had done previously-void the deed to Tract 1 on that basis. In the reinstatement order, it is unclear whether the trial court rejected the Cordells' separate notice argument on the merits or did so because it understood Cordell II as disposing of the contention, as the trial court granted Klingsheim's motion and adopted his proposed order without further analysis. The Cordells appeal the reinstatement order.

II. Analysis

A. Cordell II Did Not Resolve the Separate Notice Issue

¶ 11 Klingsheim contends that issuance of the reinstatement order was consistent with the supreme court's opinion in Cordell II . He argues that, in holding that "the notices at issue satisfied due process," the supreme court in Cordell II concluded that due process did not require the Treasurer to mail a separate notice to Ms. Cordell. Id. at ¶ 46. We disagree that the supreme court's opinion in Cordell II reached that issue.

¶ 12 Trial courts have no discretion to disregard binding appellate rulings. Thompson v. United Sec. All., Inc. , 2016 COA 128, ¶ 13, 433 P.3d 50 (cert. granted sub nom. Rogers v. Catlin Ins. Co. , 2017 WL 3977988 (Colo. Sept. 11, 2017) ); Kuhn v. State Dep't of Revenue , 897 P.2d 792, 795 (Colo. 1995). When a trial court must determine whether an appellate decision dictates a particular result under the law of the case doctrine, we review its determination de novo. See Hardesty v. Pino , 222 P.3d 336, 339 (Colo. App. 2009).

¶ 13 "Conclusions of an appellate court, and rulings logically necessary to those conclusions, become the law of the case and generally must be followed in later proceedings." In re Estate of Shimizu , 2016 COA 163, ¶ 13, 411 P.3d 211 (citation omitted). The law of the case doctrine does not apply, however, if there has been no prior decision by an appellate court on an issue. Kuhn , 897 P.2d at 796.

¶ 14 We are unpersuaded that the law of the case, as established by the supreme court's opinion in Cordell II , required the complete reversal of the voiding order. We reach this conclusion for two reasons. First, the question presented on certiorari in Cordell II does not encompass the issue of whether due process requires the mailing of a separate notice to each record owner. In Cordell II , ¶ 13 n.2, our supreme court granted certiorari to review "[w]hether the court of appeals' decision in [ Cordell I ] erroneously construed county treasurers' 'diligent inquiry' duties under section 39-11-128(1)(a) and (b)." Because our supreme court limits the scope of its review to the question presented on certiorari, see White v. Muniz , 999 P.2d 814, 818 n.7 (Colo. 2000) (declining to address a question outside the scope of the issue on certiorari); People v. Branch , 805 P.2d 1075, 1080 n.1 (Colo. 1991) (same), we cannot presume that an issue beyond the question presented was decided, see Sprague v. Ticonic Nat'l Bank , 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) ("While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues."); Gavend v. Malman , 946 P.2d 558, 562 (Colo. App. 1997) (although the mandate required the reinstatement of improperly dismissed claims, on remand the court could nonetheless dismiss those claims on alternate grounds).

¶ 15 Second, the supreme court's treatment of the due process issue in Cordell II indicates that it did not reach the separate notice issue. There is no discussion whatsoever in the Cordell II opinion regarding whether due process required the Treasurer to mail Ms. Cordell a separate notice. Tellingly, in discussing the Cordells' due process rights, there is no discussion of the essential premise of the trial court's separate notice ruling-that "the constitutional rights of Ms. Cordell are separate from those of her spouse." Because there is no discussion of either the trial court's separate notice ruling or Ms. Cordell's individual due process rights, we are not persuaded that the supreme court reached the separate notice issue in Cordell II .

¶ 16 For these reasons, we conclude that Cordell II did not resolve the issue of whether the treasurer's deed was void because the Treasurer failed to mail Ms. Cordell a separate notice. Nor did this court address it on remand. Because that issue was not resolved in a binding appellate decision, the law of the case doctrine did not require the trial court to reinstate the treasurer's deed on remand. See Kuhn , 897 P.2d at 796. Instead, it remained free to consider the merits of the Cordells' separate notice argument. Although in issuing the reinstatement order the trial court does not appear to have considered whether the Treasurer's failure to mail a separate notice to Ms. Cordell violated her right to due process-a conclusion reached in the voiding order that would preclude reinstatement of the treasurer's deed to Tract 1-we now consider whether its failure to consider that issue on its merits warrants reversal.

B. Due Process Did Not Require Separate Notice to Ms. Cordell

¶ 17 In his dissenting opinion in Cordell I , ¶¶ 65-68, Judge Jones concluded that the trial court erroneously voided the treasurer's deed based on the Treasurer's failure to mail a separate notice to Ms. Cordell. As discussed above, neither the majority in Cordell I nor our supreme court in Cordell II has addressed whether due process requires the mailing of a separate notice to each record owner under the circumstances here. We conclude that it does not.

¶ 18 Because there are no material facts in dispute, whether due process required the mailing of a separate notice to Ms. Cordell presents a question of law that we review de novo. Awad v. Breeze , 129 P.3d 1039, 1043 (Colo. App. 2005).

¶ 19 Due process "does not require that a property owner receive actual notice before the government may take his property." Jones v. Flowers , 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). Rather, "due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " Id. (quoting Mullane v. Centr. Hanover Bank & Tr. Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ); Willhite v. Rodriguez-Cera , 2012 CO 29, ¶ 25, 274 P.3d 1233 (same). Notice is constitutionally adequate when "the practicalities and peculiarities of the case ... are reasonably met." Mullane , 339 U.S. at 314-15, 70 S.Ct. 652.

¶ 20 We are aware of no requirement that, to comport with due process, each record owner residing at the same address must be mailed a separate notice of a pending tax sale. In this case, when the Treasurer mailed the notice to the Cordells, they were married and both were receiving mail at the Farmington, New Mexico, address. We conclude, under these circumstances, that the Treasurer's mailing of the notice to Ms. Cordell at the Farmington, New Mexico, address in the same envelope as the notice to Mr. Cordell was reasonably calculated to apprise Ms. Cordell that Tract 1 was the subject of a pending tax sale. See, e.g. , Tax Certificate Invs., Inc. v. Smethers , 714 N.E.2d 131, 135 (Ind. 1999) (holding that a single notice of pending tax sale mailed to most recent address provided by joint owners of record, a former married couple, satisfied due process); DeSalvo v. Roussel , 629 So.2d 1366, 1369 (La. Ct. App. 1993) (holding that a single notice of pending tax sale mailed to joint owners of record at shared address of record was sufficient under notice statute); In re Communipaw Cent. Land Co. , 26 N.J.Super. 125, 97 A.2d 176, 180 (1953) (holding that joint notice of pending tax sale mailed to co-owners was sufficient under notice statute); Curtis Bldg. Co., Inc. v. Tunstall , 21 Pa.Cmwlth. 81, 343 A.2d 389, 391 (1975) (holding that notice mailed in a single piece of mail to both record owners, though allegedly never received by the husband, was sufficient under notice statute). But see Alper v. LaFrancis , 155 So.2d 405, 406-07 (Fla. Dist. Ct. App. 1963) (holding that joint notice of pending tax sale mailed to husband and wife was insufficient under notice statute).

¶ 21 Because we conclude that the Treasurer's notice to Ms. Cordell satisfied due process, we also conclude that the reinstatement of the treasurer's deed to Tract 1 on remand was proper. Accordingly, we affirm the reinstatement order. See Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe , 107 P.3d 402, 406 (Colo. App. 2004) ("[W]e may affirm the trial court's ruling based on any grounds that are supported by the record.").

III. Conclusion

¶ 22 The reinstatement order is affirmed.

Dunn and Casebolt , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      Mr. Cordell was also the record owner of an adjoining tract of land (Tract 2). The reinstatement order, which is the subject of the Cordells' appeal, reinstated the treasurer's deeds for both Tract 1 and Tract 2. On appeal, however, the Cordells have not developed any argument that would undermine the trial court's reinstatement of the treasurer's deed for Tract 2. Accordingly, our analysis in this opinion is limited to the reinstatement of the treasurer's deed for Tract 1.

      The notice for Tract 2 was sent separately from the notice for Tract 1.

      The Cordells' claims, as well as the underlying facts, are set forth in detail in Klingsheim v. Cordell , 2016 CO 18, 379 P.3d 270 (Cordell II ).

      In the voiding order, the trial court found that "a separate notice must be sent to each person with an interest in the property, which was not done in this case. In this case, a separate notice was unlikely to have reached Ms. Cordell. However, the constitutional rights of Ms. Cordell are separate from those of her spouse."


source: Caselaw Access Project

author: Opinion by JUDGE FOX JUDGE FURMAN, specially concurring.

license: Public Domain

text:
    CITY OF LAFAYETTE, a home rule municipality and a Colorado municipal corporation, Plaintiff-Appellant, v. TOWN OF ERIE URBAN RENEWAL AUTHORITY; and Town of Erie, Colorado, Defendants-Appellees.
    Court of Appeals No. 17CA0595
    Colorado Court of Appeals, Division VI.
    Announced June 14, 2018
    Hamre, Rodriguez, Ostrander & Dingess, P.C., Donald M. Ostrander, Richard F. Rodriguez, Stephanie Ceccato, Denver, Colorado; Williamson and Hayashi, LLC, David Williamson, Boulder, Colorado, for Plaintiff-Appellant
    Waas Campbell Rivera Johnson & Velasquez LLP, Darrell G. Waas, Mikaela V. Rivera, Denver, Colorado, for Defendants-Appellees
   Opinion by JUDGE FOX

¶ 1 This dispute stems from the attempt by the City of Lafayette (Lafayette) to condemn a parcel of land owned by the Town of Erie (Erie). Lafayette appeals the district court's order granting Erie's motion to dismiss for lack of jurisdiction. Because the record supports the district court's finding that Lafayette had an unlawful motive for the condemnation, we affirm.

I. Background and Procedural History

¶ 2 Lafayette, a home rule municipality, and Erie, a statutory town, were signatories to the East Central Inter-Governmental Agreement (IGA), a comprehensive plan that sought to maintain some rural development as community buffers. The agreement lasted from 1994 to 2014. Lafayette and Erie were also signatories to the Super IGA-a comprehensive development plan for Boulder County. Erie and Lafayette withdrew from the Super IGA in July 2013.

¶ 3 After the two IGAs ended and the land along Highway 287 was no longer designated for rural preservation, commercial development by Erie and Lafayette ensued along Highway 287. The map below shows the relevant corridor of Highway 287. The Tebo property is part of unincorporated Boulder County. Lafayette annexed Weems, a residential community. The Safeway above Nine Mile Corner-the property at issue-is in Erie. Beacon Hill, located below Nine Mile Corner, is residential property within Lafayette.

¶ 4 Erie formed the Town of Erie Urban Renewal Authority (TOEURA) in 2011. In 2012, TOEURA purchased the Nelson property and the Kuhl property-together, they form Nine Mile Corner. Erie annexed Nine Mile Corner from TOEURA in 2015.

¶ 5 In 2013, Erie commissioned a geotechnical investigation of the property which determined that the property was suitable for development. Two blight studies commissioned by Erie, in 2012 and 2015, found that Nine Mile Corner was a blighted area. Erie then began to develop an urban renewal plan for the property. Erie, TOEURA, and the Nine Mile Developer signed a disposition and development agreement on March 22, 2016.

¶ 6 Erie hired a consultant to examine the property and identify potential tenants, including King Soopers. King Soopers had a location in Lafayette, but it had developed a larger store prototype. In early 2016, Lafayette became aware that King Soopers might relocate to open a larger store. In February 2016, Lafayette engaged in discussions to keep King Soopers (and its corresponding tax revenue) in Lafayette. Lafayette offered King Soopers a potential development site north of the Walmart on the west side of Highway 287.

¶ 7 In May 2016, Lafayette's city council passed an ordinance declaring, "[a]cquisition of [part of Nine Mile Corner] is necessary for the public purpose of open space and benefits associated with open space, as well as preservation of Lafayette's local and unique character, and buffering of Lafayette from development activities in neighboring communities." Lafayette determined it would condemn twenty-two acres of the southern portion of Nine Mile Corner to create an open space community buffer and leave the remaining twenty-three acres of Nine Mile Corner for Erie.

[Editor's Note : The preceding image contains the reference for footnote ].

¶ 8 After attempting to purchase the property, Lafayette filed its petition in condemnation and motion for immediate possession in July 2016. Erie responded by filing a motion to dismiss arguing that Lafayette's condemnation lacked a proper public purpose, thereby depriving the court of jurisdiction. After a two-day evidentiary hearing, the district court granted Erie's motion to dismiss, thus preventing Lafayette from condemning the property.

¶ 9 Lafayette appeals, arguing that its condemnation had a proper public purpose and that no bad faith motivated its condemnation decision. Although we agree that condemnation to create an open space community buffer could be a proper public purpose, the record here supports the district court's findings that Lafayette's condemnation decision fails because it was motivated by bad faith. Thus, we affirm the district court's judgment.

II. Standard of Review

¶ 10 The parties dispute the applicable standard of review. In examining the public purpose for a condemnation, we examine whether the stated public purpose is supported by the record. City & Cty. of Denver v. Block 173 Assocs. , 814 P.2d 824, 828-29 (Colo. 1991). Allegations of bad faith are also reviewed by reference to the record. Id. ; see also Glenelk Ass'n, Inc. v. Lewis , 260 P.3d 1117, 1120 (Colo. 2011) (in a private condemnation action, the district court's findings of facts are reviewed under the clearly erroneous standard); Denver W. Metro. Dist. v. Geudner , 786 P.2d 434, 436 (Colo. App. 1989) (recognizing that even if there is an incidental public benefit, a court may still find bad faith).

III. Open Space Buffer as Public Purpose

¶ 11 First, we consider whether a municipality may condemn property belonging to a statutory town for an open space buffer under article XX of the Colorado Constitution. As a general matter, Town of Telluride v. San Miguel Valley Corp. , 185 P.3d 161 (Colo. 2008), concluded that open space buffers can serve a valid public purpose.

A. Condemnation Law

¶ 12 Home rule municipalities may "condemn property for any lawful, public, local, and municipal purpose." Id. at 164 (discussing Colo. Const. art. XX); see also Kelo v. City of New London , 545 U.S. 469, 478, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (recognizing that a governmental entity may not take property "under the mere pretext of a public purpose"). It is true "the powers of a home rule or statutory municipality to acquire by condemnation property outside of its territorial boundaries [must] be limited to the narrowest extent permitted by article XX of the state constitution," § 38-1-101(4)(a)(II), C.R.S. 2017, but our supreme court has stated more than once that the powers enumerated in article XX are illustrative not exclusive, see Telluride , 185 P.3d at 166 ; Town of Glendale v. City & Cty. of Denver , 137 Colo. 188, 194, 322 P.2d 1053, 1056 (1958) (allowing Denver to condemn property belonging to Glendale for the construction of sewer lines because "[a]lthough sewers are not expressly mentioned in the Constitution, the powers enumerated therein are by way of illustration and not of limitation").

¶ 13 In a condemnation action, "the burden of proof is on the condemning entity to demonstrate, by a preponderance of the evidence, that the taking of private property is for a public use[.]" § 38-1-101(2)(b).

¶ 14 In Telluride , our supreme court concluded that "article XX grants home rule municipalities the power to condemn property, within or outside of territorial limits, for any lawful, public, local, and municipal purpose[,]" because "the list of purposes in section 1 [of article XX] is not comprehensive." 185 P.3d at 166. But, Telluride did not adopt a uniform rule for what constitutes a lawful public purpose "because of the difficulty of capturing the permissible range of local and municipal projects with a static test." Id. at 167. On the facts before it, the Telluride court concluded that open space and parks were a valid public purpose for which a municipality could condemn extraterritorially. Id. at 167-68.

¶ 15 Section 1 of article XX also provides, "[a municipality] shall have the power, within or without its territorial limits, to ... condemn ... in whole or in part, and everything required therefore, for the use of said city and county and the inhabitants thereof[.]" Colo. Const. art. XX, § 1 ; cf. City of Aurora v. Commerce Grp. Corp. , 694 P.2d 382, 385 (Colo. App. 1984) ("[T]here is a presumption against implication of authority for eminent domain not expressly granted[.]"). Thus, a municipality would not necessarily be prohibited from exercising its legitimate condemnation authority to take land owned by a neighboring statutory town, if a valid public purpose exists. See City of Thornton v. Farmers Reservoir & Irrigation Co. , 194 Colo. 526, 537, 575 P.2d 382, 391 (1978) ("[ Beth Medrosh Hagodol v. City of Aurora , 126 Colo. 267, 248 P.2d 732 (1952),] recognizes that Colo. Const. [a]rt. XX grants to home rule municipalities ample power to acquire by condemnation property already devoted to a public use."); Town of Glendale , 137 Colo. at 195, 322 P.2d at 1057. But see Town of Parker v. Colo. Div. of Parks & Outdoor Recreation , 860 P.2d 584, 586 (Colo. App. 1993) ("The right to take property already dedicated to a public use for another public use exists in some cases, but such rights must be by specific grant of authority."); see also CAW Equities, L.L.C. v. City of Greenwood Village , 2018 COA 42M, ¶¶ 27-28.

B. Bad Faith in the Condemnation Context

¶ 16 Lafayette argues that (1) there was no bad faith or fraud behind its decision to condemn the property and (2) its finding of necessity cannot be disturbed. We disagree with both contentions.

¶ 17 Courts may review condemnation actions to determine if "the essential purpose of the condemnation is to obtain a public benefit." Geudner , 786 P.2d at 436. Even if a condemnation decision is motivated in part by a public benefit, "the existence of an incidental public benefit does not prevent a court from finding 'bad faith' and invalidating a condemning authority's determination that a particular acquisition is necessary." Id. Bad faith factors into the lawful public purpose analysis. Without judicial review of condemnation actions, there would be no end to one entity subverting another entity's condemnation action by initiating one of its own. See Schroeder Invs., L.C. v. Edwards , 301 P.3d 994, 999 (Utah 2013) ("[O]ne of the primary policies underlying the 'more necessary public use' provision is the avoidance of serial takings.") (citation omitted); Lake Cty. Parks & Recreation Bd. v. Ind.-Am. Water Co. , 812 N.E.2d 1118, 1123 (Ind. Ct. App. 2004) ("[A]bsent the prior public use doctrine, property could be condemned back and forth indefinitely.").

¶ 18 In Telluride , however, the court noted that the trial court found that Telluride's condemnation was not motivated by bad faith. Town of Telluride , 185 P.3d at 169 n.7. Thus, on review, the court "accept[ed] as fact that Telluride sought the condemnation pursuant to [a] constitutionally valid purpose." Id.

¶ 19 Further, "[t]he issues of necessity and public purpose are 'closely related and, to some extent, interconnected.' " Geudner , 786 P.2d at 436 (quoting Thornton Dev. Auth. v. Upah , 640 F.Supp. 1071, 1076 (D. Colo. 1986) ). "While the existence of a public purpose is always subject to judicial review, the necessity of an acquisition of a specific parcel of property may only be reviewed by a court upon a showing of bad faith." Id. Thus, if bad faith is at issue, courts may look behind an entity's stated condemnation purpose and finding of necessity.

C. Analysis of the Legality of the Asserted Purpose

¶ 20 Lafayette's argument hinges on its belief that because the Lafayette city council determined this condemnation was necessary, the district court cannot look behind that determination to see if it was motivated by bad faith. This is incorrect. It is true that "[a] determination of necessity ... is not reviewable absent a showing of bad faith or fraud." Block 173 Assocs. , 814 P.2d at 829. But here, Erie's motion to dismiss alleged that Lafayette's condemnation was motivated by bad faith and was not for a lawful public purpose.

¶ 21 To rebut Lafayette's claim that the taking was for a public purpose, § 38-1-101(2)(b), Erie presented evidence of Lafayette's alleged bad faith during the two-day evidentiary hearing. Because Erie sufficiently showed that Lafayette's decision could have been motivated by bad faith, the district court appropriately reviewed Lafayette's finding of necessity. See Block 173 Assocs. , 814 P.2d at 828-29 ("In examining the stated public purpose for a condemnation, we look to whether the stated public purpose is supported by the record.").

¶ 22 Pheasant Ridge Associates Ltd. Partnership v. Town of Burlington , 399 Mass. 771, 506 N.E.2d 1152, 1154 (1987), presented a similar question on "the lawfulness of the town's taking in light of the plaintiffs' assertion that the taking was made in bad faith[.]" The court stated that "[b]ad faith in the use of the power of eminent domain ... includes the use of the power of eminent domain solely for a reason that is not proper, although the stated public purpose or purposes for the taking are plainly valid ones." Id. at 1156. That is precisely the situation here. The stated public purpose of an open space buffer is valid, but blocking Erie's planned development-planning that predated Lafayette's condemnation petition-is not lawful. See, e.g. , R.I. Econ. Dev. Corp. v. Parking Co., L.P. , 892 A.2d 87, 104 (R.I. 2006) (concluding that condemnation of a temporary easement was inappropriate where it was motivated by a desire for increased revenue and was not undertaken for a legitimate public purpose). Because the district court's determination-that Lafayette's primary interest in the property was to interfere with Erie's proposed commercial development-enjoys record support, we defer to those factual findings. See Glenelk Ass'n , 260 P.3d at 1120 ; Bd. of Cty. Comm'rs v. Kobobel , 176 P.3d 860, 866 (Colo. App. 2007) (finding no valid public purpose for challenged condemnation of land used as a public road to a private cemetery).

¶ 23 Although TOEURA submitted its land use application in October 2016 (after Lafayette passed its condemnation ordinance), Erie had begun sufficient work to develop the site including hiring a developer, identifying potential tenants, and signing a development agreement. As in Pheasant Ridge , Lafayette filed its action to condemn the property only after Erie's development plans began to take shape. See 506 N.E.2d at 1157 ("The matter of taking the subject site came forward only when the plaintiffs' proposal became known."). "Although not controlling, the absence of any prior town interest in the site or its neighborhood is instructive on the matter of good faith." Id. At the evidentiary hearing, Lafayette's city administrator tried to explain that Lafayette's failure to include the property on previous open space and trail priority (PROST) lists from 2008 to 2016 did not reflect a lack of interest in the property. He suggested that the PROST lists reflected properties Lafayette believed Boulder County would financially partner with Lafayette to acquire, but that Lafayette had always been interested in the subject property. The district court judge heard all arguments and evidence and reasonably concluded that Erie's explanation-that Lafayette had no interest in the property until it learned of Erie's proposed development-was more credible.

¶ 24 Erie also presented evidence that without the southern twenty-two acres, the value of the property was severely diminished and developing the remaining portion could be foreclosed. The district court was within its discretion to consider the respective economic impacts on Erie and Lafayette of losing the property and King Soopers as a tenant, see Kelo , 545 U.S. at 490, 125 S.Ct. 2655 (concluding that a taking in furtherance of an economic development plan constitutes a public use), and to determine Lafayette invoked its condemnation power improperly-especially because Lafayette was unable to explain how it determined that the condemned twenty-two acres were necessary, see Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc. , 353 N.C. 343, 543 S.E.2d 844, 847 (N.C. 2001) (stating that the condemning entity must explain what portion of the condemned property is actually for the asserted public purpose and what portion of the land is "in excess of the public purpose" to prevent "the condemner from taking the entire tract of land by [asserting] that the property is needed for a public purpose without defining that segment of the land actually necessary"). Here, Lafayette engaged in extensive commercial development along Highway 287 but ignored Nine Mile Corner-until King Soopers threatened relocation. Finally, Lafayette presented no evidence showing why the setback incorporated in Erie's development plans would be insufficient to serve as a community buffer.

¶ 25 Because Erie, as the property owner, met its burden of showing bad faith, see Goltra , 66 P.3d at 174, the district court properly examined Lafayette's finding of necessity to determine, with record support, that the taking to establish an open space community buffer was pretextual and was not a lawful public purpose. See Glenelk Ass'n , 260 P.3d at 1120. The court also indicated that Lafayette's public officials were highly motivated to keep King Soopers-and the corresponding tax revenue-within Lafayette. Accordingly, the record amply supports the district court's findings. See id.

IV. Attorney Fees and Costs

¶ 26 Because the district court has not issued an order on Erie's motion for attorney fees, we do not review the issue. See Weston v. T & T, LLC , 271 P.3d 552, 561 (Colo. App. 2011) ("The trial court must make sufficient findings, so that, when they are considered together with the record, the reviewing court can conduct a meaningful review.").

V. Conclusion

¶ 27 Because Erie sufficiently showed that Lafayette's condemnation decision was made in bad faith and was thus not for a lawful public purpose, we affirm the district court's judgment.

JUDGE ASHBY concurs.

JUDGE FURMAN specially concurs.

JUDGE FURMAN, specially concurring.

¶ 28 I agree with my colleagues that Erie sufficiently showed that Lafayette's condemnation decision was made in bad faith and was thus not for a lawful public purpose. That was the focus of the litigation in the district court. I write separately to point out what I consider to be a more important question that we need not answer: Whether the Colorado Constitution, or some other authority, authorizes one home rule municipality to exercise its eminent domain power over public land owned by a statutory town. The parties in the district court appear to have assumed that such authority exists; so the focus of the litigation was over whether Lafayette had a proper public purpose in acquiring the land. My agreement with the division is on this narrow basis.

      Lafayette argued in the supplemental briefing requested by this court that the property still belongs to TOEURA, a statutory body. However, the record (and the parties' previous briefing) indicates that Erie annexed the property as of 2015 so the property is currently within the boundaries of Erie, a statutory town.

      The Nine Mile Corner property: the blue/shaded area reflects the twenty-two acres Lafayette sought to condemn, and the white area reflects the twenty-three acres left for Erie.

      The record is sparse regarding Lafayette's purchase efforts. Erie's answer brief asserts that Lafayette never attempted to negotiate the size of the condemnation parcel, but does not assert that Lafayette never attempted a purchase. Lafayette contends it tried to purchase the property before starting condemnation proceedings, but denies it was obligated to negotiate the size of the condemnation parcel.

      The parties agreed in their briefing that there is not a specific definition of "bad faith" in the case law; rather it is a fact specific inquiry into whether a condemning entities' proffered motives for a condemnation are legitimate.

      Decisions before and after the 2005 decision in Kelo v. City of New London , 545 U.S. 469, 478, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), have examined the motives of condemning authorities when considering whether a taking was pretextual. See Fideicomiso De La Tierra Del Caño Martin Peña v. Fortuño , 604 F.3d 7, 23 n.13 (1st Cir. 2010) (noting that the court was not foreclosing a later as-applied challenge to a condemnation as a "mere pretext of a public purpose" (quoting Kelo , 545 U.S. at 478, 125 S.Ct. 2655 ) ); Franco v. Nat'l Capital Revitalization Corp. , 930 A.2d 160, 171 (D.C. Cir. 2007) (acknowledging the potential for a claim that an alleged "public purpose is a pretext" to a condemnation (quoting Kelo , 545 U.S. at 478, 125 S.Ct. 2655 ) ); Cty. of Hawaii v. C & J Coupe Family Ltd. P'ship , 119 Hawai'i 352, 198 P.3d 615, 647-49 (2010) (noting that courts must consider evidence of an illegitimate purpose and determine whether the rationale was "a mere pretext for its actual purpose to bestow a private benefit"); Middletown Twp. v. Lands of Josef Seegar Stone , 595 Pa. 607, 939 A.2d 331, 337-38 (2007) ("In considering whether a primary public purpose was properly invoked, this [c]ourt has looked for the 'real or fundamental purpose' behind a taking[,]" meaning that "the government is not free to give mere lip service to its authorized purpose or to act precipitously and offer retroactive justification.") (citation omitted); see also Cottonwood Christian Ctr. v. Cypress Redevelopment Agency , 218 F.Supp.2d 1203, 1229 (C.D. Cal. 2002) ("Courts must look beyond the government's purported public use to determine whether that is the genuine reason or if it is merely pretext."); 99 Cents Only Stores v. Lancaster Redevelopment Agency , 237 F.Supp.2d 1123, 1129 (C.D. Cal. 2001) ("No judicial deference is required ... where the ostensible public use is demonstrably pretextual.").

      In Town of Telluride v. San Miguel Valley Corp. , 185 P.3d 161 (Colo. 2008), the court did not analyze the Public Service Co. of Colorado v. Shaklee , 784 P.2d 314 (Colo. 1989), factors. It is unclear if the court's failure to reference Shaklee is meaningful. But here, the district court referenced and considered the Shaklee factors: (1) the physical condition of the property; (2) the community's needs; (3) the character of the benefit the project would confer on the community; and (4) the necessity of the improvement for the development of state resources. Shaklee , 784 P.2d at 318. Because Telluride , 185 P.3d at 164-68, suggests that extensive discussion of these factors may not be necessary, the district court's discussion was sufficient. In any event, we can affirm the district court on any ground supported by the record. Taylor v. Taylor , 2016 COA 100, ¶ 31, 381 P.3d 428.

      After Telluride , a bill to limit the ability of a home rule municipality to acquire real property outside its territorial boundaries via condemnation was introduced to the General Assembly. H.B. 09-1258, 67th Gen. Assemb., 1st Sess. (Feb. 3, 2009). However, the bill did not pass.


author: Opinion by JUDGE ROMÁN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Colleen Marie LORIS, Defendant-Appellant.
    Court of Appeals No. 15CA0127
    Colorado Court of Appeals, Division V.
    Announced July 26, 2018
    Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE ROMÁN

¶ 1 Defendant, Colleen Marie Loris, appeals her thirty-two-year sentence under the habitual criminal statute. We first conclude that her thirty-two-year sentence for possession with intent to distribute does not raise an inference of gross disproportionality.

¶ 2 We further conclude that the district court was required to apply the habitual criminal sentence multiplier to defendant's level 2 drug felony. Analyzing the sentencing scheme as a whole, the legislature has evinced an unmistakable intent to multiply the maximum of the presumptive range for certain drug felonies by four times in cases where the defendant has three or more prior felonies.

¶ 3 We affirm the sentence.

I. Background

¶ 4 In July 2014, defendant sold methamphetamine to three individuals. As part of the deal, she agreed to accept a handgun for the drugs. The parties gathered in a hotel room, where the sale took place. Defendant had approximately two ounces of methamphetamine with her. After the parties had been drinking and smoking methamphetamine, defendant handled the gun and it went off. The bullet struck the victim in the head, killing him.

¶ 5 The People charged defendant with second degree murder, possession with intent to distribute a controlled substance, possession of a weapon by a previous offender, and four habitual criminal counts.

¶ 6 Defendant pled guilty to possession with intent to distribute a controlled substance, manslaughter, and four habitual criminal counts. The four habitual criminal counts were based on prior state convictions for possession of a controlled substance (a class 4 felony), forgery (a class 5 felony), and possession of methamphetamine (a class 6 felony), as well as a prior federal conviction for conspiracy to distribute a controlled substance.

¶ 7 Applying the habitual criminal sentence multiplier, the district court sentenced defendant to concurrent sentences of thirty-two years for possession with intent to distribute and twenty-four years for manslaughter.

¶ 8 Defendant appeals her sentence, arguing for the first time that it is grossly disproportionate in violation of the Eighth Amendment and that the district court lacked authority to sentence her under the habitual criminal statute.

II. Proportionality Review

¶ 9 Defendant contends that her thirty-two-year sentence raises an inference of gross disproportionality and therefore requires a remand for an extended proportionality review. We disagree.

A. Legal Standards

¶ 10 The Eighth Amendment prohibits grossly disproportionate sentences. People v. Deroulet , 48 P.3d 520, 524 (Colo. 2002). To ensure sentences are not disproportionate, a criminal defendant is "entitled, upon request, to a proportionality review of his sentence under Colorado's habitual criminal statute." Id. at 522. "[A]n appellate court is as well positioned as a trial court to conduct a proportionality review [in cases where] ... a refined analysis requiring inquiry into specific facts not available on the appellate record [is] unnecessary." People v. Hargrove , 2013 COA 165, ¶ 15, 338 P.3d 413 (quoting People v. Gaskins , 825 P.2d 30, 38 (Colo. 1992) ).

¶ 11 When a defendant challenges a sentence as grossly disproportionate, the reviewing court must initially conduct an abbreviated proportionality review. See Close v. People , 48 P.3d 528, 532 (Colo. 2002). This review weighs "the gravity or seriousness of the triggering crime together with the gravity or seriousness of the underlying crimes" against "the harshness of the penalty." Deroulet , 48 P.3d at 525, 527. Specifically, the court must scrutinize whether, in combination, the offenses are so lacking in gravity or seriousness as to suggest the sentence is grossly disproportionate. Id. at 524-25.

¶ 12 For purposes of an abbreviated proportionality review, certain crimes are considered per se grave or serious, while others may be grave or serious depending on their particular facts and circumstances. Hargrove , ¶ 12. For offenses that are not per se grave or serious, we "compare the offenses in light of the harm caused or threatened to the victim or society." People v. Mershon , 874 P.2d 1025, 1032 (Colo. 1994). Relevant factors include the "magnitude of the offense, whether the offense involved violence, whether the offense is a lesser included offense or an attempted offense, and the defendant's motive." People v. Oldright , 2017 COA 91, ¶ 11, --- P.3d ----.

¶ 13 As part of an abbreviated proportionality review, a court should also consider the General Assembly's current evaluation of the seriousness of the offense at issue, including any relevant amendments to criminal sentencing statutes. Id. ; see People v. McRae , 2016 COA 117, ¶¶ 22, 26, --- P.3d ---- (cert. granted July 3, 2017).

¶ 14 "[I]n almost every case, the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate, thereby preserving the primacy of the General Assembly in crafting sentencing schemes." Deroulet , 48 P.3d at 526. Only when the abbreviated review gives rise to an inference of gross disproportionality is an extended proportionality review required. Oldright , ¶ 13 ; see also Close , 48 P.3d at 542.

¶ 15 Whether a sentence is constitutionally proportionate is a question of law that we review de novo. Hargrove , ¶ 8.

B. Analysis

¶ 16 We analyze the gravity or seriousness of the triggering crime and underlying crimes, in turn, and then proceed to weigh the gravity or seriousness of those crimes together against the harshness of the penalty.

1. Triggering Offense

¶ 17 Defendant's triggering offense of possession with intent to distribute a controlled substance is per se grave or serious.

¶ 18 "Colorado case law has consistently held that narcotics-related crimes are per se grave or serious for purposes of proportionality review." Id. at ¶ 26 ; see also Deroulet , 48 P.3d at 527. But recent cases have called into question whether all narcotics-related crimes are per se grave or serious in light of changes to the habitual criminal statute and the sentencing scheme for drug offenses. See Rutter v. People , 2015 CO 71, ¶¶ 37, 42, 363 P.3d 183 (Gabriel, J., dissenting); see also Hargrove , ¶ 28.

¶ 19 However, these developments primarily concern convictions for use and simple possession. See Rutter , ¶ 42 (Gabriel, J., dissenting) ("I would conclude that ... prior convictions for use and simple possession of a controlled substance were not per se grave or serious."). Indeed, the legislature made clear that these statutory changes were part of a reform aimed primarily at "users and addicts," as differentiated from "more serious offenders who are involved in drug distribution, manufacturing, or trafficking." Ch. 268, sec. 28, § 16-11.3-103(2.7)(a)(I), 2012 Colo. Sess. Laws 1403.

¶ 20 Thus, because defendant's conviction is for possession with intent to distribute-and not simple possession-it is a per se grave or serious offense.

¶ 21 But even assuming this offense is not per se grave or serious, we conclude it is grave or serious based on the facts of this case. Defendant admitted to selling drugs for profit and accepting a gun as payment. That gun went off and killed the victim. Thus, "the harm caused" to the victim and society was severe. Mershon , 874 P.2d at 1032.

¶ 22 Accordingly, defendant's triggering offense was grave or serious.

2. Underlying Offenses

¶ 23 Defendant argues that her underlying offenses are not grave or serious. We agree in part, but conclude that her conviction for conspiracy to distribute a controlled substance is a per se grave or serious offense.

¶ 24 First, we agree with defendant that her conviction for forgery is not a grave or serious crime. Nothing in the facts of this case or Colorado case law suggests otherwise. Accord Deroulet , 48 P.3d at 527 (noting that one offense underlying the defendant's habitual criminal sentence was forgery, but omitting it from the offenses deemed grave or serious).

¶ 25 Second, we assume, without deciding, that defendant's 2012 and 2008 convictions for possession of methamphetamine are also not grave or serious. See Rutter , ¶ 42 (Gabriel, J., dissenting); see also Hargrove , ¶ 28.

¶ 26 Significantly, however, defendant's conviction for conspiracy to distribute a controlled substance (methamphetamine) in the United States District Court of South Dakota is per se grave or serious. Indeed, the facts of this offense highlight its gravity, as her plea included an admission of an agreement to distribute a substantial amount of methamphetamine: 1.5 to 5 kilograms-or up to nearly 12 pounds.

¶ 27 This conclusion does not end our analysis. We must still consider the triggering and underlying offenses as a whole in relation to the severity of the sentence. Deroulet , 48 P.3d at 524-25.

3. Gravity of Crimes Compared to Severity of Punishment

¶ 28 We conclude that the gravity of defendant's offenses as a whole compared to the severity of her thirty-two-year habitual criminal sentence does not merit a remand for an extended proportionality review.

¶ 29 While we have concluded, or assumed, that three of defendant's underlying offenses were not grave or serious, both her other underlying offense of conspiracy to distribute a controlled substance and her triggering offense of possession with intent to distribute are per se grave or serious. It is not necessary for each offense to be grave or serious for a court to conclude that a sentence is not grossly disproportionate.

People v. Strock , 252 P.3d 1148, 1158 (Colo. App. 2010). Defendant was involved in a conspiracy to distribute large amounts of methamphetamine. Then, years later while still on parole for this offense, she was again convicted of a crime involving the distribution of methamphetamine, this time involving both deadly violence and the exchange of narcotics for a weapon.

¶ 30 "Defendant's convictions, in combination, also indicate ... a persistent disrespect and disregard for the rule of law and social norms." People v. Gallegos , 226 P.3d 1112, 1119 (Colo. App. 2009). In the interpretation of defendant's criminal history most favorable to her, she has twice committed felonies related to the distribution of methamphetamine, twice committed felonies related to the possession of methamphetamine, and twice committed felonies while on parole.

¶ 31 Simply put, this is not one of the "exceedingly rare" cases where defendant can successfully challenge the proportionality of a particular sentence. Harmelin v. Michigan , 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (quoting Solem v. Helm , 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ).

¶ 32 Considering all the offenses and the underlying circumstances as a whole, defendant's thirty-two-year sentence does not raise an inference of gross disproportionality.

III. The Habitual Criminal Statute and Drug Felonies

¶ 33 Defendant also contends the district court lacked authority under the habitual criminal statute to sentence her to a thirty-two-year sentence for a level 2 drug felony. Again, we disagree.

A. Standard of Review

¶ 34 In interpreting statutes, our primary task is to give effect to the intent of the General Assembly. People v. Johnson , 2017 COA 11, ¶ 12, --- P.3d ----. We do so by first looking to the plain language of the statute. Id.

¶ 35 The language at issue must be read in the context of the statute as a whole, and a court's interpretation should give consistent, harmonious, and sensible effect to all parts of the statutory scheme. Id. ; see A.S. v. People , 2013 CO 63, ¶ 10, 312 P.3d 168.

¶ 36 If a statute is ambiguous, we may look for guidance in prior law, statutory history, the legislature's objective, and even the placement of the statute within a piece of broader legislation. Johnson , ¶ 13.

B. Applicable Law

¶ 37 As relevant here, the habitual criminal statute provides that

every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished:
(A) For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class or level of felony of which such person is convicted....

§ 18-1.3-801(2)(a)(I), C.R.S. 2017.

C. Analysis

¶ 38 Defendant argues the habitual criminal statute does not apply to her conviction for a level 2 drug felony. She reaches this conclusion because the habitual criminal statute sets punishment at "four times the maximum of the presumptive range pursuant to section 18-1.3-401," but the sentencing range for drug felonies is found in section 18-1.3-401.5, C.R.S. 2017. Considering the sentencing scheme as a whole, we disagree.

¶ 39 First, the statute says that the sentence multiplier applies to convictions "for any felony." § 18-1.3-801(2)(a)(I). Second, the statute says that the defendant shall be sentenced to four times the maximum "for the class or level of felony."

§ 18-1.3-801(2)(a)(I)(A) (emphasis added). The "or level" language was added in 2013 when, in the same bill, the legislature altered sentencing for drug offenses and created levels of drug felonies. Ch. 333, sec. 36, § 18-1.3-801, 2013 Colo. Sess. Laws 1927-28. Prior to these amendments, all felonies were categorized by class, not level. See, e.g. , § 18-1.3-801(2)(a), C.R.S. 2012. Finally, the current habitual criminal statute provides certain exceptions for level 4 drug felonies, § 18-1.3-801(2)(b), C.R.S. 2017, which would be unnecessary if the multiplier did not apply to drug felonies. All this language would be inconsistent if the sentence multiplier did not apply to drug felonies.

¶ 40 Moreover, defendant's interpretation would be inconsistent with the scheme laid out by the rest of the habitual criminal statute. Defendant notes that unlike the sentence multiplier at issue here, the habitual criminal statute's multiplier for defendants with two prior felony convictions expressly applies to defendants convicted of "any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony." § 18-1.3-801(1.5). But just like the sentence multiplier for defendants with three prior felony convictions, this subsection also provides a sentence based on the "presumptive range pursuant to section 18-1.3-401 for the class or level of felony." § 18-1.3-801(1.5)(a). Thus, under defendant's logic, this provision would also apparently not apply to drug felonies despite unambiguous language that the multiplier does apply to sentences for level 1, 2, or 3 drug felonies.

¶ 41 To be sure, the language used by the legislature would be clearer if it expressly referenced section 18-1.3-401.5, which provides the presumptive ranges for drug felonies. Nevertheless, the legislature has evinced an unmistakable intent to multiply the maximum of the presumptive range for drug felonies by four times in cases where the defendant has three or more prior felonies. Any other interpretation would fail to read "statutory provisions as a whole in order to accord consistent, harmonious, and sensible effect to all their parts." A.S. , ¶ 10.

¶ 42 Accordingly, we conclude the district court had authority to sentence defendant to a term of thirty-two years under the habitual criminal statute.

IV. Conclusion

¶ 43 The sentence is affirmed.

JUDGE FURMAN and JUDGE LICHTENSTEIN concur.

      The supreme court has granted certiorari on the question "[w]hether a drug possession conviction constitutes a grave or serious offense." Melton v. People , No. 14SC282, 2016 WL 490208 (Colo. Feb. 8, 2016) (unpublished order).

      Although the plea agreement lists defendant's 2008 conviction as possession with intent to distribute, the rest of the record clarifies that defendant was convicted of simple possession.

      This case is therefore distinguishable from People v. Oldright , 2017 COA 91, --- P.3d ----, where only the defendant's triggering crime was grave or serious.