v. Session

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 12, 2020

2020COA158

No. 14CA2083, People v. Session — Criminal Law — Sentencing
— Punishment for Habitual Criminals; Constitutional Law —
Eighth Amendment — Cruel and Unusual Punishments —
Proportionality Review

This case is before the court of appeals for a second time. The

first time this case was before the court of appeals, a division

affirmed defendant’s conviction and habitual sentence for

possession of a controlled substance. Following that decision, the

supreme court granted defendant’s petition for writ of certiorari,

vacated the court of appeals’ judgment, and remanded the case to

the court of appeals for the division to reconsider its decision in

light of Melton v. People, 2019 CO 89, Wells-Yates v. People, 2019

CO 90M, and People v. McRae, 2019 CO 91.

Upon this reconsideration, the division affirms defendant’s

judgment of conviction, rejecting defendant’s contention that his
Sixth Amendment right to counsel were violated when the trial

court denied his request to substitute appointed counsel. The

division also rejects defendant’s contention that he was entitled

have a jury, rather than a judge, adjudicate the habitual criminal

counts.

With respect to defendant’s challenge to his habitual sentence,

however, the division concludes that, under the standard

articulated in Wells-Yates, second degree burglary and attempted

burglary — two of defendant’s predicate offenses — are no longer

per se grave and serious crimes. The division further concludes

that, because none the defendant’s predicate offenses — nor his

triggering offense — are per se grave and serious, a proportionality

review is required before a habitual sentence is imposed. And

because of the fact-specific nature of that review, the division

remands the case to the trial court for further proceedings.
COLORADO COURT OF APPEALS 2020COA158

Court of Appeals No. 14CA2083
City and County of Denver District Court No. 12CR2805
Honorable J. Eric Elliff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Franky Lamont Session,

Defendant-Appellant.

JUDGMENT AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE WELLING
Dailey and Hawthorne*, JJ., concur

Announced November 12, 2020

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen Mahlman Gerash,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Franky Lamont Session, was convicted of

possession of more than four grams of a schedule II controlled

substance and sentenced to twenty-four years in prison after the

trial court adjudicated him a habitual offender.

¶2 On September 14, 2017, we issued our original opinion in this

case and affirmed both the judgment of conviction and sentence.

See People v. Session, slip op. at ¶ 38 (Colo. App. No. 14CA2083,

Sept. 14, 2017) (not published pursuant to C.A.R. 35(e)). In that

opinion, we concluded that the trial court didn’t err by imposing a

habitual sentence without undertaking a proportionality review.

Our conclusion in this regard rested on the premise that even

assuming Session’s four drug possession convictions — which were

his triggering offense and three of his predicate offenses — aren’t

per se grave and serious, because two of his predicate convictions

— second degree burglary and attempted second degree burglary —

were per se grave and serious, a proportionality review wasn’t

required. Id. at ¶¶ 4–17.

¶3 On February 10, 2020, the supreme court granted Session’s

petition for writ of certiorari, vacated our judgment, and remanded

the case to us for reconsideration in light of Melton v. People, 2019

1
 CO 89, Wells-Yates v. People, 2019 CO 90M, and People v. McRae,

2019 CO 91. See Session v. People, (Colo. No. 17SC749, Feb. 10,

2020) (unpublished order). In Wells-Yates the supreme court made

explicit what we had assumed — that drug offenses such as

Session’s three predicate offenses and his triggering offense are no

longer per se grave and serious. In addition to that, the supreme

court reopened the issue of whether, under its newly articulated

standard for determining whether an offense is per se grave and

serious, second degree burglary or attempted burglary is per se

grave and serious.

¶4 On reconsideration, we affirm Session’s judgment of conviction

for the same reasons we did before. We conclude, however, that,

under the standard articulated in Wells-Yates, second degree

burglary and attempted burglary are no longer per se grave and

serious crimes. We further conclude that, because none of

Session’s predicate offenses — or his triggering offense — are per se

grave and serious, a proportionality review is required before a

habitual sentence can be imposed. And because of the fact-specific

nature of that review, we vacate Session’s sentence and remand the

case to the trial court for further proceedings.

2
 I. Background

¶5 In June 2012, Session appeared at the Saint Joseph Hospital

emergency room with gunshot wounds. When hospital personnel

cut away Session’s clothing to assess his injuries, a sandwich bag

containing cocaine fell from his underwear. Police later arrived and

took possession of the bag.

¶6 In July 2012, Session was charged with possession of a

controlled substance with intent to distribute (a class 3 felony) and

possession of more than four grams of a schedule II controlled

substance (a class 4 felony). The prosecution later amended the

charges to include five habitual criminal counts.

¶7 The case went to trial in June 2014. The jury acquitted

Session of the possession with intent to distribute charge, but

convicted him of the class 4 felony of possession of more than four

grams of a schedule II controlled substance. The trial court

adjudicated Session a habitual criminal based on the possession

conviction and five previous felony convictions. The trial court

denied Session’s request for an extended proportionality review of

his sentence. Session was sentenced to twenty-four years in the

custody of the Department of Corrections.

3
 II. Analysis

¶8 Session raises three issues on appeal. First, he contends that

his Sixth Amendment right to counsel was violated because the trial

court denied his request to substitute appointed counsel without

adequate inquiry. Second, he contends that his Sixth Amendment

right to a jury trial was violated because a judge, rather than a jury,

adjudicated the habitual criminal counts. Third, he contends that

the trial court erred by imposing a habitual sentence without

conducting a proportionality review. We address each contention,

in turn, below.1

A. Substitution of Appointed Counsel

¶9 Session contends that the trial court violated his Sixth

Amendment right to counsel because it denied his request to

substitute appointed counsel without conducting an adequate

inquiry. We disagree.

1Because our original opinion was unpublished and our judgment
was vacated, we choose to re-address all of the issues Session
raised in his original direct appeal here without reference to our
earlier opinion.

4
 1. Additional Factual Background

¶ 10 Session made three requests to substitute counsel.2 He first

moved for substitution of counsel during a pretrial conference on

November 21, 2013. At a hearing without the prosecutor present,

Session alleged that his counsel had: refused to investigate and

subpoena information and witnesses, failed to provide mitigating

evidence to the prosecution, and failed to adequately communicate.

Defense counsel told the court that the evidence at issue had been

provided to the prosecution, although it had not affected the plea

offer. He also assured the court that he had an investigator

spending “quite a bit” of time on the cases. The trial court found

that there was no conflict, and that Session’s disagreements with

counsel related to strategic decisions. The trial court denied

Session’s motion to substitute counsel. Session declined to proceed

pro se.

2In addition to this case, Session was also charged with and
awaiting trial for distribution and possession with intent to
distribute (case number 12CR418) and pimping (case number
12CR4569). Because these trials were also pending, certain pretrial
matters were heard jointly.

5
¶ 11 Twelve days before trial, on June 12, 2014, Session again

alleged a conflict with his counsel based on particular evidentiary

details of the case and requested to proceed pro se. Session

prepared motions, and the court accepted them, informing Session

that it would review the information and hold a hearing if

necessary. The trial court made no further findings on the issue.

¶ 12 The morning of trial, Session informed the trial court that he

wanted to proceed pro se or have substitute counsel appointed.3

Session provided the court with more pleadings, including witness

subpoenas. Session voiced concerns about whether his counsel

had investigated certain witnesses and issues. Defense counsel

assured the court he had investigated the issues and was prepared

for trial. The trial court denied Session’s request, observing that

the disagreement related to trial strategy, it represented a

continuation of the disagreement previously heard, a fourth

continuance of trial wasn’t feasible, and the request appeared to be

a delay tactic.

3 Session doesn’t argue on appeal that he was denied the right to
represent himself at trial. Accordingly, that issue isn’t before us.

6
 2. Legal Principles

¶ 13 We review a trial court’s decision to deny substitute counsel

for an abuse of discretion. People v. Weeks, 2015 COA 77, ¶ 101.

¶ 14 An indigent criminal defendant has a constitutional right to

counsel, but he or she doesn’t have the right to demand a particular

attorney. People v. Arguello, 772 P.2d 87, 92 (Colo. 1989); see U.S.

Const. amends. VI, XIV; Colo. Const. art. II, § 16. Thus, a court

isn’t required to substitute counsel unless a defendant establishes

“good cause, such as a conflict of interest, a complete breakdown of

communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” Arguello, 772 P.2d at 94 (citation

omitted).

¶ 15 To determine whether a district court erred by denying a

defendant’s request for substitution of counsel, we consider four

factors: (1) the timeliness of the defendant’s motion; (2) the

adequacy of the court’s inquiry; (3) whether the conflict between the

defendant and his attorney was so great that it resulted in a total

lack of communication or otherwise prevented an adequate defense;

and (4) whether the defendant substantially and unreasonably

7
 contributed to the conflict with his attorney. People v. Bergerud,

223 P.3d 686, 695 (Colo. 2010).

3. Discussion

¶ 16 Our review of the four factors described in Bergerud reveals

adequate support for the trial court’s denial of Session’s motion for

substitution of counsel. Although better practice may have been for

the court to conduct further inquiry into each of Session’s separate

complaints and to make additional findings in support of its

decision, we conclude the court didn’t abuse its discretion.

¶ 17 First, Session’s second and third motions were late. In his

second request, Session asked the court to appoint a new attorney

just twelve days before trial in a serious felony case. Session’s third

request was made the same day as his trial was set to begin. To

accommodate either request, the court would have had to continue

the trial for a fourth time. Although the interest in judicial

efficiency doesn’t override a defendant’s right to counsel, it is a

relevant consideration in determining whether to allow substitution

of counsel. See Arguello, 772 P.2d at 94.

¶ 18 Second, under the circumstances, the court wasn’t required to

conduct further inquiry into Session’s second and third requests.

8
 Generally, upon receiving a motion to substitute counsel, a court

must conduct a hearing or inquire into the reasons for the

defendant’s request. See Bergerud, 223 P.3d at 694. But when a

defendant’s written motion describes his complaints in sufficient

detail, the court need not inquire further. See id.; see also People v.

Arko, 159 P.3d 713, 719 (Colo. App. 2006), rev’d on other grounds,

183 P.3d 555 (Colo. 2008). Here, the trial court was able to

evaluate the nature of Session’s dispute with his counsel on the

basis of Session’s written motions and Session’s statements during

the November 21, 2013, hearing.

¶ 19 Third, with respect to whether the conflict prevented the

preparation of an adequate defense, we agree with the trial court’s

determination that Session failed to demonstrate that defense

counsel’s performance had been detrimental to Session’s defense.

The conflict, according to Session, arose largely from defense

counsel’s alleged failure to investigate certain evidence and

witnesses and his alleged failure to make certain evidence available

to the prosecution. But the record indicates that counsel made

reasonable efforts to investigate the evidence and witnesses

complained of. The record further indicates that counsel provided

9
 the complained-of evidence to the prosecution, but hadn’t made

Session aware that he had done so. Session later described this as

a “miscommunication.”

¶ 20 Fourth, the record is unclear whether Session contributed to

any conflict with defense counsel, but our analysis of the other

three factors reveals adequate support for the trial court’s decision.

Because the decision finds support in the record, we conclude the

court didn’t abuse its discretion when it denied Session’s motions

for substitution of counsel.

¶ 21 Accordingly, we discern no error.

B. Habitual Criminal Adjudication

¶ 22 Session contends that he was entitled to a jury trial for his

habitual criminal adjudication. We disagree.

¶ 23 Although this issue wasn’t preserved, we exercise our

discretion to review an unpreserved constitutional challenge for the

first time on appeal. People v. Wiedemer, 852 P.2d 424, 433 n.9

(Colo. 1993). We review for plain error. Hagos v. People, 2012 CO

63, ¶ 14.

10
 1. Legal Principles

¶ 24 In habitual criminal proceedings, the prosecution bears the

burden of proving beyond a reasonable doubt that the defendant

has been previously convicted as alleged. People v. Nunn, 148 P.3d

222, 225-28 (Colo. App. 2006). Generally, any fact other than the

fact of a prior conviction that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury and proved beyond a reasonable doubt. Blakely v. Washington,

542 U.S. 296, 303 (2004); Apprendi v. New Jersey, 530 U.S. 466,

490 (2000). “Although there is some doubt about the continued

vitality of the prior conviction exception,” Lopez v. People, 113 P.3d

713, 723 (Colo. 2005), the United States Supreme Court and the

Colorado Supreme Court have repeatedly affirmed the exception,

see United States v. Booker, 543 U.S. 220, 244 (2005); Blakely, 542

U.S. at 301; People v. Huber, 139 P.3d 628, 631 (Colo. 2006); Lopez,

113 P.3d at 723.

¶ 25 Apprendi’s prior conviction exception extends to the additional

statutory factual findings for each prior conviction necessary to

support a habitual criminal sentence, including: (1) that each prior

conviction was separately brought and tried; (2) that they arose out

11
 of separate and distinct criminal episodes; and (3) that the accused

was the person named in each prior conviction. Nunn, 148 P.3d at

226-28; see Lopez, 113 P.3d at 726; People v. Benzor, 100 P.3d 542,

545 (Colo. App. 2004).

2. Discussion

¶ 26 We are unpersuaded that Session’s constitutional rights were

violated. Session doesn’t allege any flaws in the proceedings

resulting in his prior convictions. The trial court properly made

findings of fact regarding the prior convictions pursuant to the

habitual criminal statute and, in light of Lopez, Blakely, and

Apprendi, didn’t violate Session’s Sixth Amendment right under the

United States Constitution or Session’s rights under article II,

section 16 of the Colorado Constitution in doing so.

¶ 27 We are also unpersuaded by Session’s contention that Alleyne

v. United States, 570 U.S. 99 (2013), did away with the prior

conviction exception under the Sixth Amendment. The Supreme

Court in Alleyne overruled Harris v. United States, 536 U.S. 545

(2002), but Harris didn’t involve Apprendi’s prior conviction

exception. See generally Harris, 536 U.S. at 549. Similarly, the

Court’s analysis in Alleyne and its discussion of Apprendi didn’t

12
 alter Apprendi’s prior conviction exception to its general holding

regarding the Sixth Amendment. See Alleyne, 570 U.S. at 108-09.

The prior conviction exception from Apprendi and Blakely therefore

remains supported. Because the habitual criminal statute is

constitutional under the prior conviction exception, there was a

sufficient basis for the trial court, instead of a jury, to make

findings of fact regarding Session’s habitual criminal charges. We,

therefore, reject Session’s constitutional claim.

C. Proportionality of Session’s Sentence

¶ 28 Session contends that the trial court erred by imposing a

twenty-four-year sentence — triggered by his possession conviction

and five previous felony convictions — without conducting a

proportionality review. We agree and remand for a proportionality

review.

1. Additional Facts

¶ 29 Session’s habitual criminal sentence was triggered by his

class 4 felony conviction for possession of more than four grams of

a schedule II controlled substance in violation of section 18-18-

403.5(2)(a)(II), C.R.S. 2012. By the time of Session’s sentencing,

13
 that offense had been reclassified as a level 4 drug felony. § 18-18-

403.5(2)(a), C.R.S. 2019.

¶ 30 Session’s five prior felony convictions are, as follows:

 an April 6, 2004, conviction for possession of a schedule

IV controlled substance (a class 5 felony at the time of

conviction; a level 1 drug misdemeanor now and at the

time of sentencing in this case);

 a May 19, 2004, conviction for conspiracy to possess a

schedule II controlled substance (a class 4 felony at the

time of conviction; a level 4 drug felony now and at the

time of sentencing in this case);

 a March 9, 2004, conviction for conspiracy to possess a

schedule II controlled substance (class 4 felony at the

time of conviction; a level 4 drug felony now and at the

time of sentencing in this case);

 a January 26, 1995, conviction for second degree

burglary (a class 4 felony then, at the time of sentencing,

and now); and

14
  a June 15, 1993, conviction for attempted second degree

burglary (a class 5 felony then, at the time of sentencing,

and now).

2. Applicable Law

¶ 31 The Eighth Amendment and article II, section 20 of the

Colorado Constitution prohibit cruel and unusual punishments.

Wells-Yates, ¶¶ 5, 10. Those provisions require a sentence to be

proportionate to the crime. Solem v. Helm, 463 U.S. 277, 290

(1983); Alvarez v. People, 797 P.2d 37, 38 (Colo. 1990), abrogated

on other grounds by Melton, ¶ 18. We review proportionality

determinations de novo. Wells-Yates, ¶ 35.

¶ 32 To ensure sentences aren’t disproportionate, a criminal

defendant convicted of being a habitual criminal is “entitled, upon

request, to a proportionality review of his sentence.” People v.

Deroulet, 48 P.3d 520, 522 (Colo. 2002), abrogated on other grounds

by Wells-Yates, ¶¶ 63-65. The initial proportionality review, called

an abbreviated review, considers the gravity or seriousness of the

offenses and the harshness of the penalty. Wells-Yates, ¶ 11.

¶ 33 Generally, the gravity or seriousness of the offense requires a

consideration of the harm caused or threatened to the victim or

15
 society and the culpability of the offender. Factors pertinent to the

harm to the victim or society include the absolute magnitude of the

crime, whether the crime is a lesser included offense or the greater

inclusive offense, whether the crime involves a completed act or an

attempt to commit an act, and whether the defendant was a

principal or an accessory after the fact in the criminal episode. Id.

at ¶ 12. As it relates to the defendant’s culpability, motive is

relevant, as is whether the defendant’s acts were negligent,

reckless, knowing, intentional, or malicious. Id.

¶ 34 However, if a crime is considered per se grave or serious, “a

trial court may skip the first subpart of step one — the

determination regarding the gravity or seriousness of the crimes —

and ‘proceed directly to the second subpart’ of that step — the

assessment related to the harshness of the penalty.” Id. at ¶ 13

(quoting Close v. People, 48 P.3d 528, 538 (Colo. 2002), abrogated

on other grounds by Wells-Yates) (citing Deroulet, 48 P.3d at 524)).

A per se grave and serious crime is one that has been declared

inherently grave or serious, such as aggravated robbery or

accessory to first degree murder. Id. (first citing Deroulet, 48 P.3d

at 524; then citing Close, 48 P.3d at 538).

16
¶ 35 Wells-Yates, ¶ 63, sets forth a new standard by which courts

determine whether an offense is per se grave or serious:

[T]he designation of per se grave or serious for
purposes of a proportionality review must be
reserved for those rare crimes which, based on
their statutory elements, necessarily involve
grave or serious conduct. Put differently, a
crime should not be designated per se grave or
serious unless the court concludes that the
crime would be grave or serious in every
potential factual scenario. Using the
designation otherwise is fraught with peril.

¶ 36 For those crimes that aren’t per se grave or serious, courts

should consider the facts and circumstances underlying both the

defendant’s triggering and predicate offenses. Id. at ¶¶ 37-39.

Subsequent legislative amendments reducing the penalties for

certain offenses are also relevant considerations when assessing

whether the offenses are grave or serious. Id. at ¶¶ 40-53.

¶ 37 The harshness of the penalty includes a consideration of the

length of the sentence as well as parole eligibility. Id. at ¶ 14.

¶ 38 Taking these factors into consideration, during an abbreviated

proportionality review of a habitual criminal sentence, the court

must consider each triggering offense and the predicate offenses

together and determine whether, in combination, they are so

17
 lacking in gravity or seriousness as to raise an inference that the

sentence imposed on that triggering offense is grossly

disproportionate. If that inference exists, an extended

proportionality review must be undertaken. If not, the sentence is

proportionate. Id. at ¶ 76.

¶ 39 Certain drug offenses, such as simple possession and use of a

controlled substance and possession with intent to distribute, are

no longer considered per se grave or serious offenses. Id. at ¶¶ 68-

73. And, it is an open question whether second degree burglary

and attempted second degree burglary are per se grave or serious

offenses. Id. at ¶ 65 nn.17 & 18; see also People v. Tran, 2020 COA

99, ¶¶ 94, 98-101 (acknowledging that in Well-Yates “the supreme

court declined to decide whether second degree burglary is still a

per se grave and serious offense,” but concluding that “on remand,

the trial court should not treat [the defendant]’s second degree

burglary convictions as per se grave and serious” and should

instead “analyze the facts of each offense to determine whether it is

grave and serious”).

18
 3. Application

¶ 40 We first address whether, in light of Wells-Yates, any of

Session’s triggering or predicate offenses are per se grave and

serious. Because we conclude that none of his offenses are per se

grave and serious, we remand the case to the trial court to conduct

a proportionality review with instructions to analyze the facts and

circumstances surrounding each offense.

a. Drug Offenses

¶ 41 Session’s habitual criminal sentence was triggered by his

class 4 felony conviction for possession of more than four grams of

a schedule II controlled substance. § 18-18-403.5(2)(a)(II), C.R.S.

2012; § 18-18-403.5(2)(a), C.R.S. 2019. By the time he was

sentenced in 2014, this offense had been reclassified as a level 4

drug felony. Three of Session’s prior felony convictions were also

for drug offenses that, by the time of his sentencing, had been

reclassified as lower level offenses.

¶ 42 Before Wells-Yates, all drug-related crimes were, at least

arguably, per se grave and serious offenses. Deroulet, 48 P.3d at

524; see also Wells-Yates, ¶ 13. But see Ch. 333, 2013 Colo. Sess.

Laws 1900-44 (reclassifying drug offenses in Colorado, reducing

19
 sentences for those offenses, and calling into question whether drug

offenses were still per se grave and serious offenses). However, in

Wells-Yates the supreme court held that “drug offenses of

possession and possession with intent should no longer be

considered per se grave or serious.” Wells-Yates, ¶ 66. Instead, a

court’s determination of whether a drug possession offense is grave

or serious must be an individualized determination that turns “on

the facts and circumstances surrounding the specific crime

committed — i.e., [it should be] based on consideration of the harm

caused or threatened to the victim or society and the offender’s

culpability.” Id. at ¶ 69.

¶ 43 Thus, Session’s triggering offense and his three felony drug

possession convictions are conclusively no longer per se grave and

serious.

b. Second Degree Burglary and Attempted Second Degree
Burglary

¶ 44 Previously, the supreme court had held that both second

degree burglary and attempted second degree burglary were per se

grave and serious crimes. Deroulet, 48 P.3d at 524 (holding that

burglary is per se grave or serious); Close, 48 P.3d at 536 (holding

20
 that attempted burglary is per se grave or serious). In Wells-Yates,

¶ 65, the supreme court said that crimes it had previously

considered per se grave and serious like “[a]ggravated robbery,

burglary, accessory to first degree murder, and the sale or

distribution of narcotics . . . satisfy the standard [it] announce[d].”

Id. (footnote omitted). But, in a pair of footnotes, the court called

into question whether “the designation of burglary as a per se grave

or serious crime extends to third degree burglary . . . or even second

degree burglary . . . .” Id. at ¶ 65 nn.17 & 18 (noting that it “need

not, and therefore d[id] not, decide whether [attempted burglary]

should be considered per se grave or serious”). Because the issue

of whether second degree burglary remains a per se grave or serious

offense wasn’t before the court in Wells-Yates, it declined to resolve

it. Id.; see also Tran, ¶¶ 94, 98-101 (acknowledging that Wells-

Yates left open the issue of whether second degree burglary was per

se grave and serious).

¶ 45 The supreme court did, however, lay out a roadmap for

determining whether a crime should be designated as per se grave

and serious. Wells-Yates, ¶¶ 62-63. First, the supreme court

admonished that we should be cautious when designating a crime

21
 per se grave and serious. Id. at ¶ 62. Second, our concern when

designating a crime per se grave and serious should be “magnified

in the habitual criminal context, where every sentence under review

has been imposed without the trial court’s exercise of discretion.”

Id. And, third, we shouldn’t designate a crime per se grave and

serious “unless [we] conclude[] that the crime would be grave or

serious in every potential factual scenario.” Wells-Yates, ¶ 63

(emphasis added).

¶ 46 Applying these principles, we conclude that second degree

burglary and attempted second degree burglary aren’t per se grave

and serious offenses in the wake of Wells-Yates. This is because

they aren’t crimes that are grave or serious in every factual

scenario.

¶ 47 To be sure, first degree burglary is per se grave and serious

because it is grave and serious in every permutation. Id. at ¶ 65.

First degree burglary is committed when a person unlawfully enters

a “building or occupied structure” with the intent to commit a crime

therein against another person or property and, while doing so, “the

person or another participant in the crime assaults or menaces any

person, the person or another participant is armed with explosives,

22
 or the person or another participant uses a deadly weapon or

possesses and threatens the use of a deadly weapon.” § 18-4-

202(1), C.R.S. 2019. Simply by satisfying the elements of first

degree burglary, the offender has placed others in grave danger.

¶ 48 In contrast, “[a] person commits second degree burglary, if the

person knowingly breaks an entrance into, enters unlawfully in, or

remains unlawfully after a lawful or unlawful entry in a building or

occupied structure with intent to commit therein a crime against

another person or property.” § 18-4-203, C.R.S. 2019. While this

crime can, in some cases, be grave or serious, it isn’t always. For

example, one can commit second degree burglary by entering an

unoccupied garage and stealing a bicycle. One could also commit

second degree burglary by entering an abandoned building to steal

copper wiring. Neither of these versions of second degree burglary

are likely to be grave or serious. But, one can also commit second

degree burglary by entering an occupied garage or home and

stealing the owner’s personal effects, risking a dangerous

confrontation. That would be grave and serious.

23
¶ 49 Thus, applying Wells-Yates we conclude that second degree

burglary (and attempted second degree burglary) are no longer per

se grave and serious crimes.4

c. Proportionality Review

¶ 50 Not having the benefit of Wells-Yates, McRae, or Melton, the

trial court — and this division in our earlier opinion — concluded

that Session’s sentence was proportionate under the then-governing

law. However, after Wells-Yates, none of Session’s prior convictions

4 Wells-Yates v. People, 2019 CO 90M, partially abrogated People v.
Deroulet, 48 P.3d 520 (Colo. 2002), and Close v. People, 48 P.3d 528
(Colo. 2002). Deroulet held that burglary offenses, including second
degree burglary, were per se grave and serious crimes. 48 P.3d at
524. And Close held that attempted burglary offenses, including
attempted second degree burglary, were also per se grave and
serious crimes. 48 P.3d at 536. The supreme court in Wells-Yates
explicitly didn’t resolve whether second degree burglary or
attempted second degree burglary are still per se grave and serious
crimes. However, it did set a new standard for which offenses
constitute per se grave and serious crimes. In doing so, it cited to
Deroulet and Close in a footnote, calling into question whether,
under this new standard, second degree burglary or attempted
second degree burglary would still be per se grave and serious
crimes. Wells-Yates, ¶ 65 nn.17 & 18. By explicitly declining to
resolve the per se grave and serious status of second degree
burglary and attempted second degree burglary, Wells-Yates
partially abrogates both earlier opinions such that lower courts are
no longer bound by Deroulet’s and Close’s holdings on those issues
when determining whether second degree burglary or attempted
second degree burglary are per se grave and serious crimes.

24
— for drug possession, second degree burglary, and attempted

second degree burglary — are per se grave and serious.. We

recognize that in conducting a proportionality review of Session’s

sentence, it it now necessary for a court to consider and weigh the

following:

 Session’s April 6, 2004, conviction for possession of a

schedule IV controlled substance was a class 5 felony

punishable by one to three years in prison plus two years

of mandatory parole. §§ 18-1.3-401(V)(A), 18-18-

405(2)(a)(III)(A), C.R.S. 2004. He was sentenced to two

years in prison. In 2013, the offense was reclassified.

Ch. 333, sec. 10, § 18-18-405, 2013 Colo. Sess. Laws

1909-13.

 Session’s May 19, 2004, conviction for conspiracy to

possess a schedule II controlled substance was a class 4

felony punishable by two to six years in prison, plus

three years of mandatory parole. §§ 18-1.3-401(V)(A), 18-

18-405(2)(a), C.R.S. 2004. He was sentenced to six years

in prison. After October 2013, the offense would have

been a level 4 drug felony punishable by six months to

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 one year in prison, plus one year of mandatory parole.

§§ 18-1.3-401.5(2)(a), 18-18-405(2)(d), C.R.S. 2019.

 Session’s March 9, 2004, conviction for conspiracy to

possess a schedule II controlled substance was a class 4

felony punishable by two to six years in prison, plus

three years of mandatory parole. §§ 18-1.3-

401(1)(a)(V)(A), 18-18-405(2)(a), C.R.S. 2004. He was

sentenced to five years in prison. After October 2013, the

offense would have been classified as a level 4 drug

felony and punishable by six months to one year in

prison, plus one year of mandatory parole. §§ 18-1.3-

401.5(2)(a), 18-18-405(2)(d), C.R.S. 2019.

 As of March 1, 2020, a defendant convicted of the drug

possession offenses Session was convicted of may be

eligible, upon successful completion of a community-

based sentence and treatment, to have the court vacate

his felony conviction and enter a conviction for a level 1

drug misdemeanor conviction instead. § 18-1.3-

103.5(2)(a), (b), C.R.S. 2019.

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  Simple possession of narcotics or conspiracy to possess

narcotics isn’t per se grave and serious. Wells-Yates, ¶ 2;

Melton, ¶ 11.

 Session was convicted of second degree burglary in

January 1995 and attempted second degree burglary in

June 1993. At the time of sentencing, second degree

burglary and attempted second degree burglary were

both considered per se grave and serious offenses.

Deroulet, 48 P.3d at 524; Close, 48 P.3d at 536. In light

of Wells-Yates, ¶ 65 nn.17 & 18, and our analysis above,

we conclude that neither crime is per se grave and

serious. See also Tran, ¶¶ 94, 98-101.

 Case law has identified other considerations: the change

in drug laws in this state, the harm caused or threatened

by the offenses, the magnitude of the offenses, whether

they were lesser included offenses or attempts, the

defendant’s culpability or mental state, and the

defendant’s parole eligibility.

¶ 51 While we recognize that we may perform our own abbreviated

proportionality analysis, we decline to do so because such a review

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 requires “an analysis of the facts and circumstances surrounding

[each triggering offense] and the facts and circumstances

surrounding . . . [the] predicate offense[],” and because the trial

court is “‘uniquely suited’ to make these factual determinations.”

Wells-Yates, ¶ 75 (quoting People v. Gaskins, 825 P.2d 30, 35 (Colo.

1992)). We therefore remand to the trial court to conduct the

abbreviated proportionality review under Wells-Yates, Melton, and

McRae, and, if it determines it is warranted, an extended

proportionality review. We express no opinion on the outcome of

that review, including whether an extended proportionality review

will be warranted.

III. Conclusion

¶ 52 The judgment of conviction is affirmed, the sentence is

vacated, and the case is remanded for a new proportionality review.

JUDGE DAILEY and JUDGE HAWTHORNE concur.

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