Peo v. McGee

23CA0744 Peo v McGee 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0744
Arapahoe County District Court No. 05CR356
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenneth Louis McGee,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Navarro and Richman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 10, 2024

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Kenneth Louis McGee, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Kenneth Louis McGee, appeals the order denying

his most recent postconviction motion. We affirm.

I. Background

¶2 A jury convicted McGee of distributing a schedule II controlled

substance, a class 3 felony. The trial court adjudicated him a

habitual criminal and sentenced him to sixty-four years in prison.

A division of this court affirmed. People v. McGee, (Colo. App. No.

08CA0074, Oct. 11, 2012) (not published pursuant to C.A.R. 35(f))

(McGee I).

¶3 In 2013, the legislature enacted Senate Bill 13-250, which

reclassified certain felony drug offenses and reduced their penalties.

See Ch. 333, 2013 Colo. Sess. Laws 1900-44. The bill expressly

applied prospectively. Sec. 71, 2013 Colo. Sess. Laws at 1943.

¶4 In March 2014, McGee filed a pro se Crim. P. 35(c) motion,

asserting multiple postconviction claims. As relevant here, he

argued that trial counsel was ineffective for failing “to prepare or

request that a proportionality review be completed.” He also

claimed that his sentence “constitute[d] cruel and unusual

punishment” and requested a proportionality review because his

sentence is “disproportionate to the seriousness of the” charged

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offense. After appointment of counsel, supplemental motions, and

a hearing, the postconviction court denied the motion. In doing so,

the court considered the 2013 legislation, conducted an abbreviated

proportionality review, and found the habitual sentence “is

proportional to the grave and serious nature of” McGee’s crimes.1

¶5 McGee appealed but did not reassert his claim that trial

counsel was ineffective for failing to seek a proportionality review, or

that his sentence constituted cruel and unusual punishment. Nor

did he appeal the court’s proportionality finding. A division of this

court affirmed the denial of the Rule 35(c) motion and concluded

that McGee abandoned the claims raised before the postconviction

court but not reasserted on appeal. People v. McGee, (Colo. App.

No. 18CA1396, July 29, 2021) (not published pursuant to C.A.R.

35(e)) (McGee II).

¶6 In November 2019, the supreme court announced Wells-Yates

v. People, 2019 CO 90M, Melton v. People, 2019 CO 89, and People

v. McRae, 2019 CO 91 (collectively, Wells-Yates), which clarified

1 Though the postconviction court didn’t separately address the

claim that McGee’s sentence constituted cruel and unusual
punishment, by finding the sentence proportional, it implicitly
rejected that claim.

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how courts should conduct proportionality reviews of habitual

criminal sentences.

¶7 More than three years later, McGee filed a second Rule 35(c)

motion. In it, McGee again requested a proportionality review,

arguing, as material here, that Wells-Yates established a new

substantive rule of constitutional law that applied retroactively, and

thus he was entitled to a new proportionality review.

¶8 Concluding that Wells-Yates didn’t create a new substantive

rule of constitutional law, the postconviction court denied McGee’s

motion as successive without appointing counsel or conducting a

hearing.

II. Discussion

¶9 McGee contends that the postconviction court erred by

denying his second Rule 35(c) motion as successive because Wells-

Yates created a new rule of constitutional law that should be

retroactively applied to his request for a proportionality review.

Because we conclude that the motion is successive, we disagree.

¶ 10 Rule 35(c) allows a defendant to challenge a judgment of

conviction on the ground that it was obtained in violation of his

constitutional or statutory rights. See Crim. P. 35(c)(2)(I). But a

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defendant is not entitled to perpetual review of his postconviction

claims. People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996). Thus,

generally speaking, a postconviction court must summarily deny

any successive claim. Crim. P. 35(c)(3)(VI)-(VII); see also People v.

Taylor, 2018 COA 175, ¶ 17 (explaining the language directing a

court to deny successive postconviction claims is “mandatory rather

than permissive”). A claim is successive if it either “was raised and

resolved” or “could have been presented” in a previous appeal or

postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII); see Taylor,

¶¶ 9, 17.

¶ 11 An exception to the successiveness bar applies to claims based

on a new rule of constitutional law that was previously unavailable

if that rule should be applied retroactively. See Crim. P.

35(c)(3)(VI)(b), (VII)(c) (outlining this exception).

¶ 12 We review de novo whether a postconviction claim is

successive. Taylor, ¶ 8.

¶ 13 McGee first requested a proportionality review in 2014. The

postconviction court conducted an abbreviated proportionality

review and concluded that McGee’s sentence wasn’t

disproportionate. McGee didn’t appeal that finding. See McGee II,

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slip op. at ¶ 39. Thus, the proportionality claim was raised and

resolved in 2014, which makes it successive. See Crim. P.

35(c)(3)(VI).

¶ 14 Even so, McGee contends that his second request for a

proportionality review is excepted from the successiveness bar

because Wells-Yates announced a new rule of substantive

constitutional law that applies retroactively to cases on collateral

review. See Crim. P. 35(c)(3)(VI)(b), (VII)(c).

¶ 15 For the reasons explained in People v. McDonald, 2023 COA 23

(cert. granted Nov. 14, 2023), we disagree that Wells-Yates

announced a new rule of substantive constitutional law that applies

retroactively. Rather, as McDonald explained, Wells-Yates

announced a new procedural rule that doesn’t apply retroactively to

final convictions. McDonald, ¶¶ 2, 9, 13, 22-24; see also Edwards

v. People, 129 P.3d 977, 982 (Colo. 2006) (“[N]ew constitutional

rules of criminal procedure do not apply retroactively to cases on

collateral review.”). And while we aren’t bound by McDonald,

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Campbell v. People, 2020 CO 49, ¶ 41, we are persuaded by

McDonald’s reasoning and follow it here.2

¶ 16 Thus, the postconviction court properly denied McGee’s

second Rule 35(c) motion as successive.3 See McDonald, ¶¶ 8, 24.

Having so concluded, we reject McGee’s corresponding contention

that he was entitled to postconviction counsel. See People v.

Nozolino, 2023 COA 39, ¶ 34 (“[T]he statutory right to

postconviction counsel is triggered when the ‘motion’ or ‘petition’ is

not wholly unfounded.”).

2 We decline McGee’s request in his reply brief asking us to defer

ruling on his appeal until our supreme court decides People v.
McDonald, 2023 COA 23 (cert. granted Nov. 14, 2023).
3 Because McGee’s conviction was final in 2013, see Hunsaker v.

People, 2021 CO 83, ¶ 36, the most recent postconviction motion is
also untimely, as it was filed past the three-year deadline for such
motions. See § 16-5-402(1), C.R.S. 2024 (collateral attacks to
convictions for non-class 1 felonies must be filed within three years
of the conviction). And even assuming for argument’s sake that we
agreed with McGee that the 2019 decisions — Wells-Yates v. People,
2019 CO 90M, Melton v. People, 2019 CO 89, and People v. McRae,
2019 CO 91 — created a new substantive rule of constitutional law
that applied retroactively, McGee offers no reason why he waited
over four years after those decisions to file his most recent
postconviction motion. Having alleged no justifiable excuse or
excusable neglect for the delay in seeking relief, the Rule 35(c)
motion is time barred.

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¶ 17 Finally, we decline to address McGee’s ineffective assistance of

appellate counsel claim first raised in his reply brief. See People v.

Cline, 2022 COA 135, ¶ 75 n.3. To the extent McGee contends he

raised that claim in his Rule 35(c) motion, we don’t see it.

III. Disposition

¶ 18 The order is affirmed.

JUDGE NAVARRO and JUDGE RICHMAN concur.

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