A member of Colorado’s second-highest court argued on Thursday that a defendant stands wrongfully sentenced under the state’s “three-strikes” law, and an earlier appellate decision saying otherwise was incorrect.

A three-judge Court of Appeals panel agreed that Kiki Lamount Douglas’ 96-year prison sentence was likely excessive. Originally, Douglas’ trial judge multiplied the maximum sentence as required by state law because Douglas seemingly had five prior felony convictions that triggered an enhanced punishment. But the panel concluded that three of those prior offenses could not be used against Douglas after all. Therefore, it was necessary to review the proportionality of his lengthy sentence.

Judge Elizabeth L. Harris, writing separately, went further. She believed it was not enough to return Douglas’ case to the trial court to reconsider the severity of his sentence. Instead, Harris contended the panel should order the trial judge to resentence Douglas outright to a lesser prison term.

It should not matter, she added, that a prior Court of Appeals panel believed a three-strikes sentence was warranted.

“It seems odd to say that because the error could not be corrected earlier, it should not be corrected now,” Harris wrote.

Under Colorado’s three-strikes law, a “habitual criminal” defendant must be sentenced to three or four times the maximum punishment if they have multiple qualifying prior convictions. Because there is a possibility the sentence might be “grossly disproportionate” to the crimes — and constitute cruel and unusual punishment — defendants may seek a proportionality review that factors in an offense’s seriousness.

A Denver jury convicted Douglas in 2016 for attempted murder and assault. At the time, the prosecution asserted Douglas had five prior felonies that all qualified for a habitual criminal sentence. The trial judge agreed and imposed a 96-year sentence for attempted murder, running concurrently with the assault sentence.

In 2019, a Court of Appeals panel addressed Douglas’ sentence for the first time. The defense argued that two of his prior drug convictions and a third conviction for attempting to escape from a correctional facility could not be used against him. While the appeal was pending, the legislature had removed attempted escape from the list of offenses that could trigger a three-strikes sentence. Further, a new Supreme Court precedent affected how Douglas’ drug possession offenses should be treated for sentencing.

The panel believed it was proper to use the attempted escape offense for Douglas’ habitual criminal sentence. However, it returned the case to the trial court to consider whether the Supreme Court’s new precedent rendered Douglas’ sentence excessive.

In June 2022, then-District Court Judge Brian R. Whitney declined to resentence Douglas. While he recognized that not all of Douglas’ prior convictions were “grave and serious,” he wrote that the 96-year sentence was “not grossly disproportionate to the offenses.”

Douglas appealed once again. After the defense and the prosecution submitted their briefs, the Court of Appeals panel noted there were “questions about the validity of Douglas’ habitual criminal adjudication.” The prosecution had acknowledged that two of Douglas’ drug convictions could not trigger a three-strikes sentence, and Douglas continued to dispute whether his attempted escape conviction could be used against him.

The panel asked the parties to address whether it could rule that Douglas was not a habitual criminal after all, contrary to the 2019 panel’s decision.

If the new panel believes the earlier panel got it wrong, “and a defendant is facing a functional life sentence in prison because of it, this Court has an obligation to say so and let our Supreme Court make the final call,” responded public defender Joseph P. Hough.

In the Jan. 29 opinion, the panel’s majority concluded it could not address whether Douglas’ designation as a habitual criminal was proper. Nonetheless, it agreed with Douglas that his conviction for attempted escape from a correctional institution could not be counted as a prior offense. Without it, and without the two drug possession convictions, Douglas lacked the necessary priors for a three-strikes sentence.

Comparing his convictions “to the harshness of his mandatory ninety-six-year habitual criminal sentence raises an inference of gross disproportionality,” wrote Judge Terry Fox for herself and Judge Timothy J. Schutz, returning Douglas’ case to the trial court for another review of his sentence.

Harris disagreed that the panel must uphold Douglas’ designation as a habitual criminal because a prior panel said so.

That “does not prevent us from revisiting the prior (panel’s) habitual criminal adjudication ruling if we are convinced that the ruling rests on a legal error,” she argued. It is problematic, “particularly where the erroneous judgment might consign a person to die in prison when he should not have to.”

Harris also looked in depth at Douglas’ prior convictions. She determined Whitney, the trial judge who upheld Douglas’ 96-year sentence, characterized the offenses as more severe than the evidence showed them to be. For example, in Whitney’s description of Douglas’ felony conviction for being an accessory to a crime, Whitney wrote that Douglas was a passenger in a hit-and-run that resulted in the death of another motorist.

The “evidence in the record shows that Douglas was not in the car at the time of the accident,” Harris wrote.

Still, a detailed review of Douglas’ convictions and sentence for proportionality would not fix the underlying problem, she continued, as Douglas was wrongly designated a habitual criminal.

Upon return to the trial court, “Douglas’s unlawful life sentence could be reimposed — an egregious and unacceptable result,” she concluded.

The case is People v. Douglas.