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Colorado Supreme Court Announces Clarifications and Modifications to Proportionality Review Standard as Applied to Habitual-Offender Sentences

by Douglas Ankney

On November 4, 2019, the Supreme Court of Colorado announced clarifications and modifications to proportionality reviews of habitual-offender sentences.

Belinda May Wells-Yates was found guilty of second-degree burglary, conspiracy to commit second-degree burglary, theft, possession with intent to sell or distribute 7 grams or less of methamphetamine, and four counts of identity theft. These offenses are referred to as the “triggering” offenses.

She also was adjudged an habitual offender based on three offenses referred to as “predicate” offenses: (1) a 1996 conviction for possession with intent to distribute 7 grams or less of methamphetamine — a Class 3 felony and (2) two convictions (one from 1997 and one from 1999) for possession of 2 grams or less of methamphetamine — Class 4 felonies. Colorado’s habitual offender statute requires the trial court to impose a sentence that is four times that of the maximum sentence otherwise permitted by statute for each of Wells-Yates’ triggering offenses. C.R.S. § 18-1.3-801(2)(a)(I)(A). This resulted in the following sentences: 48 years for second-degree burglary; 24 years for conspiracy to commit second-degree burglary; 24 years for theft; 48 years for possession with intent to distribute methamphetamine; and 24 years on each of the four counts of identity theft. The trial court ran all of the sentences concurrently except for one count of identity theft, which was run consecutively, resulting in an aggregate prison term of 72 years. None of Wells-Yates’ convictions made her ineligible for parole.

She argued to the trial court that her sentence was disproportionate to her crimes. The court conducted an abbreviated proportionality review and found her sentence was not unconstitutionally disproportionate. The Court of Appeals affirmed, and the Supreme Court granted discretionary review.

The Court observed that the Eighth Amendment to the U.S. Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Cruel and Unusual Punishments Clause prohibits “not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U.S. 277 (1983). But the Supreme Court narrowed the guarantee of proportionality in Harmelin v. Michigan, 501 U.S. 957 (1991): “The Eighth Amendment does not require strict proportionality between crime and sentence,” but instead, “it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” And it is “exceedingly rare” for a sentence to be deemed so extreme that it is grossly disproportionate to the crime. Id.

To determine if a sentence is grossly disproportionate, the reviewing court conducts a proportionality review, which in Colorado consists of an “abbreviated proportionality review” and an “extended proportionality review.” People v. Gaskins, 825 P.2d 30 (Colo. 1992). The abbreviated proportionality review requires the courts to compare the seriousness or gravity of the offense with the harshness of the penalty. Id. Trial courts should consider the factors listed in Solem, i.e., the harm caused to the victim or society, the magnitude of the crime, whether it is a lesser included offense, whether it is an attempted crime or completed crime, and so on. The trial court should also consider the culpability of the offender, whether he was the principal or an accessory after the fact, was he negligent, reckless, malicious, etc. In determining the harshness of the penalty, courts in Colorado differ from Solem in that Colorado’s courts consider parole eligibility. People v. Drake, 785 P.2d 1257 (Colo. 1990).

Consistent with Solem, if the abbreviated proportionality review doesn’t lead to an inference of a grossly disproportionate sentence, the review ends. But if the abbreviated proportionality review leads to an inference that the sentence is grossly disproportionate, then the court conducts an extended proportionality review. The court compares the sentence with sentences for other crimes in the same jurisdiction and compares the sentence with sentences received for the same crime in other jurisdictions. Gaskins. The Colorado Supreme Court clarified that in Close v. People, 48 P.3d 528 (Colo. 2002), and People v. Deroulet, 48 P.3d 520 (Colo. 2002), it had incorrectly instructed courts to compare the sentence under review with sentences received for the same crime by other defendants in the same jurisdiction. That is incorrect because Solem had instructed that the comparisons in the same jurisdiction are to be made between the sentence under review and sentences for other crimes in that same jurisdiction. The sentence under review is to be compared to sentences for the same crime only when the comparison is with sentences from other jurisdictions.

[Writer’s note: The importance of this distinction may be shown by the following example: Defendant A received a sentence of 50 years for a Class 3 felony. Comparing this sentence with the sentences received by other defendants in the same jurisdiction for the same offense won’t reveal anything as those defendants’ sentences may also be disproportionate because they were sentenced under the same statute. That is, just because those other defendants also had sentences near 50 years would not mean Defendant A’s sentence was not disproportionate. For this reason, the court is to compare Defendant A’s sentence with sentences received by other defendants in the same jurisdiction for different Class 3 felonies. If the sentences for other Class 3 felonies averaged between four to six years, this would be evidence that Defendant A’s sentence is disproportionate. Likewise, the court would compare Defendant A’s sentence with sentences received for other higher-classed felonies in the same jurisdiction. If sentences for Class 2 felonies averaged between 20 and 40 years, this would be evidence that Defendant A’s 50-year sentence for a Class 3 felony is disproportionate.

But when comparing Defendant A’s sentence with sentences from other jurisdictions, the court would then look at the same crime in those jurisdictions. If the average sentence for defendants convicted of the same crime in neighboring states is 12 to 15 years, that would be evidence that A’s 50-year sentence is disproportionate.]

Because Colorado’s habitual offender statute requires trial courts to impose sentences four times that of the maximum sentence on the triggering offense, the Supreme Court has cautioned that “the Habitual Criminal Act create[s] a unique possibility” that a defendant will receive a sentence that “is not proportionate to the crime for which [he] has been convicted.” Alvarez v. People, 797 P.2d 37 (Colo. 1990).

Because the Habitual Criminal Act purposely imposes harsher sentences on defendants due to their repeated criminal acts, the trial court is to consider the gravity and seriousness of the triggering offense(s) and all of the predicate offenses as well as the harshness of the sentence imposed on the triggering offense when conducting a proportionality review of an habitual offender sentence. Rutter v. People, 363 P.3d 183 (Colo. 2015). If there are multiple triggering offenses, the reviewing court must look at the sentence imposed for each offense. Close.

The Court also clarified that it had incorrectly instructed in Gaskins, Close, Deroulet, and Rutter that “an abbreviated proportionality review is sufficient when the crimes supporting a sentence imposed under the habitual criminal statute include grave or serious offenses.” The Court clarified that reviewing courts are to conduct a complete review even when the underlying offenses are serious or grave.

It also modified its prior jurisprudence on offenses that are “grave or serious per se.” Going forward, courts should be cautious labeling offenses as grave or serious per se unless there are no set of facts or circumstances where the offense would not be grave or serious. For example, since robbery always requires that a defendant take something of value from the person or presence of another by the use of force, threats, or intimidation, C.R.S. § 18-4-301(1), there would be no set of circumstances where the offense would not be grave or serious. However, in the past, all narcotics offenses had been deemed grave or serious, including simple possession. The Court clarified that possession could be grave or serious depending upon the amount possessed. Equally so, the possession of minor quantities may not be grave or serious.

Finally, the Court declared that, going forward, courts conducting proportionality reviews are to take into consideration any relevant amendments to the predicate offenses and triggering offenses. For example, if at the time of commission the predicate offenses were Class 3 felonies but at the time of the review those same offenses are Class 6 felonies, the court should factor that into its grave/seriousness analysis of the offense.

In conclusion, the Court held in the instant case that: (1) during an abbreviated proportionality review of a habitual criminal sentence, the reviewing court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on the triggering offense is grossly disproportionate; (2) in determining the gravity or seriousness of the triggering and predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses irrespective of whether those amendments apply retroactively; (3) not all narcotics offenses are per se grave or serious; and (4) the narcotic offenses of possession and possession with intent are not per se grave or serious. Because the decision of the Court of Appeals was at odds with the Supreme Court’s decision, the Court reversed the judgment of the Court of Appeals.

Accordingly, the Court remanded with instructions to return the case to the trial court for a new proportionality review consistent with the Court’s opinion. See: Wells-Yates v. People, 2019 CO 90 (2019).

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