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Colorado Supreme Court Clarifies and Modifies Analytical Framework for Proportionality Reviews

by Douglas Ankney

On December 16, 2019, the Supreme Court of Colorado clarified and modified the analytical framework courts are to follow when conducting proportionality reviews of sentences in general and habitual offender sentences in particular.

Belinda May Wells-Yates was found guilty of second-degree burglary, theft, possession with intent to sell or distribute seven grams or less of methamphetamine, and four counts of identity theft. These offenses were referred to as triggering offenses because she was also adjudged as a habitual offender based on three prior offenses referred to as predicate offenses. The predicate offenses were a 1996 conviction for possession with intent to distribute seven grams or less of methamphetamine and two convictions (one from 1997 and the other from 1999) for possession of two grams or less of methamphetamine.

Colorado’s habitual offender statute required the trial court to impose a sentence that is four times the statutory maximum sentence range for each of Wells-Yates’ triggering offenses. C.R.S. § 18-1.3-801(2)(a)(I)(A). The resulting sentences were 48 years for second-degree burglary, 24 years for conspiracy to commit second-degree burglary, 24 years for theft, 24 years on each of the four counts of identity theft, and 48 years for possession with intent to distribute methamphetamine. (The court erred in calculating the methamphetamine conviction as the maximum sentence range was 16 years, and four times 16 is 64 years, not 48.) All of the sentences were run concurrently except for one count of identity theft, which was run consecutively, resulting in an aggregate prison term of 72 years. 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 the trial court’s decision, and the Supreme Court granted discretionary review to address five issues: (1) Should the triggering and predicate offenses be considered together when determining gravity and seriousness? (2) Should relevant statutory amendments enacted after the dates of the triggering and predicate offenses be considered during an abbreviated proportionality review? (3) Should all narcotics-related offenses be deemed per se grave or serious? (4) Should possession and possession with intent be deemed per se grave or serious? (5) Is Wells-Yates’ “72-year prison sentence” grossly disproportionate?

But in order to place the appeal in context, the Court chose to “begin with a primer on proportionality review and a synopsis of habitual criminal punishment (focusing on proportionality review of a habitual criminal sentence). In the process [the Court] endeavor[ed] to shed light on these areas of the law and to correct a few misstatements that appear in [the Court’s] caselaw.”

The Court observed that “[t]he 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 last clause prohibits “not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U.S. 277 (1983).

However, courts do not review under a strict proportionality standard because the Eighth Amendment prohibits only those exceedingly rare sentences that are grossly disproportionate to the crime. Harmelin v. Michigan, 501 U.S. 957 (1991). Courts in Colorado use a two-step process to review for proportionality: step one is referred to as an “abbreviated proportionality review,” and step two is an “extended proportionality review.” In the abbreviated proportionality review, courts determine the gravity or seriousness of the offense and consider the harshness of the penalty. When determining the seriousness of the offense, courts are to consider “the harm caused or threatened to the victim or society” and “the culpability of the offender.” Solem.

Where Colorado precedent has already established a crime as grave or serious, courts may proceed directly to considering the harshness of the penalty. People v. Gaskins, 825 P.2d 30 (Colo. 1992). When considering harshness of the penalty, courts in Colorado are to consider parole eligibility. People v. Drake, 785 P.2d 1257 (Colo. 1990). Only in the rare instance where the abbreviated proportionality review gives rise to an inference of a disproportionate sentence will the court proceed to the extended proportionality review.

In the extended proportionality review, courts are to (1) compare the conviction and sentence under review with the sentences received for other crimes in the same jurisdiction and (2) compare the sentence under review with sentences received for the same crime in other jurisdictions. Solem. The Colorado Supreme Court clarified that in its prior jurisprudence the Court had erred in directing courts to compare the sentence under review with sentences received for the same crime in the same jurisdiction.

With respect to conducting a proportionality review of a sentence received pursuant to the Habitual Criminal Act, courts are to consider the seriousness and gravity of the triggering and predicate offenses in combination and consider the harshness of the sentence imposed on the triggering offense. Rutter v. People, 363 P.3d 183 (Colo. 2015). If there are multiple triggering offenses, courts must examine each sentence imposed for each offense as a separate and distinct crime without regard for whether the sentences are run concurrently or consecutively. Close v. People, 48 P.3d 528 (Colo. 2002).

The Court clarified that in its holding in Gaskins “that only an abbreviated review is necessary when the crimes supporting a habitual criminal sentence include grave or serious offenses and when the defendant will become eligible for parole” was in error. The Court made clear in the instant case “that even when the triggering offenses and/or the predicate offenses supporting a habitual criminal sentence include grave or serious crimes and the defendant is parole eligible, a court conducting a proportionality review must follow the analytical framework ... set forth in this opinion.” With this framework in mind, the Court turned its attention to resolving the five issues of Wells-Yates’ appeal.

With regard to the first issue, the Court instructed that the triggering and predicate offenses should be considered together when determining gravity or seriousness. The Court likewise answered in the affirmative as to the second issue concerning whether courts should consider any amendments to the relevant statutes enacted after the triggering and/or predicate offenses were committed but before the abbreviated proportionality review was conducted.

The Court answered “no” to the question of whether all narcotics-related offenses should be deemed per se grave or serious. It clarified that its prior holdings to the contrary were in error. The Court opined that “drug offenses encompass a wide spectrum of conduct” and “[i]t makes little sense to automatically treat the sale of a large quantity of cocaine by the leader of a drug cartel as equally grave or serious as the mere possession of a very small quantity of cocaine by a drug addict who is not involved in sale or distribution.”

The Court likewise answered “no” to the question of whether possession and possession with intent should be deemed per se grave or serious. It distinguished these offenses from the sale and distribution of narcotics, which are deemed per se grave or serious crimes.

With regard to Wells-Yates’ fifth issue, the Court declined to review whether her 72-year prison sentence is disproportionate because, as explained in the Court’s opinion, an abbreviated proportionality review requires consideration of the individual sentence imposed for each triggering offense and not the aggregate sentence imposed for multiple offenses. However, because the lower courts did not have benefit of the analytical framework laid out in this opinion, the Court remanded to the Court of Appeals with instructions to return the case to the trial court for a new proportionality review with respect to each of Wells-Yates’ sentences in accordance with its opinion. See: Wells-Yates v. People, 2019 CO 90M (Colo. 2019). 

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Related legal case

Wells-Yates v. People



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