COLORADO COURT OF APPEALS 2016COA117
Court of Appeals No. 15CA0545 Adams County District Court No. 13CR1980 Honorable John E. Popovich, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Clifton Eugene McRae,
Defendant-Appellee.
SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE GRAHAM Booras and Kapelke*, JJ., concur
Announced August 11, 2016
Dave Young, District Attorney, Michael Milne, Senior Deputy District Attorney, Brighton, Colorado, for Plaintiff-Appellant
April M. Elliott, Alternative Defense Counsel, Denver, Colorado, for Defendant- Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2015. ¶1 A jury convicted defendant, Clifton Eugene McRae, of
distribution of a schedule II controlled substance
(methamphetamine)1 and possession of drug paraphernalia.2 After
completing a proportionality review of McRae’s sentence, the trial
court concluded that a sixty-four-year sentence to the custody of
the Department of Corrections would be grossly disproportionate to
his crimes and sentenced him to sixteen years’ incarceration. The
People appeal McRae’s sentence. We vacate McRae’s sentence and
remand for the trial court to conduct an extended proportionality
review.
I. Eighth Amendment Proportionality Review
¶2 The Eighth Amendment to the United States Constitution
forbids imposition of a sentence grossly disproportionate to the
severity of the crime committed. Solem v. Helm, 463 U.S. 277, 284
(1983); see Colo. Const. art. II, § 20; see also Close v. People, 48
P.3d 528, 532 (Colo. 2002).
1 Ch. 333, sec. 10, § 18-18-405(2)(a)(I)(A), 2013 Colo. Sess. Laws 1909. 2 Ch. 333, sec. 28, § 18-18-428(1), 2013 Colo. Sess. Laws 1924.
1 ¶3 Under the habitual criminal statute, a person convicted of a
felony who has been previously convicted of three felonies shall be
adjudicated a habitual criminal and shall be sentenced to four
times the maximum of the presumptive range for the class of felony
of which the person is convicted. See § 18-1.3-801(2)(a), C.R.S.
2015.
¶4 “A defendant is always entitled to a proportionality review
when sentenced under the habitual criminal statute.” People v.
Anaya, 894 P.2d 28, 32 (Colo. App. 1994); see People v. Deroulet, 48
P.3d 520, 526 (Colo. 2002).
¶5 An abbreviated proportionality review requires a court to
consider the seriousness of a defendant’s underlying crimes
together with the triggering crime to determine whether, in
combination, these crimes are so lacking in gravity or seriousness
as to suggest that the sentence is grossly disproportionate. People
v. Loyas, 259 P.3d 505, 513 (Colo. App. 2010). The Colorado
Supreme Court has determined “the crimes of aggravated robbery,
robbery, burglary, accessory to first-degree murder, and narcotic-
related crimes are all ‘grave or serious’ for the purposes of
proportionality review.” Deroulet, 48 P.3d at 524; see People v.
2 Gaskins, 825 P.2d 30, 37 (Colo. 1992) (“Sale of narcotic drugs is
viewed with great seriousness because of the grave societal harm
caused by sale of illegal drugs and the evils associated with their
use.”).
¶6 If an abbreviated proportionality review gives rise to an
inference of gross disproportionality, the court should then engage
in an extended proportionality review. People v. Hargrove, 2013
COA 165, ¶¶ 30-31. In an extended proportionality review, the
court compares the defendant’s sentence to sentences imposed on
other defendants who committed the same crime, both in this
jurisdiction and in other jurisdictions. Deroulet, 48 P.3d at 524.
¶7 “Generally, a trial court is afforded broad discretion in
sentencing, and its decision will not be overturned absent an abuse
of that discretion.” People v. Reese, 155 P.3d 477, 479 (Colo. App.
2006). However, we review a trial court’s proportionality ruling de
novo. Rutter v. People, 2015 CO 71, ¶ 12.
II. Whether a Court May Consider Changes in Sentencing
¶8 In 1994, a division of this court held that “when the General
Assembly subsequently amends a criminal sentencing statute, even
3 though the statute is to be applied prospectively, the trial court may
properly consider it when determining whether a defendant’s
sentence [is] grossly disproportionate.” Anaya, 894 P.2d at 32.
¶9 Anaya relied in part on People v. Penrod, 892 P.2d 383, 388
(Colo. App. 1994), which also concluded that a “substantial
legislative change in penalties . . . should be considered in
determining whether [a] defendant’s sentence is grossly
disproportionate.” See also Hargrove, ¶ 20 (stating that an
amendment to a statute may be considered in determining whether
the triggering or predicate offenses should be considered grave or
serious for purposes of proportionality review); People v. Gaskins,
923 P.2d 292, 296 (Colo. App. 1996) (“[T]he General Assembly’s
current evaluation of the seriousness of the offense at issue is a
factor that can be considered in determining whether defendant’s
sentence is grossly disproportionate.”).
¶ 10 In 2014, the Colorado Supreme Court accepted certiorari in
Rutter to determine “[w]hether a court, when conducting an
abbreviated proportionality review of a habitual criminal sentence,
can consider the [G]eneral [A]ssembly’s subsequent reclassification
of a crime and/or amendment of the habitual criminal statute that
4 made an underlying crime inapplicable for purposes of a habitual
criminal adjudication.” ¶ 1 n.1. But the court ultimately did not
address that question and instead concluded
we do not reach the question of whether courts can consider legislative changes when conducting an abbreviated proportionality review of a habitual criminal sentence because the legislature has made no change, either prospectively or retroactively, with regard to the triggering offense in this case, manufacturing a schedule II controlled substance.
Id. at ¶ 13.3
3The supreme court has since granted certiorari in Melton v. People on the following issues:
[REFRAMED] Whether a drug possession conviction constitutes a grave or serious offense.
Whether a court, when conducting an abbreviated proportionality review of a habitual criminal sentence, can consider the General Assembly’s subsequent reclassification of a crime and/or amendment of the habitual criminal statute that made an underlying crime inapplicable for purposes of a habitual criminal adjudication.
Whether a twenty-four year sentence is cruel and unusual punishment for a drug possession conviction enhanced under the habitual criminal statute where, based upon
5 III. Senate Bill 13-250
¶ 11 In May 2013, the General Assembly passed Senate Bill 13-
250, which reclassified drug offenses in Colorado and reduced
sentences for those offenses. See generally Ch. 333, 2013 Colo.
Sess. Laws 1900-44 (hereinafter SB 13-250). The effective date of
SB 13-250 was October 1, 2013. Ch. 333, sec. 71, 2013 Colo. Sess.
Laws 1943.
¶ 12 In pertinent part, SB 13-250 reclassified class 3 and class 4
felonies for drug offenses to level 3 and level 4 drug felonies. A level
3 drug felony is punishable by a term of imprisonment between two
and four years; a level 4 drug felony is punishable by a term of
imprisonment between six and twelve months. These changes
significantly reduced the length of incarceration for these offenses.
Compare § 18-1.3-401(1)(a)(V)(A), C.R.S. 2015 (presumptive range
for a class 3 felony is four to twelve years’ imprisonment), with § 18-
revisions to the drug statutes and habitual criminal statute, the defendant would not be eligible for habitual sentencing and would receive a two year maximum sentence.
[REFRAMED] Whether a theft conviction constitutes a grave or serious offense.
No. 14SC282, 2016 WL 490208 (Colo. Feb. 8, 2016).
6 18-405(2)(c), C.R.S. 2015; compare § 18-1.3-401(V)(A) (presumptive
range for a class 4 felony is two to six years’ imprisonment), with §
18-18-403.5(2)(a), C.R.S. 2015.
¶ 13 Additionally, the General Assembly removed many narcotics-
related convictions from consideration for habitual criminal
proceedings. Ch. 333, sec. 36, § 18-1.3-801, 2013 Colo. Sess. Laws
1927; see § 18-1.3-801(2)(b), C.R.S. 2015.
IV. McRae’s Crimes
¶ 14 In this case, McRae’s triggering offense was distribution of a
schedule II controlled substance (methamphetamine). The
underlying facts of that conviction were that McRae sold 6.97 grams
of methamphetamine to a police confidential informant. McRae
committed this crime on July 2, 2013 — after SB 13-250 was
signed into law but before its effective date.
¶ 15 McRae’s habitual criminal convictions are as follows:
Possession of a schedule II controlled substance (a class
4 felony). McRae was arrested on outstanding warrants,
and the vehicle he was driving was searched. Police
officers found a canvas bag containing cocaine,
methamphetamine, marijuana, and drug paraphernalia.
7 Possession with intent to distribute a schedule II
controlled substance (a class 3 felony). McRae was
contacted at a hotel by police officers. During a search of
the room, officers located methamphetamine, materials
commonly used to make and sell methamphetamine, and
drug paraphernalia.
4 felony). McRae was arrested at a department store for
giving police officers a false name. When he was
processed at the police department, officers found a small
amount of methamphetamine on his person.
4 felony). McRae was in a vehicle stopped by officers.
Officers observed two bags of narcotics in the car — a
bag of cocaine weighing 3.83 grams and a bag of
methamphetamine weighing 28.22 grams.
Attempted theft (a class 5 felony). McRae stole a snap-on
blue point multimeter, a snap-on timing light, and a
jigsaw from a garage and pawned those items.
8 Possession with intent to distribute a schedule IV
controlled substance (a class 5 felony). Officers
responded to a car on fire that was registered to McRae.
McRae was arrested on an outstanding warrant and
during his search incident to arrest officers found
approximately .25 ounces of methamphetamine,
marijuana, empty plastic baggies, and drug
paraphernalia.
¶ 16 At the time of his arrest, McRae’s triggering crime was
punishable by a maximum of sixteen years’ incarceration, and as a
habitual criminal that sentence multiplied to sixty-four years.4
Under SB 13-250, his triggering offense was now a level 3 drug
felony punishable by two to four years in prison with a maximum
habitual criminal sentence of sixteen years in custody.
V. Application
¶ 17 The People first contend the trial court entered an illegal
sentence because it lacked statutory authority to retroactively apply
SB 13-250. We agree that retroactive application of the statute
4 McRae’s conviction was for an extraordinary risk class 3 felony.
9 would have been unlawful but further conclude that the trial court
did not retroactively apply SB 13-250.
¶ 18 “A sentence that is beyond the statutory authority of the court
is illegal.” Anaya, 894 P.2d at 31. “Courts are limited to imposing
sentences within the statutory range authorized by the General
Assembly and have no jurisdiction to enter sentences that are
inconsistent with their sentencing authority as statutorily defined.”
Id.
¶ 19 The People argue that because SB 13-250 was expressly
prospective, the court’s application of the statute created an illegal
sentence. However, “whether a statute applies retroactively is a
separate and distinct question from whether a defendant’s sentence
is constitutionally proportionate.” Rutter, ¶ 35 (Gabriel, J.,
dissenting). Here, McRae requested the court review his sentence
for proportionality purposes, and a defendant’s sentence is always
subject to the Eighth Amendment’s prohibition on cruel and
unusual punishment. See Deroulet, 48 P.3d at 524.
¶ 20 Consequently, the court, acknowledging “that the statute is
not retroactively applicable,” did not exceed its statutory authority
by further considering SB 13-250’s effect while conducting a
10 proportionality review. See Hargrove, ¶ 20; Gaskins, 923 P.2d at
296; Anaya, 894 P.2d at 32. Proportionality is a distinct legal
concept apart from retroactivity of a statute, and the court did not
violate its statutory authority by reaching the conclusion that SB
13-250, while prospective, was relevant to proportionality.
¶ 21 Second, the People contend that because McRae’s triggering
offense and five of his prior convictions are per se grave or serious
under supreme court precedent, his sixty-four-year habitual
sentence failed to raise an inference of gross disproportionality.
Thus, the People argue the court erred in finding such an inference
and sentencing McRae to sixteen years. We disagree but conclude
it is necessary to remand this case to the trial court to conduct an
extended proportionality review under Deroulet and Solem.
¶ 22 Abbreviated proportionality review is used to analyze the
offenses in question to determine whether, in combination, they are
so lacking in gravity or seriousness as to suggest that the mandated
habitual criminal sentence is grossly disproportionate. People v.
Cooper, 205 P.3d 475, 479 (Colo. App. 2008) (citing Deroulet, 48
P.3d 520). “An abbreviated proportionality review involves two sub-
parts, namely comparing the gravity of the offense and the severity
11 of the punishment.” Deroulet, 48 P.3d at 524. While a court may
rely on a per se grave or serious determination by the supreme
court during an abbreviated review, a court may also consider
additional factors to determine the gravity of an offense, including
the magnitude of the offense, whether the offense involved violence,
whether the offense is a lesser included offense or an attempt, and
the motive of the defendant. Cooper, 205 P.3d at 479-80 (citing
Gaskins, 825 P.2d at 36-37). The court must then consider the
severity of the punishment to determine whether a defendant’s
sentence is grossly disproportionate. Deroulet, 48 P.3d at 524.
Additionally, “[t]he General Assembly’s current evaluation of the
seriousness of the offense at issue is a factor that can be considered
in determining whether [a] defendant’s sentence is grossly
disproportionate.” Gaskins, 923 P.2d at 296; see Hargrove, ¶ 20;
Anaya, 894 P.2d at 32; Penrod, 892 P.2d at 388.
¶ 23 Here, acknowledging that Deroulet classified all narcotics-
related offenses as per se grave or serious, the court further found:
[B]ased upon the proffer . . . both the triggering offense, to which this Court heard the testimony during the course of trial, and also the predicate offenses; A, did not involve any weapons or any violence; B, were all drug
12 related; C, the Court notes that although they were distribution cases based upon the proffer the Court notes that they were I think not substantial distribution cases for the purposes of monetary gain but for . . . basically personal use.
....
The Court considering, number one, the fact that these are grave and serious offenses, however, the Court notes that there was mitigation within the establishment of . . . grave and serious offenses, the Court finds under an Eighth Amendment analysis that the sentence that would have been imposed under the new statute, which was enacted approximately two months after the [crime], that the mandatory sentence would be essentially 25 percent of the 64 year mandated sentence.
The Court therefore finds and concludes under the language of Hargrove, under the language of Anaya, and under the Eighth Amendment, this Court does find and conclude based upon the aforesaid findings that the sentencing disparity between 16 and 64 years . . . is grossly disproportionate.
The court also noted that the legislative amendments did not alter
the elements of McRae’s crimes but instead reduced the penalties
for that criminal conduct.
¶ 24 We conclude the trial court did not err in considering factors
additional to the supreme court’s per se grave or serious
13 classification of narcotics offenses. Proportionality review should
always focus on the individual crimes committed and the facts of
those crimes to determine proportionality. Deroulet, 48 P.3d at 526
(“A statutory scheme cannot guarantee a sentence that is
constitutionally proportionate to a particular defendant convicted of
a particular crime under particular circumstances.”); see Close, 48
P.3d at 542 (“[W]e thus utilize the considerations articulated in
Solem to consider, under the facts of this case, whether the . . .
convictions are grave or serious.”). In this case the court looked at
the mitigating factors surrounding the charged crimes — that they
lacked violence and were drug related, and the substances were
meant for personal use — in concluding that the crimes lacked the
seriousness to suggest sixty-four years in prison was proportionate.
The court noted that McRae’s sentence was four times as long as a
sentence for the same crime committed three months later. See
Deroulet, 48 P.3d at 524; Hargrove, ¶ 20; Gaskins, 923 P.2d at 296.
We perceive no error in this analysis.
¶ 25 The trial court did not engage in the prohibited “fine-tuning” of
sentences the supreme court warned about in Deroulet. 48 P.3d at
527 (“[C]ourts will rarely be in the position to adjust a sentence to a
14 term of years by a handful of years in either direction; to engage in
such fine-tuning goes beyond the search for gross disproportionality
and improperly injects courts into the realm of determining specific
sentencing schemes, which is the province of the General
Assembly.”). Instead, the court reviewed the General Assembly’s
newly adopted sentencing scheme in determining that the severity
of McRae’s punishment gave rise to an inference of gross
disproportionality. The court’s ultimate sixteen-year sentence
comported with the current legislatively mandated sentencing
scheme. See id. (“Case law is clear that legislatively mandated
sentencing schemes are to be given great deference by courts
engaging in proportionality reviews.”).
¶ 26 Nor do we conclude that the trial court violated the spirit of
Rutter in coming to its conclusion. Rutter specifically left open the
question addressed by the court here, where McRae’s triggering
offense was reclassified by the General Assembly. In Rutter “the
legislature . . . made no change, either prospectively or retroactively,
with regard to the triggering offense,” ¶ 13, and so the court
declined to answer what effect a change to a triggering offense
might have. Until the supreme court indicates otherwise, Hargrove,
15 Gaskins, and Anaya, which direct courts to consider subsequent
amendments to criminal sentencing statutes when conducting
abbreviated proportionality reviews, persuade us and are binding
on the trial courts.
¶ 27 We are tempted to agree with the trial court’s determination
that the severity of McRae’s sentence was constitutionally
disproportionate to the gravity of his crimes. Those crimes,
although narcotics related, did not include violence and were done
largely to support a personal drug habit. We can see why the trial
court viewed the penalty as harsh when it compared the triggering
offense with the General Assembly’s current evaluation of the
seriousness of that offense. It may have been reasonable to
conclude that a sixty-four-year sentence was grossly
disproportionate.
¶ 28 However, after conducting McRae’s abbreviated proportionality
review, the trial court failed to conduct a further extended
proportionality review. “An extended proportionality review involves
a comparison of the sentences imposed on other criminals who
commit the same crime in the same jurisdiction and a comparison
16 of the sentences imposed for commission of the same crime in other
jurisdictions.” Deroulet, 48 P.3d at 524.
¶ 29 While the trial court looked to the amended sentencing laws to
compare McRae’s sentence to that of other criminals committing the
same crime in Colorado, it did not have specific instances of
sentences within and outside of Colorado to compare to McRae’s
sentence. Because both the United States Supreme Court and
Colorado Supreme Court approve of the use of that objective
criterion, we conclude it is necessary to vacate McRae’s sentence so
that the court can conduct an extended proportionality review. See
Solem, 463 U.S. at 292 (“In sum, a court’s proportionality analysis
under the Eighth Amendment should be guided by objective
criteria, including (i) the gravity of the offense and the harshness of
the penalty; (ii) the sentences imposed on other criminals in the
same jurisdiction; and (iii) the sentences imposed for commission of
the same crime in other jurisdictions.”); Deroulet, 48 P.3d at 524
(same).
VI. Conclusion
¶ 30 The sentence is vacated and the case is remanded to the trial
court for an extended proportionality review.
17 JUDGE BOORAS and JUDGE KAPELKE concur.