COLORADO COURT OF APPEALS 2017COA91
Court of Appeals No. 16CA0481 El Paso County District Court No. 15CR1403 Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Scott Alan Oldright,
Defendant-Appellant.
SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE FREYRE Ashby, J., concurs Hawthorne, J., concurs in part and dissents in part
Announced June 29, 2017
Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant- Appellant ¶1 Defendant, Scott Alan Oldright, appeals the trial court’s order
denying his request for an extended proportionality review. We
vacate the sentence and remand for resentencing and an extended
proportionality review.
I. Background
¶2 A jury convicted Oldright of first degree assault. According to
the prosecution’s evidence, Oldright hit the victim in the head with
a metal rod. The victim lost consciousness. When the victim
regained consciousness, he wandered outside, still bleeding, and
asked a stranger for help before he lost consciousness again. He
suffered a fractured skull, a concussion, and two deep lacerations.
¶3 Oldright’s theory at trial was that he did not intend to hurt the
victim. Rather, he struck the victim to prevent property damage
that could otherwise have occurred because the victim was fighting
with two other men.
¶4 Following trial, the court adjudicated Oldright a habitual
criminal, and sentenced him to sixty-four years in prison.
Oldright’s prior offenses included aggravated driving after
revocation prohibited, forgery, fraud by check, theft by receiving,
and theft.
1 ¶5 The trial court conducted an abbreviated proportionality
review. It concluded that Oldright’s triggering offense — first degree
assault — was per se grave and serious. It then acknowledged that
although Oldright’s prior convictions “arguably [did] not rise to the
level of grave and serious,” the triggering offense was so serious that
no inference of disproportionality existed. In the alternative, the
court concluded that each of the prior convictions was “serious”
because each had been classified as a felony by the General
Assembly. The court reasoned that the existence of five prior
felonies, combined with a grave and serious triggering offense,
obviated the need for a “more thorough or in-depth proportionality
review.”
¶6 We agree with the trial court that first degree assault is a grave
and serious offense. However, because the court did not consider
the fact that the General Assembly has reclassified three of
Oldright’s prior convictions to misdemeanors (making them an
ineligible basis for habitual sentencing) and one of the prior felonies
from a class 4 felony to a class 5 felony, we disagree that each of
Oldright’s prior offenses is serious. Therefore, we vacate the
2 sentence and remand for an extended proportionality review of
Oldright’s habitual criminal sentence.
II. Proportionality Review
¶7 Oldright contends that the court erred in two ways. First, he
argues that the court failed to consider his version of circumstances
for the triggering offense that showed the crime was not grave or
serious. Second, he asserts that the court erred in concluding that
all of his prior convictions were “serious” by virtue of them being
felonies. He argues that, as part of the abbreviated proportionality
review, the court should have considered the General Assembly’s
reclassification of the prior offenses. We reject his first argument
and agree with the court that first degree assault is a grave and
serious offense. We agree with his second argument and conclude
that an extended proportionality review is warranted under the
circumstances of this case.
A. Legal Principles
¶8 Whether a sentence is constitutionally disproportionate is a
question of law that we review de novo. Rutter v. People, 2015 CO
71, ¶ 12. Both the United States and Colorado Constitutions
prohibit cruel and unusual punishment, including grossly
3 disproportionate prison sentences. See Ewing v. California, 538
U.S. 11, 20 (2003); Close v. People, 48 P.3d 528, 539 (Colo. 2002).
To ensure sentences are not disproportionate, “a criminal defendant
is entitled, upon request, to a proportionality review of his sentence
under Colorado’s habitual criminal statute.” People v. Deroulet, 48
P.3d 520, 522 (Colo. 2002); People v. Anaya, 894 P.2d 28, 32 (Colo.
App. 1994) (“A defendant is always entitled to a proportionality
review when sentenced under the habitual criminal statute.”).1
¶9 When a defendant challenges a sentence on proportionality
grounds, the reviewing court must initially complete an abbreviated
proportionality review. Deroulet, 48 P.3d at 524. This review
“weighs the gravity and seriousness of a defendant’s triggering and
underlying felonies together against the ‘harshness of the penalty.’”
People v. Foster, 2013 COA 85, ¶ 56 (quoting Deroulet, 48 P.3d at
527); see also People v. McRae, 2016 COA 117, ¶ 22.
¶ 10 Our supreme court has designated certain crimes as per se
grave and serious for proportionality purposes. Deroulet, 48 P.3d at
1 Under the habitual criminal statute, a convicted felon who has been previously convicted of three felonies shall be adjudicated a habitual criminal and must be sentenced to four times the maximum of the presumptive range for the class of the triggering felony conviction. See § 18-1.3-801(2)(a), C.R.S. 2016. 4 524 (identifying aggravated robbery, robbery, burglary, accessory to
first degree murder, and narcotics-related offenses as per se grave
and serious). Such crimes are grave or serious “by their very
nature.” People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). One
division of this court has concluded that first degree assault is per
se grave or serious, People v. Gee, 2015 COA 151, ¶ 60, and the
supreme court and several other divisions of this court have
concluded or implied that first degree assault is a serious offense,
see People v. Mershon, 874 P.2d 1025, 1033-34 (Colo. 1994); People
v. Hayes, 923 P.2d 221, 230 (Colo. App. 1995); People v. Penrod,
892 P.2d 383, 387 (Colo. App. 1994).
¶ 11 For other offenses, a court determines gravity or seriousness
by considering the magnitude of the offense, whether the offense
involved violence, whether the offense is a lesser included offense or
an attempted offense, and the defendant’s motive. McRae, ¶ 22
(citing People v. Cooper, 205 P.3d 475, 479 (Colo. App. 2008)).
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.” Id. (quoting People v. Gaskins, 923 P.2d 292,
5 296 (Colo. App. 1996)); see also People v. Hargrove, 2013 COA 165,
¶ 20; People v. Patnode, 126 P.3d 249, 261 (Colo. App. 2005);
Anaya, 894 P.2d at 32; Penrod, 892 P.2d at 388.2
¶ 12 We give a great deal of deference to legislative determinations
regarding sentencing; therefore, in most cases, the abbreviated
proportionality review will result in a finding that the sentence is
constitutionally proportionate. Deroulet, 48 P.3d at 526. However,
“[a] statutory scheme cannot guarantee a sentence that is
constitutionally proportionate to a particular defendant convicted of
a particular crime under particular circumstances.” Patnode, 126
P.3d at 261 (quoting Deroulet, 48 P.3d at 526). And “[t]he
provisions of the Habitual Criminal Act create a unique possibility
that a defendant will receive a . . . sentence which is not
proportionate to the crime for which the defendant has been
convicted.” Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990).
2 In Rutter, the supreme court granted certiorari to consider “[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 made an underlying crime inapplicable for purposes of a habitual criminal adjudication.” Rutter v. People, 2015 CO 71, ¶ 1 n.1. It ultimately did not address the question, because no reclassification of the triggering offense had occurred. Id. at ¶ 13. 6 ¶ 13 An extended proportionality review is required when the
abbreviated review gives rise to an inference of gross
disproportionality. McRae, ¶ 6. An extended review involves a
comparison of the sentences imposed on other criminals who
commit the same crime in the same jurisdiction and a comparison
of the sentences imposed for the commission of the same crime in
other jurisdictions. Id.; see also Deroulet, 48 P.3d at 524.
B. Discussion
¶ 14 We begin by concluding that Oldright’s triggering offense, first
degree assault, is a grave and serious offense because the
legislature deems it a crime of violence and an extraordinary risk
crime, Oldright used a deadly weapon to commit the crime, and the
victim suffered serious bodily injury. Thus, we reject Oldright’s
argument that the circumstances of his specific offense somehow
reduce the crime’s severity or gravity. Absent the habitual criminal
finding, this class 3 felony conviction carries a minimum prison
sentence of ten years and a maximum sentence of thirty-two years.
See § 18-1.3-406(1)(a),(2)(a)(I)(c), C.R.S. 2016.
¶ 15 Oldright’s habitual criminal convictions are as follows:
7 Aggravated driving after revocation prohibited (a class 6
felony at the time of conviction): On December 23, 2004,
police arrested Oldright for aggravated driving, driving
under the influence (DUI), and careless driving. The DUI
and a class 2 traffic offense (careless driving) were
dismissed. The conviction date for aggravated driving was
July 18, 2005. This offense was reclassified by the
legislature and reduced to a misdemeanor in 2015. Ch. 262,
sec. 4, § 42-2-206, 2015 Colo. Sess. Laws 996; see also
§ 42-2-206, C.R.S. 2016.
Forgery (a class 5 felony): In September 1999, Oldright stole
the personal checkbook of his former girlfriend and
business partner and wrote five checks totaling $1337.52.
His conviction date for that crime was August 22, 2001 (and
his sentence was modified April 1, 2002).
Fraud by check (a class 6 felony at the time of conviction):
On December 29, 2000, Oldright wrote two checks to a
computer store that were returned for insufficient funds.
He wrote one check for $1075.50 and the second for
$10.00. The conviction date was November 9, 2001. This 8 offense was reclassified by the legislature and reduced to a
class 1 misdemeanor in 2007. Ch. 384, sec. 8, § 18-5-
205(3)(c), 2007 Colo. Sess. Laws 1693-94; see also § 18-5-
205(3)(c), C.R.S. 2016.
Theft by receiving between $500 and $15,000 (a class 4
felony at the time of conviction): On November 27, 2000,
Oldright received a loaner car that he knew was stolen in
exchange for bonding a friend out of jail. The car contained
stolen computer equipment. The owner valued the car at
$17,000, and the court ordered Oldright to pay $1224.00 in
restitution. Oldright was convicted on August 22, 2001.
This offense was reclassified by the legislature and reduced
to a class 5 felony in 2013. Ch. 373, sec. 1, § 18-4-401,
2013 Colo. Sess. Laws 2196; see also § 18-4-401(2)(g),
C.R.S. 2016.
Theft of between $500 and $15,000 (a class 4 felony at the
time of conviction): On November 21, 2000, Oldright stole a
computer from Micro Center. The court ordered $1579.00
in restitution. This offense was reclassified by the
9 legislature and reduced to a class 1 misdemeanor in 2013.
Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196.
¶ 16 The trial court correctly recognized that Oldright’s prior
convictions “standing alone arguably [did not] rise to the level of
grave and serious” offenses. However, it erred when it further
concluded that each of the prior convictions was “serious” simply
because each was a felony, without further considering relevant
mitigating factors, including the legislature’s current classification
of those prior crimes. While Oldright is not entitled to be sentenced
under any of the amended statutes, it is appropriate and necessary
to consider these legislative changes in determining whether his
sentence is grossly disproportionate. See Hargrove, ¶ 28 (“This [the
legislature’s 2011 amendment to the habitual criminal statute] calls
into greater question the applicability to . . . felony possession
convictions of case law finding narcotics-related crimes to be per se
grave and serious. At the very least, we believe a court could factor
in the amount of narcotics involved in a simple possession
conviction . . . in evaluating the broader question of whether a
defendant’s triggering felony and underlying felonies ‘in
combination . . . are so lacking in gravity or seriousness so as to
10 suggest that the sentence is grossly disproportionate.’” (quoting
Deroulet, 48 P.3d at 524-25)); see also Trop v. Dulles, 356 U.S. 86,
100-01 (1958) (“The [Eighth] Amendment must draw its meaning
from the evolving standards of decency that mark the progress of a
maturing society.”). There is no basis to conclude the court did that
here.
¶ 17 In particular, the court’s conclusion that Oldright’s aggravated
driving conviction was “a very grave and serious offense that puts
the public at risk” is contradicted by a division of this court’s
previous holding that a § 42-2-206 offense is “essentially a violation
of an administrative order” that could not be “understood as [a]
‘grave and serious crime[]’” for proportionality purposes, absent
other aggravating factors. Patnode, 126 P.3d at 261. The existing
record reveals no information about the facts and circumstances
underlying this offense. It shows only that the prosecution
dismissed a DUI and careless driving charge. Without additional
evidence indicating a greater degree of danger to the public arising
from Oldright’s actions, we cannot conclude that the record shows
this offense to be “serious.” And, by reclassifying this crime to a
11 misdemeanor, the General Assembly does not consider this to be a
serious offense.
¶ 18 Additionally, the trial court’s finding that the “General
Assembly has found these [property] offenses3 to be so serious that
they would qualify for felony sentencing” ignores the General
Assembly’s reclassification of two of these offenses to
misdemeanors, demonstrating that it no longer considers these
offenses to be serious. Moreover, the General Assembly’s reduction
of the third offense to a lower felony classification and
correspondingly lower penalty demonstrates that it regards this
offense as less serious now than it did when the offense was
committed.
¶ 19 While Rutter could be construed to hold that it is unnecessary
to scrutinize the circumstances underlying the prior convictions
when the triggering offense is per se grave or serious, we
respectfully disagree with the dissent’s view of Rutter’s holding for a
number of reasons.
¶ 20 First, Rutter’s analysis begins with well-settled law stating that
an abbreviated proportionality review (as opposed to an extended
3 Forgery, fraud by check, theft, and theft by receiving. 12 review) is sufficient “when the crimes supporting a sentence
imposed under the habitual criminal statute include grave or
serious offenses.” Rutter, ¶ 18 (emphasis added). This is important
because all of Rutter’s prior convictions were drug-related and, as
noted by the court, involved the same substance
(methamphetamine) as the triggering offenses. Id. at ¶ 5.
Therefore, unlike Oldright, all of Rutter’s prior convictions were per
se grave and serious offenses. See Deroulet, 48 P.3d at 524
(identifying narcotics-related offenses as per se grave and serious).
¶ 21 Next, the court explained that its reason for granting certiorari
was to determine whether the subsequent legislative classification
of drug crimes (and amendments to the habitual criminal statute)
altered those crimes’ status as grave or serious crimes. Rutter,
¶ 11. The court’s use of the plural “crimes” creates some
uncertainty about whether it was referring to the triggering
offenses, the prior offenses, or all the offenses.
¶ 22 In proceeding through the analysis, the court defined the
two-part abbreviated proportionality test as “scrutiny of the offenses
in question to determine whether in combination they are so
lacking in gravity or seriousness as to suggest that the sentence is
13 constitutionally disproportionate to the crime, taking into account
the defendant’s eligibility for parole.” Id. at ¶ 18 (emphasis added)
(quoting Close, 48 P.3d at 539). It then concluded that “for those
crimes determined to be grave or serious in Colorado, courts skip
the first sub-part of the abbreviated proportionality review and
move directly to the second sub-part.” Id. at ¶ 19 (emphasis
added). We interpret the court’s use of the plural “offenses” and
“crimes” to include both a defendant’s triggering and prior offenses,
consistent with the authority cited by the court.
¶ 23 In applying the two-part test to Rutter’s case, the court found
that Rutter’s triggering offense was the crime of manufacturing
methamphetamine — a per se grave or serious offense. Id. at ¶ 22.
It then concluded that because that offense had previously been
designated as grave or serious, there was no reason to alter that
classification based on subsequent legislation. Id. The court then
scrutinized “the harshness of Rutter’s sentence in relation to the
fact that his triggering offense [was] grave or serious,” citing to
Deroulet. Id. at ¶ 24. However, in Deroulet, the court explained that
Colorado has “delineated certain crimes as ‘grave or serious’” and
said when a crime is “grave or serious” a reviewing court may
14 proceed directly to consider the severity of punishment. Deroulet,
48 P.3d at 524. It did not state that a grave or serious triggering
offense, by itself, could be the basis for dispensing with the first
subpart of an abbreviated proportionality review when other
offenses, not deemed per se grave or serious, were implicated.
Indeed, the Court did not specifically limit Deroulet’s holding.
¶ 24 We conclude, from Rutter’s reliance on prior precedent and its
refusal to limit it, that when faced with a triggering or a prior
offense that is per se grave or serious, a trial court need not
determine the gravity or seriousness of that particular offense any
further under subpart one. However, when a triggering or prior
offense is not per se grave or serious, then a court must engage in
subpart one of the abbreviated review analysis to determine gravity
before analyzing the harshness of the sentence under subpart two.
Because all of Rutter’s triggering and prior offenses were per se
grave or serious, there was no need for any subpart one analysis.
In contrast, because none of Oldright’s prior convictions is per se
grave or serious, the trial court must determine the gravity of those
prior offenses before it can reasonably consider the harshness of
the penalty.
15 ¶ 25 This conclusion is consistent with well-settled jurisprudence
requiring a court to assess all of a defendant’s offenses together in
determining the proportionality of a sentence. See Harmelin v.
Michigan, 501 U.S. 957, 1001-02 (1991) (abbreviated review
consists of two subparts comparing gravity of offenses and
harshness of penalty); Deroulet, 48 P.3d at 524-25 (reviewing court
must scrutinize all of a defendant’s offenses “in combination”);
Gaskins, 825 P.2d at 36 (proportionality review requires court to
scrutinize offenses in combination to determine gross
disproportionality). Indeed, a proportionality review of a habitual
criminal sentence would be meaningless were we to consider only
the gravity of the triggering offense without considering the gravity
of the underlying offenses requiring the habitual sentence
enhancement.
¶ 26 This case illustrates the importance of the two-step
abbreviated review. Oldright’s first degree assault conviction is
grave or serious, and the legislature has recognized this fact by
requiring a mandatory prison sentence of ten to thirty-two years.
The question here is whether a sixty-four year sentence, double the
presumptive maximum sentence, raises an inference of gross
16 disproportionality. The answer lies in the nature and number of
Oldright’s prior convictions.
¶ 27 The certified penitentiary packets and the transcript of the
habitual criminal trial are the exclusive basis in the record for us to
scrutinize Oldright’s predicate offenses.4 We have thoroughly
reviewed these materials and conclude that on the basis of those
materials and the General Assembly’s reclassification of several of
the prior offenses, when considered in combination, there is an
inference of gross disproportionality because: (1) three of Oldright’s
prior convictions are now misdemeanors (and could not now form
the basis for habitual criminal sentencing); (2) those same three
prior convictions were not per se grave or serious when Oldright
committed them; (3) the two remaining prior convictions are not
grave or serious; (4) the limited record does not support a
conclusion that the circumstances of the prior convictions show
that they were grave or serious; and (5) the sentence for the
triggering offense today would require only a thirty-two year
maximum prison sentence. While we do not minimize Oldright’s
4 The parties did not include the presentence investigation report in the record on appeal. 17 conduct in this case, we must conclude, on the basis of the record
before us, that the particular facts of the triggering and prior
offenses leads to an inference that Oldright’s sixty-four-year
sentence is grossly disproportionate to his offenses. Accordingly,
we vacate Oldright’s sentence and remand the case for the trial
court to conduct an extended proportionality review.
III. Conclusion
¶ 28 We vacate the sentence and remand for resentencing and an
extended proportionality review.
JUDGE ASHBY concurs.
JUDGE HAWTHORNE concurs in part and dissents in part.
18 JUDGE HAWTHORNE, concurring in part and dissenting in
part.
¶ 29 I concur with the majority’s conclusion that Oldright’s
triggering offense, first degree assault, is a grave or serious crime.
And, I also reject his argument that the specific facts surrounding
his triggering offense mitigate its gravity or seriousness.
¶ 30 But because, in my opinion, the majority does not apply
Colorado’s guiding principles for proportionality reviews in the
manner prescribed by the supreme court in Rutter v. People, 2015
CO 71, I disagree with its conclusion that the trial court must
determine the gravity of Oldright’s prior offenses before it can
reasonably determine the harshness of his penalty. For the same
reason, I also disagree with the majority’s disposition of vacating
Oldright’s sentence and remanding the case to the trial court to
conduct an extended proportionality review. Accordingly, I would
affirm the trial court’s decision. I therefore respectfully dissent
from the majority’s disposition.
I. Facts and Procedural History
19 ¶ 31 A jury convicted Oldright of first degree assault. Oldright hit
the victim in the head with a metal rod. The victim lost
consciousness twice and suffered a fractured skull, a concussion,
and two deep lacerations.
¶ 32 After trial, the court adjudicated Oldright a habitual criminal,
and sentenced him to sixty-four years in prison.
¶ 33 The trial court conducted an abbreviated proportionality
review. It concluded that Oldright’s convictions were grave or
serious and his sentence was not disproportionate. So, the court
denied his request for an extended proportionality review.
¶ 34 Oldright contends that the court erred by not conducting an
extended proportionality review. I disagree.
A. Guiding Principles
¶ 35 Whether a sentence is constitutionally proportionate is a legal
question that we review de novo. People v. Gee, 2015 COA 151,
¶ 56.
¶ 36 The Eighth Amendment prohibits extreme sentences that are
“grossly disproportionate” to the crime. Close v. People, 48 P.3d
20 528, 536 (Colo. 2002); People v. Mershon, 874 P.2d 1025, 1030
(Colo. 1994).
¶ 37 “[A]n abbreviated proportionality review is sufficient when the
crimes supporting a sentence imposed under the habitual criminal
statute include grave or serious offenses.” Rutter, ¶ 18. An
abbreviated proportionality review involves determining whether the
sentence gives rise to an inference of gross disproportionality by
scrutinizing (1) the offense’s gravity or seriousness in relation to (2)
the sentence’s harshness. Id. Further analysis is required only if
this abbreviated review gives rise to an inference of gross
disproportionality. Close, 48 P.3d at 542.
¶ 38 If a crime is determined to be per se grave or serious, the court
does not examine the facts and circumstances underlying the
offense. People v. Hargrove, 2013 COA 165, ¶ 12. Rather, the court
proceeds directly to considering the sentence’s harshness. Rutter,
¶ 19. “[I]t is ‘highly likely that the legislatively mandated sentence’
will be constitutionally proportionate for grave or serious crimes.”
Id. (quoting Close, 48 P.3d at 538). “Thus, the ability to proceed to
the second sub-part of the abbreviated proportionality review,
namely the harshness of the penalty, when a grave or serious crime
21 is involved results in a near-certain upholding of the sentence.” Id.
(quoting Close, 48 P.3d at 538). These guiding principles establish
that, in abbreviated proportionality reviews, courts only scrutinize
the penalty’s harshness when the crime is grave or serious. Id. at
¶ 20. And, it is highly likely that the sentence will be proportionate.
Id.
B. Application
1. Oldright’s Triggering Offense Was Grave or Serious
¶ 39 Oldright’s triggering offense was first degree assault. Another
division of this court has held that first degree assault is per se
grave or serious, and I see no reason to disagree with that holding.
See Gee, ¶ 60.
¶ 40 As the supreme court similarly noted in Rutter, I note here
that, although it would not have been dispositive, the legislature did
not reclassify Oldright’s triggering offense of first degree assault.
Thus, even in the legislature’s view, the nature of first degree
assault remains unchanged. So, Oldright’s triggering offense was
outside the purview of any legislative sentencing reforms.
2. Abbreviated Proportionality Review
22 ¶ 41 Consistent with Rutter, I proceed to the second subpart in this
abbreviated proportionality review, determining whether Oldright’s
sixty-four-year sentence for the grave or serious triggering offense of
first degree assault is overly harsh and thus raises an inference of
gross disproportionality. Rutter, ¶ 24. And, at this stage, the Rutter
majority unequivocally states that the court’s precedent directs the
proportionality review be conducted by scrutinizing the defendant’s
sentence “in relation to the fact that his triggering offense is grave
or serious.” Id. Therefore, as the court mandates, I “must focus on
the principal felony — the felony that triggers the [enhanced]
sentence . . . .” Id. (quoting Solem v. Helm, 463 U.S. 277, 296 n.21
(1983)).
¶ 42 I disagree with the majority rejecting Rutter’s mandate that a
reviewing court must focus on the triggering offense because, in its
opinion, the Rutter court misread its own precedent from Deroulet.
Despite the majority’s detailed and articulate reasoning, we are
“bound to follow supreme court precedent.” In re Estate of
Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250
P.3d 762, 768 n.3 (Colo. App. 2010)).
23 ¶ 43 A sixty-four-year sentence was the legislatively required
sentence for Oldright’s class 3 extraordinary risk crime and
habitual counts. See §§ 18-1.3-401(1)(a)(V)(A), (10)(a), (b)(XII), 18-
1.3-801(2), C.R.S. 2016. The sentence is not too harsh because the
triggering offense is grave or serious. See Rutter, ¶ 25 (ruling the
defendant’s ninety-six-year sentence not too harsh in light of fact
that triggering offense was grave or serious). So, the sentence is not
grossly disproportionate. Id. (noting the “‘very high likelihood that a
sentence will be upheld as constitutionally proportionate’ when the
crime is grave or serious” (quoting Close, 48 P.3d at 536)).
¶ 44 Oldright argues that his sentence is disproportionate because
his prior offenses are not grave or serious, and the General
Assembly has reclassified three of his prior felony offenses as
misdemeanors. But, because his triggering offense is grave or
serious, I need not scrutinize his underlying prior convictions. See
id. at ¶¶ 21-25 (directing that the proportionality review focus on
scrutinizing the harshness of a defendant’s sentence in relation to
the triggering offense).
¶ 45 And even examining Oldright’s prior underlying felonies does
not raise an inference of gross disproportionality. He had five prior
24 felony convictions: aggravated driving after revocation, forgery,
fraud by check, and two counts of theft. Contrary to the majority’s
suggestion that Oldright’s aggravated driving after revocation
conviction was essentially an administrative order violation, in
pleading guilty to that offense, Oldright also admitted that he was
driving under the influence of alcohol or drugs, or both.
¶ 46 Under Rutter, I need not address the legislative changes to
Oldright’s underlying convictions because his triggering offense was
outside the purview of any sentencing reform and that is the offense
on which a court must focus in conducting an abbreviated
proportionality review. See id. at ¶¶ 23, 24. But even considering
that two of Oldright’s prior felonies were reclassified as
misdemeanors, no inference of gross disproportionality is raised
because three of his prior five felonies would still be felonies if
committed today. Cf. id. at ¶ 13 (noting that “while the legislature
can change the classification of crimes, courts determine whether
offenses are grave or serious for purposes of proportionality
review”). Also, a crime such as theft can be grave or serious when it
is one of a variety of prior offenses. See Mershon, 874 P.2d at 1031.
25 ¶ 47 Finally, even assuming that Oldright’s underlying offenses,
standing alone, are not grave or serious, I conclude that, when
combined with his serious first degree assault offense, they are
grave or serious. So, no inference of gross disproportionality is
raised by the court’s imposing the statutorily mandated sentence.
See People v. Deroulet, 48 P.3d 520, 527 (Colo. 2002) (concluding
that court erred in reducing legislatively mandated sentence even
though underlying crimes, “standing alone,” were not grave or
serious).
¶ 48 I conclude that Oldright’s sentence was not grossly
disproportionate. And, I reject his contention that the trial court
erred in failing to conduct an extended proportionality review.
¶ 49 I would affirm the sentence.