Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 21CA750
Attorneys for Petitioner: Megan A. Ring, Public Defender
Casey Mark Klekas, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Jessica E. Ross, Assistant Solicitor General Denver, Colorado
Attorneys for Amicus Curiae ACLU of Colorado: Timothy R.
Macdonald Emma Mclean-Riggs Laura Moraff Denver, Colorado
2
Attorneys for Amicus Curiae Daniel Loehr: Maxted Law LLC
David G. Maxted Stephanie M. Frisinger Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL,
JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
OPINION
HOOD,
JUSTICE
3
¶
1 Rodney Dewayne McDonald asks this court to apply the
holdings we announced in Wells-Yates v. People, 2019
CO 90M, 454 P.3d 191, retroactively to his case, which is
more than twenty-five years old. Doing so would allow for a
second, more in-depth proportionality review of his sentence.
We conclude, however, that Wells-Yates didn't
announce new substantive rules of constitutional law, and so
Wells-Yates's holdings don't apply
retroactively to cases, like McDonald's, on collateral
review.
I.
Facts and Procedural History
¶
2 In 1996, a jury convicted McDonald of attempted first
degree murder, second degree assault, possession of a weapon
by a previous offender, and two habitual criminal counts. The
habitual criminal counts were triggered by the attempted
first degree murder conviction and based on two prior felony
convictions: a 1995 conviction for possession of a schedule
II controlled substance (a class 4 felony) and a 1994
conviction for conspiracy to commit menacing (a class 6
felony). The court sentenced McDonald to seventy-two years in
prison. The judgment of conviction became final in 1999.
¶
3 McDonald sought a proportionality review of his sentence in
2007. The district court concluded that McDonald's
sentence wasn't grossly
4
disproportionate to the crime for which he was convicted, and
a division of the court of appeals affirmed. People v.
McDonald, No. 07CA491 (Jan. 22, 2009).
¶
4 Over a decade later, we announced our opinion in
Wells-Yates, which altered the
proportionality-review process in Colorado. McDonald moved
for a second proportionality review, asserting that his
sentence was illegal and was obtained in violation of his
constitutional rights under the new rules announced in
Wells-Yates. See Crim. P. 35(a), (c)(2)(I).
The district court denied McDonald's motion, concluding
that under Crim. P. 35(c)(3)(VI)(b), he wasn't entitled
to a second review because he hadn't "demonstrated
the rules announced in Wells-Yates have been
'applied retroactively by the United States Supreme Court
or Colorado [a]ppellate [c]ourts.'" (Quoting Crim.
P. 35(c)(3)(VI)(b).)
¶
5 On appeal, a division of the court of appeals held that,
"to the extent Wells-Yates announced new
constitutional rules, those rules are procedural and
don't apply retroactively"; thus, "the district
court properly denied McDonald's motion." People
v. McDonald, 2023 COA 23, ¶ 2, 531 P.3d 420, 422.
We granted McDonald's petition for certiorari review of
the division's opinion.[1]
5
II.
Analysis
¶
6 We begin with the applicable standard of review. We then
describe Colorado's habitual criminal sentencing scheme
and the Eighth Amendment's inherent requirement that
punishment be proportionate to the crime. After providing
Wells-Yates's holdings, we consider whether they
announced new substantive rules of constitutional law that
should be applied retroactively to McDonald's case.
A.
Standard of Review
¶
7 Whether Wells-Yates announced new substantive
rules of constitutional law that apply retroactively to cases
on collateral review is a question of law that we review de
novo. See People v. Cooper, 2023 COA 113, ¶ 7,
544 P.3d 679, 681.
B.
Constitutionality of Habitual Criminal Sentencing
¶
8 The legislature defines crimes and their accompanying
punishments. See, e.g., People v. Bott,
2020 CO 86, ¶ 8, 477 P.3d 137, 139. We generally defer
to legislative policy choices regarding sentencing. Ewing
v. California, 538 U.S. 11, 25 (2003) (plurality
opinion).
¶
9 In Colorado, the legislature has created a statutory scheme
that punishes recidivist offenders more harshly than
first-time offenders. See § 18-1.3-801, C.R.S.
(2024) ("habitual criminal statute"); see also
People v. Watkins, 684 P.2d 234, 238 n.7 (Colo. 1984).
Under Colorado's habitual criminal statute, courts must
sentence
6
defendants from three times the presumptive maximum sentence
to a term of life imprisonment, depending on the number and
nature of the prior convictions ("predicate
offenses") and the current ones ("triggering
offenses"). § 18-1.3-801.
¶
10 The legislature's authority to impose this sentencing
scheme is circumscribed by the Eighth Amendment, which
prohibits the state from imposing "cruel and unusual
punishments." U.S. Const. amend. VIII; accord
Colo. Const. art. II, § 20.[2] This prohibition
"'flows from the basic "precept of justice that
punishment for crime should be graduated and
proportioned"' to both the offender and the
offense." Miller v. Alabama, 567 U.S. 460, 469
(2012) (quoting Roper v. Simmons, 543 U.S. 551, 560
(2005)). And although "[t]he concept of proportionality
is central to the Eighth Amendment," id.
(alteration in original) (quoting Graham v. Florida,
560 U.S. 48, 59 (2010)), it is a narrow principle that
"forbids only extreme sentences that are 'grossly
disproportionate' to the crime," Ewing, 538
U.S. at 23 (quoting Harmelin v. Michigan, 501 U.S.
957, 1001 (1991)
7
(Kennedy, J., concurring in part and concurring in the
judgment)). See Rutter v. People, 2015 CO 71, ¶
15, 363 P.3d 183, 188.
¶
11 Because habitual criminal sentencing greatly increases the
length of a defendant's sentence and strips the
sentencing court of any discretionary authority,
"'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.'" Wells-Yates, ¶
20, 454 P.3d at 200-01 (alterations in original) (quoting
Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990),
abrogated on other grounds by Melton v. People, 2019
CO 89, 451 P.3d 415). Accordingly, "a defendant is
entitled, upon request, to [a] . . . proportionality review
of a sentence under [Colorado's] habitual criminal
statute." People v. Deroulet, 48 P.3d 520, 522
(Colo. 2002), abrogated on other grounds by
Wells-Yates.
¶
12 A proportionality review in Colorado is divided into two
stages. In the first stage, known as an abbreviated
proportionality review, courts consider the gravity or
seriousness of the offense in relation to the harshness of
the penalty. See Wells-Yates, ¶¶ 10-11,
454 P.3d at 197-98; see also Solem v. Helm, 463 U.S.
277, 292 (1983). In conducting an abbreviated proportionality
review, courts consider whether, in combination, the
triggering and predicate offenses "are so lacking in
gravity or seriousness so as to suggest that the sentence is
constitutionally disproportionate to the crime,"
considering "the defendant's eligibility for
parole." Rutter, ¶ 18, 363 P.3d at 188
8
(quoting Close v. People, 48 P.3d 528, 537 (Colo.
2002), abrogated on other grounds by Wells-Yates).
To determine the gravity or seriousness of an offense, courts
may consider a number of factors, including but not limited
to (1) "the harm caused or threatened to the victim or
society"; (2) whether the offense involved violence or
the threat of violence; (3) "[t]he absolute magnitude of
the crime"; (4) whether the offense is the lesser
included or greater offense; (5) whether the offense was an
attempted or a completed crime; (6) whether the defendant was
an accessory, complicitor, or principal; and (7) the
defendant's culpability and motive. Solem, 463
U.S. at 292-94; see also Wells-Yates, ¶ 12, 454
P.3d at 198.
¶
13 In Colorado, we have further truncated the abbreviated
proportionality review for offenses deemed to be inherently,
or per se, grave or serious. People v. Gaskins, 825
P.2d 30, 37 (Colo. 1992), abrogated on other grounds by
Wells-Yates; see also Rutter, ¶ 19, 363
P.3d at 188; Close, 48 P.3d at 538;
Deroulet, 48 P.3d at 524. Before
Wells-Yates, these offenses were
• aggravated robbery,
• robbery,
• burglary,
• attempted burglary,
• conspiracy to commit burglary,
• felony menacing,
• accessory to first degree murder, and
9
• all narcotics-related offenses.
Gaskins, 825 P.2d at 37; Deroulet, 48 P.3d
at 524; Close, 48 P.3d at 538. For these inherently
serious crimes, courts don't need to "make an
individualized determination of the gravity or seriousness of
the offense" because it is presumed, and so courts may
proceed directly to scrutinizing the harshness of the
penalty. Rutter, ¶ 19, 363 P.3d at 188.
¶14
If this abbreviated review gives rise to an inference of
gross disproportionality, then a court should proceed to the
second stage, known as an extended proportionality review.
Harmelin, 501 U.S. at 1005 (Kennedy, J, concurring
in part and concurring in the judgment); Rutter,
¶ 15, 363 P.3d at 188. During an extended
proportionality review, courts should conduct both (1) an
intrajurisdictional comparison of the sentences imposed on
other criminals for different crimes and (2) an
interjurisdictional comparison of sentences imposed for the
same crime. Solem, 463 U.S. at 292; see also
Rutter, ¶ 18, 363 P.3d at 188. Even then, "in
most instances the General Assembly's determinations
regarding the sentencing of habitual criminals will result in
constitutionally proportionate sentences."
Wells-Yates, ¶ 21, 454 P.3d at 201 (quoting
Deroulet, 48 P.3d at 526).
C.
Wells-Yates's Holding
¶15
This court announced its opinion in Wells-Yates in
2019. We repeatedly observed that we were merely clarifying
existing law and "correct[ing] a few
10
misstatements" in the caselaw. Wells-Yates,
¶ 3, 454 P.3d at 196; see also id. at
¶¶ 2 n.2, 17, 25, 37, 46 n.16, 454 P.3d at 195 n.2,
199, 202, 204, 206 n.16. We held that
(1) during an abbreviated proportionality review of a
habitual criminal sentence, the 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 offense and the predicate offenses, the court
should consider any relevant legislative amendments enacted
after the dates of those offenses, even if the amendments do
not apply retroactively;
(3) not all narcotic offenses are per se grave or serious;
and
(4) the narcotic offenses of possession and possession with
intent [to distribute] are not per se grave or serious.
Id. at ¶ 2, 454 P.3d at 195 (footnote omitted).
D.
Retroactivity of a New Rule of Constitutional Law Announced
by the Court
¶
16 When a court announces a new rule of constitutional law,
defendants whose cases are not yet final (through direct
appeal) may receive the benefit of the new rule. Teague
v. Lane, 489 U.S. 288, 300, 304-05 (1989). But
defendants seeking collateral review of their cases after
their convictions are final generally aren't entitled to
retroactive application of the new rule unless the rule is
(1) substantive
11
(rather than procedural) or (2) a "watershed" rule
of criminal procedure.[3] Id. at 308-11; Montgomery v.
Louisiana, 577 U.S. 190, 200-01 (2016); Schriro v.
Summerlin, 542 U.S. 348, 352 n.4 (2004); see also
Edwards v. People, 129 P.3d 977, 978 (Colo. 2006). Thus,
a court analyzing whether a rule applies retroactively must
determine (1) whether the conviction is final; (2) whether
the rule is new; and (3) if the rule is new, whether the rule
meets the exceptions to non-retroactivity. Beard v.
Banks, 542 U.S. 406, 411 (2004); People v.
Johnson, 142 P.3d 722, 725 (Colo. 2006).
¶
17 We consider each of these questions in turn.
1.
Was the Conviction Final?
¶
18 "A conviction becomes final when the judgment of
conviction is rendered [by the sentencing court], the
availability of [direct] appeal exhausted, and time for
discretionary [certiorari] review has elapsed."
Zoske v. People, 625 P.2d 1024, 1025 (Colo. 1981).
12
¶
19 There is no dispute that McDonald's convictions became
final in 1999, twenty years before we announced
Wells-Yates. So, we consider whether the rules
announced in Wells-Yates apply retroactively to
cases on collateral review.
2.
Did Wells-Yates Announce
"New" Rules?
¶
20 A rule is "new" if "it breaks new ground or
imposes a new obligation on the States or the Federal
Government." Teague, 489 U.S. at 301. Put
another way, "a case announces a new rule if the result
was not dictated by precedent existing at the time
the defendant's conviction became final."
Id. If, "at the time the conviction became
final, the rule was already 'apparent to all reasonable
jurists,'" it isn't new for retroactivity
purposes. Edwards v. Vannoy, 593 U.S. 255, 265
(2021) (quoting Lambrix v. Singletary, 520 U.S. 518,
528 (1997)). "The starkest example of a decision
announcing a new rule is a decision that overrules an earlier
case." Id.
¶
21 The prosecution argues that not all of
Wells-Yates's holdings announced new rules, but
it concedes that two of them probably did: (1) that not all
narcotics-related offenses are per se grave or serious and
(2) that in conducting an abbreviated proportionality review,
courts should consider relevant legislative amendments
enacted after a defendant's offenses, even if those
amendments don't apply retroactively. As to the other
holdings, the prosecution asserts that the court simply
clarified or confirmed existing law. Despite these
concessions, we consider each of Wells-Yates's
holdings.
13
¶
22 First, Wells-Yates held that courts conducting a
proportionality review must consider the gravity of each
triggering offense along with the gravity of any predicate
offenses to determine whether they give rise to an inference
of gross disproportionality when compared to the sentence
imposed for each triggering offense. ¶¶ 27, 38, 454
P.3d at 202, 204. This holding eliminated confusion stemming
from Rutter, ¶¶ 24-25, 363 P.3d at 189,
which seemed to indicate that the gravity of only the
triggering offense mattered for proportionality-review
purposes. See Wells-Yates, ¶¶ 35, 38, 454
P.3d at 204. Wells-Yates also reiterated that it has
long been the accepted practice to consider the
proportionality of a sentence as to each conviction, not as
an aggregate of all the sentences imposed. ¶ 74, 454
P.3d at 210-11; see also, e.g., Close, 48
P.3d at 539. Because we simply clarified existing law, this
was not new.
¶
23 Second, Wells-Yates instructed courts to consider
subsequent legislative amendments to assist the gravity
analysis. Although several divisions of our court of appeals
had previously considered post-sentencing legislative
reclassification of crimes in conducting an abbreviated
proportionality review, we hadn't done so in a supreme
court decision before Wells-Yates. See
Wells-Yates, ¶ 44, 454 P.3d at 205 (collecting
cases); see also, e.g., Rutter, ¶ 23,
363 P.3d at 189. Thus, this holding announced a new rule
under this court's precedent.
14
¶
24 Lastly, we consider Wells-Yates's holdings
that not all narcotics-related offenses are per se grave or
serious and that possession and possession with intent
aren't per se grave or serious. In Wells-Yates,
we noted that we hadn't previously used the term
"per se grave or serious" in the proportionality
context. ¶ 13 n.6, 454 P.3d at 198 n.6. But the
designation of certain crimes as "per se grave or
serious," and the use of that designation as a shortcut
during an abbreviated proportionality review, had become
common practice in the lower courts by the time we announced
Wells-Yates. See id. at ¶ 62, 454 P.3d at
208-09; see also, e.g., People v. McCulloch, 198
P.3d 1264, 1268 (Colo.App. 2008). As we explained, however,
the designation of all narcotics-related offenses as per se
grave or serious derives from numerous misreadings of
Gaskins, the recognized "genesis" of the
designation. Wells-Yates, ¶¶ 55-56, 454
P.3d at 207-08.
¶
25 By removing those offenses from the list of per se grave
or serious crimes and by explaining that the per se
designation "must be reserved for those rare crimes
which, based on their statutory elements, necessarily involve
grave or serious conduct" (meaning, "the crime
would be grave or serious in every potential factual
scenario"), Wells-Yates essentially returned
the per se grave or serious designation to the standard
provided by Gaskins. Id. at ¶¶
63, 69-70, 454 P.3d at 209-10; see also Gaskins, 825
P.2d at 36-37. Still, Wells-Yates altered the
standard for assessing whether crimes should be designated
per se grave or
15
serious and narrowed the "per se" designation for
narcotics-related offenses. Thus, these holdings announced
"new" rules. See Edwards, 593 U.S. at 266
(concluding that the court had announced a new rule when it
brought legal interpretation back in line with the original
meaning of the Sixth Amendment).
¶
26 Even so, as noted above, for these new rules to apply to
McDonald retroactively, they must be substantive. We
turn our attention to that final consideration now.
3.
Did Wells-Yates Announce
Substantive Rules?
¶
27 A rule is substantive "if it alters the range of
conduct or the class of persons that the law punishes."
Summerlin, 542 U.S. at 353. Substantive rules
include "decisions that narrow the scope of a criminal
statute by interpreting its terms as well as constitutional
determinations that place particular conduct or persons
covered by the statute beyond the State's power to
punish." Id. at 351-52 (citation omitted);
see also Montgomery, 577 U.S. at 198. "Such
rules apply retroactively because they 'necessarily carry
a significant risk that a defendant' . . . faces a
punishment that the law cannot impose upon him."
Summerlin, 542 U.S. at 352 (quoting Bousley v.
United States, 523 U.S. 614, 620 (1998)); accord
Montgomery, 577 U.S. at 208-09.
¶
28 Conversely, a rule is procedural if it "regulate[s]
only the manner of determining the defendant's
culpability." Summerlin, 542 U.S. at 353. Such
rules
16
don't "produce a class of persons convicted of
conduct the law does not make criminal . . . but merely raise
the possibility that someone convicted with use of the
invalidated procedure might have been acquitted
otherwise." Welch v. United States, 578 U.S.
120, 129 (2016) (quoting Summerlin, 542 U.S. at
352).
¶
29 Wells-Yates didn't remove any range of
conduct or class of individuals from the possibility of
habitual criminal sentencing. Cf. Welch., 578 U.S.
at 129-30 (concluding that the Court announced a substantive
rule in Johnson v. United States, 576 U.S. 591
(2015), because "Johnson changed the
substantive reach of the Armed Career Criminal Act, altering
'the range of conduct or the class of persons that the
[Act] punishes'"; meaning, "the same person
engaging in the same conduct is no longer subject to the
Act" (alteration in original) (quoting
Summerlin, 542 U.S. at 353)). No one who was
sentenced under the habitual criminal statute before
Wells-Yates was ineligible for such sentencing after
Wells-Yates. Instead, Wells-Yates clarified
how a court should evaluate the proportionality of a habitual
criminal's sentence.
¶
30 After Wells-Yates, courts can no longer
categorically assume all narcotics-related offenses are grave
or serious; instead, courts must now consider the individual
facts of narcotics-related predicate and triggering offenses
to determine if they are grave or serious in each instance.
Narcotics-related offenses may still trigger habitual
criminal sentencing, and a court conducting an abbreviated
17
proportionality review may still conclude that the offenses
at issue are sufficiently grave that the harshness of the
sentence imposed under the habitual criminal statute
isn't grossly disproportionate.
¶
31 Similarly, Wells-Yates's instruction for
courts to consider post-offense legislative amendments when
evaluating the gravity or seriousness of offenses during an
abbreviated proportionality review didn't remove any
range of conduct or class of offenders from the state's
ability to punish under the habitual criminal statute. Nor
did it create a significant risk that a class of habitual
criminal sentences would be grossly disproportionate. Rather,
it simply reminded courts to consider society's evolving
views on the gravity or seriousness of certain crimes when
conducting an abbreviated proportionality review.
¶
32 Thus, Wells-Yates's holdings removing
narcotics-related offenses from the per se grave or serious
list and instructing courts to consider post-sentencing
legislative amendments merely regulated how habitual criminal
sentences are to be evaluated during an abbreviated
proportionality review. See Summerlin, 542 U.S. at
353-55 (concluding that the new rule was procedural because
the range of conduct punishable by death was the same before
the rule as it was after); Johnson, 142 P.3d at
724-25 (same); cf. Welch, 578 U.S. at 131 ("A
change [that alters the scope of the underlying proscription]
will 'necessarily carry a significant risk that a
defendant stands convicted of "an act that the law does
not make
18
criminal."'" (quoting Bousley, 523
U.S. at 620)). But concluding that a sentence is grossly
disproportionate will likely remain the exception rather than
the rule. See generally Wells-Yates, ¶¶
23-27, 454 P.3d at 201-02; see also, e.g.,
Gaskins, 825 P.2d at 36-37; Rutter, ¶
15, 363 P.3d at 188. The Wells-Yates rules are,
therefore, "prototypical procedural rules."
Johnson, 142 P.3d at 725 (quoting
Summerlin, 542 U.S. at 353).
¶
33 Contrast this conclusion with Montgomery, in
which the Supreme Court concluded that the rule announced in
Miller was substantive and applied retroactively to
cases on collateral review. Montgomery, 577 U.S. at
212. The Miller Court held "that mandatory life
without parole for those under the age of [eighteen] at the
time of their crimes violates the Eighth Amendment's
prohibition on 'cruel and unusual punishments.'"
567 U.S. at 465. In concluding that this new rule was
substantive, the Montgomery Court noted that
"[a]lthough Miller did not foreclose a
sentencer's ability to impose life without parole on a
juvenile, the [Miller] Court explained that a
lifetime in prison is a disproportionate sentence for all but
the rarest of children, those whose crimes reflect
'"irreparable corruption."'"
Montgomery, 577 U.S. at 195 (quoting
Miller, 567 U.S. at 479-80). Thus, Miller
deprived the state of the power to impose mandatory life
without parole sentences for a certain class of offenders.
Id. at 201, 208-12; see also Welch, 578
U.S. at 129-30.
19
¶
34 We conclude that the new rules Wells-Yates
announced are procedural, not substantive. Accordingly,
Wells-Yates's holdings don't apply
retroactively to cases on collateral review, and McDonald
isn't entitled to a second proportionality review of his
habitual criminal sentence.
III.
Conclusion
¶
35 The judgment of the court of appeals is affirmed.
---------
Notes:
[1] We granted certiorari to review the
following issue:
1. Whether Wells-Yates v. People, 2019 CO
90M, 454 P.3d 191, announced a new, substantive rule of
constitutional law that applies retroactively.
[2] Because McDonald didn't raise to
the trial court his argument that the Colorado Constitution
provides broader protection than its federal counterpart,
it's not properly before us, and we decline to address
it. See Martinez v. People, 244 P.3d 135, 140 (Colo.
2010) (vacating the portion of an opinion that reached the
merits of an unpreserved constitutional claim because,
"[t]o preserve a Colorado Constitutional argument for
appeal, . . . a defendant must make an objection sufficiently
specific to call the attention of the trial court to the
potential Colorado Constitutional error").
[3] The United States Supreme Court has
abolished the watershed rule exception because
"[c]ontinuing to articulate a theoretical exception that
never actually applies in practice offers false hope to
defendants, distorts the law, misleads judges, and wastes the
resources of defense counsel, prosecutors, and courts."
Edwards v. Vannoy, 593 U.S. 255, 272 (2021). The
prosecution asks us to follow suit. But the watershed rule
exception isn't implicated by the facts of this case, so
we don't address it.