Rutter v. People

2015 CO 71, 363 P.3d 183, 2015 WL 9275589

• Court: Supreme Court of Colorado
• Decided: December 21, 2015
• Docket: Supreme Court Case 13SC523
• Status: Published

Opinions

. JUSTICE

delivered the Opinion of the Court.

{1 We granted certiorari to determine whether a court should consider legislative changes when conducting an abbreviated proportionality review of a habitual criminal sentence.¹ The defendant, Jarrod Ralph Rutter, was convicted of two class' 2 felonies for manufacturing methamphetamine dnd possessing one or more chemicals with intent to manufacture methamphetamine, one class 4 - felony for possessing methamphetamine, and a petty offense for possessing drug paraphernalia, The court also adjudicated Rut-ter a habitual criminal because he had three prior felony convictions for use, possession, and possession with intent to distribute methamphetamine. - Because the court adjudicated Rutter a habitual criminal, it was required to quadruple the maximum presumptive range for the class 2 felony convie-tions from twenty-four years to a mandatory sentence of ninety-six years. § 18-1.3-801(2), CRS. (2009). Subsequent to Rutter's sentencing, the legislature prospectively reduced the classification of the offenses for use and possession of methamphetamine and amended the habitual criminal statute so that certain drug offenses no longer qualify as underlying felonies in habitual criminal adjudications. The legislature did not, however, reduce the classification of the offense for manufacturing methamphetamine.

- Based on these legislative changes, Rutter challenged on appeal the proportionality of his sentence under the Eighth Amendment. A division of the court of appeals conducted an abbreviated proportionality review, reasoned that the legislative changes were prospective and should not be considered, determined that all of Rutter's predicate and triggering offenses were per se grave and serious, and concluded that his sentence was not grossly disproportionate. People v. Rutter, No. 10C0A992, slip op. at 19-> 26, 2018 WL 1352154 (Colo.App. Apr. 4, 2018). We affirm the court of appeals and hold that while the legislature can change the classification of crimes, courts determine whether offenses are grave or serious for purposes of proportionality review. In this case, we do not reach the question of wheth-a # er 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. Therefore, we are not altering the Judicial determination that manufacturing a schedule II controlled substance is a grave or serious crime. Accordingly, we conduct a proportionality review and conclude that the habitual eriminal sentence in this case does not give rise to an inference of gross dispro-portionality. We affirm the judgment of the court of appeals and remand the case to that court with instructions to return the case to the trial court for further proceedings consistent with this opinion. |

I. Facts and Procedural History

3 In April 2009 the police arrested Rut-ter on suspicion of manufacturing methamphetamine. Pursuant to a search warrant, the police searched his home and found items consistent with manufacturing methamphetamine. While Rutter was in jail, he called his fiancée and asked her whether the police had found certain items hidden in his home. The police monitored the call and, based on this information, obtained a second warrant. In the home, the police found and seized additional items consistent with manufacturing methamphetamine.

T4 The People charged Rutter with one count each of (1) manufacturing a schedule II controlled substance, a class 2 felony; (2) possessing chemicals, supplies, or equipment with intent to manufacture a schedule II controlled substance, a class 2 felony; (8) possessing a schedule II controlled substance, a class 4 felony; and (4) possessing drug paraphernalia, a petty offense. Because Rutter had already been convicted of offenses in the same category of crimes as counts one and two, the People charged those two counts as class 2 felonies rather than class 8 felonies See § 18-18-405(2)(a)(I)(B), C.R.S.. (2009) (stating that class 3 felonies become class 2 felonies if the violation is committed subsequent to a prior conviction).

15 In addition, the Complaint and Information also charged three habitual criminal counts in violation of parts of section 18-1.3-801, C.R.S. (2009) (as counts five through seven). These counts were based on Rut-ter's prior convictions for (1) use of a controlled substance, a class 5 felony, which occurred in 2001; (2) possession of two grams or less of a controlled substance, a class 4 felony, which also occurred in 2001; and (8) possession with intent to distribute a controlled substance, a class 2 felony, which occurred in 2003.² The controlled substance at issue in the prior offenses was also methamphetamine. Rutter pleaded not guilty on counts all counts.

T6 At trial, the jury found Rutter guilty of the controlled substance charges. Subsequently, the trial court adjudicated him a habitual criminal.³

T7 Pursuant to section 18-1.3-801(2) and the habitual criminal finding, the trial court, at sentencing, quadrupled the maximum sentences for those offenses. . See § 18-1.3-801(2)(A), C.RS. (2009) ([EJvery - person convicted in this state of any felony, who has been three times previously convicted ... of a felony ... shall be adjudged an habitual criminal and shall be punished: For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range pursuant to section 18-1.8-401 for the class of felony of which such person is convicted ...." (emphasis added). Class 2 felonies carry a maximum sentence of twenty-four years, while Class 4 felonies carry a maximum sentence of six years, § 18-1.8-401(1)(@)(V)(A), CRS, (2009). Thus, in applying the habitual erimi--nal statute, the court sentenced Rutter to ninety-six years for the class 2 felonies and twenty-four years for the class 4 felony. The court ordered the sentences to run concurrently. |

T8 Rutter appealed and argued that his sentences were grossly disproportionate and therefore violated the Eighth Amendment's prohibition against cruel and unusual punishment.⁴ He asserted that a reviewing court should consider subsequent amendments to the criminal code when determining whether there is an inference of gross disproportion-ality during an abbreviated proportionality review. In making his arguments, Rutter noted the following legislative changes. First, he argued that the court should consider the legislature's reclassification of use of a schedule II controlled substance from a class 6 felony to a class 2 misdemeanor,⁵ and possession of two grams or less of a schedule II controlled substance from a class 4 felony to a class 6 felony,. Ch,. 259, sees. 2, 4, §§ 18-18-408.5 to -404, 2010 Colo. Sess. Laws, 1162, 1163, 1165. Second, he urged the court to consider that the legislature amended the habitual eriminal statute in 2011 to state that convictions for possession of small quantities of schedule II controlled substances (class 6 felonies) no longer qualify as underlying felonies in a habitual criminal adjudication. Ch. 57, see. 1, § 18-1.3-801(2), 2011 Colo. Sess. Laws 151, 151-52. Rutter argued that these subsequent legislative changes call into question whether his crimes were grave or serious and whether the changes give rise to an inference of gross disproportionality. See People v. Deroulet, 48 P.3d 520, 524, 527 (Colo.2002).

1 9 A majority of the court of appeals panel disagreed with Rutter and held that a remand for an extended proportionality review was unnecessary. Rutter, slip op. at 21. The majority reasoned that the legislature did not intend the amendments to change. whether the narcotic-related offenses are grave and serious for cases prior to the date of those amendments because (1) the legislation's plain language demonstrates that the legislative changes apply prospectively and (2) the legislature set the new offense date as. the relevant time period for determining whether previous offenses should be used as prior felony convictions in habitual offender adjudications. Id. at 21-24. Thus, the majority determined that Rutter's "predicate and triggering offenses were all nareotics-related and were therefore per se grave and serious," negating the need for an extended proportionality review. Id. at 21.

110 Judge Graham dissented from this portion of the opinion. ' He wrote that, although the trial court had discretion to consider Rutter's prior felonies due to their grave and serious nature, "the subsequent reclassification of [Rutter's] possession conviction could have, and should have;, 'been considered in a proportionality review." Id. at 36-37 (Graham, J., dissenting). He then' stated that if the trial court had considered the reclassification, it would have determined that Rutter's ninety-six-year sentence gave rise to an inference of gross disproportionality, and it would have reduced the sentence. Id. at 88.

€ 11 We granted Rutter's petition for cer-tiorari to review the court of appeals' determination that the legislature's subsequent reclassification of drug crimes and its amendments to the habitual criminal statute did not alter the crimes' status as grave or, serious crimes.

IL. Standard of Revxew

112 Whether a sentence is constltu-tionally proportionate is a question of law that we review de novo. See People v. Mershon, 874 P.2d 1025, 1035 (Colo.1994),

III, - Analysis

{13 The issue here is whether a court conducting an abbreviated proportionality review can consider the legislature's reclassifi-cations of drug erimes and its amendments to the habitual criminal statute that occur after a defendant is sentenced. We affirm the court of appeals and hold that while the legislature can change the classification of cranes, courts determine whether offenses are grave or serious for purposes of proportionality review. In this case, 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 controlléd substance. Therefore, we are not altering the judicial determination that manufactumng a schedule II controlled substance is a grave or serious crime. Accordingly, we eonduct a proportionality review and conclude that the habitual criminal sentence in this case does not give rise to an inference of gross disproportionality. To explain our reasoning, we first examine the United States Supreme Court's principles for determining whether a sentence is constitutionally proportionate. Next, we outline guiding principles specific to Colorado and then apply the facts of this ease to those prmc1ples

A. Eighth Amendment Proportionality Review

1 14 The Eighth Amendment to the United States Constitution states that "[elxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII, As the Supreme Court has stated, the final clause of the Eighth Amendment prohibits "sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Thus, the Eighth Amendment includes a proportionality. principle, and this principle applies in both capital and non-capital cases. Id. at 290, 108 S.Ct. 3001; Close v. People, 48 P.3d 528, 532 (Colo.2002).

115 The U.S. Supreme Court has articulated three principles to ensure that a defendant's sentence in a non-capital case does not violate the proportionality principle. First, proportionality reviews are not limited to life sentences; proportionality reviews are proper to review sentences of a term of years. Close, 48 P.3d at 536 (citing Hutto v. Davis, 454 U.S. 370, 377, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (Powell, J., concurring), Second, the Eighth Amendment's guarantee of proportionality "is a narrow one." Id. at 582. It forbids only "extreme sentences that are 'grossly disproportionate" Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring) (quoting Solem, 463 U.S. at 288, 303, 103 S.Ct. 3001), and "[olutside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare," Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Third, reviewing courts need only complete an abbreviated proportionality review. Close, 48 P.3d at 536 (citing Harmelin, 501 U.S. at 1004-05, 111 S.Ct. 2680). If, and only if, that abbreviated proportionality review gives rise to an inference of gross disproportionality does a reviewing court need to engage in an extended proportionality review. Id. ,

T16 These guiding principles . establish that, in conducting proportionality reviews in non-capital cases, courts will rarely conclude that a defendant's sentence is grossly disproportionate. With this in mind, we now turn to those principles specific to Colorado.

B. Colorado's Guiding Principles for Proportionality Reviews

T 17 Our precedent establishes some Colorado-specific principles for proportionality reviews. Each of the following is applicable to this case.

118 First, an abbreviated proportionality review is sufficient when the crimes supporting a sentence imposed under the habitual criminal statute include grave or serious offenses. Close, 48 P.3d at 537 (citing People v. Gaskins, 825 P.2d 30, 36 (Colo.1992). An abbreviated proportionality review involves scrutinizing two sub-parts in order to determine whether the sentence gives rise to an inference of gross dispropor-tionality: (1) the gravity or seriousness of the offense in relation to (2) the harshness of the sentence imposed. Id. at 542 (citing Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680; Gaskins, 825 P.2d at 36). We defined the two sub-parts of an abbreviated proportionality review as "serutiny of the offenses in question to determine whether in combination they are so lacking in gravity or seriousness so as to suggest that the sentence is constitutionally - disproportionate to the crime, taking into account the 'defendant's eligibility for parole." Id. at 537 (quoting Gaskins, 825 P.2d at 36). An extended proportionality review, on the other hand, involves intra- and inter-jurisdictional sentence comparisons. Id. at 536 (citing Harmelin, 501 U.S. at 1004-05, 111 S.Ct. 2680).

119 Second, 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 587. In other words, a court need not make an individualized determination of the gravity or seriousness of the offense concerning the harm to the victim or to society and the culpability of the offender. Id. Rather, a court may proceed directly to the second sub-part and scrutinize the harshness of the penalty. Id. As we have noted previously, it is "highly likely that the legislatively mandated sentence" will be constitutionally proportionate for grave or serious crimes. Id. 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 is involved results in a near-certain upholding of the sentence." Id.

T 20 Our guiding principles establish that, in conducting abbreviated proportionality reviews when the crime is grave or serious, courts only serutinize the harshness of the penalty. Also, it is highly likely that the sentence will be proportionate. Now we turn to the facts of this case.

C. Application

] 21 We review de novo the proportionality of Rutter's sentence. See Mershon, 874 P.2d at 1035. To start, we note that Rutter's triggering offense of manufacturing a schedule II controlled substance is grave or serious. We then explain that the legislative changes relevant to this case are not retroactive. We conclude by conducting an abbreviated proportionality review and explain that because courts determine which crimes are grave or serious, the subsequent legislative changes do not require us to alter our determination that Rutter's triggering offense is grave or serious. Accordingly, Rutter's sentence did not give rise to an inference of gross disproportionality.

1. Rutter's Triggering Offense Was Grave or Serious

122 Rutter's triggering offense, and the offense on which his habitual criminal sentence is based, was the crime of manufacturing methamphetamine-a schedule II controlled substance. Previously, we determined that manufacturing methamphetamine is grave or serious, and there is no reason for us to alter that determination here. See Deroulet, 48 P.3d at 524.

283 Although it would not have been dis-positive in any event, we note that the legislature did not reclassify Rutter's triggering offense of manufacturing methamphetamine; instead, it only lessened the penalties for drug users and possessors, not for drug manufacturers or sellers. See Ch. 268, see. 28, § 16-11.3-103(2.7)(a)(I), 2012 Colo. Sess. Laws 1891, 1403 (stating that these changes are part of sentencing and drug reforms aimed primarily at "users and addicts," and differentiating them from "more serious offenders who are involved in drug distribution, manufacturing, or trafficking").⁶ Even in the eyes of the legislature, the nature of manufacturing methamphetamine is unchanged. Thus, Rutter's triggering offense was outside the purview of the sentencing reforms for drug offenses. The legislative changes to the drug possession and use statutes do not give us cause to reexamine our prior determination that manufacturing methamphetamine is a grave or serious crime. See Deroulet, 48 P.3d at 524. Hence, our determination is unchanged and manufacturing methamphetamine remains grave or serious. We now turn to the proportionality of Rutter's sentence to determine whether there is an inference 'of gross dispropor-tionality.

2. Abbreviated Proportionality Review

%24 We conduct an abbreviated proportionality review to determine whether Rutter's ninety-six-year sentence for the grave or serious triggering offense of manufacturing methamphetamine is overly harsh and thus gives rise to an inference of gross disproportionality. As our precedent directs, we conduct the proportionality review by scrutinizing the harshness of Rutter's sentence in relation to the fact that his trigger ing offense is grave or serious. Id.; Solem, 463 U.S. at 296 n. 21, 103 S.Ct. 3001 ("[Courts] must focus on the principal felony-the felony that triggers the [enhanced] sentence. ...").

1 25 The U.S. Supreme Court faced a similar question in Harmelin. 501 U.S. at 961, 111 S.Ct. 2680 (majority opinion). There, the Supreme Court upheld Harmelin's sentence of life imprisonment for possessing 672 grams of cocaine. Id. Here, we find that Rutter's ninety-six-year sentence for manufacturing a schedule II controlled substance is not too harsh in light of the fact that the triggering offense is grave or serious. Therefore, Rutter's sentence is not grossly disproportionate. See Close, 48 P.3d at 536 (noting the "very high likelihood that a sentence will be' upheld as constitutionally proportionate" when the crime is grave or serious).

IV, Conclusion

26 For the foregoing reasons, we affirm the court of appeals and hold that while the legislature can change the classification of crimes, courts determine whether offenses are grave or serious for purposes of proportionality review. In this case, 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." Therefore, we are hot altering the judicial determination that manufacturing a schedule II controlled substance is a grave or serious crime. Accordmgly, after conducting a proportionality review, we conclude that the habitual criminal sentence in this case does not give rise to an inference of gross disproportionality. We affirm the judgment of the court of appeals and remand the case to that court with instructions to return the case to the trial court for further proceedings consistent with this opinion. |

JUSTICE GABRIEL dissents, and JUSTICE MARQUEZ and JUSTICE HOOD join in the dissent.

1 . We granted certiorari to review the following - issue: "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," ©

2 . The 2003 offense for possession with intent to distribute a controlled substance was Rutter's second offense for that category of crimes. Thus, the People charged him with a class 2 felony under section 18-18-405, C.R.S. (2003).

3 . On direct appeal, the court of appeals vacated Rutter's conviction and sentence for possessing methamphetamine and merged his class 2 felony convictions and sentences into one conviction and ninety-six-year sentence for manufacturing methamphetamine, - possessing - methamphetamine with intent to distribute, and possessing one or more chemicals with intent to manufacture methamphetamine under section 18-18-405(1)(a). This determination is not before us on appeal. «

4 . Rutter also appealed on five other issues not before us.

5 . Previously, in 2003, the legislature changed use of a schedule II controlled substance from a class 5 felony to a class 6 felony. Ch. 424, sec. 2, § 18-18-404(1)(a)(I), 2003 Colo, Sess. Laws 2681, 2681-82. ©

6 , We note, also, that the legislative changes upon which Rutter bases his argument are prospective only. See, eg., People v. Summers, 208 P.3d 251, 257 (Colo.2009) ("'It is well established in Colorado that when the [legislature] indicates in an effective date clause that a statute shall apply prospectively, courts are bound by that language."); Ch. 259, sec. 27, 2010 Colo. Sess. Laws at 1177 (reclassifying use and possession of methamphetamine and stating that "[the provisions of this act shall apply to offenses committed on or after" August 11, 2010); Ch. 333, sec. 71, 2013 Colo. Sess. Laws 1900, 1943 (reclassifying drug felonies and stating that the change "applies to offenses committed on or after" October 1, 2013).