2
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 19CA2033.
3
Attorneys for Petitioner: Johnson & Klein, PLLC Gail
Johnson Boulder, Colorado, Samler and Whitson, P.C. Hollis A.
Whitson, Denver, Colorado Schelhaas Law LLC Krista A.
Schelhaas, Littleton, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
4
Katharine
Gillespie, Senior Assistant Attorney General Jessica E. Ross,
Assistant Attorney General Denver, Colorado.
Attorneys for Amici Curiae American Civil Liberties Union of
Colorado, Boston University Center for Antiracist Research,
The Sentencing Project, Sam Cary Bar Association, and
Colorado-Montana-Wyoming Area Conference of the National
Association for the Advancement of Colored People: Mintz,
Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. Matthew D.
Levitt Evan M. Piercey Elizabeth M. Platonova New York, New
York Timothy R. Macdonald Anna I. Kurtz Sara R. Neel, Denver,
Colorado Matthew Segal Boston, Massachusetts, Caitlin Glass
Boston, Massachusetts.
Attorneys for Amici Curiae Colorado Criminal and
Constitutional Law Scholars Justice Marceau and Sam Kamin:
Killmer, Lane & Newman, LLP Andrew McNulty, Denver,
Colorado, Andrea Lewis Hartung Chicago, Illinois.
Attorneys for Amici Curiae Colorado Criminal Defense Bar and
Office of Alternate Defense Counsel: The Noble Law Firm, LLC
Tara Jorfald Heidi Tripp Lakewood, Colorado
5
Attorneys for Amici Curiae Scholars of Felony Murder and
Constitutional Proportionality Guyora Binder, Ian Farrell,
Brenner Fissell, Aya Gruber, Alexandra Harrington, Robert
Weisberg, and Ekow N. Yankah: Fisher & Byrialsen, PLLC
Jane Fisher-Byrialsen Denver, Colorado.
Attorneys for Amicus Curiae Spero Justice Center: Kristen M.
Nelson Dan M. Meyer Denver, Colorado.
JUSTICE GABRIEL delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE
HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
6
OPINION
GABRIEL, JUSTICE.
¶1
Petitioner Wayne Tc Sellers IV asks us to consider whether a
life without the possibility of parole ("LWOP")
sentence for felony murder is categorically unconstitutional
or, alternatively, grossly disproportionate to the offense of
felony murder following the General Assembly's 2021
reclassification of that offense.[1]¶2 Based on objective
indicia of societal standards and evolving standards of
decency as expressed in legislative action and state
practice, as well as the exercise of our independent
judgment, we now conclude that an LWOP sentence for felony
murder for an adult offender is not categorically
unconstitutional.
¶3
We further conclude that, even assuming without deciding that
felony murder is not per se grave or serious, Sellers's
offense here was, in fact, grave and serious. Thus, his LWOP
sentence, although severe, does not run afoul of the Eighth
Amendment or article II, section 20 of the Colorado
Constitution and therefore was not grossly disproportionate.
7
¶4
Accordingly, we affirm the judgment of the division below,
albeit partially on different grounds.
I.
Facts and Procedural History
¶5
In October 2018, Sellers and several friends planned to rob
alleged drug dealers at gunpoint. One member of Sellers's
group arranged to buy acid from O.T., and the two ultimately
arranged a meeting. At the appointed time and place, the two
met briefly, and O.T. showed the member of Sellers's
group the acid. That member then ran off, and four men,
including Sellers, approached O.T. One of the men flashed a
gun and grabbed O.T.'s acid and backpack.
¶6
Sellers and his friends planned to do the same thing to K.H.,
who was at a different location. Sellers and his friends
drove to that location, but this interaction tragically
played out differently. Sellers and one of his friends
ultimately fired their weapons at K.H., and Sellers's
friend killed K.H. during the gunfire. After K.H. was shot,
Sellers and his group left the scene. Sellers was later
arrested.
¶7
Sellers was subsequently charged with first degree felony
murder, aggravated robbery, two counts of conspiracy to
commit aggravated robbery, three counts of attempted
aggravated robbery, menacing, and six crime of violence
counts. The case proceeded to trial in the El Paso County
District Court.
¶8
A jury ultimately convicted Sellers on all counts, except for
one of the conspiracy to commit aggravated robbery counts,
menacing, and one crime of
8
violence count, which were dismissed. The trial court
sentenced Sellers to a composite term of LWOP for the felony
murder plus thirty-two years confinement and five years
parole for the aggravated robbery conviction.
¶9
Sellers appealed, arguing, among other things, that under the
Eighth Amendment to the United States Constitution, an LWOP
sentence for felony murder is categorically unconstitutional.
People v. Sellers, 2022 COA 102, ¶¶ 33,
46, 521 P.3d 1066, 1075, 1077. Alternatively, he contended
that the division should remand his case for a
proportionality review of his LWOP sentence. Id. at
¶¶ 33, 55, 521 P.3d at 1075, 1078.
¶10
In a unanimous, published opinion, the division affirmed
Sellers's conviction and sentence. Id. at ¶
68, 521 P.3d at 1080. (The division remanded the case to the
trial court with instructions to impose concurrent sentences
for Sellers's other convictions, a matter that is not
before us. Id.) Specifically, the division concluded
that Sellers's categorical challenge to the
constitutionality of his LWOP sentence was not applicable in
this case and that his sentence was constitutionally
proportional. Id. at ¶ 43, 521 P.3d at 1076.
¶11
In support of these conclusions, the division noted that at
the time Sellers committed the crimes at issue, felony murder
was a class 1 felony that carried a minimum sentence of LWOP.
Id. at ¶ 44, 521 P.3d at 1077 (citing
§§ 18-3-102(1)(b) and 18-1.3-401(1)(a), C.R.S.
(2018)). Although the division acknowledged that in
9
2021, the General Assembly had reclassified felony murder as
a class 2 felony with a maximum sentence of forty-eight
years, the division pointed out that the General Assembly
also provided that its reclassification applied only to
offenses committed on or after September 15, 2021, the date
the reclassification took effect. Id. at ¶ 45,
521 P.3d at 1077 (citing §§ 18-3-103,
18-1.3-401(1)(a)(V)(A.1), 18-1.3-401(8)(a)(I), C.R.S.
(2021)).
¶12
Based largely on this change in the law, Sellers argued that
an LWOP sentence for felony murder is categorically
unconstitutional. Id. at ¶ 46, 521 P.3d at
1077. The division disagreed, however, because Sellers cited
no case-and the division was aware of none-that had extended
the categorical approach to cases not involving the death
penalty or juvenile offenders. Id. at ¶ 54, 521
P.3d at 1078. Indeed, the division observed that the Supreme
Court had upheld LWOP sentences for adult offenders even in
nonhomicide cases. Id. (citing Harmelin v.
Michigan, 501 U.S. 957 (1991)).
¶13
Having so concluded, the division went on to consider, and
reject, Sellers's alternative request to remand the case
for an abbreviated proportionality review. Id. at
¶ 55, 521 P.3d at 1078. Instead, the division conducted
the review itself and determined that felony murder is a per
se grave or serious offense (because it necessarily involves
a violent predicate felony resulting in the death of a
person) and that, therefore, Sellers's LWOP sentence was
not grossly disproportionate,
10
despite the subsequent legislative amendments. Id.
at ¶¶ 55, 65-67, 521 P.3d at 1078-80.
¶14
Sellers then petitioned for a writ of certiorari in this
court, and we granted his petition.
II.
Analysis
¶15
We begin by setting forth the applicable standard of review
and the basic tenets of the Eighth Amendment and article II,
section 20 of the Colorado Constitution. We then discuss the
pertinent case law addressing categorically unconstitutional
sentences, and, applying that law to the facts before us, we
conclude that LWOP sentences for felony murder for adult
offenders are not categorically unconstitutional. Finally, we
conduct an abbreviated proportionality review of
Sellers's LWOP sentence for felony murder, and we
conclude that, on the facts presented, the sentence was not
grossly disproportionate to the offense.
A.
Standard of Review and the Eighth Amendment
¶16
We review de novo the constitutionality of statutes.
People in Int. of T.B., 2021 CO 59, ¶ 25, 489
P.3d 752, 760. We likewise review de novo whether a sentence
is grossly disproportionate to the offense, in violation of
the Eighth Amendment and article II, section 20 of the
Colorado Constitution. Wells-Yates v. People, 2019
CO 90M, ¶ 35, 454 P.3d 191, 204.
11
¶17
The Eighth Amendment and article II, section 20 of the
Colorado Constitution are identical and provide,
"Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted." U.S. Const. amend. VIII; Colo. Const. art.
II, § 20. To decide whether a punishment is cruel and
unusual, "courts must look beyond historical conceptions
to 'the evolving standards of decency that mark the
progress of a maturing society.'" Graham v.
Florida, 560 U.S. 48, 58 (2010) (quoting Estelle v.
Gamble, 429 U.S. 97, 102 (1976)). This prohibition
"guarantees individuals the right not to be subjected to
excessive sanctions." Miller v. Alabama, 567
U.S. 460, 469 (2012) (quoting Roper v. Simmons, 543
U.S. 551, 560 (2005)). This right stems from the concept that
punishment for a crime should be proportionate to both the
offender and the offense. Miller, 567 U.S. at 469.
¶18
Supreme Court case law addressing the proportionality of
sentences falls within two general categories: (1) cases in
which the Court implements the proportionality standard
through categorical restrictions and (2) cases in which the
Court considers all of the circumstances of the case to
determine whether the length of a term-of-years sentence is
unconstitutionally excessive or grossly disproportionate to
the offender or the offense. Graham, 560 U.S. at 59.
Sellers argues that we should vacate his LWOP sentence under
both or either of these
12
categories and remand his case for resentencing. We consider
his contentions in turn.
B.
Categorical Unconstitutionality
¶19
Sellers first contends that an LWOP sentence for felony
murder is categorically unconstitutional in light of the
General Assembly's 2021 reclassification of felony murder
from a class 1 felony with a mandatory LWOP sentence to a
class 2 felony with a maximum sentence of forty-eight years.
In Sellers's view, the General Assembly's
reclassification of felony murder as a class 2 felony shows
that standards of decency have evolved in Colorado to the
extent that its citizens will no longer tolerate punishing
felony murder offenders with the most severe sentence
available under state law. We are unpersuaded.
¶20
In determining whether a sentence is categorically
unconstitutional, the Supreme Court has first considered
"'objective indicia of society's standards, as
expressed in legislative enactments and state practice'
to determine whether there is a national consensus against
the sentencing practice at issue." Graham, 560
U.S. at 61 (quoting Roper, 543 U.S. at 563). In this
regard, the Court has observed that the "clearest and
most reliable objective evidence of contemporary values is
the legislation enacted by the country's
legislatures." Id. at 62 (quoting Atkins v.
Virginia, 536 U.S. 304, 312 (2002)). The Court has,
however, recognized measures of consensus beyond just
legislation. Id. For example, the Court has noted
that
13
actual sentencing practices are also important in the
Court's inquiry into consensus. Id.
¶21
After considering objective indicia of societal standards,
the Court has next exercised its independent judgment to
decide whether the punishment at issue violates the Eighth
Amendment. Id. at 61. In making this determination,
the Court has observed that it is to be guided by the
standards set forth in controlling precedents and also by the
Court's own understanding and interpretation of the
Eighth Amendment's text, history, meaning, and purpose.
Id. This exercise of the Court's independent
judgment requires consideration of the culpability of
criminal defendants in light of their crimes and
characteristics, as well as the severity of the punishment at
issue. Id. at 67.
¶22
Prior to Graham, the Supreme Court limited its
application of the categorical approach to cases involving
the death penalty. See, e.g., Kennedy v.
Louisiana, 554 U.S. 407, 413 (2008) (concluding that the
Eighth Amendment precludes the imposition of the death
penalty for the rape of a child when the crime did not
result, and was not intended to result, in the death of the
victim); Roper, 543 U.S. at 578 (concluding that the
Eighth and Fourteenth Amendments forbid the imposition of the
death penalty for offenders who were under the age of
eighteen when they committed their crimes); Atkins,
536 U.S. at 321 (prohibiting the
14
imposition of the death penalty for defendants with
significant intellectual disabilities).
¶23
In Graham, 560 U.S. at 82, the Court considered for
the first time whether the categorical approach prohibits an
LWOP sentence for a juvenile defendant who did not commit
homicide. The Court concluded that it does. Id.
¶24
The Court, however, revisited this question two years later
in Miller, 567 U.S. at 479. Again considering
whether the Eighth Amendment prohibits the imposition of a
mandatory LWOP sentence for a juvenile offender, the Court
this time held that "the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders."
Id. In so concluding, the Court distinguished
Roper and Graham on the ground that, in the
case before it, the Court was not categorically barring a
penalty for either a class of offenses or a type of crime.
Id. at 483. Rather, the Court's ruling
"mandate[d] only that a sentencer follow a certain
process-considering an offender's youth and attendant
characteristics-before imposing a particular penalty."
Id.
¶25
Like the division below, we are unaware of any court that has
applied the categorical approach to cases not involving
either the death penalty or juvenile offenders, and Sellers
cites none. See Sellers, ¶ 54, 521 P.3d at
1078.
¶26
Nor have we found a national consensus that a mandatory
sentence of LWOP for felony murder for an adult offender is
categorically impermissible. To
15
the contrary, courts in a number of our sister states have
upheld LWOP sentences for felony murder for adult offenders.
See, e.g., Sosebee v. State, 893 S.E.2d
653, 659-60 (Ga. 2023) (concluding that a recidivist
offender's LWOP sentence for felony murder arising from a
fatal car accident that occurred while the offender was
attempting to flee from a police stop was not grossly
disproportionate to his offenses under the Eighth Amendment);
Harte v. State, 373 P.3d 98, 101-02 (Nev. 2016)
(concluding that an LWOP sentence for felony murder, which
was within the statutory limits, was not so grossly
disproportionate to the crime as to constitute cruel and
unusual punishment).
¶27
To the extent that Sellers cites to decisions that have
imposed sentences for felony murder that were less severe
than an LWOP sentence, we note that those cases appear to
have arisen in states in which the applicable statutes did
not allow for the imposition of an LWOP sentence for felony
murder. See, e.g., Todd v. State, 917 P.2d
674, 679-81 (Alaska 1996) (noting that the maximum sentence
for felony murder under the applicable state statute was
ninety-nine years, and concluding that consecutive sentences
for felony murder and the predicate felony of first degree
robbery do not violate double jeopardy); State v.
Reardon, 486 A.2d 112, 120-21 (Me. 1984) (noting that
the maximum sentence for felony murder was twenty years under
the applicable state statute, and concluding that a
fourteen-year sentence for felony murder was not
disproportionate or cruel and
16
unusual). These cases do not support Sellers's assertion
that many state courts have concluded that an LWOP sentence
for felony murder is categorically unconstitutional. The
cases simply do not address that issue. Nor have we seen
other cases or authorities supporting Sellers's assertion
or indicating that a national consensus has arisen (either in
case law or state statutes) against the imposition of LWOP
sentences in felony murder cases involving adult offenders.
¶28
For these reasons, we cannot say that the objective indicia
of society's standards preclude LWOP sentences in cases
like this one.
¶29
Nor does the exercise of our independent judgment lead us to
conclude that LWOP sentences for felony murder for adult
offenders are categorically unconstitutional. As noted above,
the Supreme Court's case law instructs that we must
exercise our independent judgment to decide whether, in light
of controlling precedent and our understanding and
interpretation of the Eighth Amendment's text, history,
meaning, and purpose, an LWOP sentence for felony murder
violates the Eighth Amendment. Graham, 560 U.S. at
61. As part of this analysis, we must consider, among other
things, "whether the challenged sentencing practice
serves legitimate penological goals." Id. at
67. In particular, the Court has indicated that, in
conducting our analysis, we must assess the four recognized
goals of penal sanctions, namely, retribution, deterrence,
incapacitation, and rehabilitation. Id. at 71. We
therefore proceed to that analysis.
17
¶30
Retribution refers to "[p]unishment imposed for a
serious offense." Retribution, Black's Law
Dictionary (12th ed. 2024). Retribution is, of course, a
legitimate reason to punish, but the criminal sentence must
be directly related to the offender's personal
culpability. Graham, 560 U.S. at 71.
¶31
Deterrence has been defined as "[t]he act or process of
discouraging certain behavior, particularly by fear; esp., as
a goal of criminal law, the prevention of criminal behavior
by fear of punishment." Deterrence, Black's
Law Dictionary (12th ed. 2024). Deterrence is premised on the
idea that a person will take a possible punishment into
consideration when making decisions about whether to engage
in certain behaviors. Graham, 560 U.S. at 72.
¶32
Incapacitation is "[t]he action of disabling or
depriving of legal capacity." Incapacitation,
Black's Law Dictionary (12th ed. 2024). Placing an
offender in prison incapacitates that offender so that the
offender cannot commit further crimes (other than in prison
itself) or endanger public safety. Graham, 560 U.S.
at 72.
¶33
Finally, rehabilitation has been defined as "[t]he
process of seeking to improve a criminal's character and
outlook so that he or she can function in society without
committing other crimes." Rehabilitation,
Black's Law Dictionary (12th ed. 2024). Rehabilitation is
"a penological goal that forms the basis of parole
systems." Graham, 560 U.S. at 73.
18
¶34
As Sellers asserts, one can reasonably argue that his LWOP
sentence did not serve all four of these goals. Specifically,
although an LWOP sentence for committing a felony that
resulted in another's death might well serve the purposes
of retribution, deterrence, and incapacitation, it arguably
does not serve the goal of rehabilitation because a person
who receives an LWOP sentence is given no opportunity to
rehabilitate themselves and reenter the community.
¶35
We cannot say, however, that the fact that an LWOP sentence
for felony murder might not satisfy one (or even more than
one) of the above-described penological goals necessarily
overrides the lack of a national consensus discussed above.
Cf. Harmelin, 501 U.S. at 999 (Kennedy, J,
concurring in part and concurring in the judgment) (noting
that "the Eighth Amendment does not mandate adoption of
any one penological theory" and that federal and state
courts "have accorded different weights at different
times to the penological goals of retribution, deterrence,
incapacitation, and rehabilitation"). Specifically,
absent a consensus among states that an LWOP sentence for
felony murder for an adult offender is always inappropriate,
we perceive no basis for overriding the law in effect at the
time Sellers committed the offenses that mandated an LWOP
sentence for felony murder or the clear legislative
declaration applying the reclassification of LWOP only to
offenses committed after September 15, 2021.
19
¶36
We are not persuaded otherwise by Sellers's request that,
notwithstanding the above-described case law construing the
Eighth Amendment, we should interpret the Colorado
Constitution to render an LWOP sentence for felony murder
committed prior to September 15, 2021 categorically improper.
To be sure, "we are free to construe the Colorado
Constitution to afford greater protections than those
recognized by the United States Constitution."
Millis v. Bd. of Cnty. Comm'rs, 626 P.2d 652,
657 (Colo. 1981). To date, however, we have not interpreted
article II, section 20 of our constitution to provide greater
protection than the Eighth Amendment. Nor have we interpreted
article II, section 20 to conclude that an adult's LWOP
sentence for felony murder is categorically unconstitutional.
And considering the unambiguous statutory language mandating
an LWOP sentence for felony murder committed before September
15, 2021, we are not persuaded that we should do so now.
¶37
Accordingly, we conclude that under the Eighth Amendment and
article II, section 20 of the Colorado Constitution,
Sellers's LWOP sentence for felony murder is not
categorically unconstitutional, and we proceed to consider
whether that sentence is nonetheless grossly disproportionate
to the offense in this case.
20
C.
Gross Disproportionality
¶38
Sellers argues that his LWOP sentence is grossly
disproportionate to the offense of felony murder, especially
in light of the General Assembly's 2021 reclassification
of felony murder. Again, we are unpersuaded.
¶39
"The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it
forbids only extreme sentences that are 'grossly
disproportionate' to the crime." Harmelin,
501 U.S. at 1001 (Kennedy, J., concurring in part and
concurring in the judgment) (quoting Solem v. Helm,
463 U.S. 277, 288 (1983)); accord Rutter v. People,
2015 CO 71, ¶ 15, 363 P.3d 183, 188.
¶40
"Outside 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 (1980). Thus, we have said, "[I]n
conducting proportionality reviews in non-capital cases,
courts will rarely conclude that a defendant's sentence
is grossly disproportionate." Rutter, ¶
16, 363 P.3d at 188.
¶41
In general, the fixing of prison sentences for specific
crimes is properly within the legislature's province and
not that of the courts. Harmelin, 501 U.S. at 998
(Kennedy, J., concurring in part and concurring in the
judgment). Indeed, it is well settled that the legislature
may properly define criminal punishments without providing
the court with any sentencing discretion. Id. at
1006. Reviewing courts should thus grant "substantial
deference to the broad authority
21
that legislatures necessarily possess in determining the
types and limits of punishments for crimes, as well as to the
discretion that trial courts possess in sentencing convicted
criminals." Solem, 463 U.S. at 290.
¶42
As noted above, when the General Assembly reclassified felony
murder, it expressly stated that its reclassification applies
only to offenses committed after September 15, 2021, the date
the reclassification became effective. This was nearly three
years after the events in October 2018 that led to
Sellers's felony murder conviction. "It is well
established in Colorado that when the General Assembly
indicates in an effective date clause that a statute shall
apply prospectively, courts are bound by that language."
People v. Summers, 208 P.3d 251, 257 (Colo. 2009).
Accordingly, on its face, the legislative reclassification
does not invalidate Sellers's LWOP sentence for felony
murder.
¶43
Nonetheless, we must still examine whether Sellers's
sentence was constitutionally disproportionate. See
Wells-Yates, ¶ 48, 454 P.3d at 206 ("Whether
statutory revisions apply retroactively 'is a separate
and distinct question from whether a defendant's sentence
is constitutionally proportionate.'") (quoting
Rutter, ¶ 35, 363 P.3d at 191) (Gabriel, J.,
dissenting)); see also Rutter, ¶ 2, 363 P.3d at
185 (noting that even though "the legislature can change
the classification of crimes, courts determine whether
offenses are grave or serious for purposes of proportionality
review").
22
¶44
In Solem, 463 U.S. at 290-92, the Supreme Court
adopted a test to determine whether a sentence is
proportionate to the crime for which the defendant was
convicted. Although the Court described the test as having
three steps, id., we have construed it as having
two, with the first step being comprised of two parts,
Wells-Yates, ¶ 7 & n.4, 454 P.3d at 196-97
& n.4. First, the trial court should consider (a) the
gravity or seriousness of the offense along with (b) the
harshness of the penalty. Id. at ¶ 7, 454 P.3d
at 197. Second, the court may compare the defendant's
sentence to sentences for other crimes in the same
jurisdiction and to sentences for the same crime committed in
other jurisdictions. Id. We refer to the first step
as an "abbreviated proportionality review" and to
the second step as an "extended proportionality
review." Id. at ¶ 10, 454 P.3d at 197.
¶45
When defendants challenge their sentences on proportionality
grounds, reviewing courts in Colorado must complete an
abbreviated proportionality review. Id. at ¶
15, 454 P.3d at 198-99. Courts should conduct an extended
proportionality review only when the abbreviated
proportionality review gives rise to an inference of gross
disproportionality. Id.
¶46
We have acknowledged that the first part of the abbreviated
proportionality review-the determination of the gravity or
seriousness of the offense-is "somewhat imprecise."
Id. at ¶ 12, 454 P.3d at 198 (quoting
People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992)).
Nonetheless, we have considered several factors in
23
conducting this review, including (1) the harm caused or
threatened to the victim or society; (2) the magnitude of the
crime; (3) whether the crime is a lesser-included or the
greater-inclusive offense; (4) whether the crime involved an
attempt to commit an act or a completed act; and (5) whether
the defendant was a principal in or accessory to the crime.
Id. We have also weighed factors relevant to the
defendant's culpability, such as motive and whether the
defendant's acts were negligent, reckless, knowing,
intentional, or malicious. Id.
¶47
Pertinent here, we further examined in Wells-Yates,
¶¶ 40-53, 454 P.3d at 204-07, whether, in the
course of conducting an abbreviated proportionality review, a
court should consider statutory amendments enacted after the
triggering offenses. On this point, we concluded that when
determining the gravity or seriousness of an offense during
an abbreviated proportionality review, "the trial court
should consider relevant legislative amendments enacted after
the date of the offense, even if the amendments do not apply
retroactively." Id. at ¶ 45, 454 P.3d at
206. This is because such legislative enactments might inform
our evaluation of the gravity or seriousness of the offense.
Id. at ¶ 52, 454 P.3d at 207.
¶48
Lastly, we have identified certain crimes as per se grave or
serious. Id. at ¶ 13, 454 P.3d at 198. For
example, we have concluded that per se grave or serious
crimes include aggravated robbery, robbery, burglary,
accessory to first degree murder, and narcotics-related
crimes. Id. When a crime is per se grave or serious,
24
a sentencing court may skip the determination regarding the
gravity or seriousness of the offense and proceed directly to
assess the harshness of the penalty. Id.
¶49
Here, we begin by noting that we have never determined
whether felony murder is a per se grave or serious offense.
Unlike the division below, however, we perceive no need to
decide whether it is because even assuming without deciding
that it is not per se grave or serious, the application of
the above-described factors to this case establish that
Sellers's offense was, in fact, grave and serious.
¶50
In this case, the victim died in the course of an aggravated
robbery that sellers helped plan and carry out. Moreover,
although Sellers did not personally kill the victim, he fired
his weapon at the victim and was an active and willing
participant in the events resulting in the victim's
death. Considering all of these factors, and taking into
account the legislative reclassification that was enacted
several years after Sellers committed the crimes at issue, we
conclude that Sellers's offense was, in fact, grave and
serious.
¶51
Turning, then, to the harshness of the penalty, we must
consider whether a sentence is parole eligible because parole
can reduce the length of confinement, thereby rendering the
penalty less harsh. Id. at ¶ 14, 454 P.3d at
198. In addition, we must consider the offense at issue, as
well as the underlying offenses, to
25
determine whether, in combination, they so lack in gravity
and seriousness as to suggest that the sentence is
"unconstitutionally disproportionate to the crime,
taking into account the defendant's eligibility for
parole." Id. at ¶ 23, 454 P.3d at 201.
¶52
Here, Sellers's LWOP sentence renders him ineligible for
parole and thus ensures that he will spend the rest of his
life in prison. We recognize, as we must, that such a
sentence is the harshest sentence that Colorado law currently
authorizes. § 18-1.3-401(1)(a)(V)(F), C.R.S. (2024).
Nonetheless, the Supreme Court has concluded that sentencing
certain defendants who have committed felonies to LWOP does
not necessarily run afoul of the Eighth Amendment. See
Harmelin, 501 U.S. at 994-96 (concluding that an LWOP
sentence for possessing a large amount of cocaine was not
cruel and unusual).
¶53
In light of this case law, and considering the
above-described facts and circumstances of this case, we
cannot say that Sellers's LWOP sentence is one of the
rare cases requiring us to conclude that the sentence is
unconstitutional or grossly disproportionate to the crime
that he committed. See Rutter, ¶¶ 16, 25,
363 P.3d at 188-89 (noting that courts in non-homicide cases
will rarely find a defendant's sentence to be grossly
disproportionate, and concluding, on the facts presented,
that the defendant's ninety-six year drug sentence was
not grossly disproportionate to his crime). Nor, for the
reasons set forth above, do we perceive
26
a basis to afford Sellers greater protection under the
Colorado Constitution on the question of gross
disproportionality than is afforded under the Eighth
Amendment.
¶54
In light of this determination, we need not proceed to an
extended proportionality review.
III.
Conclusion
¶55
For the foregoing reasons, we conclude that an LWOP sentence
for felony murder for an adult offender is not categorically
unconstitutional, nor was that sentence grossly
disproportionate on the facts of this case.
¶56
Accordingly, we conclude that Sellers's LWOP sentence for
felony murder was constitutional, and we affirm the judgment
of the division below, albeit partially on different grounds.
---------
Notes:
[1] Specifically, we granted certiorari to
review the following issues:
1. Whether a life without the possibility of parole
sentence for felony murder is categorically unconstitutional
following the Colorado General Assembly's
reclassification of that offense.
2. Whether a life without the possibility of parole
sentence is grossly disproportionate to the offense of felony
murder following the Colorado General Assembly's
reclassification of that offense.