Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 10CA992.
Defendant Jarrod Ralph Rutter was convicted of manufacturing methamphetamine and other drug crimes. He was adjudicated a habitual criminal because he had prior felony convictions and was sentenced to ninety-six years. 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. Based on these changes, Rutter appealed the proportionality of his sentence under the Eighth Amendment.
The supreme court holds that while the legislature can change the classification of crimes, courts determine whether offenses are grave or serious for purposes of proportionality review. The court does not reach the question of whether courts can consider legislative changes when conducting an abbreviated proportionality review because the legislature made no change regarding Rutter's triggering offense of manufacturing methamphetamine. The court concludes that Rutter's sentence did not give rise to an inference of gross disproportionality.
Attorneys for Petitioner: Samler & Whitson, P.C., Eric A. Samler, Denver, Colorado.
Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado.
JUSTICE BOATRIGHT delivered the Opinion of the Court. JUSTICE GABRIEL dissents, and JUSTICE MÁ RQUEZ and JUSTICE HOOD join in the dissent.
[¶1] We granted certiorari to determine whether a court should consider legislative changes when conducting an abbreviated proportionality review of a habitual criminal
sentence. The defendant, Jarrod Ralph Rutter, was convicted of two class 2 felonies for manufacturing methamphetamine and 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 Rutter 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 convictions from twenty-four years to a mandatory sentence of ninety-six years. § 18-1.3-801(2), C.R.S. (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.
[¶2] 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. 10CA992, slip op. at 19-26 (Colo.App. Apr. 4, 2013). 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 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 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.
I. Facts and Procedural History
[¶3] In April 2009 the police arrested Rutter 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 fiancé e 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.
[¶4] 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; (3) 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 3 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).
[¶5] 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 Rutter'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 (3) possession with intent to distribute a controlled substance, a class 2 felony, which occurred in 2003. The controlled substance at issue in the prior offenses was also methamphetamine. Rutter pleaded not guilty on all counts.
[¶6] At trial, the jury found Rutter guilty of the controlled substance charges. Subsequently, the trial court adjudicated him a habitual criminal.
[¶7] 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.R.S. (2009) (" [E]very 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 18-1.3-401 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. § 18-1.3-401(1)(a)(V)(A), C.R.S. (2009). Thus, in applying the habitual criminal 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.
[¶8] Rutter appealed and argued that his sentences were grossly disproportionate and therefore violated the Eighth Amendment's prohibition against cruel and unusual punishment. He asserted that a reviewing court should consider subsequent amendments to the criminal code when determining whether there is an inference of gross disproportionality 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, 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, secs. 2, 4, § § 18-18-403.5 to -404, 2010 Colo. Sess. Laws, 1162, 1163, 1165. Second, he urged the court to consider that the legislature amended the habitual criminal 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, sec. 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).
[¶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 narcotics-related and were therefore per se grave and serious," negating the need for an extended proportionality review. Id. at 21.
[¶10] 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 ...