County District Court No. 13CR1980 Honorable John E.
Young, District Attorney, Michael Milne, Senior Deputy
District Attorney, Brighton, Colorado, for
M. Elliott, Alternative Defense Counsel, Denver, Colorado,
1 A jury convicted defendant, Clifton Eugene McRae, of
distribution of a schedule II controlled substance
(methamphetamine) and possession of drug paraphernalia. After completing a
proportionality review of McRae's sentence, the trial
court concluded that a sixty-four-year sentence to the
custody of the Department of Corrections would be grossly
disproportionate to his crimes and sentenced him to sixteen
years' incarceration. The People appeal McRae's
sentence. We vacate McRae's sentence and remand for the
trial court to conduct an extended proportionality review.
Eighth Amendment Proportionality Review
2 The Eighth Amendment to the United States Constitution
forbids imposition of a sentence grossly disproportionate to
the severity of the crime committed. Solem v. Helm,
463 U.S. 277, 284 (1983); see Colo. Const. art. II,
§ 20; see also Close v. People, 48 P.3d 528,
532 (Colo. 2002).
3 Under the habitual criminal statute, a person convicted of
a felony who has been previously convicted of three felonies
shall be adjudicated a habitual criminal and shall be
sentenced to four times the maximum of the presumptive range
for the class of felony of which the person is convicted.
See § 18-1.3-801(2)(a), C.R.S. 2015.
4 "A defendant is always entitled to a proportionality
review when sentenced under the habitual criminal
statute." People v. Anaya, 894 P.2d 28, 32
(Colo.App. 1994); see People v. Deroulet, 48 P.3d
520, 526 (Colo. 2002).
5 An abbreviated proportionality review requires a court to
consider the seriousness of a defendant's underlying
crimes together with the triggering crime to determine
whether, in combination, these crimes are so lacking in
gravity or seriousness as to suggest that the sentence is
grossly disproportionate. People v. Loyas, 259 P.3d
505, 513 (Colo.App. 2010). The Colorado Supreme Court has
determined "the crimes of aggravated robbery, robbery,
burglary, accessory to first-degree murder, and
narcotic-related crimes are all 'grave or serious'
for the purposes of proportionality review."
Deroulet, 48 P.3d at 524; see People v.
Gaskins, 825 P.2d 30, 37 (Colo. 1992) ("Sale of
narcotic drugs is viewed with great seriousness because of
the grave societal harm caused by sale of illegal drugs and
the evils associated with their use.").
6 If an abbreviated proportionality review gives rise to an
inference of gross disproportionality, the court should then
engage in an extended proportionality review. People v.
Hargrove, 2013 COA 165, ¶¶ 30-31. In an
extended proportionality review, the court compares the
defendant's sentence to sentences imposed on other
defendants who committed the same crime, both in this
jurisdiction and in other jurisdictions. Deroulet,
48 P.3d at 524.
7 "Generally, a trial court is afforded broad discretion
in sentencing, and its decision will not be overturned absent
an abuse of that discretion." People v. Reese,
155 P.3d 477, 479 (Colo.App. 2006). However, we review a
trial court's proportionality ruling de novo. Rutter
v. People, 2015 CO 71, ¶ 12.
Whether a Court May Consider Changes in Sentencing
8 In 1994, a division of this court held that "when the
General Assembly subsequently amends a criminal sentencing
statute, even though the statute is to be applied
prospectively, the trial court may properly consider it when
determining whether a defendant's sentence [is] grossly
disproportionate." Anaya, 894 P.2d at 32.
9 Anaya relied in part on People v. Penrod,
892 P.2d 383, 388 (Colo.App. 1994), which also concluded that
a "substantial legislative change in penalties . . .
should be considered in determining whether [a]
defendant's sentence is grossly disproportionate."
See also Hargrove, ¶ 20 (stating that an
amendment to a statute may be considered in determining
whether the triggering or predicate offenses should be
considered grave or serious for purposes of proportionality
review); People v. Gaskins, 923 P.2d 292, 296
(Colo.App. 1996) ("[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
defendant's sentence is grossly disproportionate.").
10 In 2014, the Colorado Supreme Court accepted certiorari in
Rutter to determine "[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." ¶ 1 n.1. But the court
ultimately did not address that question and instead
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
Id. at ¶ 13.
Senate Bill 13-250
11 In May 2013, the General Assembly passed Senate Bill
13-250, which reclassified drug offenses in Colorado and
reduced sentences for those offenses. See generally
Ch. 333, 2013 Colo. Sess. Laws 1900-44 (hereinafter SB
13-250). The effective date of ...