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People v. McRae

Court of Appeals of Colorado, Division III

August 11, 2016

The People of the State of Colorado, Plaintiff-Appellant,
v.
Clifton Eugene McRae, Defendant-Appellee.

         Adams County District Court No. 13CR1980 Honorable John E. Popovich, Judge

          Dave Young, District Attorney, Michael Milne, Senior Deputy District Attorney, Brighton, Colorado, for Plaintiff-Appellant

          April M. Elliott, Alternative Defense Counsel, Denver, Colorado, for Defendant-Appellee

          GRAHAM JUDGE.

         ¶ 1 A jury convicted defendant, Clifton Eugene McRae, of distribution of a schedule II controlled substance (methamphetamine)[1] and possession of drug paraphernalia.[2] 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.

         I. 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.

         II. 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 concluded

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.

Id. at ¶ 13.[3]

         III. 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 ...


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