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People v. Oldright

Court of Appeals of Colorado, Fourth Division

June 29, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Scott Alan Oldright, Defendant-Appellant.

         El Paso County District Court No. 15CR1403 Honorable Lin Billings Vela, Judge

          Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellant


          FREYRE JUDGE

         ¶ 1 Defendant, Scott Alan Oldright, appeals the trial court's order denying his request for an extended proportionality review. We vacate the sentence and remand for resentencing and an extended proportionality review.

         I. Background

         ¶ 2 A jury convicted Oldright of first degree assault. According to the prosecution's evidence, Oldright hit the victim in the head with a metal rod. The victim lost consciousness. When the victim regained consciousness, he wandered outside, still bleeding, and asked a stranger for help before he lost consciousness again. He suffered a fractured skull, a concussion, and two deep lacerations.

         ¶ 3 Oldright's theory at trial was that he did not intend to hurt the victim. Rather, he struck the victim to prevent property damage that could otherwise have occurred because the victim was fighting with two other men.

         ¶ 4 Following trial, the court adjudicated Oldright a habitual criminal, and sentenced him to sixty-four years in prison. Oldright's prior offenses included aggravated driving after revocation prohibited, forgery, fraud by check, theft by receiving, and theft.

         ¶ 5 The trial court conducted an abbreviated proportionality review. It concluded that Oldright's triggering offense - first degree assault - was per se grave and serious. It then acknowledged that although Oldright's prior convictions "arguably [did] not rise to the level of grave and serious, " the triggering offense was so serious that no inference of disproportionality existed. In the alternative, the court concluded that each of the prior convictions was "serious" because each had been classified as a felony by the General Assembly. The court reasoned that the existence of five prior felonies, combined with a grave and serious triggering offense, obviated the need for a "more thorough or in-depth proportionality review."

         ¶ 6 We agree with the trial court that first degree assault is a grave and serious offense. However, because the court did not consider the fact that the General Assembly has reclassified three of Oldright's prior convictions to misdemeanors (making them an ineligible basis for habitual sentencing) and one of the prior felonies from a class 4 felony to a class 5 felony, we disagree that each of Oldright's prior offenses is serious. Therefore, we vacate the sentence and remand for an extended proportionality review of Oldright's habitual criminal sentence.

         II. Proportionality Review

         ¶ 7 Oldright contends that the court erred in two ways. First, he argues that the court failed to consider his version of circumstances for the triggering offense that showed the crime was not grave or serious. Second, he asserts that the court erred in concluding that all of his prior convictions were "serious" by virtue of them being felonies. He argues that, as part of the abbreviated proportionality review, the court should have considered the General Assembly's reclassification of the prior offenses. We reject his first argument and agree with the court that first degree assault is a grave and serious offense. We agree with his second argument and conclude that an extended proportionality review is warranted under the circumstances of this case.

         A. Legal Principles

         ¶ 8 Whether a sentence is constitutionally disproportionate is a question of law that we review de novo. Rutter v. People, 2015 CO 71, ¶ 12. Both the United States and Colorado Constitutions prohibit cruel and unusual punishment, including grossly disproportionate prison sentences. See Ewing v. California, 538 U.S. 11, 20 (2003); Close v. People, 48 P.3d 528, 539 (Colo. 2002). To ensure sentences are not disproportionate, "a criminal defendant is entitled, upon request, to a proportionality review of his sentence under Colorado's habitual criminal statute." People v. Deroulet, 48 P.3d 520, 522 (Colo. 2002); People v. Anaya, 894 P.2d 28, 32 (Colo.App. 1994) ("A defendant is always entitled to a proportionality review when sentenced under the habitual criminal statute.").[1]

         ¶ 9 When a defendant challenges a sentence on proportionality grounds, the reviewing court must initially complete an abbreviated proportionality review. Deroulet, 48 P.3d at 524. This review "weighs the gravity and seriousness of a defendant's triggering and underlying felonies together against the 'harshness of the penalty.'" People v. Foster, 2013 COA 85, ¶ 56 (quoting Deroulet, 48 P.3d at 527); see also People v. McRae, 2016 COA 117, ¶ 22.

         ¶ 10 Our supreme court has designated certain crimes as per se grave and serious for proportionality purposes. Deroulet, 48 P.3d at 524 (identifying aggravated robbery, robbery, burglary, accessory to first degree murder, and narcotics-related offenses as per se grave and serious). Such crimes are grave or serious "by their very nature." People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). One division of this court has concluded that first degree assault is per se grave or serious, People v. Gee, 2015 COA 151, ¶ 60, and the supreme court and several other divisions of this court have concluded or implied that first degree assault is a serious offense, see People v. Mershon, 874 P.2d 1025, 1033-34 (Colo. 1994); People v. Hayes, 923 P.2d 221, 230 (Colo.App. 1995); People v. Penrod, 892 P.2d 383, 387 (Colo.App. 1994).

         ¶ 11 For other offenses, a court determines gravity or seriousness by considering the magnitude of the offense, whether the offense involved violence, whether the offense is a lesser included offense or an attempted offense, and the defendant's motive. McRae, ¶ 22 (citing People v. Cooper, 205 P.3d 475, 479 (Colo.App. 2008)). Additionally, "[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 [a] defendant's sentence is grossly disproportionate." Id. (quoting People v. Gaskins, 923 P.2d 292, 296 (Colo.App. 1996)); see also People v. Hargrove, 2013 COA 165, ¶ 20; People v. Patnode, 126 P.3d 249, 261 (Colo.App. 2005); Anaya, 894 P.2d at 32; Penrod, 892 P.2d at 388.[2]

         ¶ 12 We give a great deal of deference to legislative determinations regarding sentencing; therefore, in most cases, the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate. Deroulet, 48 P.3d at 526. However, "[a] statutory scheme cannot guarantee a sentence that is constitutionally proportionate to a particular defendant convicted of a particular crime under particular circumstances." Patnode, 126 P.3d at 261 (quoting Deroulet, 48 P.3d at 526). And "[t]he provisions of the Habitual Criminal Act create a unique possibility that a defendant will receive a . . . sentence which is not proportionate to the crime for which the defendant has been convicted." Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990).

         ¶ 13 An extended proportionality review is required when the abbreviated review gives rise to an inference of gross disproportionality. McRae, ¶ 6. An extended review involves a comparison of the sentences imposed on other criminals who commit the same crime in the same jurisdiction and a comparison of the sentences imposed for the commission of the same crime in other jurisdictions. Id.; see also Deroulet, 48 P.3d at 524.

         B. Discussion

         ¶ 14 We begin by concluding that Oldright's triggering offense, first degree assault, is a grave and serious offense because the legislature deems it a crime of violence and an extraordinary risk crime, Oldright used a deadly weapon to commit the crime, and the victim suffered serious bodily injury. Thus, we reject Oldright's argument that the circumstances of his specific offense somehow reduce the crime's severity or gravity. Absent the habitual criminal finding, this class 3 felony conviction carries a ...

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