County District Court No. 15CR1403 Honorable Lin Billings
Cynthia H. Coffman, Attorney General, Brian M. Lanni,
Assistant Attorney General, Denver, Colorado, for
M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for
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.
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
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.
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.").
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
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
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.
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 ...