County District Court No. 14CR59 Honorable Philip J. McNulty,
Cynthia H. Coffman, Attorney General, William G. Kozeliski,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Ned R.
Jaeckle, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Colleen Marie Loris, appeals her thirty-two-year
sentence under the habitual criminal statute. We first
conclude that her thirty-two-year sentence for possession
with intent to distribute does not raise an inference of
2 We further conclude that the district court was required to
apply the habitual criminal sentence multiplier to
defendant's level 2 drug felony. Analyzing the sentencing
scheme as a whole, the legislature has evinced an
unmistakable intent to multiply the maximum of the
presumptive range for certain drug felonies by four times in
cases where the defendant has three or more prior felonies.
3 We affirm the sentence.
4 In July 2014, defendant sold methamphetamine to three
individuals. As part of the deal, she agreed to accept a
handgun for the drugs. The parties gathered in a hotel room,
where the sale took place. Defendant had approximately two
ounces of methamphetamine with her. After the parties had
been drinking and smoking methamphetamine, defendant handled
the gun and it went off. The bullet struck the victim in the
head, killing him.
5 The People charged defendant with second degree murder,
possession with intent to distribute a controlled substance,
possession of a weapon by a previous offender, and four
habitual criminal counts.
6 Defendant pled guilty to possession with intent to
distribute a controlled substance, manslaughter, and four
habitual criminal counts. The four habitual criminal counts
were based on prior state convictions for possession of a
controlled substance (a class 4 felony), forgery (a class 5
felony), and possession of methamphetamine (a class 6
felony), as well as a prior federal conviction for conspiracy
to distribute a controlled substance.
7 Applying the habitual criminal sentence multiplier, the
district court sentenced defendant to concurrent sentences of
thirty-two years for possession with intent to distribute and
twenty-four years for manslaughter.
8 Defendant appeals her sentence, arguing for the first time
that it is grossly disproportionate in violation of the
Eighth Amendment and that the district court lacked authority
to sentence her under the habitual criminal statute.
9 Defendant contends that her thirty-two-year sentence raises
an inference of gross disproportionality and therefore
requires a remand for an extended proportionality review. We
10 The Eighth Amendment prohibits grossly disproportionate
sentences. People v. Deroulet, 48 P.3d 520, 524
(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." Id. at 522.
"[A]n appellate court is as well positioned as a trial
court to conduct a proportionality review [in cases where] .
. . a refined analysis requiring inquiry into specific facts
not available on the appellate record [is] unnecessary."
People v. Hargrove, 2013 COA 165, ¶ 15 (quoting
People v. Gaskins, 825 P.2d 30, 38 (Colo. 1992)).
11 When a defendant challenges a sentence as grossly
disproportionate, the reviewing court must initially conduct
an abbreviated proportionality review. See Close v.
People, 48 P.3d 528, 532 (Colo. 2002). This review
weighs "the gravity or seriousness of the triggering
crime together with the gravity or seriousness of the
underlying crimes" against "the harshness of the
penalty." Deroulet, 48 P.3d at 525, 527.
Specifically, the court must scrutinize whether, in
combination, the offenses are so lacking in gravity or
seriousness as to suggest the sentence is grossly
disproportionate. Id. at 524-25.
12 For purposes of an abbreviated proportionality review,
certain crimes are considered per se grave or serious, while
others may be grave or serious depending on their particular
facts and circumstances. Hargrove, ¶ 12. For
offenses that are not per se grave or serious, we
"compare the offenses in light of the harm caused or
threatened to the victim or society." People v.
Mershon, 874 P.2d 1025, 1032 (Colo. 1994). Relevant
factors include 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." People v. Oldright,
2017 COA 91, ¶ 11.
13 As part of an abbreviated proportionality review, a court
should also consider the General Assembly's current
evaluation of the seriousness of the offense at issue,
including any relevant amendments to criminal sentencing
statutes. Id.; see People v. ...