Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 11CA225
Attorneys for Petitioner: Megan A. Ring, Public Defender
Elizabeth Porter-Merrill, Senior Deputy Public Defender
Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
William G. Kozeliski, Assistant Attorney General Denver,
Colorado
SAMOUR
JUSTICE.
¶1
In this case and the two companion cases we announce today,
Wells-Yates v. People, 2019 CO 90, ___P.3d ___, and
People v. McRae, 2019 CO 91, ___P.3d ___, we
consider issues that lie at the intersection of habitual
criminal punishment and proportionality review. Because our
decision in Wells-Yates, the lead case, contains a
detailed discussion of the law governing proportionality
review, including in the habitual criminal context, see
Wells-Yates, ¶¶ 4-28, we do not repeat it
here.
¶2
Consistent with Wells-Yates, we hold that: (1)
possession of schedule I and II controlled substances is not
per se grave or serious for purposes of an abbreviated
proportionality review; and (2) in determining the gravity or
seriousness of triggering and predicate offenses during an
abbreviated proportionality review, the court should consider
any relevant legislative amendments enacted after the dates
of those offenses, even if the amendments do not apply
retroactively.[1] See id. at ¶¶ 2, 45,
76. We additionally hold that theft is not a per se grave or
serious offense. Theft may be grave or serious, but that
determination hinges on the facts and circumstances
surrounding the particular crime committed.
¶3
Because the court of appeals reached different conclusions,
we reverse its judgment.[2] And, because factual determinations are
necessary to properly address Johnny Maurice Melton's
proportionality challenge, we remand with instructions to
return the case to the trial court for a new proportionality
review in accordance with the three opinions we issue today.
I.
Facts and Procedural History
¶4
Seeking to execute multiple outstanding arrest warrants for
Melton in October 2009, three deputies responded to his
mother's home shortly before midnight. After locating
Melton in the home, they arrested him. During an ensuing
search of his person, they recovered a metal tin containing
methamphetamine mixed with trace amounts of oxycodone,
heroin, and cocaine. Melton then asked the deputies to
retrieve a cigarette from a leather jacket on a bed. In one
of the jacket's pockets, the deputies found marijuana, as
well as methamphetamine mixed with trace amounts of ecstasy
and diazepam. A search of the jacket revealed a hypodermic
needle containing a suspected narcotic, though that substance
was never tested. The prosecution later charged Melton with
six substantive drug offenses and three habitual criminal
counts.
¶5
As relevant here, in October 2010, the jury found Melton
guilty of possession of 1 gram or less of each of three
schedule I or II controlled substances (methamphetamine,
heroin, and oxycodone). Because Melton had previously been
convicted of possession of a schedule II controlled
substance, each of the three convictions in this case was
elevated from a class 6 felony to a class 4 felony. At a
subsequent bench trial in December 2010, the court
adjudicated Melton a habitual criminal based on his prior
felony convictions for possession of methamphetamine, theft,
and second degree assault. The court then imposed a mandatory
24-year prison sentence on each of the three triggering
offenses (four times the maximum prison term in the
presumptive range), see § 18-1.3-801(2)(a)(I),
C.R.S. (2019), and ordered that the sentences be served
concurrently.
¶6
Melton challenged his sentences on proportionality grounds,
but after an abbreviated proportionality review, the trial
court found no inference of gross disproportionality. Hence,
the court determined that Melton's sentences were
constitutional under the Eighth Amendment to the U.S.
Constitution and article II, section 20 of the Colorado
Constitution.
¶7
A split division of the court of appeals affirmed
Melton's convictions and sentences, though it remanded
the case for correction of a clerical error in the mittimus.
See People v. Melton, No. 11CA0225, slip op. at 17
(Mar. 6, 2014). In his partial dissent, Judge Berger
concluded: (1) that the triggering offenses of possession of
schedule I and II controlled substances are not per se grave
or serious; and (2) that the predicate offense of theft is
not per se grave or serious. Id. at 18-30 (Berger,
J., dissenting in part). As to the former, Judge Berger
acknowledged that our court has previously designated all
narcotic offenses as inherently (or per se) grave or serious,
but asserted that "it is appropriate, indeed
essential," to reassess such designation in light of
recent legislative changes to the drug statutes and the
habitual criminal statute. Id. at 25. As to the
latter, he opined that "there are many circumstances in
which the conviction of the crime of theft cannot reasonably
be said to fall into the same category as other established
per se grave or serious offenses." Id. at 28.
¶8
Melton filed a petition for certiorari review, which we
granted in part.[3]
II.
Standard of Review
¶9
Whether a sentence is grossly disproportionate and in
violation of the Eighth Amendment to the U.S. Constitution
and article II, section 20 of the Colorado Constitution is a
question of law, not a sentencing decision requiring
deference to the trial court. People v. Mershon, 874
P.2d 1025, 1035 (Colo. 1994). Therefore, our review is de
novo. Rutter v. People, 2015 CO 71, ¶ 12, 363
P.3d 183, 187.
III.
Analysis
¶10
Melton maintains that the division erred because, like the
trial court, it: (1) considered his triggering offenses of
possession of schedule I and II controlled substances to be
per se grave or serious; (2) failed to consider relevant
legislative amendments enacted after the dates of the
triggering and predicate offenses; (3) concluded that his
predicate offense of theft is per se grave or serious; and
(4) failed to apprehend that his sentences are
unconstitutionally disproportionate in violation of the
Eighth Amendment and article II, section 20. We consider each
contention in turn, though not in this order.
A.
Is the Possession of Schedule I and II Controlled Substances
Per Se Grave or Serious?
¶11
Melton contends that possession of schedule I and II
controlled substances is not per se grave or serious. We
agree. Based on our decision in Wells-Yates, we hold
that possession of schedule I and II controlled substances is
not per se grave or serious. See Wells-Yates, ΒΆ
2. Because the division treated ...