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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
OPINION
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 Meltons
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
mothers 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 jackets 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
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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 Meltons 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 Meltons
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). ...