Melton v. People

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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 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

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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 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). ...