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Wells-Yates v. People

Supreme Court of Colorado, En Banc

November 4, 2019

Belinda May Wells-Yates, Petitioner
v.
The People of the State of Colorado, Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA1216

          Attorneys for Petitioner: Megan A. Ring, Public Defender Dayna Vise, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General Michael D. McMaster, Senior Assistant Attorney General Denver, Colorado

          SAMOUR JUSTICE.

         ¶1 Our General Assembly long ago adopted the Habitual Criminal Act for the purpose of punishing more severely "those individuals who show a propensity toward repeated criminal conduct." People v. Dist. Ct., 711 P.2d 666, 670 (Colo. 1985). But the legislature's authority to prescribe harsher punishment for habitual criminals is not without constitutional contours. It is limited by the principle of proportionality that is embedded in the constitutional prohibition against the infliction of cruel and unusual punishment. Very generally, proportionality is a foundational "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U.S. 349, 367 (1910). Simply put, the concept of proportionality dictates that the punishment should fit the crime.

         ¶2 In this case and the two companion cases we announce today, Melton v. People, 2019 CO 89, ___P.3d ___, and People v. McRae, 2019 CO 91, ___P.3d ___, we consider multiple issues that lie at the intersection of proportionality review and habitual criminal punishment. We hold that: (1) during an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate;[1] (2) in determining the gravity or seriousness of the triggering offense and the predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively; (3) not all narcotic offenses are per se grave or serious; and (4) the narcotic offenses of possession and possession with intent are not per se grave or serious. Because the court of appeals' decision is at odds with the conclusions we reach today, we reverse its judgment.[2] Accordingly, we remand with instructions to return the case to the trial court for further proceedings consistent with this opinion.

         ¶3 In order to place this appeal in context, we begin with a primer on proportionality review and a synopsis of habitual criminal punishment (focusing on proportionality review of a habitual criminal sentence). In the process, we endeavor to shed light on these areas of the law and to correct a few misstatements that appear in our caselaw. After setting forth the pertinent legal principles, we discuss the factual and procedural history of this case and identify the controlling standard of review. We then proceed to analyze the issues before us.

         I. Proportionality Review

         ¶4 The concept of proportionality is rooted in both the U.S. and Colorado Constitutions. Therefore, our discussion is informed by both federal and Colorado law. We examine each in turn.

         A. Federal Authority

         ¶5 The Eighth Amendment to the U.S. Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. In Solem v. Helm, 463 U.S. 277, 284 (1983), the Supreme Court construed the last clause in this amendment as prohibiting "not only barbaric punishments, but also sentences that are disproportionate to the crime committed." However, the Court has since narrowed the guarantee of proportionality: "The Eighth Amendment does not require strict proportionality between crime and sentence"; instead, "it forbids only extreme sentences that are 'grossly disproportionate' to the crime" Harmelin v Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J, concurring) (quoting Solem, 463 U.S. at 288).[3] It is "exceedingly rare" for a sentence to be deemed so extreme that it is grossly disproportionate to the crime. Id.

         ¶6 Harmelin distilled the following four principles from the Supreme Court's proportionality jurisprudence:

• "[T]he fixing of prison terms . . . involves a substantive penological judgment" that belongs to the legislature and should be given substantial deference by reviewing courts.
• There are a number of legitimate penological schemes based on concerns related to "retribution, deterrence, incapacitation, and rehabilitation," and the Eighth Amendment does not require the adoption of any particular scheme.
• Significant differences in sentencing philosophies and in the length of prescribed prison terms are inevitable; even assuming consistency in philosophies, "differing attitudes and perceptions of local conditions" may lead to different, though rational, determinations related to sentencing.
• Proportionality review should be guided "by objective factors to the maximum possible extent"; the relative absence of objective factors to differentiate between sentences has meant that succeeding on a proportionality challenge is an infrequent occurrence.

Id. at 998-1001 (internal quotation marks omitted). These principles are what led Harmelin to cabin the holding in Solem as barring only extreme sentences that are grossly disproportionate. See id. at 1001.

         ¶7 But how does a court ascertain whether a sentence is grossly disproportionate and therefore unconstitutional under the Eighth Amendment? In Solem, the Court adopted an objective, two-step approach for undertaking a proportionality review.[4] 463 U.S. at 290-91. Step one includes two subparts: The trial court should consider (1) the gravity or seriousness of the offense and (2) the harshness of the penalty. Id. In step two, the trial court may compare the challenged sentence to sentences for other crimes in the same jurisdiction and sentences for the same crime in other jurisdictions. Id. at 291-92. Harmelin clarified that this is not a wooden test requiring consideration of step two in every case. 501 U.S. at 1004. Instead, step two's comparative analysis within and between jurisdictions is appropriate "only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 1005. Viewed through the prism of Harmelin, then, the purpose of any comparative analysis of sentences in step two "is to validate an initial judgment" in step one "that a sentence is grossly disproportionate to a crime." Id.

         ¶8 Thus, under Solem, as construed in Harmelin, when a defendant makes a timely request for a proportionality review, the court must compare the gravity or seriousness of the offense to the harshness of the penalty (step one). If that analysis gives rise to an inference of gross disproportionality, the court must proceed to step two and conduct intrajurisdictional and interjurisdictional comparisons. But if the analysis in step one does not give rise to an inference of gross disproportionality, the proportionality challenge fails and the sentence must be upheld.

         ¶9 A dozen years after Harmelin, the Supreme Court revisited the Eighth Amendment's narrow proportionality principle in Ewing v. California, 538 U.S. 11 (2003). Unfortunately, the Court remained fractured.[5] But the three-justice plurality opinion in Ewing did not alter the analytical framework ushered in by the rule of Harmelin. To the contrary, it expressly acknowledged that "[t]he proportionality principles . . . distilled in Justice Kennedy's concurrence [in Harmelin] guide[d] [its] application of the Eighth Amendment" to Ewing's recidivist sentence. Id. at 23-24. Thus, in rejecting Ewing's claim that his three-strikes sentence was unconstitutionally disproportionate to his offense of felony grand theft, the plurality followed Harmelin and "address[ed] the gravity of the offense compared to the harshness of the penalty." Id. at 28.

         B. Colorado Law

         ¶10 Article II, section 20 of the Colorado Constitution is identical to the Eighth Amendment. Colo. Const. art. II, § 20. As such, we have generally embraced the Supreme Court's approach to proportionality challenges. See Close v. People, 48 P.3d 528, 538 (Colo. 2002). However, our analysis does not mirror the Supreme Court's. We explore the differences next, starting with step one, which in Colorado legal parlance has become known as an "abbreviated proportionality review," followed by step two, which in Colorado legal parlance has become known as an "extended proportionality review."

         1. Abbreviated Proportionality Review (Step One)

         ¶11 In line with Supreme Court precedent, at step one, Colorado courts consider the gravity or seriousness of the offense and the harshness of the penalty. But our precedent has carved out two additional principles with respect to this initial step. One of them pertains to the gravity or seriousness of the offense (the first subpart of step one), while the other relates to the harshness of the penalty (the second subpart of step one). We discuss each before moving on to step two.

         a. Gravity or Seriousness of the Offense

         ¶12 We acknowledged in People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992), that the determination regarding the gravity or seriousness of the offense is "somewhat imprecise," notwithstanding the guidance provided in Solem. The Court in Solem explained that trial courts should consider "the harm caused or threatened to the victim or society," as well as "the culpability of the offender." 463 U.S. at 292. It then listed factors that are pertinent to the inquiry. In terms of the harm to the victim or society, it instructed courts to focus on: "[t]he absolute magnitude of the crime" (theft of a large amount will usually be more serious than theft of a small amount when all other circumstances are equal); whether the crime is a lesser-included offense or the greater-inclusive offense; whether the crime involves a completed act or an attempt to commit an act; and whether the defendant was a principal or an accessory after the fact in the criminal episode. Id. at 293. As it relates to the defendant's culpability, it observed that motive is relevant, as is whether the defendant's acts were negligent, reckless, knowing, intentional, or malicious. Id. at 293-94. Of course, the Court cautioned that these are not exhaustive lists; they merely illustrate "that there are generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes." Id. at 294.

         ¶13 While we have generally adhered to Solem's teachings in discerning whether a crime is grave or serious, we mentioned in Close, 48 P.3d at 538, and People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002), that Gaskins allows a shortcut in some situations that bypasses Solem's analysis. In both cases, we read Gaskins as establishing that the following crimes had already been declared inherently (or per se) grave or serious for proportionality purposes in Colorado: aggravated robbery, robbery, burglary, accessory to first degree murder, and narcotics-related crimes. Deroulet, 48 P.3d at 524; see also Close, 48 P.3d at 538 (adding three offenses to Deroulet's list of inherently dangerous crimes: felony menacing, attempted burglary, and conspiracy to commit burglary).[6] For these crimes, we explained, a trial court may skip the first subpart of step one-the determination regarding the gravity or seriousness of the crimes-and "proceed directly to the second sub-part" of that step-the assessment related to the harshness of the penalty. Close, 48 P.3d at 538; accord Deroulet, 48 P.3d at 524.

         b. Harshness of the Penalty

         ¶14 Our treatment of the harshness of the penalty (the second subpart of step one) is somewhat unique in that we explicitly consider parole eligibility. People v. Drake, 785 P.2d 1257, 1275 (Colo. 1990), abrogated on other grounds as recognized by People v. Chavez-Barragan, 2016 CO 66, ¶¶ 33-34, 379 P.3d 330, 338; see also People v. Hernandez, 686 P.2d 1325, 1330 n.4 (Colo. 1984) (inferring that the decision in Solem must have been driven in part by the fact that "the provision in the South Dakota statute" at issue there "denie[d] habitual criminals the possibility of parole"). We have expressly concluded that whether a sentence is parole eligible is relevant during an abbreviated proportionality review because parole can reduce the actual period of confinement and render the penalty less harsh. See Drake, 785 P.2d at 1275.

         2. Extended Proportionality Review (Step Two)

         ¶15 Consistent with Harmelin's reading of Solem, we have established that, while reviewing courts must complete an abbreviated proportionality review (step one) whenever a defendant challenges his sentence on proportionality grounds, it is not appropriate for them to conduct an extended proportionality review (step two) unless the abbreviated proportionality review gives rise to an inference of gross disproportionality. See Harmelin, 501 U.S. at 1004; Deroulet, 48 P.3d at 524. In the rare situation in which the analysis advances to step two, however, our cases are not in complete harmony with Solem and Harmelin. The difference, though, is not intentional. It is the result of some confusion our caselaw has inadvertently created regarding intrajurisdictional comparisons, one of the two categories of comparisons prescribed in Solem and discussed in Harmelin.

         ¶16 Close incorrectly described intrajurisdictional comparisons as involving "the sentences imposed on other criminals who commit the same crime in the same jurisdiction." 48 P.3d at 534 (emphasis added). Deroulet did the same. 48 P.3d at 524 (referring to "a comparison of the sentences imposed on other criminals who commit the same crime in the same jurisdiction" (emphasis added)). And divisions of the court of appeals have consistently followed suit. See, e.g., People v. Hargrove, 2013 COA 165, ¶ 13, 338 P.3d 413, 417 (same). But the Court in Solem had something else in mind. It was not concerned with sentences imposed on other criminals in the jurisdiction for the same crime. Rather, it directed courts to compare the challenged sentence to sentences for other crimes in the same jurisdiction. It explained that, "[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive." Solem, 463 U.S. at 291 (emphasis added). Harmelin confirmed this-it referred to a "comparative analysis" of "sentences imposed for other crimes" in the same jurisdiction. 501 U.S. at 1004 (emphasis added). Thus, the intrajurisdictional comparisons Solem envisioned were to sentences for other crimes.

         ¶17 We now clarify that, in conformity with federal precedent, Colorado courts conducting an extended proportionality review should compare the sentence at issue to (1) sentences for other crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. To the extent our prior cases have provided contrary instructions, they have done so incorrectly.

         3. Summary of Colorado Law on Proportionality Review

         ¶18 As a recap of Colorado law on proportionality review, we hope that the following flowchart can assist in understanding this relatively complex analysis:

         PROPORTIONALITY REVIEW

         (Image Omitted)

         II. Habitual Criminal Punishment

         A. General Principles

         ¶19 Section 18-1.3-801, C.R.S. (2019), governs habitual criminal punishment in Colorado. As pertinent here, when a defendant is convicted of a felony (a triggering offense), he may be adjudicated a habitual criminal if he "has been three times previously convicted . . . of a felony" based on charges separately brought and tried that arose out of separate and distinct criminal episodes (predicate offenses). § 18-1.3-801(2)(a)(I). A defendant adjudicated a habitual criminal based on three or more predicate offenses must be punished for the triggering offense "by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range . . . for the class or level of felony" of the triggering offense. § 18-1.3-801(2)(a)(I)(A). However, as we discuss later in the Analysis section, there is a provision in section 18-1.3-801 that shields certain drug felonies from habitual criminal punishment. See § 18-1.3-801(2)(b).[7]

         B. Proportionality Review of a Habitual Criminal Sentence

         ¶20 We have cautioned that "the Habitual Criminal Act create[s] a unique possibility" that a defendant will receive a sentence that "is not proportionate to the crime for which [he] has been convicted." Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990). The concern lies in the "formulaic and formalistic nature" of the habitual criminal statute. Deroulet, 48 P.3d at 526. By increasing a defendant's punishment based on mandatory provisions, the habitual criminal statute "strip[s] the sentencing court of any discretion in sentencing." Close, 48 P.3d at 540. Indeed, the only discretion exercised in the imposition of a habitual criminal sentence is by the prosecution when it decides whether to seek to adjudicate the defendant a habitual criminal. See id.

         ¶21 Nevertheless, we have emphasized "that in most instances the General Assembly's determinations regarding the sentencing of habitual criminals will result in constitutionally proportionate sentences." Deroulet, 48 P.3d at 526. Hence, we have predicted that in habitual criminal cases, as in other cases raising Eighth Amendment challenges, an abbreviated proportionality review will almost always yield a finding that the sentence is not unconstitutionally disproportionate, thereby protecting "the primacy of the General Assembly in crafting sentencing schemes." Id. It follows that an extended proportionality review is just as rare in this context as it is when the sentence is not based on the defendant's status as a habitual criminal.

         ¶22 This begs the question of how to properly apply Harmelin in the context of a habitual criminal sentence. In Ewing, the plurality used Harmelin as a guidepost, but explained that in weighing gravity or seriousness, it had to "place on the scales not only [Ewing's] current felony, but also his long history of felony recidivism." 538 U.S. at 29. Ewing's plurality worried that any other approach would fail to accord proper deference to the legislature's policy judgments in its choice of sanctions for repeat offenders. Id. (pointing out that the State's interest in enacting the three-strikes law was not in simply punishing the offense of conviction; it was also "in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law" (quoting Rummel v. Estelle, 445 U.S. 263, 276 (1980))). The plurality reasoned that any proportionality review of Ewing's sentence needed to consider this legitimate penological goal. Id. In holding that Ewing's sentence, though harsh, was constitutional, the plurality concluded that "Ewing's [was] not 'the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.'" Id. at 30 (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in the judgment)).

         ¶23 Concordant with the plurality opinion in Ewing, in Colorado, when the proportionality of a habitual criminal sentence is challenged, the grave or serious inquiry includes consideration of the defendant's history of felony recidivism. The two subparts in step one entail an analysis of: (1) the gravity or seriousness of all the offenses in question-the triggering offense and the predicate offenses; and (2) the harshness of the sentence imposed on the triggering offense. See Rutter v. People, 2015 CO 71, ¶ 18, 363 P.3d 183, 188. The court must scrutinize the triggering offense and the predicate offenses and determine whether in combination they are so lacking in gravity or seriousness so as to suggest that the sentence is unconstitutionally disproportionate to the crime, taking into account the defendant's eligibility for parole. Id.

         ¶24 If there are multiple triggering offenses, the reviewing court must look at the sentence imposed for each such offense and engage in a proportionality review of that sentence because each sentence represents a separate punishment for a distinct and separate crime. See Close, 48 P.3d at 538-39.[8] As to each sentence, the inquiry is whether the corresponding triggering offense and the predicate offenses, considered together, are so lacking in gravity or seriousness as to suggest that the sentence is grossly disproportionate. Id. at 540. If the proportionality review assessed instead the cumulative effect of the sentences imposed on all the triggering offenses, it could result in an inference of gross disproportionality merely because the defendant committed multiple crimes.

         ¶25 We note that our proportionality cases appear to have muddied the waters a bit in the habitual criminal context as well. We pause to clarify them.

         ¶26 In Gaskins, we said that "[t]he rule to be gleaned" from our earlier cases is "that only an abbreviated review is necessary when the crimes supporting a habitual criminal sentence include grave or serious offenses and when the defendant will become eligible for parole." 825 P.2d at 36. We repeated this comment in Close and Deroulet, adding that it was supported by Gaskins's adoption of the "rule of Harmelin." Close, 48 P.3d at 537; Deroulet, 48 P.3d at 524; see also Rutter, ¶ 18, 363 P.3d at 188 ("[A]n abbreviated proportionality review is s ufficient when the crimes supporting a sentence imposed under the habitual criminal statute include grave or serious offenses."). But this view is problematic for five reasons: (1) it improperly implies that the harshness of the penalty can be disregarded; (2) it suggests that the outcome of an abbreviated proportionality review under these circumstances will always be a finding of no inference of gross disproportionality; (3) it finds no support in Harmelin, Ewing, or any other Supreme Court case; (4) it fails to indicate whether it refers to triggering offenses, predicate offenses, or both; and (5) it does not specify how many of the offenses involved must be grave or serious.

         ¶27 We take this opportunity to make clear that even when the triggering offenses and/or the predicate offenses supporting a habitual criminal sentence include grave or serious crimes and the defendant is parole eligible, a court conducting a proportionality review must follow the analytical framework we set forth in this opinion. Thus, it would be improper for a court to skip the second subpart of an abbreviated proportionality review and neglect to consider the harshness ...


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