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People v. McRae

Supreme Court of Colorado, En Banc

November 4, 2019

The People of the State of Colorado, Petitioner
v.
Clifton Eugene McRae. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA545.

          Attorneys for Petitioner Dave Young, District Attorney, Seventeenth Judicial District Michael Whitney, Deputy District Attorney Brighton, Colorado.

          Attorneys for Respondent: Law Office of April M. Elliott, P.C. April M. Elliott 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 Melton v. People, 2019 CO 89, __ 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, 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. ¶¶ 2, 45, 76. Although the court of appeals reached a similar conclusion, it erred in failing to recognize that, rather than consider relevant prospective legislative amendments enacted after the dates of the triggering and predicate offenses, the trial court actually applied those amendments retroactively. We therefore reverse the court of appeals' judgment.[2] Further, because additional factual determinations are necessary to properly address Clifton Eugene McRae'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

         ¶3 On July 2, 2013, McRae sold 6.86 grams of methamphetamine, a schedule II controlled substance, for $350 to his girlfriend, who was working as a confidential informant. The prosecution later brought six drug-related charges against McRae, only two of which arose from the July 2, 2013 transaction, and six habitual criminal charges. In August 2014, the jury found McRae guilty of selling or distributing a schedule II controlled substance, a class 3 felony, and possessing drug paraphernalia, a petty offense, in connection with the July 2, 2013 transaction. The jury could not reach a verdict on the four remaining counts and those counts were eventually dismissed. During a subsequent bench trial, the court adjudicated McRae a habitual criminal based on six predicate offenses:

• a class 5 felony for possession with intent to sell or distribute a schedule IV controlled substance in 2000;
• a class 5 felony for attempted theft (between $500 and $15, 000) in 2001;
• a class 4 felony for possession of a schedule II controlled substance in 2001;
• another class 4 felony for possession of a schedule II controlled substance in 2001;
• a class 3 felony for possession with intent to sell or distribute 25-450 grams of a schedule II controlled substance in 2001; and
• a class 4 felony for possession of a schedule II controlled substance in 2006.

         ¶4 Before sentencing, McRae advanced a preemptive proportionality challenge, arguing that the 64-year habitual criminal sentence required by law for the triggering offense of selling or distributing a schedule II controlled substance was grossly disproportionate. The trial court conducted a combined hearing during which it addressed the proportionality challenge before proceeding to sentence McRae.[3]

         ¶5 As part of his proportionality challenge, McRae urged the trial court to consider legislative amendments related to the classification of and punishment for his triggering and predicate offenses, even though the amendments had become effective after the dates of those offenses and had no retroactive application. The trial court agreed that the legislative amendments were relevant. It then focused on the amendments affecting the triggering offense. More specifically, it explained that the sale or distribution of a schedule II controlled substance is no longer an extraordinary risk class 3 felony, which has a presumptive prison term of 4 to 16 years. Rather, noted the court, effective October 1, 2013, approximately three months after McRae's triggering offense, the legislature reclassified that offense as a level 3 drug felony, which is not considered an extraordinary risk crime and which has a presumptive prison ...


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