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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, 451 P.3d 415, 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 McRaes 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:
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• 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 ...