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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.

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[Copyrighted Material Omitted]

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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 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:

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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 ...

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