v. People , 2019 CO 89 ( 2019 )

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ADVANCE SHEET HEADNOTE
November 4, 2019
2019 CO 89No. 14SC282, Melton v. People—Proportionality Review—Per Se Grave or
Serious Crimes—Habitual Criminal Punishment.
In this case and two companion cases, the supreme court considers multiple
issues that lie at the intersection of proportionality review and habitual criminal
punishment. Consistent with Wells-Yates v. People, the lead case, the court holds
that: (1) possession of schedule I and II controlled substances is not per se grave or
serious; and (2) in determining the gravity or seriousness of the 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. Additionally, the
court holds that theft is not a per se grave or serious offense.
Because the court of appeals reached different conclusions, its judgment is
reversed. And, because additional factual determinations are necessary to
properly address the defendant’s proportionality challenge, the case is remanded
with instructions to return it to the trial court for a new proportionality review in
accordance with the three opinions announced today.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 89Supreme Court Case No. 14SC282
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 11CA225
Petitioner:
Johnny Maurice Melton,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
November 4, 2019
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
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE BOATRIGHT concurs in the judgment.
CHIEF JUSTICE COATS dissents.
¶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.
1 In this opinion, we refer to the felony convictions for which a defendant was
sentenced as “triggering offenses,” and to the prior felony convictions on which a
defendant’s habitual criminal adjudication was based as “predicate offenses.”
2
¶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 substantive drug offenses and three habitual criminal counts.
2 In fairness to our learned colleagues on the court of appeals, today we clarify the
law related to the issues on review.
3
¶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
4
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
3 We granted certiorari to review the following four issues:
1. Whether a drug possession conviction constitutes a grave or
serious offense.
2. Whether a court, when conducting an abbreviated proportionality
review of a habitual criminal sentence, can consider the General
Assembly’s subsequent reclassification of a crime and/or
amendment of the habitual criminal statute that made an
underlying crime inapplicable for purposes of a habitual criminal
adjudication.
3. Whether a twenty-four year sentence is cruel and unusual
punishment for a drug possession conviction enhanced under the
habitual criminal statute where, based upon revisions to the drug
statutes and habitual criminal statute, the defendant would not be
5
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).
Therefore, our review is de novo. Rutter v. People, 2015 CO 71, ¶ 12, 363 P.3d 183,
187.
III. Analysis
¶10 Melton maintains that the division erred because, like the trial court, it:
(1) considered his triggering offenses of possession of schedule I and II controlled
substances to be per se grave or serious; (2) failed to consider relevant legislative
amendments enacted after the dates of the triggering and predicate offenses;
(3) concluded that his predicate offense of theft is per se grave or serious; and
(4) failed to apprehend that his sentences are unconstitutionally disproportionate
in violation of the Eighth Amendment and article II, section 20. We consider each
contention in turn, though not in this order.
eligible for habitual sentencing and would receive a two-year
maximum sentence.
4. Whether a theft conviction constitutes a grave or serious offense.
6
A. Is the Possession of Schedule I and II Controlled
Substances Per Se Grave or Serious?
¶11 Melton contends that possession of schedule I and II controlled substances
is not per se grave or serious. We agree. Based on our decision in Wells-Yates, we
hold that possession of schedule I and II controlled substances is not per se grave
or serious. See Wells-Yates, ¶ 2. Because the division treated such possession as
per se grave or serious, it erred. Therefore, we reverse its judgment.
B. Should Relevant Statutory Amendments Enacted After
the Dates of the Triggering and Predicate Offenses Be
Considered During an Abbreviated Proportionality
Review?
¶12 Melton asserts that during an abbreviated proportionality review the court
should consider relevant legislative amendments enacted after the dates of the
triggering and predicate offenses. We agree.
¶13 In Wells-Yates, we conclude as follows:
In determining the gravity or seriousness of the offense during an
abbreviated proportionality review, the trial court should consider
relevant legislative amendments enacted after the date of the offense,
even if the amendments do not apply retroactively. Further, when
undertaking this analysis with respect to a habitual criminal sentence,
the court should consider any relevant legislative amendments
related to the triggering offense and predicate offenses.
That one or more of the offenses involved may previously have been
designated per se grave or serious does not alter these conclusions.
Id. at ¶¶ 45–46. We reach the same determinations here.
7
¶14 The legislative amendments to the drug laws and the habitual criminal
statute on which Melton relies relate to the classification of and punishment for
the possession of schedule I and II controlled substances—i.e., all three of his
triggering offenses and one of his predicate offenses.4 In line with Wells-Yates, we
conclude that the division should have considered these statutory amendments.
Id. at ¶¶ 41–47.
¶15 Similarly, the division should have factored in the legislative amendments
to the theft statute. At the time of Melton’s predicate offense of theft, the crime of
theft was classified as a class 4 felony if the value of the thing taken was between
$500 and $15,000. See § 18-4-401(2)(c), C.R.S. (1997). Today, theft of anything
valued at $750 or more but less than $2,000 is a class 1 misdemeanor. See
§ 18-4-401(2)(e), C.R.S. (2019). Although the value of the thing taken during
4 The recent legislative amendments we discuss in some detail in Wells-Yates
regarding the possession of a schedule II controlled substance, see id. at ¶¶ 41–44,
apply with equal force to the possession of the schedule I and II controlled
substances involved in this case. We add that in 2010, the General Assembly
deleted the provision under which Melton’s three convictions for the possession
of schedule I and II controlled substances were elevated from class 6 felonies to
class 4 felonies based on his prior possession conviction. See Ch. 259, sec. 3,
§ 18-18-405(2.3)(a)(II), 2010 Colo. Sess. Laws 1162, 1164. As we mention in
Wells-Yates, the legislature subsequently reclassified the offense of class 6 felony
possession of a schedule I or II controlled substance to a level 4 drug felony; a level
4 drug felony is subject to a presumptive term of imprisonment of 6 to 12 months,
which is less severe than the presumptive term of imprisonment of 12 to 18 months
applicable to a class 6 felony. See Wells-Yates, ¶ 42 (relying on
section 18-1.3-401(1)(a)(V)(A), C.R.S. (2019)).
8
Melton’s predicate offense is not clear from the record, there appears to be no
dispute that it was $750 or more but less than $2,000. As such, it could no longer
subject Melton to imprisonment in the department of corrections, much less serve
as a predicate offense in support of a habitual criminal sentence. While such a
change in the law is not dispositive of whether Melton’s predicate offense of theft
is grave or serious, it is relevant to the analysis.
¶16 Because the division failed to take into account the relevant legislative
amendments, it erred. We therefore reverse its judgment.
C. Is Theft a Per Se Grave or Serious Offense?
¶17 Melton argues that theft is not a per se grave or serious offense. We agree.
¶18 At the outset, we recognize that there appears to be support in the caselaw
for both sides of this coin. Compare Mershon, 874 P.2d at 1032 (“[T]heft has been
treated as a serious felony for proportionality purposes when it is one of a variety
of prior offenses.”), and Alvarez v. People, 797 P.2d 37, 42 (Colo. 1990) (“The gravity
of [aggravated robbery, theft, and conspiracy to commit aggravated robbery and
theft] justified the sentence imposed upon the defendant.”), with Mershon, 874 P.2d
at 1032 (“The crime of theft is of a lesser degree of gravity than crimes involving
the sale of narcotic drugs.”), and People v. Gaskins, 825 P.2d 30, 39 (Colo. 1992)
(“None of the underlying crimes [including theft] are intrinsically so grave or
serious.”), and People v. McNally, 143 P.3d 1062, 1064 (Colo. App. 2005) (describing
9
theft as a “nonserious property crime”). But we have never addressed the question
squarely. We do so now. For three reasons, we rule that theft is not a per se grave
or serious offense.
¶19 First, the recent legislative amendments impacting theft offenses militate
against a blanket rule rendering all such offenses per se grave or serious. For
example, as mentioned, the General Assembly treats theft of something valued at
$750 or more but less than $2,000 as markedly less grave or serious today than it
has in the past. This statutory adjustment and others like it constitute the best
evidence of the views held by our maturing society, as expressed through its
representatives in the legislature. The Supreme Court has reasoned that whether
a sentence contravenes the Eighth Amendment requires courts to “look beyond
historical conceptions to ‘the evolving standards of decency that mark the progress
of a maturing society.’” Graham v. Florida, 560 U.S. 48, 58 (2010) (quoting Estelle v.
Gamble, 429 U.S. 97, 102 (1976)). And the “clearest and most reliable objective
evidence” of these evolving standards “is the legislation enacted by the country’s
legislatures.” Atkins v. Virginia, 536 U.S. 304, 312 (2002) (quoting Penry v. Lynaugh,
492 U.S. 302, 331 (1989)); see also Stanford v. Kentucky, 492 U.S. 361, 370 (1989)
(“‘[F]irst’ among the ‘objective indicia that reflect the public attitude toward a
given sanction’ are statutes passed by society’s elected representatives.” (quoting
10
McCleskey v. Kemp, 481 U.S. 279, 300 (1987))), abrogated on other grounds by Roper v.
Simmons, 543 U.S. 551 (2005).
¶20 Relatedly, the legislature does not treat all theft felonies equally. Someone
convicted of theft with respect to something worth $1,000,000 or more faces a class
2 felony conviction with a presumptive prison term of 8 to 24 years. See
§ 18-4-401(2)(j). On the other hand, someone convicted of theft with respect to
something worth $50 or more but less than $300 faces a class 3 misdemeanor
conviction with a minimum presumptive penalty of a $50 fine and a maximum
presumptive penalty of 6 months in jail, a $750 fine, or both. See § 18-4-401(2)(c);
§ 18-1.3-501(1)(a), C.R.S. (2019). Given this ocean of difference, we are disinclined
to label all theft offenses per se grave or serious. See Wells-Yates, ¶ 63.
¶21 Second, delineating certain crimes as per se grave or serious has no basis in
Supreme Court jurisprudence and is unique to Colorado law. See id. at ¶ 61.
Therefore, the label should be used judiciously and deliberately.
¶22 Third, designating a crime per se grave or serious has significant
consequences and should be done cautiously. Id. at ¶ 62. Indeed, doing so
“renders a sentence nearly impervious to attack on proportionality grounds.” Id.
(quoting Close v. People, 48 P.3d 528, 538 (Colo. 2002)). These consequences are
exacerbated in the habitual criminal context, where the trial court lacks any
discretion at the sentencing hearing—it is required to impose the legislatively
11
mandated sentence. Id. The substantial ramifications of designating a crime per
se grave or serious compel us in Wells-Yates to articulate the following standard:
[W]e now conclude that the designation of per se grave or serious for
purposes of a proportionality review must be reserved for those rare
crimes which, based on their statutory elements, necessarily involve
grave or serious conduct. Put differently, a crime should not be
designated per se grave or serious unless the court concludes that the
crime would be grave or serious in every potential factual scenario.
Using the designation otherwise is fraught with peril.
Id. at ¶ 63. We adhere to this analytical framework here.
¶23 Unlike aggravated robbery, robbery, burglary, accessory to first degree
murder and the sale or distribution of narcotics—which we treat as per se grave
or serious—theft is not one of those crimes that we can predict with any degree of
confidence will always be grave or serious. Stated differently, based on its
statutory elements, theft does not necessarily include grave or serious conduct. See
id. at ¶ 71 (reaching a similar conclusion with respect to possession with intent to
sell, distribute, manufacture, or dispense narcotics); see also Solem v. Helm, 463 U.S.
277, 293 (1983) (noting that theft of a large amount will usually be more serious
than theft of a small amount when all other circumstances are equal; thus,
“[s]tealing a million dollars is viewed as more serious than stealing a hundred
dollars”).
¶24 As Judge Berger wisely observed in his partial dissent, there are many
circumstances in which theft cannot reasonably be said to belong in the same
12
category as the crimes that are considered per se grave or serious. See Melton, slip
op. at 28 (Berger, J., dissenting in part). Knowingly obtaining, retaining, or
exercising control, through threats, over something worth $1,000,000 owned or
possessed by another, with the intent to deprive the other person permanently of
the use or benefit of it, belongs in the same category as per se grave or serious
crimes. But knowingly obtaining, retaining, or exercising control over something
worth $100 owned or possessed by another, without that person’s authorization
and with the intent to deprive the other person permanently of the use or benefit
of it, does not. Although both factual scenarios constitute the crime of theft, they
are not both grave or serious for purposes of proportionality analysis.
¶25 Thus, we conclude that theft may be grave or serious. However, whether it
is must be an individualized determination premised on the facts and
circumstances surrounding the particular crime committed—i.e., based on
consideration of the harm caused or threatened to the victim or society and the
offender’s culpability. See Wells-Yates, ¶ 69 (relying on the factors set forth in
Solem, 463 U.S. at 292, for discerning whether a crime is grave or serious).
¶26 Because the division concluded that theft is per se grave or serious, it erred.
We therefore reverse its judgment.
13
D. Is Melton’s 24-Year Sentence for Each Triggering
Offense of Drug Possession Unconstitutional?
¶27 Melton asks us to modify the sentence imposed on each triggering offense.
We decline to do so. Instead, we conclude that the trial court must conduct a new
abbreviated proportionality review. And if the court finds that such review gives
rise to an inference of gross disproportionality, it must then perform an extended
proportionality review.
¶28 We have determined that all three triggering offenses (for possession of
schedule I and II controlled substances) and two of the three predicate offenses
(for possession of a schedule II controlled substance and theft) are not per se grave
or serious.5 It follows that the abbreviated proportionality review of each 24-year
sentence must entail a refined analysis of the facts and circumstances surrounding
these offenses and potentially the predicate offense of second degree assault (if the
court determines that it is not per se grave or serious).6 Given that the trial court
is “uniquely suited” to make factual determinations, see Gaskins, 825 P.2d at 35, we
remand to the court of appeals with instructions to return the case to the trial court
5 Whether the predicate offense of second degree assault is per se grave or serious
is not an issue before us, and we do not address it.
6 Of course, in determining the gravity or seriousness of the triggering and
predicate offenses, the trial court should also consider any relevant legislative
amendments.
14
for a new proportionality review in accordance with the three opinions we
announce today.
¶29 Once the requisite factual determinations are made, the trial court will have
to decide whether each triggering offense and the three predicate offenses,
combined, are so lacking in gravity or seriousness as to give rise to an inference
that the 24-year sentence is grossly disproportionate. If the answer is yes with
respect to any sentence, the trial court must conduct an extended proportionality
review of that sentence. If the answer is no with respect to all three sentences,
Melton’s proportionality challenge must be rejected.
IV. Conclusion
¶30 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;
(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; and (3) in the context of an
abbreviated proportionality review, theft is not a per se grave or serious offense.
Because the division reached different conclusions, we reverse its judgment. We
remand with instructions to return the case to the trial court for further
proceedings in accordance with this opinion.
15
JUSTICE BOATRIGHT concurs in the judgment.
CHIEF JUSTICE COATS dissents.
16
JUSTICE BOATRIGHT, concurring in the judgment.
¶31 For the reasons stated in my concurrence to Wells-Yates v. People, 2019 CO
90, __ P.3d __, also reported by the court today, I concur in the judgment only.
1
CHIEF JUSTICE COATS, dissenting.
¶32 For the reasons articulated in my dissenting opinion in Wells-Yates v. People,
2019 CO 90, __ P.3d __, also reported by the court today, I would affirm the
judgment of the court of appeals.
¶33 I therefore respectfully dissent.
1