v. McRae , 2019 CO 91 ( 2019 )

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ADVANCE SHEET HEADNOTE
November 4, 2019
2019 CO 91No. 16SC753, People v. McRae—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, 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.
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. Therefore, 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 91Supreme Court Case No. 16SC753
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA545
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Clifton Eugene McRae.
Judgment Reversed
en banc
November 4, 2019
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
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE BOATRIGHT concurs in the judgment.
CHIEF JUSTICE COATS concurs in part and dissents in part.
¶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
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 In fairness to our learned colleagues on the court of appeals, today we clarify the
law related to the issues on review.
2
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;
3
• 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
3Whether a defendant may seek and a trial court may conduct a proportionality
review before imposition of the sentence is not an issue before us. Therefore, we
do not address it.
4
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 term of 2 to 4
years. Thus, observed the court, had McRae committed the triggering offense
three months later, he would have faced a 16-year habitual criminal sentence
(4 × 4) instead of a 64-year habitual criminal sentence (16 × 4).
¶6 The trial court initially acknowledged that the amendments were not
retroactive and were thus “not applicable” to McRae. But it later changed course
and determined that they “applie[d]” to McRae. The trial court then reasoned
“that the sentencing disparity between 16 and 64 years” was “grossly
disproportionate.” In other words, rather than compare the gravity or seriousness
of McRae’s triggering offense and predicate offenses with the harshness of the
required 64-year prison sentence, the trial court compared the sentence required
by the statutory provisions before they were amended to the sentence required
after the amendments. The trial court ultimately ruled that McRae should be
sentenced under the amended sentencing scheme. Hence, despite finding that the
triggering offense and five of the six predicate offenses (the drug-related predicate
offenses) were per se grave or serious, the trial court concluded that the required
prison sentence of 64 years raised an inference of gross disproportionality and
sentenced McRae to 16 years in prison instead.
5
¶7 The prosecutor inquired whether the court intended to proceed to an
extended proportionality review, since it had found that the abbreviated
proportionality review gave rise to an inference of gross disproportionality. But
the court declined to hold an extended proportionality review. Instead, it arrived
at the 16-year sentence at the end of the abbreviated proportionality review.
¶8 The prosecution appealed, and in a published, unanimous decision, a
division of the court of appeals upheld the trial court’s determination that there
was an inference of gross disproportionality. People v. McRae, 2016 COA 117, ¶ 1,
__ P.3d __. Although the division acknowledged that retroactive application of
the statutory amendments “would have been unlawful,” it concluded that the trial
court had not retroactively applied the amendments. Id. at ¶ 17. In so doing, it
relied exclusively on the trial court’s preliminary observation “that the [amended]
statute is not retroactively applicable.” Id. at ¶ 20. It thus ignored the trial court’s
final ruling that the legislative amendments applied to McRae’s sentence.
¶9 Nevertheless, the division vacated McRae’s sentence and remanded the case
to the trial court for an extended proportionality review. Id. at ¶¶ 28–29. It
recognized that such review is required whenever an abbreviated proportionality
review gives rise to an inference of gross disproportionality. Id.
6
¶10 The prosecution appealed the division’s decision. And we granted the
prosecution’s petition for certiorari in part.4
II. Standard of Review
¶11 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.
4 We granted certiorari to review the following two issues:
1. Whether a court, when conducting an abbreviated proportionality
review of a habitual criminal sentence for convictions and offenses
which all pre-date July 2, 2013, can consider the General
Assembly’s subsequent reclassification of a crime and/or
amendment of the habitual criminal statute to significantly reduce
a sentence on a habitual criminal adjudication even though the
statute applied to drug felony offenses committed on or after
October 1, 2013.
2. Whether the court of appeals erred in remanding the Defendant’s
case for an extended proportionality review rather than ordering
entry of a 64-year habitual offender sentence, applicable at the time
the defendant committed the triggering offense and the per se
grave and serious controlled substance-related convictions.
7
III. Analysis
A. Should Relevant Statutory Amendments Enacted After
the Dates of the Triggering and Predicate Offenses Be
Considered During an Abbreviated Proportionality
Review?
¶12 The prosecution argues that, in determining the gravity or seriousness of a
triggering or predicate offense the court should not consider legislative
amendments enacted after the date of the offense that have no retroactive
application. We disagree.
¶13 In line with Wells-Yates, we conclude that, 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. See Wells-Yates, ¶ 45. This includes amendments to the
classification of and punishment for the offenses in question, as well as
amendments to the habitual criminal statute. Id. The fact that one or more of the
offenses involved may previously have been designated per se grave or serious
does not alter the analysis. Id. at ¶ 46.
¶14 The division correctly determined that the legislature’s current evaluation
of the gravity or seriousness of the triggering and predicate offenses should be
considered during an abbreviated proportionality review. See McRae, ¶¶ 17–19.
8
Where we part ways with the division is in its conclusion that the trial court did
not improperly apply the statutory amendments retroactively. Id. at ¶ 20.
¶15 “Whether statutory revisions apply retroactively ‘is a separate and distinct
question from whether a defendant’s sentence is constitutionally proportionate.’”
Wells-Yates, ¶ 48 (quoting Rutter, ¶ 35, 363 P.3d at 191 (Gabriel, J., dissenting)).
Our review of the record reveals that the trial court did precisely what it
recognized it could not lawfully do: It applied retroactively the statutory
amendments affecting the classification of and punishment for the sale or
distribution of a schedule II controlled substance, even though the amendments
were enacted after the date of the triggering offense and were intended to apply
prospectively. In fact, it expressly ruled that such legislation governed McRae’s
sentence. Accordingly, the trial court exceeded its authority. See People v.
Stellabotte, 2018 CO 66, ¶ 29, 421 P.3d 174, 180 (stating that “we apply expressly
prospective statutes only prospectively”).
¶16 The trial court also appears to have mistakenly viewed the amendments as
dispositive of the grave or serious inquiry. While such amendments are relevant,
they are not determinative of whether an offense is grave or serious. Instead, they
must be analyzed in conjunction with the facts and circumstances surrounding the
crime committed. More specifically, they must be considered in combination with
the factors that are pertinent to “the culpability of the offender” and “the harm
9
caused or threatened to the victim or society.” Wells-Yates at ¶ 69 (relying on
Solem v. Helm, 463 U.S. 277, 292 (1983)).
¶17 Whereas the trial court relied too heavily on the relevant statutory
amendments, the prosecution attempts to minimize them, noting that at the time
of the abbreviated proportionality review, the triggering offense and five of the
predicate offenses (the narcotics-related predicate offenses) were treated as per se
grave or serious. However, even where an offense has been designated per se
grave or serious, relevant legislative amendments deserve consideration to
determine whether the offense should continue to be so designated. If the court
finds that the offense should continue to bear such designation, the gravity or
seriousness analysis ends—that the offense in the abstract is inherently grave or
serious means that the commission of that offense is grave or serious in every
potential factual scenario. Id. at ¶ 63. On the other hand, if the court finds that the
legislative amendments counsel against the offense continuing to have the per se
designation, the court must then determine whether, considering those
amendments in conjunction with the surrounding facts and circumstances, the
specific crime committed is grave or serious.
¶18 Here, like the trial court, the division acknowledged that the triggering
offense and five of the predicate offenses had previously been designated
inherently (or per se) grave or serious. See McRae, ¶¶ 23–24. But instead of
10
assessing whether relevant legislative amendments justified a change in such
designation, it found that it was appropriate to analyze the facts and circumstances
surrounding each crime in combination with the per se grave or serious
designation. Id. at ¶ 24. According to the division, “the trial court did not err in
considering factors additional to the supreme court’s per se grave or serious
classification of narcotics offenses.” Id. We cannot embrace this approach. Once
an offense has been designated per se grave or serious, it is improper for the court
to engage in further analysis of the gravity or seriousness of a defendant’s
commission of that offense. To hold otherwise would be to render the per se grave
or serious designation meaningless. As we reason in Wells-Yates, though, “the
designation of per se grave or serious . . . must be reserved for those rare crimes
which, based on their statutory elements, necessarily involve grave or serious
conduct.” Wells-Yates, ¶ 63.
¶19 Because the division erred in its analysis, we reverse its judgment. And,
because in Wells-Yates we conclude that the drug-related offenses of possession
and possession with intent should no longer be considered per se grave or serious,
additional factual determinations with respect to each of the five narcotics-related
predicate offenses are required. More specifically, the abbreviated proportionality
review must entail a refined analysis of the facts and circumstances surrounding
each of those predicate offenses. Such analysis is also necessary with respect to
11
the other predicate offense (attempted theft).5 Given that the trial court is
“uniquely suited” to make factual determinations, see People v. Gaskins, 825 P.2d
30, 35 (Colo. 1992), we remand to the court of appeals with instructions to return
the case to the trial court for a new proportionality review in accordance with the
three opinions we announce today.6
¶20 Once the requisite factual determinations are made, the trial court will have
to consider the triggering offense (which is per se grave or serious) and the
predicate offenses together and decide whether, in combination, they are so
lacking in gravity or seriousness as to raise an inference of gross
disproportionality. If the answer is yes, the trial court must conduct an extended
proportionality review. If the answer is no, McRae’s proportionality challenge
must be rejected.
B. Did the Division Err in Remanding for an Extended
Proportionality Review?
¶21 The prosecution contends that the division erred because it did not order
entry of a 64-year prison sentence. Our conclusion that a new proportionality
review by the trial court is required renders this issue moot.
5In the companion case of Melton, we hold that theft is not a per se grave or serious
offense. See Melton, ¶ 2.
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.
12
IV. Conclusion
¶22 We conclude 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. Because the
division erred in failing to recognize that the trial court improperly applied the
relevant statutory amendments retroactively, we reverse. Further, because
additional factual determinations are necessary to properly address McRae’s
proportionality challenge, we remand with instructions to return the case to the
trial court for a new abbreviated proportionality review in accordance with the
three opinions we issue today.
JUSTICE BOATRIGHT concurs in the judgment.
CHIEF JUSTICE COATS concurs in part and dissents in part.
13
JUSTICE BOATRIGHT, concurring in the judgment.
¶23 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, concurring in part and dissenting in part.
¶24 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 reverse the
judgment of the court of appeals and affirm the defendant’s sentence.
¶25 Because I concur in that portion of the majority opinion finding error by the
court of appeals but not that portion leading it to order remand, I respectfully
concur in part and dissent in part.
1