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                                                   ADVANCE SHEET HEADNOTE
                                                             November 4, 2019

                                     2019 CO 89

No. 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 89

                      Supreme 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
