COLORADO COURT OF APPEALS                                         2016COA117


Court of Appeals No. 15CA0545
Adams County District Court No. 13CR1980
Honorable John E. Popovich, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Clifton Eugene McRae,

Defendant-Appellee.


                        SENTENCE VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division III
                          Opinion by JUDGE GRAHAM
                        Booras and Kapelke*, JJ., concur

                          Announced August 11, 2016


Dave Young, District Attorney, Michael Milne, Senior Deputy District Attorney,
Brighton, Colorado, for Plaintiff-Appellant

April M. Elliott, Alternative Defense Counsel, Denver, Colorado, for Defendant-
Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1    A jury convicted defendant, Clifton Eugene McRae, of

 distribution of a schedule II controlled substance

 (methamphetamine)1 and possession of drug paraphernalia.2 After

 completing a proportionality review of McRae’s sentence, the trial

 court concluded that a sixty-four-year sentence to the custody of

 the Department of Corrections would be grossly disproportionate to

 his crimes and sentenced him to sixteen years’ incarceration. The

 People appeal McRae’s sentence. We vacate McRae’s sentence and

 remand for the trial court to conduct an extended proportionality

 review.

                         I. Eighth Amendment
                         Proportionality Review

¶2    The Eighth Amendment to the United States Constitution

 forbids imposition of a sentence grossly disproportionate to the

 severity of the crime committed. Solem v. Helm, 463 U.S. 277, 284

 (1983); see Colo. Const. art. II, § 20; see also Close v. People, 48

 P.3d 528, 532 (Colo. 2002).




 1 Ch. 333, sec. 10, § 18-18-405(2)(a)(I)(A), 2013 Colo. Sess. Laws
 1909.
 2 Ch. 333, sec. 28, § 18-18-428(1), 2013 Colo. Sess. Laws 1924.



                                    1
¶3    Under the habitual criminal statute, a person convicted of a

 felony who has been previously convicted of three felonies shall be

 adjudicated a habitual criminal and shall be sentenced to four

 times the maximum of the presumptive range for the class of felony

 of which the person is convicted. See § 18-1.3-801(2)(a), C.R.S.

 2015.

¶4    “A defendant is always entitled to a proportionality review

 when sentenced under the habitual criminal statute.” People v.

 Anaya, 894 P.2d 28, 32 (Colo. App. 1994); see People v. Deroulet, 48

 P.3d 520, 526 (Colo. 2002).

¶5    An abbreviated proportionality review requires a court to

 consider the seriousness of a defendant’s underlying crimes

 together with the triggering crime to determine whether, in

 combination, these crimes are so lacking in gravity or seriousness

 as to suggest that the sentence is grossly disproportionate. People

 v. Loyas, 259 P.3d 505, 513 (Colo. App. 2010). The Colorado

 Supreme Court has determined “the crimes of aggravated robbery,

 robbery, burglary, accessory to first-degree murder, and narcotic-

 related crimes are all ‘grave or serious’ for the purposes of

 proportionality review.” Deroulet, 48 P.3d at 524; see People v.


                                    2
 Gaskins, 825 P.2d 30, 37 (Colo. 1992) (“Sale of narcotic drugs is

 viewed with great seriousness because of the grave societal harm

 caused by sale of illegal drugs and the evils associated with their

 use.”).

¶6    If an abbreviated proportionality review gives rise to an

 inference of gross disproportionality, the court should then engage

 in an extended proportionality review. People v. Hargrove, 2013

 COA 165, ¶¶ 30-31. In an extended proportionality review, the

 court compares the defendant’s sentence to sentences imposed on

 other defendants who committed the same crime, both in this

 jurisdiction and in other jurisdictions. Deroulet, 48 P.3d at 524.

¶7    “Generally, a trial court is afforded broad discretion in

 sentencing, and its decision will not be overturned absent an abuse

 of that discretion.” People v. Reese, 155 P.3d 477, 479 (Colo. App.

 2006). However, we review a trial court’s proportionality ruling de

 novo. Rutter v. People, 2015 CO 71, ¶ 12.

                  II. Whether a Court May Consider
                        Changes in Sentencing

¶8    In 1994, a division of this court held that “when the General

 Assembly subsequently amends a criminal sentencing statute, even



                                   3
  though the statute is to be applied prospectively, the trial court may

  properly consider it when determining whether a defendant’s

  sentence [is] grossly disproportionate.” Anaya, 894 P.2d at 32.

¶9     Anaya relied in part on People v. Penrod, 892 P.2d 383, 388

  (Colo. App. 1994), which also concluded that a “substantial

  legislative change in penalties . . . should be considered in

  determining whether [a] defendant’s sentence is grossly

  disproportionate.” See also Hargrove, ¶ 20 (stating that an

  amendment to a statute may be considered in determining whether

  the triggering or predicate offenses should be considered grave or

  serious for purposes of proportionality review); People v. Gaskins,

  923 P.2d 292, 296 (Colo. App. 1996) (“[T]he General Assembly’s

  current evaluation of the seriousness of the offense at issue is a

  factor that can be considered in determining whether defendant’s

  sentence is grossly disproportionate.”).

¶ 10   In 2014, the Colorado Supreme Court accepted certiorari in

  Rutter to determine “[w]hether a court, when conducting an

  abbreviated proportionality review of a habitual criminal sentence,

  can consider the [G]eneral [A]ssembly’s subsequent reclassification

  of a crime and/or amendment of the habitual criminal statute that


                                     4
made an underlying crime inapplicable for purposes of a habitual

criminal adjudication.” ¶ 1 n.1. But the court ultimately did not

address that question and instead concluded

           we do not reach the question of whether courts
           can consider legislative changes when
           conducting an abbreviated proportionality
           review of a habitual criminal sentence because
           the legislature has made no change, either
           prospectively or retroactively, with regard to
           the triggering offense in this case,
           manufacturing a schedule II controlled
           substance.

Id. at ¶ 13.3



3The supreme court has since granted certiorari in Melton v. People
on the following issues:

           [REFRAMED] Whether a drug possession
           conviction constitutes a grave or serious
           offense.

           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.

           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

                                  5
                          III. Senate Bill 13-250

¶ 11   In May 2013, the General Assembly passed Senate Bill 13-

  250, which reclassified drug offenses in Colorado and reduced

  sentences for those offenses. See generally Ch. 333, 2013 Colo.

  Sess. Laws 1900-44 (hereinafter SB 13-250). The effective date of

  SB 13-250 was October 1, 2013. Ch. 333, sec. 71, 2013 Colo. Sess.

  Laws 1943.

¶ 12   In pertinent part, SB 13-250 reclassified class 3 and class 4

  felonies for drug offenses to level 3 and level 4 drug felonies. A level

  3 drug felony is punishable by a term of imprisonment between two

  and four years; a level 4 drug felony is punishable by a term of

  imprisonment between six and twelve months. These changes

  significantly reduced the length of incarceration for these offenses.

  Compare § 18-1.3-401(1)(a)(V)(A), C.R.S. 2015 (presumptive range

  for a class 3 felony is four to twelve years’ imprisonment), with § 18-


             revisions to the drug statutes and habitual
             criminal statute, the defendant would not be
             eligible for habitual sentencing and would
             receive a two year maximum sentence.

             [REFRAMED] Whether a theft conviction
             constitutes a grave or serious offense.

  No. 14SC282, 2016 WL 490208 (Colo. Feb. 8, 2016).

                                     6
  18-405(2)(c), C.R.S. 2015; compare § 18-1.3-401(V)(A) (presumptive

  range for a class 4 felony is two to six years’ imprisonment), with §

  18-18-403.5(2)(a), C.R.S. 2015.

¶ 13   Additionally, the General Assembly removed many narcotics-

  related convictions from consideration for habitual criminal

  proceedings. Ch. 333, sec. 36, § 18-1.3-801, 2013 Colo. Sess. Laws

  1927; see § 18-1.3-801(2)(b), C.R.S. 2015.

                            IV. McRae’s Crimes

¶ 14   In this case, McRae’s triggering offense was distribution of a

  schedule II controlled substance (methamphetamine). The

  underlying facts of that conviction were that McRae sold 6.97 grams

  of methamphetamine to a police confidential informant. McRae

  committed this crime on July 2, 2013 — after SB 13-250 was

  signed into law but before its effective date.

¶ 15   McRae’s habitual criminal convictions are as follows:

           Possession of a schedule II controlled substance (a class

             4 felony). McRae was arrested on outstanding warrants,

             and the vehicle he was driving was searched. Police

             officers found a canvas bag containing cocaine,

             methamphetamine, marijuana, and drug paraphernalia.


                                     7
 Possession with intent to distribute a schedule II

  controlled substance (a class 3 felony). McRae was

  contacted at a hotel by police officers. During a search of

  the room, officers located methamphetamine, materials

  commonly used to make and sell methamphetamine, and

  drug paraphernalia.

 Possession of a schedule II controlled substance (a class

  4 felony). McRae was arrested at a department store for

  giving police officers a false name. When he was

  processed at the police department, officers found a small

  amount of methamphetamine on his person.

 Possession of a schedule II controlled substance (a class

  4 felony). McRae was in a vehicle stopped by officers.

  Officers observed two bags of narcotics in the car — a

  bag of cocaine weighing 3.83 grams and a bag of

  methamphetamine weighing 28.22 grams.

 Attempted theft (a class 5 felony). McRae stole a snap-on

  blue point multimeter, a snap-on timing light, and a

  jigsaw from a garage and pawned those items.




                          8
             Possession with intent to distribute a schedule IV

               controlled substance (a class 5 felony). Officers

               responded to a car on fire that was registered to McRae.

               McRae was arrested on an outstanding warrant and

               during his search incident to arrest officers found

               approximately .25 ounces of methamphetamine,

               marijuana, empty plastic baggies, and drug

               paraphernalia.

¶ 16     At the time of his arrest, McRae’s triggering crime was

  punishable by a maximum of sixteen years’ incarceration, and as a

  habitual criminal that sentence multiplied to sixty-four years.4

  Under SB 13-250, his triggering offense was now a level 3 drug

  felony punishable by two to four years in prison with a maximum

  habitual criminal sentence of sixteen years in custody.

                                V. Application

¶ 17     The People first contend the trial court entered an illegal

  sentence because it lacked statutory authority to retroactively apply

  SB 13-250. We agree that retroactive application of the statute



  4   McRae’s conviction was for an extraordinary risk class 3 felony.

                                      9
  would have been unlawful but further conclude that the trial court

  did not retroactively apply SB 13-250.

¶ 18    “A sentence that is beyond the statutory authority of the court

  is illegal.” Anaya, 894 P.2d at 31. “Courts are limited to imposing

  sentences within the statutory range authorized by the General

  Assembly and have no jurisdiction to enter sentences that are

  inconsistent with their sentencing authority as statutorily defined.”

  Id.

¶ 19    The People argue that because SB 13-250 was expressly

  prospective, the court’s application of the statute created an illegal

  sentence. However, “whether a statute applies retroactively is a

  separate and distinct question from whether a defendant’s sentence

  is constitutionally proportionate.” Rutter, ¶ 35 (Gabriel, J.,

  dissenting). Here, McRae requested the court review his sentence

  for proportionality purposes, and a defendant’s sentence is always

  subject to the Eighth Amendment’s prohibition on cruel and

  unusual punishment. See Deroulet, 48 P.3d at 524.

¶ 20    Consequently, the court, acknowledging “that the statute is

  not retroactively applicable,” did not exceed its statutory authority

  by further considering SB 13-250’s effect while conducting a


                                    10
  proportionality review. See Hargrove, ¶ 20; Gaskins, 923 P.2d at

  296; Anaya, 894 P.2d at 32. Proportionality is a distinct legal

  concept apart from retroactivity of a statute, and the court did not

  violate its statutory authority by reaching the conclusion that SB

  13-250, while prospective, was relevant to proportionality.

¶ 21   Second, the People contend that because McRae’s triggering

  offense and five of his prior convictions are per se grave or serious

  under supreme court precedent, his sixty-four-year habitual

  sentence failed to raise an inference of gross disproportionality.

  Thus, the People argue the court erred in finding such an inference

  and sentencing McRae to sixteen years. We disagree but conclude

  it is necessary to remand this case to the trial court to conduct an

  extended proportionality review under Deroulet and Solem.

¶ 22   Abbreviated proportionality review is used to analyze the

  offenses in question to determine whether, in combination, they are

  so lacking in gravity or seriousness as to suggest that the mandated

  habitual criminal sentence is grossly disproportionate. People v.

  Cooper, 205 P.3d 475, 479 (Colo. App. 2008) (citing Deroulet, 48

  P.3d 520). “An abbreviated proportionality review involves two sub-

  parts, namely comparing the gravity of the offense and the severity


                                    11
  of the punishment.” Deroulet, 48 P.3d at 524. While a court may

  rely on a per se grave or serious determination by the supreme

  court during an abbreviated review, a court may also consider

  additional factors to determine the gravity of an offense, including

  the magnitude of the offense, whether the offense involved violence,

  whether the offense is a lesser included offense or an attempt, and

  the motive of the defendant. Cooper, 205 P.3d at 479-80 (citing

  Gaskins, 825 P.2d at 36-37). The court must then consider the

  severity of the punishment to determine whether a defendant’s

  sentence is grossly disproportionate. Deroulet, 48 P.3d at 524.

  Additionally, “[t]he General Assembly’s current evaluation of the

  seriousness of the offense at issue is a factor that can be considered

  in determining whether [a] defendant’s sentence is grossly

  disproportionate.” Gaskins, 923 P.2d at 296; see Hargrove, ¶ 20;

  Anaya, 894 P.2d at 32; Penrod, 892 P.2d at 388.

¶ 23   Here, acknowledging that Deroulet classified all narcotics-

  related offenses as per se grave or serious, the court further found:

            [B]ased upon the proffer . . . both the
            triggering offense, to which this Court heard
            the testimony during the course of trial, and
            also the predicate offenses; A, did not involve
            any weapons or any violence; B, were all drug


                                    12
            related; C, the Court notes that although they
            were distribution cases based upon the proffer
            the Court notes that they were I think not
            substantial distribution cases for the purposes
            of monetary gain but for . . . basically personal
            use.

            ....

            The Court considering, number one, the fact
            that these are grave and serious offenses,
            however, the Court notes that there was
            mitigation within the establishment of . . .
            grave and serious offenses, the Court finds
            under an Eighth Amendment analysis that the
            sentence that would have been imposed under
            the new statute, which was enacted
            approximately two months after the [crime],
            that the mandatory sentence would be
            essentially 25 percent of the 64 year mandated
            sentence.

            The Court therefore finds and concludes under
            the language of Hargrove, under the language
            of Anaya, and under the Eighth Amendment,
            this Court does find and conclude based upon
            the aforesaid findings that the sentencing
            disparity between 16 and 64 years . . . is
            grossly disproportionate.

  The court also noted that the legislative amendments did not alter

  the elements of McRae’s crimes but instead reduced the penalties

  for that criminal conduct.

¶ 24   We conclude the trial court did not err in considering factors

  additional to the supreme court’s per se grave or serious


                                   13
  classification of narcotics offenses. Proportionality review should

  always focus on the individual crimes committed and the facts of

  those crimes to determine proportionality. Deroulet, 48 P.3d at 526

  (“A statutory scheme cannot guarantee a sentence that is

  constitutionally proportionate to a particular defendant convicted of

  a particular crime under particular circumstances.”); see Close, 48

  P.3d at 542 (“[W]e thus utilize the considerations articulated in

  Solem to consider, under the facts of this case, whether the . . .

  convictions are grave or serious.”). In this case the court looked at

  the mitigating factors surrounding the charged crimes — that they

  lacked violence and were drug related, and the substances were

  meant for personal use — in concluding that the crimes lacked the

  seriousness to suggest sixty-four years in prison was proportionate.

  The court noted that McRae’s sentence was four times as long as a

  sentence for the same crime committed three months later. See

  Deroulet, 48 P.3d at 524; Hargrove, ¶ 20; Gaskins, 923 P.2d at 296.

  We perceive no error in this analysis.

¶ 25   The trial court did not engage in the prohibited “fine-tuning” of

  sentences the supreme court warned about in Deroulet. 48 P.3d at

  527 (“[C]ourts will rarely be in the position to adjust a sentence to a


                                    14
  term of years by a handful of years in either direction; to engage in

  such fine-tuning goes beyond the search for gross disproportionality

  and improperly injects courts into the realm of determining specific

  sentencing schemes, which is the province of the General

  Assembly.”). Instead, the court reviewed the General Assembly’s

  newly adopted sentencing scheme in determining that the severity

  of McRae’s punishment gave rise to an inference of gross

  disproportionality. The court’s ultimate sixteen-year sentence

  comported with the current legislatively mandated sentencing

  scheme. See id. (“Case law is clear that legislatively mandated

  sentencing schemes are to be given great deference by courts

  engaging in proportionality reviews.”).

¶ 26   Nor do we conclude that the trial court violated the spirit of

  Rutter in coming to its conclusion. Rutter specifically left open the

  question addressed by the court here, where McRae’s triggering

  offense was reclassified by the General Assembly. In Rutter “the

  legislature . . . made no change, either prospectively or retroactively,

  with regard to the triggering offense,” ¶ 13, and so the court

  declined to answer what effect a change to a triggering offense

  might have. Until the supreme court indicates otherwise, Hargrove,


                                    15
  Gaskins, and Anaya, which direct courts to consider subsequent

  amendments to criminal sentencing statutes when conducting

  abbreviated proportionality reviews, persuade us and are binding

  on the trial courts.

¶ 27   We are tempted to agree with the trial court’s determination

  that the severity of McRae’s sentence was constitutionally

  disproportionate to the gravity of his crimes. Those crimes,

  although narcotics related, did not include violence and were done

  largely to support a personal drug habit. We can see why the trial

  court viewed the penalty as harsh when it compared the triggering

  offense with the General Assembly’s current evaluation of the

  seriousness of that offense. It may have been reasonable to

  conclude that a sixty-four-year sentence was grossly

  disproportionate.

¶ 28   However, after conducting McRae’s abbreviated proportionality

  review, the trial court failed to conduct a further extended

  proportionality review. “An extended proportionality review involves

  a comparison of the sentences imposed on other criminals who

  commit the same crime in the same jurisdiction and a comparison




                                    16
  of the sentences imposed for commission of the same crime in other

  jurisdictions.” Deroulet, 48 P.3d at 524.

¶ 29   While the trial court looked to the amended sentencing laws to

  compare McRae’s sentence to that of other criminals committing the

  same crime in Colorado, it did not have specific instances of

  sentences within and outside of Colorado to compare to McRae’s

  sentence. Because both the United States Supreme Court and

  Colorado Supreme Court approve of the use of that objective

  criterion, we conclude it is necessary to vacate McRae’s sentence so

  that the court can conduct an extended proportionality review. See

  Solem, 463 U.S. at 292 (“In sum, a court’s proportionality analysis

  under the Eighth Amendment should be guided by objective

  criteria, including (i) the gravity of the offense and the harshness of

  the penalty; (ii) the sentences imposed on other criminals in the

  same jurisdiction; and (iii) the sentences imposed for commission of

  the same crime in other jurisdictions.”); Deroulet, 48 P.3d at 524

  (same).

                              VI. Conclusion

¶ 30   The sentence is vacated and the case is remanded to the trial

  court for an extended proportionality review.


                                    17
JUDGE BOORAS and JUDGE KAPELKE concur.




                     18
