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                                                 ADVANCE SHEET HEADNOTE
                                                           November 4, 2019

                                    2019 CO 91

No. 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 91

                       Supreme 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
