COLORADO COURT OF APPEALS                                            2017COA91


Court of Appeals No. 16CA0481
El Paso County District Court No. 15CR1403
Honorable Lin Billings Vela, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Scott Alan Oldright,

Defendant-Appellant.


                       SENTENCE VACATED AND CASE
                       REMANDED WITH DIRECTIONS

                                  Division IV
                         Opinion by JUDGE FREYRE
                               Ashby, J., concurs
               Hawthorne, J., concurs in part and dissents in part

                           Announced June 29, 2017


Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-
Appellant
¶1    Defendant, Scott Alan Oldright, appeals the trial court’s order

 denying his request for an extended proportionality review. We

 vacate the sentence and remand for resentencing and an extended

 proportionality review.

                             I. Background

¶2    A jury convicted Oldright of first degree assault. According to

 the prosecution’s evidence, Oldright hit the victim in the head with

 a metal rod. The victim lost consciousness. When the victim

 regained consciousness, he wandered outside, still bleeding, and

 asked a stranger for help before he lost consciousness again. He

 suffered a fractured skull, a concussion, and two deep lacerations.

¶3    Oldright’s theory at trial was that he did not intend to hurt the

 victim. Rather, he struck the victim to prevent property damage

 that could otherwise have occurred because the victim was fighting

 with two other men.

¶4    Following trial, the court adjudicated Oldright a habitual

 criminal, and sentenced him to sixty-four years in prison.

 Oldright’s prior offenses included aggravated driving after

 revocation prohibited, forgery, fraud by check, theft by receiving,

 and theft.

                                   1
¶5    The trial court conducted an abbreviated proportionality

 review. It concluded that Oldright’s triggering offense — first degree

 assault — was per se grave and serious. It then acknowledged that

 although Oldright’s prior convictions “arguably [did] not rise to the

 level of grave and serious,” the triggering offense was so serious that

 no inference of disproportionality existed. In the alternative, the

 court concluded that each of the prior convictions was “serious”

 because each had been classified as a felony by the General

 Assembly. The court reasoned that the existence of five prior

 felonies, combined with a grave and serious triggering offense,

 obviated the need for a “more thorough or in-depth proportionality

 review.”

¶6    We agree with the trial court that first degree assault is a grave

 and serious offense. However, because the court did not consider

 the fact that the General Assembly has reclassified three of

 Oldright’s prior convictions to misdemeanors (making them an

 ineligible basis for habitual sentencing) and one of the prior felonies

 from a class 4 felony to a class 5 felony, we disagree that each of

 Oldright’s prior offenses is serious. Therefore, we vacate the



                                    2
 sentence and remand for an extended proportionality review of

 Oldright’s habitual criminal sentence.

                       II. Proportionality Review

¶7    Oldright contends that the court erred in two ways. First, he

 argues that the court failed to consider his version of circumstances

 for the triggering offense that showed the crime was not grave or

 serious. Second, he asserts that the court erred in concluding that

 all of his prior convictions were “serious” by virtue of them being

 felonies. He argues that, as part of the abbreviated proportionality

 review, the court should have considered the General Assembly’s

 reclassification of the prior offenses. We reject his first argument

 and agree with the court that first degree assault is a grave and

 serious offense. We agree with his second argument and conclude

 that an extended proportionality review is warranted under the

 circumstances of this case.

                            A. Legal Principles

¶8    Whether a sentence is constitutionally disproportionate is a

 question of law that we review de novo. Rutter v. People, 2015 CO

 71, ¶ 12. Both the United States and Colorado Constitutions

 prohibit cruel and unusual punishment, including grossly

                                    3
  disproportionate prison sentences. See Ewing v. California, 538

  U.S. 11, 20 (2003); Close v. People, 48 P.3d 528, 539 (Colo. 2002).

  To ensure sentences are not disproportionate, “a criminal defendant

  is entitled, upon request, to a proportionality review of his sentence

  under Colorado’s habitual criminal statute.” People v. Deroulet, 48

  P.3d 520, 522 (Colo. 2002); People v. Anaya, 894 P.2d 28, 32 (Colo.

  App. 1994) (“A defendant is always entitled to a proportionality

  review when sentenced under the habitual criminal statute.”).1

¶9     When a defendant challenges a sentence on proportionality

  grounds, the reviewing court must initially complete an abbreviated

  proportionality review. Deroulet, 48 P.3d at 524. This review

  “weighs the gravity and seriousness of a defendant’s triggering and

  underlying felonies together against the ‘harshness of the penalty.’”

  People v. Foster, 2013 COA 85, ¶ 56 (quoting Deroulet, 48 P.3d at

  527); see also People v. McRae, 2016 COA 117, ¶ 22.

¶ 10   Our supreme court has designated certain crimes as per se

  grave and serious for proportionality purposes. Deroulet, 48 P.3d at

  1 Under the habitual criminal statute, a convicted felon who has
  been previously convicted of three felonies shall be adjudicated a
  habitual criminal and must be sentenced to four times the
  maximum of the presumptive range for the class of the triggering
  felony conviction. See § 18-1.3-801(2)(a), C.R.S. 2016.
                                    4
  524 (identifying aggravated robbery, robbery, burglary, accessory to

  first degree murder, and narcotics-related offenses as per se grave

  and serious). Such crimes are grave or serious “by their very

  nature.” People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). One

  division of this court has concluded that first degree assault is per

  se grave or serious, People v. Gee, 2015 COA 151, ¶ 60, and the

  supreme court and several other divisions of this court have

  concluded or implied that first degree assault is a serious offense,

  see People v. Mershon, 874 P.2d 1025, 1033-34 (Colo. 1994); People

  v. Hayes, 923 P.2d 221, 230 (Colo. App. 1995); People v. Penrod,

  892 P.2d 383, 387 (Colo. App. 1994).

¶ 11   For other offenses, a court determines gravity or seriousness

  by considering the magnitude of the offense, whether the offense

  involved violence, whether the offense is a lesser included offense or

  an attempted offense, and the defendant’s motive. McRae, ¶ 22

  (citing People v. Cooper, 205 P.3d 475, 479 (Colo. App. 2008)).

  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.” Id. (quoting People v. Gaskins, 923 P.2d 292,

                                    5
  296 (Colo. App. 1996)); see also People v. Hargrove, 2013 COA 165,

  ¶ 20; People v. Patnode, 126 P.3d 249, 261 (Colo. App. 2005);

  Anaya, 894 P.2d at 32; Penrod, 892 P.2d at 388.2

¶ 12   We give a great deal of deference to legislative determinations

  regarding sentencing; therefore, in most cases, the abbreviated

  proportionality review will result in a finding that the sentence is

  constitutionally proportionate. Deroulet, 48 P.3d at 526. However,

  “[a] statutory scheme cannot guarantee a sentence that is

  constitutionally proportionate to a particular defendant convicted of

  a particular crime under particular circumstances.” Patnode, 126

  P.3d at 261 (quoting Deroulet, 48 P.3d at 526). And “[t]he

  provisions of the Habitual Criminal Act create a unique possibility

  that a defendant will receive a . . . sentence which is not

  proportionate to the crime for which the defendant has been

  convicted.” Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990).

  2 In Rutter, the supreme court granted certiorari to consider
  “[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 made an
  underlying crime inapplicable for purposes of a habitual criminal
  adjudication.” Rutter v. People, 2015 CO 71, ¶ 1 n.1. It ultimately
  did not address the question, because no reclassification of the
  triggering offense had occurred. Id. at ¶ 13.
                                     6
¶ 13   An extended proportionality review is required when the

  abbreviated review gives rise to an inference of gross

  disproportionality. McRae, ¶ 6. An extended review involves a

  comparison of the sentences imposed on other criminals who

  commit the same crime in the same jurisdiction and a comparison

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

  other jurisdictions. Id.; see also Deroulet, 48 P.3d at 524.

                                B. Discussion

¶ 14   We begin by concluding that Oldright’s triggering offense, first

  degree assault, is a grave and serious offense because the

  legislature deems it a crime of violence and an extraordinary risk

  crime, Oldright used a deadly weapon to commit the crime, and the

  victim suffered serious bodily injury. Thus, we reject Oldright’s

  argument that the circumstances of his specific offense somehow

  reduce the crime’s severity or gravity. Absent the habitual criminal

  finding, this class 3 felony conviction carries a minimum prison

  sentence of ten years and a maximum sentence of thirty-two years.

  See § 18-1.3-406(1)(a),(2)(a)(I)(c), C.R.S. 2016.

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



                                      7
 Aggravated driving after revocation prohibited (a class 6

  felony at the time of conviction): On December 23, 2004,

  police arrested Oldright for aggravated driving, driving

  under the influence (DUI), and careless driving. The DUI

  and a class 2 traffic offense (careless driving) were

  dismissed. The conviction date for aggravated driving was

  July 18, 2005. This offense was reclassified by the

  legislature and reduced to a misdemeanor in 2015. Ch. 262,

  sec. 4, § 42-2-206, 2015 Colo. Sess. Laws 996; see also

  § 42-2-206, C.R.S. 2016.

 Forgery (a class 5 felony): In September 1999, Oldright stole

  the personal checkbook of his former girlfriend and

  business partner and wrote five checks totaling $1337.52.

  His conviction date for that crime was August 22, 2001 (and

  his sentence was modified April 1, 2002).

 Fraud by check (a class 6 felony at the time of conviction):

  On December 29, 2000, Oldright wrote two checks to a

  computer store that were returned for insufficient funds.

  He wrote one check for $1075.50 and the second for

  $10.00. The conviction date was November 9, 2001. This
                             8
  offense was reclassified by the legislature and reduced to a

  class 1 misdemeanor in 2007. Ch. 384, sec. 8, § 18-5-

  205(3)(c), 2007 Colo. Sess. Laws 1693-94; see also § 18-5-

  205(3)(c), C.R.S. 2016.

 Theft by receiving between $500 and $15,000 (a class 4

  felony at the time of conviction): On November 27, 2000,

  Oldright received a loaner car that he knew was stolen in

  exchange for bonding a friend out of jail. The car contained

  stolen computer equipment. The owner valued the car at

  $17,000, and the court ordered Oldright to pay $1224.00 in

  restitution. Oldright was convicted on August 22, 2001.

  This offense was reclassified by the legislature and reduced

  to a class 5 felony in 2013. Ch. 373, sec. 1, § 18-4-401,

  2013 Colo. Sess. Laws 2196; see also § 18-4-401(2)(g),

  C.R.S. 2016.

 Theft of between $500 and $15,000 (a class 4 felony at the

  time of conviction): On November 21, 2000, Oldright stole a

  computer from Micro Center. The court ordered $1579.00

  in restitution. This offense was reclassified by the



                            9
          legislature and reduced to a class 1 misdemeanor in 2013.

          Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196.

¶ 16   The trial court correctly recognized that Oldright’s prior

  convictions “standing alone arguably [did not] rise to the level of

  grave and serious” offenses. However, it erred when it further

  concluded that each of the prior convictions was “serious” simply

  because each was a felony, without further considering relevant

  mitigating factors, including the legislature’s current classification

  of those prior crimes. While Oldright is not entitled to be sentenced

  under any of the amended statutes, it is appropriate and necessary

  to consider these legislative changes in determining whether his

  sentence is grossly disproportionate. See Hargrove, ¶ 28 (“This [the

  legislature’s 2011 amendment to the habitual criminal statute] calls

  into greater question the applicability to . . . felony possession

  convictions of case law finding narcotics-related crimes to be per se

  grave and serious. At the very least, we believe a court could factor

  in the amount of narcotics involved in a simple possession

  conviction . . . in evaluating the broader question of whether a

  defendant’s triggering felony and underlying felonies ‘in

  combination . . . are so lacking in gravity or seriousness so as to

                                     10
  suggest that the sentence is grossly disproportionate.’” (quoting

  Deroulet, 48 P.3d at 524-25)); see also Trop v. Dulles, 356 U.S. 86,

  100-01 (1958) (“The [Eighth] Amendment must draw its meaning

  from the evolving standards of decency that mark the progress of a

  maturing society.”). There is no basis to conclude the court did that

  here.

¶ 17      In particular, the court’s conclusion that Oldright’s aggravated

  driving conviction was “a very grave and serious offense that puts

  the public at risk” is contradicted by a division of this court’s

  previous holding that a § 42-2-206 offense is “essentially a violation

  of an administrative order” that could not be “understood as [a]

  ‘grave and serious crime[]’” for proportionality purposes, absent

  other aggravating factors. Patnode, 126 P.3d at 261. The existing

  record reveals no information about the facts and circumstances

  underlying this offense. It shows only that the prosecution

  dismissed a DUI and careless driving charge. Without additional

  evidence indicating a greater degree of danger to the public arising

  from Oldright’s actions, we cannot conclude that the record shows

  this offense to be “serious.” And, by reclassifying this crime to a



                                      11
  misdemeanor, the General Assembly does not consider this to be a

  serious offense.

¶ 18     Additionally, the trial court’s finding that the “General

  Assembly has found these [property] offenses3 to be so serious that

  they would qualify for felony sentencing” ignores the General

  Assembly’s reclassification of two of these offenses to

  misdemeanors, demonstrating that it no longer considers these

  offenses to be serious. Moreover, the General Assembly’s reduction

  of the third offense to a lower felony classification and

  correspondingly lower penalty demonstrates that it regards this

  offense as less serious now than it did when the offense was

  committed.

¶ 19     While Rutter could be construed to hold that it is unnecessary

  to scrutinize the circumstances underlying the prior convictions

  when the triggering offense is per se grave or serious, we

  respectfully disagree with the dissent’s view of Rutter’s holding for a

  number of reasons.

¶ 20     First, Rutter’s analysis begins with well-settled law stating that

  an abbreviated proportionality review (as opposed to an extended

  3   Forgery, fraud by check, theft, and theft by receiving.
                                      12
  review) is sufficient “when the crimes supporting a sentence

  imposed under the habitual criminal statute include grave or

  serious offenses.” Rutter, ¶ 18 (emphasis added). This is important

  because all of Rutter’s prior convictions were drug-related and, as

  noted by the court, involved the same substance

  (methamphetamine) as the triggering offenses. Id. at ¶ 5.

  Therefore, unlike Oldright, all of Rutter’s prior convictions were per

  se grave and serious offenses. See Deroulet, 48 P.3d at 524

  (identifying narcotics-related offenses as per se grave and serious).

¶ 21   Next, the court explained that its reason for granting certiorari

  was to determine whether the subsequent legislative classification

  of drug crimes (and amendments to the habitual criminal statute)

  altered those crimes’ status as grave or serious crimes. Rutter,

  ¶ 11. The court’s use of the plural “crimes” creates some

  uncertainty about whether it was referring to the triggering

  offenses, the prior offenses, or all the offenses.

¶ 22   In proceeding through the analysis, the court defined the

  two-part abbreviated proportionality test as “scrutiny of the offenses

  in question to determine whether in combination they are so

  lacking in gravity or seriousness as to suggest that the sentence is

                                     13
  constitutionally disproportionate to the crime, taking into account

  the defendant’s eligibility for parole.” Id. at ¶ 18 (emphasis added)

  (quoting Close, 48 P.3d at 539). It then concluded that “for those

  crimes determined to be grave or serious in Colorado, courts skip

  the first sub-part of the abbreviated proportionality review and

  move directly to the second sub-part.” Id. at ¶ 19 (emphasis

  added). We interpret the court’s use of the plural “offenses” and

  “crimes” to include both a defendant’s triggering and prior offenses,

  consistent with the authority cited by the court.

¶ 23   In applying the two-part test to Rutter’s case, the court found

  that Rutter’s triggering offense was the crime of manufacturing

  methamphetamine — a per se grave or serious offense. Id. at ¶ 22.

  It then concluded that because that offense had previously been

  designated as grave or serious, there was no reason to alter that

  classification based on subsequent legislation. Id. The court then

  scrutinized “the harshness of Rutter’s sentence in relation to the

  fact that his triggering offense [was] grave or serious,” citing to

  Deroulet. Id. at ¶ 24. However, in Deroulet, the court explained that

  Colorado has “delineated certain crimes as ‘grave or serious’” and

  said when a crime is “grave or serious” a reviewing court may

                                     14
  proceed directly to consider the severity of punishment. Deroulet,

  48 P.3d at 524. It did not state that a grave or serious triggering

  offense, by itself, could be the basis for dispensing with the first

  subpart of an abbreviated proportionality review when other

  offenses, not deemed per se grave or serious, were implicated.

  Indeed, the Court did not specifically limit Deroulet’s holding.

¶ 24   We conclude, from Rutter’s reliance on prior precedent and its

  refusal to limit it, that when faced with a triggering or a prior

  offense that is per se grave or serious, a trial court need not

  determine the gravity or seriousness of that particular offense any

  further under subpart one. However, when a triggering or prior

  offense is not per se grave or serious, then a court must engage in

  subpart one of the abbreviated review analysis to determine gravity

  before analyzing the harshness of the sentence under subpart two.

  Because all of Rutter’s triggering and prior offenses were per se

  grave or serious, there was no need for any subpart one analysis.

  In contrast, because none of Oldright’s prior convictions is per se

  grave or serious, the trial court must determine the gravity of those

  prior offenses before it can reasonably consider the harshness of

  the penalty.

                                     15
¶ 25   This conclusion is consistent with well-settled jurisprudence

  requiring a court to assess all of a defendant’s offenses together in

  determining the proportionality of a sentence. See Harmelin v.

  Michigan, 501 U.S. 957, 1001-02 (1991) (abbreviated review

  consists of two subparts comparing gravity of offenses and

  harshness of penalty); Deroulet, 48 P.3d at 524-25 (reviewing court

  must scrutinize all of a defendant’s offenses “in combination”);

  Gaskins, 825 P.2d at 36 (proportionality review requires court to

  scrutinize offenses in combination to determine gross

  disproportionality). Indeed, a proportionality review of a habitual

  criminal sentence would be meaningless were we to consider only

  the gravity of the triggering offense without considering the gravity

  of the underlying offenses requiring the habitual sentence

  enhancement.

¶ 26   This case illustrates the importance of the two-step

  abbreviated review. Oldright’s first degree assault conviction is

  grave or serious, and the legislature has recognized this fact by

  requiring a mandatory prison sentence of ten to thirty-two years.

  The question here is whether a sixty-four year sentence, double the

  presumptive maximum sentence, raises an inference of gross

                                    16
  disproportionality. The answer lies in the nature and number of

  Oldright’s prior convictions.

¶ 27   The certified penitentiary packets and the transcript of the

  habitual criminal trial are the exclusive basis in the record for us to

  scrutinize Oldright’s predicate offenses.4 We have thoroughly

  reviewed these materials and conclude that on the basis of those

  materials and the General Assembly’s reclassification of several of

  the prior offenses, when considered in combination, there is an

  inference of gross disproportionality because: (1) three of Oldright’s

  prior convictions are now misdemeanors (and could not now form

  the basis for habitual criminal sentencing); (2) those same three

  prior convictions were not per se grave or serious when Oldright

  committed them; (3) the two remaining prior convictions are not

  grave or serious; (4) the limited record does not support a

  conclusion that the circumstances of the prior convictions show

  that they were grave or serious; and (5) the sentence for the

  triggering offense today would require only a thirty-two year

  maximum prison sentence. While we do not minimize Oldright’s


  4 The parties did not include the presentence investigation report in
  the record on appeal.
                                    17
  conduct in this case, we must conclude, on the basis of the record

  before us, that the particular facts of the triggering and prior

  offenses leads to an inference that Oldright’s sixty-four-year

  sentence is grossly disproportionate to his offenses. Accordingly,

  we vacate Oldright’s sentence and remand the case for the trial

  court to conduct an extended proportionality review.

                                 III. Conclusion

¶ 28   We vacate the sentence and remand for resentencing and an

  extended proportionality review.

       JUDGE ASHBY concurs.

       JUDGE HAWTHORNE concurs in part and dissents in part.




                                     18
          JUDGE HAWTHORNE, concurring in part and dissenting in

  part.

¶ 29      I concur with the majority’s conclusion that Oldright’s

  triggering offense, first degree assault, is a grave or serious crime.

  And, I also reject his argument that the specific facts surrounding

  his triggering offense mitigate its gravity or seriousness.

¶ 30      But because, in my opinion, the majority does not apply

  Colorado’s guiding principles for proportionality reviews in the

  manner prescribed by the supreme court in Rutter v. People, 2015

  CO 71, I disagree with its conclusion that the trial court must

  determine the gravity of Oldright’s prior offenses before it can

  reasonably determine the harshness of his penalty. For the same

  reason, I also disagree with the majority’s disposition of vacating

  Oldright’s sentence and remanding the case to the trial court to

  conduct an extended proportionality review. Accordingly, I would

  affirm the trial court’s decision. I therefore respectfully dissent

  from the majority’s disposition.

                       I. Facts and Procedural History



                                      19
¶ 31      A jury convicted Oldright of first degree assault. Oldright hit

  the victim in the head with a metal rod. The victim lost

  consciousness twice and suffered a fractured skull, a concussion,

  and two deep lacerations.

¶ 32      After trial, the court adjudicated Oldright a habitual criminal,

  and sentenced him to sixty-four years in prison.

¶ 33      The trial court conducted an abbreviated proportionality

  review. It concluded that Oldright’s convictions were grave or

  serious and his sentence was not disproportionate. So, the court

  denied his request for an extended proportionality review.

                           II. Proportionality Review

¶ 34      Oldright contends that the court erred by not conducting an

  extended proportionality review. I disagree.

                               A. Guiding Principles

¶ 35      Whether a sentence is constitutionally proportionate is a legal

  question that we review de novo. People v. Gee, 2015 COA 151,

  ¶ 56.

¶ 36      The Eighth Amendment prohibits extreme sentences that are

  “grossly disproportionate” to the crime. Close v. People, 48 P.3d



                                      20
  528, 536 (Colo. 2002); People v. Mershon, 874 P.2d 1025, 1030

  (Colo. 1994).

¶ 37   “[A]n abbreviated proportionality review is sufficient when the

  crimes supporting a sentence imposed under the habitual criminal

  statute include grave or serious offenses.” Rutter, ¶ 18. An

  abbreviated proportionality review involves determining whether the

  sentence gives rise to an inference of gross disproportionality by

  scrutinizing (1) the offense’s gravity or seriousness in relation to (2)

  the sentence’s harshness. Id. Further analysis is required only if

  this abbreviated review gives rise to an inference of gross

  disproportionality. Close, 48 P.3d at 542.

¶ 38   If a crime is determined to be per se grave or serious, the court

  does not examine the facts and circumstances underlying the

  offense. People v. Hargrove, 2013 COA 165, ¶ 12. Rather, the court

  proceeds directly to considering the sentence’s harshness. Rutter,

  ¶ 19. “[I]t is ‘highly likely that the legislatively mandated sentence’

  will be constitutionally proportionate for grave or serious crimes.”

  Id. (quoting Close, 48 P.3d at 538). “Thus, the ability to proceed to

  the second sub-part of the abbreviated proportionality review,

  namely the harshness of the penalty, when a grave or serious crime

                                     21
  is involved results in a near-certain upholding of the sentence.” Id.

  (quoting Close, 48 P.3d at 538). These guiding principles establish

  that, in abbreviated proportionality reviews, courts only scrutinize

  the penalty’s harshness when the crime is grave or serious. Id. at

  ¶ 20. And, it is highly likely that the sentence will be proportionate.

  Id.

                                  B. Application

              1. Oldright’s Triggering Offense Was Grave or Serious

¶ 39    Oldright’s triggering offense was first degree assault. Another

  division of this court has held that first degree assault is per se

  grave or serious, and I see no reason to disagree with that holding.

  See Gee, ¶ 60.

¶ 40    As the supreme court similarly noted in Rutter, I note here

  that, although it would not have been dispositive, the legislature did

  not reclassify Oldright’s triggering offense of first degree assault.

  Thus, even in the legislature’s view, the nature of first degree

  assault remains unchanged. So, Oldright’s triggering offense was

  outside the purview of any legislative sentencing reforms.

                      2. Abbreviated Proportionality Review



                                     22
¶ 41   Consistent with Rutter, I proceed to the second subpart in this

  abbreviated proportionality review, determining whether Oldright’s

  sixty-four-year sentence for the grave or serious triggering offense of

  first degree assault is overly harsh and thus raises an inference of

  gross disproportionality. Rutter, ¶ 24. And, at this stage, the Rutter

  majority unequivocally states that the court’s precedent directs the

  proportionality review be conducted by scrutinizing the defendant’s

  sentence “in relation to the fact that his triggering offense is grave

  or serious.” Id. Therefore, as the court mandates, I “must focus on

  the principal felony — the felony that triggers the [enhanced]

  sentence . . . .” Id. (quoting Solem v. Helm, 463 U.S. 277, 296 n.21

  (1983)).

¶ 42   I disagree with the majority rejecting Rutter’s mandate that a

  reviewing court must focus on the triggering offense because, in its

  opinion, the Rutter court misread its own precedent from Deroulet.

  Despite the majority’s detailed and articulate reasoning, we are

  “bound to follow supreme court precedent.” In re Estate of

  Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250

  P.3d 762, 768 n.3 (Colo. App. 2010)).



                                     23
¶ 43   A sixty-four-year sentence was the legislatively required

  sentence for Oldright’s class 3 extraordinary risk crime and

  habitual counts. See §§ 18-1.3-401(1)(a)(V)(A), (10)(a), (b)(XII), 18-

  1.3-801(2), C.R.S. 2016. The sentence is not too harsh because the

  triggering offense is grave or serious. See Rutter, ¶ 25 (ruling the

  defendant’s ninety-six-year sentence not too harsh in light of fact

  that triggering offense was grave or serious). So, the sentence is not

  grossly disproportionate. Id. (noting the “‘very high likelihood that a

  sentence will be upheld as constitutionally proportionate’ when the

  crime is grave or serious” (quoting Close, 48 P.3d at 536)).

¶ 44   Oldright argues that his sentence is disproportionate because

  his prior offenses are not grave or serious, and the General

  Assembly has reclassified three of his prior felony offenses as

  misdemeanors. But, because his triggering offense is grave or

  serious, I need not scrutinize his underlying prior convictions. See

  id. at ¶¶ 21-25 (directing that the proportionality review focus on

  scrutinizing the harshness of a defendant’s sentence in relation to

  the triggering offense).

¶ 45   And even examining Oldright’s prior underlying felonies does

  not raise an inference of gross disproportionality. He had five prior

                                     24
  felony convictions: aggravated driving after revocation, forgery,

  fraud by check, and two counts of theft. Contrary to the majority’s

  suggestion that Oldright’s aggravated driving after revocation

  conviction was essentially an administrative order violation, in

  pleading guilty to that offense, Oldright also admitted that he was

  driving under the influence of alcohol or drugs, or both.

¶ 46   Under Rutter, I need not address the legislative changes to

  Oldright’s underlying convictions because his triggering offense was

  outside the purview of any sentencing reform and that is the offense

  on which a court must focus in conducting an abbreviated

  proportionality review. See id. at ¶¶ 23, 24. But even considering

  that two of Oldright’s prior felonies were reclassified as

  misdemeanors, no inference of gross disproportionality is raised

  because three of his prior five felonies would still be felonies if

  committed today. Cf. id. at ¶ 13 (noting that “while the legislature

  can change the classification of crimes, courts determine whether

  offenses are grave or serious for purposes of proportionality

  review”). Also, a crime such as theft can be grave or serious when it

  is one of a variety of prior offenses. See Mershon, 874 P.2d at 1031.



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¶ 47   Finally, even assuming that Oldright’s underlying offenses,

  standing alone, are not grave or serious, I conclude that, when

  combined with his serious first degree assault offense, they are

  grave or serious. So, no inference of gross disproportionality is

  raised by the court’s imposing the statutorily mandated sentence.

  See People v. Deroulet, 48 P.3d 520, 527 (Colo. 2002) (concluding

  that court erred in reducing legislatively mandated sentence even

  though underlying crimes, “standing alone,” were not grave or

  serious).

¶ 48   I conclude that Oldright’s sentence was not grossly

  disproportionate. And, I reject his contention that the trial court

  erred in failing to conduct an extended proportionality review.

                             III. Conclusion

¶ 49   I would affirm the sentence.




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