     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 16, 2019

                                2019COA73

No. 16CA0858, People v. Porter — Criminal Law — Sentencing
— Juveniles — Punishment for Habitual Criminals;
Constitutional Law — Eighth Amendment — Cruel and Unusual
Punishments

     A division of the court of appeals holds that a defendant is not

entitled to an extended proportionality review of his sentence as a

habitual criminal merely because some of his prior felony

convictions occurred when he was a juvenile. In so holding, the

division concludes that the Supreme Court’s decisions in Miller v.

Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48

(2010); and Roper v. Simmons, 543 U.S. 551 (2005), which concern

sentencing of juveniles, do not have any application in the context

of adult sentencing.
COLORADO COURT OF APPEALS                                         2019COA73


Court of Appeals No. 16CA0858
Gilpin County District Court No. 02CR42
Honorable Dennis Hall, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reginald Marcus Porter,

Defendant-Appellant.


                            SENTENCE AFFIRMED

                                   Division V
                          Opinion by JUDGE J. JONES
                          Terry and Grove, JJ., concur

                           Announced May 16, 2019


Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1    Defendant, Reginald Marcus Porter, appeals both his

 adjudication as a habitual offender and the district court’s denial of

 his request for an extended proportionality review of his sentence.

 (The court instead conducted an abbreviated review and concluded

 that the sentence doesn’t violate the Eighth Amendment’s

 prohibition against cruel and unusual punishment.) Specifically,

 he contends that (1) because the prosecution failed to prove that his

 prior felony convictions didn’t arise from the same criminal episode,

 the district court erred by adjudicating him a habitual offender; and

 (2) because his prior convictions occurred when he was a juvenile,

 the court should have conducted an extended proportionality

 review. We reject both contentions and affirm the sentence.

                           I.   Background

¶2    Defendant has been incarcerated for most of his life. While he

 was still a juvenile, the People charged him in three Denver cases

 for two armed robberies (one with a knife and one with a lug

 wrench) and a sexual assault he committed in August 1988. He

 agreed to have the cases transferred from juvenile court to Denver

 District Court, after which he took a global plea deal in which he

 pleaded guilty to one charge in each case and received concurrent


                                   1
 sentences (the longest being sixteen years) to Department of

 Corrections (DOC) custody. 1

¶3    In 2002, just months after being released from DOC custody,

 defendant robbed and attempted to sexually assault a casino

 worker. He then fled from the police. A jury found him guilty of

 first degree burglary, aggravated robbery, attempted sexual assault,

 theft, and vehicular eluding. The district court adjudicated him a

 habitual offender.

¶4    Years later, after a couple of appeals, a new trial, convictions

 on the same charges as before, and dismissal of the habitual

 counts, the Colorado Supreme Court remanded this case to the

 district court for reinstatement of defendant’s habitual counts. 2




 1 Because the cases were transferred to district court, defendant
 was sentenced as an adult and would have been tried as an adult
 had the cases not been resolved through a plea deal.
 2 First, a division of the court of appeals reversed defendant’s

 convictions. After a second trial, this time to the bench, the court
 found him guilty on the same charges as before. Defendant moved
 to dismiss the habitual counts on double jeopardy grounds. The
 district court granted his motion, and a division of the court of
 appeals reluctantly affirmed. People v. Porter, 2013 COA 130,
 ¶¶ 29, 43. But the supreme court reversed the division’s decision
 and remanded the case for reinstatement of the habitual counts.
 See People v. Porter, 2015 CO 34, ¶ 30.

                                   2
 The district court held a habitual offender hearing at which the

 prosecution presented evidence that defendant had three prior

 felony convictions — the three charges he had pleaded guilty to as a

 juvenile — and argued that the convictions were based on separate,

 unconnected conduct that occurred on different days. The court

 agreed with the prosecution that defendant’s three prior felony

 convictions weren’t part of the same criminal episode, adjudicated

 defendant a habitual offender, and sentenced him to a total of 112

 years to life.3

¶5     Noting the length of his sentence and the fact that his prior

 felony convictions were from when he was a juvenile, defendant

 asked for an extended proportionality review. The court conducted

 an abbreviated review, ruled that an extended review wasn’t

 necessary, and determined that defendant’s sentences are

 constitutional under the Eighth Amendment.




 3 The court sentenced defendant to forty-eight years on count 2
 (burglary), sixty-four years on count 3 (aggravated robbery), forty-
 eight years to life on count 4 (attempted sexual assault), twenty-
 four years on count 8 (theft), and twelve years on count 9 (vehicular
 eluding). The sentences run concurrently except for the forty-eight
 years to life on count 4.

                                    3
                           II.   Discussion

                    A.    Habitual Criminal Status

¶6    First, defendant contends that the district court erred by

 adjudicating him a habitual offender because the prosecution didn’t

 prove beyond a reasonable doubt that his three juvenile felony

 convictions arose out of separate and distinct criminal episodes.

 We aren’t persuaded.

¶7    Because defendant challenges the sufficiency of the evidence,

 we review the record to determine “whether the evidence, viewed as

 a whole, and in the light most favorable to the prosecution, is

 sufficient to support a conclusion by a reasonable person that the

 defendant is guilty of the crimes charged beyond a reasonable

 doubt.” People v. Copeland, 976 P.2d 334, 341 (Colo. App. 1998),

 aff’d, 2 P.3d 1283 (Colo. 2000).

¶8    A court shall adjudicate a defendant a habitual offender if the

 defendant is convicted of a felony and has “been three times

 previously convicted, upon charges separately brought and tried,

 and arising out of separate and distinct criminal episodes, either in

 this state or elsewhere, of a felony [or a crime which, if committed

 in Colorado, would be a felony].” § 18-1.3-801(2)(a)(I), C.R.S. 2018.


                                    4
  The prosecution must prove the defendant’s prior convictions

  beyond a reasonable doubt. People v. Nunn, 148 P.3d 222, 225

  (Colo. App. 2006).

¶9     The term “criminal episode” has the same meaning for

  habitual offender laws as it does under the compulsory joinder

  statute. People v. Jones, 967 P.2d 166, 169 (Colo. App. 1997).

  Crimes that stem from the same criminal episode include “physical

  acts that are committed simultaneously or in close sequence, that

  occur in the same place or closely related places, and that form part

  of a schematic whole.” Id. (quoting Jeffrey v. Dist. Court, 626 P.2d

  631, 639 (Colo. 1981)). Charges that must be prosecuted in a

  single case under the compulsory joinder statute, section

  18-1-408(2), C.R.S. 2018, can’t qualify as separate convictions for

  habitual offender purposes. See Jones, 967 P.2d at 169 (allowing a

  defendant to be prosecuted as a habitual offender for offenses that

  were subject to mandatory joinder would be “inconsistent with the

  General Assembly’s intent to reserve habitual criminal sentencing

  for serious recidivists”).

¶ 10   The district court adjudicated defendant a habitual offender

  because of his three juvenile felony convictions, finding that they


                                    5
  didn’t arise from the same criminal episode. The evidence supports

  this finding. Each conviction stemmed from a crime defendant

  committed in a different location, with a different victim, and at

  least six days apart from the other crimes (August 5, August 20,

  and August 26, 1988). The first conviction was for sexual assault;

  the second two were for armed robberies. Aside from their violent

  nature, nothing connected the offenses or suggested that they were

  part of the same schematic whole.

¶ 11   Defendant points us to several cases in which the criminal

  charges were consolidated in the same criminal case even though

  the conduct that led to each was separated by time, physical

  distance, or type of crime. See, e.g., Brown v. Dist. Court, 197 Colo.

  219, 222, 591 P.2d 99, 101 (1979); People v. Trujillo, 860 P.2d 542,

  544 (Colo. App. 1992); People v. Rice, 40 Colo. App. 357, 579 P.2d

  647 (1978). But some (perhaps all) of those cases involved

  permissive joinder under Crim. P. 8(a) or discretionary

  consolidation under Crim. P. 13. And, of course, each case turned

  on its facts. None is so clearly analogous to this case as to

  undermine the district court’s conclusion that defendant’s crimes

  weren’t part of the same criminal episode. Cf. Marquez v. People,


                                    6
  2013 CO 58, ¶ 20 (record didn’t support a conclusion that two

  crimes arose from the same criminal episode where they occurred

  twelve hours apart, the defendant used different weapons, there

  were two different victims, and they occurred at different locations).

                  B.   Extended Proportionality Review

¶ 12   Next, defendant contends that because he was a juvenile at

  the time of his prior convictions, and because juveniles are treated

  differently for sentencing purposes in certain respects, he was

  entitled to an extended proportionality review of his sentence.

  Again, we aren’t persuaded.

¶ 13   We review a district court’s decision not to conduct an

  extended proportionality review de novo. See People v. McNally, 143

  P.3d 1062, 1064 (Colo. App. 2005).

¶ 14   The Eighth Amendment’s prohibition against cruel and

  unusual punishment requires that sentences not be “grossly

  disproportionate” to their underlying crimes. Ewing v. California,

  538 U.S. 11, 23-24 (2003); People v. Deroulet, 48 P.3d 520, 524

  (Colo. 2002). The Colorado Supreme Court has held that, to ensure

  that there isn’t a gross disproportionality, a defendant is entitled to

  an abbreviated proportionality review of his habitual offender


                                     7
  sentence if he so requests. See Deroulet, 48 P.3d at 522. If, and

  only if, that review “gives rise to an inference of gross

  disproportionality does a reviewing court need to engage in an

  extended proportionality review.” Close v. People, 48 P.3d 528, 536

  (Colo. 2002). 4 And an extended review is almost never required

  when the underlying crimes supporting a habitual offender

  sentence include “grave or serious” offenses. Id. at 537; People v.

  Gaskins, 825 P.2d 30, 36 (Colo. 1992).5

¶ 15   Defendant concedes that, because his underlying offenses

  were per se grave or serious, a person sentenced for such offenses

  wouldn’t ordinarily be entitled to an extended proportionality

  review. But he argues that he is entitled to one because he was a

  juvenile at the time of his prior convictions. To support this

  argument, he cites Supreme Court decisions holding that juveniles

  are different from adults and, in certain contexts, must be treated




  4 This procedure closely follows Supreme Court precedent on the
  same issue. People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002); see,
  e.g., Harmelin v. Michigan, 501 U.S. 957 (1991).
  5 The Colorado Supreme Court has held that certain crimes are “per

  se” grave or serious. These include aggravated robbery, robbery,
  and burglary. See People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992).

                                      8
  differently for sentencing purposes. See, e.g., Graham v. Florida,

  560 U.S. 48 (2010) (sentencing any juvenile who hasn’t committed

  homicide to life without parole violates the Eighth Amendment);

  Roper v. Simmons, 543 U.S. 551, 578 (2005) (execution of a criminal

  defendant who was under eighteen when he committed a capital

  crime is prohibited by the Eighth and Fourteenth Amendments); see

  also Miller v. Alabama, 567 U.S. 460, 479 (2010) (the Eighth

  Amendment forbids sentencing schemes that mandate life in prison

  without parole for juvenile offenders).

¶ 16   Though Colorado appellate courts haven’t yet addressed this

  argument, federal circuit courts and several other state courts have.

  The Eleventh Circuit, for example, rejected a very similar challenge.

  After a jury found a defendant guilty of several drug-related

  felonies, the district court imposed a mandatory life sentence

  because of the defendant’s two prior juvenile felony drug

  convictions. United States v. Hoffman, 710 F.3d 1228, 1230-31

  (11th Cir. 2013); see 21 U.S.C. § 841(b)(1)(A) (2010) (requiring

  defendants convicted of certain drug crimes to be sentenced to life

  without parole if they have previously been convicted of two felony

  drug offenses). The defendant argued that because his prior


                                     9
  convictions occurred when he was a juvenile, his life sentence

  violated the Eighth Amendment; he cited Roper in support.

  Hoffman, 710 F.3d at 1232. Affirming the sentence, the Eleventh

  Circuit held that Roper is inapplicable in this context, as it

  concerned sentencing for juvenile crimes rather than “sentence

  enhancement for an adult offender.” Id. Since the defendant was

  facing punishment for crimes he committed as an adult, nothing

  prevented the court from following the sentencing statute and

  imposing a mandatory life sentence based on his prior juvenile

  convictions. Id. at 1233 (“Nothing . . . suggests that an adult

  offender who has committed prior crimes as a juvenile should not

  receive a mandatory life sentence as an adult, after committing a

  further crime as an adult.”).

¶ 17   Numerous other courts post-Graham v. Florida have employed

  similar reasoning to reject challenges to sentences that were

  enhanced because of prior juvenile convictions. See, e.g., United

  States v. Orona, 724 F.3d 1297, 1306 (10th Cir. 2013) (use of a

  juvenile adjudication as a predicate offense to increase the

  defendant’s sentence didn’t violate the Eighth Amendment); United

  States v. Graham, 622 F.3d 445, 462 (6th Cir. 2010) (the defendant


                                     10
  wasn’t “a ‘juvenile offender’ for purposes of the punishment he

  received” for his latest conviction, so Graham v. Florida didn’t

  apply); United States v. Scott, 610 F.3d 1009, 1017 (8th Cir. 2010)

  (rejecting a defendant’s argument that the court should extend

  Graham v. Florida and Roper to bar consideration of prior

  convictions that were based on juvenile conduct); Wilson v. State,

  521 S.W.3d 123, 127-28 (Ark. 2017) (the defendant was “being

  punished with an enhanced sentence for his conduct as an adult,”

  and “a conviction imposed on a juvenile sentenced as an adult may

  be used as the basis for an increased penalty imposed under the

  habitual-offender statute”); Commonwealth v. Lawson, 90 A.3d 1, 6-

  7 (Pa. Super. Ct. 2014); Counts v. State, 338 P.3d 902, 906-07

  (Wyo. 2014).

¶ 18   We aren’t convinced by defendant’s attempts to distinguish

  these cases. Each is remarkably similar to this case. Apart from

  asserting that Graham v. Florida and Roper call these decisions into

  question, defendant relies only on the faulty premise that his

  current sentence punishes him for his juvenile crimes. But the

  Supreme Court has firmly established that enhanced sentences

  pursuant to recidivist sentencing statutes only punish a defendant


                                    11
  for the offense of conviction — not for the underlying prior offenses.

  See United States v. Rodriquez, 553 U.S. 377, 385 (2008).

¶ 19   In sum, these similar cases show that when an adult

  defendant receives an enhanced sentence because of prior felonies

  he committed, his age at the time of the prior felonies doesn’t

  impact the validity of the adult sentence under the Eighth

  Amendment. Graham v. Florida, Roper, and similar cases

  addressing the constitutionality of juvenile sentencing simply don’t

  apply when the defendant is being sentenced for crimes he

  committed as an adult.

¶ 20   It follows that a defendant’s age at the time of his prior

  convictions doesn’t impact whether he’s entitled to an extended

  proportionality review under the Eighth Amendment and Colorado

  law. Regardless of whether a defendant was a juvenile at the time

  of his prior convictions, the reviewing court must follow the

  procedure outlined by the Colorado Supreme Court in Deroulet and

  Close.

¶ 21   Because defendant concedes that he isn’t entitled to an

  extended proportionality review under Deroulet and Close, and since

  his juvenile status at the time of his prior convictions doesn’t


                                    12
  impact his rights under the Eighth Amendment’s prohibition

  against cruel and unusual punishment, we conclude that the

  district court didn’t err by conducting only an abbreviated review.

                            III.   Conclusion

¶ 22   The sentence is affirmed.

       JUDGE TERRY and JUDGE GROVE concur.




                                    13
