People v. McRae

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.

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JUDGE BOORAS and JUDGE KAPELKE concur.

18