Alvarez v. People

• Decision Date: 10 September 1990
• Docket Number: No. 89SC169,89SC169
• Citation: 797 P.2d 37
• Parties: Sammy Michael ALVAREZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 37

797 P.2d 37

Sammy Michael ALVAREZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 89SC169.

Supreme Court of Colorado En Banc.

Sept. 10, 1990.

Rehearing Denied Sept. 24, 1990.

Lawrence J. Schulman, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari in this case to review the constitutionality of defendant Sammy Michael Alvarez's sentence to life imprisonment under the Habitual Criminal Act, §§ 16-13-101 to 16-13-103, 8A C.R.S. (1986 & 1989 Supp.). The court of appeals affirmed the defendant's conviction and held that he was not entitled to a proportionality review of his life sentence because he is eligible for parole. The defendant argues that he is entitled under the eighth amendment to the United States Constitution, and article II, section 20, of the Colorado Constitution, to an extensive proportionality review of his life sentence based on the three criteria identified in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The defendant also argues that whether this court undertakes a limited or extensive proportionality review of his sentence, it should hold that his sentence constitutes cruel and unusual punishment. We hold that the defendant is entitled to an abbreviated proportionality review of his sentence, and, on the basis of such a review, we affirm the judgment of the court of appeals.

I.

On November 13, 1985, the People charged the defendant by information with aggravated robbery, ¹ theft, ² and conspiracy to commit aggravated robbery and theft, ³ and requested mandatory sentencing for a crime of violence under section 16-11-309, 8A C.R.S. (1986). On March 3, 1986, the Arapahoe County District Court granted the People's motion to amend the information to include five additional counts charging that the defendant was an habitual criminal under subsection 16-13-101(2). The five additional counts alleged that in 1983 the defendant was convicted of second degree burglary (count five); ⁴ in 1982 the defendant was convicted of criminal attempt to commit theft (count six); ⁵ in 1982 the defendant was convicted of first degree criminal trespass (count seven); ⁶ in 1980 the defendant was convicted of criminal attempt to commit second degree burglary (count eight); ⁷ and that in 1978 the defendant was convicted of conspiracy to commit second degree burglary (count nine). ⁸ The jury found the defendant guilty of aggravated robbery, theft, and conspiracy to commit aggravated robbery and theft. Thereafter the jury found the defendant to be an habitual criminal. On February 3, 1987, the district court sentenced the defendant to life imprisonment pursuant to subsection 16-13-101(2). Subsection 17-22.5-104(2)(c), 8A C.R.S. (1986), provides that the defendant must serve at least 40 years in prison before he will become eligible for parole.

II.

The defendant argues that he is entitled to an extensive proportionality review of his sentence under the cruel and unusual punishment clauses of the United States and Colorado Constitutions, and that such a review must incorporate the three criteria set out by the Supreme Court in Solem v. Helm. The defendant further argues that the proportionality review would be required to be held in the district court. We hold that in this case the applicable constitutional provisions call for no more than an abbreviated proportionality review of the defendant's life sentence, and that according to such a review the defendant's sentence violates neither the eighth amendment to the United States Constitution nor article II, section 20, of the Colorado Constitution.

A.

The eighth amendment to the United States Constitution provides that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Article II, section 20, of the Colorado Constitution is identical to the eighth amendment to the United States Constitution. The final clause of the eighth amendment prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed. Solem, 463 U.S. at 284, 103 S.Ct. at 3006.

In Solem, the Supreme Court held "as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Id. at 290, 103 S.Ct. at 3009. The Court further held that "[r]eviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." Id. (footnote omitted). Although the Court noted that " '[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare,' " Solem, 463 U.S. at 289-90, 103 S.Ct. at 3009-10 (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980)) (brackets and emphasis supplied by Solem Court), it also stated that "no penalty is per se constitutional," and reiterated its statement in Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), that a single day in prison may be unconstitutional in some circumstances. Solem, 463 U.S. at 290, 103 S.Ct. at 3009.

The Solem Court outlined three objective factors that should guide courts in reviewing sentences under the eighth amendment. According to the Court, "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." Id. at 292, 103 S.Ct. at 3011. The defendant in Solem had been previously convicted of six non-violent felonies when, in 1979, he pleaded guilty to uttering a no-account check for $100. Id. at 279-81, 103 S.Ct. at 3004-05. The state trial court sentenced the defendant under South Dakota's recidivist statute to life imprisonment without the possibility of parole. Id. at 282, 103 S.Ct. at 3005. The Supreme Court held that the defendant's sentence violated the eighth amendment. Id. at 303, 103 S.Ct. at 3016.

The Court's opinion in Solem distinguished, but did not overrule, Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). In Rummel, the Court upheld the life sentence imposed upon the defendant pursuant to the Texas recidivist statute. Rummel had previously been convicted of fraudulent use of a credit card to purchase $80 worth of goods, and passing a forged check in the amount of $28.36. Id. at 265, 100 S.Ct. at 1135. In 1973 the trial court sentenced Rummel to life imprisonment following his conviction for obtaining $120.75 by false pretenses. Id. at 266, 100 S.Ct. at 1135. The Court noted that the court of appeals, which upheld Rummel's conviction, had considered the probability that Rummel would be eligible for parole within twelve years of his initial confinement to be particularly important. ⁹ Id. at 268, 100 S.Ct. at 1136. The Court deferred to Texas' discretionary power to prescribe criminal punishments and upheld Rummel's sentence. Id. at 284-85, 100 S.Ct. at 1144-45.

The Solem Court stated that its decision was "entirely consistent with [the] Court's prior cases--including Rummel v. Estelle." Solem, 463 U.S. at 288 n. 13, 103 S.Ct. at 3008 n. 13. The Court noted that because

the Rummel Court ... offered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation. Here the facts are clearly distinguishable. Whereas Rummel was eligible for a reasonably early parole, Helm, at age 36, was sentenced to life with no possibility of parole.

Id. at 304 n. 32, 103 S.Ct. at 3017 n. 32.

In People v. Hernandez, 686 P.2d 1325, 1327 (Colo.1984), we stated that "[s]ince Solem is the last pronouncement of the Supreme Court, we are compelled to grant proportionality review when a life sentence is imposed under the Colorado habitual criminal statute." In Hernandez, we upheld the defendant's life sentence under the Habitual Criminal Act on the basis of an abbreviated proportionality review. Id. at 1330. The defendant in Hernandez was convicted of second degree burglary and conspiracy to commit second degree burglary, and had been previously convicted of robbery, theft, attempted second degree forgery, sale of narcotic drugs, second degree burglary and theft over $100.00, and possession of contraband. Hernandez, 686 P.2d at 1329 n. 3. In Hernandez, we upheld the defendant's sentence on the basis of the gravity of the offenses he committed, including the fact that some of the offenses were "serious violent crimes," and the fact that the defendant would be eligible for parole. Id. at 1330. We noted that "Rummel can only be distinguished from Solem by emphasizing the provision in the South Dakota statute which denies habitual criminals the possibility of parole." Id. at 1330 n. 4. In People v. Drake, 785 P.2d 1257, 1275 (Colo.1990), we stated that this statement in Hernandez suggests that the constitutionality of a sentence imposed under an habitual criminal statute depends to a great extent on the availability of parole.

B.

1.

We hold that a defendant who challenges the constitutionality of a life sentence imposed under Colorado's present habitual criminal statute is entitled to an abbreviated proportionality review of that sentence. Hernandez, 686 P.2d at 1329; People v. Austin, No. 87CA1648, slip op. at 9, --- P.2d ----, ---- (Colo.App. April 26, 1990) ("a proportionality review is required when a life sentence is imposed under [Colorado's]...