Close v. People

• Decision Date: 28 May 2002
• Docket Number: No. 00SC690.,00SC690.
• Citation: 48 P.3d 528
• Parties: James CLOSE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

48 P.3d 528

James CLOSE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 00SC690.

Supreme Court of Colorado, En Banc.

May 28, 2002.

As Modified on Denial of Rehearing July 1, 2002.

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.

Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the opinion of the Court.

This case presents the issue of whether a criminal defendant who is sentenced pursuant to the crime of violence statute, section 16-11-309(1)(a), 6 C.R.S. (2001), is entitled, upon request, to a proportionality review of his sentence, and, if so, what is the proper scope of such proportionality review. The trial court declined to conduct a proportionality review of defendant Close's sixty-year sentence. The court of appeals affirmed. People v. Close, 22 P.3d 933, 939 (Colo.Ct. App.2000). Both courts based their conclusion on the fact that the sixty-year sentence was the mandatory minimum sentence under the statute, reasoning that courts are not authorized to conduct proportionality reviews of legislatively mandated penalties, particularly when the penalty imposed is the minimum under the statute. We disagree with the reasoning, but affirm on different grounds.

We conclude that the current law governing proportionality review does include a well-established principle of proportionality through the Eighth Amendment to the United States Constitution and that Close was entitled to an abbreviated proportionality review of his sentence. We find that neither the statutorily mandated nature of the crime of violence statute nor the fact that the sentence imposed in this case was the minimum under that statute precludes a sentencing court from conducting an abbreviated proportionality review. More specifically, we hold that, because of the risk of a disproportionate sentence under the crime of violence statute, a defendant sentenced under that statute is entitled, upon request, to an abbreviated proportionality review, regardless of whether he was sentenced to the minimum possible sentence under that statute.

However, although we hold that the denial of a proportionality review was erroneous, we affirm the sixty-year sentence. Our review of the record reveals that we are able to conduct the required proportionality review, which was requested by Close, without remand. Our abbreviated proportionality review reveals that Close's sentence is not grossly disproportionate. As a result, he is not entitled to an extended proportionality review and his sentence is affirmed.

After reviewing the relevant facts and procedure in this case, we then turn to the controlling United States Supreme Court cases and our own precedent in order to present the current, controlling legal framework of the proportionality principle. We discuss these cases at length because a similar issue regarding the proportionality principle is presented in the companion case to this case, People v. Deroulet, 22 P.3d 939 (Colo. Ct.App.2000), also issued today. In Deroulet, another panel of the court of appeals reached a conclusion regarding the availability of a proportionality review that conflicts with the court of appeals' decision in this case. More specifically, the court of appeals in this case concluded that Close, who was sentenced under the crime of violence statute, was not entitled to a proportionality review, while the Deroulet court concluded that defendant Deroulet, who was sentenced under the habitual criminal statute, as amended in 1993, was entitled to an proportionality review of his sentence. Compare Close, 22 P.3d at 939

with Deroulet, 22 P.3d at 946. Although these cases involve two different statutes, the issues are sufficiently similar, namely under what circumstances a defendant is entitled to a proportionality review, that we consider these two cases to represent a split in authority. Thus, we present a detailed discussion of controlling precedent in order to fully explain our holdings in these two companion cases.

This framework enables us to address the issues of which defendants are entitled to a proportionality review, what is at issue in a proportionality review, and what the procedural mechanisms are for such review. More specifically, our review of Supreme Court precedent reveals that a proportionality review is permitted for sentences to a term of years and to statutorily mandated sentences. This precedent also defines two types of procedural mechanisms through which courts may conduct proportionality reviews, namely abbreviated proportionality reviews and extended proportionality reviews. Our review of our own precedent illustrates that we have closely followed the Supreme Court in developing our own body of proportionality review law. In addition, we have, specific to Colorado law, recognized some crimes as grave or serious. Utilizing the proportionality review framework that we discern from the United States Supreme Court as well as from our own precedent, we proceed to engage in an abbreviated proportionality review of Close's sentences and conclude that each is constitutionally proportionate.

I. Facts and Procedure

On the evening of October 6, 1990, Close, along with his brother and two friends, vandalized and stole speakers from a car. The four teenagers then surrounded a group of six Japanese students from Teikyo Loretto Heights University in Denver, who were sitting in a nearby park. The four teenagers struck the students with sticks and bats. One of the teenagers demanded that the students produce identification and money. The attack stopped when one of the students fled and the others followed. Property was taken from three students and included a package of cigarettes, two rings, $10, and a wallet.

Close was convicted of one count each of criminal mischief, first-degree criminal trespass, misdemeanor theft, and conspiracy to commit criminal mischief and theft; three counts each of aggravated robbery and attempted aggravated robbery; six counts each of second-degree assault and ethnic intimidation; and one count of conspiracy to commit ethnic intimidation. The trial court sentenced Close to cumulative minimum sentences totaling sixty years of imprisonment.¹

Close filed a timely motion for post-conviction relief in which he asserted that his sixty-year sentence was unconstitutionally disproportionate. The trial court ordered the People to respond to the motion. The trial court heard argument on the motion and decided to prohibit Close from presenting evidence at an extended proportionality review. The trial court reasoned that although the sentence was lengthy, Close was convicted of multiple mandatory consecutive crimes of violence, which mandated the lengthy sentence. The trial court stated that it did not "feel that [the sentence] in any way violates the Constitution as far as disproportionate sentences are concerned."²

In affirming the trial court, the court of appeals emphasized that Close's sentence was the minimum allowable under the crime of violence statute: The court of appeals held that there was no authority to request a proportionality review in this case because the sentence imposed was the minimum allowable by statute. See Close, 22 P.3d at 939

. As a result, the court of appeals affirmed the trial court's decision not to hold an extended proportionality review because the trial court "could not impose a sentence that was less that the minimum mandated by law." Id. at 939. We granted certiorari.³

II. Controlling Law

Our review of controlling United States Supreme Court and our own precedent in this section describes the constitutional proportionality principle embodied in the Eighth Amendment, articulates the parameters of which defendants are entitled to a proportionality review, and establishes that there are two procedural types of proportionality review, namely an abbreviated proportionality review and an extended proportionality review. Finally, our review of the case law in this section leads us to conclude that a separate proportionality review must be completed for each sentence imposed consecutively, rather than considering the cumulative total of such consecutive sentences.

A. The Constitutional Principle of Proportionality

The principle of proportionality at issue in this case is grounded in the Eighth Amendment, which provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Very generally, the principle of proportionality has been described as encompassing the concept that "the punishment should fit the crime." Mary K. Woodburn, Comment: Harmelin v. Michigan and Proportionality Review Under the Eighth Amendment, 77 Iowa L. Rev. 1927, 1927 (1992).

B. United States Supreme Court Precedent

That the proportionality principle includes a guarantee against disproportionate sentences in the context of capital punishment is well-recognized by the United States Supreme Court. Id.; see also, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)

. The Supreme Court has also extended the proportionality principle to non-capital cases. While successful Eighth Amendment challenges in this area may be rare, preservation of proportionality review is essential to the guarantees provided by the Eighth Amendment. See Woodburn, supra, at 1927; see also, e.g., Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

The contours of current Eighth Amendment proportionality review in non-capital cases have been defined predominantly by five United States Supreme Court cases. We review these cases in some detail because they frame our determination today that Close is entitled to an abbreviated proportionality...