Melton v. People

• Decision Date: 04 November 2019
• Docket Number: Supreme Court Case No. 14SC282
• Citation: 451 P.3d 415
• Parties: Johnny Maurice MELTON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent
• Court: Colorado Supreme Court

451 P.3d 415

Johnny Maurice MELTON, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent

Supreme Court Case No. 14SC282

Supreme Court of Colorado.

November 4, 2019

Attorneys for Petitioner: Megan A. Ring, Public Defender Elizabeth Porter-Merrill, Senior Deputy Public Defender Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General William G. Kozeliski, Assistant Attorney General Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 In this case and the two companion cases we announce today, Wells-Yates v. People , 2019 CO 90, ––– P.3d ––––, and People v. McRae , 2019 CO 91, ––– P.3d ––––, we consider issues that lie at the intersection of habitual criminal punishment and proportionality review. Because our decision in Wells-Yates , the lead case, contains a detailed discussion of the law governing proportionality review, including in the habitual criminal context, see Wells-Yates , ¶¶ 4–28, we do not repeat it here.

¶2 Consistent with Wells-Yates , we hold that: (1) possession of schedule I and II controlled substances is not per se grave or serious for purposes of an abbreviated proportionality review; and (2) in determining the gravity or seriousness of triggering and predicate offenses during an abbreviated proportionality review, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively.¹ See id. at ¶¶ 2, 45, 76. We additionally hold that theft is not a per se grave or serious offense. Theft may be grave or serious, but that determination hinges on the facts and circumstances surrounding the particular crime committed.

¶3 Because the court of appeals reached different conclusions, we reverse its judgment.² And, because factual determinations are necessary to properly address Johnny Maurice Melton’s proportionality challenge, we remand with instructions to return the case to the trial court for a new proportionality review in accordance with the three opinions we issue today.

I. Facts and Procedural History

¶4 Seeking to execute multiple outstanding arrest warrants for Melton in October 2009, three deputies responded to his mother’s home shortly before midnight. After locating Melton in the home, they arrested him. During an ensuing search of his person, they recovered a metal tin containing methamphetamine mixed with trace amounts of oxycodone, heroin, and cocaine. Melton then asked the deputies to retrieve a cigarette from a leather jacket on a bed. In one of the jacket’s pockets, the deputies found marijuana, as well as methamphetamine mixed with trace amounts of ecstasy and diazepam. A search of the jacket revealed a hypodermic needle containing a suspected narcotic, though that substance was never tested. The prosecution later charged Melton with six substantive drug offenses and three habitual criminal counts.

¶5 As relevant here, in October 2010, the jury found Melton guilty of possession of 1 gram or less of each of three schedule I or II controlled substances (methamphetamine, heroin, and oxycodone). Because Melton had previously been convicted of possession of a schedule II controlled substance, each of the three convictions in this case was elevated from a class 6 felony to a class 4 felony. At a subsequent bench trial in December 2010, the court adjudicated Melton a habitual criminal based on his prior felony convictions for possession of methamphetamine, theft, and second degree assault. The court then imposed a mandatory 24-year prison sentence on each of the three triggering offenses (four times the maximum prison term in the presumptive range), see § 18-1.3-801(2)(a)(I), C.R.S. (2019), and ordered that the sentences be served concurrently.

¶6 Melton challenged his sentences on proportionality grounds, but after an abbreviated proportionality review, the trial court found no inference of gross disproportionality. Hence, the court determined that Melton’s sentences were constitutional under the Eighth Amendment to the U.S. Constitution and article II, section 20 of the Colorado Constitution.

¶7 A split division of the court of appeals affirmed Melton’s convictions and sentences, though it remanded the case for correction of a clerical error in the mittimus. See People v. Melton , No. 11CA0225, slip op. at 17 (Mar. 6, 2014). In his partial dissent, Judge Berger concluded: (1) that the triggering offenses of possession of schedule I and II controlled substances are not per se grave or serious; and (2) that the predicate offense of theft is not per se grave or serious. Id. at 18–30 (Berger, J., dissenting in part). As to the former, Judge Berger acknowledged that our court has previously designated all narcotic offenses as inherently (or per se) grave or serious, but asserted that "it is appropriate, indeed essential," to reassess such designation in light of recent legislative changes to the drug statutes and the habitual criminal statute. Id. at 25. As to the latter, he opined that "there are many circumstances in which the conviction of the crime of theft cannot reasonably be said to fall into the same category as other established per se grave or serious offenses." Id. at 28.

¶8 Melton filed a petition for certiorari review, which we granted in part.³

II. Standard of Review

¶9 Whether a sentence is grossly disproportionate and in violation of the Eighth Amendment to the U.S. Constitution and article II, section 20 of the Colorado Constitution is a question of law, not a sentencing decision requiring deference to the trial court. People v. Mershon , 874 P.2d 1025, 1035 (Colo. 1994). Therefore, our review is de novo. Rutter v. People , 2015 CO 71, ¶ 12, 363 P.3d 183, 187.

III. Analysis

¶10 Melton maintains that the division erred because, like the trial court, it: (1) considered his triggering offenses of possession of schedule I and II controlled substances to be per se grave or serious; (2) failed to consider relevant legislative amendments enacted after the dates of the triggering and predicate offenses; (3) concluded that his predicate offense of theft is per se grave or serious; and (4) failed to apprehend that his sentences are unconstitutionally disproportionate in violation of the Eighth Amendment and article II, section 20. We consider each contention in turn, though not in this order.

A. Is the Possession of Schedule I and II Controlled Substances Per Se Grave or Serious?

¶11 Melton contends that possession of schedule I and II controlled substances is not per se grave or serious. We agree. Based on our decision in Wells-Yates , we hold that possession of schedule I and II controlled substances is not per se grave or serious. See Wells-Yates , ¶ 2. Because the division treated such possession as per se grave or serious, it erred. Therefore, we reverse its judgment.

B. Should Relevant Statutory Amendments Enacted After the Dates of the Triggering and Predicate Offenses Be Considered During an Abbreviated Proportionality Review?

¶12 Melton asserts that during an abbreviated proportionality review the court should consider relevant legislative amendments enacted after the dates of the triggering and predicate offenses. We agree.

¶13 In Wells-Yates , we conclude as follows:

In determining the gravity or seriousness of the offense during an abbreviated proportionality review, the trial court should consider relevant legislative amendments enacted after the date of the offense, even if the amendments do not apply retroactively. Further, when undertaking this analysis with respect to a habitual criminal sentence, the court should consider any relevant legislative amendments related to the triggering offense and predicate offenses.

That one or more of the offenses involved may previously have been designated per se grave or serious does not alter these conclusions.

Id. at ¶¶ 45 –46. We reach the same determinations here.

¶14 The legislative amendments to the drug laws and the habitual criminal statute on which Melton relies relate to the classification of and punishment for the possession of schedule I and II controlled substances—i.e., all three of his triggering offenses and one of his predicate offenses.⁴ In line with Wells-Yates , we conclude that the division should have considered these statutory amendments. Id. at ¶¶ 41–47.

¶15 Similarly, the division should have factored in the legislative amendments to the theft statute. At the time of Melton’s predicate offense of theft, the crime of theft was classified as a class 4 felony if the value of the thing taken was between $500 and $15,000. See § 18-4-401(2)(c), C.R.S. (1997). Today, theft of anything valued at $750 or more but less than $2,000 is a class 1 misdemeanor. See § 18-4-401(2)(e), C.R.S. (2019). Although the value of the thing taken during Melton’s predicate offense is not clear from the record, there appears to be no dispute that it was $750 or more but less than $2,000. As such, it could no longer subject Melton to imprisonment in the department of corrections, much less serve as a predicate offense in support of a habitual criminal sentence. While such a change in the law is not dispositive of whether Melton’s predicate offense of theft is grave or serious, it is relevant to the analysis.

¶16 Because the division failed to take into account the relevant legislative amendments, it erred. We therefore reverse its judgment.

C. Is Theft a Per Se Grave or Serious Offense?

¶17 Melton argues that theft is not a per se grave or serious offense. We agree.

¶18 At the outset, we recognize that there appears to be support in the caselaw for both sides of this coin. Compare Mershon , 874 P.2d at 1032 ("[T]heft has been treated as a serious felony for proportionality purposes when it is one of a variety of prior offenses."), and Alvarez v. People , 797 P.2d 37, 42 (Colo. 1990) ("The gravity of [aggravated robbery, theft, and conspiracy to commit aggravated robbery and theft] justified the sentence...