People v. Cisneros

Decision Date06 July 1993
Docket NumberNos. 91SC467,92SC71,s. 91SC467
Citation855 P.2d 822
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Chris CISNEROS, Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Willie Louis ATES, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Clement P. Engle, Asst. Atty. Gen., Appellate Section, Denver, for the People.

Cherner and Blackman, Barbara S. Blackman, Denver, for Chris Cisneros.

Karen Chilton Beverly, Duncanville, TX, for Willie Louis Ates.

Justice VOLLACK delivered the Opinion of the Court.

The People of the State of Colorado (the People) petition from the decision of the court of appeals in People v. Cisneros, 824 P.2d 16 (Colo.App.1991), wherein the court of appeals affirmed respondent Chris Cisneros' convictions of second-degree burglary 1 and theft, 2 and his adjudication as a habitual criminal on the basis of four prior felony convictions, but remanded the case to the trial court to conduct an extended proportionality review of his sentence to life imprisonment with eligibility for parole after forty years. 3 The court of appeals held that an extended proportionality review was required in light of Cisneros' age 4 because, "for all practical purposes, [Cisneros] is ineligible for parole." Cisneros, 824 P.2d at 19.

The People also petition from the court of appeals decision in People v. Ates, No. 89CA1593 (Colo.App. Apr. 4, 1991) (not selected for publication), wherein the court of appeals affirmed Willie Louis Ates' conviction of possession of a controlled substance (cocaine), 5 and his adjudication as a habitual criminal on the basis of three prior felony convictions, but vacated Ates' sentence to life imprisonment, 6 and remanded the case to conduct an extended proportionality review of the sentence. As in Cisneros, the court of appeals in Ates reasoned that Ates is essentially ineligible for parole by virtue of his age. 7

We granted the People's petitions for certiorari review of the court of appeals' conclusions in Cisneros and Ates, and consolidated the cases for our review. We first determine that an abbreviated form of proportionality review is appropriate in both Cisneros and Ates, and, after conducting such a review in each case, we reverse the judgments of the court of appeals in both Cisneros and Ates.

I.
A. Cisneros

On April 2, 1987, a tenant returning home discovered that his apartment door was ajar and that an intruder was inside. The intruder struck the tenant several times and then escaped from the apartment building. The manager of the apartment building observed the intruder drive away in a red Toyota pickup truck. The tenant found that his dresser drawers had been ransacked, and that jewelry which he had inherited from his father, a $7,800 watch, and $1,200 in cash were missing. The tenant reported the incident to Denver police officials, and the apartment manager provided the police with the license number of the pickup truck and a description of the intruder. The police determined that Chris Cisneros owned the red pickup truck, and both the tenant and the apartment building manager positively identified Cisneros as the intruder. Cisneros was arrested the following day.

The People subsequently filed a complaint and information charging Cisneros with the offenses of second-degree burglary and theft. The People later amended the complaint and information to charge Cisneros as a habitual criminal. 8 The additional seven convictions charged included:

(1) Count 3: attempted second-degree burglary 9 (1986) (sentenced pursuant to guilty plea);

(2) Count 4: second-degree burglary 10 (1982) (sentenced pursuant to guilty plea);

(3) Count 5: attempted second-degree burglary 11 (1979) (sentenced pursuant to guilty plea);

(4) Count 6: attempted possession of narcotic drug 12 (1976) (sentenced pursuant to guilty plea);

(5) Count 7: possession of burglary tools 13 (1971) (sentenced pursuant to guilty plea);

(6) Count 8: second-degree burglary 14 (1967) (sentenced pursuant to guilty plea);

(7) Count 9: receiving stolen property 15 (1960) (sentenced pursuant to plea of nolo contendere).

Cisneros collaterally attacked the prior convictions at a pretrial hearing, and the court suppressed the convictions alleged in count 7 and count 8, because Cisneros made an unrebutted prima facie showing of their invalidity. The court also granted a judgment of acquittal as to count 6 due to a technical failure of proof.

On June 22, 1989, a jury found Cisneros guilty of both of the substantive charges, and Cisneros was convicted of second degree burglary, a class 3 felony, and theft, a class 4 felony. Cisneros subsequently waived his right to a jury trial on the habitual criminal charges, and was adjudicated as a habitual criminal on the basis of four of the nine charged prior felony convictions. The four prior convictions underlying the habitual criminal adjudication included: (1) attempted second-degree burglary (1986); (2) second-degree burglary (1982); (3) attempted second-degree burglary (1979); and (4) receiving stolen property (1960). According to the pre-sentence report, Cisneros was on parole at the time that he committed the present offenses.

Prior to sentencing, Cisneros filed a motion with the trial court requesting a proportionality review 16 of the mandatory life sentence which the trial court was required to impose pursuant to the habitual criminal statute. Cisneros argued that, in light of his age, he was effectively precluded from parole consideration. Cisneros also contended that a comparison of his offense to others similarly situated would establish that imposition of the mandatory sentence required under the habitual criminal statute would constitute cruel and unusual punishment. 17

The trial court denied Cisneros' motion for proportionality review. The trial court declined to conduct a proportionality review because an individual sentenced pursuant to the habitual criminal statute is eligible for parole, and because either the court of appeals or this court could conduct a proportionality review on appeal. In accordance with section 16-13-101(2), 8A C.R.S. (1986), of the habitual criminal statute, the trial court sentenced Cisneros to life imprisonment with eligibility for parole after forty years. 18

On appeal, Cisneros argued that the trial court erred in denying his motion to conduct a proportionality review of his sentence. The court of appeals found that, because Cisneros was fifty-nine years old, the forty-year sentence was the equivalent of a life sentence without the possibility of parole, and that Cisneros was therefore entitled to an extended proportionality review. People v. Cisneros, 824 P.2d 16, 18-19 (Colo.App.1991). The court of appeals reasoned as follows:

Under the Solem[ v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ] ruling, an extended proportionality review is mandated by the Eighth Amendment protection against cruel and unusual punishment if the defendant is faced with a life sentence without the possibility of parole.... In our view, ... the fact that defendant's life will likely end before he is eligible for parole makes this situation comparable to that in Solem v. Helm, and, therefore, an extended proportionality review is required.

Id. at 18-19. The court of appeals concluded that the record on appeal did not permit it to conduct an extended proportionality review; accordingly, the court of appeals remanded the case to the trial court with directions to conduct such a review.

The People filed a cross-petition for writ of certiorari, asserting that the court of appeals erred in holding that Cisneros was entitled to an extended proportionality review even though he was eligible for parole in forty calendar years. 19

B. Ates

On April 23, 1988, Colorado Springs Police officials entered an alleged crack house, pursuant to a warrant, and discovered the respondent, Willie Louis Ates, alone in one of the bedrooms. The police searched both Ates and the room, and found cocaine, a scale with cocaine residue, and paraphernalia associated with the manufacture, distribution, and consumption of crack cocaine.

The police arrested Ates and subsequently charged him with the offenses of possession of a controlled substance (cocaine), 20 and possession of a controlled substance (cocaine) with intent to distribute, dispense, or sell. 21 The People later amended the complaint and information to charge Ates as a habitual criminal based upon three prior felony convictions. The first conviction, for the sale of narcotic drugs (cocaine, two counts), 22 occurred in 1981. The second conviction, for felony menacing with a knife, 23 occurred in 1986; and the third conviction, for violation of bail bonds conditions, 24 occurred in 1987.

Prior to trial, Ates moved to dismiss the habitual criminal charges and the trial court denied this motion. The trial court reasoned as follows:

I think that the supporting criminal charges here of sale of narcotics, menacing--Even, in my opinion, bail jumping or violation bail bond conditions is not the--certainly not the most heinous crime in the world but does carry a penalty potentially of up to eight years in prison. So society has deemed it not an unsubstantial offense. I wouldn't think that they were so minor in their nature as to constitute cruel and unusual punishment at this time.

The jury found Ates guilty of count 1, the offense of possession of a controlled substance (cocaine), a class 3 felony. 25 In bifurcated proceedings under the habitual statute, the jury subsequently determined that Ates had been convicted of three prior felonies. Pursuant to section 16-13-101(2), the trial court sentenced Ates to life imprisonment without the possibility...

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