People v. Gaskins, 90SC437

• Decision Date: 13 January 1992
• Docket Number: No. 90SC437,90SC437
• Citation: 825 P.2d 30
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. John Harvey GASKINS, Respondent.
• Court: Colorado Supreme Court

Page 30

825 P.2d 30

The PEOPLE of the State of Colorado, Petitioner, v. John Harvey GASKINS, Respondent.

No. 90SC437.

Supreme Court of Colorado En Banc.

Jan. 13, 1992.

Rehearing Denied Feb. 3, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy

M. Tymkovich, Sol. Gen., Robert Mark Russel, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colo. State Public Defender, Frances Smylie Brown, Chief Appellate Deputy, Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted the People's petition for certiorari to determine whether the Colorado Court of Appeals correctly concluded that the defendant, John Harvey Gaskins, was entitled to a proportionality review of a life sentence imposed pursuant to the habitual criminal statute, section 16-13-101, 8A C.R.S. (1986), and, if so, whether the court abused its discretion in remanding the case to the trial court to conduct the review. We hold that a proportionality review of a life sentence imposed under the Colorado habitual criminal statute is required by the cruel and unusual punishments clauses of the United States and Colorado Constitutions. ¹ In addition, we conclude that the court of appeals acted within its discretion in vacating Gaskins' sentence and remanding the case to the trial court with directions to resentence after conducting a proportionality review. Accordingly, we affirm the judgment of the Colorado Court of Appeals.

I.

We derive the following description of relevant events from the evidence adduced at a trial before a jury. On June 28, 1987, shortly after midnight, Gaskins and a companion were observed attempting to remove a candy vending machine from the lobby of the Viscount Hotel in Denver. A hotel employee questioned the men, and they responded that the machine was being removed for repairs. At the employee's request, Gaskins went with him to the front desk but was unable to produce identification. Gaskins then accompanied the employee outside, where they unsuccessfully sought to locate Gaskins' companion. Gaskins then assaulted the employee with a rock, breaking his nose. A scuffle ensued, during which Gaskins bit the employee on the arm. Gaskins was eventually restrained by two other hotel employees, and the vending machine was later recovered outside the hotel. Gaskins was brought to trial in Denver District Court and convicted of third-degree assault ² and criminal attempt to commit theft. ³ He was also adjudged to be a habitual criminal based on the jury's determination that he had sustained three prior felony convictions. See § 16-13-101.

In the absence of Gaskins' conviction as a habitual criminal, the applicable sentencing statutes would have subjected him to a maximum sentence of two years imprisonment for third-degree assault, § 18-1-106, 8B C.R.S. (1986), and to a maximum sentence of four years imprisonment for attempt to commit theft, § 18-1-105(1)(a)(IV), 8B C.R.S. (1986 & 1991 Supp.). Gaskins, however, received a mandatory sentence of life imprisonment pursuant to the habitual criminal statute, section 16-13-101. The jury determined that he had previously been convicted of three felonies, which provided the basis for his habitual criminal conviction. The first occurred in 1976, when Gaskins entered a guilty plea to a charge of second-degree assault, a class 4 felony, for an assault on a police officer, and was sentenced to four years imprisonment. The second felony conviction occurred in June of 1981, when a jury found him guilty of attempt to commit criminal trespass, a class 5 felony. He received a sentence of eighteen months imprisonment plus one year parole for that crime. The third felony conviction was entered in August of 1981, based on Gaskins' plea of guilty to a charge of theft, a class 4 felony, for entering an apartment and taking a jacket, tie tack, and knife. The court sentenced him to four years imprisonment plus one year probation for that offense.

Gaskins objected to the imposition of a life sentence in the present case, asserting that it is disproportionate to the gravity of the crime and, therefore, in violation of the cruel and unusual punishments clauses of the United States and Colorado Constitutions. ⁴ The trial court noted the objection but found that the information accompanying the objection was insufficient to conduct a proportionality review. ⁵ The court then ruled that imposition of a life sentence is mandatory under section 16-13-101 upon conviction as a habitual criminal, and sentenced Gaskins accordingly.

The court of appeals affirmed the judgment of conviction but vacated the life sentence and remanded the case for a proportionality review and resentencing. People v. Gaskins, No. 88CA0159 (Colo.App. May 17, 1990) (unpublished opinion). The court held that the trial court is in a better position to conduct a proportionality review, particularly "when the focus [is] on the defendant's record in its entirety, rather than upon the seriousness of the present offense." Gaskins, slip op. at 4. We granted certiorari to determine whether the court of appeals abused its discretion by remanding the case for a proportionality review.

We first set forth the provisions of the habitual offender statute at issue in this case and review the standards for proportionality review established by the United States Supreme Court in the seminal case of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). We then address and reject the People's argument that proportionality review of a life sentence imposed under the Colorado habitual criminal statute is not constitutionally required. Finally, we consider the standards for conducting the constitutionally required proportionality review of a sentence and for determining whether such a review can be performed initially by an appellate court without the necessity for remand. As a result of our analysis, we conclude that the court of appeals acted within its discretion in remanding this case to the trial court to review Gaskins' sentence for proportionality.

II.

A.

The Colorado habitual criminal statute provides in pertinent part that

[e]very person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony ... shall be adjudged an habitual criminal and shall be punished by imprisonment in a correctional facility for the term of his or her natural life.

§ 16-13-101(2). A person sentenced to life imprisonment pursuant to the habitual criminal statute is not eligible for parole "until he has served at least forty calendar years ...." § 17-22.5-104(2)(c), 8A C.R.S. (1986). ⁶

B.

The United States Supreme Court addressed a cruel and unusual punishments challenge to the constitutionality of South Dakota's recidivist statute, an act bearing some similarities to the Colorado habitual criminal statute, ⁷ in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The South Dakota statute authorized a maximum sentence of life imprisonment without parole for a felony conviction when the defendant had sustained at least three prior convictions. The defendant in Solem sought habeas corpus relief from a sentence to life imprisonment under the recidivist statute for the felony offense of passing a "no account" check for $100. His record included six prior felony convictions, three for third-degree burglary, and one each for obtaining money under false pretenses, grand larceny, and third-offense driving while intoxicated. The Court noted that the record contained no details about the circumstances of the prior offenses except that "they were all nonviolent, none was a crime against a person, and alcohol was a contributing factor in each case," id. at 280, 103 S.Ct. at 3005, as it was in the commission of the offense for which the defendant in Solem was being sentenced. Id. at 279-81, 103 S.Ct. at 3004-05. The Court held that the cruel and unusual punishments clause of the Eighth Amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Id. at 284, 103 S.Ct. at 3006. Concluding that the defendant's sentence was "significantly disproportionate to his crime," id. at 303, 103 S.Ct. at 3016, the Court affirmed the judgment of the Eighth Circuit Court of Appeals directing that the defendant's petition for habeas corpus relief be granted unless the state resentenced the defendant. Id. at 283-84, 303, 103 S.Ct. at 3006-07, 3016.

In reaching the result in Solem, the Court held "as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted" and that "no penalty is per se constitutional." Id. at 290, 103 S.Ct. at 3009. The Court cautioned, however, that "[r]eviewing courts, of course, 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. at 290, 103 S.Ct. at 3009.

In Solem, the Court identified three sets of objective factors, or criteria, to be employed in reviewing sentences for proportionality under the Eighth Amendment. First, a court must examine the gravity of the offense and the harshness of the penalty. Id. at 290-91, 103 S.Ct. at 3009-10. Second, "it may be helpful" to compare the sentence to the sentences imposed on other criminals in the same jurisdiction. Id. at 291, 103 S.Ct. at 3010. "If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive." Id. Third, a court "may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions." Id. at...