People v. McRae

• Decision Date: 04 November 2019
• Citation: People v. McRae, 451 P.3d 835 (Colo. 2019)
• Docket Number: 16SC753
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Clifton Eugene MCRAE, Respondent.
• Court: Colorado Supreme Court

451 P.3d 835

The PEOPLE of the State of Colorado, Petitioner,

v.Clifton Eugene MCRAE, Respondent.

Supreme Court Case No. 16SC753

Supreme Court of Colorado.

November 4, 2019

Attorneys for Petitioner: Dave Young, District Attorney, Seventeenth Judicial District, Michael Whitney, Deputy District Attorney, Brighton, Colorado

Attorneys for Respondent: Law Office of April M. Elliott, P.C., April M. Elliott, Denver, Colorado

En Banc

JUSTICE SAMOURdelivered the Opinion of the Court.

¶1 In this case and the two companion caseswe announce today, Wells-Yates v. People , 2019 CO 90, ––– P.3d ––––, andMelton v. People , 2019 CO 89, 451 P.3d 415, 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, seeWells-Yates , ¶¶ 4–28, we do not repeat it here.

¶2 Consistent with Wells-Yates , we hold that, 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.¹Seeid.¶¶ 2, 45, 76.Although the court of appeals reached a similar conclusion, it erred in failing to recognize that, rather than consider relevant prospective legislative amendments enacted after the dates of the triggering and predicate offenses, the trial court actually appliedthose amendments retroactively.We therefore reverse the court of appeals' judgment.²Further, because additional factual determinations are necessary to properly address Clifton Eugene McRae'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

¶3 On July 2, 2013, McRae sold 6.86 grams of methamphetamine, a schedule II controlled substance, for $350 to his girlfriend, who was working as a confidential informant.The prosecution later brought six drug-related charges against McRae, only two of which arose from the July 2, 2013 transaction, and six habitual criminal charges.In August 2014, the jury found McRae guilty of selling or distributing a schedule II controlled substance, a class 3 felony, and possessing drug paraphernalia, a petty offense, in connection with the July 2, 2013 transaction.The jury could not reach a verdict on the four remaining counts and those counts were eventually dismissed.During a subsequent bench trial, the court adjudicated McRae a habitual criminal based on six predicate offenses:

• a class 5 felony for possession with intent to sell or distribute a schedule IV controlled substance in 2000;

• a class 5 felony for attempted theft (between $500 and $15,000) in 2001;

• a class 4 felony for possession of a schedule II controlled substance in 2001;

• another class 4 felony for possession of a schedule II controlled substance in 2001;

• a class 3 felony for possession with intent to sell or distribute 25–450 grams of a schedule II controlled substance in 2001; and

• a class 4 felony for possession of a schedule II controlled substance in 2006.

¶4 Before sentencing, McRae advanced a preemptive proportionality challenge, arguing that the 64-year habitual criminal sentence required by law for the triggering offense of selling or distributing a schedule II controlled substance was grossly disproportionate.The trial court conducted a combined hearing during which it addressed the proportionality challenge before proceeding to sentence McRae.³

¶5 As part of his proportionality challenge, McRae urged the trial court to consider legislative amendments related to the classification of and punishment for his triggering and predicate offenses, even though the amendments had become effective after the dates of those offenses and had no retroactive application.The trial court agreed that the legislative amendments were relevant.It then focused on the amendments affecting the triggering offense.More specifically, it explained that the sale or distribution of a schedule II controlled substance is no longer an extraordinary risk class 3 felony, which has a presumptive prison term of 4 to 16 years.Rather, noted the court, effective October 1, 2013, approximately three months after McRae's triggering offense, the legislature reclassified that offense as a level 3 drug felony, which is not considered an extraordinary risk crime and which has a presumptive prison term of 2 to 4 years.Thus, observed the court, had McRae committed the triggering offense three months later, he would have faced a 16-year habitual criminal sentence (4 × 4) instead of a 64-year habitual criminal sentence (16 × 4).

¶6The trial court initially acknowledged that the amendments were not retroactive and were thus "not applicable" to McRae.But it later changed course and determined that they"applie[d]" to McRae.The trial court then reasoned "that the sentencing disparity between 16 and 64 years" was "grossly disproportionate."In other words, rather than compare the gravity or seriousness of McRae's triggering offense and predicate offenses with the harshness of the required 64-year prison sentence, the trial court compared the sentence required by the statutory provisions before they were amended to the sentence required after the amendments.The trial court ultimately ruled that McRae should be sentenced under the amended sentencing scheme.Hence, despite finding that the triggering offense and five of the six predicate offenses (the drug-related predicate offenses) were per se grave or serious, the trial court concluded that the required prison sentence of 64 years raised an inference of gross disproportionality and sentenced McRae to 16 years in prison instead.

¶7The prosecutor inquired whether the court intended to proceed to an extended proportionality review, since it had found that the abbreviated proportionality review gave rise to an inference of gross disproportionality.But the court declined to hold an extended proportionality review.Instead, it arrived at the 16-year sentence at the end of the abbreviated proportionality review.

¶8The prosecution appealed, and in a published, unanimous decision, a division of the court of appeals upheld the trial court's determination that there was an inference of gross disproportionality.People v. McRae , 2016 COA 117, ¶ 1, ––– P.3d ––––.Although the division acknowledged that retroactive application of the statutory amendments"would have been unlawful," it concluded that the trial court had not retroactively applied the amendments.Id. at ¶ 17.In so doing, it relied exclusively on the trial court's preliminary observation "that the [amended]statute is not retroactively applicable."Id.at ¶ 20.It thus ignored the trial court's final ruling that the legislative amendments applied to McRae's sentence.

¶9 Nevertheless, the division vacated McRae's sentence and remanded the case to the trial court for an extended proportionality review.Id.at ¶¶ 28 –29.It recognized that such review is required whenever an abbreviated proportionality review gives rise to an inference of gross disproportionality.Id.

¶10The prosecution appealed the division's decision.And we granted the prosecution's petition for certiorari in part.⁴

II.Standard of Review

¶11 Whether a sentence is grossly disproportionate and in violation of the Eighth Amendment to the U.S. Constitutionandarticle 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

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

¶12The prosecution argues that, in determining the gravity or seriousness of a triggering or predicate offense the court should not consider legislative amendments enacted after the date of the offense that have no retroactive application.We disagree.

¶13 In line with Wells-Yates , we conclude that, in determining the gravity or seriousness of the 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.SeeWells-Yates , ¶ 45.This includes amendments to the classification of and punishment for the offenses in question, as well as amendments to the habitual criminal statute.Id.The fact that one or more of the offenses involved may previously have been designated per se grave or serious does not alter the analysis.Id.at ¶ 46.

¶14 The division correctly determined that the legislature's current evaluation of the gravity or seriousness of the triggering and predicate offenses should be considered during an abbreviated proportionality review.SeeMcRae , ¶¶ 17–19.Where we part ways with the division is in its conclusion that the trial court did not improperly apply the statutory amendments retroactively.Id.at ¶ 20.

¶15"Whether statutory revisions apply retroactively ‘is a separate and distinct question from whether a defendant's sentence is constitutionally proportionate.’ "Wells-Yates , ¶ 48(quotingRutter , ¶ 35, 363 P.3d at 191(Gabriel, J., dissenting)).Our review of the record reveals that the trial court did precisely what it recognized it could not lawfully do: It applied retroactively the statutory amendments affecting the classification of and punishment for the sale or distribution of a schedule II controlled substance, even though the amendments were enacted...