People v. Mershon

• Citation: 874 P.2d 1025
• Decision Date: 18 April 1994
• Docket Number: No. 92SC598,92SC598
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Larry MERSHON, Respondent/Cross-Petitioner.
• Court: Supreme Court of Colorado

Page 1025

874 P.2d 1025

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Larry MERSHON, Respondent/Cross-Petitioner.

No. 92SC598.

Supreme Court of Colorado En Banc.

April 18, 1994.

Rehearing Denied May 16, 1994.

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, Sr. Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner, cross-respondent.

David F. Vela, CO State Public Defender, Frances Smylie Brown, Chief Appellate Deputy, Denver, for respondent, cross-petitioner.

Justice MULLARKEY delivered the Opinion of the Court.

In People v. Mershon, 844 P.2d 1240 (Colo.App.1992), the Colorado Court of Appeals affirmed the trial court's order vacating the defendant, Larry Mershon's, life sentence because it was disproportionate to his crimes in violation of the Eighth Amendment. We granted the People's petition for certiorari to review the proportionality of Mershon's life sentence under the Habitual Criminal Act sections 16-13-101 to -103, 8A C.R.S. (1986 & 1990 Supp.). We also granted Mershon's cross-petition for certiorari to decide whether the trial court erroneously applied section 16-5-402, 8A C.R.S. (1986), to prohibit Mershon from attacking the validity of his prior convictions. For the reasons set forth below, the judgment of the court of appeals is affirmed in part, reversed in part, and the case is remanded with directions.

I

On five separate occasions between November 1989 and January 1990, Mershon sold heroin to an undercover narcotics agent. Each of the sales was for between two and five $30 "hits" or "doses" of heroin. After a jury trial in October 1990, Mershon was found guilty of five counts of distribution and sale of heroin, three counts of possession of heroin, and one count of conspiracy to commit distribution of heroin, in violation of sections 12-22-309(1)(b)(XI), 5A C.R.S. (1985) and 18-18-105(1)(a), 8B C.R.S. (1986). Heroin is a Schedule I controlled substance, section 12-22-309(1)(b)(XI), and each of the felonies of which Mershon was convicted is a class 3 felony. § 18-18-105(2)(a)(I).

Mershon also was convicted of five habitual criminal counts under subsection 16-13-101(2), 8A C.R.S. (1986), of the Habitual Criminal Act. ¹ These convictions were predicated on the following felony convictions: possession of dangerous drugs (marihuana) with intent to dispense (1977), robbery (1977), attempted criminal mischief (1983), attempted dispensing of marihuana (1983), and theft (1987). Prior to trial, Mershon filed a motion to dismiss the habitual criminal counts because they were based on invalid pleas. However, the trial court denied this motion after determining that Mershon was time-barred from challenging the prior convictions under section 16-5-402, 8A C.R.S. (1986).

After Mershon was convicted of the habitual criminal counts, he requested a proportionality review. The trial court first sentenced Mershon to life imprisonment on October 16, 1990, as required by the habitual criminal statute. Then, on November 30, 1990, and January 18, 1991, the trial court held two hearings to determine what the scope of the proportionality hearing should be. At these hearings, the prosecutor argued that Mershon was entitled to only an "abbreviated" proportionality review consisting of a comparative analysis of twelve other Fourth Judicial District cases in which a life sentence had been imposed under the habitual criminal statute. The trial court agreed.

The proportionality review hearing was held on March 29, 1991. At the hearing, the prosecutor introduced a chart into evidence which showed, for Mershon and the twelve other habitual criminals, the nature of the substantive charges, the number of prior felonies proved, and the involvement of violence and deadly weapons in each defendant's substantive or prior offenses. The chart purported to demonstrate that every defendant who had been convicted of habitual criminal counts in the District, including Mershon, had committed crimes involving deadly weapons or violence.

On April 1, 1991, the trial court issued an order vacating Mershon's life sentence. The court found that the offenses of each of the other twelve habitual criminals involved violence or the use of a deadly weapon, whereas Mershon's offenses did not. In the court's view, sentencing Mershon to life imprisonment would treat him "more harshly than other criminals in this state who have committed more serious crimes." The court concluded that Mershon's sentence was "significantly disproportionate" to his crimes, and thus was "prohibited by the Eighth Amendment to the United States Constitution as cruel and unusual punishment." The trial court then ordered a resentencing hearing.

At the resentencing hearing, the trial court entertained a motion for reconsideration filed by the district attorney. The district attorney presented the testimony of additional witnesses in order to show that Mershon's convictions did not involve less violence or weapons than those of the other twelve habitual criminal defendants. The district attorney also argued that the trial court erred as a matter of law in viewing drug offenses as less serious than crimes involving violence or weapons.

While the trial court agreed that Mershon's offenses were serious, it believed that they did not meet the habitual offender "common denominator" of violence or a deadly weapon. Therefore, it denied the motion to reconsider and sentenced Mershon to five consecutive seven-year sentences totalling thirty-five years. Both Mershon and the People appealed, and in People v. Mershon, 844 P.2d 1240 (Colo.App.1992), the court of appeals affirmed the trial court's judgment and sentence.

II

The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." ² U.S. Const. amend. VIII. The United States Supreme Court has interpreted this final clause to prohibit not only barbaric punishments, but also the imposition of sentences that are disproportionate to the severity of the crimes committed. Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637 (1983). However, the Eighth Amendment does not require strict proportionality between the crime and the sentence. Harmelin v. Michigan, 501 U.S. 957, ----, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). Instead, it forbids only extreme sentences that are "grossly disproportionate" to the crime. Id.; Solem, 463 U.S. at 303, 103 S.Ct. at 3016; Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 1137-38, 63 L.Ed.2d 382 (1980); People v. Smith, 848 P.2d 365, 374 (Colo.1993).

Outside the capital punishment context, successful challenges to the proportionality of a particular sentence are extremely rare. Harmelin v. Michigan, 501 U.S. at ----, 111 S.Ct. at 2705; Solem, 463 U.S. at 289-90, 103 S.Ct. at 3009-10; Hutto v. Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 705-06, 70 L.Ed.2d 556 (1982); Rummel, 445 U.S. at 272, 100 S.Ct. at 1138. However, no sentence is per se constitutional. Solem, 463 U.S. at 290, 103 S.Ct. at 3009-10. Thus, a defendant who challenges the constitutionality of a life sentence imposed under Colorado's habitual criminal statute is entitled to a proportionality review in order to guard against the possibility that the sentence violates the Eighth Amendment. People v. Gaskins, 825 P.2d 30, 34 (Colo.1992); Alvarez v. People, 797 P.2d 37, 40 (Colo.1990); People v. Drake, 785 P.2d 1257, 1275 (Colo.1990); People v. Hernandez, 686 P.2d 1325, 1329 (Colo.1984).

A proportionality review measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender. Rummel, 445 U.S. at 288, 100 S.Ct. at 1146-47 (Powell, J., dissenting). In performing this review, courts should be guided by objective criteria, as opposed to the subjective views of individual judges. Hutto, 454 U.S. at 373, 102 S.Ct. at 705; Rummel, 445 U.S. at 275, 100 S.Ct. at 1139-40. These objective factors include (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S.Ct. at 3010-11.

Relying on Solem, this court has held that only an "abbreviated" review is required when the crimes supporting an habitual criminal sentence include grave or serious offenses, and when the defendant will become eligible for parole, albeit not for forty years. People v. Cisneros, 855 P.2d 822, 827 (Colo.1993); Gaskins, 825 P.2d at 36. This review "consists of a scrutiny of the offenses in question to determine whether in combination they are so lacking in gravity or seriousness as to suggest that a life sentence is constitutionally disproportionate to the crime." Gaskins, 825 P.2d at 36. However, when a defendant's crimes are not inherently grave or serious, then the trial court must conduct a more extensive review in which it considers additional evidence relevant to constitutional proportionality, such as the facts underlying the defendant's offenses or explicit intra- and inter-jurisdictional comparisons. Id. at 38.

In the past, we have recognized that "[t]he provisions of the Habitual Criminal Act create a unique possibility that a defendant will receive a life sentence which is not proportionate to the crime for which the defendant has been convicted." Alvarez, 797 P.2d at 40. Nevertheless, in almost all cases where a life sentence is imposed under the habitual criminal statute, only an abbreviated review will be required. Id. at 41. Only in the rare case will the felonies supporting a life sentence be so lacking in inherent...