Generally, a trial court’s sentencing decision will not be overturned absent an abuse of discretion. In some cases, however, the trial court is required to impose a mandatory sentence to the Department of Corrections, pursuant to C.R.S. Sec. 18-1.3-406 (1)(a) and 18-1.3-801.. As a result, a trial court often has no discretion, initially, in the imposition of sentence. Once a sentence imposed, the determination of whether a sentence is constitutionally “proportionate” is a question of law subject to de novo review. U.S. Const., Amend. V, VI, VIII; Colo. Const., Art. II, Sec. 16, 20, 25; People v. Reese 155 P.3d 477, (Colo.App.,2006); People v. Patnode, 126 P.3d 249 (Colo.App.2005); People v. Gaskins, 923 P.2d 292 (Colo.App.1996).
A. Every defendant has a constitutional right to a proportionality review of a habitual criminal sentence or “crime of violence” sentence.
The United States and Colorado Constitutions prohibit the imposition of a cruel and unusual sentence. A sentence which is grossly disproportionate to the offense upon which the defendant was convicted is unconstitutional. U.S. Const., Amend. VII, XIV; Colo. Const., Art. II, Sec. 20; Solem v. Helm, 463 U.S. 277 (1983); People v. Young, 814 P.2d 834 (Colo. 1991).
In Solem v. Helm, supra, the United States Supreme Court held that the 8th Amendment to the Unites States Constitution also prohibits the imposition of a sentence that is disproportionate to the crime committed. The Court ruled that the cruel and unusual punishment clause contained an implicit guarantee that the sentence imposed upon a defendant for a particular crime be proportionate to the crime. In order to evaluate the proportionality of a sentence, the Solem Court set forth a three step procedure for a sentencing court to conduct a “proportionality review:”
1. The court should consider the gravity of the offense versus the harshness of the penalty;
2. Second, the court should consider the sentences imposed upon other defendants in the same jurisdiction;
3. Third, the court should review the sentences imposed for the commission of the same crime in other jurisdictions.
After the Supreme Court’s ruling in Solem, the Colorado Supreme Court determined that habitual offenders have the right to a proportionality review in habitual criminal cases. See, People v. Hernandez, 686 P.2d 1235 (Colo. 1984). The Colorado Supreme Court has repeatedly reaffirmed the right to a proportionality review in cases involving “crime of violence” or habitual criminal sentencing. See, Close v. People, 48 P.3d 528 (Colo. 2002). People v. Mershon, 874 P.2d 1025 (Colo. 1994), citing 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, supra.
B. Recent decisions by the Colorado Supreme Court on the issue of proportionality require an analysis of the Defendant’s actual conduct, as well as any relevant legislative changes to applicable offenses.
On November 4, 2019, the Colorado Supreme Court provided new guidance on proportionality litigation. The Court noted that any designation of a crime as per se “grave and serious” must be limited to those very rare crimes which “necessarily” involved such conduct. The Court then explained:
Put differently, a crime should not be designated per se grave or serious unless the court concludes that the crime would be grave or serious in every potential factual scenario. Using the designation otherwise is fraught with peril.
Wells-Yates v. People, 454 P.3d 191, (Colo.2019).
The Court’s new approach rejects the old format that allowed courts to merely label an offense “grave” or “serious,” effectively ending all proportionality review. Instead, analysis of the defendant’s actual conduct is now necessary. As the Court noted in one example, even though narcotics distribution had historically been deemed grave and serious, “the underlying conduct may not always be grave or serious.” Wells-Yates, supra.
In addition to the new requirement that reviewing courts evaluate the underlying facts of triggering and predicate offenses, the Supreme Court in Wells-Yates ruled that a reviewing court should consider legislative amendments to the habitual criminal statute, or to the statutes governing triggering or predicate offenses. This requirement applies even if such legislative amendments were to apply prospectively. See Wells-Yates, supra.
C. A proportionality review may result in a dramatic reduction of the original sentence.
At Mulligan Breit McConnell, we have extensive experience in proportionality litigation. Patrick Mulligan litigated one of the first successful proportionality attacks in Colorado at the trial court level, and has succeeded in multiple cases involving proportionality reviews of habitual criminal sentences in recent years. Our firm currently has a number of proportionality challenges to “crime of violence” and habitual criminal sentences in jurisdictions throughout Colorado. If someone you know has a habitual criminal or crime of violence sentence, and is interested in a proportionality review of the sentence, call us at 303-295-1500. We can help.