v. Porter

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 16, 2019

2019COA73

No. 16CA0858, People v. Porter — Criminal Law — Sentencing
— Juveniles — Punishment for Habitual Criminals;
Constitutional Law — Eighth Amendment — Cruel and Unusual
Punishments

A division of the court of appeals holds that a defendant is not

entitled to an extended proportionality review of his sentence as a

habitual criminal merely because some of his prior felony

convictions occurred when he was a juvenile. In so holding, the

division concludes that the Supreme Court’s decisions in Miller v.

Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48

(2010); and Roper v. Simmons, 543 U.S. 551 (2005), which concern

sentencing of juveniles, do not have any application in the context

of adult sentencing.
COLORADO COURT OF APPEALS 2019COA73

Court of Appeals No. 16CA0858
Gilpin County District Court No. 02CR42
Honorable Dennis Hall, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reginald Marcus Porter,

Defendant-Appellant.

SENTENCE AFFIRMED

Division V
Opinion by JUDGE J. JONES
Terry and Grove, JJ., concur

Announced May 16, 2019

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Reginald Marcus Porter, appeals both his

adjudication as a habitual offender and the district court’s denial of

his request for an extended proportionality review of his sentence.

(The court instead conducted an abbreviated review and concluded

that the sentence doesn’t violate the Eighth Amendment’s

prohibition against cruel and unusual punishment.) Specifically,

he contends that (1) because the prosecution failed to prove that his

prior felony convictions didn’t arise from the same criminal episode,

the district court erred by adjudicating him a habitual offender; and

(2) because his prior convictions occurred when he was a juvenile,

the court should have conducted an extended proportionality

review. We reject both contentions and affirm the sentence.

I. Background

¶2 Defendant has been incarcerated for most of his life. While he

was still a juvenile, the People charged him in three Denver cases

for two armed robberies (one with a knife and one with a lug

wrench) and a sexual assault he committed in August 1988. He

agreed to have the cases transferred from juvenile court to Denver

District Court, after which he took a global plea deal in which he

pleaded guilty to one charge in each case and received concurrent

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 sentences (the longest being sixteen years) to Department of

Corrections (DOC) custody. 1

¶3 In 2002, just months after being released from DOC custody,

defendant robbed and attempted to sexually assault a casino

worker. He then fled from the police. A jury found him guilty of

first degree burglary, aggravated robbery, attempted sexual assault,

theft, and vehicular eluding. The district court adjudicated him a

habitual offender.

¶4 Years later, after a couple of appeals, a new trial, convictions

on the same charges as before, and dismissal of the habitual

counts, the Colorado Supreme Court remanded this case to the

district court for reinstatement of defendant’s habitual counts. 2

1 Because the cases were transferred to district court, defendant
was sentenced as an adult and would have been tried as an adult
had the cases not been resolved through a plea deal.
2 First, a division of the court of appeals reversed defendant’s

convictions. After a second trial, this time to the bench, the court
found him guilty on the same charges as before. Defendant moved
to dismiss the habitual counts on double jeopardy grounds. The
district court granted his motion, and a division of the court of
appeals reluctantly affirmed. People v. Porter, 2013 COA 130,
¶¶ 29, 43. But the supreme court reversed the division’s decision
and remanded the case for reinstatement of the habitual counts.
See People v. Porter, 2015 CO 34, ¶ 30.

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 The district court held a habitual offender hearing at which the

prosecution presented evidence that defendant had three prior

felony convictions — the three charges he had pleaded guilty to as a

juvenile — and argued that the convictions were based on separate,

unconnected conduct that occurred on different days. The court

agreed with the prosecution that defendant’s three prior felony

convictions weren’t part of the same criminal episode, adjudicated

defendant a habitual offender, and sentenced him to a total of 112

years to life.3

¶5 Noting the length of his sentence and the fact that his prior

felony convictions were from when he was a juvenile, defendant

asked for an extended proportionality review. The court conducted

an abbreviated review, ruled that an extended review wasn’t

necessary, and determined that defendant’s sentences are

constitutional under the Eighth Amendment.

3 The court sentenced defendant to forty-eight years on count 2
(burglary), sixty-four years on count 3 (aggravated robbery), forty-
eight years to life on count 4 (attempted sexual assault), twenty-
four years on count 8 (theft), and twelve years on count 9 (vehicular
eluding). The sentences run concurrently except for the forty-eight
years to life on count 4.

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 II. Discussion

A. Habitual Criminal Status

¶6 First, defendant contends that the district court erred by

adjudicating him a habitual offender because the prosecution didn’t

prove beyond a reasonable doubt that his three juvenile felony

convictions arose out of separate and distinct criminal episodes.

We aren’t persuaded.

¶7 Because defendant challenges the sufficiency of the evidence,

we review the record to determine “whether the evidence, viewed as

a whole, and in the light most favorable to the prosecution, is

sufficient to support a conclusion by a reasonable person that the

defendant is guilty of the crimes charged beyond a reasonable

doubt.” People v. Copeland, 976 P.2d 334, 341 (Colo. App. 1998),

aff’d, 2 P.3d 1283 (Colo. 2000).

¶8 A court shall adjudicate a defendant a habitual offender if the

defendant is convicted of a felony and 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 [or a crime which, if committed

in Colorado, would be a felony].” § 18-1.3-801(2)(a)(I), C.R.S. 2018.

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 The prosecution must prove the defendant’s prior convictions

beyond a reasonable doubt. People v. Nunn, 148 P.3d 222, 225

(Colo. App. 2006).

¶9 The term “criminal episode” has the same meaning for

habitual offender laws as it does under the compulsory joinder

statute. People v. Jones, 967 P.2d 166, 169 (Colo. App. 1997).

Crimes that stem from the same criminal episode include “physical

acts that are committed simultaneously or in close sequence, that

occur in the same place or closely related places, and that form part

of a schematic whole.” Id. (quoting Jeffrey v. Dist. Court, 626 P.2d

631, 639 (Colo. 1981)). Charges that must be prosecuted in a

single case under the compulsory joinder statute, section

18-1-408(2), C.R.S. 2018, can’t qualify as separate convictions for

habitual offender purposes. See Jones, 967 P.2d at 169 (allowing a

defendant to be prosecuted as a habitual offender for offenses that

were subject to mandatory joinder would be “inconsistent with the

General Assembly’s intent to reserve habitual criminal sentencing

for serious recidivists”).

¶ 10 The district court adjudicated defendant a habitual offender

because of his three juvenile felony convictions, finding that they

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 didn’t arise from the same criminal episode. The evidence supports

this finding. Each conviction stemmed from a crime defendant

committed in a different location, with a different victim, and at

least six days apart from the other crimes (August 5, August 20,

and August 26, 1988). The first conviction was for sexual assault;

the second two were for armed robberies. Aside from their violent

nature, nothing connected the offenses or suggested that they were

part of the same schematic whole.

¶ 11 Defendant points us to several cases in which the criminal

charges were consolidated in the same criminal case even though

the conduct that led to each was separated by time, physical

distance, or type of crime. See, e.g., Brown v. Dist. Court, 197 Colo.

219, 222, 591 P.2d 99, 101 (1979); People v. Trujillo, 860 P.2d 542,

544 (Colo. App. 1992); People v. Rice, 40 Colo. App. 357, 579 P.2d

647 (1978). But some (perhaps all) of those cases involved

permissive joinder under Crim. P. 8(a) or discretionary

consolidation under Crim. P. 13. And, of course, each case turned

on its facts. None is so clearly analogous to this case as to

undermine the district court’s conclusion that defendant’s crimes

weren’t part of the same criminal episode. Cf. Marquez v. People,

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 2013 CO 58, ¶ 20 (record didn’t support a conclusion that two

crimes arose from the same criminal episode where they occurred

twelve hours apart, the defendant used different weapons, there

were two different victims, and they occurred at different locations).

B. Extended Proportionality Review

¶ 12 Next, defendant contends that because he was a juvenile at

the time of his prior convictions, and because juveniles are treated

differently for sentencing purposes in certain respects, he was

entitled to an extended proportionality review of his sentence.

Again, we aren’t persuaded.

¶ 13 We review a district court’s decision not to conduct an

extended proportionality review de novo. See People v. McNally, 143

P.3d 1062, 1064 (Colo. App. 2005).

¶ 14 The Eighth Amendment’s prohibition against cruel and

unusual punishment requires that sentences not be “grossly

disproportionate” to their underlying crimes. Ewing v. California,

538 U.S. 11, 23-24 (2003); People v. Deroulet, 48 P.3d 520, 524

(Colo. 2002). The Colorado Supreme Court has held that, to ensure

that there isn’t a gross disproportionality, a defendant is entitled to

an abbreviated proportionality review of his habitual offender

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 sentence if he so requests. See Deroulet, 48 P.3d at 522. If, and

only if, that review “gives rise to an inference of gross

disproportionality does a reviewing court need to engage in an

extended proportionality review.” Close v. People, 48 P.3d 528, 536

(Colo. 2002). 4 And an extended review is almost never required

when the underlying crimes supporting a habitual offender

sentence include “grave or serious” offenses. Id. at 537; People v.

Gaskins, 825 P.2d 30, 36 (Colo. 1992).5

¶ 15 Defendant concedes that, because his underlying offenses

were per se grave or serious, a person sentenced for such offenses

wouldn’t ordinarily be entitled to an extended proportionality

review. But he argues that he is entitled to one because he was a

juvenile at the time of his prior convictions. To support this

argument, he cites Supreme Court decisions holding that juveniles

are different from adults and, in certain contexts, must be treated

4 This procedure closely follows Supreme Court precedent on the
same issue. People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002); see,
e.g., Harmelin v. Michigan, 501 U.S. 957 (1991).
5 The Colorado Supreme Court has held that certain crimes are “per

se” grave or serious. These include aggravated robbery, robbery,
and burglary. See People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992).

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 differently for sentencing purposes. See, e.g., Graham v. Florida,

560 U.S. 48 (2010) (sentencing any juvenile who hasn’t committed

homicide to life without parole violates the Eighth Amendment);

Roper v. Simmons, 543 U.S. 551, 578 (2005) (execution of a criminal

defendant who was under eighteen when he committed a capital

crime is prohibited by the Eighth and Fourteenth Amendments); see

also Miller v. Alabama, 567 U.S. 460, 479 (2010) (the Eighth

Amendment forbids sentencing schemes that mandate life in prison

without parole for juvenile offenders).

¶ 16 Though Colorado appellate courts haven’t yet addressed this

argument, federal circuit courts and several other state courts have.

The Eleventh Circuit, for example, rejected a very similar challenge.

After a jury found a defendant guilty of several drug-related

felonies, the district court imposed a mandatory life sentence

because of the defendant’s two prior juvenile felony drug

convictions. United States v. Hoffman, 710 F.3d 1228, 1230-31

(11th Cir. 2013); see 21 U.S.C. § 841(b)(1)(A) (2010) (requiring

defendants convicted of certain drug crimes to be sentenced to life

without parole if they have previously been convicted of two felony

drug offenses). The defendant argued that because his prior

9
 convictions occurred when he was a juvenile, his life sentence

violated the Eighth Amendment; he cited Roper in support.

Hoffman, 710 F.3d at 1232. Affirming the sentence, the Eleventh

Circuit held that Roper is inapplicable in this context, as it

concerned sentencing for juvenile crimes rather than “sentence

enhancement for an adult offender.” Id. Since the defendant was

facing punishment for crimes he committed as an adult, nothing

prevented the court from following the sentencing statute and

imposing a mandatory life sentence based on his prior juvenile

convictions. Id. at 1233 (“Nothing . . . suggests that an adult

offender who has committed prior crimes as a juvenile should not

receive a mandatory life sentence as an adult, after committing a

further crime as an adult.”).

¶ 17 Numerous other courts post-Graham v. Florida have employed

similar reasoning to reject challenges to sentences that were

enhanced because of prior juvenile convictions. See, e.g., United

States v. Orona, 724 F.3d 1297, 1306 (10th Cir. 2013) (use of a

juvenile adjudication as a predicate offense to increase the

defendant’s sentence didn’t violate the Eighth Amendment); United

States v. Graham, 622 F.3d 445, 462 (6th Cir. 2010) (the defendant

10
 wasn’t “a ‘juvenile offender’ for purposes of the punishment he

received” for his latest conviction, so Graham v. Florida didn’t

apply); United States v. Scott, 610 F.3d 1009, 1017 (8th Cir. 2010)

(rejecting a defendant’s argument that the court should extend

Graham v. Florida and Roper to bar consideration of prior

convictions that were based on juvenile conduct); Wilson v. State,

521 S.W.3d 123, 127-28 (Ark. 2017) (the defendant was “being

punished with an enhanced sentence for his conduct as an adult,”

and “a conviction imposed on a juvenile sentenced as an adult may

be used as the basis for an increased penalty imposed under the

habitual-offender statute”); Commonwealth v. Lawson, 90 A.3d 1, 6-

7 (Pa. Super. Ct. 2014); Counts v. State, 338 P.3d 902, 906-07

(Wyo. 2014).

¶ 18 We aren’t convinced by defendant’s attempts to distinguish

these cases. Each is remarkably similar to this case. Apart from

asserting that Graham v. Florida and Roper call these decisions into

question, defendant relies only on the faulty premise that his

current sentence punishes him for his juvenile crimes. But the

Supreme Court has firmly established that enhanced sentences

pursuant to recidivist sentencing statutes only punish a defendant

11
 for the offense of conviction — not for the underlying prior offenses.

See United States v. Rodriquez, 553 U.S. 377, 385 (2008).

¶ 19 In sum, these similar cases show that when an adult

defendant receives an enhanced sentence because of prior felonies

he committed, his age at the time of the prior felonies doesn’t

impact the validity of the adult sentence under the Eighth

Amendment. Graham v. Florida, Roper, and similar cases

addressing the constitutionality of juvenile sentencing simply don’t

apply when the defendant is being sentenced for crimes he

committed as an adult.

¶ 20 It follows that a defendant’s age at the time of his prior

convictions doesn’t impact whether he’s entitled to an extended

proportionality review under the Eighth Amendment and Colorado

law. Regardless of whether a defendant was a juvenile at the time

of his prior convictions, the reviewing court must follow the

procedure outlined by the Colorado Supreme Court in Deroulet and

Close.

¶ 21 Because defendant concedes that he isn’t entitled to an

extended proportionality review under Deroulet and Close, and since

his juvenile status at the time of his prior convictions doesn’t

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 impact his rights under the Eighth Amendment’s prohibition

against cruel and unusual punishment, we conclude that the

district court didn’t err by conducting only an abbreviated review.

III. Conclusion

¶ 22 The sentence is affirmed.

JUDGE TERRY and JUDGE GROVE concur.

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