Yates v. People

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ADVANCE SHEET HEADNOTE
November 4, 2019

2019 CO 90

No. 16SC592, Wells-Yates v. People—Proportionality Review—Per Se Grave or
Serious Crimes—Habitual Criminal Punishment.

In this case and two companion cases, the supreme court considers multiple

issues that lie at the intersection of proportionality review and habitual criminal

punishment. In the process, the court endeavors to shed light on these areas of the

law and to correct a few misstatements that appear in the caselaw.

The court holds that: (1) during an abbreviated proportionality review of a

habitual criminal sentence, the court must consider each triggering offense and the

predicate offenses together and determine whether, in combination, they are so

lacking in gravity or seriousness as to raise an inference that the sentence imposed

on that triggering offense is grossly disproportionate; (2) in determining the

gravity or seriousness of the triggering offense and the predicate offenses, the

court should consider any relevant legislative amendments enacted after the dates

of those offenses, even if the amendments do not apply retroactively; (3) not all
narcotic offenses are per se grave or serious; and (4) the narcotic offenses of

possession and possession with intent are not per se grave or serious. Because the

court of appeals’ decision is at odds with this opinion, its judgment is reversed.

Accordingly, the case is remanded with instructions to return it to the trial court

for further proceedings consistent with this opinion.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2019 CO 90

Supreme Court Case No. 16SC592
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA1216

Petitioner:

Belinda May Wells-Yates,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed
en banc
November 4, 2019

Attorneys for Petitioner:
Megan A. Ring, Public Defender
Dayna Vise, Deputy Public Defender
Denver, Colorado

Attorneys for Respondent:
Philip J. Weiser, Attorney General
Michael D. McMaster, Senior Assistant Attorney General
Denver, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE BOATRIGHT concurs in the judgment.
CHIEF JUSTICE COATS dissents.
¶1 Our General Assembly long ago adopted the Habitual Criminal Act for the

purpose of punishing more severely “those individuals who show a propensity

toward repeated criminal conduct.” People v. Dist. Ct., 711 P.2d 666, 670 (Colo.

1985). But the legislature’s authority to prescribe harsher punishment for habitual

criminals is not without constitutional contours. It is limited by the principle of

proportionality that is embedded in the constitutional prohibition against the

infliction of cruel and unusual punishment. Very generally, proportionality is a

foundational “precept of justice that punishment for [a] crime should be graduated

and proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367 (1910).

Simply put, the concept of proportionality dictates that the punishment should fit

the crime.

¶2 In this case and the two companion cases we announce today, Melton v.

People, 2019 CO 89, ___ P.3d ___, and People v. McRae, 2019 CO 91, ___ P.3d ___, we

consider multiple issues that lie at the intersection of proportionality review and

habitual criminal punishment. We hold that: (1) during an abbreviated

proportionality review of a habitual criminal sentence, the court must consider

each triggering offense and the predicate offenses together and determine

whether, in combination, they are so lacking in gravity or seriousness as to raise

an inference that the sentence imposed on that triggering offense is grossly

2
disproportionate;1 (2) in determining the gravity or seriousness of the triggering

offense and the predicate offenses, the court should consider any relevant

legislative amendments enacted after the dates of those offenses, even if the

amendments do not apply retroactively; (3) not all narcotic offenses are per se

grave or serious; and (4) the narcotic offenses of possession and possession with

intent are not per se grave or serious. Because the court of appeals’ decision is at

odds with the conclusions we reach today, we reverse its judgment.2 Accordingly,

we remand with instructions to return the case to the trial court for further

proceedings consistent with this opinion.

¶3 In order to place this appeal in context, we begin with a primer on

proportionality review and a synopsis of habitual criminal punishment (focusing

on proportionality review of a habitual criminal sentence). In the process, we

endeavor to shed light on these areas of the law and to correct a few misstatements

that appear in our caselaw. After setting forth the pertinent legal principles, we

discuss the factual and procedural history of this case and identify the controlling

standard of review. We then proceed to analyze the issues before us.

1 In this opinion, we refer to the felony convictions for which a defendant was
sentenced as “triggering offenses,” and to the prior felony convictions on which a
defendant’s habitual criminal adjudication was based as “predicate offenses.”
2 In fairness to our learned colleagues on the court of appeals, today we clarify the
law related to the issues on review.

3
 I. Proportionality Review

¶4 The concept of proportionality is rooted in both the U.S. and Colorado

Constitutions. Therefore, our discussion is informed by both federal and Colorado

law. We examine each in turn.

A. Federal Authority

¶5 The Eighth Amendment to the U.S. Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. In Solem v. Helm, 463 U.S. 277,

284 (1983), the Supreme Court construed the last clause in this amendment as

prohibiting “not only barbaric punishments, but also sentences that are

disproportionate to the crime committed.” However, the Court has since

narrowed the guarantee of proportionality: “The Eighth Amendment does not

require strict proportionality between crime and sentence”; instead, “it forbids

only extreme sentences that are ‘grossly disproportionate’ to the crime.”

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) (quoting

Solem, 463 U.S. at 288).3 It is “exceedingly rare” for a sentence to be deemed so

extreme that it is grossly disproportionate to the crime. Id.

3 Harmelin was a fractured decision; Colorado has adopted Justice Kennedy’s
concurring opinion because it resolved the case on the narrowest grounds and
obtained the support of the largest number of justices. Close v. People, 48 P.3d 528,
535 (Colo. 2002) (noting that Justice Kennedy’s concurring opinion is widely
viewed as “the rule of Harmelin”). For the sake of convenience, we hereafter refer
4
¶6 Harmelin distilled the following four principles from the Supreme Court’s

proportionality jurisprudence:

• “[T]he fixing of prison terms . . . involves a substantive penological
judgment” that belongs to the legislature and should be given substantial
deference by reviewing courts.

• There are a number of legitimate penological schemes based on concerns
related to “retribution, deterrence, incapacitation, and rehabilitation,”
and the Eighth Amendment does not require the adoption of any
particular scheme.

• Significant differences in sentencing philosophies and in the length of
prescribed prison terms are inevitable; even assuming consistency in
philosophies, “differing attitudes and perceptions of local conditions”
may lead to different, though rational, determinations related to
sentencing.

• Proportionality review should be guided “by objective factors to the
maximum possible extent”; the relative absence of objective factors to
differentiate between sentences has meant that succeeding on a
proportionality challenge is an infrequent occurrence.

Id. at 998–1001 (internal quotation marks omitted). These principles are what led

Harmelin to cabin the holding in Solem as barring only extreme sentences that are

grossly disproportionate. See id. at 1001.

¶7 But how does a court ascertain whether a sentence is grossly

disproportionate and therefore unconstitutional under the Eighth Amendment?

In Solem, the Court adopted an objective, two-step approach for undertaking a

to Justice Kennedy’s concurrence by the title of the case, Harmelin, or as “the rule
of Harmelin.”

5
proportionality review.4 463 U.S. at 290–91. Step one includes two subparts: The

trial court should consider (1) the gravity or seriousness of the offense and (2) the

harshness of the penalty. Id. In step two, the trial court may compare the

challenged sentence to sentences for other crimes in the same jurisdiction and

sentences for the same crime in other jurisdictions. Id. at 291–92. Harmelin clarified

that this is not a wooden test requiring consideration of step two in every case.

501 U.S. at 1004. Instead, step two’s comparative analysis within and between

jurisdictions is appropriate “only in the rare case in which a threshold comparison

of the crime committed and the sentence imposed leads to an inference of gross

disproportionality.” Id. at 1005. Viewed through the prism of Harmelin, then, the

purpose of any comparative analysis of sentences in step two “is to validate an

initial judgment” in step one “that a sentence is grossly disproportionate to a

crime.” Id.

4 Harmelin described the procedure Solem marshaled in as a “three-part test”
because of the way the Solem Court discussed the relevant considerations: (1) the
gravity or seriousness of the offense and the harshness of the penalty; (2) a
comparison of the challenged sentence to sentences for other crimes in the same
jurisdiction; and (3) a comparison of the challenged sentence to sentences for the
same crime in other jurisdictions. See Harmelin, 501 U.S. at 1004 (citing Solem,
463 U.S. at 290–91). As we explain in this opinion, however, given the structure
and sequence of the analysis, we think it is clearer to view it as a two-step process
(with parts (2) and (3) collapsed into a single step, step two).

6
¶8 Thus, under Solem, as construed in Harmelin, when a defendant makes a

timely request for a proportionality review, the court must compare the gravity or

seriousness of the offense to the harshness of the penalty (step one). If that analysis

gives rise to an inference of gross disproportionality, the court must proceed to

step two and conduct intrajurisdictional and interjurisdictional comparisons. But

if the analysis in step one does not give rise to an inference of gross

disproportionality, the proportionality challenge fails and the sentence must be

upheld.

¶9 A dozen years after Harmelin, the Supreme Court revisited the Eighth

Amendment’s narrow proportionality principle in Ewing v. California, 538 U.S. 11

(2003). Unfortunately, the Court remained fractured. 5 But the three-justice

plurality opinion in Ewing did not alter the analytical framework ushered in by the

rule of Harmelin. To the contrary, it expressly acknowledged that “[t]he

proportionality principles . . . distilled in Justice Kennedy’s concurrence [in

Harmelin] guide[d] [its] application of the Eighth Amendment” to Ewing’s

recidivist sentence. Id. at 23–24. Thus, in rejecting Ewing’s claim that his three-

strikes sentence was unconstitutionally disproportionate to his offense of felony

5Justice O’Connor’s plurality opinion in Ewing, which was joined by Chief Justice
Rehnquist and Justice Kennedy, is understood as representing the narrowest basis
for the Court’s decision and is viewed as controlling. See United States v. Farley,
607 F.3d 1294, 1340 n.31 (11th Cir. 2010).

7
grand theft, the plurality followed Harmelin and “address[ed] the gravity of the

offense compared to the harshness of the penalty.” Id. at 28.

B. Colorado Law

¶10 Article II, section 20 of the Colorado Constitution is identical to the Eighth

Amendment. Colo. Const. art. II, § 20. As such, we have generally embraced the

Supreme Court’s approach to proportionality challenges. See Close v. People,

48 P.3d 528, 538 (Colo. 2002). However, our analysis does not mirror the Supreme

Court’s. We explore the differences next, starting with step one, which in

Colorado legal parlance has become known as an “abbreviated proportionality

review,” followed by step two, which in Colorado legal parlance has become

known as an “extended proportionality review.”

1. Abbreviated Proportionality Review (Step One)

¶11 In line with Supreme Court precedent, at step one, Colorado courts consider

the gravity or seriousness of the offense and the harshness of the penalty. But our

precedent has carved out two additional principles with respect to this initial step.

One of them pertains to the gravity or seriousness of the offense (the first subpart

of step one), while the other relates to the harshness of the penalty (the second

subpart of step one). We discuss each before moving on to step two.

8
 a. Gravity or Seriousness of the Offense

¶12 We acknowledged in People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992), that the

determination regarding the gravity or seriousness of the offense is “somewhat

imprecise,” notwithstanding the guidance provided in Solem. The Court in Solem

explained that trial courts should consider “the harm caused or threatened to the

victim or society,” as well as “the culpability of the offender.” 463 U.S. at 292. It

then listed factors that are pertinent to the inquiry. In terms of the harm to the

victim or society, it instructed courts to focus on: “[t]he absolute magnitude of the

crime” (theft of a large amount will usually be more serious than theft of a small

amount when all other circumstances are equal); whether the crime is a lesser-

included offense or the greater-inclusive offense; whether the crime involves a

completed act or an attempt to commit an act; and whether the defendant was a

principal or an accessory after the fact in the criminal episode. Id. at 293. As it

relates to the defendant’s culpability, it observed that motive is relevant, as is

whether the defendant’s acts were negligent, reckless, knowing, intentional, or

malicious. Id. at 293–94. Of course, the Court cautioned that these are not

exhaustive lists; they merely illustrate “that there are generally accepted criteria

for comparing the severity of different crimes on a broad scale, despite the

difficulties courts face in attempting to draw distinctions between similar crimes.”

Id. at 294.

9
¶13 While we have generally adhered to Solem’s teachings in discerning whether

a crime is grave or serious, we mentioned in Close, 48 P.3d at 538, and People v.

Deroulet, 48 P.3d 520, 524 (Colo. 2002), that Gaskins allows a shortcut in some

situations that bypasses Solem’s analysis. In both cases, we read Gaskins as

establishing that the following crimes had already been declared inherently (or per

se) grave or serious for proportionality purposes in Colorado: aggravated robbery,

robbery, burglary, accessory to first degree murder, and narcotics-related crimes.

Deroulet, 48 P.3d at 524; see also Close, 48 P.3d at 538 (adding three offenses to

Deroulet’s list of inherently dangerous crimes: felony menacing, attempted

burglary, and conspiracy to commit burglary).6 For these crimes, we explained, a

trial court may skip the first subpart of step one—the determination regarding the

gravity or seriousness of the crimes—and “proceed directly to the second sub-

part” of that step—the assessment related to the harshness of the penalty. Close,

48 P.3d at 538; accord Deroulet, 48 P.3d at 524.

6Our court has never used the term “per se grave or serious,” but it is clear that
we meant just that in Close and Deroulet. Cf. Rutter v. People, 2015 CO 71, ¶ 37,
363 P.3d 183, 191–92 (Gabriel, J., dissenting) (citing Deroulet, 48 P.3d at 524, and
referring to certain “per se grave or serious” crimes). And that is how the divisions
of the court of appeals have uniformly understood our jurisprudence. See, e.g.,
People v. McCulloch, 198 P.3d 1264, 1268 (Colo. App. 2008).

10
 b. Harshness of the Penalty

¶14 Our treatment of the harshness of the penalty (the second subpart of step

one) is somewhat unique in that we explicitly consider parole eligibility. People v.

Drake, 785 P.2d 1257, 1275 (Colo. 1990), abrogated on other grounds as recognized by

People v. Chavez-Barragan, 2016 CO 66, ¶¶ 33–34, 379 P.3d 330, 338; see also People v.

Hernandez, 686 P.2d 1325, 1330 n.4 (Colo. 1984) (inferring that the decision in Solem

must have been driven in part by the fact that “the provision in the South Dakota

statute” at issue there “denie[d] habitual criminals the possibility of parole”). We

have expressly concluded that whether a sentence is parole eligible is relevant

during an abbreviated proportionality review because parole can reduce the actual

period of confinement and render the penalty less harsh. See Drake, 785 P.2d at

1275.

2. Extended Proportionality Review (Step Two)

¶15 Consistent with Harmelin’s reading of Solem, we have established that, while

reviewing courts must complete an abbreviated proportionality review (step one)

whenever a defendant challenges his sentence on proportionality grounds, it is not

appropriate for them to conduct an extended proportionality review (step two)

unless the abbreviated proportionality review gives rise to an inference of gross

disproportionality. See Harmelin, 501 U.S. at 1004; Deroulet, 48 P.3d at 524. In the

rare situation in which the analysis advances to step two, however, our cases are

11
not in complete harmony with Solem and Harmelin. The difference, though, is not

intentional. It is the result of some confusion our caselaw has inadvertently

created regarding intrajurisdictional comparisons, one of the two categories of

comparisons prescribed in Solem and discussed in Harmelin.

¶16 Close incorrectly described intrajurisdictional comparisons as involving “the

sentences imposed on other criminals who commit the same crime in the same

jurisdiction.” 48 P.3d at 534 (emphasis added). Deroulet did the same. 48 P.3d at

524 (referring to “a comparison of the sentences imposed on other criminals who

commit the same crime in the same jurisdiction” (emphasis added)). And divisions

of the court of appeals have consistently followed suit. See, e.g., People v. Hargrove,

2013 COA 165, ¶ 13, 338 P.3d 413, 417 (same). But the Court in Solem had

something else in mind. It was not concerned with sentences imposed on other

criminals in the jurisdiction for the same crime. Rather, it directed courts to compare

the challenged sentence to sentences for other crimes in the same jurisdiction. It

explained that, “[i]f 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.” Solem, 463 U.S. at 291 (emphasis added). Harmelin confirmed this—it

referred to a “comparative analysis” of “sentences imposed for other crimes” in the

same jurisdiction. 501 U.S. at 1004 (emphasis added). Thus, the intrajurisdictional

comparisons Solem envisioned were to sentences for other crimes.

12
¶17 We now clarify that, in conformity with federal precedent, Colorado courts

conducting an extended proportionality review should compare the sentence at

issue to (1) sentences for other crimes in the same jurisdiction and (2) sentences for

the same crime in other jurisdictions. To the extent our prior cases have provided

contrary instructions, they have done so incorrectly.

3. Summary of Colorado Law on Proportionality Review

¶18 As a recap of Colorado law on proportionality review, we hope that the

following flowchart can assist in understanding this relatively complex analysis:

13
 PROPORTIONALITY REVIEW

Abbreviated Proportionality Review (Step One)

Per se grave or serious
Gravity or Seriousness of the Offense
(First Subpart)
• Harm caused or threatened
to the victim or society
• Culpability of the offender

Harshness of the Penalty
(Second Subpart)
• Includes parole eligibility

Inference of Gross Disproportionality No Inference of Gross Disproportionality

No further analysis needed;
proportionality challenge
fails

Extended Proportionality Review (Step Two)

• Comparison to sentences for other crimes in the same jurisdiction
• Comparison to sentences for the same crime in other jurisdictions

14
 II. Habitual Criminal Punishment

A. General Principles
¶19 Section 18-1.3-801, C.R.S. (2019), governs habitual criminal punishment in

Colorado. As pertinent here, when a defendant is convicted of a felony (a

triggering offense), he may be adjudicated a habitual criminal if he “has been three

times previously convicted . . . of a felony” based on charges separately brought

and tried that arose out of separate and distinct criminal episodes (predicate

offenses). § 18-1.3-801(2)(a)(I). A defendant adjudicated a habitual criminal based

on three or more predicate offenses must be punished for the triggering offense

“by imprisonment in the department of corrections for a term of four times the

maximum of the presumptive range . . . for the class or level of felony” of the

triggering offense. § 18-1.3-801(2)(a)(I)(A). However, as we discuss later in the

Analysis section, there is a provision in section 18-1.3-801 that shields certain drug

felonies from habitual criminal punishment. See § 18-1.3-801(2)(b).7

B. Proportionality Review of a Habitual Criminal Sentence

¶20 We have cautioned that “the Habitual Criminal Act create[s] a unique

possibility” that a defendant will receive a sentence that “is not proportionate to

the crime for which [he] has been convicted.” Alvarez v. People, 797 P.2d 37, 40

7 There is also a provision in section 18-1.3-801 that renders some escape offenses
ineligible for habitual criminal punishment, see § 18-1.3-801(5), but that provision
is not relevant here.

15
(Colo. 1990). The concern lies in the “formulaic and formalistic nature” of the

habitual criminal statute. Deroulet, 48 P.3d at 526. By increasing a defendant’s

punishment based on mandatory provisions, the habitual criminal statute “strip[s]

the sentencing court of any discretion in sentencing.” Close, 48 P.3d at 540. Indeed,

the only discretion exercised in the imposition of a habitual criminal sentence is

by the prosecution when it decides whether to seek to adjudicate the defendant a

habitual criminal. See id.

¶21 Nevertheless, we have emphasized “that in most instances the General

Assembly’s determinations regarding the sentencing of habitual criminals will

result in constitutionally proportionate sentences.” Deroulet, 48 P.3d at 526.

Hence, we have predicted that in habitual criminal cases, as in other cases raising

Eighth Amendment challenges, an abbreviated proportionality review will almost

always yield a finding that the sentence is not unconstitutionally disproportionate,

thereby protecting “the primacy of the General Assembly in crafting sentencing

schemes.” Id. It follows that an extended proportionality review is just as rare in

this context as it is when the sentence is not based on the defendant’s status as a

habitual criminal.

¶22 This begs the question of how to properly apply Harmelin in the context of

a habitual criminal sentence. In Ewing, the plurality used Harmelin as a guidepost,

but explained that in weighing gravity or seriousness, it had to “place on the scales

16
not only [Ewing’s] current felony, but also his long history of felony recidivism.”

538 U.S. at 29. Ewing’s plurality worried that any other approach would fail to

accord proper deference to the legislature’s policy judgments in its choice of

sanctions for repeat offenders. Id. (pointing out that the State’s interest in enacting

the three-strikes law was not in simply punishing the offense of conviction; it was

also “in dealing in a harsher manner with those who by repeated criminal acts

have shown that they are simply incapable of conforming to the norms of society

as established by its criminal law” (quoting Rummel v. Estelle, 445 U.S. 263, 276

(1980))). The plurality reasoned that any proportionality review of Ewing’s

sentence needed to consider this legitimate penological goal. Id. In holding that

Ewing’s sentence, though harsh, was constitutional, the plurality concluded that

“Ewing’s [was] not ‘the rare case in which a threshold comparison of the crime

committed and the sentence imposed leads to an inference of gross

disproportionality.’” Id. at 30 (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J.,

concurring in part and concurring in the judgment)).

¶23 Concordant with the plurality opinion in Ewing, in Colorado, when the

proportionality of a habitual criminal sentence is challenged, the grave or serious

inquiry includes consideration of the defendant’s history of felony recidivism. The

two subparts in step one entail an analysis of: (1) the gravity or seriousness of all

the offenses in question—the triggering offense and the predicate offenses; and

17
(2) the harshness of the sentence imposed on the triggering offense. See Rutter v.

People, 2015 CO 71, ¶ 18, 363 P.3d 183, 188. The court must scrutinize the triggering

offense and the predicate offenses and determine whether in combination they are

so lacking in gravity or seriousness so as to suggest that the sentence is

unconstitutionally disproportionate to the crime, taking into account the

defendant’s eligibility for parole. Id.

¶24 If there are multiple triggering offenses, the reviewing court must look at

the sentence imposed for each such offense and engage in a proportionality review

of that sentence because each sentence represents a separate punishment for a

distinct and separate crime. See Close, 48 P.3d at 538–39.8 As to each sentence, the

inquiry is whether the corresponding triggering offense and the predicate

offenses, considered together, are so lacking in gravity or seriousness as to suggest

that the sentence is grossly disproportionate. Id. at 540. If the proportionality

review assessed instead the cumulative effect of the sentences imposed on all the

triggering offenses, it could result in an inference of gross disproportionality

merely because the defendant committed multiple crimes.

8 Close involved consecutive crime-of-violence sentences. 48 P.3d at 538. But we
do not read the scope of our analysis there to be limited to consecutive sentences
or to sentences imposed pursuant to the crime-of-violence statute. In our view,
the rationale applies with equal force to habitual criminal sentences, regardless of
whether they were ordered to be served consecutively or concurrently.

18
¶25 We note that our proportionality cases appear to have muddied the waters

a bit in the habitual criminal context as well. We pause to clarify them.

¶26 In Gaskins, we said that “[t]he rule to be gleaned” from our earlier cases is

“that only an abbreviated review is necessary when the crimes supporting a

habitual criminal sentence include grave or serious offenses and when the

defendant will become eligible for parole.” 825 P.2d at 36. We repeated this

comment in Close and Deroulet, adding that it was supported by Gaskins’s adoption

of the “rule of Harmelin.” Close, 48 P.3d at 537; Deroulet, 48 P.3d at 524; see also

Rutter, ¶ 18, 363 P.3d at 188 (“[A]n abbreviated proportionality review is s ufficient

when the crimes supporting a sentence imposed under the habitual criminal

statute include grave or serious offenses.”). But this view is problematic for five

reasons: (1) it improperly implies that the harshness of the penalty can be

disregarded; (2) it suggests that the outcome of an abbreviated proportionality

review under these circumstances will always be a finding of no inference of gross

disproportionality; (3) it finds no support in Harmelin, Ewing, or any other

Supreme Court case; (4) it fails to indicate whether it refers to triggering offenses,

predicate offenses, or both; and (5) it does not specify how many of the offenses

involved must be grave or serious.

¶27 We take this opportunity to make clear that even when the triggering

offenses and/or the predicate offenses supporting a habitual criminal sentence

19
include grave or serious crimes and the defendant is parole eligible, a court

conducting a proportionality review must follow the analytical framework we set

forth in this opinion. Thus, it would be improper for a court to skip the second

subpart of an abbreviated proportionality review and neglect to consider the

harshness of the penalty or to conclude that when the circumstances described are

present there can be no inference of gross disproportionality.

¶28 With this in-depth overview of the pertinent legal principles as a backdrop,

we now turn to the facts and procedural history of this case.

III. Facts and Procedural History

¶29 In June 2012, Pat Crouch, an undercover agent with the Colorado Bureau of

Investigation, received information from a confidential informant that Belinda

May Wells-Yates was stealing identity documents from cars. He arranged a

meeting with Wells-Yates during which she sold him a birth certificate, a social

security card, and a New Mexico driver’s license. Before the meeting ended,

Wells-Yates raised the prospect of future transactions, including the sale of opioids

and guns.

¶30 Several days later, the Waldo Canyon fire started. When the fire had spread

to a large area, Wells-Yates told the agent that she was “chasing the fire”

—stealing property from homes that had been evacuated. The agent scheduled

another meeting with her during which she sold him stolen property, including

20
jewelry, coins, musical instruments, power tools, electronics, and business checks.

After that meeting, Wells-Yates was arrested. A search of Wells-Yates and her

belongings revealed a bag containing a small amount of methamphetamine, a set

of scales, small plastic bags, and other drug paraphernalia. As part of the ensuing

investigation, the agent learned that Wells-Yates had also stolen personal checks

and had used a stolen gas card to purchase gasoline for multiple vehicles.

¶31 The prosecution charged Wells-Yates in 2012 with second degree burglary,

conspiracy to commit second degree burglary, theft, possession with intent to sell

or distribute 7 grams or less of a schedule II controlled substance

(methamphetamine), four counts of identity theft, and three habitual criminal

counts. In February 2013, a jury found Wells-Yates guilty of all the substantive

charges. Following a bench trial in May 2013, the court adjudicated her a habitual

criminal based on three predicate offenses:

• A 1996 conviction for possession with intent to sell or distribute 7 grams
or less of a schedule II controlled substance (methamphetamine), a class
3 felony;

• a 1997 conviction for possession of 2 grams or less of a schedule II
controlled substance (methamphetamine), a class 4 felony; and

• a 1999 conviction for possession of 2 grams or less of a schedule II
controlled substance (methamphetamine), a class 4 felony.

21
¶32 The court subsequently conducted a sentencing hearing. For each of the

eight triggering offenses, it imposed the statutorily required prison sentence—four

times the maximum prison term in the presumptive range:

• 48 years (12 × 4) on count 1, second degree burglary, a class 3 felony;

• 24 years (6 × 4) on count 2, conspiracy to commit second degree burglary,
a class 4 felony;

• 24 years (6 × 4) on count 3, theft, a class 4 felony;

• 48 years (12 × 4) on count 4, possession with intent to sell or distribute 7
grams or less of a schedule II controlled substance (methamphetamine),
a class 3 felony;9 and

• 24 years (6 × 4) on each of the four class 4 felony counts of identity theft
(counts 5, 6, 7, and 12).

¶33 The court ordered all of the sentences, with the exception of the sentence on

count 7, to be served concurrently.10 In total, Wells-Yates received an aggregate

prison term of 72 years: 24 years on count 7, consecutive to all the other sentences

9 The parties agree that the sentence on count 4 was incorrectly calculated; it
should have been 64 years, not 48 years. Possession with intent to sell or distribute
7 grams or less of methamphetamine on the date charged in count 4 was an
extraordinary risk class 3 felony, see § 18-1.3-401(10)(b)(XI), C.R.S. (2012); the
maximum term of years in the presumptive range for such a felony is 16, not 12,
years, see § 18-1.3-401(1)(a)(V)(A), C.R.S. (2019). Therefore, the trial court should
have multiplied 16 × 4, not 12 × 4.
10 The basis of count 7 was the sale of the identity documents during Wells-Yates’s
first meeting with the agent; the sentence on that count was ordered to be served
consecutive to all the other sentences.

22
(the longest of which were the 48-year concurrent sentences on counts 1 and 4).11

She is eligible for parole.

¶34 Wells-Yates advanced a proportionality challenge. After conducting an

abbreviated proportionality review of the aggregate prison term, the trial court

found that it was not unconstitutionally disproportionate. A division of the court

of appeals affirmed. Wells-Yates then filed a petition for certiorari review, which

we granted in part.12

11 Given the error regarding the sentence on count 4, the parties agree that
Wells-Yates should have received an aggregate prison term of 88, not 72, years (24
+ 64, instead of 24 + 48).
12 We granted certiorari to review the following five issues:
1. Whether a 72-year prison sentence based on a defendant’s habitual
offender status is grossly disproportionate when the defendant
has only three prior felony drug possession convictions, which the
legislature has re-classified and which could no longer be used to
quadruple a defendant’s sentence.
2. Whether a court, when conducting an abbreviated proportionality
review of a habitual sentence, can consider the General Assembly’s
subsequent reclassification of a crime or amendment of the
habitual criminal statute that made an underlying crime
inapplicable for purposes of habitual criminal adjudication.
3. Whether this Court in Rutter v. People, 2015 CO 71, 363 P.3d 183,
intended to overrule its prior precedent establishing that courts
must look at both the triggering conviction and prior convictions
in combination when assessing whether a sentence is
disproportionate under the Eighth Amendment.
4. Whether this Court’s announcement in People v. Deroulet, 48 P.3d
520 (Colo. 2002), that all narcotics-related offenses are per se grave
23
 IV. Standard of Review

¶35 Whether a sentence is grossly disproportionate in violation of the Eighth

Amendment to the U.S. Constitution and article 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, ¶ 12, 363 P.3d at 187.

V. Analysis

¶36 Having generally discussed the relevant law and facts, and having set forth

the governing standard of review, we are finally ready to address the five issues

we agreed to consider in this appeal. We analyze each in turn.

A. To Determine Gravity or Seriousness, Should the
Triggering and Predicate Offenses Be Considered
Together?
¶37 Wells-Yates maintains that courts should consider the triggering offense

and the predicate offenses together in determining gravity or seriousness during

an abbreviated proportionality review. The prosecution agrees. We do too. See

Gaskins, 825 P.2d at 36. To the extent that our decision in Rutter may be construed

otherwise, this opinion serves as clarification.

and serious should be revisited in light of recent legislative
amendments to our drug laws.
5. Whether convictions for drug possession or drug
possession-with-intent are grave and serious.

24
¶38 Here, though, there are eight triggering offenses, and the division lumped

them all together and then determined whether, in combination, they were so

lacking in gravity or seriousness as to give rise to an inference that the aggregate

prison term of 72 years is grossly disproportionate.13 Wells-Yates urges us to accept

this methodology. But we decline to do so because the division was required to

decide whether each triggering offense and the predicate offenses, in combination,

are so lacking in gravity or seriousness as to give rise to an inference that the

sentence imposed on that particular triggering offense is grossly disproportionate. Id.

Hence, for example, the division should have considered whether the triggering

offense of second degree burglary and the three predicate offenses, in

combination, are so lacking in gravity or seriousness as to suggest that the 48-year

sentence imposed on that triggering offense is grossly disproportionate.

¶39 Because the division’s analysis is inconsistent with today’s holding, we

conclude that it is erroneous. Therefore, we reverse the division’s judgment.

13The division appears to have ignored the predicate offenses in this part of the
analysis.

25
 B. Should Relevant Statutory Amendments Enacted After
the Dates of the Triggering and Predicate Offenses Be
Considered During an Abbreviated Proportionality
Review?

¶40 Wells-Yates argues that, during the abbreviated proportionality review

(step one), the trial court should have factored in relevant legislative amendments

enacted after the dates of the triggering and predicate offenses. The prosecution

counters that such statutory changes may only be considered during an extended

proportionality review (step two). Before settling the parties’ dispute, we examine

the pertinent amendments.

¶41 Recall that the prosecution proved three predicate offenses, one for

possession with intent to sell or distribute 7 grams or less of methamphetamine

and two for possession of 2 grams or less of methamphetamine. More than a

decade after Wells-Yates committed these offenses, the General Assembly

amended the drug and habitual criminal statutes. More specifically, in 2010, it

prospectively reclassified the possession of 2 grams or less of methamphetamine

from a class 4 to a class 6 felony.14 See Ch. 259, sec. 4, § 18-18-403.5(2)(b)(I), 2010

Colo. Sess. Laws 1162, 1165. The following year, the legislature amended the

14Class 6 felonies carry a presumptive term of imprisonment of 12 to 18 months,
which is significantly less severe than the presumptive term of imprisonment of 2
to 6 years for class 4 felonies. § 18-1.3-401(1)(a)(V)(A.1) (applying to felonies
committed on or after July 1, 2018); see also § 18-1.3-401(1)(a)(V)(A) (applying to
felonies committed on or after July 1, 1993, and before July 1, 2018).

26
habitual criminal statute to make it inapplicable to a class 6 felony for possession

of methamphetamine. See Ch. 57, sec. 1, § 18-1.3-801(2)(b), 2011 Colo. Sess. Law

151, 151. But, like the reclassification change from the previous year, this

amendment was expressly declared prospective, not retroactive. See Hargrove,

¶ 28, 338 P.3d at 419 (citing Ch. 57, sec. 1, § 18-1.3-801(2)(b), 2011 Colo. Sess. Laws

151, 151–52).

¶42 Two years later, effective October 1, 2013, the legislature reclassified

possession with intent to sell or distribute 7 grams or less of methamphetamine

—one of the triggering offenses for which Wells-Yates was sentenced just months

earlier in this case and also one of her predicate offenses—from an extraordinary

risk class 3 felony to a level 3 drug felony.15 See Ch. 333, sec. 10, § 18-18-403.5(2)(c),

2013 Colo. Sess. Laws 1900, 1909–13. At the same time, the legislature transformed

class 6 felonies for possession of methamphetamine into level 4 drug felonies; level

4 drug felonies carry a presumptive term of imprisonment of 6 to 12 months, which

is less severe than the presumptive term of imprisonment for class 6 felonies. See

Ch. 333, sec. 8, § 18-18-403.5(2)(a), 2013 Colo. Sess. Laws 1900, 1908. Compare

15Level 3 drug felonies are not extraordinary risk crimes; they carry a presumptive
term of imprisonment of 2 to 4 years, which is significantly less severe than the
presumptive term of imprisonment of 4 to 16 years for extraordinary risk class 3
felonies. Compare § 18-1.3-401.5(2)(a), C.R.S. (2019), with § 18-1.3-401(1)(a)(V)(A),
(10)(a).

27
§ 18-1.3-401(1)(a)(V)(A), C.R.S. (2019), with § 18-1.3-401.5(2)(a), C.R.S. (2019).

Then, effective October 1, 2013, the legislature excluded from the scope of the

habitual criminal statute all level 4 drug felonies for possession of

methamphetamine when the quantity possessed “is not more than . . . two

grams.” See Ch. 333, sec. 36, § 18-1.3-801(2)(b), 2013 Colo. Sess. Laws 1900,

1927–28; Ch. 333, sec. 71, § 18-1.3-801(2)(b), 2013 Colo. Sess. Laws 1900, 1943.

¶43 In other words, since Wells-Yates’s two predicate offenses of possession of

2 grams or less of methamphetamine, the legislature has reclassified that crime

from a class 4 felony that is eligible to be both a triggering offense and a predicate

offense for habitual criminal purposes to a level 4 drug felony that carries less

severe penalties and is not so eligible. And since both of Wells-Yates’s offenses for

possession with intent to sell or distribute 7 grams or less of methamphetamine

—one of the triggering offenses and one of the predicate offenses—the legislature

has reclassified that crime from an extraordinary risk class 3 felony to a level 3

drug felony that carries less severe penalties and is not considered an

extraordinary risk crime. These changes mean that, had Wells-Yates committed

the triggering offense of possession with intent on or after October 1, 2013, instead

of in 2012, she would have faced a prison sentence of 2 to 4 years, not a mandatory

habitual criminal sentence of 64 years.

28
¶44 The General Assembly’s amendments were of no moment to the division.

But the majority of the divisions of the court of appeals have taken a different view.

See People v. Anaya, 894 P.2d 28, 32 (Colo. App. 1994) (“[W]hen the General

Assembly subsequently amends a criminal sentencing statute, even though the

[amended] statute is to be applied prospectively, the trial court may properly

consider it when determining whether a defendant’s sentence was grossly

disproportionate.”); accord People v. Loris, 2018 COA 101, ¶ 13, 434 P.3d 754, 757

(“[A] court should also consider the General Assembly’s current evaluation of the

seriousness of the offense at issue, including any relevant amendments to criminal

sentencing statutes.”); Hargrove, ¶¶ 18–20, 338 P.3d at 418 (finding that a

subsequent amendment to the habitual criminal statute, which did not apply to

Hargrove’s escape conviction, could nevertheless be considered for purposes of

determining whether that conviction was grave or serious); People v. Patnode,

126 P.3d 249, 261 (Colo. App. 2005) (explaining that, while a subsequent

reclassification of an offense did not preclude use of Patnode’s two prior offenses

under the habitual criminal statute, it was “appropriate to consider such a

legislative amendment in assessing the relative gravity and seriousness of the

offense”).

¶45 We agree with the majority approach. In determining the gravity or

seriousness of the offense during an abbreviated proportionality review, the trial

29
court should consider relevant legislative amendments enacted after the date of

the offense, even if the amendments do not apply retroactively. Further, when

undertaking this analysis with respect to a habitual criminal sentence, the court

should consider any relevant legislative amendments related to the triggering

offense and the predicate offenses.

¶46 That one or more of the offenses involved may previously have been

designated per se grave or serious does not alter these conclusions.16 The Supreme

Court has reasoned that whether a sentence contravenes the Eighth Amendment

requires courts to “look beyond historical conceptions to ‘the evolving standards

of decency that mark the progress of a maturing society.’” Graham v. Florida,

560 U.S. 48, 58 (2010) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). And the

“clearest and most reliable objective evidence” of these evolving standards “is the

legislation enacted by the country’s legislatures.” Atkins v. Virginia, 536 U.S. 304,

312 (2002) (quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)); see also Stanford v.

Kentucky, 492 U.S. 361, 370 (1989) (“‘[F]irst’ among the ‘objective indicia that reflect

the public attitude toward a given sanction’ are statutes passed by society’s elected

representatives.” (quoting McCleskey v. Kemp, 481 U.S. 279, 300 (1987))), abrogated

on other grounds by Roper v. Simmons, 543 U.S. 551 (2005).

16Wells-Yates asserts that Rutter created confusion on this point. Even if she is
correct, this opinion provides any needed clarification.

30
¶47 Thus, the division should have considered the statutory amendments in

question as objective indicia of the evolving standards of decency to determine the

gravity or seriousness of the triggering offense of possession with intent and of the

three predicate offenses. The amendments demonstrate that, starting in 2010,

there has been a sea change in our General Assembly’s philosophy regarding the

handling of drug offenses, with treatment now heavily favored over incarceration.

These reliable indicia of the evolving standards of decency in Colorado are

relevant to any proportionality challenge that includes drug offenses.

¶48 We are not persuaded otherwise by the prosecution’s reliance on the

legislature’s choice to make the amendments prospective instead of retroactive.

Whether statutory revisions apply retroactively “is a separate and distinct

question from whether a defendant’s sentence is constitutionally proportionate.”

Rutter, ¶ 35, 363 P.3d at 191 (Gabriel, J., dissenting). Consideration of the statutory

changes as the most valid indicia of Colorado’s evolving standards of decency is

not equivalent to the retroactive application of those changes. See Humphrey v.

Wilson, 652 S.E.2d 501, 507 & n.41 (Ga. 2007) (determining that the “seismic shift

in the legislature’s view of the gravity of” the defendant’s offense, though not

retroactively applicable to his conviction, was “a factor representative of the

evolving standard regarding the appropriate punishment” for the offense).

31
¶49 The prosecution posits, though, that the legislative changes on which

Wells-Yates relies are relevant only during an extended proportionality review.

This position incorrectly likens consideration of legislative changes to a

comparative analysis of Wells-Yates’s sentences and sentences imposed on other

defendants under current Colorado law. We do not require a comparison of the

challenged sentences to other sentences—at least not during an abbreviated

proportionality review (step one). Rather, we simply rule that, during the first

subpart of the abbreviated proportionality review, the division should have

considered any relevant legislative changes as the best evidence of our evolving

standards of decency.

¶50 We find equally unconvincing the prosecution’s claim that neither the

classification of a crime nor the punishment prescribed for it is trustworthy

evidence of the legislature’s view of the gravity or seriousness of the crime. Of

course it is. Colorado’s criminal classifications and sentencing schemes clearly

reflect that the more grave or serious an offense, the more serious the level of

classification assigned and the harsher the punishment prescribed. In Mershon, we

relied on the classification of the offenses and the punishment prescribed for them

in disagreeing with the trial court’s conclusion that crimes of violence were

inherently more grave or serious than heroin offenses. 874 P.2d at 1033–34. We

observed that at that time heroin offenses and many violent crimes were classified

32
as class 3 felonies and subject to identical punishment. Id. at 1034. Such

similarities, we reasoned, suggested that the legislature “viewed violent crimes

and heroin trafficking crimes to be equally serious.” Id. We added that, while not

determinative, “the legislature’s assessment of the seriousness of particular

offenses is entitled to great deference.” Id.; see also Patnode, 126 P.3d at 261 (finding

that the decision to change the classification of an offense from a felony to a

misdemeanor “indicate[d] the General Assembly’s conclusion that the offense

[was] not grave and serious”).

¶51 The prosecution insists, however, that the recent statutory amendments are

not proof that drug offenses are less grave or serious than they used to be, but

instead reflect the legislature’s attempt to find an alternative solution to a

persistent problem. This contention presents a false choice. There is no question

that the General Assembly’s statutory modifications were motivated by its desire

to find a more effective approach to drug offenses and that it ultimately settled on

emphasizing treatment and deemphasizing imprisonment. See generally

§ 18-18-401(1) (reciting the legislature’s findings, determinations, and declarations

in amending some narcotics-related statutory provisions). But these changes

simultaneously signal the legislature’s recognition that drug offenses are generally

less grave or serious than previously thought and deserve less severe punishment

than other crimes. Id.; see also § 18-1.3-103.5(2)(a), C.R.S. (2019) (allowing some

33
drug convictions to be vacated upon successful completion of a probation or

community corrections sentence); § 18-1.3-104.5, C.R.S. (2019) (requiring that all

reasonable alternative sentencing options be exhausted before a prison sentence is

imposed for some drug convictions).

¶52 We likewise disagree with the prosecution that the gravity or seriousness of

an offense should be ascertained as of the date the offense was committed,

including by consulting the relevant statutes in effect at that time. Inasmuch as

analysis under the Eighth Amendment and article II, section 20 is concerned with

evolving standards of decency related to punishment, legislative enactments that

take effect after the date of the offense and have no retroactive application may

nevertheless be relevant to evaluate the gravity or seriousness of the offense.

¶53 Because the division did not consider the statutory changes at issue, it erred.

Therefore, we reverse its judgment.

C. Should All Narcotics-Related Offenses Be Deemed Per
Se Grave or Serious?

¶54 Wells-Yates urges us to rid ourselves entirely of the per se grave or serious

designation in the context of an abbreviated proportionality review. Because this

question is not before us and has not been fully briefed, we decline the invitation

to address it. Instead, our focus is narrower: Should all narcotics-related offenses

continue to be considered per se grave or serious in Colorado? For five reasons,

we answer no.
34
¶55 First, a careful look at its genesis reveals that the contested designation is

premised on a misreading of Gaskins. Both Close and Deroulet cited Gaskins for the

proposition that all narcotic offenses had previously been determined to be

inherently grave or serious in Colorado. Close, 48 P.3d at 537; Deroulet, 48 P.3d at

524. But Gaskins referred to the “sale of narcotic drugs” as being inherently grave

or serious. Gaskins, 825 P.2d at 37 (emphasis added). It said nothing about other

narcotic offenses, and it certainly did not declare that all narcotic offenses are

inherently grave or serious.

¶56 True enough, Deroulet also cited People v. Cisneros, 855 P.2d 822, 830 (Colo.

1993), in observing that our court had “previously held that the possession or sale

of narcotics is a grave or serious offense.” Deroulet, 48 P.3d at 527 (emphasis

added). However, Cisneros took the same misstep Close and Deroulet did: It relied

on Gaskins for a principle that Gaskins cannot support—namely, the designation of

the possession of narcotics as inherently grave or serious. Cisneros, 855 P.2d at 830.

And, though Cisneros also cited Harmelin for this proposition, id., that citation is no

more useful (or accurate) because Harmelin did not hold that the possession of

narcotics—no matter how small the quantity involved—is inherently grave or

serious.

¶57 To be sure, Harmelin both observed that the possession of narcotics

“threatened to cause grave harm to society” and alluded to “the pernicious effects

35
of the drug epidemic in this country.” 501 U.S. at 1002–03. Drug offenses in

general, explained Harmelin, “represent ‘one of the greatest problems affecting the

health and welfare of our population.’” Id. at 1002 (quoting Nat’l Treasury Emp.

Union v. Von Raab, 489 U.S. 656, 668 (1989)). But the analysis didn’t end there. It

also included consideration of the specific facts and circumstances surrounding

Harmelin’s offense—he had possessed “more than 650 grams (over 1.5 pounds) of

cocaine,” which had “a potential yield of between 32,500 and 65,000 doses.” Id.

Harmelin reasoned that, “[f]rom any standpoint,” the specific possession crime at

issue there fell “in a different category from the relatively minor, nonviolent

crime” of passing a worthless check in Solem. Id. Stated differently, Harmelin did

not conclude that all drug possession crimes are grave or serious irrespective of

the surrounding facts and circumstances. Nor is the rule of Harmelin that a life

sentence without parole can be imposed on any drug possession crime without

ever running afoul of the Eighth Amendment.

¶58 Second, the recent legislative amendments impacting drug offenses militate

against preserving a blanket rule rendering all such offenses inherently grave or

serious. The General Assembly treats most drug felonies as substantially less

grave or serious today than it has in the past, and this adjustment is the best

evidence of the views held by our maturing society, as expressed through its

representatives in the legislature.

36
¶59 Relatedly, the legislature does not treat all drug felonies equally. For

example, someone convicted of a level 1 drug felony faces a maximum

presumptive sentence of 32 years in prison and a $1,000,000 fine. § 18-1.3-401.5(2).

On the other hand, someone convicted of a level 4 drug felony faces a maximum

presumptive sentence of 1 year in prison and a $100,000 fine. Id. Given this ocean

of difference in legislative treatment, we are disinclined to label all drug felonies

per se grave or serious. This is particularly the case considering that the significant

reduction in the punishment prescribed for some drug felonies reflects that they

are now deemed less grave or serious than the vast majority of felony offenses.

The recent changes to the habitual criminal statute are illustrative: Possession of 2

grams or less of methamphetamine is among the select felonies that the legislature

has exempted from habitual criminal punishment. § 18-1.3-801(2)(b).

¶60 Third, because drug offenses encompass a wide spectrum of conduct, we

believe that the most prudent course of action is to refrain from painting them all

with the same broad brush. It makes little sense to automatically treat the sale of

a large quantity of cocaine by the leader of a drug cartel as equally grave or serious

as the mere possession of a very small quantity of cocaine by a drug addict who is

not involved in sale or distribution.

37
¶61 Fourth, as we have discussed, delineating certain crimes as per se grave or

serious has no basis in Supreme Court jurisprudence and is unique to Colorado

law. Therefore, the label should be used judiciously and deliberately.

¶62 Lastly, designating a crime per se grave or serious has significant

consequences and courts should therefore do so cautiously. Once a crime has been

deemed per se grave or serious, courts skip the first subpart of step one of an

abbreviated proportionality review (gravity or seriousness) and proceed directly

to the second subpart of that step (harshness of the penalty). What’s more, any

review in the second subpart is substantially circumscribed because the

legislature’s establishment of the harshness of the penalty deserves great

deference. Close, 48 P.3d at 538; Deroulet, 48 P.3d at 526. Consequently, a per se

grave or serious designation “renders a sentence nearly impervious to attack on

proportionality grounds.” Close, 48 P.3d at 538. This concern is magnified in the

habitual criminal context, where every sentence under review has been imposed

without the trial court’s exercise of discretion. Id. at 540.

¶63 Accordingly, we now conclude that the designation of per se grave or

serious for purposes of a proportionality review must be reserved for those rare

crimes which, based on their statutory elements, necessarily involve grave or

serious conduct. 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

38
every potential factual scenario. Using the designation otherwise is fraught with

peril.

¶64 Robbery is a perfect example of the type of crime that is appropriately

viewed as per se grave or serious. No matter what facts and circumstances may

be involved, if a defendant is convicted of robbery, it necessarily means that he

knowingly took something of value from the person or presence of another by the

use of force, threats, or intimidation. § 18-4-301(1), C.R.S. (2019). Thus, robbery,

by its very nature, involves knowing conduct and grave harm (or the threat of

grave harm) to the victim or society (or both). See Solem, 463 U.S. at 292. As such,

it fits the standard we articulate today: A conviction for robbery is per se grave or

serious because it will always involve knowing conduct and grave harm (or the

threat of grave harm) to the victim or society (or both).

¶65 Aggravated robbery, burglary,17 accessory to first degree murder, and the

sale or distribution of narcotics—the other crimes we have previously designated

inherently grave or serious—satisfy the standard we announce today as well.18

17Because the question is not before us, we do not address whether the designation
of burglary as a per se grave or serious crime extends to third degree burglary,
which includes breaking into a coin vending machine, see § 18-4-204(1), C.R.S.
(2019), or even second degree burglary, which includes unlawfully remaining in a
building or occupied structure after a lawful entry with the intent to commit
therein a crime against property, see § 18-4-203(1), C.R.S. (2019).
18Attempted burglary, conspiracy to commit burglary, and felony menacing were
included in Close’s list of per se grave or serious crimes, see 48 P.3d at 538, but were
39
The statutory elements of these offenses ensure that, regardless of the facts and

circumstances involved, a defendant who stands convicted of any such offense

will have committed a crime that is necessarily grave or serious.

¶66 We cannot say the same about all narcotic crimes. We have held that the

sale or distribution of any quantity of narcotics is inherently grave or serious

because it causes “grave societal harm.” See Gaskins, 825 P.2d at 37. But based on

the elements of a different drug offense, the underlying conduct may not always

be grave or serious. Indeed, we conclude next that the drug offenses of possession

and possession with intent should no longer be considered per se grave or serious.

¶67 Because the division determined that all narcotic offenses should continue

to be designated per se grave or serious, it erred. We therefore reverse its

judgment.

D. Should Possession and Possession With Intent Be
Deemed Per Se Grave or Serious?
¶68 We conclude that the possession of narcotics and the possession with intent

to sell, distribute, manufacture, or dispense narcotics should no longer be

considered per se grave or serious. We take up possession first and then analyze

possession with intent.

simultaneously omitted from the list of per se grave or serious crimes in Deroulet,
Close’s companion case, see 48 P.3d at 524. We need not, and therefore do not,
decide whether these crimes should be considered per se grave or serious.

40
¶69 Given that we have determined that not all narcotic offenses are per se grave

or serious, and given further that possession is among the least (and arguably the

least) grave or serious of all drug offenses, we have little difficulty declaring that

possession should no longer be considered per se grave or serious. Of course,

possession may be grave or serious—such as when a defendant possesses a large

quantity of narcotics. See Harmelin, 501 U.S. at 1002. But whether it is should turn

on the facts and circumstances surrounding the specific crime committed—i.e.,

based on consideration of the harm caused or threatened to the victim or society

and the offender’s culpability. See Solem, 463 U.S. at 292. The point is that this

must be an individualized determination.

¶70 Possession with intent is a much closer question. It involves more than mere

possession, which we just determined is not per se grave or serious, but it involves

less than sale or distribution, which we have long considered per se grave or

serious. Although we anticipate that many convictions for possession with intent

will be grave or serious, we believe that the wiser approach is to require a case-by-

case evaluation.

¶71 Unlike aggravated robbery, robbery, burglary, accessory to first degree

murder, and the sale or distribution of narcotics, possession with intent is not one

of those crimes that we can predict with any degree of confidence will always be

grave or serious. Given its statutory elements, possession with intent includes

41
wide-ranging conduct, not all of which rises to the level of grave or serious. For

instance, an addict found in possession of baggies, a scale, and a very small

quantity of narcotics may be convicted of possession with intent. Because there

are facts and circumstances in which possession with intent cannot reasonably be

deemed to belong in the same category as the offenses that are considered per se

grave or serious, we cannot say that it is an inherently grave or serious crime.

Instead, we conclude that the gravity or seriousness of possession with intent

should be determined on a case-by-case basis by considering the surrounding facts

and circumstances of the particular crime committed.

¶72 We recognize that the offenses of sale or distribution, on the one hand, and

possession with intent, on the other, are set forth in the same statutory provision.

See § 18-18-405(1)(a), C.R.S. (2019). Further, we acknowledge that a reasonable

argument can be advanced that these crimes are sufficiently similar to warrant

according both the per se designation. But we see a significant difference between

them. Whatever quantity may be involved and whatever other facts and

circumstances may be present, anyone convicted of sale or distribution will

necessarily have engaged in grave or serious conduct because he will have

knowingly sold or distributed narcotics. Possession with intent, however, refers

to someone who, while intending to sell, distribute, manufacture, or dispense

narcotics, does not actually do so. One of the factors Solem instructs us to look at

42
in determining gravity or seriousness is whether the crime involves a completed

act versus an attempt to commit an act. Solem, 463 U.S. at 293. Possession with

intent requires less than the completed (or even the attempted) sale, distribution,

manufacture, or dispensation of narcotics; it requires simply an intent to sell,

distribute, manufacture, or dispense narcotics. This is a compelling factor in our

decision to refrain from designating possession with intent per se grave or serious,

even though sale or distribution retains such designation.

¶73 Because the division concluded that possession and possession with intent

are per se grave or serious, it erred. Therefore, we reverse its judgment.

E. Is Wells-Yates’s “72-Year Prison Sentence”
Grossly Disproportionate?

¶74 Wells-Yates asks us to rule that her “72-year prison sentence” is grossly

disproportionate. We decline to do so. To begin, Wells-Yates did not receive a

72-year prison sentence. She received multiple prison sentences, the aggregate of

which is a 72-year imprisonment term. But that aggregate imprisonment term is

not subject to proportionality review. Instead, as we explained earlier, the

sentence for each triggering offense is entitled to an abbreviated proportionality

review consistent with the guidance we provide in this opinion.

¶75 Moreover, we have concluded that the predicate offenses in this case are not

per se grave or serious and that the triggering offense of possession with intent

—the offense responsible for Wells-Yates’s longest sentence—is likewise not per
43
se grave or serious. Therefore, the abbreviated proportionality review of the

64-year sentence required for the triggering offense of possession with intent will

entail an analysis of the facts and circumstances surrounding that offense and the

facts and circumstances surrounding each of the three predicate offenses. A

similar factual analysis will be necessary for the proportionality review of the

sentences imposed on the other seven triggering offenses because each sentence is

affected by the gravity or seriousness of the predicate offenses, none of which is

per se grave or serious.19 Given that the trial court is “uniquely suited” to make

these factual determinations, see Gaskins, 825 P.2d at 35, we remand to the court of

appeals with instructions to return the case to the trial court for a new

proportionality review with respect to each of Wells-Yates’s sentences in

accordance with this opinion.20

VI. Conclusion

¶76 We hold that: (1) during an abbreviated proportionality review of a habitual

criminal sentence, the court must consider each triggering offense and the

predicate offenses together and determine whether, in combination, they are so

19We have not been called upon to decide in this case whether any of the other
seven triggering offenses is per se grave or serious.
20We anticipate that in the vast majority of cases requiring a refined analysis of the
facts and circumstances related to any triggering or predicate offense, the court’s
review will not be time-consuming or burdensome.

44
lacking in gravity or seriousness as to raise an inference that the sentence imposed

on that triggering offense is grossly disproportionate; (2) in determining the

gravity or seriousness of the triggering offense and the predicate offenses, the

court should consider any relevant legislative amendments enacted after the dates

of those offenses, even if the amendments do not apply retroactively; (3) not all

narcotic offenses are per se grave or serious; and (4) the narcotic offenses of

possession and possession with intent are not per se grave or serious. Because the

division’s decision is at odds with the conclusions we reach today, we reverse its

judgment. Accordingly, we remand with instructions to return the case to the trial

court for a new proportionality review consistent with this opinion.

JUSTICE BOATRIGHT concurs in the judgment.
CHIEF JUSTICE COATS dissents.

45
JUSTICE BOATRIGHT, concurring in the judgment.

¶77 I agree with Chief Justice Coats that the majority is engaging in an

unnecessary “global rewrite of our proportionality jurisprudence” and is writing

“so broadly” that its opinion effectively overturns “propositions long accepted by

this court.” Dis. op. ¶ 1. And I further agree that “the ‘exceedingly rare’

circumstance in which a term of years could successfully be challenged as

disproportionate . . . is limited to an exceedingly, and necessarily, long term of

years imposed for crime that is neither violent, grave, nor serious.” Id. at ¶ 8

(internal citation omitted). I write separately, however, because I do agree with

the majority that certain offenses that we previously determined are per se grave

or serious need to be reexamined and that amendments to relevant statutes should

be considered when conducting a proportionality review. Specifically, I agree

with the majority that theft (as discussed in Melton v. People, 2019 CO 89, __ P.3d

__) and mere possession of drugs should no longer be deemed per se grave or

serious. Conversely, I respectfully disagree with the majority about the treatment

of possession with intent to sell or distribute. In my view, any offense that includes

the intent to sell or distribute drugs should remain per se grave or serious; hence,

I concur in the judgment only and write separately to explain why.

¶78 First, the legislature recognizes that the sale or distribution of drugs and the

possession with intent to sell or distribute are equally serious and should be
1
treated as such. After all, the two offenses are in the same statute. Section 18-18-

405(1)(a), C.R.S. (2019), makes it unlawful to “knowingly . . . manufacture,

dispense, sell, or distribute, or to possess with [the] intent to manufacture,

dispense, sell, or distribute, a controlled substance” (emphasis added). In

attempting to distinguish between sale or distribution and possession with intent

to sell or distribute, the majority threads the needle so finely that it actually

bifurcates the statute criminalizing these acts. Not only are sale or distribution

and possession with intent to sell or distribute in the same statutory scheme, and

not only are they in the very same subsection as each other, but they are in fact in

the very same sentence of the statute. Despite that, the majority holds that some

offenses falling under the exact same statute, section 18-18-405(1)(a), will be per se

grave or serious while others will not, simply because of the point in time that they

are detected. This cannot be what the legislature intended. In other words, the

plain meaning of the statute evinces that the legislature recognizes that a person

who is detected after a drug transaction is as equally culpable as a person who is

caught during a drug transaction. This is simply common sense.

¶79 Despite the plain language of the statute, which leads to the conclusion that

possession with intent to sell or distribute is treated equally with distribution itself,

the majority overturns not only our precedent regarding possession with intent to

sell or distribute drugs as per se grave or serious but the United States Supreme
2
Court’s precedent as well. See Harmelin v. Michigan, 501 U.S. 957, 1002 (1991)

(Kennedy, J., concurring). Consistent with Supreme Court precedent, we have

long maintained that the “[s]ale of narcotic drugs is viewed with great seriousness

because of the grave societal harm caused by sale of illegal drugs and the evils

associated with their use.” People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). The

majority appears to agree with this proposition because it allows for the sale or

distribution of drugs to remain per se grave or serious under the standard it

announces today. Maj. op. ¶ 71. But at the same time, the majority holds that

possession with intent to sell or distribute is not per se grave or serious. Id. at ¶ 68.

While the majority sees daylight between the two offenses, I do not; after all, the

goal of a person committing either offense is exactly the same—to sell or distribute

drugs. Therefore, in my view, the grave societal harm is equal for both offenses.

Because of this, I fail to see how possession with intent to sell or distribute does

not satisfy the majority’s per se grave or serious standard announced today.

¶80 The majority holds that the standard for designating offenses per se grave

or serious is whether the offense in question “necessarily involve[s] grave or

serious conduct.” Id. at ¶ 63. The majority goes on to state, albeit in its robbery

analysis, that such offenses are those that “always involve knowing conduct and

grave harm (or the threat of grave harm) to the victim or society (or both).” Id. at ¶ 64

(emphasis added). While the majority rightly remains convinced that the sale or
3
distribution of drugs involves knowing conduct and grave harm, it fails to

recognize that possession with intent to sell or distribute threatens the very same

grave harm that the actual sale or distribution produces. Regardless of which

offense it is, there is always grave harm or the threat of grave harm to both the drug

user, whose addiction is enabled and encouraged by sellers or distributors, as well

as society, which is harmed by the myriad of consequences caused by the spread

of illegal drug use. See Harmelin, 501 U.S. at 1002 (Kennedy, J., concurring)

(“[U]se[] and distribution of illegal drugs represent ‘one of the greatest problems

affecting the health and welfare of our population.’” (quoting Nat’l Treasury Emps.

Union v. Von Raab, 489 U.S. 656, 668 (1989))).

¶81 The majority acknowledges that “[p]ossession with intent is a much closer

question” than mere possession for per se grave or serious purposes. Maj. op. ¶ 70.

But it elaborates that the reason for the closer question is that possession with

intent to sell or distribute involves “less than sale or distribution, which we have

long considered per se grave or serious.” Id. Literally, that may be true: Sale or

distribution is a completed act, while possession with intent to sell or distribute

is—to use the majority’s words—“less than” that completed act. In reality, this

difference is one of happenstance. Under the majority’s view, an individual who

is caught selling or distributing a controlled substance is more culpable, her crime

more “greatly serious,” than the person who intended to do—and in fact may have
4
already accomplished—the very same thing. But under the majority’s view,

because the person who intended to sell or distribute was arrested before or after

she had the opportunity to fulfill her intent, she is not subject to the sentencing

implications of a per se grave or serious designation. I cannot grasp how the

timing of the act of distribution can account for the difference in treatment between

per se grave or serious and not.

¶82 The flaw in the majority’s logic is best illustrated by a hypothetical. Under

the majority’s holding, a well-known drug dealer who is planning to sell hundreds

of pounds of an illegal drug but gets caught prior to actually selling it would be

charged with possession with intent to distribute, whereas a one-time seller who

completes a transaction selling a small amount of the same drug but is caught in

the act would be charged with distribution. By the majority’s logic, the well-

known drug dealer’s offense is not per se grave or serious, but the one-time seller’s

is. That result is inequitable and illogical. In both cases, it is the underlying intent

to distribute illegal drugs—and not whether that intent was actually completed—

that is grave or serious.

¶83 Because I believe that we cannot and should not draw such a fine line

between the sale or distribution of drugs and the possession with intent to sell or

distribute drugs, I cannot support the majority’s holding that possession with

intent to sell or distribute should no longer be deemed per se grave or serious.
5
Here, because two of Wells-Yates’s predicate convictions were for simple

possession—and because I agree with the majority that such offenses are not per

se grave or serious, and that a trial court should consider ameliorative legislation

for the purposes of proportionality—I would remand for the trial court to conduct

a new proportionality review (under the standard from our previous

proportionality precedent for the reasons discussed in the dissent). Accordingly,

while I agree with the rationale of the dissent, I concur in the majority’s judgment

only.

6
CHIEF JUSTICE COATS, dissenting.

¶84 Unlike the majority, I think it clear that the defendant’s recidivist sentences

in this case are not constitutionally disproportionate, a matter determinable by this

court without regard for the analysis below, and I would therefore affirm without

remand for further consideration. Rather than limit itself to the sentence in this

case, the proportionality of which I believe to pose no serious question, the

majority attempts a global rewrite of our proportionality jurisprudence,

reinterpreting controlling United States Supreme Court precedent and disputing

in a number of critical respects our own prior guidance for applying it. Because

the Supreme Court has not found it necessary to parse any more finely the

principles governing proportionality relative to sentences to terms of years, and

because this court has largely been able to appropriately reject the proportionality

challenges with which it has been faced in any event, I have not previously found

it necessary to write in this area. Because, however, the majority writes so broadly

today, criticizing and at several points overturning propositions long accepted by

this court, and because it considers itself unable at this stage to simply declare the

defendant’s sentence constitutional, I feel compelled to briefly express my

different understanding of the principles governing non-capital, constitutional

proportionality review. I therefore respectfully dissent and write separately.

1
¶85 As an initial matter, I note that the majority dismisses as inconsequential

what I consider to be the single most direct and important Supreme Court

authority concerning constitutional proportionality limitations governing

recidivist sentencing. See Ewing v. California, 538 U.S. 11 (2003) (O’Connor, J.,

concurring). For the same reasons we, and most other jurisdictions, have accepted

the opinion of Justice Kennedy as the “rule,” or controlling authority, of

Harmelin v. Michigan, 501 U.S. 957 (1991), the opinion authored by Justice

O’Connor represents the controlling authority of Ewing. See Marks v. United States,

430 U.S. 188, 193 (1977); see also Close v. People, 48 P.3d 528, 535, 537 (Colo. 2002).

And just as Harmelin represents the Court’s latest statement concerning

proportionality in non-capital sentencing generally, and non-recidivist sentencing

in particular, Ewing represents the Court’s latest statement concerning recidivist

sentencing. While making clear that it is “guided by” the proportionality

principles distilled in Justice Kennedy’s opinion in Harmelin, the controlling

opinion in Ewing also acknowledges for the first time that along with the

sentencing goals of deterrence and retribution, which warranted the life without

parole sentence for drug dealing in Harmelin, incapacitation, as another

appropriate legislative sentencing goal, must be considered in the balance of

gravity and harshness in what the Ewing Court terms “the new context” of

recidivist sentencing implicated in that case. Ewing, 538 U.S. at 23–25.
2
¶86 Harmelin had already made clear that controlling principles of

proportionality review require both that substantial deference be shown to

legislatures, which necessarily possess broad authority in determining the types

and limits of punishment for crime, and that any such review must be informed

by objective factors to the maximum extent possible. 501 U.S. at 998–99. Finding

a relative lack of objective standards to distinguish between sentences for different

terms of imprisonment imposed by legislation, the Court therefore concluded that

such sentences are reviewable only for gross disproportionality and, in fact, that

the possibility of successful challenges to the proportionality of particular prison

sentences must therefore be exceedingly rare. Id. at 1001 (quoting Solem v. Helm,

463 U.S. 277, 289–90 (1983)). Unlike Harmelin, which addressed gravity and

harshness with respect to a particular offense, Ewing made clear that in recidivist

sentencing the question of gravity must include consideration of not only the

defendant’s current offense but also his criminal history as a whole, and that the

state has a legitimate interest not only in punishing for the “triggering” offense but

also “in dealing in a harsher manner with those who by repeated criminal acts

have shown that they are simply incapable of conforming to the norms of society

as established by its criminal law.” Ewing, 538 U.S. at 29 (quoting Rummel v. Estelle,

445 U.S. 263, 276 (1980)).

3
¶87 Both Harmelin and Ewing, however, made clear that the controlling question

for purposes of proportionality review is simply whether the legislature had a

“reasonable,” or “rational,” basis for choosing the sentence it did: With regard to

the drug conviction in Harmelin, the question was whether “the Michigan

legislature could with reason conclude that the threat posed to the individual and

society by possession of this large an amount of cocaine . . . is momentous enough

to warrant the deterrence and retribution of a life sentence without parole,”

501 U.S. at 1003; and for the recidivist sentence in Ewing, whether “the State of

California has a reasonable basis for believing that dramatically enhanced

sentences for habitual felons ‘advance[s] the goals of [its] criminal justice system

in any substantial way,’” 538 U.S. at 28 (quoting Solem, 463 U.S. at 297 n.22). In

each case the Court found that the respective legislature could and did. Ewing,

538 U.S. at 30–31; Harmelin, 501 U.S. at 1008–09.

¶88 The controlling opinion in Ewing distinguished the result in Solem, in which

the Court found a recidivist sentence to be unconstitutionally disproportionate,

from that in Rummel, in which the Court found no disproportionality, not on

grounds that either the triggering or prior offenses in the former case were less

serious, but solely on the ground that the sentence at issue in Solem, unlike that in

Rummel, did not permit discretionary release to parole. Ewing, 538 U.S. at 22 (citing

Solem, 463 U.S. at 297). The Ewing Court therefore held that a sentence of twenty-
4
five years to life in prison, imposed under California’s three strikes law for the

offense of felony grand theft, despite the sentencing court’s discretion to classify it

as only a misdemeanor, was not grossly disproportionate. Id. at 30–31. The

defendant in this case was sentenced for felony possession with intent to sell

methamphetamine, following three prior convictions for felony possession or

possession with intent to sell the same illegal drug, to a mandatory term of

imprisonment with parole eligibility after serving fewer than thirty years, as well

as felony identity theft following the same three prior convictions, to a mandatory

term of imprisonment with parole eligibility after serving fewer than ten years.

See Ankeney v. Raemisch, 2015 CO 14, ¶ 12, 344 P.3d 847, 850–51. I believe no further

analysis or finding is necessary to mandate a determination by this court that the

legislature had a rational basis to believe incapacitation of a person committing

this number of such felonies, seriatim—each following conviction for the last—

would advance the goals of our criminal justice system by incapacitating the

defendant for the prescribed number of years.

¶89 I therefore consider the majority’s substantial revision of the applicable

standards for a constitutional proportionality review to be not only unnecessary

but in fact highly problematic. While I agree that our understanding of the

constitutional requirement of proportionality in non-capital sentencing has not

always been either clear or consistent, and has in fact morphed to accommodate
5
different sentencing questions and the often-changing and cryptic dictates of the

Supreme Court, I do not agree with the majority’s characterization of either our or

the Supreme Court’s prior pronouncements in this area, or the majority’s

extension of those pronouncements to the consideration of legislative

amendments to the classification and sentencing schemes involved in this case.

Although my disagreements with the majority are more fundamental and

therefore impact much of both its reasoning and conclusions, I believe our

differences stem in large part from our different understandings of the role and

determination of the gravity and seriousness of offenses and what appears to me

to be the majority’s reluctance to defer to the rational choices of the legislature

concerning terms of imprisonment.

¶90 The majority enumerates five reasons why it considers “problematic” the

“view” expressed in People v. Gaskins, 825 P.2d 30 (Colo. 1992), and subsequent

cases, concerning the adequacy of an abbreviated review when the supporting

offenses are grave or serious, with virtually all of which I disagree. Maj. op. ¶ 26.

In this regard, I understand Gaskins to have held that an abbreviated review was

sufficient to determine that the offenses supporting the defendant’s recidivist

sentence in that case were not so lacking in gravity or seriousness as to suggest

that a life sentence allowing for the possibility of parole was constitutionally

disproportionate. Gaskins, 825 P.2d at 36. Rather than implying that the harshness
6
of the penalty could be disregarded, we clearly indicated that any habitual

criminal sentence supported by the named offenses to a term of years that includes

eligibility for parole would not be grossly disproportionate. See id. at 37. Our

subsequent cases of Close and People v. Deroulet, 48 P.3d 520 (Colo. 2002), which

actually addressed the question whether a defendant would even be entitled to a

proportionality review of crime of violence or habitual criminal sentences in this

jurisdiction, are best understood as simply acknowledging that although no

penalty is per se constitutional, virtually any recidivist sentence to a term of years

for those crimes already found to be sufficiently grave or serious in Gaskins will be

nearly impervious to a proportionality challenge. See Close, 48 P.3d at 538;

Deroulet, 48 P.3d at 526–27. In the absence of an inference of gross

disproportionality having been the result of an abbreviated review alone, Harmelin

made clear that such an abbreviated review was all that was required.

¶91 It appears to me that the majority’s demand for a balance of gravity and

harshness in every case evidences a failure to heed Harmelin’s admonition that the

lack of clear objective standards to distinguish between sentences for different

terms of years and mandatory deference to rational legislative choices precludes

judicial findings of all but gross disproportionality. Rather, the “exceedingly rare”

circumstance in which a term of years could successfully be challenged as

disproportionate, see Harmelin, 501 U.S. at 1001, is limited to an exceedingly, and
7
necessarily, long term of years imposed for crime that is neither violent, grave, nor

serious, in the sense that it amounts to no more than malum prohibitum or “one

of the most passive felonies a person could commit,” id. at 1002 (quoting Solem,

463 U.S. at 296). In its last word on recidivist sentencing and justification of such

sentences in terms of incapacitation, the Supreme Court distinguished Rummel, in

which it upheld a recidivist sentence against a proportionality challenge, from

Solem, in which it did not, solely on the ground that the life sentence in the former

allowed for the possibility of parole while the life sentence in the latter did not.

Ewing, 538 U.S. at 22. Emphasizing that Solem expressly declined to overrule

Rummel, the Ewing Court further recounted with favor that Mr. Rummel was

sentenced to a lengthy prison term for felony theft of $120.75 by false pretenses,

after having been convicted of no more than fraudulent use of a credit card to

obtain $80 worth of goods and services and of passing a forged check in the

amount of $28.36. Ewing, 538 U.S. at 21–23. Finally, Ewing recounted that the

Rummel Court offered, by way of example, that the proportionality principle

would come into play if a legislature were to make overtime parking a felony

punishable by life imprisonment, and that the Rummel Court, by contrast, upheld

the mandatory life sentence being challenged in that case against an Eighth

Amendment challenge. Ewing, 538 U.S. at 21.

8
¶92 The majority’s unwillingness to concede that possession of illegal drugs,

much less possession with intent to sell illegal drugs, necessarily amounts to a

serious crime for purposes of proportionality review demonstrates the extent to

which I believe it fails to appreciate the limited nature of the crimes considered by

the Supreme Court to be other than serious and, correspondingly, the limited

nature of the role of proportionality review in non-capital sentencing. The

Harmelin controlling opinion explains in great detail why the possession, use, and

distribution of illegal drugs represent not only a serious crime but in fact one of

the greatest problems affecting the health and welfare of our population. 501 U.S.

at 1002–03. It not only notes the pernicious effects on the individual who

consumes illegal drugs, but also finds a direct nexus between illegal drugs and

crimes of violence, expressly enumerating at least three ways in which the “use”

of illegal drugs relates to the commission of crime: 1) drug users may commit

crime because of drug-induced changes in physiological functions, cognitive

ability, and mood; 2) drug users may commit crime in order to obtain money to

buy drugs; and 3) a violent crime may occur as part of the drug business or culture.

Id. I view the majority’s demand that the individual circumstances surrounding

the commission of possession or possession with intent to sell illegal drugs be a

necessary consideration in determining whether a particular defendant’s crime of

possession or possession with intent to sell is serious as clear evidence of the extent
9
to which it is willing to second-guess legislative judgments concerning sentences

to terms of years in general, and the merits of incapacitating defendants who

remain undeterred from committing drug felonies in particular.

¶93 Finally, with regard to the effect of subsequent legislative amendments on

the sentencing scheme—the central question on which the defendant’s challenge

rests—I believe the majority has simply lost sight of the object of the inquiry. With

regard to recidivist sentencing in particular, the controlling opinion in Ewing

makes clear that for purposes of proportionality it was enough that the California

legislature had a reasonable basis for believing that the dramatically enhanced

sentences of its three-strikes law advanced the goals of its criminal justice system,

not least among which is the incapacitation of those who have demonstrated that

they are incapable of conforming to the norms of society. 538 U.S. at 28–29. By

expressly making “prospective only” particular ameliorative amendments to a

recidivist sentencing scheme—whether that be by reducing the penalty for some

predicate offenses or by eliminating some crimes from the category of predicate

offenses altogether—the legislature has made clear its judgment that the inability

or unwillingness of those previously convicted to conform their conduct to the

norms of society reflected in the criminal law, as that law existed at the time it was

violated, continues to merit incapacitation by enhanced punishment.

10
¶94 Quite apart from the fact that the legislature has not relegated the drug

crimes at issue in this case to the status of mere regulatory offenses or offenses

more minor even than those for which a lengthy prison term was upheld in

Rummel, and therefore that it would have been inconsequential for proportionality

purposes even if the legislature had made its amendments retroactive, unless it

lacked a rational basis for doing so, it was for the legislature to make the judgment

that the need for incapacitation of the defendant should be based on her failure to

conform to the norms of society as reflected in the criminal law at the time she

violated it. See Ewing, 538 U.S. at 28–29. While courts must of course account for

legislation in effect at the time of sentencing, unless the legislature lacked a rational

basis for not altering its prior judgment about the need for habitual criminal

sentencing by making any subsequent ameliorative legislation retroactive, the

proportionality of such habitual criminal sentences could not be affected in any

way by the new legislation.

¶95 It is well established that legislatures do not lack a rational basis for, and

principles of equal protection are therefore in no way violated by, penalizing

violators of the same criminal proscription differently, as long as such violators

committed their crimes during different time periods. Sperry & Hutchinson Co. v.

Rhodes, 220 U.S. 502, 505 (1911) (“[T]he 14th Amendment does not forbid statutes

and statutory changes to have a beginning, and thus to discriminate between the
11
rights of an earlier and later time.”); Doe v. Mich. Dep’t of State Police, 490 F.3d 491,

505–06 (6th Cir. 2007) (employing rational basis review and finding no equal

protection violation where Michigan prospectively amended its sex offender

registration law, effectively creating pre-amendment and post-amendment

offender classes); Ex parte Zimmerman, 838 So. 2d 408, 412 (Ala. 2002) (upholding

prospective application of ameliorative sentencing legislation, citing state’s

legitimate interests in maintaining the finality of judgments and assuring that

penal laws will maintain their desired deterrent effect by carrying out original

prescribed punishment as written); People v. Floyd, 72 P.3d 820, 827 (Cal. 2003)

(rejecting defendant’s assertion that prospective legislation fails rational basis

review and noting state’s legitimate interests in ensuring “penal laws will

maintain their desired deterrent effect by carrying out the original prescribed

punishment as written”).

¶96 To the extent the majority intends that ameliorative legislation expressly

made prospective only is nevertheless relevant to the question whether a habitual

criminal sentence, based on crimes to which that legislation was expressly made

inapplicable, is constitutionally disproportionate, I therefore strongly disagree.

¶97 I therefore respectfully dissent.

12