dlssentlng
127 We granted certiorari to decuie whether a court, when conducting an abbreviated proportionality review of a habitual sentence, can consider the General Assembly's subsequent reclassification of a erime or amendment of the habitual criminal statute that made an underlying crime inapplicable for purposes of a habitual eriminal adjudication. The majority, however, chooses not to reach that question, conducts its own proportionality review, and concludes that the habitual eriminal sentence in this case does not give rise to an inference of gross dispropor-tionality because Rutter's triggering offense was grave or serious.
€{28 Because the division of the court of appeals relied on the subsequently reclassified crimes in concluding that the sentence at issue did not raise an inference of gross disproportionality, and because no party has argued that Rutter's triggering offense alone supports a finding of constitutional proportionality, I do not believe that we can appropriately avoid answering the question on which we granted certiorari. I would thus address that issue, and I would conclude that the legislature's reclassification of two of Rutter's predicate convictions and its amendment of the habitual offender statute under which he was sentenced are relevant considerations in a court's abbreviated proportion ality | 'review. "Accordingly, I would reverse the division's decision and remand this case for further proceedings. I therefore respectfully dissent.
I. +~Procedural Issues
T 29 In performing an abbreviated proportionality review and affirming Rutter's sentence, the court of appeals division concluded that all of Rutter's predicate and triggering offenses were per se grave and serious. The division's approach was consistent with our oft-repeated view that "[wlhen conducting an abbreviated proportionality review under the habitual criminal statute, a reviewing court must serutinize the offenses in question to determine 'whether in combination they are so lacking in gravity or seriousness' so as to suggest that the sentence is grossly disproportionate." People v. Deroulet, 48 P.3d 520, 524-25 (Colo.2002) (quoting People v. Gaskins, 825 P.2d 30, 36 (Colo.1992)). In reaching its conclusion, however, the division rejected Rutter's contention that by subsequently reclassifying his predicate offenses of use and simple possession of a controlled substance, the General Assembly expressed its judgment that those crimes are not grave and serious.
"130 In these cireumstances, I do not believe that it is appropriate to decide this case without addressing the issue on which we granted certiorari, I reach this conclusion for three reasons.
1181 First, Rutter properly raised the issue in the court of appeals and the division ex*191pressly rejected it in reaching its' decision, Thus, certiorari was providently granted, and the issue is squarely presented here.
82 Second, as noted above, our case law has consistently directed courts performing proportionality reviews to serutinize all of the offenses in question to determine whether in combination they are so lacking in gravity or seriousness as to suggest that the sentence is grossly disproportionate. Id. The court of appeals division did that, and in reviewing the division's decision, I believe. that we should do so as well..
138 Third, because no party has argued that Rutter's triggering offense alone supports a finding of constitutional proportionality, I do not believe that Rutter has been given a full and fair opportunity to address that issue. Thus, I- respectfully disagree with the majority's decision to rule on that alternative basis. - .
II,. Consideration of Legislative Changes
134 Turning, then, to the merits of the issue presented on certiorari, I agree with Judge Graham's dissenting opinion below that a court may properly consider subsequent legislative changes in its abbreviated proportionality review, notwithstanding the fact, relied on by the division majority, that the legislature had provided .that those changes are to operate prospectively. I reach this conclusion for three reasons.
11 35 First, I perceive no basis for limiting a court's - constitutional analysis based solely on the legislature's decision to apply statutory changes prospectively. In my view, whether a statute applies retroactively is a separate and distinct question from whether a defendant's sentence is constitutionally proportion-e. As pertinent here, the retroactive or prospective application of the statutory changes at issue relates to the court's determination of Rutter's sentence, not to its con: stitutional proportionality, and Rutter does not challenge the determination of his sentence (i.e., he is not contending that the 2011 amendment to the habitual criminal statute applies in this case). In contrast, the proportionality principle included in the Eighth Amendment . requires a court to determine whether a defendant's sentence was "grossly disproportionate." Deroulet, 48 P.3d at 524. This requires, at a minimum, an abbreviated proportionality review, in which the court compares the gravity of the offense and the harshness of the penalty to discern whether an inference of gross disproportionality is raised. Id. at 527.
(86 Second, when a defendant raises an Eighth Amendment challenge on appeal, the reviewing court must perform its own abbreviated proportionality review. See Deroulet, 48 P.3d at 524; see also Gaskins, 825 P.2d at 37-88 (Colo.1992) ("In the absence of a need for a refined analysis inquiring into the 'details of the specific offenses or a detailed comparison of sentences imposed for other crimes in this or other jurisdictions, an appellate court is as well positioned as a trial court to conduct a proportionality review. In such cireumstances, there is no need or justification for remand."). Accordingly, I agree with the divisions of the court of appeals that have consistently concluded that a court should be able to assess the sentence's proportionality as of the time of the court's review, taking into account all of the pertinent facts and cireumstances then existing, including any legislative changes. Seq, eg., People v. Patnode, 126 P.3d 249, 261 (Colo.App.2005) (noting that the. General Assem-biy's current evaluation of the seriousness of the offense at issue is a factor that a court can consider in determining whether a defendant's sentence was grossly disproportionate); People v. Anaya, 894 P.2d 28, 32 (Colo.App.1994) ("[Wlhen the General Assembly subsequently amends a criminal sentencing statute, even though the statute is to be applied prospectively, the trial court may properly consider it when determining whether a defendant's sentence was grossly dlsproportlonate "),
137 Third, in my v1eW, the legislature's reclassifications of use and simple possession of a schedule II controlled substance and its 2011 amendment to the habitual eriminal statute, which established that those offenses could not serve as habitual offender predicates, indicate the legislature's determination that use and simple possession are not per se grave or serious, contrary to our precedent. See. Deroulet, 48 P.3d at 524 (noting that *192narcotics-related crimes are per se grave or serious for purposes of proportionality review); see also People v. Hargrove, 2013 COA 165, ¶ 28, 338 P.3d 413, 419 (noting that the 2011 amendment to the habitual criminal statute, which provided that the pertinent habitual sentencing provision would no longer apply to a class 6 felony for possession of a schedule I or II controlled substance, called into question the applicability to class six felony possession convictions of case law finding narcotics-related crimes to be per se grave or serious); Patnode, 126 P.3d at 261 (noting that the. General Assembly's reduction of an offense from a felony to a misdemeanor indicated its conclusion that the offense was not grave and serious).
€388 Fo¶r these reasons, I would conclude that a court, when conducting an abbreviated proportionality review of a habitual sentence, cam consider the General Assembly's subsequent reclassification of a crime or amendment of the habitual eriminal statute that made an underlying crime inapplicable for purposes of a habitual criminal adjudication. Indeed, such consideration seems especially appropriate when, as here, the legislative changes would dramatically alter a defendant's sentence.' (A person convicted today of the same crimes as Rutter would not be subject to habitual sentencing under section 18-1.3-801(2)(a)(D(A), CRS. (2015), and would face a maximum sentence of twenty-four years, in contrast to the ninety-six-year sentence that Rutter received.)
IH. Application
€39 We have observed that in almost every case, an abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate. Seq, eg., Deroulet, 48 P.3d at 526. This is particularly true when a defendant's underlying crimes were grave or serious. See Close v. People, 48 P.3d 528, 536 (Colo.2002) ("Defining certain crimes as grave or serious results in a very high likelihood that a sentence will be upheld as constitutionally proportionate, thereby usually eliminating the need for an extended proportionality review in cireum-stances involving grave or serious crimes as carved out and defined in our precedent.").
4 40 In contrast, we have said that when a defendant's crimes are not inherently or per se grave or serious, then a court must conduct "a more extensive review in which it considers additional evidence relevant to constitutional proportionality, such as the facts underlying the defendant's offenses or explicit intra- and inter-jurisdictional comparisons." - People v. Mershon, 874 P.2d 1025, 1031 (Colo.1994).
{41 And as noted above, we have stated that when conducting an abbreviated proportionality review under the habitual eriminal statute, a reviewing court must serutinize the offenses in question to determine whether, in combination, they are so lacking in gravity or seriousness as to suggest that the sentence is grossly disproportionate. Deroulet, 48 P.3d at 524-25; see also Hargrove, ¶ 28, 338 P.3d at 419-20 (noting that a court could factor in the amount of narcotics involved in a simple possession conviction in evaluating whether a defendant's triggering and predicate convie-tions, in combination, were so lacking in gravity or seriousness as to suggest that the sentence was grossly disproportionate).
{42 Here, it is undisputed that Rutter's triggering offense and his prior conviction for possession with intent to distribute a controlled substance are per se grave or serious offenses. See Deroulet, 48 P.3d at 524 (noting that certain crimes are per se grave or serious for purposes of proportionality review). Based on the General Assembly's subsequent actions, however, I would conclude that Rutter's prior convictions for use and simple possession of a controlled substance were not per se grave or serious. See Hargrove, ¶ 28, 338 P.3d at 419; Patnode, 126 P.3d at 261. In addition, I would conclude that the record is not sufficiently developed to allow us to determine whether the facts underlying those convictions rendered those erimes grave or serious.
T 43 In these cireumstances, and because a court conducting an abbreviated proportionality review under the habitual criminal statute must serutinize all of a defendant's offenses "in combination," see Deroulet, 48 P.3d at 524-25, I would remand this case to the court of appeals with instructions to remand the case to the trial court for a new *193abbreviated proportionality review. © This would allow the trial court to consider both the legislative changes at issue and the facts underlying those offenses that were not per se grave or serious, so that the court could conduct the inquiry mandated by Deroulet, 48 P.3d at 524-25. See Mershon, 874 P.2d at 1031; see also Gaskins, 825 P.2d at 38 n. 18 ("The trial court is in the best position to evaluate ... the extensiveness of the factual inquiries necessary to make a fully informed and legally sound proportionality determination."); Hargrove, ¶¶ 15-33, 338 P.3d at 417-21 (reversing and remanding a defendant's sentence to the trial court to engage in further factual development and to conduct a new abbreviated proportionality review).
IV. Conclusion
44 For these reasons, I respectfully dissent.
I am authorized to state that JUSTICE MARQUEZ and JUSTICE HOOD join in this dissent.