July 20, 2019

Colorado Court of Appeals: Extended Proportionality Review Needed to Determine Whether Defendant’s Sentence Appropriate

The Colorado Court of Appeals issued its opinion in People v. McRae on Thursday, August 11, 2016.

Clifton McRae was convicted of distribution of methamphetamine. Due to his habitual offender status, his sentence was calculated at 64 years. He requested a proportionality review. After conducting an abbreviated proportionality review, the trial court determined that the sentence was grossly disproportionate to the crime and reduced it to 16 years. The People appealed.

The Colorado Court of Appeals noted first that if an abbreviated proportionality review gives rise to an inference of gross disproportionality, the court should engage in an extended proportionality review, comparing the sentence to that of similarly situated defendants.

Prior to the commission of McRae’s offenses, the Colorado General Assembly passed SB 13-250, which drastically decreased the sentences for certain crimes, including McRae’s, but the effective date was after the date from which his convictions arose. The People argued that the trial court entered an illegal sentence by retroactively applying SB 13-250. The trial court had noted that a defendant who committed the same crime a few months after McRae would be subject to only a 16 year sentence, although it did not rely on the not yet effective legislation in its determination of disproportionality. The Colorado Court of Appeals found no error.

The People also argued that because McRae’s triggering offenses and five of his prior convictions are per se grave or serious, the 64-year sentence failed to raise an inference of disproportionality. The court of appeals disagreed but remanded for an extended proportionality review. Although the court had made findings about the serious nature of the offenses, the court also noted that they were for personal consumption and not for substantial monetary gain. The court of appeals found the trial court did not err in considering these factors. The court noted that although it was tempted to approve of the trial court’s sentence, it should have conducted the further extended review to justify its sentence.

The court of appeals remanded for further proceedings.

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