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People v. Patnode8/11/2005
authority in this state rejects similar proportionality challenges to habitual criminal sentences. However, we also note that in those cases, the courts determined that most, if not all, of the defendant's triggering and prior felony convictions were for grave and serious crimes. See People v. Mershon, 874 P.2d 1025 (Colo. 1994)(upholding life sentence on basis that all of defendant's triggering and prior crimes were serious); People v. Allen, 111 P.3d 518 (Colo. App. 2004)(finding no inference of disproportionality in twenty-four year sentence because both of defendant's triggering offenses and all four of his prior felonies were serious); People v. Martinez, supra (forty-eight year sentence affirmed; only one of defendant's five convictions considered not serious); People v. Strean, 74 P.3d 387 (Colo. App. 2002)(sentence of forty-eight years to life under habitual sex offender statute upheld as court found defendant's offenses as sexual offender were grave and serious); People v. McNeely, supra (affirming forty-eight year sentence because defendant's triggering offense and three of his four prior offenses were considered serious); see also Lockyer v. Andrade, supra (California Court of Appeals decision upholding defendant's two consecutive twenty-five years to life sentences under state's three strikes law proper application of federal law where at least two of defendant's three felonies deemed serious or violent); Ewing v. California, supra (defendant's sentence of twenty-five years to life under three strikes law not constitutionally disproportionate where all four of his prior strikes were serious felonies).
Given that our state's jurisprudence requires that we assess all of a defendant's offenses together in determining the proportionality of a sentence, see People v. Deroulet, supra, and recognizing that two, and arguably all three, of defendant's prior felony convictions did not involve grave and serious crimes, we conclude that the sentence mandated by the habitual criminal statute in this instance, sixty-four years, gives rise to an inference of gross disproportionality when compared to the predicate offense and the prior convictions. Therefore, an extended review of the sentence is necessary, and, if the sentence is considered disproportionate after that review, resentencing will be necessary as well. See People v. Valdez, 56 P.3d 1148 (Colo. App. 2002).
Finally, both parties agree that the mittimus should be amended to reflect that defendant was convicted of the triggering offense by a jury and not by the court.
The judgment of conviction is affirmed, the sentence is vacated, and the case is remanded to the trial court for correction of the mittimus, an extended proportionality review, and, if necessary, resentencing.
JUDGE WEBB and JUDGE GRAHAM concur.
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