People v. Patnode8/11/2005
ommission of the underlying offense, the defendant did not have the opportunity to be put "on notice that future conduct of the same kind [would] result in more severe penalties." People v. Nees, supra, 200 Colo. at 396, 615 P.2d at 693. Thus, the purpose of the habitual criminal statute had been undermined, and the use of the prior convictions was improper.
We do not perceive the same need to "narrowly construe" the definition of felony under the facts presented here. Because defendant was found by the trial court to have committed three other felonies prior to the commission of the charged offenses, the court properly sentenced him under the habitual criminal statute. See § 18-1.3-801(2).
B.
Defendant also argues that the trial court erred when it failed to conduct an extended proportionality review after it held an abbreviated review and found an inference of gross disproportionality in his prescribed sixty-four year sentence. We agree that an extended review is warranted in this instance.
Sentencing is a discretionary decision that should not be overturned absent an abuse of discretion. However, whether a sentence is constitutionally proportionate is a question of law. People v. Cruse, supra. On appeal, proportionality determinations are reviewed de novo. People v. Gaskins, 923 P.2d 292 (Colo. App. 1996).
In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), Justice Scalia, writing for the plurality, concluded that there was no right to a proportionality review except for a death penalty case. Justice Kennedy, concurring in the result, concluded that proportionality review should be extended to other sentences, even a sentence to a term of years as the Court had previously recognized. In summarizing his analysis, Justice Kennedy stated:
All of these principles -- the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors -- inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime. [Solem v. Helm, 463 U.S. 277, 288, 303, 103 S.Ct. 3001, 3008, 3016, 77 L.Ed.2d 637 (1983)]. See also [Weems v. United States, 217 U.S. 349, 371, 30 S.Ct. 544, 550, 54 L.Ed. 793 (1910)](Eighth Amendment prohibits "greatly disproportioned" sentences); [Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977)] (Eighth Amendment prohibits "grossly disproportionate" sentences); [Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980)](same).
Harmelin v. Michigan, supra, 501 U.S. at 1001, 111 S.Ct. at 2705 (Kennedy, J., concurring).
In Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), Justice O'Connor, writing for a plurality of the Court, used the Kennedy formulation to affirm a life sentence imposed on a recidivist defendant pursuant to the "three strikes you are out" law against an Eighth Amendment challenge. See also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)(same).
Justice Kennedy's formulation is widely recognized as the controlling opinion in Harmelin, and it is the formulation used in Colorado . See Close v. People, 48 P.3d 528 (Colo. 2002)(crime of violence sentence to a term of years is not disproportionate).
When conducting an abbreviated proportionality review, a court must scrutinize all the offenses in question to determine whether in combination they are so lacking in gravity or seriousness as to
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