v. People, 2019 CO 89

In October 2009 deputies arrested Johnny Melton and found small amounts of multiple controlled substances on his person and in a jacket pocket.
In 2010 a jury convicted Melton of three counts of possession (≤1 gram) of Schedule I/II drugs; prior possession elevated each from class 6 to class 4 felonies.
At a bench hearing the court adjudicated Melton a habitual criminal based on prior felonies (including prior possession, theft, and second-degree assault) and imposed mandatory 24-year terms on each triggering offense (statutorily required enhancement).
Melton challenged the sentences as grossly disproportionate; the trial court performed an abbreviated proportionality review and upheld the sentences.
A split Court of Appeals affirmed; a partial dissent questioned treating drug possession and theft as per se grave/serious and urged reconsideration in light of legislative changes.
The Colorado Supreme Court reversed, holding (1) possession of Schedule I/II drugs is not per se grave/serious, (2) courts may consider post-offense legislative amendments in an abbreviated proportionality review, and (3) theft is not per se grave/serious; the case was remanded for a new proportionality review and factual findings.

Issue	Melton's Argument	People’s Argument	Held
Whether possession of Schedule I/II controlled substances is per se grave or serious	Not per se grave/serious	Historically narcotics possession is grave/serious	Not per se grave/serious; must be evaluated rather than automatically treated so
Whether courts may consider legislative amendments enacted after the offense dates during an abbreviated proportionality review	Courts should consider such amendments	Amendments that are not retroactive should not be considered	Courts should consider relevant post‑offense legislative amendments even if not retroactive
Whether theft is a per se grave or serious offense	Theft is not per se grave/serious; context matters	Theft can be treated as serious in habitual contexts	Theft is not per se grave/serious; gravity depends on facts, harm, and culpability
Whether Melton’s mandatory 24‑year sentences are grossly disproportionate	Sentences are cruel and unusual	Sentences are constitutional under habitual statute	Court did not directly reduce sentences; remanded for new abbreviated proportionality review and factual findings, and extended review if an inference of gross disproportionality arises

People v. Mershon, 874 P.2d 1025 (Colo. 1994) (explains Colorado proportionality review framework)
People v. Gaskins, 825 P.2d 30 (Colo. 1992) (trial court best suited to make factual findings in proportionality review)
Solem v. Helm, 463 U.S. 277 (1983) (factors for assessing crime gravity and proportionality)
Close v. People, 48 P.3d 528 (Colo. 2002) (discusses consequences of labeling crimes per se grave/serious)
Alvarez v. People, 797 P.2d 37 (Colo. 1990) (treats certain property crimes as serious in context)
Rutter v. People, 363 P.3d 183 (Colo. 2015) (proportionality review is a question of law reviewed de novo)
Graham v. Florida, 560 U.S. 48 (2010) (Eighth Amendment evolving standards; legislative enactments as evidence)
Atkins v. Virginia, 536 U.S. 304 (2002) (legislation reflects evolving standards of decency)
Penry v. Lynaugh, 492 U.S. 302 (1989) (legislative enactments as objective indicia)
Stanford v. Kentucky, 492 U.S. 361 (1989) (statutes as primary objective indicia of public attitude)
McCleskey v. Kemp, 481 U.S. 279 (1987) (legislative evidence of public views relevant to Eighth Amendment analysis)
People v. McNally, 143 P.3d 1062 (Colo. App. 2005) (describes theft as a nonserious property crime in some contexts)