The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 16, 2019
2019COA73
No. 16CA0858, People v. Porter — Criminal Law — Sentencing
— Juveniles — Punishment for Habitual Criminals;
Constitutional Law — Eighth Amendment — Cruel and Unusual
Punishments
A division of the court of appeals holds that a defendant is not
entitled to an extended proportionality review of his sentence as a
habitual criminal merely because some of his prior felony
convictions occurred when he was a juvenile. In so holding, the
division concludes that the Supreme Court’s decisions in Miller v.
Alabama, 567 U.S. 460 (2012); Graham v. Florida,
560 U.S. 48
(2010); and Roper v. Simmons,
543 U.S. 551 (2005), which concern
sentencing of juveniles, do not have any application in the context
of adult sentencing.
COLORADO COURT OF APPEALS
2019COA73
Court of Appeals No. 16CA0858
Gilpin County District Court No. 02CR42
Honorable Dennis Hall, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Reginald Marcus Porter,
Defendant-Appellant.
SENTENCE AFFIRMED
Division V
Opinion by JUDGE J. JONES
Terry and Grove, JJ., concur
Announced May 16, 2019
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Reginald Marcus Porter, appeals both his
adjudication as a habitual offender and the district court’s denial of
his request for an extended proportionality review of his sentence.
(The court instead conducted an abbreviated review and concluded
that the sentence doesn’t violate the Eighth Amendment’s
prohibition against cruel and unusual punishment.) Specifically,
he contends that (1) because the prosecution failed to prove that his
prior felony convictions didn’t arise from the same criminal episode,
the district court erred by adjudicating him a habitual offender; and
(2) because his prior convictions occurred when he was a juvenile,
the court should have conducted an extended proportionality
review. We reject both contentions and affirm the sentence.
I. Background
¶2 Defendant has been incarcerated for most of his life. While he
was still a juvenile, the People charged him in three Denver cases
for two armed robberies (one with a knife and one with a lug
wrench) and a sexual assault he committed in August 1988. He
agreed to have the cases transferred from juvenile court to Denver
District Court, after which he took a global plea deal in which he
pleaded guilty to one charge in each case and received concurrent
1
sentences (the longest being sixteen years) to Department of
Corrections (DOC) custody. 1
¶3 In 2002, just months after being released from DOC custody,
defendant robbed and attempted to sexually assault a casino
worker. He then fled from the police. A jury found him guilty of
first degree burglary, aggravated robbery, attempted sexual assault,
theft, and vehicular eluding. The district court adjudicated him a
habitual offender.
¶4 Years later, after a couple of appeals, a new trial, convictions
on the same charges as before, and dismissal of the habitual
counts, the Colorado Supreme Court remanded this case to the
district court for reinstatement of defendant’s habitual counts. 2
1 Because the cases were transferred to district court, defendant
was sentenced as an adult and would have been tried as an adult
had the cases not been resolved through a plea deal.
2 First, a division of the court of appeals reversed defendant’s
convictions. After a second trial, this time to the bench, the court
found him guilty on the same charges as before. Defendant moved
to dismiss the habitual counts on double jeopardy grounds. The
district court granted his motion, and a division of the court of
appeals reluctantly affirmed. People v. Porter, 2013 COA 130,
¶¶ 29, 43. But the supreme court reversed the division’s decision
and remanded the case for reinstatement of the habitual counts.
See People v. Porter,
2015 CO 34, ¶ 30.
2
The district court held a habitual offender hearing at which the
prosecution presented evidence that defendant had three prior
felony convictions — the three charges he had pleaded guilty to as a
juvenile — and argued that the convictions were based on separate,
unconnected conduct that occurred on different days. The court
agreed with the prosecution that defendant’s three prior felony
convictions weren’t part of the same criminal episode, adjudicated
defendant a habitual offender, and sentenced him to a total of 112
years to life.3
¶5 Noting the length of his sentence and the fact that his prior
felony convictions were from when he was a juvenile, defendant
asked for an extended proportionality review. The court conducted
an abbreviated review, ruled that an extended review wasn’t
necessary, and determined that defendant’s sentences are
constitutional under the Eighth Amendment.
3 The court sentenced defendant to forty-eight years on count 2
(burglary), sixty-four years on count 3 (aggravated robbery), forty-eight years to life on count 4 (attempted sexual assault), twentyfour years on count 8 (theft), and twelve years on count 9 (vehicular
eluding). The sentences run concurrently except for the forty-eight
years to life on count 4.
3
II. Discussion
A. Habitual Criminal Status
¶6 First, defendant contends that the district court erred by
adjudicating him a habitual offender because the prosecution didn’t
prove beyond a reasonable doubt that his three juvenile felony
convictions arose out of separate and distinct criminal episodes.
We aren’t persuaded.
¶7 Because defendant challenges the sufficiency of the evidence,
we review the record to determine “whether the evidence, viewed as
a whole, and in the light most favorable to the prosecution, is
sufficient to support a conclusion by a reasonable person that the
defendant is guilty of the crimes charged beyond a reasonable
doubt.” People v. Copeland, 976 P.2d 334, 341 (Colo. App. 1998),
aff’d,
2 P.3d 1283 (Colo. 2000).
¶8 A court shall adjudicate a defendant a habitual offender if the
defendant is convicted of a felony and has “been three times
previously convicted, upon charges separately brought and tried,
and arising out of separate and distinct criminal episodes, either in
this state or elsewhere, of a felony [or a crime which, if committed
in Colorado, would be a felony].” § 18-1.3-801(2)(a)(I), C.R.S. 2018.
4
The prosecution must prove the defendant’s prior convictions
beyond a reasonable doubt. People v. Nunn, 148 P.3d 222, 225
(Colo. App. 2006).
¶9 The term “criminal episode” has the same meaning for
habitual offender laws as it does under the compulsory joinder
statute. People v. Jones,
967 P.2d 166, 169 (Colo. App. 1997).
Crimes that stem from the same criminal episode include “physical
acts that are committed simultaneously or in close sequence, that
occur in the same place or closely related places, and that form part
of a schematic whole.”
Id. (quoting Jeffrey v. Dist. Court,
626 P.2d
631, 639 (Colo. 1981)). Charges that must be prosecuted in a
single case under the compulsory joinder statute, section
18-1-408(2), C.R.S. 2018, can’t qualify as separate convictions for
habitual offender purposes. See Jones,
967 P.2d at 169 (allowing a
defendant to be prosecuted as a habitual offender for offenses that
were subject to mandatory joinder would be “inconsistent with the
General Assembly’s intent to reserve habitual criminal sentencing
for serious recidivists”).
¶ 10 The district court adjudicated defendant a habitual offender
because of his three juvenile felony convictions, finding that they
5
didn’t arise from the same criminal episode. The evidence supports
this finding. Each conviction stemmed from a crime defendant
committed in a different location, with a different victim, and at
least six days apart from the other crimes (August 5, August 20,
and August 26, 1988). The first conviction was for sexual assault;
the second two were for armed robberies. Aside from their violent
nature, nothing connected the offenses or suggested that they were
part of the same schematic whole.
¶ 11 Defendant points us to several cases in which the criminal
charges were consolidated in the same criminal case even though
the conduct that led to each was separated by time, physical
distance, or type of crime. See, e.g., Brown v. Dist. Court, 197 Colo.
219, 222,
591 P.2d 99, 101 (1979); People v. Trujillo,
860 P.2d 542,
544 (Colo. App. 1992); People v. Rice,
40 Colo. App. 357,
579 P.2d
647 (1978). But some (perhaps all) of those cases involved
permissive joinder under Crim. P. 8(a) or discretionary
consolidation under Crim. P. 13. And, of course, each case turned
on its facts. None is so clearly analogous to this case as to
undermine the district court’s conclusion that defendant’s crimes
weren’t part of the same criminal episode. Cf. Marquez v. People,
6
2013 CO 58, ¶ 20 (record didn’t support a conclusion that two
crimes arose from the same criminal episode where they occurred
twelve hours apart, the defendant used different weapons, there
were two different victims, and they occurred at different locations).
B. Extended Proportionality Review
¶ 12 Next, defendant contends that because he was a juvenile at
the time of his prior convictions, and because juveniles are treated
differently for sentencing purposes in certain respects, he was
entitled to an extended proportionality review of his sentence.
Again, we aren’t persuaded.
¶ 13 We review a district court’s decision not to conduct an
extended proportionality review de novo. See People v. McNally, 143
P.3d 1062, 1064 (Colo. App. 2005).
¶ 14 The Eighth Amendment’s prohibition against cruel and
unusual punishment requires that sentences not be “grossly
disproportionate” to their underlying crimes. Ewing v. California,
538 U.S. 11, 23-24 (2003); People v. Deroulet,
48 P.3d 520, 524
(Colo. 2002). The Colorado Supreme Court has held that, to ensure
that there isn’t a gross disproportionality, a defendant is entitled to
an abbreviated proportionality review of his habitual offender
7
sentence if he so requests. See Deroulet, 48 P.3d at 522. If, and
only if, that review “gives rise to an inference of gross
disproportionality does a reviewing court need to engage in an
extended proportionality review.” Close v. People,
48 P.3d 528, 536
(Colo. 2002). 4 And an extended review is almost never required
when the underlying crimes supporting a habitual offender
sentence include “grave or serious” offenses.
Id. at 537; People v.
Gaskins,
825 P.2d 30, 36 (Colo. 1992).5
¶ 15 Defendant concedes that, because his underlying offenses
were per se grave or serious, a person sentenced for such offenses
wouldn’t ordinarily be entitled to an extended proportionality
review. But he argues that he is entitled to one because he was a
juvenile at the time of his prior convictions. To support this
argument, he cites Supreme Court decisions holding that juveniles
are different from adults and, in certain contexts, must be treated
4 This procedure closely follows Supreme Court precedent on the
same issue. People v. Deroulet,
48 P.3d 520, 524 (Colo. 2002); see,
e.g., Harmelin v. Michigan,
501 U.S. 957 (1991).
5 The Colorado Supreme Court has held that certain crimes are “per
se” grave or serious. These include aggravated robbery, robbery,
and burglary. See People v. Gaskins,
825 P.2d 30, 37 (Colo. 1992).
8
differently for sentencing purposes. See, e.g., Graham v. Florida,
560 U.S. 48 (2010) (sentencing any juvenile who hasn’t committed
homicide to life without parole violates the Eighth Amendment);
Roper v. Simmons,
543 U.S. 551, 578 (2005) (execution of a criminal
defendant who was under eighteen when he committed a capital
crime is prohibited by the Eighth and Fourteenth Amendments); see
also Miller v. Alabama,
567 U.S. 460, 479 (2010) (the Eighth
Amendment forbids sentencing schemes that mandate life in prison
without parole for juvenile offenders).
¶ 16 Though Colorado appellate courts haven’t yet addressed this
argument, federal circuit courts and several other state courts have.
The Eleventh Circuit, for example, rejected a very similar challenge.
After a jury found a defendant guilty of several drug-related
felonies, the district court imposed a mandatory life sentence
because of the defendant’s two prior juvenile felony drug
convictions. United States v. Hoffman,
710 F.3d 1228, 1230-31
(11th Cir. 2013); see
21 U.S.C. § 841(b)(1)(A) (2010) (requiring
defendants convicted of certain drug crimes to be sentenced to life
without parole if they have previously been convicted of two felony
drug offenses). The defendant argued that because his prior
9
convictions occurred when he was a juvenile, his life sentence
violated the Eighth Amendment; he cited Roper in support.
Hoffman, 710 F.3d at 1232. Affirming the sentence, the Eleventh
Circuit held that Roper is inapplicable in this context, as it
concerned sentencing for juvenile crimes rather than “sentence
enhancement for an adult offender.”
Id. Since the defendant was
facing punishment for crimes he committed as an adult, nothing
prevented the court from following the sentencing statute and
imposing a mandatory life sentence based on his prior juvenile
convictions.
Id. at 1233 (“Nothing . . . suggests that an adult
offender who has committed prior crimes as a juvenile should not
receive a mandatory life sentence as an adult, after committing a
further crime as an adult.”).
¶ 17 Numerous other courts post-Graham v. Florida have employed
similar reasoning to reject challenges to sentences that were
enhanced because of prior juvenile convictions. See, e.g., United
States v. Orona,
724 F.3d 1297, 1306 (10th Cir. 2013) (use of a
juvenile adjudication as a predicate offense to increase the
defendant’s sentence didn’t violate the Eighth Amendment); United
States v. Graham,
622 F.3d 445, 462 (6th Cir. 2010) (the defendant
10
wasn’t “a ‘juvenile offender’ for purposes of the punishment he
received” for his latest conviction, so Graham v. Florida didn’t
apply); United States v. Scott, 610 F.3d 1009, 1017 (8th Cir. 2010)
(rejecting a defendant’s argument that the court should extend
Graham v. Florida and Roper to bar consideration of prior
convictions that were based on juvenile conduct); Wilson v. State,
521 S.W.3d 123, 127-28 (Ark. 2017) (the defendant was “being
punished with an enhanced sentence for his conduct as an adult,”
and “a conviction imposed on a juvenile sentenced as an adult may
be used as the basis for an increased penalty imposed under the
habitual-offender statute”); Commonwealth v. Lawson,
90 A.3d 1, 6-
7 (Pa. Super. Ct. 2014); Counts v. State,
338 P.3d 902, 906-07
(Wyo. 2014).
¶ 18 We aren’t convinced by defendant’s attempts to distinguish
these cases. Each is remarkably similar to this case. Apart from
asserting that Graham v. Florida and Roper call these decisions into
question, defendant relies only on the faulty premise that his
current sentence punishes him for his juvenile crimes. But the
Supreme Court has firmly established that enhanced sentences
pursuant to recidivist sentencing statutes only punish a defendant
11
for the offense of conviction — not for the underlying prior offenses.
See United States v. Rodriquez, 553 U.S. 377, 385 (2008).
¶ 19 In sum, these similar cases show that when an adult
defendant receives an enhanced sentence because of prior felonies
he committed, his age at the time of the prior felonies doesn’t
impact the validity of the adult sentence under the Eighth
Amendment. Graham v. Florida, Roper, and similar cases
addressing the constitutionality of juvenile sentencing simply don’t
apply when the defendant is being sentenced for crimes he
committed as an adult.
¶ 20 It follows that a defendant’s age at the time of his prior
convictions doesn’t impact whether he’s entitled to an extended
proportionality review under the Eighth Amendment and Colorado
law. Regardless of whether a defendant was a juvenile at the time
of his prior convictions, the reviewing court must follow the
procedure outlined by the Colorado Supreme Court in Deroulet and
Close.
¶ 21 Because defendant concedes that he isn’t entitled to an
extended proportionality review under Deroulet and Close, and since
his juvenile status at the time of his prior convictions doesn’t
12
impact his rights under the Eighth Amendment’s prohibition
against cruel and unusual punishment, we conclude that the
district court didn’t err by conducting only an abbreviated review.
III. Conclusion
¶ 22 The sentence is affirmed.
JUDGE TERRY and JUDGE GROVE concur.
13
