COLORADO COURT OF APPEALS 2017COA91 

Court of Appeals No. 16CA0481 

El Paso County District Court No. 15CR1403 

Honorable Lin Billings Vela, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Scott Alan Oldright, 

Defendant-Appellant. 

SENTENCE VACATED AND CASE 

REMANDED WITH DIRECTIONS 

Division IV 

Opinion by JUDGE FREYRE 

Ashby, J., concurs 

Hawthorne, J., concurs in part and dissents in part 

Announced June 29, 2017 

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for DefendantAppellant
1 

¶ 1 Defendant, Scott Alan Oldright, appeals the trial court’s order 

denying his request for an extended proportionality review. We 

vacate the sentence and remand for resentencing and an extended 

proportionality review. 

I. Background 

¶ 2 A jury convicted Oldright of first degree assault. According to 

the prosecution’s evidence, Oldright hit the victim in the head with 

a metal rod. The victim lost consciousness. When the victim 

regained consciousness, he wandered outside, still bleeding, and 

asked a stranger for help before he lost consciousness again. He 

suffered a fractured skull, a concussion, and two deep lacerations. 

¶ 3 Oldright’s theory at trial was that he did not intend to hurt the 

victim. Rather, he struck the victim to prevent property damage 

that could otherwise have occurred because the victim was fighting 

with two other men. 

¶ 4 Following trial, the court adjudicated Oldright a habitual 

criminal, and sentenced him to sixty-four years in prison. 

Oldright’s prior offenses included aggravated driving after 

revocation prohibited, forgery, fraud by check, theft by receiving, 

and theft. 
2 

¶ 5 The trial court conducted an abbreviated proportionality 

review. It concluded that Oldright’s triggering offense — first degree 

assault — was per se grave and serious. It then acknowledged that 

although Oldright’s prior convictions “arguably [did] not rise to the 

level of grave and serious,” the triggering offense was so serious that 

no inference of disproportionality existed. In the alternative, the 

court concluded that each of the prior convictions was “serious” 

because each had been classified as a felony by the General 

Assembly. The court reasoned that the existence of five prior 

felonies, combined with a grave and serious triggering offense, 

obviated the need for a “more thorough or in-depth proportionality 

review.” 

¶ 6 We agree with the trial court that first degree assault is a grave 

and serious offense. However, because the court did not consider 

the fact that the General Assembly has reclassified three of 

Oldright’s prior convictions to misdemeanors (making them an 

ineligible basis for habitual sentencing) and one of the prior felonies 

from a class 4 felony to a class 5 felony, we disagree that each of 

Oldright’s prior offenses is serious. Therefore, we vacate the 
3 

sentence and remand for an extended proportionality review of 

Oldright’s habitual criminal sentence. 

II. Proportionality Review 

¶ 7 Oldright contends that the court erred in two ways. First, he 

argues that the court failed to consider his version of circumstances 

for the triggering offense that showed the crime was not grave or 

serious. Second, he asserts that the court erred in concluding that 

all of his prior convictions were “serious” by virtue of them being 

felonies. He argues that, as part of the abbreviated proportionality 

review, the court should have considered the General Assembly’s 

reclassification of the prior offenses. We reject his first argument 

and agree with the court that first degree assault is a grave and 

serious offense. We agree with his second argument and conclude 

that an extended proportionality review is warranted under the 

circumstances of this case. 

A. Legal Principles 

¶ 8 Whether a sentence is constitutionally disproportionate is a 

question of law that we review de novo. Rutter v. People, 2015 CO 

71, ¶ 12. Both the United States and Colorado Constitutions 

prohibit cruel and unusual punishment, including grossly 
4 

disproportionate prison sentences. See Ewing v. California, 538 

U.S. 11, 20 (2003); Close v. People, 48 P.3d 528, 539 (Colo. 2002). 

To ensure sentences are not disproportionate, “a criminal defendant 

is entitled, upon request, to a proportionality review of his sentence 

under Colorado’s habitual criminal statute.” People v. Deroulet, 48 

P.3d 520, 522 (Colo. 2002); People v. Anaya, 894 P.2d 28, 32 (Colo. 

App. 1994) (“A defendant is always entitled to a proportionality 

review when sentenced under the habitual criminal statute.”).1 

¶ 9 When a defendant challenges a sentence on proportionality 

grounds, the reviewing court must initially complete an abbreviated 

proportionality review. Deroulet, 48 P.3d at 524. This review 

“weighs the gravity and seriousness of a defendant’s triggering and 

underlying felonies together against the ‘harshness of the penalty.’” 

People v. Foster, 2013 COA 85, ¶ 56 (quoting Deroulet, 48 P.3d at 

527); see also People v. McRae, 2016 COA 117, ¶ 22. 

¶ 10 Our supreme court has designated certain crimes as per se 

grave and serious for proportionality purposes. Deroulet, 48 P.3d at 

 

1 Under the habitual criminal statute, a convicted felon who has 

been previously convicted of three felonies shall be adjudicated a 

habitual criminal and must be sentenced to four times the 

maximum of the presumptive range for the class of the triggering 

felony conviction. See § 18-1.3-801(2)(a), C.R.S. 2016. 
5 

524 (identifying aggravated robbery, robbery, burglary, accessory to 

first degree murder, and narcotics-related offenses as per se grave 

and serious). Such crimes are grave or serious “by their very 

nature.” People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). One 

division of this court has concluded that first degree assault is per 

se grave or serious, People v. Gee, 2015 COA 151, ¶ 60, and the 

supreme court and several other divisions of this court have 

concluded or implied that first degree assault is a serious offense, 

see People v. Mershon, 874 P.2d 1025, 1033-34 (Colo. 1994); People 

v. Hayes, 923 P.2d 221, 230 (Colo. App. 1995); People v. Penrod,

892 P.2d 383, 387 (Colo. App. 1994). 

¶ 11 For other offenses, a court determines gravity or seriousness 

by considering the magnitude of the offense, whether the offense 

involved violence, whether the offense is a lesser included offense or 

an attempted offense, and the defendant’s motive. McRae, ¶ 22 

(citing People v. Cooper, 205 P.3d 475, 479 (Colo. App. 2008)). 

Additionally, “[t]he General Assembly’s current evaluation of the 

seriousness of the offense at issue is a factor that can be considered 

in determining whether [a] defendant’s sentence is grossly 

disproportionate.” Id. (quoting People v. Gaskins, 923 P.2d 292, 
6 

296 (Colo. App. 1996)); see also People v. Hargrove, 2013 COA 165, 

¶ 20; People v. Patnode, 126 P.3d 249, 261 (Colo. App. 2005); 

Anaya, 894 P.2d at 32; Penrod, 892 P.2d at 388.2 

¶ 12 We give a great deal of deference to legislative determinations 

regarding sentencing; therefore, in most cases, the abbreviated 

proportionality review will result in a finding that the sentence is 

constitutionally proportionate. Deroulet, 48 P.3d at 526. However, 

“[a] statutory scheme cannot guarantee a sentence that is 

constitutionally proportionate to a particular defendant convicted of 

a particular crime under particular circumstances.” Patnode, 126 

P.3d at 261 (quoting Deroulet, 48 P.3d at 526). And “[t]he 

provisions of the Habitual Criminal Act create a unique possibility 

that a defendant will receive a . . . sentence which is not 

proportionate to the crime for which the defendant has been 

convicted.” Alvarez v. People, 797 P.2d 37, 40 (Colo. 1990). 

 

2 In Rutter, the supreme court granted certiorari to consider 

“[w]hether a court, when conducting an abbreviated proportionality 

review of a habitual criminal sentence can consider the [G]eneral 

[A]ssembly’s subsequent reclassification of a crime and/or 

amendment of the habitual criminal statute that made an 

underlying crime inapplicable for purposes of a habitual criminal 

adjudication.” Rutter v. People, 2015 CO 71, ¶ 1 n.1. It ultimately 

did not address the question, because no reclassification of the 

triggering offense had occurred. Id. at ¶ 13. 
7 

¶ 13 An extended proportionality review is required when the 

abbreviated review gives rise to an inference of gross 

disproportionality. McRae, ¶ 6. An extended review involves a 

comparison of the sentences imposed on other criminals who 

commit the same crime in the same jurisdiction and a comparison 

of the sentences imposed for the commission of the same crime in 

other jurisdictions. Id.; see also Deroulet, 48 P.3d at 524. 

B. Discussion 

¶ 14 We begin by concluding that Oldright’s triggering offense, first 

degree assault, is a grave and serious offense because the 

legislature deems it a crime of violence and an extraordinary risk 

crime, Oldright used a deadly weapon to commit the crime, and the 

victim suffered serious bodily injury. Thus, we reject Oldright’s 

argument that the circumstances of his specific offense somehow 

reduce the crime’s severity or gravity. Absent the habitual criminal 

finding, this class 3 felony conviction carries a minimum prison 

sentence of ten years and a maximum sentence of thirty-two years. 

See § 18-1.3-406(1)(a),(2)(a)(I)(c), C.R.S. 2016. 

¶ 15 Oldright’s habitual criminal convictions are as follows: 
8 

 Aggravated driving after revocation prohibited (a class 6 

felony at the time of conviction): On December 23, 2004, 

police arrested Oldright for aggravated driving, driving 

under the influence (DUI), and careless driving. The DUI 

and a class 2 traffic offense (careless driving) were 

dismissed. The conviction date for aggravated driving was 

July 18, 2005. This offense was reclassified by the 

legislature and reduced to a misdemeanor in 2015. Ch. 262, 

sec. 4, § 42-2-206, 2015 Colo. Sess. Laws 996; see also 

§ 42-2-206, C.R.S. 2016. 

 Forgery (a class 5 felony): In September 1999, Oldright stole 

the personal checkbook of his former girlfriend and 

business partner and wrote five checks totaling $1337.52. 

His conviction date for that crime was August 22, 2001 (and 

his sentence was modified April 1, 2002). 

 Fraud by check (a class 6 felony at the time of conviction): 

On December 29, 2000, Oldright wrote two checks to a 

computer store that were returned for insufficient funds. 

He wrote one check for $1075.50 and the second for 

$10.00. The conviction date was November 9, 2001. This 
9 

offense was reclassified by the legislature and reduced to a 

class 1 misdemeanor in 2007. Ch. 384, sec. 8, § 18-5-

205(3)(c), 2007 Colo. Sess. Laws 1693-94; see also § 18-5-

205(3)(c), C.R.S. 2016. 

 Theft by receiving between $500 and $15,000 (a class 4 

felony at the time of conviction): On November 27, 2000, 

Oldright received a loaner car that he knew was stolen in 

exchange for bonding a friend out of jail. The car contained 

stolen computer equipment. The owner valued the car at 

$17,000, and the court ordered Oldright to pay $1224.00 in 

restitution. Oldright was convicted on August 22, 2001. 

This offense was reclassified by the legislature and reduced 

to a class 5 felony in 2013. Ch. 373, sec. 1, § 18-4-401, 

2013 Colo. Sess. Laws 2196; see also § 18-4-401(2)(g), 

C.R.S. 2016. 

 Theft of between $500 and $15,000 (a class 4 felony at the 

time of conviction): On November 21, 2000, Oldright stole a 

computer from Micro Center. The court ordered $1579.00 

in restitution. This offense was reclassified by the 
10 

legislature and reduced to a class 1 misdemeanor in 2013. 

Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196. 

¶ 16 The trial court correctly recognized that Oldright’s prior 

convictions “standing alone arguably [did not] rise to the level of 

grave and serious” offenses. However, it erred when it further 

concluded that each of the prior convictions was “serious” simply 

because each was a felony, without further considering relevant 

mitigating factors, including the legislature’s current classification 

of those prior crimes. While Oldright is not entitled to be sentenced 

under any of the amended statutes, it is appropriate and necessary 

to consider these legislative changes in determining whether his 

sentence is grossly disproportionate. See Hargrove, ¶ 28 (“This [the 

legislature’s 2011 amendment to the habitual criminal statute] calls 

into greater question the applicability to . . . felony possession 

convictions of case law finding narcotics-related crimes to be per se 

grave and serious. At the very least, we believe a court could factor 

in the amount of narcotics involved in a simple possession 

conviction . . . in evaluating the broader question of whether a 

defendant’s triggering felony and underlying felonies ‘in 

combination . . . are so lacking in gravity or seriousness so as to 
11 

suggest that the sentence is grossly disproportionate.’” (quoting 

Deroulet, 48 P.3d at 524-25)); see also Trop v. Dulles, 356 U.S. 86, 

100-01 (1958) (“The [Eighth] Amendment must draw its meaning 

from the evolving standards of decency that mark the progress of a 

maturing society.”). There is no basis to conclude the court did that 

here. 

¶ 17 In particular, the court’s conclusion that Oldright’s aggravated 

driving conviction was “a very grave and serious offense that puts 

the public at risk” is contradicted by a division of this court’s 

previous holding that a § 42-2-206 offense is “essentially a violation 

of an administrative order” that could not be “understood as [a] 

‘grave and serious crime[]’” for proportionality purposes, absent 

other aggravating factors. Patnode, 126 P.3d at 261. The existing 

record reveals no information about the facts and circumstances 

underlying this offense. It shows only that the prosecution 

dismissed a DUI and careless driving charge. Without additional 

evidence indicating a greater degree of danger to the public arising 

from Oldright’s actions, we cannot conclude that the record shows 

this offense to be “serious.” And, by reclassifying this crime to a 
12 

misdemeanor, the General Assembly does not consider this to be a 

serious offense. 

¶ 18 Additionally, the trial court’s finding that the “General 

Assembly has found these [property] offenses3 to be so serious that 

they would qualify for felony sentencing” ignores the General 

Assembly’s reclassification of two of these offenses to 

misdemeanors, demonstrating that it no longer considers these 

offenses to be serious. Moreover, the General Assembly’s reduction 

of the third offense to a lower felony classification and 

correspondingly lower penalty demonstrates that it regards this 

offense as less serious now than it did when the offense was 

committed. 

¶ 19 While Rutter could be construed to hold that it is unnecessary 

to scrutinize the circumstances underlying the prior convictions 

when the triggering offense is per se grave or serious, we 

respectfully disagree with the dissent’s view of Rutter’s holding for a 

number of reasons. 

¶ 20 First, Rutter’s analysis begins with well-settled law stating that 

an abbreviated proportionality review (as opposed to an extended 

 

3 Forgery, fraud by check, theft, and theft by receiving. 
13 

review) is sufficient “when the crimes supporting a sentence 

imposed under the habitual criminal statute include grave or 

serious offenses.” Rutter, ¶ 18 (emphasis added). This is important 

because all of Rutter’s prior convictions were drug-related and, as 

noted by the court, involved the same substance 

(methamphetamine) as the triggering offenses. Id. at ¶ 5. 

Therefore, unlike Oldright, all of Rutter’s prior convictions were per 

se grave and serious offenses. See Deroulet, 48 P.3d at 524 

(identifying narcotics-related offenses as per se grave and serious). 

¶ 21 Next, the court explained that its reason for granting certiorari 

was to determine whether the subsequent legislative classification 

of drug crimes (and amendments to the habitual criminal statute) 

altered those crimes’ status as grave or serious crimes. Rutter,

¶ 11. The court’s use of the plural “crimes” creates some 

uncertainty about whether it was referring to the triggering 

offenses, the prior offenses, or all the offenses. 

¶ 22 In proceeding through the analysis, the court defined the 

two-part abbreviated proportionality test as “scrutiny of the offenses 

in question to determine whether in combination they are so 

lacking in gravity or seriousness as to suggest that the sentence is 
14 

constitutionally disproportionate to the crime, taking into account 

the defendant’s eligibility for parole.” Id. at ¶ 18 (emphasis added) 

(quoting Close, 48 P.3d at 539). It then concluded that “for those 

crimes determined to be grave or serious in Colorado, courts skip 

the first sub-part of the abbreviated proportionality review and 

move directly to the second sub-part.” Id. at ¶ 19 (emphasis 

added). We interpret the court’s use of the plural “offenses” and 

“crimes” to include both a defendant’s triggering and prior offenses, 

consistent with the authority cited by the court. 

¶ 23 In applying the two-part test to Rutter’s case, the court found 

that Rutter’s triggering offense was the crime of manufacturing 

methamphetamine — a per se grave or serious offense. Id. at ¶ 22. 

It then concluded that because that offense had previously been 

designated as grave or serious, there was no reason to alter that 

classification based on subsequent legislation. Id. The court then 

scrutinized “the harshness of Rutter’s sentence in relation to the 

fact that his triggering offense [was] grave or serious,” citing to 

Deroulet. Id. at ¶ 24. However, in Deroulet, the court explained that 

Colorado has “delineated certain crimes as ‘grave or serious’” and 

said when a crime is “grave or serious” a reviewing court may 
15 

proceed directly to consider the severity of punishment. Deroulet,

48 P.3d at 524. It did not state that a grave or serious triggering 

offense, by itself, could be the basis for dispensing with the first 

subpart of an abbreviated proportionality review when other 

offenses, not deemed per se grave or serious, were implicated. 

Indeed, the Court did not specifically limit Deroulet’s holding. 

¶ 24 We conclude, from Rutter’s reliance on prior precedent and its 

refusal to limit it, that when faced with a triggering or a prior 

offense that is per se grave or serious, a trial court need not 

determine the gravity or seriousness of that particular offense any 

further under subpart one. However, when a triggering or prior 

offense is not per se grave or serious, then a court must engage in 

subpart one of the abbreviated review analysis to determine gravity 

before analyzing the harshness of the sentence under subpart two. 

Because all of Rutter’s triggering and prior offenses were per se 

grave or serious, there was no need for any subpart one analysis. 

In contrast, because none of Oldright’s prior convictions is per se 

grave or serious, the trial court must determine the gravity of those 

prior offenses before it can reasonably consider the harshness of 

the penalty. 
16 

¶ 25 This conclusion is consistent with well-settled jurisprudence 

requiring a court to assess all of a defendant’s offenses together in 

determining the proportionality of a sentence. See Harmelin v. 

Michigan, 501 U.S. 957, 1001-02 (1991) (abbreviated review 

consists of two subparts comparing gravity of offenses and 

harshness of penalty); Deroulet, 48 P.3d at 524-25 (reviewing court 

must scrutinize all of a defendant’s offenses “in combination”); 

Gaskins, 825 P.2d at 36 (proportionality review requires court to 

scrutinize offenses in combination to determine gross 

disproportionality). Indeed, a proportionality review of a habitual 

criminal sentence would be meaningless were we to consider only 

the gravity of the triggering offense without considering the gravity 

of the underlying offenses requiring the habitual sentence 

enhancement. 

¶ 26 This case illustrates the importance of the two-step 

abbreviated review. Oldright’s first degree assault conviction is 

grave or serious, and the legislature has recognized this fact by 

requiring a mandatory prison sentence of ten to thirty-two years. 

The question here is whether a sixty-four year sentence, double the 

presumptive maximum sentence, raises an inference of gross 
17 

disproportionality. The answer lies in the nature and number of 

Oldright’s prior convictions. 

¶ 27 The certified penitentiary packets and the transcript of the 

habitual criminal trial are the exclusive basis in the record for us to 

scrutinize Oldright’s predicate offenses.4 We have thoroughly 

reviewed these materials and conclude that on the basis of those 

materials and the General Assembly’s reclassification of several of 

the prior offenses, when considered in combination, there is an 

inference of gross disproportionality because: (1) three of Oldright’s 

prior convictions are now misdemeanors (and could not now form 

the basis for habitual criminal sentencing); (2) those same three 

prior convictions were not per se grave or serious when Oldright 

committed them; (3) the two remaining prior convictions are not 

grave or serious; (4) the limited record does not support a 

conclusion that the circumstances of the prior convictions show 

that they were grave or serious; and (5) the sentence for the 

triggering offense today would require only a thirty-two year 

maximum prison sentence. While we do not minimize Oldright’s 

 

4 The parties did not include the presentence investigation report in 

the record on appeal. 
18 

conduct in this case, we must conclude, on the basis of the record 

before us, that the particular facts of the triggering and prior 

offenses leads to an inference that Oldright’s sixty-four-year 

sentence is grossly disproportionate to his offenses. Accordingly, 

we vacate Oldright’s sentence and remand the case for the trial 

court to conduct an extended proportionality review. 

III. Conclusion 

¶ 28 We vacate the sentence and remand for resentencing and an 

extended proportionality review. 

JUDGE ASHBY concurs. 

JUDGE HAWTHORNE concurs in part and dissents in part.
19 

JUDGE HAWTHORNE, concurring in part and dissenting in 

part. 

¶ 29 I concur with the majority’s conclusion that Oldright’s 

triggering offense, first degree assault, is a grave or serious crime. 

And, I also reject his argument that the specific facts surrounding 

his triggering offense mitigate its gravity or seriousness. 

¶ 30 But because, in my opinion, the majority does not apply 

Colorado’s guiding principles for proportionality reviews in the 

manner prescribed by the supreme court in Rutter v. People, 2015 

CO 71, I disagree with its conclusion that the trial court must 

determine the gravity of Oldright’s prior offenses before it can 

reasonably determine the harshness of his penalty. For the same 

reason, I also disagree with the majority’s disposition of vacating 

Oldright’s sentence and remanding the case to the trial court to 

conduct an extended proportionality review. Accordingly, I would 

affirm the trial court’s decision. I therefore respectfully dissent 

from the majority’s disposition. 

I. Facts and Procedural History 
20 

¶ 31 A jury convicted Oldright of first degree assault. Oldright hit 

the victim in the head with a metal rod. The victim lost 

consciousness twice and suffered a fractured skull, a concussion, 

and two deep lacerations. 

¶ 32 After trial, the court adjudicated Oldright a habitual criminal, 

and sentenced him to sixty-four years in prison. 

¶ 33 The trial court conducted an abbreviated proportionality 

review. It concluded that Oldright’s convictions were grave or 

serious and his sentence was not disproportionate. So, the court 

denied his request for an extended proportionality review. 

II. Proportionality Review 

¶ 34 Oldright contends that the court erred by not conducting an 

extended proportionality review. I disagree. 

A. Guiding Principles 

¶ 35 Whether a sentence is constitutionally proportionate is a legal 

question that we review de novo. People v. Gee, 2015 COA 151, 

¶ 56. 

¶ 36 The Eighth Amendment prohibits extreme sentences that are 

“grossly disproportionate” to the crime. Close v. People, 48 P.3d 
21 

528, 536 (Colo. 2002); People v. Mershon, 874 P.2d 1025, 1030 

(Colo. 1994). 

¶ 37 “[A]n abbreviated proportionality review is sufficient when the 

crimes supporting a sentence imposed under the habitual criminal 

statute include grave or serious offenses.” Rutter, ¶ 18. An 

abbreviated proportionality review involves determining whether the 

sentence gives rise to an inference of gross disproportionality by 

scrutinizing (1) the offense’s gravity or seriousness in relation to (2) 

the sentence’s harshness. Id. Further analysis is required only if 

this abbreviated review gives rise to an inference of gross 

disproportionality. Close, 48 P.3d at 542. 

¶ 38 If a crime is determined to be per se grave or serious, the court 

does not examine the facts and circumstances underlying the 

offense. People v. Hargrove, 2013 COA 165, ¶ 12. Rather, the court 

proceeds directly to considering the sentence’s harshness. Rutter, 

¶ 19. “[I]t is ‘highly likely that the legislatively mandated sentence’ 

will be constitutionally proportionate for grave or serious crimes.” 

Id. (quoting Close, 48 P.3d at 538). “Thus, the ability to proceed to 

the second sub-part of the abbreviated proportionality review, 

namely the harshness of the penalty, when a grave or serious crime 
22 

is involved results in a near-certain upholding of the sentence.” Id. 

(quoting Close, 48 P.3d at 538). These guiding principles establish 

that, in abbreviated proportionality reviews, courts only scrutinize 

the penalty’s harshness when the crime is grave or serious. Id. at 

¶ 20. And, it is highly likely that the sentence will be proportionate. 

Id. 

B. Application 

1. Oldright’s Triggering Offense Was Grave or Serious 

¶ 39 Oldright’s triggering offense was first degree assault. Another 

division of this court has held that first degree assault is per se 

grave or serious, and I see no reason to disagree with that holding. 

See Gee, ¶ 60. 

¶ 40 As the supreme court similarly noted in Rutter, I note here 

that, although it would not have been dispositive, the legislature did 

not reclassify Oldright’s triggering offense of first degree assault. 

Thus, even in the legislature’s view, the nature of first degree 

assault remains unchanged. So, Oldright’s triggering offense was 

outside the purview of any legislative sentencing reforms. 

2. Abbreviated Proportionality Review 
23 

¶ 41 Consistent with Rutter, I proceed to the second subpart in this 

abbreviated proportionality review, determining whether Oldright’s 

sixty-four-year sentence for the grave or serious triggering offense of 

first degree assault is overly harsh and thus raises an inference of 

gross disproportionality. Rutter, ¶ 24. And, at this stage, the Rutter

majority unequivocally states that the court’s precedent directs the 

proportionality review be conducted by scrutinizing the defendant’s 

sentence “in relation to the fact that his triggering offense is grave 

or serious.” Id. Therefore, as the court mandates, I “must focus on 

the principal felony — the felony that triggers the [enhanced] 

sentence . . . .” Id. (quoting Solem v. Helm, 463 U.S. 277, 296 n.21 

(1983)). 

¶ 42 I disagree with the majority rejecting Rutter’s mandate that a 

reviewing court must focus on the triggering offense because, in its 

opinion, the Rutter court misread its own precedent from Deroulet. 

Despite the majority’s detailed and articulate reasoning, we are 

“bound to follow supreme court precedent.” In re Estate of 

Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250 

P.3d 762, 768 n.3 (Colo. App. 2010)). 
24 

¶ 43 A sixty-four-year sentence was the legislatively required 

sentence for Oldright’s class 3 extraordinary risk crime and 

habitual counts. See §§ 18-1.3-401(1)(a)(V)(A), (10)(a), (b)(XII), 18-

1.3-801(2), C.R.S. 2016. The sentence is not too harsh because the 

triggering offense is grave or serious. See Rutter, ¶ 25 (ruling the 

defendant’s ninety-six-year sentence not too harsh in light of fact 

that triggering offense was grave or serious). So, the sentence is not 

grossly disproportionate. Id. (noting the “‘very high likelihood that a 

sentence will be upheld as constitutionally proportionate’ when the 

crime is grave or serious” (quoting Close, 48 P.3d at 536)). 

¶ 44 Oldright argues that his sentence is disproportionate because 

his prior offenses are not grave or serious, and the General 

Assembly has reclassified three of his prior felony offenses as 

misdemeanors. But, because his triggering offense is grave or 

serious, I need not scrutinize his underlying prior convictions. See 

id. at ¶¶ 21-25 (directing that the proportionality review focus on 

scrutinizing the harshness of a defendant’s sentence in relation to 

the triggering offense). 

¶ 45 And even examining Oldright’s prior underlying felonies does 

not raise an inference of gross disproportionality. He had five prior 
25 

felony convictions: aggravated driving after revocation, forgery, 

fraud by check, and two counts of theft. Contrary to the majority’s 

suggestion that Oldright’s aggravated driving after revocation 

conviction was essentially an administrative order violation, in 

pleading guilty to that offense, Oldright also admitted that he was 

driving under the influence of alcohol or drugs, or both. 

¶ 46 Under Rutter, I need not address the legislative changes to 

Oldright’s underlying convictions because his triggering offense was 

outside the purview of any sentencing reform and that is the offense 

on which a court must focus in conducting an abbreviated 

proportionality review. See id. at ¶¶ 23, 24. But even considering 

that two of Oldright’s prior felonies were reclassified as 

misdemeanors, no inference of gross disproportionality is raised 

because three of his prior five felonies would still be felonies if 

committed today. Cf. id. at ¶ 13 (noting that “while the legislature 

can change the classification of crimes, courts determine whether 

offenses are grave or serious for purposes of proportionality 

review”). Also, a crime such as theft can be grave or serious when it 

is one of a variety of prior offenses. See Mershon, 874 P.2d at 1031. 
26 

¶ 47 Finally, even assuming that Oldright’s underlying offenses, 

standing alone, are not grave or serious, I conclude that, when 

combined with his serious first degree assault offense, they are 

grave or serious. So, no inference of gross disproportionality is 

raised by the court’s imposing the statutorily mandated sentence. 

See People v. Deroulet, 48 P.3d 520, 527 (Colo. 2002) (concluding 

that court erred in reducing legislatively mandated sentence even 

though underlying crimes, “standing alone,” were not grave or 

serious). 

¶ 48 I conclude that Oldright’s sentence was not grossly 

disproportionate. And, I reject his contention that the trial court 

erred in failing to conduct an extended proportionality review. 

III. Conclusion 

¶ 49 I would affirm the sentence.