Summary
holding that the individual characteristics of the criminal are not at issue under the Solem test
Summary of this case from People v. MershonOpinion
No. 91SC467 No. 92SC71
Decided July 6, 1993. Rehearing Denied Cisneros July 26, 1993. Rehearing Denied Ates August 30, 1993.
Certiorari to the Colorado Court of Appeals
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Clement P. Engle, Assistant Attorney General, Appellate Section, for Petitioner (91SC467 92SC71).
Cherner and Blackman, Barbara S. Blackman, for Respondent (91SC467).
Karen Chilton Beverly, for Respondent (92SC71).
The People of the State of Colorado (the People) petition from the decision of the court of appeals in People v. Cisneros, 824 P.2d 16 (Colo.App. 1991), wherein the court of appeals affirmed respondent Chris Cisneros' convictions of second-degree burglary and theft, and his adjudication as a habitual criminal on the basis of four prior felony convictions, but remanded the case to the trial court to conduct an extended proportionality review of his sentence to life imprisonment with eligibility for parole after forty years. The court of appeals held that an extended proportionality review was required in light of Cisneros' age because, "for all practical purposes, [Cisneros] is ineligible for parole." Cisneros, 824 P.2d at 19.
§ 18-4-203(2)(a), 8B C.R.S. (1986).
§ 18-4-401(1)(a), (2)(c), 8B C.R.S. (1986).
Cisneros was sentenced to life imprisonment pursuant to Colorado's habitual criminal statute, § 16-13-101, 8A C.R.S. (1986), and is eligible for parole after forty years under § 17-22.5-104(c), 8A C.R.S. (1986).
Cisneros was fifty-nine years old at the time of sentencing.
The People also petition from the court of appeals decision in People v. Ates, No. 89CA1593 (Colo.App. Apr. 4, 1991) (not selected for publication), wherein the court of appeals affirmed Willie Louis Ates' conviction of possession of a controlled substance (cocaine), and his adjudication as a habitual criminal on the basis of three prior felony convictions, but vacated Ates' sentence to life imprisonment, and remanded the case to conduct an extended proportionality review of the sentence. As in Cisneros, the court of appeals in Ates reasoned that Ates is essentially ineligible for parole by virtue of his age.
§ 12-22-310, 5A C.R.S. (1986); § 18-18-105, 8B C.R.S. (1986).
See § 16-13-101(2), 8A C.R.S. (1986).
Ates was forty years old at the time of sentencing.
We granted the People's petitions for certiorari review of the court of appeals' conclusions in Cisneros and Ates, and consolidated the cases for our review. We first determine that an abbreviated form of proportionality review is appropriate in both Cisneros and Ates, and, after conducting such a review in each case, we reverse the judgments of the court of appeals in both Cisneros and Ates.
I. A.
Cisneros
On April 2, 1987, a tenant returning home discovered that his apartment door was ajar and that an intruder was inside. The intruder struck the tenant several times and then escaped from the apartment building. The manager of the apartment building observed the intruder drive away in a red Toyota pickup truck. The tenant found that his dresser drawers had been ransacked, and that jewelry which he had inherited from his father, a $7,800 watch, and $1,200 in cash were missing. The tenant reported the incident to Denver police officials, and the apartment manager provided the police with the license number of the pickup truck and a description of the intruder. The police determined that Chris Cisneros owned the red pickup truck, and both the tenant and the apartment building manager positively identified Cisneros as the intruder. Cisneros was arrested the following day.
The People subsequently filed a complaint and information charging Cisneros with the offenses of second-degree burglary and theft. The People later amended the complaint and information to charge Cisneros as a habitual criminal. The additional seven convictions charged included:
The relevant portion of the habitual criminal statute provides as follows: " 16-13-101. Punishment for habitual criminals.. . . "(2) Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct episodes, either in this state or elsewhere, of a felony . . . shall be adjudged an habitual criminal and shall be punished by imprisonment in a correctional facility for the term of his or her natural life." § 16-13-101(2), 8A C.R.S. (1986).
"(1) Count 3: attempted second-degree burglary (1986) (sentenced pursuant to guilty plea);
§§ 18-2-101(1), 18-4-203(2), 8B C.R.S. (1986).
"(2) Count 4: second-degree burglary (1982) (sentenced pursuant to guilty plea);
§ 18-4-203(2), 8 C.R.S. (1978 1981 Supp.).
"(3) Count 5: attempted second-degree burglary (1979) (sentenced pursuant to guilty plea);
§§ 18-2-101(1), 18-4-203(2), 8 C.R.S. (1978).
"(4) Count 6: attempted possession of narcotic drug (1976) (sentenced pursuant to guilty plea);
§ 18-2-101(1), 8 C.R.S. (1973); § 12-22-302, 5 C.R.S. (1973).
"(5) Count 7: possession of burglary tools (1971) (sentenced pursuant to guilty plea);
§ 40-3-7, 3 C.R.S. (1963).
"(6) Count 8: second-degree burglary (1967) (sentenced pursuant to guilty plea);
§ 40-3-5, 3 C.R.S. (1963).
"(7) Count 9: receiving stolen property (1960) (sentenced pursuant to plea of nolo contendere)."
§ 40-5-12, 3 C.R.S. (1953).
Cisneros collaterally attacked the prior convictions at a pretrial hearing, and the court suppressed the convictions alleged in count 7 and count 8, because Cisneros made an unrebutted prima facie showing of their invalidity. The court also granted a judgment of acquittal as to count 6 due to a technical failure of proof.
On June 22, 1989, a jury found Cisneros guilty of both of the substantive charges, and Cisneros was convicted of second degree burglary, a class 3 felony, and theft, a class 4 felony. Cisneros subsequently waived his right to a jury trial on the habitual criminal charges, and was adjudicated as a habitual criminal on the basis of four of the nine charged prior felony convictions. The four prior convictions underlying the habitual criminal adjudication included: (1) attempted second-degree burglary (1986); (2) second-degree burglary (1982); (3) attempted second-degree burglary (1979); and (4) receiving stolen property (1960). According to the pre-sentence report, Cisneros was on parole at the time that he committed the present offenses.
Prior to sentencing, Cisneros filed a motion with the trial court requesting a proportionality review of the mandatory life sentence which the trial court was required to impose pursuant to the habitual criminal statute. Cisneros argued that, in light of his age, he was effectively precluded from parole consideration. Cisneros also contended that a comparison of his offense to others similarly situated would establish that imposition of the mandatory sentence required under the habitual criminal statute would constitute cruel and unusual punishment.
Cisneros did not specify in his motion whether he was seeking an extended or an abbreviated form of proportionality review.
Although Cisneros did not specify at trial whether he was relying upon the Eighth Amendment of the United States Constitution or article II, section 20, of the Colorado Constitution, his brief before the court of appeals asserted a violation only of the Eighth Amendment. We therefore deem his challenge here to be based solely upon the Eighth Amendment.
The trial court denied Cisneros' motion for proportionality review. The trial court declined to conduct a proportionality review because an individual sentenced pursuant to the habitual criminal statute is eligible for parole, and because either the court of appeals or this court could conduct a proportionality review on appeal. In accordance with section 16-13-101(2), 8A C.R.S. (1986), of the habitual criminal statute, the trial court sentenced Cisneros to life imprisonment with eligibility for parole after forty years.
See § 17-22.5-104(2)(c), 8A C.R.S. (1986).
On appeal, Cisneros argued that the trial court erred in denying his motion to conduct a proportionality review of his sentence. The court of appeals found that, because Cisneros was fifty-nine years old, the forty-year sentence was the equivalent of a life sentence without the possibility of parole, and that Cisneros was therefore entitled to an extended proportionality review. People v. Cisneros, 824 P.2d 16, 18-19 (Colo.App. 1991). The court of appeals reasoned as follows:
"Under the Solem[ v. Helm, 463 U.S. 277 (1983)] ruling, an extended proportionality review is mandated by the Eighth Amendment protection against cruel and unusual punishment if the defendant is faced with a life sentence without the possibility of parole. . . . In our view, . . . the fact that defendant's life will likely end before he is eligible for parole makes this situation comparable to that in Solem v. Helm, and, therefore, an extended proportionality review is required."
Id. at 18-19. The court of appeals concluded that the record on appeal did not permit it to conduct an extended proportionality review; accordingly, the court of appeals remanded the case to the trial court with directions to conduct such a review.
The People filed a cross-petition for writ of certiorari, asserting that the court of appeals erred in holding that Cisneros was entitled to an extended proportionality review even though he was eligible for parole in forty calendar years.
Cisneros filed a petition for certiorari on the issue of "whether counts 3, 5, and 9 could not be used for habitual criminal purposes, as Mr. Cisneros' prima facie showing of unconstitutionality was unrebutted by the prosecution." We denied this petition.
B.
Ates
On April 23, 1988, Colorado Springs Police officials entered an alleged crack house, pursuant to a warrant, and discovered the respondent, Willie Louis Ates, alone in one of the bedrooms. The police searched both Ates and the room, and found cocaine, a scale with cocaine residue, and paraphernalia associated with the manufacture, distribution, and consumption of crack cocaine.
The police arrested Ates and subsequently charged him with the offenses of possession of a controlled substance (cocaine), and possession of a controlled substance (cocaine) with intent to distribute, dispense, or sell. The People later amended the complaint and information to charge Ates as a habitual criminal based upon three prior felony convictions. The first conviction, for the sale of narcotic drugs (cocaine, two counts), occurred in 1981. The second conviction, for felony menacing with a knife, occurred in 1986; and the third conviction, for violation of bail bonds conditions, occurred in 1987.
§ 12-22-310, 5A C.R.S. (1986); § 18-18-105, 8B C.R.S. (1986).
§ 12-22-310; § 18-18-105.
§§ 12-22-302, -322(2)(b), 5 C.R.S. (1978 1980 Supp.).
§ 18-3-206, 8B C.R.S. (1986).
§ 18-8-212 (1), 8B C.R.S. (1986).
Prior to trial, Ates moved to dismiss the habitual criminal charges and the trial court denied this motion. The trial court reasoned as follows:
"I think that the supporting criminal charges here of sale of narcotics, menacing — Even, in my opinion, bail jumping or violation bail bond conditions is not the — certainly not the most heinous crime in the world but does carry a penalty potentially of up to eight years in prison. So society has deemed it not an unsubstantial offense. I wouldn't think that they were so minor in their nature as to constitute cruel and unusual punishment at this time."
The jury found Ates guilty of count 1, the offense of possession of a controlled substance (cocaine), a class 3 felony. In bifurcated proceedings under the habitual statute, the jury subsequently determined that Ates had been convicted of three prior felonies. Pursuant to section 16-13-101(2), the trial court sentenced Ates to life imprisonment without the possibility of parole for forty years.
The jury was unable to reach a verdict as to count 2, the charge of possession of a controlled substance with intent to distribute, dispense, or sell. The prosecution orally moved for a dismissal of count 2, and the district court granted this motion.
See § 17-22.5-104(2)(c), 8A C.R.S. (1986). Ates did not again request a proportionality review of his sentence, but he preserved the issue of the trial court's denial of his pretrial motion for such review in a post-trial motion.
Ates appealed his convictions, arguing that his sentence constituted cruel and unusual punishment in view of the "minor" offenses underlying his conviction as a habitual criminal. He also argued that he was entitled to a proportionality review of his sentence.
Because the record on appeal does not contain a transcript of the sentencing hearing, we cannot ascertain whether Ates again requested the trial court, at sentencing, to consider the constitutionality of the life sentence prescribed by the habitual criminal statute.
On appeal, the court of appeals affirmed Ates' convictions, but vacated his sentence and remanded the case to the trial court with directions to conduct an extended proportionality review. The court of appeals reasoned that
"[Ates] was 40 years old at the time of sentencing and will not be eligible for parole until he reaches age 80. See § 17-22.5-104(2)(c), C.R.S. (1986 Repl. Vol. 8A). Further, under the statutory mortality tables, one who has completed the age of 40 years has a life expectancy of 37.0 years. Section 13-25-103, C.R.S. (1987 Repl. Vol. 6A). Accordingly, for all practical purposes, [Ates] is, in effect, ineligible for parole. On that basis, we conclude that the defendant is entitled to an extended, rather than an abbreviated, proportionality review of his life sentence."
People v. Ates, No. 89CA1593, slip op. at 4 (Colo.App. Apr. 4, 1991).
C.
We granted certiorari in Cisneros to determine "[w]hether the court of appeals erred in holding that the petitioner was entitled to an extended proportionality review, although petitioner was eligible for parole in forty calendar years." Similarly, we granted certiorari in Ates to decide "[w]hether an extended proportionality review of an habitual offender sentence is required simply because the individual's life expectancy does not exceed his period of parole ineligibility."
Based upon previous decisions by this court and by the United States Supreme Court, we conclude that mitigating factors, such as the defendant's age, are irrelevant in determining whether a punishment is proportionate to the crime under the Eighth Amendment. See Harmelin v. Michigan, 111 S. Ct. 2680 (1991); Solem v. Helm, 463 U.S. 277 (1983); People v. Smith, 848 P.2d 365 (Colo. 1993); People v. Gaskins, 825 P.2d 30 (Colo. 1992); Alvarez v. People, 797 P.2d 37 (Colo. 1990); People v. Drake, 785 P.2d 1257 (Colo. 1990); People v. Hernandez, 686 P.2d 1325 (Colo. 1984). We further conclude that an abbreviated form of proportionality review is warranted, and that this court may conduct such a review in both Cisneros and Ates.
II.
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. In interpreting the cruel and unusual punishment clause of the Eighth Amendment, the United States Supreme Court held that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Solem, 463 U.S. at 290. Solem articulated a three-pronged proportionality analysis which provides as follows:
"When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized. First, we look to the gravity of the offense and the harshness of the penalty. . . .
"Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. . . .
"Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions."
Id. at 290-92 (1983). Because Solem's three-part test examines whether a sentence is proportionate to the crime, and whether the sentence is excessive compared with sentences given for such crimes in the same and other jurisdictions, the individual characteristics of the criminal are not at issue under the Solem test.
Relying on Solem, this court has held that an abbreviated form of the proportionality review articulated in Solem is required when a defendant, in either a habitual or a non-habitual offender case, challenges the constitutionality of a life sentence. Smith, 848 P.2d 365; Gaskins, 825 P.2d 30; Alvarez, 797 P.2d 37; Drake, 785 P.2d 1257; Hernandez, 686 P.2d 1325. As in Solem, our focus in conducting a proportionality review has consistently been whether the sentence is proportionate to the crime when considering the gravity of the offense and the harshness of the penalty. Smith, 848 P.2d 365; Gaskins, 825 P.2d 30; Alvarez, 797 P.2d 37; Drake, 785 P.2d 1257; Hernandez, 686 P.2d 1325.
In Smith, we held that Donald Eugene Smith's sentence to life imprisonment with no possibility of parole for forty years was not disproportionate, and did not violate the Eighth Amendment's prohibition against cruel and unusual punishment by virtue of Smith's age or his lack of prior felony convictions. Smith, 848 P.2d at 372. We found in Smith that the United States Supreme Court had already addressed and rejected the argument for individualized sentencing in non-capital cases based upon "mitigating" factors such as the age of the defendant. Smith, 848 P.2d at 374-75 (relying on Harmelin, 111 S. Ct. 2680); see Harmelin, 111 S. Ct. at 2702.
Justice Scalia delivered the opinion of the Court in Harmelin with respect to part V of the opinion, wherein the Harmelin Court held that individualized sentencing — consideration of mitigating factors such as age — is only required in capital cases. Harmelin, 111 S. Ct. at 2702. The Harmelin Court specifically considered the example of a sixty-five-year-old man sentenced to a term of life imprisonment without parole for twenty years, or even a lengthy term sentence without the possibility of parole, and acknowledged that, "[i]n some cases, . . . there will be negligible difference between life without parole and other sentences of imprisonment." Id. Nevertheless, the Harmelin Court concluded that "[w]e have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further." Id.
Accordingly, in Smith, we expressly relied on Harmelin in concluding that mitigating factors such as the defendant's age and prior criminal record are irrelevant in determining whether a sentence is disproportionate in violation of the Eighth Amendment. See Smith, 848 P.2d at 374-75. The Harmelin Court's holding that individualized sentencing is not required in non-capital cases is dispositive in the present actions.
In Smith, we also considered federal cases from the Tenth and Eighth Circuit Courts of Appeals in concluding that age is not a relevant factor in proportionality analysis. People v. Smith, 848 P.2d 365, 375 (Colo. 1993); see United States v. O'Driscoll, 761 F.2d 589, 599 (10th Cir. 1985) ("A sentence of imprisonment for a very long term of years, the effect of which is to deny a prisoner eligibility for parole until a time beyond his life expectancy, does not violate the Eighth Amendment prohibition of imposition of cruel and unusual punishment."); United States v. Murphy, 899 F.2d 714, 719 (8th Cir. 1990) (emphasis added) (holding that forty-year-old narcotics defendant's "present age is irrelevant to the validity of his sentences under the Eighth Amendment," and that, "[a]lthough the sentences are stringent, we hold that they do not violate the constitutional prohibition against cruel and unusual punishment"); United States v. Mendoza, 876 F.2d 639, 640-41 (8th Cir. 1989) (holding that a fifteen-year sentence imposed upon a defendant convicted of narcotics offenses did not constitute cruel and unusual punishment in violation of the Eighth Amendment, even though the defendant suffered from chronic kidney failure, and claimed that his life expectancy was substantially shorter than normal).
Based upon this court's previous holdings, as well as our examination of federal law, a defendant's age should not be considered in determining whether a sentence is disproportionate under the Eighth Amendment. See Smith, 848 P.2d 365; Gaskins, 825 P.2d 30; Alvarez, 797 P.2d 37; Drake, 785 P.2d 1257; Hernandez, 686 P.2d 1325; Harmelin, 111 S. Ct. 2680; Solem, 463 U.S. 277; United States v. Murphy, 899 F.2d 714 (8th Cir. 1990); United States v. Mendoza, 876 F.2d 639 (8th Cir. 1989); United States v. O'Driscoll, 761 F.2d 589 (10th Cir. 1985). Thus, we find that Cisneros and Ates are not entitled to an extended proportionality review simply because their respective life expectancies do not exceed the forty-year period of parole ineligibility.
III.
We now consider whether an abbreviated form of proportionality review is appropriate in the present cases, and whether this court may conduct such a review in both Cisneros and Ates.
A.
In determining whether this court may conduct an abbreviated proportionality review under the existing record in both Cisneros and Ates, we must first examine the requirements of an abbreviated proportionality review. We held in Gaskins that
"[t]he abbreviated review itself simply consists of a scrutiny of the offenses in question to determine whether in combination they are so lacking in gravity or seriousness as to suggest that a life sentence is constitutionally disproportionate to the crime, taking into account the defendant's eligibility for parole."
Gaskins, 825 P.2d at 36 (emphasis added). Thus, under Gaskins, the critical inquiry is whether the offenses in question, when examined in combination, are lacking in gravity or seriousness. In Gaskins, we found that
"[t]he determination of whether the crimes involved in a habitual criminal conviction are grave or serious necessarily is somewhat imprecise. Solem offers helpful guidance in evaluating the gravity of an offense. The Court observed that offenses can be compared `in light of the harm caused or threatened to the victim or society, and the culpability of the offender.'"
Id. (quoting Solem, 463 U.S. at 292). In Gaskins, we suggested the following relevant considerations in assessing the harm caused or threatened to society:
"[R]elevant considerations include whether the crime involves violence, and the absolute magnitude of the crime ( e.g., theft of a large amount usually can be viewed as more serious than theft of a small amount, other circumstances being the same). In general, a lesser-included offense is not as serious as the greater-inclusive offense, an attempt is less serious than a completed crime, and an accessory after the fact should not be subject to a higher penalty than the principal. . . . Motive is also relevant."
Id. at 36-37 (citations omitted). This is not an exhaustive list of relevant factors; rather, this list illustrates that there are "generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes." Solem, 463 U.S. at 294; see Gaskins, 825 P.2d at 37.
We held in Gaskins that an abbreviated form of proportionality review was appropriate in that case. Gaskins, 825 P.2d at 37. In deciding whether the trial court or the appellate court should conduct the abbreviated proportionality analysis, we explained that,
"[i]n the absence of a need for a refined analysis inquiring into the details of the specific offenses or a detailed comparison of sentences imposed for other crimes in this or other jurisdictions, an appellate court is as well positioned as a trial court to conduct a proportionality review. In such circumstances, there is no need or justification for remand. . . .
"In less clear cases, however, a court may need to examine the facts underlying the offenses in question in order to assess the harm caused or threatened to the victim or society and the culpability of the offender. . . . The proportionality review may require factual findings concerning the crime, the level of violence, and the other factors Solem identified in evaluating the severity of the crimes in question."
Id. at 37-38. Based upon the facts in Gaskins, we held that the court of appeals did not err in remanding the case to the district court to develop the factual record and conduct an abbreviated proportionality review. Id. at 39.
John Harvey Gaskins, the defendant in Gaskins, was convicted of third-degree assault, a class 1 misdemeanor, and criminal attempt to commit theft, a class 5 felony. In addition, Gaskins was also adjudicated as a habitual criminal. The first of Gaskins' three underlying felony convictions occurred in 1976, when Gaskins pleaded guilty to a charge of second-degree assault, a class 4 felony, for an assault on a police officer. Gaskins' second felony conviction occurred in June of 1981, when a jury found him guilty of attempt to commit criminal trespass, a class 5 felony. In August of 1981, Gaskins pleaded guilty to a charge of theft, a class 4 felony, for entering an apartment and taking a jacket, tie tack, and knife, and received his third felony conviction. We concluded in Gaskins that "[n]one of the underlying crimes are intrinsically so grave or serious that the court of appeals can be held to have abused its discretion in remanding the case to a forum better adapted for development of the facts and circumstances surrounding the crimes." Id.
§ 18-3-204, 8B C.R.S. (1986).
§ 18-2-101, 8B C.R.S. (1986).
Gaskins received a sentence of four years' imprisonment for the 1976 conviction.
Gaskins received a sentence of eighteen months' imprisonment plus one year of parole for the June 1981 conviction.
The court sentenced Gaskins to four years' imprisonment plus one year probation for the August 1981 conviction.
We conducted an abbreviated form of proportionality review in Alvarez, Drake, and Hernandez, however, based upon the existing appellate record. See Alvarez, 797 P.2d at 38, 41 (defendant convicted of aggravated robbery, theft, and conspiracy to commit aggravated robbery and theft, and was adjudicated as a habitual criminal based upon previous convictions for second-degree burglary, criminal attempt to commit theft, first-degree criminal trespass, and criminal attempt to commit second-degree burglary); Drake, 785 P.2d at 1267 (defendant convicted of accessory to the crime of first-degree murder and as a habitual criminal based upon prior felony convictions for habitually giving a worthless check, theft of property valued over $50, and forgery ); Hernandez, 686 P.2d at 1329 (defendant convicted of second-degree burglary and conspiracy to commit second-degree burglary, and was adjudicated as a habitual criminal based upon prior convictions for six felonies including robbery and sale of narcotic drugs).
Kan. Stat. Ann. § 21-3708.
Kan. Stat. Ann. § 21-3701.
Kan. Stat. Ann. § 21-3710.
B.
Based upon our examination of prior Colorado case law, we find in Cisneros that an abbreviated proportionality review is appropriate, and that this court "is as well positioned as a trial court to conduct [such] a proportionality review." Gaskins, 825 P.2d at 38; see Alvarez, 797 P.2d at 38; Drake, 785 P.2d at 1267; Hernandez, 686 P.2d at 1329.
Cisneros was convicted of two offenses in the case-in-chief: burglary and theft. The offenses underlying Cisneros' conviction as a habitual offender include three burglary offenses and one offense of receiving stolen property. We have previously noted that the offense of burglary "involve[s] violence or potential for violence by [its] very nature." Gaskins, 825 P.2d at 37. We conclude that, in combination, the six offenses committed by Cisneros meet the requisite requirement of gravity or seriousness to support a sentence of life imprisonment with eligibility for parole after forty years. We therefore find that Cisneros' sentence is not disproportionate in violation of the Eighth Amendment.
C.
Similarly, in Ates, we conclude that the existing record is sufficient for the purpose of conducting an abbreviated proportionality review, and that, in the interest of judicial economy, this court should conduct such a review. See Gaskins, 825 P.2d at 38; Alvarez, 797 P.2d at 38; Drake, 785 P.2d at 1267; Hernandez, 686 P.2d at 1329.
This court and the United States Supreme Court have determined that the possession and sale of narcotic drugs are grave and serious offenses. Harmelin, 111 S. Ct. at 2706 (Kennedy, J., concurring in part and concurring in the judgment) ("Petitioner's suggestion that his crime [of possession of cocaine] was nonviolent and victimless . . . is false to the point of absurdity. To the contrary, petitioner's crime threatened to cause grave harm to society."); Gaskins, 825 P.2d at 37 ("Sale of narcotic drugs is viewed with great seriousness because of the grave societal harm caused by sale of illegal drugs and the evils associated with their use.").
The crime of felony menacing with a knife is also grave or serious under the standard articulated in Solem and adopted by this court in Gaskins. Under Solem, courts may judge the gravity of an offense by comparing "the harm caused or threatened to the victim and society, and the culpability of the offender." Solem, 463 U.S. at 292; see Gaskins, 825 P.2d at 36. Under section 18-3-206, "[a] person commits the crime of menacing if, by any threat or physical action, he knowingly places or attempts to place another person in fear of imminent serious bodily injury." § 18-3-206, 8B C.R.S. (1986) (emphasis added). Felony menacing further requires the use of a deadly weapon. Felony menacing is a grave or serious offense under the standard announced in both Solem and Gaskins because, by definition, felony menacing involves the use of a deadly weapon to place, or attempt to place, another individual in fear of imminent serious bodily injury.
Ates' convictions for possession of a controlled substance (cocaine), sale of narcotic drugs (cocaine), felony menacing with a deadly weapon (a knife), and violation of bail bonds conditions, in combination, are not so lacking in gravity as to suggest that Ates' mandatory sentence of life imprisonment without the possibility of parole for forty years violates the Eighth Amendment's prohibition against cruel and unusual punishments. Accordingly, we conclude that Ates' sentence to life imprisonment without the possibility of parole for forty years is not disproportionate in violation of the Eighth Amendment.
IV.
The judgments of the court of appeals in both Cisneros and Ates are reversed.
JUSTICE ERICKSON specially concurs.
JUSTICE KIRSHBAUM specially concurs in part and dissents in part, and JUSTICE LOHR and JUSTICE MULLARKEY join in the special concurrence and dissent.