A member of the state’s second-highest court urged his colleagues on Thursday to pump the brakes before declaring new offenses “grave or serious” in every possible scenario.

The Eighth Amendment’s prohibition on cruel and unusual punishment means sentences cannot be grossly disproportionate to the crime. Consequently, when judges in Colorado examine the constitutionality of a sentence, they first consider whether the offense was grave or serious, then assess the harshness of the punishment. 

The Colorado Supreme Court has recognized that, if an offense is “per se” grave and serious — meaning serious in all scenarios — and the sentence is within the authorized limits, it is “nearly impervious” to a challenge.

However, last month, two justices suggested that Colorado’s unique method of expediting reviews of certain sentences be abolished in favor of a straightforward analysis of each defendant’s case.

In a Jan. 8 opinion in which a three-judge Court of Appeals panel upheld a defendant’s lifetime sentence for felony murder, Judge Timothy J. Schutz wrote separately to disagree with the panel majority’s decision to label felony murder per se grave or serious, citing the Supreme Court’s mixed signals.

“I am persuaded that judicial restraint is particularly important in creating new classes of ‘per se grave or serious’ crimes,” he wrote, “given the supreme court’s ongoing reflection and disagreement on whether this unique Colorado doctrine should be completely jettisoned.”

A defendant is guilty of felony murder if he participates in certain serious crimes, such as robbery or sexual assault, and someone dies as a result. Prior to 2021, life without parole was the punishment for those convicted of felony murder. State lawmakers imposed a maximum sentence of 48 years in 2021, but the change only applied going forward.

Denver jurors convicted Edwin Marentes in 2022 of felony murder. Because his offense occurred before the law change, he received a sentence of life without parole. The trial judge believed he was obligated to impose life imprisonment, but said Marentes’ crime was “as grave and terrible as it can be.”

Marentes appealed, arguing his sentence was constitutionally excessive in light of his youth, his mental state and the legislature’s recent reduction to the severity of the offense.

The appellate panel’s majority, in a non-precedent-setting opinion, concluded felony murder is always grave or serious because it necessarily involves the commission of a violent felony accompanied by someone’s death. Moreover, robbery, which was the offense Marentes was committing when the victim died, is already a per se grave and serious crime in Colorado on its own.

“It would be an odd result indeed to conclude that robbery loses this status when it leads to the death of another person,” wrote Judge Jerry N. Jones for himself and Judge Matthew D. Grove.

Schutz, in his concurring opinion, argued the facts of Marentes’ offense justified his lifetime sentence, and the analysis should end there.

“In my estimation, there is no need to decide whether felony murder is per se grave or serious,” Schutz wrote.

He noted that the Supreme Court had an opportunity in 2024 to say whether felony murder was grave and serious across the board, but it declined to do so.

“Such caution is particularly appropriate in the felony murder context given recent legislation that changed felony murder from murder in the first degree to murder in the second degree,” Schutz added.

Also on Thursday, a different Court of Appeals panel issued a precedent-setting opinion labeling first degree-assault on a peace officer as grave and serious in every scenario. Like Schutz, the panel acknowledged the Supreme Court has encouraged restraint before taking such a step. But because the offense requires the intent to cause serious injury to a law enforcement officer, the panel deemed it serious across the board.

The case is People v. Marentes.