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
August 9, 2018
2018COA113
No. 15CA1713, People v. Davis — Criminal Law — Sentencing
— Juveniles; Constitutional Law — Eighth Amendment — Cruel
and Unusual Punishments
A division of the court of appeals considers the
constitutionality of a juvenile offender’s sentence to life with the
possibility of parole after forty years (LWPP-40) plus a consecutive
eight years and one day. The division considers and rejects the
defendant’s contentions that (1) the consecutive sentences imposed
by the trial court violated the Eighth Amendment to the United
States Constitution; (2) his sentence to LWPP-40 was
unconstitutional because the statutory scheme under which he was
sentenced mandated that juveniles receive the same sentence as
adults; and (3) Colorado’s parole system violates the Eighth
Amendment to the United States Constitution as interpreted by the
Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), and Miller
v. Alabama,
567 U.S. 460 (2012), because it does not provide
juveniles sentenced to LWPP-40 a meaningful or realistic
opportunity for release.
The division also rejects the defendant’s contentions that (1)
the trial court erred in denying his motion to suppress statements
made during police interrogation and (2) he did not validly waive his
right to testify.
Accordingly, the division affirms the district court’s denial of
the defendant’s Crim. P. 35(c) motion.
COLORADO COURT OF APPEALS 2018COA113
Court of Appeals No. 15CA1713
City and County of Denver District Court No. 86CR2489
Honorable Brian Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Eric Dwight Davis,
Defendant-Appellant.
ORDERS AFFIRMED
Division I
Opinion by JUDGE TAUBMAN
Welling and Davidson*, JJ., concur
Announced August 9, 2018
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Eric A. Samler, Hollis A. Whitson, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Eric Dwight Davis, appeals the district court’s
orders denying his Crim. P. 35(c) motion for postconviction relief.
We affirm.
I. Background
¶2 In 1986, when Davis was seventeen years old, he and Thomas
McGrath robbed the victim, McGrath’s former coworker. The victim
was transporting money to a bank from the restaurant at which he
and McGrath had worked. In the course of the robbery, the victim
was shot and killed.
¶3 Davis was charged with and convicted by a jury of first degree
murder after deliberation, felony murder, aggravated robbery,
aggravated motor vehicle theft, conspiracy to commit first degree
murder, and conspiracy to commit aggravated robbery. As required
by statute, the trial court sentenced him to life in the custody of the
Department of Corrections with the possibility of parole after forty
years (LWPP-40) on the murder after deliberation count.
Additionally, the trial court imposed a consecutive sentence of eight
years and one day on the aggravated robbery count. The sentences
imposed for the remaining counts were ordered to run concurrently
with the sentences to life plus eight years and a day.
1
¶4 On direct appeal, a division of this court concluded that the
trial court had erred in entering two murder convictions for the
death of the same victim. Thus, the division remanded to the trial
court to merge the felony murder conviction with the conviction for
murder after deliberation. People v. Davis, (Colo. App. No.
87CA0713, July 6, 1989) (not published pursuant to C.A.R. 35(f)).
In all other respects, the division affirmed.
¶5 In 2003, Davis filed a Crim. P. 35(c) motion.1 The district
court did not rule on that motion, but appointed Davis counsel at
his request. In 2013, Davis filed a second motion under Crim. P.
1 Davis filed this Crim. P. 35(c) motion over fourteen years after his
convictions were affirmed on appeal. However, the People do not
argue on appeal that his motion was time barred under Crim. P.
35(c)(3)(I). Moreover, the record does not indicate that the People
responded to Davis’s 2003 motion, much less that they argued it
was time barred. Thus, we need not consider any argument that
Davis’s motion was untimely. See People v. St. John, 934 P.2d 865,
866 (Colo. App. 1996) (agreeing with the defendant “that the People
ha[d] waived the time bar because they did not raise it in the trial
court” and noting that “failure to attack a conviction in a timely
manner does not implicate the jurisdiction of the courts to resolve a
defendant’s contentions”). In any event, under 16-5-402(1), C.R.S.
2017, there is no time limitation on Davis’s collateral attack on his
class 1 felony conviction. We would therefore consider the merits of
his collateral attack on his first degree murder conviction even
assuming his motion was time barred as to the other convictions.
2
35(a) and (c).2 The 2013 motion, as relevant here, raised three
claims: (1) the trial court erred in denying Davis’s motion to
suppress statements made during police interrogation, a renewal of
an argument he first raised in his 2003 motion; (2) Davis did not
validly waive his right to testify; and (3) Davis’s sentence violated
the Eighth Amendment to the United States Constitution.
¶6 In a series of three orders and following an evidentiary hearing
on Davis’s claim regarding his right to testify, the district court
denied Davis’s motion. The district court also denied Davis’s
request to reconsider one of those orders.
II. Standard of Review
¶7 The denial of a Crim. P. 35 motion is an issue of law we review
de novo. People v. Davis, 2012 COA 14, ¶ 6,
272 P.3d 1167, 1169.
To the extent we review the district court’s findings of fact, we defer
to those findings “so long as they are supported by the record.”
People v. Stovall,
2012 COA 7M, ¶ 18,
284 P.3d 151, 155.
2 Although his 2013 motion was captioned as one under Crim. P.
35(a) and (c), Davis does not make any argument on appeal specific
to Crim. P. 35(a). Instead, he focuses his argument on Crim. P.
35(c). In any event, the distinction between these provisions does
not affect our analysis.
3
¶8 With respect to the constitutional arguments raised in Davis’s
Crim. P. 35(c) motion, “we address the claims using the same
standards that would have applied had the issues been raised on
direct appeal.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007),
as modified on denial of reh’g (July 2, 2007).
¶9 At the outset, we note that Davis contends, the People
concede, and we agree that the district court erred in concluding
that any of his claims were procedurally barred by Crim. P.
35(c)(3)(VII) because Davis could have raised them on direct appeal.
When Davis filed his motion in 2003, that section had not yet been
added to Crim. P. 35(c). See Dunlap,
173 P.3d at 1062 n.4.
Therefore, that provision does not bar his claim, and we review his
contention on the merits.
III. Motion to Suppress
¶ 10 Davis contends that the trial court violated his constitutional
rights when it denied his motion to suppress statements he made
during police interrogation. We perceive no basis for reversal.
A. Additional Facts
¶ 11 Davis was arrested in Miami, Florida, about two weeks after
the murder. A Miami detective advised him of his rights under
4
Miranda v. Arizona, 384 U.S. 436 (1966), which he waived. During
the subsequent interrogation, Davis maintained that he had not
been at the scene of the murder and did not know that the victim
had been killed. Instead, he averred that McGrath had come to a
hotel at which Davis was staying and the two had decided to move
to Miami to start a business. Davis admitted that he and McGrath
had attempted to rob the victim about a week before the murder,
but stated that he had changed his mind and did not go through
with the plan. Before the Miami detective audio recorded any of
Davis’s statements, Davis asked to speak to a lawyer. The Miami
detective stopped the interrogation following that request.
¶ 12 A week later, Davis was transferred to the Denver jail. A
Denver detective went to the jail to speak with Davis. The detective
did not know that Davis had invoked his right to counsel while
speaking with the Miami detective.
¶ 13 When the Denver detective arrived at Davis’s cell, Davis
“indicated that he had been involved with quite a number of
different detectives and police personnel” and wanted to clarify the
Denver detective’s role. After the detective confirmed that he was
leading the homicide investigation, Davis asked whether McGrath
5
had been arrested. The detective told Davis that McGrath had been
arrested and had given a video-recorded statement. After Davis
asked what McGrath had said, the Denver detective responded that
he could not discuss the case until they reached the Denver Police
Department. Davis then indicated that he wanted to “tell . . . his
side of the story.”
¶ 14 After they arrived at the police headquarters, the detective
advised Davis of his Miranda rights, which he waived. Davis then
made video-recorded statements. He once again denied any
involvement in the murder, but admitted stealing the car the
shooters were seen driving (as well as other cars) and helping
McGrath buy the murder weapon.
¶ 15 Davis moved to suppress the statements made to the Denver
detective, arguing that the Denver detective had violated his right to
counsel by continuing the interrogation after he asked for an
attorney. Following a suppression hearing, the trial court denied
the motion. The trial court found that the statements were
admissible because Davis had voluntarily reinitiated the
interrogation by asking the Denver detective whether McGrath had
been arrested. The video of his interrogation with the Denver
6
detective was played to the jury at trial, and both the Miami and
Denver detectives testified.
¶ 16 With respect to this issue, the district court denied Davis’s
postconviction claim on procedural grounds because Davis could
have raised the suppression issue on direct appeal. See Crim. P.
35(c)(3)(VII). Thus, the district court did not address the claim on
the merits.
B. Standard of Review
¶ 17 In considering a trial court’s ruling on a motion to suppress,
we review questions of law de novo but defer to its findings of fact.
People v. Bradshaw, 156 P.3d 452, 455 (Colo. 2007).
¶ 18 We review preserved errors of constitutional dimension for
constitutional harmless error. Hagos v. People,
2012 CO 63, ¶ 11,
288 P.3d 116, 119. Under that standard, we will not reverse if the
error was harmless beyond a reasonable doubt.
Id. In assessing
whether the erroneous admission of a defendant’s statement was
harmless, “an appellate court should consider a number of factors,
including the importance of the statements to the prosecution’s
case, whether the statements were cumulative, and the overall
7
strength of the prosecution’s case.” People v. Melanson, 937 P.2d
826, 833 (Colo. App. 1996).
C. Applicable Law
¶ 19 The Fifth Amendment privilege against self-incrimination
includes the right to have counsel present during custodial
interrogation. Miranda, 384 U.S. at 470; see also People v.
Redgebol,
184 P.3d 86, 99 (Colo. 2008). When a suspect
unequivocally and unambiguously invokes his or her right to
counsel during interrogation, the police must scrupulously honor
that request and cease all interrogation until the suspect has
consulted with counsel or voluntarily reinitiates communication
with the police. See Edwards v. Arizona,
451 U.S. 477, 484-85
(1981); see also Redgebol,
184 P.3d at 99; Bradshaw,
156 P.3d at
457.
¶ 20 For a suspect to reinitiate communication, he or she must
“evince[] a willingness and a desire for a generalized discussion
about the investigation.” Oregon v. Bradshaw,
462 U.S. 1039,
1045-46 (1983). In contrast, the suspect’s comment or question
cannot constitute “merely a necessary inquiry arising out of the
incidents of the custodial relationship.”
Id. at 1046.
8
D. Analysis
¶ 21 Davis contends that his constitutional rights under the Fifth
Amendment were violated by the admission of his statements to the
Denver detective.
¶ 22 Even if we assume that the trial court erred in admitting
Davis’s statements to the Denver detective, we conclude that any
error was harmless beyond a reasonable doubt for the following
reasons.
¶ 23 First, Davis does not challenge the admissibility of his
statements to the Miami detective. The statements to the Denver
detective were partially duplicative of his statements made to the
Miami detective. To the extent the statements overlapped, any error
in admitting the Denver statements was harmless beyond a
reasonable doubt because the Miami statements were admissible in
any event.
¶ 24 Second, the statements were exculpatory as to the most
serious offenses. While Davis admitted to stealing the Camaro the
shooters were seen driving and attempting to rob the victim a week
before the shooting, he consistently denied any involvement in the
murder.
9
¶ 25 Third, as the People contend, the evidence against Davis on all
of the charges was overwhelming. According to an eyewitness’s
testimony, two men were riding in a blue Camaro on the morning of
October 27, 1986. They drove next to the victim’s car, a white
Corvette. Shots were fired from the passenger side of the Camaro
toward the driver of the Corvette. After the Corvette came to a stop,
the man in the passenger side of the Camaro ran to the Corvette,
leaned into the car, and ran back to the Camaro. The eyewitness
identified Davis as the Camaro passenger. A second eyewitness
also identified Davis as the man who had run from the Corvette to
the Camaro after the shooting.
¶ 26 The People also presented testimony from patrons of a fitness
center. Those witnesses’ testimony tended to show that McGrath
and a friend matching Davis’s description had stolen the blue
Camaro from the fitness center parking lot a week before the
murder. Further, numerous witnesses testified that they had seen
Davis and sometimes McGrath driving the stolen Camaro. A
witness testified that, shortly after the murder, he saw McGrath
throw an object into the Platte River from the passenger side of a
10
dark vehicle. The object was later confirmed to be the pistol that
had been used as the murder weapon.
¶ 27 Additionally, a former classmate of Davis testified that, about
an hour after the murder, she saw Davis and McGrath at Stapleton
Airport, where the witness worked as a ticket counter agent. Davis
showed the former classmate a wad of cash in his pocket, asked for
a ticket to Miami, and said that he and McGrath needed to leave
Colorado quickly. The People also called two witnesses with whom
Davis had stayed in Miami before his arrest. Both witnesses said
that Davis told them he had killed someone. The first witness
acknowledged that immediately after Davis admitted committing the
murder, he changed his statement and said that his friend had
killed someone.
¶ 28 Moreover, the defense stipulated to several key pieces of
evidence. The parties stipulated that Davis had used a borrowed
driver’s license to purchase the murder weapon two days before the
murder. They also stipulated that Davis’s fingerprints were found
in the blue Camaro, though the stipulation stated that Davis had
been in the Camaro numerous times before the date of the murder.
11
¶ 29 Accordingly, even if we assume the trial court erred in denying
Davis’s motion to suppress his statements to the Denver detective,
we conclude any error was harmless beyond a reasonable doubt in
light of the relative insignificance of the statements to the People’s
case and the substantial evidence of guilt.
IV. Waiver of the Right to Testify
¶ 30 Davis contends that reversal is required because he never
executed an on-the-record waiver of his right to testify. We
disagree.
A. Additional Facts
¶ 31 After the People rested, the trial court engaged in the following
exchange with Davis:
THE COURT: I’m going to read you some rights
that you have with regard to testifying. If you
don’t understand what I’m saying to you, say
so. I’ll try to explain it. All right. This is all on
the record.
THE DEFENDANT: Okay.
THE COURT: I want you to understand that
you have the right to testify. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: If you want to testify, no one can
stop you from doing so, not even your
12
attorney. And you can do so even if your
attorney advises you not to do so. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: All right. But if you do so, the
prosecution will be allowed to cross-examine
you. If you have been convicted of a felony,
the prosecutor will, A, be entitled to ask you
about it, and, B, that fact will thereby be
disclosed to the jury. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: Now, if the felony conviction is
disclosed to the jury, then the jury can be
instructed by the Court only that they can –
only that the conviction bears upon your
credibility as a witness. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: You are advised that you have
the right not to testify. If you do not testify,
the jury can be advised about that right, too,
which they have no business considering one
way or the other with regard to that. Do you
understand that?
THE DEFENDANT: I do.
THE COURT: Any questions?
THE DEFENDANT: No sir.
13
¶ 32 The prosecutor then asked the trial court if it would “inquire if
[Davis] ha[d] made up his mind” about testifying, to which the trial
court responded, “It’s none of my business.” The trial court further
advised Davis, “Do you understand if you do take the stand, I will at
this time find that you do take the stand having been advised of
your Curtis rights, . . . and that you do so knowingly and willfully,
okay?” Davis responded, “Yes.” The defense called one witness and
then rested. Davis did not testify.
¶ 33 In his 2013 Crim. P. 35(c) motion, Davis alleged generally that
he would show at an evidentiary hearing that he had wanted to
testify at trial. The district court granted his request for a hearing,
at which the People called Davis’s trial counsel as a witness. He
testified that he had no specific recollection of how he had advised
Davis twenty-eight years earlier as to the right to testify. However,
he testified that if he disagreed with clients who wished to take the
stand, he would generally do his “very best to dissuade them” but
would not “explicitly prohibit” a client from testifying in his or her
defense. He stated:
I’ve screamed at clients to try to persuade
them not to testify when they’ve wanted to
testify. I mean, it’s -- it’s often -- it’s quite
14
often a question that a defense attorney feels
very strongly about. So there would have to be
a pretty good tussle that goes on before the
client ultimately took the stand against my
advice.
Davis did not testify at the hearing or present any evidence.
¶ 34 The district court concluded that Davis had been adequately
advised of his right to testify and that the People had proved that he
knowingly, voluntarily, and intelligently waived that right.
B. Standard of Review
¶ 35 We review de novo whether a waiver of a constitutional right
was knowing, voluntary, and intelligent but defer to the trial court’s
findings of fact. See Sanchez-Martinez v. People, 250 P.3d 1248,
1254 (Colo. 2011) (reviewing validity of guilty plea); see also People
v. Hardin,
2016 COA 175, ¶ 39,
405 P.3d 379, 386 (deferring to
postconviction court’s determinations as to the “weight and
credibility to give to the testimony of witnesses at a Crim. P. 35(c)
hearing”).
C. Applicable Law
¶ 36 A criminal defendant has a right to testify in his or her own
defense under the Due Process Clauses of the United States and
15
Colorado Constitutions. U.S. Const. amend. XIV; Colo. Const. art.
II, § 25.
¶ 37 In People v. Curtis, the Colorado Supreme Court held:
A trial court exercising appropriate judicial
concern for the constitutional right to testify
should seek to assure that waiver is voluntary,
knowing and intentional by advising the
defendant outside the presence of the jury that
he has a right to testify, that if he wants to
testify then no one can prevent him from doing
so, that if he testifies the prosecution will be
allowed to cross-examine him, that if he has
been convicted of a felony the prosecutor will
be entitled to ask him about it and thereby
disclose it to the jury, and that if the felony
conviction is disclosed to the jury then the jury
can be instructed to consider it only as it bears
upon his credibility. In connection with the
privilege against self-incrimination, the
defendant should also be advised that he has a
right not to testify and that if he does not
testify then the jury can be instructed about
that right.
681 P.2d 504, 514 (Colo. 1984) (footnote omitted). Thus, as the
supreme court stated in Roelker v. People, “[t]he actual holding of
Curtis limits the trial judge’s responsibility to advising the
defendant of his right to testify and the consequences of doing so.”
804 P.2d 1336, 1338 (Colo. 1991). While the Curtis court noted
that “‘the best means of demonstrating the defendant’s state of
16
mind are his own declarations’ on the record,” 681 P.2d at 515
(quoting State v. Noble,
514 P.2d 460, 462 (Ariz. 1973)), the Roelker
court rejected the idea that “the dictum of Curtis mandates a rigid
requirement that the trial court question the defendant to
determine whether his waiver is truly voluntary,”
804 P.2d at 1339.
¶ 38 In People v. Blehm, the supreme court reaffirmed the need for
the five-part Curtis advisement, but modified the Curtis holding to
clarify that a defendant could bring a claim alleging invalid waiver
of his or her right to testify only in postconviction proceedings.
983
P.2d 779, 792 (Colo. 1999). The Blehm court further explained
that, in postconviction proceedings, “an evidentiary hearing is
available if necessary to ascertain facts not present in the original
trial record.”
Id. However, the court stated, “[w]here the trial
court’s on-the-record advisement includes the five essential Curtis
elements, the record conclusively demonstrates that the defendant
made a valid waiver of the right to testify.”
Id. Thus, under Blehm,
a defendant would not be entitled to an evidentiary hearing in those
cases in which he or she received an adequate Curtis advisement.
Id.
17
¶ 39 Recently, however, the supreme court modified the procedure
it had set forth in Blehm. In People v. Moore, the court clarified
that, despite statements to the contrary in Blehm, the adequacy of a
Curtis advisement is not dispositive of whether a defendant validly
waived his or her right to testify. 2014 CO 8, ¶¶ 22-28,
318 P.3d
511, 519-20. Thus, when
challenging under Crim. P. 35(c) the validity of
the waiver that appears in the trial court
record, the defendant, in order to obtain an
evidentiary hearing, must allege specific facts
that if proved at the hearing establish a prima
facie case that the waiver of the right to testify
was not knowing, voluntary, and intelligent.
Id. at ¶ 23, 318 P.3d at 519. If the defendant alleges sufficient facts
to warrant an evidentiary hearing, “the prosecution bears the
burden of demonstrating that [the] defendant’s waiver was knowing,
voluntary, and intelligent.”
Id.
¶ 40 At the evidentiary hearing, the parties may present any
evidence relevant to the issue of whether the defendant’s waiver was
knowing, voluntary, and intelligent, including evidence of “what the
defendant did or did not understand in waiving the right; what the
attorney did or did not say; and any other pertinent circumstances
18
relating to defendant’s condition at the time of the waiver.” Id. at
¶ 26, 318 P.3d at 520.
D. Analysis
¶ 41 Davis contends that the absence of an on-the-record waiver of
his right to testify mandates reversal. In response, the People
contend that the trial court gave Davis an adequate Curtis
advisement, and he has not presented any evidence that his implicit
waiver of his right to testify was not knowing, voluntary, or
intelligent. We agree with the People.
¶ 42 First, we disagree with Davis’s argument that the lack of an
on-the-record waiver mandates reversal. In support of his
contention, Davis relies on a footnote in Moore in which the court
stated, “If there is no record of defendant having waived the
fundamental right to testify, the court of appeals on direct review
may reverse the conviction and order a new trial.” ¶ 22 n.6, 318
P.3d at 519 n.6.
¶ 43 Contrary to Davis’s position, we conclude that that footnote is
not dispositive here. It is not clear that the footnote in Moore even
applies in this case given that Davis raised this claim in a
postconviction motion rather than on direct appeal. In any event,
19
we do not read that footnote as mandating that the trial court
expressly ask a defendant whether he or she waives the right to
testify after going through the Curtis litany. As the supreme court
first made clear in Curtis, the five-part advisement serves as a
safeguard to ensure that a defendant’s waiver of the right to testify
is voluntary, knowing, and intelligent. 681 P.2d at 514. Thus, the
advisement itself functions as the on-the-record waiver. As a
result, the trial court is not obligated to go beyond the advisement
and “ask the defendant personally, on the record, whether he
wishes to waive his right.”3 Roelker,
804 P.2d at 1338.
¶ 44 Further, we agree with the People that the record here shows
that Davis validly waived his right to testify. Davis does not dispute
that the trial court’s Curtis advisement was adequate. At the
evidentiary hearing, Davis presented no evidence to show that,
despite the proper Curtis advisement, his waiver was nonetheless
invalid. Although he claimed in his Crim. P. 35(c) motion that he
3 At the same time, nothing in People v. Curtis,
681 P.2d 504 (Colo.
1984), or its progeny prohibits a trial court from asking point blank
whether a defendant has chosen to waive his or her right to testify.
Thus, there is no legal support for the trial court’s assertion here
that it was “none of [its] business” whether Davis had waived his
right to testify.
20
would present evidence demonstrating that he had wanted to testify
at trial but was prevented from doing so, Davis did not testify at the
evidentiary hearing or present any other evidence to support that
claim. In contrast, the People presented the testimony of Davis’s
trial counsel, who stated that he would do his “very best” to
dissuade clients from testifying if he did not think it was in their
best interests, but also testified that he would not prevent clients
from taking the stand if they chose to do so.
¶ 45 Thus, we determine that the district court did not err in
concluding that Davis knowingly, voluntarily, and intelligently
waived his right to testify.
V. Constitutionality of the Sentence
¶ 46 Davis next contends that his sentence of LWPP-40 together
with a sentence of eight years plus one day is unconstitutional. He
makes several, somewhat related, arguments as to the
unconstitutionality of his sentences. We address and reject each in
turn.
A. Standard of Review
¶ 47 We review constitutional challenges to sentencing
determinations de novo. Lopez v. People, 113 P.3d 713, 720 (Colo.
21
2005), as modified on denial of reh’g (June 27, 2005). To the extent
Davis challenges the trial court’s discretionary sentencing
determination, “[a] trial court has broad discretion over sentencing
decisions, and will not be overturned absent a clear abuse of that
discretion.” Id.
B. Applicable Law
1. Juvenile Life Sentences
¶ 48 Within the last decade, the Supreme Court has addressed the
constitutionality of sentencing juveniles to life without parole
(LWOP) in three significant cases. First, in Graham v. Florida, the
Court held that juveniles convicted of nonhomicide offenses could
not constitutionally be sentenced to LWOP. 560 U.S. 48, 74 (2010).
The Graham Court cautioned that a state “is not required to
guarantee eventual freedom to a juvenile offender convicted of a
nonhomicide crime.” Id. at 75. However, the state must provide
such juveniles “some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” Id.
¶ 49 Second, in Miller v. Alabama, the Supreme Court extended
Graham, holding “that the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for
22
juvenile offenders” convicted of homicide. 567 U.S. 460, 479
(2012). As the Miller Court stated, “Mandatory [LWOP] for a juvenile
precludes consideration of his chronological age and its hallmark
features — among them, immaturity, impetuosity, and failure to
appreciate risks and consequences.”
Id. at 477; see also
id. at 465
(“Such a scheme prevents those meting out punishment from
considering a juvenile’s ‘lessened culpability’ and greater ‘capacity
for change . . . .’” (quoting Graham,
560 U.S. at 68, 74)).
¶ 50 Finally, in Montgomery v. Louisiana, the Court held that Miller
announced a substantive rule of constitutional law and applied its
holding retroactively.
577 U.S. ___, ___,
136 S. Ct. 718, 736 (2016).
2. Colorado Sentencing Scheme
¶ 51 Between 1985 and 1990, a class 1 felony was punishable by a
mandatory minimum sentence of life, which was defined by statute
as LWPP-40. § 18-1-105(4), C.R.S. 1985 (“As to any person
sentenced for a class 1 felony, for an act committed on or after July
1, 1985, life imprisonment shall mean imprisonment without the
possibility of parole for forty calendar years.”); see also § 18-1.3-
401(4)(a), C.R.S. 2017. That version of the statute did not
differentiate between adults and juveniles.
23
¶ 52 In 1991, the statute was amended to define a life sentence as
LWOP. § 18-1-105(4), C.R.S. 1991 (“As to any person sentenced for
a class 1 felony, for an act committed on or after July 1, 1990, life
imprisonment shall mean imprisonment without the possibility of
parole.”); see also § 18-1.3-401(4)(a), C.R.S. 2017. As with the prior
version, the 1991 version of the statute did not differentiate
between adults and juveniles.
¶ 53 In 2006, the legislature again amended the statute. Under
this version, a juvenile convicted of a class 1 felony committed on or
after July 1, 2006, must be sentenced to LWPP-40.4 § 18-1.3-
401(4)(b)(I) (“[A]s to a person who is convicted as an adult of a class
1 felony following direct filing of an information or indictment . . .
the district court judge shall sentence the person to a term of life
imprisonment with the possibility of parole after serving a period of
forty years . . . .”); see also § 18-1.3-401(4)(b)(II). In contrast, an
4 As Davis notes, the 2006 provision provides that a juvenile
convicted of a class 1 felony is eligible for parole “after serving a
period of forty years, less any earned time.” § 18-1.3-401(4)(b)(I),
C.R.S. 2017. The pre-1991 version did not provide for the grant of
earned time credit toward the mandatory forty-year period.
However, neither party here asserts that this difference between the
statutes is significant to its argument.
24
adult convicted of a class 1 felony must be sentenced to a
mandatory minimum of life imprisonment. § 18-1.3-401(1)(a)(V).
Thus, as the supreme court summarized, “Essentially, the
legislature went back to the 1985 definition of a life sentence, but
only for juveniles.” People v. Tate, 2015 CO 42, ¶ 34,
352 P.3d 959,
967, overruled on other grounds by Montgomery,
577 U.S. ___,
136
S. Ct. 718.
¶ 54 In the wake of Miller and Montgomery, the General Assembly
did not immediately act to remedy the unconstitutional sentences of
those juveniles sentenced to LWOP for class 1 felonies committed
between July 1, 1990, and June 30, 2006.5 Therefore, the supreme
court filled the legislative gap and held that, for such juveniles, “[i]f
the trial court should determine, after an individualized sentencing
process, that LWOP is not warranted, the appropriate sentence . . .
is life in prison with the possibility of parole after forty years.” Tate,
5 In 2016, the General Assembly enacted statutes to provide for a
lesser sentence for juveniles convicted of a class 1 felony for crimes
committed between 1990 and 2006. See § 18-1.3-401(4)(c), C.R.S.
2017; see also §§ 16-13-1001 to -1002, C.R.S. 2017. The new
statutes also provided for a lesser sentence of thirty to fifty years in
some circumstances for juveniles convicted of felony murder or
extreme indifference murder. See § 18-1.3-401(4)(c)(I)(A).
25
¶ 7, 352 P.3d at 963. The supreme court reasoned that LWPP-40
“is the sentence that was in place both before and after the
mandatory LWOP scheme . . . — that is, before 1990 and after
2006.”6
Id. Because Miller did not “go so far as to declare LWPP
unconstitutional as applied to juveniles,” the supreme court
concluded that LWPP-40 was “not only [an] appropriate sentence
but also a constitutional one.” Id. at ¶ 50,
352 P.3d at 970.
C. Analysis
1. Consecutive Sentences
¶ 55 Davis contends that his sentence is unconstitutional because
the trial court imposed consecutive sentences of LWPP-40 and eight
years and one day. We perceive no constitutional infirmity.
6 In People v. Tate, 2015 CO 42,
352 P.3d 959, overruled in part by
Montgomery v. Louisiana,
577 U.S. ___, ___,
136 S. Ct. 718, 736
(2016), the supreme court referred to the period in which
unconstitutional LWOP sentences were imposed on juvenile
offenders as between 1990 and 2006. As we note, the General
Assembly amended the relevant subsection of section 18-1-105 in
1991, but applied the amendment retroactively to class 1 felonies
committed on or after July 1, 1990. See Ch. 73, sec. 5, § 18-1-
105(4),
1991 Colo. Sess. Laws 404. The Tate court referred to this
amendment as the “1990 provision.” Because the statute was
amended in 1991, we refer to the “pre-1991” statutory scheme,
though we acknowledge that the 1991 amendment applied to
offenses committed on and after July 1, 1990.
26
¶ 56 To the extent Davis contends that the mandatory forty years of
his LWPP-40 sentence taken together with the mandatory eight
years and one day sentence constitutes a de facto LWOP sentence,
we conclude this argument has been foreclosed by the supreme
court’s decision in Lucero v. People, 2017 CO 49,
394 P.3d 1128.
There, the court held that “neither Graham nor Miller applies to an
aggregate term-of-years sentence.”7 Id. at ¶ 4,
394 P.3d at 1130.
Thus, even if a juvenile defendant is sentenced to multiple lengthy
term-of-years sentences, Graham and Miller do not apply because
term-of-years sentences are distinct from a sentence of LWOP.
Id.
¶ 57 To the extent that Davis argues that the trial court abused its
discretion as to the sentences imposed for the nonhomicide
charges, we similarly disagree. Davis contends that the trial court
was not required to order the eight years and one day sentence to
run consecutively to his LWPP-40 sentence. However, that
determination was within the broad discretion of the trial court, and
7 The People contend that Lucero v. People,
2017 CO 49,
394 P.3d
1128, completely forecloses Davis’s arguments that his sentence
violates the Eighth Amendment. However, we do not agree with the
People’s assertion that Lucero precludes a juvenile sentenced to
anything less than LWOP from raising a constitutional claim under
Graham or Miller.
27
we perceive no basis for disturbing that discretionary decision. See
Lopez, 113 P.3d at 720.
¶ 58 Davis further argues that the trial court abused its discretion
by not considering his youth in imposing consecutive sentences.
Contrary to this contention, the record reveals that the trial court
entertained defense counsel’s argument concerning Davis’s youth
and reviewed a written statement from Davis. The trial court
stated, “To be sure, what [defense counsel] says has some sense
with regard to the youth of the defendant.” Thus, we also disagree
with Davis’s argument on this point and perceive no abuse of
discretion on the trial court’s part.
2. Pre-1991 LWPP-40 Sentencing Scheme
¶ 59 Davis contends that his LWPP-40 sentence is unconstitutional
because it was imposed under a sentencing scheme that did not
differentiate between adults and juveniles convicted of class 1
felonies. We disagree.
¶ 60 Davis bases this contention on language in Miller, in which the
Supreme Court stated that a sentencing court must consider “youth
and its attendant characteristics” before sentencing a juvenile to
LWOP. 567 U.S. at 465. Davis thus urges us to extend the logic of
28
Miller, as well as Graham, and hold the pre-1991 LWPP-40
sentencing scheme unconstitutional because it did not require — or
even permit — sentencing courts to treat juveniles differently from
adults.
¶ 61 We conclude that this argument has been at least implicitly (if
not explicitly) rejected by the Colorado Supreme Court. In Tate, the
court concluded that LWPP-40 was a proper sentence for those
juveniles unconstitutionally sentenced to mandatory LWOP for
offenses committed between July 1, 1990, and June 30, 2006. ¶ 7,
352 P.3d at 963. The court acknowledged that LWPP-40 was the
mandatory sentence for juveniles convicted of class 1 felonies before
July 1, 1990. See
id. Davis correctly contends that the
constitutionality of the pre-1991 sentencing scheme was not
squarely before the Tate court. Nevertheless, the supreme court
implicitly concluded that the pre-1991 LWPP-40 sentencing scheme
was constitutional under Miller and rejected the argument that
LWPP-40 was unconstitutional because it was mandatory. Id. at
¶ 50,
352 P.3d at 970 (“Miller does not go so far as to declare LWPP
unconstitutional as applied to juveniles . . . .”). Thus, we disagree
with Davis’s contention that the pre-1991 LWPP-40 sentencing
29
scheme was unconstitutional because it applied equally to juveniles
and adults.
¶ 62 Davis nevertheless contends that, although a juvenile
convicted of first degree murder today would be sentenced to LWPP-
40, see § 18-1.3-401(4)(b)(I), it is constitutionally significant that
adults sentenced to first degree murder now receive a harsher
sentence of, at a minimum, LWOP, see § 18-1.3-401(1)(a)(V)(A.1)
(establishing life imprisonment as the minimum sentence for class
1 felony and death as maximum sentence). According to Davis,
Miller’s recognition that juveniles are different for sentencing
purposes is now included in Colorado’s sentencing scheme because
the current statutes “take into account the juvenile statu[s] by
providing for a lesser penalty.”
¶ 63 We perceive no constitutional significance in the current
statute’s differential treatment of adults. That adults convicted of
class 1 felonies today receive a harsher punishment than similarly
convicted juveniles does not affect the constitutionality of Davis’s
sentence.
¶ 64 Finally, we disagree with Davis’s related argument that the
imposition of a lengthy mandatory minimum sentence of forty
30
calendar years prior to his eligibility for parole violates the Eighth
Amendment. Again, we conclude this argument is foreclosed by our
supreme court’s analysis in Tate. As noted, the Tate court rejected
the argument that LWPP-40 was unconstitutional because it was
mandatory. ¶ 50, 352 P.3d at 970. The court raised no
constitutional concerns about the mandatory forty calendar years
imprisonment aspect of the LWPP-40 sentence. Thus, we conclude
that the imposition of an LWPP-40 sentence on juveniles is
constitutional under Miller and precedent from our supreme court.
3. Parole as Meaningful and Realistic Opportunity for Release
¶ 65 Davis finally contends that his LWPP-40 sentence is
unconstitutional because Colorado’s parole system does not provide
a meaningful and realistic opportunity for release.8 We again
disagree.
8As noted above, the People rely solely on Lucero to argue that
Graham and Miller do not apply to Davis’s sentence of LWPP-40. In
Lucero, the defendant argued that his aggregate term-of-years
sentences totaling eighty-four years amounted to de facto LWOP.
Lucero, ¶ 14, 394 P.3d at 1132. However, the supreme court’s
decision did not address whether Colorado’s parole system provided
a meaningful opportunity for release. Contrary to the People’s
argument, Lucero is not precedent for an issue not raised and not
decided. Thus, Lucero is not dispositive of Davis’s argument that
31
¶ 66 Davis cites several statutes and cases from other jurisdictions
in support of his position. As he asserts, several states have
enacted legislation enabling a juvenile sentenced to LWPP to seek
judicial review of his or her sentence after a certain number of
years. See, e.g., Fla. Stat. § 921.1402 (2017). In other states,
courts have held that their parole procedures do not comply with
the mandates of Graham and Miller because the parole system does
not provide a meaningful opportunity for release. See Hayden v.
Keller,
134 F. Supp. 3d 1000, 1011 (E.D.N.C. 2015)
(concluding that the “North Carolina parole review process for
juvenile offenders serving a life sentence violates the Eighth
Amendment”); Atwell v. State,
197 So. 3d 1040, 1041 (Fla. 2016)
(“We conclude that Florida’s existing parole system, as set forth by
statute, does not provide for individualized consideration of Atwell’s
juvenile status at the time of the murder, as required by Miller, and
that his sentence, which is virtually indistinguishable from a
sentence of life without parole, is therefore unconstitutional.”); see
the possibility of parole after forty years does not satisfy the
Supreme Court’s requirement that he be afforded a meaningful
opportunity for release from prison.
32
also Hawkins v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 30
N.Y.S.3d 397, 400 (N.Y. App. Div. 2016) (“For those persons
convicted of crimes committed as juveniles who, but for a favorable
parole determination will be punished by life in prison, the Board
must consider youth and its attendant characteristics in
relationship to the commission of the crime at issue.”) (citations
omitted). See generally Beth Caldwell, Creating Meaningful
Opportunities for Release: Graham, Miller and California’s Youth
Offender Parole Hearings,
40 N.Y.U. Rev. L. & Soc. Change 245
(2016) (recommending guidelines for “youth-specific parole
hearings”).
¶ 67 However, we conclude that Davis has not presented sufficient
evidence that Colorado’s parole system runs afoul of Graham or
Miller.
¶ 68 Colorado’s parole board is statutorily authorized to “consider
all applications for parole.” § 17-2-201(4)(a), C.R.S. 2017. In
considering offenders for parole, the board “shall consider the
totality of the circumstances,” including, among several other
enumerated considerations, “[a]ggravating or mitigating factors from
the criminal case.” § 17-22.5-404(4)(a)(VIII), C.R.S. 2017; see also
33
State Bd. of Parole Rule 5.00, 8 Code Colo. Regs. 1511-1 (setting
forth procedure for parole applications, interviews, and hearings,
and allowing offender to make statement during application
interview).
¶ 69 As a general rule, parole board decisions to grant or deny
parole are wholly within the board’s discretion and not subject to
judicial review. See People v. Dean, 2012 COA 106, ¶ 34,
292 P.3d
1066, 1074, aff’d,
2016 CO 14,
366 P.3d 593. However, an inmate
can seek judicial review of a parole board decision on the basis of
the board’s failure “to exercise its statutory duties.” In re Question
Concerning State Judicial Review of Parole Denial,
199 Colo. 463,
465,
610 P.2d 1340, 1341 (1980).
¶ 70 We conclude that, in the absence of evidence to the contrary,
Colorado’s parole system provides juveniles sentenced to LWPP-40 a
meaningful and realistic opportunity for release based on
“demonstrated maturity and rehabilitation.” Graham,
560 U.S. at
75. Based on our review of the factors the parole board must
consider when weighing an offender’s application, the board is
permitted to consider a juvenile’s youth at the time of the offense as
a mitigating circumstance. Further, the regulations promulgated by
34
the parole board allow an offender to present his or her case during
an application interview. Finally, although the parole board’s
decisions are usually immune to judicial review, an offender can
seek such review if the board abdicates its statutory duties. Davis
does not offer any evidence that the Colorado parole board has
failed or will fail to consider his youth when he committed his
offenses in considering his eligibility for parole.
¶ 71 In sum, we determine that Davis’s LWPP-40 sentence is not
rendered unconstitutional by virtue of the parole board’s discretion
to grant or deny parole in the future.
VI. Conclusion
¶ 72 Accordingly, the orders are affirmed.
JUDGE WELLING and JUDGE DAVIDSON concur.
35
