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

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,

(2010), and Miller

v. Alabama,

(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

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,

(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,

,

.

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,

, ¶ 18,

.

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,

(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,

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,

(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,

(Colo. 2007).

¶ 18 We review preserved errors of constitutional dimension for

constitutional harmless error. Hagos v. People,

,

. Under that standard, we will not reverse if the

error was harmless beyond a reasonable doubt.

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,

(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,

; see also People v.

Redgebol,

(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,

(1981); see also Redgebol,

; Bradshaw,

.

¶ 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,

(1983). In contrast, the suspect’s comment or question

cannot constitute “merely a necessary inquiry arising out of the

incidents of the custodial relationship.”

.

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,

(Colo. 2011) (reviewing validity of guilty plea); see also People

v. Hardin,

,

(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.

(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.”

(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,”

(quoting State v. Noble,

(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,”

.

¶ 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.

(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.”

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.”

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.

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.

,

. 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,

. 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.”

¶ 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,

.

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,

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.

. 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,

.

¶ 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,

(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,

(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.”

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.

, 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.

(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.”

; see also

(“Such a scheme prevents those meting out punishment from

considering a juvenile’s ‘lessened culpability’ and greater ‘capacity

for change . . . .’” (quoting Graham,

)).

¶ 50 Finally, in Montgomery v. Louisiana, the Court held that Miller

announced a substantive rule of constitutional law and applied its

holding retroactively.

, ___,

(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,

,

, overruled on other grounds by Montgomery,

,

.

¶ 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,

. 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

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,

.

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,

,

, overruled in part by Montgomery v. Louisiana,

, ___,

(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),

. 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,

,

.

There, the court held that “neither Graham nor Miller applies to an

aggregate term-of-years sentence.”7 Id. at ¶ 4,

.

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.

¶ 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,

,

, 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,

.

¶ 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.

. 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,

. The court acknowledged that LWPP-40 was the

mandatory sentence for juveniles convicted of class 1 felonies before

July 1, 1990. See

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,

(“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,

. 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,

. 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.,

(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,

(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,

(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,

(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,

(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,

,

, aff’d,

,

. 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,

,

465,

, 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,

. 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