June 1, 2015
The People of the State of Colorado, Petitioner
Frank Vigil, Jr. Respondent
C.A.R. 50 to the Colorado Court of Appeals Court of Appeals Case No. 13CA2046 Jefferson County District Court Case No. 97CR1195 Honorable Tamara Russell, Judge
Attorneys for Petitioner: Peter A. Weir, District Attorney, First Judicial District Donna Skinner Reed, Chief Appellate Deputy District Attorney Golden, Colorado
Attorneys for Respondent: Nelson Colling Law LLC Stacie Nelson Colling Denver, Colorado
Attorneys for Amici Curiae Juvenile Law Center: Juvenile Law Center Marsha Levick Philadelphia, Pennsylvania
Colorado Juvenile Defender Coalition Kim Dvorchak Denver, Colorado
Attorneys for Amici Curiae District Attorneys for the Second and Eighteenth Judicial Districts: Mitchell R. Morrissey, District Attorney, Second Judicial District Robert J. Whitley, Chief Appellate Deputy District Attorney, Second Judicial District Denver, Colorado
George H. Brauchler, District Attorney, Eighteenth Judicial District L. Andrew Cooper, Chief Deputy District Attorney, Eighteenth Judicial District Centennial, Colorado
Robert J. Whitley, Chief Appellate Deputy District Attorney, Second Judicial District Denver, Colorado
Attorneys for Amicus Curiae Colorado Juvenile Defender Center: Colorado Juvenile Defender Center Kimberly E. Dvorchak Denver, Colorado
¶1 In this C.A.R. 50 petition, the People argue that the trial court erred in ruling that Miller v. Alabama, 132 S.Ct. 2455 (2012), applies retroactively to cases on collateral review of a final judgment. Arguing that his sentence was unconstitutional under Miller, defendant Frank Vigil Jr. filed a Crim. P. 35(c) motion for post-conviction relief of his final judgment. The trial court applied Miller retroactively and granted his motion.
¶2 This case is governed by today's decision in Jensen v. People, 2015 CO 42, ___ P.3d ___, which holds that Miller does not apply retroactively to cases on collateral review of a final judgment. Accordingly, Miller does not apply to Vigil. The decision of the trial court to grant Vigil's Crim. P. 35(c) motion is therefore reversed.
¶3 In 1997, the trial court convicted Vigil of first degree murder for his participation in the kidnapping, rape, torture, and murder of a 14-year-old girl. Vigil was sixteen at the time of the crime. The trial court sentenced him to life without the possibility of parole ("LWOP"), because it was the statutorily-mandated sentence for crimes committed between 1990 and 2006. See People v. Tate, 2015 CO 42, ¶¶ 32–34, ___ P.3d ___ (discussing the statutory scheme). On direct appeal, the court of appeals affirmed the conviction. People v. Vigil, No. 98CA0689 (Colo. App. July 29, 1999). This court denied Vigil's certiorari petition, and the judgment became final.
¶4 In 2013, Vigil filed a Crim. P. 35(c) motion for post-conviction relief, arguing that his sentence was unconstitutional under Miller. Finding that Miller applied retroactively to Vigil's sentence, the trial court granted the motion. The People then filed a petition with this court for review pursuant to C.A.R. 50, arguing that Miller does not apply retroactively. This court granted review.
¶5 Today we hold in Jensen that Miller does not apply retroactively to cases on collateral review of a final judgment. Because Vigil's judgment is final, and he is challenging that judgment on collateral review through a Crim. P. 35(c) motion, Miller does not apply.
¶6 We therefore reverse the trial court's decision to apply Miller retroactively to Vigil's collateral Crim. P. 35(c) motion.
¶7 For the reasons stated above, we reverse the trial court's granting of the Crim. P. 35(c) motion.
JUSTICE HOBBS joins in the dissent. JUSTICE BOATRIGHT does not participate.
JUSTICE HOOD, dissenting.
¶8 Today, in People v. Jensen, 2015 CO 42, ___ P.3d ___, this court held that the rule announced by the Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012), is procedural and, as a result, does not apply retroactively to cases on collateral review. In this case, the court says no more than it did in Jensen. Thus, for the same reasons I articulated in Jensen, I respectfully dissent here too. (In this case, it should be noted, however, that the People are represented by the District Attorney for the First Judicial District, who does not concede retroactivity, as the Attorney General did in Jensen.) Because the Miller rule is substantive, I would apply it retroactively to Vigil and affirm the trial court's order granting his Crim. P. 35(c) motion.
I am authorized to state that JUSTICE HOBBS joins in this dissent.