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People v. Tate

Supreme Court of Colorado, En Banc

June 1, 2015

The People of the State of Colorado, Petitioner,
v.
Michael Quinn Tate, Respondent. Tenarro Banks, Petitioner,
v.
The People of the State of Colorado, Respondent. Erik Brendan Jensen, Petitioner,
v.
The People of the State of Colorado, Respondent

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[Copyrighted Material Omitted]

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Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 07CA2467. Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 08CA105. C.A.R. 50 Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 12CA634, Douglas County District Court Case No. 98CR422. Honorable Richard Caschette, Judge.

Judgment Reversed in Part and Affirmed in Part. Judgment Reversed in Part and Affirmed in Part. Order Affirmed.

SYLLABUS

In this consolidation of three cases, the supreme court examines the appropriate remedies for defendants given sentences which would be unconstitutional under Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller held that it violates the Eighth Amendment to sentence juveniles to life without the possibility of parole (" LWOP" ) without first giving them individualized sentencing that takes into account their " youth and attendant characteristics." Under the statutory scheme in place between 1990 and 2006, all three defendants were given mandatory LWOP sentences for crimes committed as juveniles.

Two of the cases, Tate and Banks, come on direct review. Miller therefore applies, and renders their sentences unconstitutional. In order to preserve as much of the legislature's work as possible, Tate and Banks should be given individualized resentencing hearings that take into account their " youth and attendant characteristics." If the resentencing court determines LWOP is not warranted, the appropriate sentence is life with the possibility of parole after forty years (" LWPP" ). LWPP is appropriate in that instance because it was the sentence given both before 1990 and after 2006, and thus is what the legislature likely would have intended had they known about the subsequent constitutional rulings. The court therefore remands the cases for an individualized resentencing hearing to determine if LWOP is warranted. If LWOP is not warranted, LWPP should be imposed.

The third case, Jensen, is a C.A.R. 50 petition that comes on collateral review of a final judgment. Because it is on collateral review, the issue is whether Miller applies retroactively. Because the new rule from Miller is procedural, rather than substantive, and is not a " watershed" rule of procedure, it does not apply retroactively to cases on collateral review of a final judgment. It therefore does not apply to Jensen.

Attorneys for Petitioner The People of the State of Colorado: Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Petitioner Tenarro Banks: Samler & Whitson, P.C., Eric A. Samler, Denver, Colorado.

Attorney for Petitioner Erik Brendan Jensen: Alison Ruttenberg, Boulder, Colorado.

Attorneys for Respondent Michael Quinn Tate: Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado.

Attorneys for Respondent The People of the State of Colorado: Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Amici Curiae Colorado Juvenile Defender Coalition, Colorado Criminal Defense Bar, Office of the Colorado State Public Defender, National Partnership for Juvenile Services, International Community Corrections Association, and American Probation and Parole Association: Colorado Juvenile Defender Coalition, Elizabeth C. Logemann, Denver, Colorado.

Attorneys for Amicus Curiae Juvenile Law Center: Juvenile Law Center, Marsha Levick, Philadelphia, Pennsylvania; Samler & Whitson, P.C., Eric A. Samler, Denver, Colorado.

JUSTICE EID delivered the Opinion of the Court. CHIEF JUSTICE RICE concurs in part and dissents in part. JUSTICE HOBBS concurs in part and dissents in part. JUSTICE COATS concurs in part and dissents in part. JUSTICE HOOD concurs in part and dissents in part, and JUSTICE MARQUEZ joins in the concurrence in part and the dissent in part.

OPINION

Eid Justice.

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[¶1] We granted review in two cases to determine what remedy is appropriate for juvenile defendants who were given sentences that would be unconstitutional under the Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012). We granted review in a third case to determine whether that remedy applies retroactively.

[¶2] The first two cases come to us on direct appeal. Both defendants in those cases, Tenarro Banks and Michael Quinn Tate, were convicted in 2004 of class 1 felonies for acts committed when they were juveniles. Tate was convicted of felony murder for the stabbing death of a friend's father during a burglary when Tate was sixteen. People v. Tate, No. 07CA2467 (Colo.App. Sept. 13, 2012). Banks was convicted of first degree murder for shooting another teenager outside of a house party when he was fifteen. People v. Banks, 2012 COA 157, __ P.3d __.

[¶3] Under the sentencing scheme in place at the time, which governed offenses committed between 1990 and 2006, both Banks and Tate were given mandatory sentences to life in prison without the possibility of parole (" LWOP" ). While both cases were pending on appeal to the court of appeals, the Supreme Court released its opinion in Miller.

[¶4] Miller holds that it violates the Eighth Amendment's prohibition on cruel and unusual punishment to give a juvenile a mandatory LWOP sentence. Miller, 132 S.Ct. at 2460. While Miller did not categorically bar LWOP sentences for juveniles in all circumstances, it held that LWOP could not be imposed on a mandatory basis, and instead could be imposed only after an individualized sentencing process that takes into account the defendant's " youth and attendant characteristics." Id. at 2471. The Miller decision renders the Colorado statutory scheme for mandatory LWOP in place between 1990 and 2006 unconstitutional as applied to juveniles, including Tate and Banks.

[¶5] The question, then, becomes one of remedy. The legislature has not acted to adopt a new sentencing scheme in light of Miller. We therefore are presented with the situation in which the only sentence adopted by the legislature--LWOP--cannot be applied to the cases before us on direct appeal.

[¶6] In order to fill this gap, we take guidance from the U.S. Supreme Court, which cautions that we should " try not to nullify more of a legislature's work than is necessary." Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2005). See also Dallman v. Ritter, 225 P.3d 610, 638 (Colo. 2010) (" [W]e strike as little of the law as possible . . . ." ). Because Miller dictates that a juvenile cannot be sentenced to LWOP unless there is an individualized consideration of the defendant's " youth and attendant characteristics,"

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we conclude that the proper remedy in these two cases, in the absence of legislative action, is to remand for such a determination. A hearing on whether a LWOP sentence is appropriate considering the defendant's " youth and attendant characteristics" is the remedy that preserves as much of the legislature's work as possible given Miller's holding.

[¶7] If the trial court should determine, after an individualized sentencing process, that LWOP is not warranted, the appropriate sentence, again in the absence of legislative action, is life in prison with the possibility of parole after forty years (" LWPP" ). This is the sentence that was in place both before and after the mandatory LWOP scheme at issue in this case--that is, before 1990 and after 2006. We conclude that LWPP is the sentence that the legislature would have imposed had it known that LWOP could be imposed under Miller only after individualized sentencing, and that such individualized sentencing could lead to cases in which LWOP is unwarranted. We therefore find that this is the remedy that the " the General Assembly would have intended in light of our constitutional holding." People v. Montour, 157 P.3d 489, 502 (Colo. 2007).

[¶8] Accordingly, we affirm the panel's decision in Tate to remand the case to determine whether LWOP is an appropriate sentence under Miller, but reverse its decision to decline to give guidance as to the appropriate sentence if LWOP is unwarranted. We hold that if the trial court determines LWOP is not warranted, LWPP is the proper sentence. In Banks, we reverse the panel's decision to the extent that it imposed a LWPP sentence without a remand to consider whether LWOP is appropriate considering the defendant's " youth and attendant characteristics" under Miller, but affirm the decision to the extent that it imposes LWPP after the Miller determination. We remand both cases for further proceedings consistent with this opinion.

[¶9] The third case before us comes on collateral review, thus requiring us to consider whether the Miller remedy described above should be applied retroactively. Eric Brendan Jensen was convicted in 1998 of first degree murder for helping a friend kill the friend's mother and dispose of the body. He committed this crime when he was seventeen. Under the sentencing scheme in place at the time, described above, Jensen was given a mandatory sentence to LWOP. On direct appeal, the court of appeals affirmed the judgment. People v. Jensen, 55 P.3d 135, 141 (Colo.App. 2001). This court denied Jensen's certiorari petition, and the judgment became final. Jensen later filed two Crim. P. 35(c) motions for post-conviction relief, the second of which is at issue here. The trial court denied the motion, and Jensen appealed to the court of appeals. While that appeal was pending, the Supreme Court released Miller. Jensen filed a C.A.R. 50 petition with this court, asking us to review his sentence in light of Miller. We granted the petition for review.

[¶10] We hold that the new rule announced in Miller is procedural, rather than substantive, in nature, and that therefore it does not apply retroactively. See Schriro v. Summerlin, 542 U.S. 348, 351-53, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that procedural new rules are not applied retroactively). As the Supreme Court stated in Miller, " Our decision does not categorically bar a penalty for a class of offenders or type of crime . . . . Instead, it mandates only that a sentencer follow a certain process--considering an offender's youth and attendant characteristics--before imposing a particular penalty." 132 S.Ct. at 2471 (emphasis added). Because the Miller rule does not apply retroactively to cases on collateral review of a final judgment, it does not apply to Jensen. We therefore affirm the trial court's order denying his motion for post-conviction relief.

I.

A.

[¶11] We begin by addressing the facts and procedural posture that apply to Tate and Banks. We then turn to Jensen.

[¶12] In 2004, Tate was convicted of felony murder for the stabbing death of a friend's father during a burglary. Tate was sixteen at the time of the crime. The trial court

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sentenced him to LWOP, because it was the statutorily-mandated sentence for crimes committed between 1990 and 2006. While his appeal was pending before the court of appeals, the Supreme Court released Miller.

[¶13] On direct appeal, the court of appeals affirmed Tate's conviction in an unpublished opinion. Tate, No. 07CA2467. It also found that under Miller, Tate's LWOP sentence was unconstitutional because he did not receive an individualized sentence before being given LWOP. Tate, slip op. at 25. The court did not, however, invalidate any part of the statutory scheme. See id., slip op. at 21. Instead, it vacated the sentence and remanded the case for individualized resentencing to determine whether LWOP was warranted. Id., slip op. at 25. It also stated that if the trial court concluded on remand that LWOP was not warranted, " the parties are not restricted by this opinion in arguing for or against any other prison or parole terms." Id., slip op. at 26. The appellate court thus did not opine on what the trial court should do if it concludes that LWOP is not warranted under the circumstances. Finally, the court of appeals rejected the Attorney General's suggestion that Tate's sentence need not be vacated, but instead that he be given LWPP automatically. The court reasoned that such a remedy " goes further than Miller requires." Id., slip op. at 23.

[¶14] The People petitioned this court for review, arguing that Tate's sentence need not be vacated, but instead that he be given a sentence of LWPP by applying either the doctrine of revival or severance to the sentencing statutes. This court granted the People's petition for review.[1]

[¶15] In 2004, the trial court convicted Banks of first degree murder for the shooting death of a rival gang member outside of a house party. Banks was fifteen at the time of the crime. The trial court sentenced him to LWOP, because it was the statutorily-mandated sentence for crimes committed between 1990 and 2006. While his appeal was pending before the court of appeals, the Supreme Court released Miller.

[¶16] On direct appeal, the court of appeals affirmed Banks's conviction. It also found that under Miller, Banks's LWOP sentence was unconstitutional. The court's remedy, however, differed from the remedy in Tate. Relying on Colorado's general severability clause in section 2-4-204, C.R.S. (2014), the panel " restrict[ed] the applicability" of the offending portions of the statutes " to adult offenders." People v. Banks, 2012 COA 157, ¶ 127, P.3d . Reasoning that the General Assembly intended to give juvenile class 1 offenders the most serious sentence possible, and that LWPP was the most serious sentence available in the statutes, the court vacated the sentence to the extent it denied Banks parole, and gave instructions to automatically sentence him to LWPP. Banks, ¶ 128-31. In essence, the court of appeals in Banks adopted the remedy proposed by the Attorney General in Tate.

[¶17] Banks petitioned this court for review, arguing that the LWPP sentence was still unconstitutional under Miller because it was given mandatorily without individualized sentencing, and that the court of appeals exceeded its authority in its use of severability to arrive at the LWPP sentence. This court granted Banks's petition for review.[2]

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[¶18] Because the legislature has not acted to adopt a new sentencing scheme in light of Miller, we are confronted with the situation in which the only sentence adopted by the legislature--LWOP--cannot be applied to Tate and Banks. When presented with such a situation, the Supreme Court cautions that we should " try not to nullify more of a legislature's work than is necessary." Ayotte, 546 U.S. at 329. See also Dallman, 225 P.3d at 638 (" [W]e strike as little of the law as possible . . . ." ). Because Miller dictates that a juvenile cannot be sentenced to LWOP unless there is an individualized consideration of the defendant's " youth and attendant characteristics," we conclude that the proper remedy in these cases, in the absence of legislative action, is to remand for such a determination. Such a remedy preserves as much of the legislature's work as possible given Miller's holding.

[¶19] If, after performing an individualized sentencing process, the trial court should determine that LWOP is not warranted, the appropriate sentence, again in the absence of legislative action, is life in prison with the possibility of parole after forty years. This sentence was in place both before and after the mandatory LWOP scheme at issue in this case--that is, before 1990 and after 2006. We conclude that LWPP is the sentence that the legislature would have imposed had it known that LWOP could be imposed under Miller only after individualized sentencing, and that such individualized sentencing could lead to cases in which LWOP is unwarranted. See Montour, 157 P.3d at 502 (adopting the remedy that " the General Assembly would have intended in light of our constitutional holding." ).

[¶20] We thus affirm the Tate panel to the extent that it concluded that the proper remedy was a remand for individual consideration of the defendant's " youth and attendant characteristics" to determine whether LWOP is the appropriate sentence. The Tate panel took no position, however, on what sentence would be appropriate if LWOP is determined to be unwarranted. We reverse this portion of the decision and hold that, again in the absence of legislative action, if the trial court determines LWOP is not warranted after considering the defendant's " youth and attendant characteristics," the proper sentence is LWPP.

[¶21] In Banks, we reverse the panel's decision to the extent that it did not remand the case for determination of whether LWPP is warranted under Miller, but affirm the decision to the extent that it imposes LWPP after the Miller determination. We remand both Tate and Banks for further proceedings consistent with this opinion.

B.

[¶22] In 1998, the trial court convicted Jensen of first degree murder for helping a friend kill the friend's mother and dispose of the body. Jensen was seventeen at the time of the crime. The trial court sentenced him to LWOP, because it was the statutorily-mandated sentence for such crimes committed between 1990 and 2006. On direct appeal, the court of appeals affirmed the conviction. Jensen, 55 P.3d at 141. This court denied Jensen's petition for certiorari, and the judgment became final.

[¶23] Jensen later filed a collateral Crim. P. 35(c) motion for post-conviction relief which alleged ineffective assistance of counsel. The trial court denied the motion. Jensen appealed, and the court of appeals affirmed the trial court's decision. People v. Jensen, No. 05CA0864 (Colo.App. Mar. 8, 2007). Once again, this court denied Jensen's petition for certiorari.

[¶24] Several years later, the Supreme Court released Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Jensen filed another post-conviction motion which argued that Graham rendered his sentence unconstitutional. The trial court denied the motion. Jensen appealed to the court of appeals. While that appeal was pending, the Supreme Court released Miller. Jensen then filed a C.A.R. 50 petition which asked this court to grant review in order to analyze the constitutionality of his sentence under Miller. This court granted his C.A.R. 50 petition,[3] and stayed his petition before the court of appeals.

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[¶25] The question presented is whether Miller should be applied retroactively to cases such as Jensen's on collateral review of a final judgment.[4] We hold that Miller is not retroactive. Generally, new procedural rules are not applied retroactively. Schriro, 542 U.S. at 352. The Miller rule is procedural, rather than substantive, because it does not bar the imposition of a LWOP sentence on a juvenile, but rather requires that a " certain process" be followed before a juvenile may be sentenced to LWOP. Miller, 132 S.Ct. at 2471. Because the new rule announced in Miller is procedural in nature, it does not apply to cases on collateral review of a final judgment such as Jensen's. Accordingly, we affirm the trial court's order denying Jensen post-conviction relief.

II.

[¶26] Tate and Banks involve the application of Miller to Colorado's sentencing scheme as it existed from 1990 to 2006. It is therefore necessary to discuss both the Miller opinion and Colorado's statutory scheme in some detail.

[¶27] In Miller, the Supreme Court held that " the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller, 132 S.Ct. at 2469. The Court's analysis started with its understanding that the " central" principle of the Eighth Amendment's ban on cruel and unusual punishment is proportionality. Id. at 2463. The Court traced this proportionality principle through two strands of precedent, and found that both strands coalesced in the case before it. Id.

[¶28] The first strand involves categorical bans on specific punishments for specific classes of offenders--for instance, barring a sentence of life without the possibility of parole for juveniles who commit nonhomicide offenses, Graham, 560 U.S. at 74, or barring the death penalty for juveniles, Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). This strand applies to juveniles because they are different from adults in their " diminished culpability and greater prospects for reform." Miller, 132 S.Ct. at 2464. As a class, they are therefore " less deserving of the most severe punishments." Id. (quoting Graham, 560 U.S. at 68.).

[¶29] The second strand prohibits the mandatory imposition of the death penalty. Id. at 2463. Those cases require an individualized sentencing process, where the sentencer must " consider the characteristics of a defendant and the details of his offense before sentencing him to death." Id. at 2463-64. Miller found that this strand applies to juveniles with LWOP because, as with the death penalty, " [i]mprisoning an offender until he dies alters the remainder of his life 'by a forfeiture that is ...


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