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Lucero v. State

Supreme Court of Colorado, En Banc

May 22, 2017

Guy Lucero, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA2030

          Attorneys for Petitioner: Hopkins Law LLC James W. Hopkins Loveland, Colorado Samler & Whitson PC Eric Samler Hollis Whitson Denver, Colorado.

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General John T. Lee, Assistant Attorney General Denver, Colorado

          Attorney for Amicus Curiae Colorado Criminal Defense Bar: Philip A. Cherner Denver, Colorado

          Attorneys for Amici Curiae Juvenile Law Center, Colorado Juvenile Defender Center, Center for Children's Law and Policy, and Coalition for Juvenile Justice: Juvenile Law Center Marsha Levick Philadelphia, Pennsylvania Colorado Juvenile Defender Center Kim Dvorchak Denver, Colorado

          OPINION

          EID JUSTICE.

         ¶1 At age fifteen, Guy Lucero was charged with multiple offenses arising from a drive-by shooting in a neighborhood in Denver. He was charged and tried as an adult. At trial in 2006, two witnesses identified Lucero as one of the shooters, and the jury convicted him of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault. The trial court sentenced Lucero to consecutive term-of-years prison sentences for each count, aggravated as crimes of violence, resulting in an aggregate sentence of eighty-four years in the custody of the Department of Corrections. The court of appeals affirmed Lucero's convictions and sentences on direct appeal.

         ¶2 In 2010, the U.S. Supreme Court held in Graham v. Florida, 560 U.S. 48 (2010), that the Eighth Amendment to the U.S. Constitution prohibits the imposition of a life without parole sentence on a juvenile nonhomicide offender, concluding that states must "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Subsequently, Lucero filed a motion pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure seeking reduction of his sentence. As relevant here, Lucero argued that his sentence must be reduced under Graham to meet constitutional standards, because an eighty-four-year sentence imposed on a juvenile carries the same implications as a sentence of life without parole. The trial court denied the motion following a hearing.

         ¶3 Lucero appealed the trial court's order, and the court of appeals affirmed. People v. Lucero (Lucero II), 2013 COA 53, ¶ 1, ___ P.3d ___. Treating his claim as one under Rule 35(c), id. at ¶ 5, the court held that Lucero's sentence was constitutional under both Graham and Miller v. Alabama, 132 S.Ct. 2455 (2012), reasoning that because Lucero would be eligible for parole at the age of fifty-seven, he has "'a meaningful opportunity for release' during his natural lifetime, " Lucero II, ¶ 12.

         ¶4 We granted certiorari and now affirm the court of appeals.[1] Taking a different approach than the court of appeals, we hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of "mandatory life without parole for those under the age of 18 at the time of their crimes" violates the Eighth Amendment. 132 S.Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole. Rather, he received multiple term-of-years sentences for multiple convictions. Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero's aggregate sentence. We also reject Lucero's argument that the court of appeals erred in treating his claim as one under Rule 35(c).

         I.

         ¶5 In the early hours of June 25, 2005, Lucero, then fifteen years old, arrived at a birthday party his cousin was throwing for her brother. The party was at a house in a neighborhood in Denver. Upon arriving, Lucero asked his cousin for alcohol, but she refused to serve him. Lucero, a North Side Mafia gang member, then turned to another party attendee, D.H., a Bloods gang member, and, calling him a "slob"-a derogatory term used to describe Bloods members-demanded to know why he was allowed to drink. Lucero was either ordered to leave the party or left of his own accord. Before leaving, Lucero warned that he would return with his father, also a member of the North Side Mafia.

         ¶6 Lucero and his father did return. Once they were back at the party, Lucero's father lured D.H. out of the house. When D.H. walked outside, a car drove by, firing shots. Four people were shot and sustained non-fatal injuries. D.H. was not among those shot.

         ¶7 Lucero was charged with three counts of criminal attempt to commit first-degree murder, one count of first-degree assault, two counts of second-degree assault, and three counts of crime of violence in connection with the shooting, and he was tried as an adult. The complaint was later amended to add a charge of conspiracy to commit first-degree murder. At trial in 2006 two witnesses identified Lucero as one of the shooters, and the jury convicted him of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault. The trial court sentenced him to term-of-years sentences for each count, aggravated as crimes of violence, to be served consecutively. Thus, Lucero received an aggregate sentence of eighty-four years in the custody of the Department of Corrections-thirty-two years each for the conspiracy and attempt charges, and ten years for each of the assault charges. The court of appeals affirmed Lucero's convictions and sentences on direct appeal. People v. Lucero, No. 07CA0774, slip op. at 1 (Colo.App. July 2, 2009).

         ¶8 In July 2010, Lucero filed a motion for sentence reduction pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure.[2] Lucero presented details of his difficult childhood, his mental health history, and a psychological evaluation in support of his motion. He also argued that, under Graham v. Florida, 560 U.S. 48 (2010), his aggregate sentence was the equivalent of a sentence of life without parole.

         ¶9 The trial court granted Lucero's request for a hearing on the motion. At the hearing, which proceeded by offer of proof, Lucero's counsel urged the court to consider Graham and argued that Lucero would die in prison before any meaningful opportunity for release. The court ultimately denied Lucero's motion. In a written order, the court acknowledged Lucero's age at the time of his offenses, but concluded that the court had taken Lucero's youth into "significant consideration" at the time of sentencing, and the sentences were appropriate due to the nature of the crimes and the court's reservations about whether Lucero had accepted full responsibility for his acts.

         ¶10 Lucero appealed, and the court of appeals affirmed the order. Lucero II, ¶ 1. First, the court of appeals noted the People's argument that Lucero's claim is unreviewable under Rule 35(b), but it declined to rule on the issue. Id. at ¶ 5. Instead, the court found review available under Rule 35(c)(2)(I), which allows for post-conviction review where a defendant alleges that a conviction or sentence violates the U.S. Constitution.[3] Id. Second, the court rejected Lucero's contention that his aggregate sentence constitutes cruel and unusual punishment and thus violates the Eighth Amendment under Graham and Miller. Id. at ¶ 1. The court found that Lucero has a "meaningful opportunity for release" because he will be eligible for parole at age fifty-seven, and the natural life expectancy of a person born the year of Lucero's birth is seventy-five years. Id. at ¶¶ 12-13.

         ¶11 Lucero petitioned this court to review the court of appeals' holding on the merits as well as its treatment of his Rule 35(b) appeal as a Rule 35(c) appeal. We granted certiorari.[4] We now hold that Graham and Miller do not apply to consecutive term-of-years sentences imposed for multiple convictions. Whereas the court of appeals upheld Lucero's sentence on the grounds that it complies with Graham by providing a "meaningful opportunity for release, " we conclude that Graham and Miller do not apply to, and therefore do not invalidate, Lucero's aggregate term-of-years sentence. We also hold that the court of appeals did not err when it treated his claim as one under Rule 35(c). Accordingly, we affirm the court of appeals.

         II.

         ¶12 First, we consider whether Graham and Miller apply to aggregate term-of-years sentences and conclude that they do not.[5] We then address whether the court of appeals erred in treating Lucero's claim as one under Rule 35(c), and conclude that it did not.

         A.

         ¶13 Lucero's claim that his sentence is unconstitutional under Graham and Miller is a constitutional challenge, which we review de novo. Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008).

         ¶14 Lucero argues that Graham and Miller apply to his aggregate sentence, both because eighty-four years is effectively a sentence of life without parole, and because the reasoning of the two cases must extend beyond the sentence of life without parole to govern lengthy, consecutive term-of-years sentences as well. We disagree.

         ¶15 Graham and Miller apply only where a juvenile is sentenced to the specific sentence of life without the possibility of parole for one offense. See Graham, 560 U.S. at 57, 63; Miller, 132 S.Ct. at 2461-63; see also Jackson v. State, 194 S.W.3d 757, 759 (Ark. 2004) (showing that Jackson, one of the two petitioners in Miller, was sentenced to life in prison on a capital murder conviction). In Graham, the petitioner had been sentenced by a Florida court to life imprisonment on a charge of armed burglary and to fifteen years on a charge of attempted armed robbery, offenses he committed at age sixteen, after he admitted to violating conditions of his probation. 560 U.S. at 53-57. Because Florida had abolished its parole system, the life sentence was a sentence of life without the possibility of parole. Id. at 57.

         ¶16 The U.S. Supreme Court in Graham first concluded that the sentence of life without parole is "a particular type of sentence" and juveniles "an entire class of offenders." Id. at 61. Accordingly, the Court followed a line of Eighth Amendment precedent barring certain punishments for groups of offenders, id. at 60-62, and established a categorical rule that, "for a juvenile offender who did not commit homicide[, ] the Eighth Amendment forbids the sentence of life without parole, "[6] id. at 74. To reach its decision, the Court examined "objective indicia of national consensus." Id. at 62. Citing its own research and a 2009 study that showed only 109 juveniles nationwide serving life without parole sentences solely for nonhomicide offenses, the Court found a national consensus against the sentencing practice. Id. at 62-67 (citing Paolo G. Annino, David W. Rasmussen & Chelsea Boehme Rice, Juvenile Life without Parole for Non-Homicide Offenses: Florida Compared to Nation 2 (Sept. 14, 2009) [hereinafter "Annino Study"]).

         ¶17 The Court then considered the culpability of the class of offenders and the severity of a life without parole sentence. Id. at 67. Reasoning that juveniles as a group are less mature, more vulnerable to peer pressure, and more capable of change than adults, the Court concluded that none of the recognized goals of penal sanctions justifies imposing "the second most severe penalty permitted by law, " a sentence of life without the possibility of parole, on juvenile nonhomicide offenders. Id. at 68-74. Thus, the Court ruled the sentencing practice unconstitutional. It limited its holding, however, by declaring that, while states must "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, " the Eighth Amendment "does not require [a] State to release [a juvenile] offender during his natural life" or to "guarantee eventual freedom." Id. at 75.

         ¶18 In Miller, the U.S. Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 132 S.Ct. at 2469. The petitioners in Miller had been convicted as juveniles of crimes for which the mandatory minimum punishment was life imprisonment without parole. Id. at 2461-63. Citing much of its reasoning in Graham on juveniles' lessened culpability, the Court ruled that "a judge or jury must have the opportunity to consider mitigating circumstances" such as age before sentencing a juvenile to life without parole. Id. at 2464-68, 2475. The Court did not categorically ban life sentences for juveniles with the possibility of parole, or life without parole where the sentencing authority considered an offender's youth and attendant circumstances. Id. at 2469, 2471, 2474-75.

         ¶19 Lucero, unlike the petitioners in Graham and Miller, did not receive a sentence of life without the possibility of parole. Rather, he received four consecutive sentences to terms of years for four separate convictions. Colorado has a parole system, and the parties agree that Lucero will be eligible for parole when he is fifty-seven. Thus, the eighty-four-year sentence Lucero now challenges is an aggregate term-of-years sentence. Multiple sentences imposed for multiple offenses do not become a sentence of life without parole, even though they may result in a lengthy term of incarceration. Life without parole ...


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