to the Colorado Court of Appeals Court of Appeals Case No.
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,
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
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.
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
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.
We granted certiorari and now affirm the court of
appeals. 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
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.
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.
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,
In July 2010, Lucero filed a motion for sentence reduction
pursuant to Rule 35(b) of the Colorado Rules of Criminal
Procedure. 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
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.
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. 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.
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. 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.
First, we consider whether Graham and
Miller apply to aggregate term-of-years sentences
and conclude that they do not. 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.
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).
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.
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.
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, " 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
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.
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,
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 ...