People v. Tate

Citation2015 CO 42,352 P.3d 959
Decision Date01 June 2015
Docket NumberSupreme Court Case No. 12SC932, Supreme Court Case No. 13SC211, Supreme Court Case No. 12SC1022
PartiesThe 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.
CourtSupreme Court of Colorado

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

En Banc

Opinion

JUSTICE EID delivered the Opinion of the Court.

¶ 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, ––– U.S. ––––, 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, 2012 WL 4010238 (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 (2006) ; 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,” 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 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 petitione...

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