People v. Ellis
| Decision Date | 13 August 2015 |
| Docket Number | Court of Appeals No. 12CA1546 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jordan Lee ELLIS, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Mallika L. Magner, Boulder, Colorado, for Defendant–Appellant.
Opinion by JUDGE TAUBMAN
¶ 1 Defendant, Jordan Lee Ellis, appeals his judgment of conviction and sentence entered on a jury verdict finding him guilty of first degree murder—extreme indifference, second degree murder with the use of a deadly weapon, criminal attempt to commit first degree murder, extreme indifference with the use of a deadly weapon, and illegal discharge of a weapon. We affirm the judgment, vacate the sentence, and remand for a determination of Ellis's life expectancy and whether his sentence leaves him a meaningful opportunity for release and for correction of the mittimus.
¶ 2 Ellis was seventeen years old when he shot and killed C.H. and wounded N.A. from the backseat of his friend's car. Frank Miller and A.J. Nelson, two military veterans who had recently returned from the conflicts in Afghanistan and Iraq, accompanied Ellis on the night of the shooting. Miller hosted a party that night, which Nelson and Ellis attended. At one point, Miller received a phone call. Whatever was said on the call made Miller very angry. He walked into his room, grabbed his gun, and Nelson and Ellis followed him from the party and into his car.
As the three approached a nearby shopping center, Miller handed Ellis his gun and told him that he had to shoot someone that night in order to be initiated into Miller's gang. Miller then ordered Ellis to shoot the first person he saw. As the two victims came into view, Ellis stuck the gun out of the truck's window and pulled the trigger, killing C.H. and wounding N.A.
¶ 3 At trial, the defense presented substantial evidence of Ellis's adverse upbringing to argue that Ellis could not form the requisite intent to commit first degree murder. That evidence included testimony that his mother had abandoned him when he was two years old, leaving him with his biological father who disputed paternity; his father, who was a bipolar alcoholic and drug user, physically abused him for years until the father was imprisoned; he had various learning disabilities; his mother returned to his life only to die suddenly thereafter; and he had been hospitalized recently for suicidal ideations and distress.
¶ 4 The defense's theory, supported by psychological expert testimony, was that Ellis's troubled upbringing hampered his mental development, causing him to suffer extreme highs and lows in emotional expression, rage, anger, and emotional deregulation. The expert also opined that Ellis suffered from reactive attachment disorder, which caused him to fear authority and persistently seek acceptance from those around him. The defense asserted that Ellis viewed Miller and Nelson as the family he desperately needed, making him unduly susceptible to their demands.
¶ 5 The expert concluded that, at the time of the shooting, Ellis was in a state of terror and fear, which caused him to reflexively shoot C.H. and N.A.
¶ 6 The jury acquitted Ellis of first degree murder after deliberation, but convicted him of first degree murder—extreme indifference of C.H.; second degree murder with the use of a deadly weapon of C.H.; criminal attempt to commit first degree murder of N.A.; extreme indifference with the use of a deadly weapon; and illegal discharge of a weapon. Acknowledging "the cruelty [Ellis] suffered as a child," the trial court sentenced Ellis to life with the possibility of parole after forty years on the first degree murder conviction and a thirty-two-year consecutive sentence for the attempted first degree murder—extreme indifference conviction.
¶ 7 Ellis contends that his sentence to life with the possibility of parole after a minimum of forty years imprisonment, together with his mandatory consecutive term of thirty-two years imprisonment is the equivalent of life without the possibility of parole. He argues that his sentence is unconstitutional because it was imposed without consideration of the factors set forth in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We conclude that the trial court did not consider Ellis's "youth and attendant characteristics," as is now required by Miller and People v. Tate, 2015 CO 42, ¶ 6, 352 P.3d 959.1 Following other divisions of this court in People v. Rainer, 2013 COA 51, ¶ 21, 412 P.3d 520 (cert. granted Dec. 22, 2014); People v. Lucero, 2013 COA 53, ¶ 2, 410 P.3d 467 (cert. granted Dec. 22, 2014); and People v. Lehmkuhl, 2013 COA 98, ¶ 13, 369 P.3d 635 (cert. granted Dec. 22, 2014), we further conclude that his sentence would constitute a de facto life sentence without the possibility of parole if it leaves him without a meaningful opportunity for release. However, because Ellis's contention depends on a factual determination of his life expectancy, which the trial court did not previously conduct, we remand to the trial court to determine Ellis's life expectancy and for further related proceedings.
¶ 8 We review de novo the constitutionality of a trial court's sentencing determination. People v. Wilder, 2015 COA 14, ¶ 10, 412 P.3d 686.
¶ 9 The Eighth Amendment prohibits "cruel and unusual punishments," U.S. Const. amend. VIII, and "guarantees individuals the right not to be subjected to excessive sanctions," Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The Supreme Court has explained that "[t]hat right ... flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense." Miller, 567 U.S. at 469, 132 S.Ct. at 2463 (internal quotation marks omitted).
¶ 10 In recent years, the Supreme Court has decided several cases under the precept that "children are constitutionally different from adults for purposes of sentencing." Id. at 471, 132 S.Ct. at 2464.
¶ 11 First, in Roper v. Simmons, the Court held that the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty for juvenile offenders. 543 U.S. at 578, 125 S.Ct. 1183.
¶ 12 Next, in Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Supreme Court held that the Eighth Amendment categorically prohibits sentencing juveniles convicted of nonhomicide crimes to life imprisonment without the possibility of parole
¶ 13 Next, in Miller v. Alabama, the Supreme Court extended its ruling in Graham, holding that the Eighth Amendment prohibits mandatory life sentences without the possibility of parole for juveniles convicted of homicide. 567 U.S. at 478–80, 132 S.Ct. at 2469. Although Miller does not categorically prohibit the imposition of life without the possibility of parole for juvenile offenders, it requires courts to consider certain factors before sentencing juveniles to life without parole. Id. As the Colorado Supreme Court has explained, Miller requires that sentencing courts consider a defendant's "youth and attendant characteristics." Tate, ¶ 6, 352 P.3d at 962 (internal quotation marks omitted). Specifically, sentencing courts must consider "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller, 567 U.S. at 478–80, 132 S.Ct. at 2469. However, the Court warned that given "children's diminished culpability and heightened capacity for change ... appropriate occasions for sentencing juveniles to [life without parole] will be uncommon." Id.
¶ 14 In Rainer, ¶ 21, 412 P.3d at 525, a division of this court applied Graham and concluded that consecutive sentences for nonhomicide crimes, including two counts of attempted first degree murder, could amount to the de facto equivalent of an unconstitutional life without parole sentence. The defendant in Rainer had received an aggregate sentence of 224 years imprisonment for two counts of attempted first degree murder, two counts of first degree assault, one count of first degree burglary, and one count of aggravated robbery, committed while he was seventeen years old. Id. Because he would first be eligible for parole after his life expectancy, as determined by the trial court, the division held that his aggregate sentence was the functional equivalent of a life without parole sentence, and therefore unconstitutional under Graham . Id. at ¶¶ 38, 66, 412 P.3d at 527, 533–34.
¶ 15 In two subsequent published cases, divisions of this court have applied the holding in Graham to circumstances where a juvenile's consecutive sentences for nonhomicide offenses arguably amounted to a de facto life sentence. Those divisions followed Rainer, but concluded that, considering the defendants' life expectancy and the sentences imposed, the defendants had a reasonable possibility of parole during their life expectancy. Lehmkuhl, ¶ 13, 369 P.3d at 637 (); Lucero, ¶ 2, 410 P.3d at 468 ().
¶ 16 In Tate, the Colorado Supreme Court considered the appropriate remedy for juveniles sentenced to mandatory life without the possibility of parole under the statutory sentencing guidelines for class one felonies in effect between 1990 and 2006, which Miller rendered unconstitutional. ¶ 33, 352 P.3d at 967. It concluded that if, after considering the defendant's "youth and attendant...
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