People v. Rainer, 10CA2414

• Citation: 412 P.3d 520
• Decision Date: 11 April 2013
• Docket Number: No. 10CA2414,10CA2414
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Atorrus Leon RAINER, Defendant–Appellant.
• Court: Court of Appeals of Colorado

412 P.3d 520

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Atorrus Leon RAINER, Defendant–Appellant.

No. 10CA2414

Colorado Court of Appeals, Div. VI.

Announced April 11, 2013
Rehearing Denied May 9, 2013

John W. Suthers, Attorney General, Rebecca A. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Ashley Ratliff Attorney at Law, LLC, Ashley Ratliff, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE LOEB

¶ 1 Defendant, Atorrus Leon Rainer, appeals the trial court's order denying his Crim. P. 35(c) motion, which argued that his 112–year sentence is unconstitutional, pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). As a matter of first impression, we conclude that, under the circumstances here, Rainer's aggregate sentence is functionally a life sentence without parole and, thus, constitutes cruel and unusual punishment under the Eighth Amendment. Accordingly, we reverse the order, vacate the sentence, and remand for resentencing.

I. Procedural History and Background

¶ 2 In 2000, when he was seventeen years old, Rainer burglarized an apartment, stealing a stereo. During the incident, he shot two victims multiple times with a handgun, seriously injuring them and leaving them in critical condition. Rainer was arrested and was charged and tried as an adult in the district court, pursuant to Ch. 283, sec. 1, § 19–2–517(1)(a)(II)(A), 1996 Colo. Sess. Laws 1640.

¶ 3 Following a jury trial in 2001, as pertinent here, the jury found Rainer guilty of two counts of attempted first degree murder, two counts of first degree assault, one count of first degree burglary, one count of aggravated robbery, and sentence enhancement counts for crimes of violence.

¶ 4 At the sentencing hearing, the parties agreed that Rainer was subject to mandatory statutory sentencing requirements under the then applicable statutory framework for crimes of violence, with a sentencing range of 72 to 224 years. Rainer's counsel argued for the minimum sentence under the statutory sentencing range (72 years) based on Rainer's age, low IQ, learning disability, and family situation. The prosecution asked the court to impose the maximum allowed aggregate sentence of 224 years. After hearing argument and statements from the victims and their family members, the trial court

412 P.3d 523

sentenced Rainer to the Department of Corrections for the maximum sentences statutorily allowed: 48 years for attempted first degree murder of each victim, 32 years for first degree assault of each victim, 32 years for first degree burglary, and 32 years for aggravated robbery. The court ordered the sentences to run consecutively for a total prison term of 224 years, reasoning that this was the appropriate sentence given that Rainer had used a deadly weapon to inflict serious lifetime injuries on the victims.

¶ 5 Rainer filed a direct appeal, and in 2004, a division of this court affirmed the convictions but vacated the consecutive sentences for the first degree assault and attempted murder convictions, remanding with directions to impose concurrent rather than consecutive terms on those counts. People v. Rainer, (Colo.App. No. 01 CA 1401, Feb. 5, 2004) 2004 WL 1120876 (not published pursuant to C.A.R. 35(f) ). The mandate issued on June 13, 2004. On remand, the trial court resentenced Rainer for these counts to run concurrently rather than consecutively, and, consequently, reduced Rainer's original sentence of 224 years to 112 years. Also on remand, Rainer filed a motion for reconsideration of sentence and modification of mandatory sentence for a violent crime, which the trial court denied.

¶ 6 In January 2005, Rainer filed a motion for postconviction relief pursuant to Crim. P. 35(a) and (c), arguing that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The trial court denied the motion without a hearing. Rainer appealed, and a division of this court dismissed the appeal as untimely filed.

¶ 7 Rainer then filed a Crim. P. 35(c) motion for postconviction review of the trial court's denial of his motion to suppress statements. The trial court summarily denied the motion, and, on appeal, a division of this court affirmed. People v. Rainer, (Colo.App. No. 06CA1765, Feb. 28, 2008) 2008 WL 525686 (not published pursuant to C.A.R. 35(f) ).

¶ 8 In 2008, Rainer filed a third motion for Crim. P. 35(c) postconviction relief, based on alleged ineffective assistance of counsel and various trial court errors. The trial court denied the motion on the basis that it did not have jurisdiction, because the mandate had not yet issued from Rainer's previous appeal. Rainer refiled this motion four months later after mandate had issued, and the trial court summarily denied it.

¶ 9 In March 2009, Rainer filed yet another motion for postconviction relief based on ineffective assistance of counsel, which the trial court denied. On appeal, a division of this court affirmed, holding that Rainer's ineffective assistance of counsel claims were successive. People v. Rainer, (Colo.App. No. 09CA0071, Feb. 11, 2010) 2010 WL 457332 (not published pursuant to C.A.R. 35(f) ).

¶ 10 In August 2010, after the Supreme Court's decision in Graham, Rainer filed another motion for postconviction relief pursuant to Crim. P. 35(c). He argued that, in light of Graham's newly established constitutional prohibition on sentences to life without parole for juvenile offenders who did not commit homicide, his 112–year sentence was unconstitutional. Specifically, Rainer asserted that his aggregate term-of-years sentence was the functional equivalent of a life sentence without the possibility of parole, and thereby constituted cruel and unusual punishment in violation of the Eighth Amendment, pursuant to Graham . The prosecution did not file a response to Rainer's motion.

¶ 11 In October 2010, the trial court denied the motion, ruling that Rainer was not entitled to relief under Graham for two reasons:

First of all, Defendant's sentence is not of the same nature as the sentence prohibited in Graham [life without parole for a nonhomicide juvenile]. Additionally, even if the Defendant's sentence was of the same nature of that discussed in Graham, he would still not be entitled to relief because the rule created in Graham will not be applied retroactively.

¶ 12 This appeal followed.

412 P.3d 524

II. Preliminary Issues

¶ 13 We first must address three interrelated preliminary issues before considering the merits of Rainer's constitutional claim: (1) whether Graham applies retroactively to Rainer's sentence; (2) whether Rainer's motion is time-barred under section 16–5–402, C.R.S.2012; and (3) whether his motion is successive under Crim. P. 35(c)(3)(VII). As discussed below, we conclude Graham applies retroactively to Rainer's sentence and that his Crim. P. 35(c) motion is neither time-barred nor successive.

A. Retroactivity

¶ 14 Rainer contends that the trial court erred in ruling that Graham does not apply retroactively to his sentence. We agree.

¶ 15 The summary denial of a Crim. P. 35(c) motion for postconviction relief without a hearing presents a question of law we review de novo. People v. Gardner, 250 P.3d 1262, 1266 (Colo.App.2010).

¶ 16 Rainer argued in his Crim. P. 35(c) motion that the rule announced in Graham should be applied retroactively to his sentence.¹ The trial court expressly rejected Rainer's argument.

¶ 17 In its ruling, the trial court relied on Edwards v. People, 129 P.3d 977, 980–83 (Colo.2006), which adopted the analytical framework for retroactivity set out in Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The trial court here stated:

According to Teague, [a] new constitutional rule[ ] of criminal procedure generally should not be applied retroactively to cases on collateral review unless (1) it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or (2) it requires the observance of "those procedures that are implicit in the concept of ordered liberty." [ 489 U.S. at 307, 109 S.Ct. 1060.]

The first exception is not relevant because the Graham holding does not decriminalize a particular type of conduct.

To fall within the second exception, a new rule must fulfill two criteria: (1) "infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction"; and (2) "the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Edwards, 129 P.3d at 987 (quoting Tyler v. Cain, 533 U.S. 656, 665, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ).

Here, Defendant's sentence in no way diminished the accuracy of his conviction or the fairness of the proceeding. Because the rule created in Graham does not fall into either one of the categories adopted in Teague, it should not be applied retroactively.

¶ 18 We disagree with the trial court's analysis. To the contrary, we conclude that Edwards does not control here because that case applies only to new constitutional rules of criminal procedure, and, in our view, Graham created a new...