2013 COA 53
Colo. Ct. App.2013Background
- Lucero appeals a Crim. P. 35(b) denial of a motion to reduce his aggregate 84‑year juvenile sentence.
- Convicted in 2008 for conspiracy to commit first‑degree murder, attempted first‑degree murder, and two counts of second‑degree assault; tried as an adult.
- Was 15 at the offenses and 17 at sentencing; sentences consecutive and aggravated as crimes of violence.
- Parole eligibility is set for age 57; defendant argued the sentence mirrors LWOP in practice.
- 2011 Crim. P. 35(b) motion argued Graham prohibits de facto LWOP for nonhomicide juvenile offenses; trial court denied.
- On appeal, the court holds the sentence provides a meaningful opportunity for release within the juvenile’s natural life.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the aggregate sentence a de facto LWOP under Graham? | Lucero argues the 84‑year term functions as LWOP for a juvenile. | Lucero contends the sentence is not LWOP because parole eligibility exists at 57. | Not LWOP; meaningful opportunity for release within natural life. |
| Does Graham require reversal when parole is available within a juvenile’s natural life? | Graham mandates a meaningful opportunity for release for juveniles facing nonhomicide offenses. | Parole eligibility at 57 satisfies Graham’s release opportunity. | Yes; parole within life expectancy satisfies Graham. |
Key Cases Cited
- Graham v. Florida, 560 U.S. 48 (U.S. (2010)) (prohibits LWOP for nonhomicide juvenile offenders; must provide release opportunity)
- Miller v. Alabama, 567 U.S. 460 (U.S. (2012)) (mandatory LWOP for juveniles in homicide cases violates Eighth Amendment)
- People v. Banks, 412 P.3d 417 (Colo. App. 2012) (applies Miller to juveniles; discusses lifetime term with parole possibility)
- Close v. People, 48 P.3d 528 (Colo. 2002) (Eighth Amendment challenge must apply to individual sentences)
- Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011) (case approving conditional release at a fixed age under Graham framework)
- Caballero v. California, 282 P.3d 291 (Cal. 2012) (strikes down de facto LWOP where parole eligibility is extremely remote)
- Kasic v. State, 265 P.3d 410 (Ariz. App. 2011) (reaffirms Graham limits on de facto LWOP for juveniles)
- Henry v. State, 82 So.3d 1084 (Fla. Dist. Ct. App. 2012) (distinguishes cases where release is possible within reasonable time)
- Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012) (reviews Graham applicability to nonhomicide juvenile offenses)
- Roper v. Simmons, 543 U.S. 551 (U.S. (2005)) (age-based immaturity and life prospects informing sentencing under Graham)