1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
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6                                                         ADVANCE SHEET HEADNOTE
7                                                                       May 22, 2017
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9                                         2017 CO 51
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1   No. 13SC945, Armstrong v. People—Life without parole—Juveniles—Eighth
2   Amendment.
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4         The supreme court considers whether Graham v. Florida, 560 U.S. 48 (2010), and

5   Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences

6   imposed on juvenile defendants convicted of multiple offenses. For reasons discussed

7   at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, also

8   announced today, the supreme court holds that Graham and Miller do not apply to

9   aggregate term-of-years sentences imposed for multiple offenses. The supreme court

0   therefore holds that Graham and Miller do not apply to Armstrong’s aggregate term-of-

1   years sentence. Accordingly, the supreme court affirms the court of appeals.

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3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                           2017 CO 51

6                             Supreme Court Case No. 13SC945
7                           Certiorari to the Colorado Court of Appeals
8                            Court of Appeals Case No. 11CA2034

9                                           Petitioner:
0                                       Cheryl Armstrong,
1                                                v.
2                                          Respondent:
3                               The People of the State of Colorado.

4                                      Judgment Affirmed
5                                            en banc
6                                          May 22, 2017
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8   Attorneys for Petitioner:
9   MS&M Law Office
0   Nicole M. Mooney
1    Denver, Colorado
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3   Attorneys for Respondent:
4   Cynthia H. Coffman, Attorney General
5   Patricia R. Van Horn, Senior Assistant Attorney General
6   Joseph G. Michaels, Assistant Attorney General
7    Denver, Colorado
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9   Attorney for Amicus Curiae Colorado Criminal Defense Bar:
0   Philip A. Cherner
1    Denver, Colorado
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3   Attorneys for Amici Curiae Juvenile Law Center, Colorado Juvenile Defender Center,
4   Center for Children’s Law and Policy, Coalition for Juvenile Justice, National Center
5   for Youth Law, and Youth Law Center:
6   Juvenile Law Center
1   Marsha Levick
2    Philadelphia, Pennsylvania
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4   Colorado Juvenile Defender Center
5   Kim Dvorchak
6    Denver, Colorado
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2   JUSTICE EID delivered the Opinion of the Court.
3   JUSTICE GABRIEL concurs in the judgment.


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¶1    In 1995, a jury convicted Cheryl Armstrong of two counts of second-degree

murder under a complicity theory. Armstrong was sixteen at the time of the charged

offenses, and she was tried as an adult. The trial court sentenced her to forty-eight

years in prison on each count, to be served consecutively, resulting in an aggregate

sentence of ninety-six years in the custody of the Department of Corrections.

¶2    Following the U.S. Supreme Court’s decision in Graham v. Florida, 560 U.S. 48

(2010), which categorically banned sentences of life without parole for juveniles who

were not convicted of homicide, Armstrong filed a motion with the district court

arguing that her aggregate term-of-years sentence is the functional equivalent of life

without parole and is therefore unconstitutional under Graham. The district court

denied Armstrong’s motion. On appeal, the court of appeals affirmed, concluding that,

because Armstrong will be eligible for parole at about age sixty, she has a meaningful

opportunity to obtain release, and her sentence thereby complies with Graham and the

subsequent case of Miller v. Alabama, 132 S. Ct. 2455 (2012). People v. Armstrong

(Armstrong II), No. 11CA2034, slip op. at 7, 21–23 (Colo. App. Oct. 17, 2013).

¶3    We granted certiorari and now affirm the court of appeals, albeit on different

grounds. For reasons discussed at length in our lead companion case, Lucero v. People,

2017 CO 49, __ P.3d __, also announced today,1 we hold that Graham and Miller do not

apply to, and therefore do not invalidate, Armstrong’s aggregate term-of-years

sentence.


1We also decide People v. Rainer, 2017 CO 50, __ P.3d __, and Estrada-Huerta v.
People, 2017 CO 52, __ P.3d __.


                                            3
                                           I.

¶4    In April 1995, Armstrong drove two friends to the house of a former boyfriend

who she believed was expecting a child with someone else. Upon arriving, Armstrong

parked the car and stayed inside. Her friends got out and entered the house, where

they shot and killed the former boyfriend and his pregnant female companion.

Armstrong was sixteen at the time of the offenses, but she was tried as an adult for her

role. A jury found that Armstrong was complicit in the murders and convicted her of

two counts of second-degree murder.         The trial court sentenced Armstrong to

consecutive forty-eight-year sentences for each count, resulting in an aggregate sentence

of ninety-six years in the custody of the Department of Corrections. The court of

appeals affirmed Armstrong’s convictions on direct appeal. People v. Armstrong, No.

96CA0044 (Colo. App. Nov. 14, 1996).

¶5    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 offender who did not commit homicide.

Subsequently, in 2011, Armstrong filed a motion for post-conviction relief in district

court pursuant to Rule 35(c)2 of the Colorado Rules of Criminal Procedure. As relevant

here, she argued that her ninety-six-year sentence violates the Eighth Amendment

under Graham because it is a “virtual life sentence” and denies her a meaningful

opportunity for release. The district court denied the motion, and the court of appeals


2 Rule 35(c) of the Colorado Rules of Criminal Procedure allows a defendant to
challenge a conviction or sentence on constitutional grounds. See Crim. P. 35(c)(2)(I).


                                           4
affirmed, concluding that, because Armstrong will be eligible for parole at about age

sixty, she has a meaningful opportunity to obtain release and her sentence thereby

complies with Graham and Miller. Armstrong II, slip op. at 7, 21–23.

¶6       We granted certiorari3 and now affirm the court of appeals, albeit on different

grounds.

                                              II.

¶7       Armstrong, like the defendant in our lead companion case, Lucero v. People,

2017 CO 49, __ P.3d __, was not sentenced to life without the possibility of parole.

Instead, she was sentenced to two consecutive sentences of forty-eight years for two

separate convictions. As set forth in more detail in Lucero, we hold that Graham and

Miller do not apply to, and therefore do not invalidate, Armstrong’s aggregate term-of-

years sentence.4 Accordingly, we affirm the court of appeals.

JUSTICE GABRIEL concurs in the judgment.




3   We granted certiorari to consider the following issues:
         1. Whether the court of appeals erred by extending Graham v. Florida, 560
            U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), to
            invalidate a consecutive term-of-years sentence imposed on a juvenile
            convicted of multiple offenses.
         2. Whether a conviction for second degree murder under a complicity
            theory is a non-homicide offense within the meaning of Graham v.
            Florida, 560 U.S. 48 (2010).
4Because we conclude that Graham and Miller do not apply to aggregate term-of-years
sentences, we need not address the question of whether a conviction for second-degree
murder under a complicity theory is a nonhomicide offense under those decisions.


                                              5
JUSTICE GABRIEL, concurring in the judgment.

¶8    For the reasons set forth in my separate opinion in Lucero v. People, 2017 CO 49,

¶¶ 36–50, ___ P.3d ___ (Gabriel, J., concurring), I disagree with the majority’s

conclusion that the United States Supreme Court’s opinions in Graham v. Florida,

560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), are limited to cases in

which a juvenile offender receives the “specific sentence” of life without parole

(“LWOP”). Maj. op. ¶ 7. I believe, instead, that Graham and Miller apply to de facto

LWOP sentences.

¶9    I would further conclude, however, that even if, as Armstrong argues, a

conviction of second degree murder under a complicity theory is a nonhomicide

offense, she has not established that she, in fact, received a de facto LWOP sentence in

this case. Specifically, the record reflects that Armstrong will be eligible for parole at

about the age of sixty, which is within her natural life expectancy. Accordingly, under

Graham, 560 U.S. at 75, the State has given Armstrong “some meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.”

¶10   For these reasons, like the majority, I would affirm Armstrong’s sentence, albeit

on grounds different from those on which the majority relies.             Accordingly, I

respectfully concur in the judgment reached by the majority but not in its analysis of the

issue presented.




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