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                                                      ADVANCE SHEET HEADNOTE
                                                                    May 22, 2017

                                      2017 CO 50

No. 13SC408, People v. Rainer—Life without parole—Juveniles—Eighth
Amendment.

      The supreme court considers whether Graham v. Florida, 560 U.S. 48 (2010), and

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

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

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

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

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

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

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

2

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


5                                         2017 CO 50

6                            Supreme Court Case No. 13SC408
7                          Certiorari to the Colorado Court of Appeals
8                           Court of Appeals Case No. 10CA2414

9                                         Petitioner:
0                            The People of the State of Colorado,
1                                              v.
2                                        Respondent:
3                                    Atorrus Leon Rainer.

4                                    Judgment Reversed
5                                           en banc
6                                         May 22, 2017
7
8   Attorneys for Petitioner:
9   Cynthia H. Coffman, Attorney General
0   Rebecca A. Adams, Senior Assistant Attorney General
1    Denver, Colorado
2
3   Attorneys for Respondent:
4   Lord Law Firm, LLC
5   Kathleen A. Lord
6    Denver, Colorado
7
8   Ashley Ratliff Attorney at Law LLC
9   Ashley Ratliff
0    Denver, Colorado
1
2   Attorneys for Amicus Curiae Campaign for the Fair Sentencing of Youth:
3   Colorado Juvenile Defender Center
4   Hannah Seigel Proff
5    Denver, Colorado
6
1   Attorney for Amicus Curiae Colorado Criminal Defense Bar:
2   Philip A. Cherner
3    Denver, Colorado
4
5   Attorneys for Amicus Curiae Colorado Public Defender:
6   Douglas K. Wilson, Public Defender
7   Ryann S. Hardman, Senior Deputy Public Defender
8    Denver, Colorado
9
0   Attorneys for Amici Curiae Juvenile Law Center, Colorado Juvenile Defender Center,
1   Center for Children’s Law and Policy, Coalition for Juvenile Justice, National Center
2   for Youth Law, and Youth Law Center:
3   Juvenile Law Center
4   Marsha Levick
5    Philadelphia, Pennsylvania
6
7   Colorado Juvenile Defender Center
8   Hannah Seigel Proff
9    Denver, Colorado
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2   JUSTICE EID delivered the Opinion of the Court.
3   JUSTICE GABRIEL does not participate.



                                              2
¶1    In 2000, a jury convicted Atorrus Rainer 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 crime of violence. Rainer was seventeen at the time of the

charged offenses, and he was charged and tried as an adult. Upon the jury’s verdict,

the trial court sentenced Rainer to forty-eight years for each attempted murder charge,

thirty-two years for each assault charge, and thirty-two years each for the charges of

burglary and aggravated robbery.       The sentences for the two counts of attempted

murder were subsequently ordered to run concurrently, as were the sentences for the

two counts of assault, resulting in an aggregate sentence of 112 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, Rainer filed a motion with the district court arguing

that his aggregate term-of-years sentence is the functional equivalent of life without

parole and is therefore unconstitutional under Graham.         The district court denied

Rainer’s motion. On appeal, the court of appeals reversed the district court, holding

that, because Rainer will be eligible for parole at age seventy-five, and thus not eligible

for parole within his expected natural lifetime, his sentence denies him a “meaningful

opportunity to obtain release,” and is unconstitutional under Graham and the

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

II), 2013 COA 51, ¶ 38, __ P.3d __. The court concluded that Rainer must be resentenced




                                            3
in a manner consistent with the principles announced in Graham and Miller. Id. at

¶¶ 81–82.

¶3    We granted certiorari and now reverse. 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,

Rainer’s aggregate term-of-years sentence.

                                             I.

¶4    In 2000, when he was seventeen, Rainer and a companion burglarized an

apartment and stole a stereo. During the burglary, Rainer shot one of the home’s

inhabitants four times and another inhabitant three times, leaving both in critical

condition. Rainer was charged and tried as an adult, and a jury convicted him 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. Rainer was initially sentenced to a total of 224 years in

the custody of the Department of Corrections. On direct appeal, the court of appeals

affirmed his convictions, but ordered that the two sentences for attempted murder and

the two sentences for assault run concurrently rather than consecutively. See People v.

Rainer, No. 01CA1401, slip op. at 30–31 (Colo. App. Feb. 5, 2004). On remand, Rainer’s

aggregate sentence was reduced to 112 years.




1We also decide Armstrong v. People, 2017 CO 51, __ P.3d __, and Estrada-Huerta v.
People, 2017 CO 52, __ P.3d __.


                                             4
¶5    In 2010, the U.S. Supreme Court decided Graham v. Florida, 560 U.S. 48 (2010),

holding 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.

Rainer subsequently filed a motion for post-conviction relief in district court pursuant

to Rule 35(c)2 of the Colorado Rules of Criminal Procedure, arguing, in pertinent part,

that his aggregate sentence is unconstitutional under Graham because it is the

functional equivalent of a sentence of life without parole and denies him a meaningful

opportunity for release. The district court denied the motion.

¶6    Rainer appealed, and the court of appeals reversed the district court and vacated

Rainer’s sentence. Rainer II, ¶ 83. After first finding that Graham applies retroactively

and Rainer’s motion was timely and not successive, the court of appeals turned to the

merits of Rainer’s Graham claim. Id. at ¶¶ 13–35. The court noted that, according to

statistics in the record from the Centers for Disease Control and Prevention, Rainer’s life

expectancy is between sixty-three and seventy-two years, but he will not be eligible for

parole until he is seventy-five. Id. at ¶ 67. Citing what it found to be the “expansive

language” and “broad nature” of Graham, the court concluded that the opinion’s

holding and reasoning apply to any sentence that “denies a juvenile offender any

meaningful opportunity for release within his or her life expectancy” or fails to

recognize that juveniles are more capable of change than adults. Id. at ¶¶ 72–73. The

court then determined that Rainer’s 112-year sentence, with parole eligibility at age


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).


                                            5
seventy-five, is the “functional equivalent of life without parole,” and, therefore,

violates the Eighth Amendment under Graham and Miller. Id. at ¶¶ 67, 79. The court

concluded that Rainer must be resentenced in a manner consistent with the principles

announced in Graham and Miller. Id. at ¶¶ 81–82. In reaching its holding, the court of

appeals also declared that Graham renders the Eighth Amendment proportionality

analysis adopted by this court in Close v. People, 48 P.3d 528 (Colo. 2002), invalid as

applied to juvenile nonhomicide offenders. Rainer II, ¶ 68.

¶7       We granted certiorari3 and now reverse.

                                             II.

¶8       Rainer, 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, he

was sentenced to consecutive terms of years for six separate convictions, enhanced as

crimes of violence. As set forth in more detail in Lucero, we hold that Graham and

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

sentence. Accordingly, we reverse the court of appeals.4



3   We granted certiorari to review 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 attempted murder 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 attempted murder is a
nonhomicide offense under those decisions.


                                              6
JUSTICE GABRIEL does not participate.




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