     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 9, 2018

                               2018COA113

No. 15CA1713, People v. Davis — Criminal Law — Sentencing
— Juveniles; Constitutional Law — Eighth Amendment — Cruel
and Unusual Punishments

     A division of the court of appeals considers the

constitutionality of a juvenile offender’s sentence to life with the

possibility of parole after forty years (LWPP-40) plus a consecutive

eight years and one day. The division considers and rejects the

defendant’s contentions that (1) the consecutive sentences imposed

by the trial court violated the Eighth Amendment to the United

States Constitution; (2) his sentence to LWPP-40 was

unconstitutional because the statutory scheme under which he was

sentenced mandated that juveniles receive the same sentence as

adults; and (3) Colorado’s parole system violates the Eighth

Amendment to the United States Constitution as interpreted by the
Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), and Miller

v. Alabama, 567 U.S. 460 (2012), because it does not provide

juveniles sentenced to LWPP-40 a meaningful or realistic

opportunity for release.

      The division also rejects the defendant’s contentions that (1)

the trial court erred in denying his motion to suppress statements

made during police interrogation and (2) he did not validly waive his

right to testify.

      Accordingly, the division affirms the district court’s denial of

the defendant’s Crim. P. 35(c) motion.
COLORADO COURT OF APPEALS                                         2018COA113


Court of Appeals No. 15CA1713
City and County of Denver District Court No. 86CR2489
Honorable Brian Whitney, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eric Dwight Davis,

Defendant-Appellant.


                             ORDERS AFFIRMED

                                   Division I
                        Opinion by JUDGE TAUBMAN
                       Welling and Davidson*, JJ., concur

                          Announced August 9, 2018


Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Eric A. Samler, Hollis A. Whitson, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Eric Dwight Davis, appeals the district court’s

 orders denying his Crim. P. 35(c) motion for postconviction relief.

 We affirm.

                            I. Background

¶2    In 1986, when Davis was seventeen years old, he and Thomas

 McGrath robbed the victim, McGrath’s former coworker. The victim

 was transporting money to a bank from the restaurant at which he

 and McGrath had worked. In the course of the robbery, the victim

 was shot and killed.

¶3    Davis was charged with and convicted by a jury of first degree

 murder after deliberation, felony murder, aggravated robbery,

 aggravated motor vehicle theft, conspiracy to commit first degree

 murder, and conspiracy to commit aggravated robbery. As required

 by statute, the trial court sentenced him to life in the custody of the

 Department of Corrections with the possibility of parole after forty

 years (LWPP-40) on the murder after deliberation count.

 Additionally, the trial court imposed a consecutive sentence of eight

 years and one day on the aggravated robbery count. The sentences

 imposed for the remaining counts were ordered to run concurrently

 with the sentences to life plus eight years and a day.


                                    1
¶4    On direct appeal, a division of this court concluded that the

 trial court had erred in entering two murder convictions for the

 death of the same victim. Thus, the division remanded to the trial

 court to merge the felony murder conviction with the conviction for

 murder after deliberation. People v. Davis, (Colo. App. No.

 87CA0713, July 6, 1989) (not published pursuant to C.A.R. 35(f)).

 In all other respects, the division affirmed.

¶5    In 2003, Davis filed a Crim. P. 35(c) motion.1 The district

 court did not rule on that motion, but appointed Davis counsel at

 his request. In 2013, Davis filed a second motion under Crim. P.




 1 Davis filed this Crim. P. 35(c) motion over fourteen years after his
 convictions were affirmed on appeal. However, the People do not
 argue on appeal that his motion was time barred under Crim. P.
 35(c)(3)(I). Moreover, the record does not indicate that the People
 responded to Davis’s 2003 motion, much less that they argued it
 was time barred. Thus, we need not consider any argument that
 Davis’s motion was untimely. See People v. St. John, 934 P.2d 865,
 866 (Colo. App. 1996) (agreeing with the defendant “that the People
 ha[d] waived the time bar because they did not raise it in the trial
 court” and noting that “failure to attack a conviction in a timely
 manner does not implicate the jurisdiction of the courts to resolve a
 defendant’s contentions”). In any event, under 16-5-402(1), C.R.S.
 2017, there is no time limitation on Davis’s collateral attack on his
 class 1 felony conviction. We would therefore consider the merits of
 his collateral attack on his first degree murder conviction even
 assuming his motion was time barred as to the other convictions.

                                    2
 35(a) and (c).2 The 2013 motion, as relevant here, raised three

 claims: (1) the trial court erred in denying Davis’s motion to

 suppress statements made during police interrogation, a renewal of

 an argument he first raised in his 2003 motion; (2) Davis did not

 validly waive his right to testify; and (3) Davis’s sentence violated

 the Eighth Amendment to the United States Constitution.

¶6    In a series of three orders and following an evidentiary hearing

 on Davis’s claim regarding his right to testify, the district court

 denied Davis’s motion. The district court also denied Davis’s

 request to reconsider one of those orders.

                         II. Standard of Review

¶7    The denial of a Crim. P. 35 motion is an issue of law we review

 de novo. People v. Davis, 2012 COA 14, ¶ 6, 272 P.3d 1167, 1169.

 To the extent we review the district court’s findings of fact, we defer

 to those findings “so long as they are supported by the record.”

 People v. Stovall, 2012 COA 7M, ¶ 18, 284 P.3d 151, 155.



 2 Although his 2013 motion was captioned as one under Crim. P.
 35(a) and (c), Davis does not make any argument on appeal specific
 to Crim. P. 35(a). Instead, he focuses his argument on Crim. P.
 35(c). In any event, the distinction between these provisions does
 not affect our analysis.

                                    3
¶8     With respect to the constitutional arguments raised in Davis’s

  Crim. P. 35(c) motion, “we address the claims using the same

  standards that would have applied had the issues been raised on

  direct appeal.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007),

  as modified on denial of reh’g (July 2, 2007).

¶9     At the outset, we note that Davis contends, the People

  concede, and we agree that the district court erred in concluding

  that any of his claims were procedurally barred by Crim. P.

  35(c)(3)(VII) because Davis could have raised them on direct appeal.

  When Davis filed his motion in 2003, that section had not yet been

  added to Crim. P. 35(c). See Dunlap, 173 P.3d at 1062 n.4.

  Therefore, that provision does not bar his claim, and we review his

  contention on the merits.

                         III. Motion to Suppress

¶ 10   Davis contends that the trial court violated his constitutional

  rights when it denied his motion to suppress statements he made

  during police interrogation. We perceive no basis for reversal.

                           A. Additional Facts

¶ 11   Davis was arrested in Miami, Florida, about two weeks after

  the murder. A Miami detective advised him of his rights under


                                    4
  Miranda v. Arizona, 384 U.S. 436 (1966), which he waived. During

  the subsequent interrogation, Davis maintained that he had not

  been at the scene of the murder and did not know that the victim

  had been killed. Instead, he averred that McGrath had come to a

  hotel at which Davis was staying and the two had decided to move

  to Miami to start a business. Davis admitted that he and McGrath

  had attempted to rob the victim about a week before the murder,

  but stated that he had changed his mind and did not go through

  with the plan. Before the Miami detective audio recorded any of

  Davis’s statements, Davis asked to speak to a lawyer. The Miami

  detective stopped the interrogation following that request.

¶ 12   A week later, Davis was transferred to the Denver jail. A

  Denver detective went to the jail to speak with Davis. The detective

  did not know that Davis had invoked his right to counsel while

  speaking with the Miami detective.

¶ 13   When the Denver detective arrived at Davis’s cell, Davis

  “indicated that he had been involved with quite a number of

  different detectives and police personnel” and wanted to clarify the

  Denver detective’s role. After the detective confirmed that he was

  leading the homicide investigation, Davis asked whether McGrath


                                    5
  had been arrested. The detective told Davis that McGrath had been

  arrested and had given a video-recorded statement. After Davis

  asked what McGrath had said, the Denver detective responded that

  he could not discuss the case until they reached the Denver Police

  Department. Davis then indicated that he wanted to “tell . . . his

  side of the story.”

¶ 14   After they arrived at the police headquarters, the detective

  advised Davis of his Miranda rights, which he waived. Davis then

  made video-recorded statements. He once again denied any

  involvement in the murder, but admitted stealing the car the

  shooters were seen driving (as well as other cars) and helping

  McGrath buy the murder weapon.

¶ 15   Davis moved to suppress the statements made to the Denver

  detective, arguing that the Denver detective had violated his right to

  counsel by continuing the interrogation after he asked for an

  attorney. Following a suppression hearing, the trial court denied

  the motion. The trial court found that the statements were

  admissible because Davis had voluntarily reinitiated the

  interrogation by asking the Denver detective whether McGrath had

  been arrested. The video of his interrogation with the Denver


                                    6
  detective was played to the jury at trial, and both the Miami and

  Denver detectives testified.

¶ 16   With respect to this issue, the district court denied Davis’s

  postconviction claim on procedural grounds because Davis could

  have raised the suppression issue on direct appeal. See Crim. P.

  35(c)(3)(VII). Thus, the district court did not address the claim on

  the merits.

                         B. Standard of Review

¶ 17   In considering a trial court’s ruling on a motion to suppress,

  we review questions of law de novo but defer to its findings of fact.

  People v. Bradshaw, 156 P.3d 452, 455 (Colo. 2007).

¶ 18   We review preserved errors of constitutional dimension for

  constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11,

  288 P.3d 116, 119. Under that standard, we will not reverse if the

  error was harmless beyond a reasonable doubt. Id. In assessing

  whether the erroneous admission of a defendant’s statement was

  harmless, “an appellate court should consider a number of factors,

  including the importance of the statements to the prosecution’s

  case, whether the statements were cumulative, and the overall




                                     7
  strength of the prosecution’s case.” People v. Melanson, 937 P.2d

  826, 833 (Colo. App. 1996).

                            C. Applicable Law

¶ 19     The Fifth Amendment privilege against self-incrimination

  includes the right to have counsel present during custodial

  interrogation. Miranda, 384 U.S. at 470; see also People v.

  Redgebol, 184 P.3d 86, 99 (Colo. 2008). When a suspect

  unequivocally and unambiguously invokes his or her right to

  counsel during interrogation, the police must scrupulously honor

  that request and cease all interrogation until the suspect has

  consulted with counsel or voluntarily reinitiates communication

  with the police. See Edwards v. Arizona, 451 U.S. 477, 484-85

  (1981); see also Redgebol, 184 P.3d at 99; Bradshaw, 156 P.3d at

  457.

¶ 20     For a suspect to reinitiate communication, he or she must

  “evince[] a willingness and a desire for a generalized discussion

  about the investigation.” Oregon v. Bradshaw, 462 U.S. 1039,

  1045-46 (1983). In contrast, the suspect’s comment or question

  cannot constitute “merely a necessary inquiry arising out of the

  incidents of the custodial relationship.” Id. at 1046.


                                    8
                              D. Analysis

¶ 21   Davis contends that his constitutional rights under the Fifth

  Amendment were violated by the admission of his statements to the

  Denver detective.

¶ 22   Even if we assume that the trial court erred in admitting

  Davis’s statements to the Denver detective, we conclude that any

  error was harmless beyond a reasonable doubt for the following

  reasons.

¶ 23   First, Davis does not challenge the admissibility of his

  statements to the Miami detective. The statements to the Denver

  detective were partially duplicative of his statements made to the

  Miami detective. To the extent the statements overlapped, any error

  in admitting the Denver statements was harmless beyond a

  reasonable doubt because the Miami statements were admissible in

  any event.

¶ 24   Second, the statements were exculpatory as to the most

  serious offenses. While Davis admitted to stealing the Camaro the

  shooters were seen driving and attempting to rob the victim a week

  before the shooting, he consistently denied any involvement in the

  murder.


                                    9
¶ 25   Third, as the People contend, the evidence against Davis on all

  of the charges was overwhelming. According to an eyewitness’s

  testimony, two men were riding in a blue Camaro on the morning of

  October 27, 1986. They drove next to the victim’s car, a white

  Corvette. Shots were fired from the passenger side of the Camaro

  toward the driver of the Corvette. After the Corvette came to a stop,

  the man in the passenger side of the Camaro ran to the Corvette,

  leaned into the car, and ran back to the Camaro. The eyewitness

  identified Davis as the Camaro passenger. A second eyewitness

  also identified Davis as the man who had run from the Corvette to

  the Camaro after the shooting.

¶ 26   The People also presented testimony from patrons of a fitness

  center. Those witnesses’ testimony tended to show that McGrath

  and a friend matching Davis’s description had stolen the blue

  Camaro from the fitness center parking lot a week before the

  murder. Further, numerous witnesses testified that they had seen

  Davis and sometimes McGrath driving the stolen Camaro. A

  witness testified that, shortly after the murder, he saw McGrath

  throw an object into the Platte River from the passenger side of a




                                   10
  dark vehicle. The object was later confirmed to be the pistol that

  had been used as the murder weapon.

¶ 27   Additionally, a former classmate of Davis testified that, about

  an hour after the murder, she saw Davis and McGrath at Stapleton

  Airport, where the witness worked as a ticket counter agent. Davis

  showed the former classmate a wad of cash in his pocket, asked for

  a ticket to Miami, and said that he and McGrath needed to leave

  Colorado quickly. The People also called two witnesses with whom

  Davis had stayed in Miami before his arrest. Both witnesses said

  that Davis told them he had killed someone. The first witness

  acknowledged that immediately after Davis admitted committing the

  murder, he changed his statement and said that his friend had

  killed someone.

¶ 28   Moreover, the defense stipulated to several key pieces of

  evidence. The parties stipulated that Davis had used a borrowed

  driver’s license to purchase the murder weapon two days before the

  murder. They also stipulated that Davis’s fingerprints were found

  in the blue Camaro, though the stipulation stated that Davis had

  been in the Camaro numerous times before the date of the murder.




                                   11
¶ 29   Accordingly, even if we assume the trial court erred in denying

  Davis’s motion to suppress his statements to the Denver detective,

  we conclude any error was harmless beyond a reasonable doubt in

  light of the relative insignificance of the statements to the People’s

  case and the substantial evidence of guilt.

                      IV. Waiver of the Right to Testify

¶ 30   Davis contends that reversal is required because he never

  executed an on-the-record waiver of his right to testify. We

  disagree.

                             A. Additional Facts

¶ 31   After the People rested, the trial court engaged in the following

  exchange with Davis:

              THE COURT: I’m going to read you some rights
              that you have with regard to testifying. If you
              don’t understand what I’m saying to you, say
              so. I’ll try to explain it. All right. This is all on
              the record.

              THE DEFENDANT: Okay.

              THE COURT: I want you to understand that
              you have the right to testify. Do you
              understand that?

              THE DEFENDANT: Yes.

              THE COURT: If you want to testify, no one can
              stop you from doing so, not even your

                                       12
attorney. And you can do so even if your
attorney advises you not to do so. Do you
understand that?

THE DEFENDANT: Yes.

THE COURT: All right. But if you do so, the
prosecution will be allowed to cross-examine
you. If you have been convicted of a felony,
the prosecutor will, A, be entitled to ask you
about it, and, B, that fact will thereby be
disclosed to the jury. Do you understand
that?

THE DEFENDANT: Yes.

THE COURT: Now, if the felony conviction is
disclosed to the jury, then the jury can be
instructed by the Court only that they can –
only that the conviction bears upon your
credibility as a witness. Do you understand
that?

THE DEFENDANT: Yes.

THE COURT: You are advised that you have
the right not to testify. If you do not testify,
the jury can be advised about that right, too,
which they have no business considering one
way or the other with regard to that. Do you
understand that?

THE DEFENDANT: I do.

THE COURT: Any questions?

THE DEFENDANT: No sir.




                       13
¶ 32   The prosecutor then asked the trial court if it would “inquire if

  [Davis] ha[d] made up his mind” about testifying, to which the trial

  court responded, “It’s none of my business.” The trial court further

  advised Davis, “Do you understand if you do take the stand, I will at

  this time find that you do take the stand having been advised of

  your Curtis rights, . . . and that you do so knowingly and willfully,

  okay?” Davis responded, “Yes.” The defense called one witness and

  then rested. Davis did not testify.

¶ 33   In his 2013 Crim. P. 35(c) motion, Davis alleged generally that

  he would show at an evidentiary hearing that he had wanted to

  testify at trial. The district court granted his request for a hearing,

  at which the People called Davis’s trial counsel as a witness. He

  testified that he had no specific recollection of how he had advised

  Davis twenty-eight years earlier as to the right to testify. However,

  he testified that if he disagreed with clients who wished to take the

  stand, he would generally do his “very best to dissuade them” but

  would not “explicitly prohibit” a client from testifying in his or her

  defense. He stated:

             I’ve screamed at clients to try to persuade
             them not to testify when they’ve wanted to
             testify. I mean, it’s -- it’s often -- it’s quite


                                       14
               often a question that a defense attorney feels
               very strongly about. So there would have to be
               a pretty good tussle that goes on before the
               client ultimately took the stand against my
               advice.

  Davis did not testify at the hearing or present any evidence.

¶ 34   The district court concluded that Davis had been adequately

  advised of his right to testify and that the People had proved that he

  knowingly, voluntarily, and intelligently waived that right.

                           B. Standard of Review

¶ 35   We review de novo whether a waiver of a constitutional right

  was knowing, voluntary, and intelligent but defer to the trial court’s

  findings of fact. See Sanchez-Martinez v. People, 250 P.3d 1248,

  1254 (Colo. 2011) (reviewing validity of guilty plea); see also People

  v. Hardin, 2016 COA 175, ¶ 39, 405 P.3d 379, 386 (deferring to

  postconviction court’s determinations as to the “weight and

  credibility to give to the testimony of witnesses at a Crim. P. 35(c)

  hearing”).

                             C. Applicable Law

¶ 36   A criminal defendant has a right to testify in his or her own

  defense under the Due Process Clauses of the United States and




                                     15
  Colorado Constitutions. U.S. Const. amend. XIV; Colo. Const. art.

  II, § 25.

¶ 37    In People v. Curtis, the Colorado Supreme Court held:

              A trial court exercising appropriate judicial
              concern for the constitutional right to testify
              should seek to assure that waiver is voluntary,
              knowing and intentional by advising the
              defendant outside the presence of the jury that
              he has a right to testify, that if he wants to
              testify then no one can prevent him from doing
              so, that if he testifies the prosecution will be
              allowed to cross-examine him, that if he has
              been convicted of a felony the prosecutor will
              be entitled to ask him about it and thereby
              disclose it to the jury, and that if the felony
              conviction is disclosed to the jury then the jury
              can be instructed to consider it only as it bears
              upon his credibility. In connection with the
              privilege against self-incrimination, the
              defendant should also be advised that he has a
              right not to testify and that if he does not
              testify then the jury can be instructed about
              that right.

  681 P.2d 504, 514 (Colo. 1984) (footnote omitted). Thus, as the

  supreme court stated in Roelker v. People, “[t]he actual holding of

  Curtis limits the trial judge’s responsibility to advising the

  defendant of his right to testify and the consequences of doing so.”

  804 P.2d 1336, 1338 (Colo. 1991). While the Curtis court noted

  that “‘the best means of demonstrating the defendant’s state of



                                     16
  mind are his own declarations’ on the record,” 681 P.2d at 515

  (quoting State v. Noble, 514 P.2d 460, 462 (Ariz. 1973)), the Roelker

  court rejected the idea that “the dictum of Curtis mandates a rigid

  requirement that the trial court question the defendant to

  determine whether his waiver is truly voluntary,” 804 P.2d at 1339.

¶ 38    In People v. Blehm, the supreme court reaffirmed the need for

  the five-part Curtis advisement, but modified the Curtis holding to

  clarify that a defendant could bring a claim alleging invalid waiver

  of his or her right to testify only in postconviction proceedings. 983

  P.2d 779, 792 (Colo. 1999). The Blehm court further explained

  that, in postconviction proceedings, “an evidentiary hearing is

  available if necessary to ascertain facts not present in the original

  trial record.” Id. However, the court stated, “[w]here the trial

  court’s on-the-record advisement includes the five essential Curtis

  elements, the record conclusively demonstrates that the defendant

  made a valid waiver of the right to testify.” Id. Thus, under Blehm,

  a defendant would not be entitled to an evidentiary hearing in those

  cases in which he or she received an adequate Curtis advisement.

  Id.




                                    17
¶ 39   Recently, however, the supreme court modified the procedure

  it had set forth in Blehm. In People v. Moore, the court clarified

  that, despite statements to the contrary in Blehm, the adequacy of a

  Curtis advisement is not dispositive of whether a defendant validly

  waived his or her right to testify. 2014 CO 8, ¶¶ 22-28, 318 P.3d

  511, 519-20. Thus, when

             challenging under Crim. P. 35(c) the validity of
             the waiver that appears in the trial court
             record, the defendant, in order to obtain an
             evidentiary hearing, must allege specific facts
             that if proved at the hearing establish a prima
             facie case that the waiver of the right to testify
             was not knowing, voluntary, and intelligent.

  Id. at ¶ 23, 318 P.3d at 519. If the defendant alleges sufficient facts

  to warrant an evidentiary hearing, “the prosecution bears the

  burden of demonstrating that [the] defendant’s waiver was knowing,

  voluntary, and intelligent.” Id.

¶ 40   At the evidentiary hearing, the parties may present any

  evidence relevant to the issue of whether the defendant’s waiver was

  knowing, voluntary, and intelligent, including evidence of “what the

  defendant did or did not understand in waiving the right; what the

  attorney did or did not say; and any other pertinent circumstances




                                     18
  relating to defendant’s condition at the time of the waiver.” Id. at

  ¶ 26, 318 P.3d at 520.

                               D. Analysis

¶ 41   Davis contends that the absence of an on-the-record waiver of

  his right to testify mandates reversal. In response, the People

  contend that the trial court gave Davis an adequate Curtis

  advisement, and he has not presented any evidence that his implicit

  waiver of his right to testify was not knowing, voluntary, or

  intelligent. We agree with the People.

¶ 42   First, we disagree with Davis’s argument that the lack of an

  on-the-record waiver mandates reversal. In support of his

  contention, Davis relies on a footnote in Moore in which the court

  stated, “If there is no record of defendant having waived the

  fundamental right to testify, the court of appeals on direct review

  may reverse the conviction and order a new trial.” ¶ 22 n.6, 318

  P.3d at 519 n.6.

¶ 43   Contrary to Davis’s position, we conclude that that footnote is

  not dispositive here. It is not clear that the footnote in Moore even

  applies in this case given that Davis raised this claim in a

  postconviction motion rather than on direct appeal. In any event,


                                    19
  we do not read that footnote as mandating that the trial court

  expressly ask a defendant whether he or she waives the right to

  testify after going through the Curtis litany. As the supreme court

  first made clear in Curtis, the five-part advisement serves as a

  safeguard to ensure that a defendant’s waiver of the right to testify

  is voluntary, knowing, and intelligent. 681 P.2d at 514. Thus, the

  advisement itself functions as the on-the-record waiver. As a

  result, the trial court is not obligated to go beyond the advisement

  and “ask the defendant personally, on the record, whether he

  wishes to waive his right.”3 Roelker, 804 P.2d at 1338.

¶ 44   Further, we agree with the People that the record here shows

  that Davis validly waived his right to testify. Davis does not dispute

  that the trial court’s Curtis advisement was adequate. At the

  evidentiary hearing, Davis presented no evidence to show that,

  despite the proper Curtis advisement, his waiver was nonetheless

  invalid. Although he claimed in his Crim. P. 35(c) motion that he


  3 At the same time, nothing in People v. Curtis, 681 P.2d 504 (Colo.
  1984), or its progeny prohibits a trial court from asking point blank
  whether a defendant has chosen to waive his or her right to testify.
  Thus, there is no legal support for the trial court’s assertion here
  that it was “none of [its] business” whether Davis had waived his
  right to testify.

                                    20
  would present evidence demonstrating that he had wanted to testify

  at trial but was prevented from doing so, Davis did not testify at the

  evidentiary hearing or present any other evidence to support that

  claim. In contrast, the People presented the testimony of Davis’s

  trial counsel, who stated that he would do his “very best” to

  dissuade clients from testifying if he did not think it was in their

  best interests, but also testified that he would not prevent clients

  from taking the stand if they chose to do so.

¶ 45      Thus, we determine that the district court did not err in

  concluding that Davis knowingly, voluntarily, and intelligently

  waived his right to testify.

                     V. Constitutionality of the Sentence

¶ 46      Davis next contends that his sentence of LWPP-40 together

  with a sentence of eight years plus one day is unconstitutional. He

  makes several, somewhat related, arguments as to the

  unconstitutionality of his sentences. We address and reject each in

  turn.

                           A. Standard of Review

¶ 47      We review constitutional challenges to sentencing

  determinations de novo. Lopez v. People, 113 P.3d 713, 720 (Colo.


                                      21
  2005), as modified on denial of reh’g (June 27, 2005). To the extent

  Davis challenges the trial court’s discretionary sentencing

  determination, “[a] trial court has broad discretion over sentencing

  decisions, and will not be overturned absent a clear abuse of that

  discretion.” Id.

                            B. Applicable Law

                       1. Juvenile Life Sentences

¶ 48   Within the last decade, the Supreme Court has addressed the

  constitutionality of sentencing juveniles to life without parole

  (LWOP) in three significant cases. First, in Graham v. Florida, the

  Court held that juveniles convicted of nonhomicide offenses could

  not constitutionally be sentenced to LWOP. 560 U.S. 48, 74 (2010).

  The Graham Court cautioned that a state “is not required to

  guarantee eventual freedom to a juvenile offender convicted of a

  nonhomicide crime.” Id. at 75. However, the state must provide

  such juveniles “some meaningful opportunity to obtain release

  based on demonstrated maturity and rehabilitation.” Id.

¶ 49   Second, in Miller v. Alabama, the Supreme Court extended

  Graham, holding “that the Eighth Amendment forbids a sentencing

  scheme that mandates life in prison without possibility of parole for


                                    22
  juvenile offenders” convicted of homicide. 567 U.S. 460, 479

  (2012). As the Miller Court stated, “Mandatory [LWOP] for a juvenile

  precludes consideration of his chronological age and its hallmark

  features — among them, immaturity, impetuosity, and failure to

  appreciate risks and consequences.” Id. at 477; see also id. at 465

  (“Such a scheme prevents those meting out punishment from

  considering a juvenile’s ‘lessened culpability’ and greater ‘capacity

  for change . . . .’” (quoting Graham, 560 U.S. at 68, 74)).

¶ 50   Finally, in Montgomery v. Louisiana, the Court held that Miller

  announced a substantive rule of constitutional law and applied its

  holding retroactively. 577 U.S. ___, ___, 136 S. Ct. 718, 736 (2016).

                     2. Colorado Sentencing Scheme

¶ 51   Between 1985 and 1990, a class 1 felony was punishable by a

  mandatory minimum sentence of life, which was defined by statute

  as LWPP-40. § 18-1-105(4), C.R.S. 1985 (“As to any person

  sentenced for a class 1 felony, for an act committed on or after July

  1, 1985, life imprisonment shall mean imprisonment without the

  possibility of parole for forty calendar years.”); see also § 18-1.3-

  401(4)(a), C.R.S. 2017. That version of the statute did not

  differentiate between adults and juveniles.


                                     23
¶ 52   In 1991, the statute was amended to define a life sentence as

  LWOP. § 18-1-105(4), C.R.S. 1991 (“As to any person sentenced for

  a class 1 felony, for an act committed on or after July 1, 1990, life

  imprisonment shall mean imprisonment without the possibility of

  parole.”); see also § 18-1.3-401(4)(a), C.R.S. 2017. As with the prior

  version, the 1991 version of the statute did not differentiate

  between adults and juveniles.

¶ 53   In 2006, the legislature again amended the statute. Under

  this version, a juvenile convicted of a class 1 felony committed on or

  after July 1, 2006, must be sentenced to LWPP-40.4 § 18-1.3-

  401(4)(b)(I) (“[A]s to a person who is convicted as an adult of a class

  1 felony following direct filing of an information or indictment . . .

  the district court judge shall sentence the person to a term of life

  imprisonment with the possibility of parole after serving a period of

  forty years . . . .”); see also § 18-1.3-401(4)(b)(II). In contrast, an



  4 As Davis notes, the 2006 provision provides that a juvenile
  convicted of a class 1 felony is eligible for parole “after serving a
  period of forty years, less any earned time.” § 18-1.3-401(4)(b)(I),
  C.R.S. 2017. The pre-1991 version did not provide for the grant of
  earned time credit toward the mandatory forty-year period.
  However, neither party here asserts that this difference between the
  statutes is significant to its argument.

                                      24
  adult convicted of a class 1 felony must be sentenced to a

  mandatory minimum of life imprisonment. § 18-1.3-401(1)(a)(V).

  Thus, as the supreme court summarized, “Essentially, the

  legislature went back to the 1985 definition of a life sentence, but

  only for juveniles.” People v. Tate, 2015 CO 42, ¶ 34, 352 P.3d 959,

  967, overruled on other grounds by Montgomery, 577 U.S. ___, 136

  S. Ct. 718.

¶ 54   In the wake of Miller and Montgomery, the General Assembly

  did not immediately act to remedy the unconstitutional sentences of

  those juveniles sentenced to LWOP for class 1 felonies committed

  between July 1, 1990, and June 30, 2006.5 Therefore, the supreme

  court filled the legislative gap and held that, for such juveniles, “[i]f

  the trial court should determine, after an individualized sentencing

  process, that LWOP is not warranted, the appropriate sentence . . .

  is life in prison with the possibility of parole after forty years.” Tate,



  5 In 2016, the General Assembly enacted statutes to provide for a
  lesser sentence for juveniles convicted of a class 1 felony for crimes
  committed between 1990 and 2006. See § 18-1.3-401(4)(c), C.R.S.
  2017; see also §§ 16-13-1001 to -1002, C.R.S. 2017. The new
  statutes also provided for a lesser sentence of thirty to fifty years in
  some circumstances for juveniles convicted of felony murder or
  extreme indifference murder. See § 18-1.3-401(4)(c)(I)(A).

                                      25
  ¶ 7, 352 P.3d at 963. The supreme court reasoned that LWPP-40

  “is the sentence that was in place both before and after the

  mandatory LWOP scheme . . . — that is, before 1990 and after

  2006.”6 Id. Because Miller did not “go so far as to declare LWPP

  unconstitutional as applied to juveniles,” the supreme court

  concluded that LWPP-40 was “not only [an] appropriate sentence

  but also a constitutional one.” Id. at ¶ 50, 352 P.3d at 970.

                              C. Analysis

                       1. Consecutive Sentences

¶ 55   Davis contends that his sentence is unconstitutional because

  the trial court imposed consecutive sentences of LWPP-40 and eight

  years and one day. We perceive no constitutional infirmity.



  6 In People v. Tate, 2015 CO 42, 352 P.3d 959, overruled in part by
  Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 736
  (2016), the supreme court referred to the period in which
  unconstitutional LWOP sentences were imposed on juvenile
  offenders as between 1990 and 2006. As we note, the General
  Assembly amended the relevant subsection of section 18-1-105 in
  1991, but applied the amendment retroactively to class 1 felonies
  committed on or after July 1, 1990. See Ch. 73, sec. 5, § 18-1-
  105(4), 1991 Colo. Sess. Laws 404. The Tate court referred to this
  amendment as the “1990 provision.” Because the statute was
  amended in 1991, we refer to the “pre-1991” statutory scheme,
  though we acknowledge that the 1991 amendment applied to
  offenses committed on and after July 1, 1990.

                                   26
¶ 56   To the extent Davis contends that the mandatory forty years of

  his LWPP-40 sentence taken together with the mandatory eight

  years and one day sentence constitutes a de facto LWOP sentence,

  we conclude this argument has been foreclosed by the supreme

  court’s decision in Lucero v. People, 2017 CO 49, 394 P.3d 1128.

  There, the court held that “neither Graham nor Miller applies to an

  aggregate term-of-years sentence.”7 Id. at ¶ 4, 394 P.3d at 1130.

  Thus, even if a juvenile defendant is sentenced to multiple lengthy

  term-of-years sentences, Graham and Miller do not apply because

  term-of-years sentences are distinct from a sentence of LWOP. Id.

¶ 57   To the extent that Davis argues that the trial court abused its

  discretion as to the sentences imposed for the nonhomicide

  charges, we similarly disagree. Davis contends that the trial court

  was not required to order the eight years and one day sentence to

  run consecutively to his LWPP-40 sentence. However, that

  determination was within the broad discretion of the trial court, and


  7 The People contend that Lucero v. People, 2017 CO 49, 394 P.3d
  1128, completely forecloses Davis’s arguments that his sentence
  violates the Eighth Amendment. However, we do not agree with the
  People’s assertion that Lucero precludes a juvenile sentenced to
  anything less than LWOP from raising a constitutional claim under
  Graham or Miller.

                                   27
  we perceive no basis for disturbing that discretionary decision. See

  Lopez, 113 P.3d at 720.

¶ 58   Davis further argues that the trial court abused its discretion

  by not considering his youth in imposing consecutive sentences.

  Contrary to this contention, the record reveals that the trial court

  entertained defense counsel’s argument concerning Davis’s youth

  and reviewed a written statement from Davis. The trial court

  stated, “To be sure, what [defense counsel] says has some sense

  with regard to the youth of the defendant.” Thus, we also disagree

  with Davis’s argument on this point and perceive no abuse of

  discretion on the trial court’s part.

               2. Pre-1991 LWPP-40 Sentencing Scheme

¶ 59   Davis contends that his LWPP-40 sentence is unconstitutional

  because it was imposed under a sentencing scheme that did not

  differentiate between adults and juveniles convicted of class 1

  felonies. We disagree.

¶ 60   Davis bases this contention on language in Miller, in which the

  Supreme Court stated that a sentencing court must consider “youth

  and its attendant characteristics” before sentencing a juvenile to

  LWOP. 567 U.S. at 465. Davis thus urges us to extend the logic of


                                     28
  Miller, as well as Graham, and hold the pre-1991 LWPP-40

  sentencing scheme unconstitutional because it did not require — or

  even permit — sentencing courts to treat juveniles differently from

  adults.

¶ 61   We conclude that this argument has been at least implicitly (if

  not explicitly) rejected by the Colorado Supreme Court. In Tate, the

  court concluded that LWPP-40 was a proper sentence for those

  juveniles unconstitutionally sentenced to mandatory LWOP for

  offenses committed between July 1, 1990, and June 30, 2006. ¶ 7,

  352 P.3d at 963. The court acknowledged that LWPP-40 was the

  mandatory sentence for juveniles convicted of class 1 felonies before

  July 1, 1990. See id. Davis correctly contends that the

  constitutionality of the pre-1991 sentencing scheme was not

  squarely before the Tate court. Nevertheless, the supreme court

  implicitly concluded that the pre-1991 LWPP-40 sentencing scheme

  was constitutional under Miller and rejected the argument that

  LWPP-40 was unconstitutional because it was mandatory. Id. at

  ¶ 50, 352 P.3d at 970 (“Miller does not go so far as to declare LWPP

  unconstitutional as applied to juveniles . . . .”). Thus, we disagree

  with Davis’s contention that the pre-1991 LWPP-40 sentencing


                                    29
  scheme was unconstitutional because it applied equally to juveniles

  and adults.

¶ 62   Davis nevertheless contends that, although a juvenile

  convicted of first degree murder today would be sentenced to LWPP-

  40, see § 18-1.3-401(4)(b)(I), it is constitutionally significant that

  adults sentenced to first degree murder now receive a harsher

  sentence of, at a minimum, LWOP, see § 18-1.3-401(1)(a)(V)(A.1)

  (establishing life imprisonment as the minimum sentence for class

  1 felony and death as maximum sentence). According to Davis,

  Miller’s recognition that juveniles are different for sentencing

  purposes is now included in Colorado’s sentencing scheme because

  the current statutes “take into account the juvenile statu[s] by

  providing for a lesser penalty.”

¶ 63   We perceive no constitutional significance in the current

  statute’s differential treatment of adults. That adults convicted of

  class 1 felonies today receive a harsher punishment than similarly

  convicted juveniles does not affect the constitutionality of Davis’s

  sentence.

¶ 64   Finally, we disagree with Davis’s related argument that the

  imposition of a lengthy mandatory minimum sentence of forty


                                     30
  calendar years prior to his eligibility for parole violates the Eighth

  Amendment. Again, we conclude this argument is foreclosed by our

  supreme court’s analysis in Tate. As noted, the Tate court rejected

  the argument that LWPP-40 was unconstitutional because it was

  mandatory. ¶ 50, 352 P.3d at 970. The court raised no

  constitutional concerns about the mandatory forty calendar years

  imprisonment aspect of the LWPP-40 sentence. Thus, we conclude

  that the imposition of an LWPP-40 sentence on juveniles is

  constitutional under Miller and precedent from our supreme court.

       3. Parole as Meaningful and Realistic Opportunity for Release

¶ 65     Davis finally contends that his LWPP-40 sentence is

  unconstitutional because Colorado’s parole system does not provide

  a meaningful and realistic opportunity for release.8 We again

  disagree.



  8As noted above, the People rely solely on Lucero to argue that
  Graham and Miller do not apply to Davis’s sentence of LWPP-40. In
  Lucero, the defendant argued that his aggregate term-of-years
  sentences totaling eighty-four years amounted to de facto LWOP.
  Lucero, ¶ 14, 394 P.3d at 1132. However, the supreme court’s
  decision did not address whether Colorado’s parole system provided
  a meaningful opportunity for release. Contrary to the People’s
  argument, Lucero is not precedent for an issue not raised and not
  decided. Thus, Lucero is not dispositive of Davis’s argument that

                                     31
¶ 66   Davis cites several statutes and cases from other jurisdictions

  in support of his position. As he asserts, several states have

  enacted legislation enabling a juvenile sentenced to LWPP to seek

  judicial review of his or her sentence after a certain number of

  years. See, e.g., Fla. Stat. § 921.1402 (2017). In other states,

  courts have held that their parole procedures do not comply with

  the mandates of Graham and Miller because the parole system does

  not provide a meaningful opportunity for release. See Hayden v.

  Keller, 134 F. Supp. 3d 1000, 1011 (E.D.N.C. 2015)

  (concluding that the “North Carolina parole review process for

  juvenile offenders serving a life sentence violates the Eighth

  Amendment”); Atwell v. State, 197 So. 3d 1040, 1041 (Fla. 2016)

  (“We conclude that Florida’s existing parole system, as set forth by

  statute, does not provide for individualized consideration of Atwell’s

  juvenile status at the time of the murder, as required by Miller, and

  that his sentence, which is virtually indistinguishable from a

  sentence of life without parole, is therefore unconstitutional.”); see




  the possibility of parole after forty years does not satisfy the
  Supreme Court’s requirement that he be afforded a meaningful
  opportunity for release from prison.

                                    32
  also Hawkins v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 30

  N.Y.S.3d 397, 400 (N.Y. App. Div. 2016) (“For those persons

  convicted of crimes committed as juveniles who, but for a favorable

  parole determination will be punished by life in prison, the Board

  must consider youth and its attendant characteristics in

  relationship to the commission of the crime at issue.”) (citations

  omitted). See generally Beth Caldwell, Creating Meaningful

  Opportunities for Release: Graham, Miller and California’s Youth

  Offender Parole Hearings, 40 N.Y.U. Rev. L. & Soc. Change 245

  (2016) (recommending guidelines for “youth-specific parole

  hearings”).

¶ 67    However, we conclude that Davis has not presented sufficient

  evidence that Colorado’s parole system runs afoul of Graham or

  Miller.

¶ 68    Colorado’s parole board is statutorily authorized to “consider

  all applications for parole.” § 17-2-201(4)(a), C.R.S. 2017. In

  considering offenders for parole, the board “shall consider the

  totality of the circumstances,” including, among several other

  enumerated considerations, “[a]ggravating or mitigating factors from

  the criminal case.” § 17-22.5-404(4)(a)(VIII), C.R.S. 2017; see also


                                    33
  State Bd. of Parole Rule 5.00, 8 Code Colo. Regs. 1511-1 (setting

  forth procedure for parole applications, interviews, and hearings,

  and allowing offender to make statement during application

  interview).

¶ 69   As a general rule, parole board decisions to grant or deny

  parole are wholly within the board’s discretion and not subject to

  judicial review. See People v. Dean, 2012 COA 106, ¶ 34, 292 P.3d

  1066, 1074, aff’d, 2016 CO 14, 366 P.3d 593. However, an inmate

  can seek judicial review of a parole board decision on the basis of

  the board’s failure “to exercise its statutory duties.” In re Question

  Concerning State Judicial Review of Parole Denial, 199 Colo. 463,

  465, 610 P.2d 1340, 1341 (1980).

¶ 70   We conclude that, in the absence of evidence to the contrary,

  Colorado’s parole system provides juveniles sentenced to LWPP-40 a

  meaningful and realistic opportunity for release based on

  “demonstrated maturity and rehabilitation.” Graham, 560 U.S. at

  75. Based on our review of the factors the parole board must

  consider when weighing an offender’s application, the board is

  permitted to consider a juvenile’s youth at the time of the offense as

  a mitigating circumstance. Further, the regulations promulgated by


                                    34
  the parole board allow an offender to present his or her case during

  an application interview. Finally, although the parole board’s

  decisions are usually immune to judicial review, an offender can

  seek such review if the board abdicates its statutory duties. Davis

  does not offer any evidence that the Colorado parole board has

  failed or will fail to consider his youth when he committed his

  offenses in considering his eligibility for parole.

¶ 71   In sum, we determine that Davis’s LWPP-40 sentence is not

  rendered unconstitutional by virtue of the parole board’s discretion

  to grant or deny parole in the future.

                              VI. Conclusion

¶ 72   Accordingly, the orders are affirmed.

       JUDGE WELLING and JUDGE DAVIDSON concur.




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