People v. Lehmkuhl , 2013 Colo. App. LEXIS 1137 ( 2013 )

JUDGE DAILEY

specially concurring.

[ 26 I agree with the result reached by the majority in this case. .But, unlike my colleagues, I would not apply Grakam to cases where, as here, a juvenile has received a number of consecutive, individual sentences that, when accumulated, result in a lengthy aggregate term of imprisonment. -> .

4 27 Initially, I observe that the division in People v. Rainer, 2013 COA 51, - P.3d -, and the majority here disavow the traditional manner of evaluating the proportionality of consecutive sentences," In Close v. People, 48 P.3d 528 (Colo.2002), the supreme court held that, for eruel and unusual punishment purposes, sentences should be assessed individually,; rather in their aggregate form. Id. at 540. 'The division in Rainer and the majority here, however, reject this type of analysis in cases involving juvenile offenders because, they say, Graham has effectively overruled Close with respect to juvenile offenders. °

128 They reach this conclusion, however, not based on the actual holding in Grakam-namely, that a single sentence of life without parole for a single - nonhomicide crime was unconstitutional-but based on, the "expansive" or "broad" language or reasoning of Graham. See Rainer, \ Ti-72.

129 I would not consider Close to have been effectively overruled in juvenile cases based on "expansive" language or reasoning in Grakaom, particularly when there is a split of authority on the subject, see Bunch v. Smith, 685 F.3d 546, 553 (6th Cir.2012), with a number of courts applying a Close, rather than Graham, type of analysis in this very situation. See State v. Kasic, 228 Ariz. 228, 265 P.3d 410, 415-16 (2011) (recognizing that the proper analysis focuses on the sentence imposed for each specific erime, not the cumulative sentence, even if a defendant faces a total sentence exceeding a normal life expectancy as a result of consecutive sentences; and affirming, as not unconstitutional under Graham, concurrent and consecutive prison terms totaling 189.75 years for a nonhomicide juvenile offender); see also Henry v. State, 82 So.3d 1084, 1089 (Fla.Dist.Ct.App.2012) (holding that a nonhomicide child offender's aggregate 90-year sentence is not unconstitutional); Walle v. State, 99 So.3d 967, 972-73. (Fla.Dist:Ct.App.2012) (refusing to extend Graham to aggregate sentences totaling 92 years on reasoning that G@rakam applies only to single sentences).¹

T30 Indeed, I, like these courts, would reject Graham's applicability to so-called de facto life sentence situations. In Henry v. State, 82 So.3d 1084, a Florida appellate court acknowledged that

[tThere is language in the Grakam majority.opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is "life" or 107 years.

Id. at 1089. But, the court also said:

If ... under the notion that a term-of-years sentence can be a de fucto life sentence that violates the limitations of the Eighth Amendment, Graham offers no di'rection whatsoever. At what number of years would the Highth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number?

Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? ... Without any tools to work with, however, we can only apply Graham as it is written. Ifthe Supreme Court has more in mind, it W111 have to say what that is.

Id. (footnote omitted).

[31 As should be evident, the existence of so many variables could affect (perhaps, in an unequal manner) Grakam's application to juveniles who receive multiple consecutive sentences resulting in lengthy terms of incarceration. And to this list of variables, I would add a couple more:

© What life expectancy tables should be used in forecasting the prospect of a juvenile's becoming eligible for parole before he or she dies? As this case demonstrates, there is variation in the tables. ~And, given that variation, a sentence for a juvenile could be determined to be constitutional or unconstitutional depending on which table was used.

© What if the juvenile has a health issue dramatically reducing his -or her life expectancy? Is the juvenile's sentence to be reduced, so as to make him or her eligible for parole before his or her reduced life expectancy expires, regardless of the nature or number of erimes committed or the number of different jurisdictions in which crimes were committed?

132 For these reasons, I1 would limit Graham's application to its facts: a single sentence of life without parole for a nonhomicide offense. Cf Guzman v. State, 110 So.3d 480, 481 (Fla.Dist.Ct.App.2018) (refusing to extend Grakam to single 60-year sentence for juvenile). Because no such sentence was imposed upon defendant, I would affirm, on grounds different from the majority, the district court's order denying defendant's request for relief,

1 . We should, wherever possible, avoid declaring a supreme court decision to have been overruled:

"If a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989).