18CA2095 Peo v Garcia 12-02-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA2095
Morgan County District Court No. 17CR161
Honorable Kevin L. Hoyer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Freddy Torres Garcia,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VI
Opinion by JUDGE WELLING
Fox and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 2, 2021
Philip J. Weiser, Attorney General, Ryan A. Crane, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Freddy Torres Garcia, appeals the sentence the
district court imposed on his guilty plea to two counts of tampering
with a deceased human body. We affirm.
I. Background
¶ 2 Garcia participated in criminal acts related to the deaths of
Destiny McMinn and Carlos Santos Macias between March and
April 2017. Garcia was seventeen years old at the time of the
alleged crimes. The prosecution charged Garcia in district court
with two counts of first degree murder, class 1 felonies, and two
counts of tampering with a deceased human body, class 3 felonies.
¶ 3 Garcia filed a motion to have the case transferred to the
juvenile court. The district court conducted the reverse-transfer
hearing along with the preliminary hearing and proof
evident/presumption great hearing over five days.
¶ 4 After the hearing, the district court denied Garcia’s motion to
transfer the case to juvenile court, so the case remained in district
court.
¶ 5 Three months after the court’s ruling on the reverse-transfer
motion, the parties reached a plea agreement. The plea agreement
provided that in exchange for the dismissal of the murder charges,
2
Garcia would plead guilty to the tampering counts. Under the plea
agreement, the sentence was “open to the court.” The agreement,
however, specified that Garcia wasn’t eligible for a sentence to
probation or to community corrections. The agreement provided
that the court could sentence Garcia to either: (1) the Department
of Youth Corrections for up to six years, or (2) the Colorado
Department of Corrections (DOC) for a minimum of four years and
up to twenty-four years.
¶ 6 Following a two-day sentencing hearing, the district court
imposed the maximum twenty-four-year sentence contemplated by
the parties’ plea agreement.
II. Analysis
¶ 7 Garcia raises two arguments on appeal. First, Garcia
contends that his sentence is illegal because the district court
didn’t have jurisdiction to impose an adult sentence. Second,
Garcia argues that the district court abused its discretion in
imposing a twenty-four-year sentence because, when imposing the
sentence, the district court improperly considered his alleged
conduct related to the dismissed murder charges.
¶ 8 We aren’t persuaded by either contention.
3
A. District Court Jurisdiction
¶ 9 A contention that a sentence is illegal implicates the subject
matter jurisdiction of the sentencing court. Downing v. People, 895
P.2d 1046, 1050 (Colo. 1995). Because a lack of subject matter
jurisdiction deprives a court of its authority to hear a case or enter
a judgment, it is an issue that may be raised at any time. Currier v.
Sutherland, 218 P.3d 709, 714 (Colo. 2009); see C.R.C.P. 12(h)(3).
¶ 10 At issue here is whether, after the court granted the
prosecution’s motion to dismiss the murder charges, the district
court retained jurisdiction under section 19-2-517, C.R.S. 2019,
1
to
sentence Garcia for the remaining class 3 felonies, which wouldn’t,
standing alone, have been eligible for direct file in district court.
This is a question of statutory interpretation. We review questions
1
At the time of sentencing, the operative statute was section 19-2-
517, C.R.S. 2019. Sections 19-2-511 to 19-2-518 were repealed
and relocated by Ch. 136, sec. 1, 2021 Colo. Sess. Laws 557,
effective October 1, 2021. Former sections 19-2-517 and 19-2-518,
relating to direct filing and transfers, respectively, were relocated to
sections 19-2.5-801 and 19-2.5-802. The language of former
section 19-2-517(6)(a)-(c) is unchanged but is now located in
section 19-2.5-801(5)(a)-(c). We cite to the 2019 version of these
statutes.
4
of law, including issues of statutory interpretation, de novo. People
v. Sandoval, 2016 COA 57, ¶ 14.
¶ 11 Our primary goal when interpreting a statute is to give effect to
the intent of the General Assembly. Poudre Sch. Dist. R-1 v.
Stanczyk, 2021 CO 57, ¶ 13. We look first to the statutory text at
issue, applying its plain and ordinary meaning while ensuring that
we are giving “consistent, harmonious, and sensible effect” to every
part of the statutory scheme. Bd. of Cnty. Comm’rs v. Colo. Dep’t of
Pub. Health & Env’t, 2021 CO 43, ¶ 17. In doing so, we mustn’t
“add or subtract words from a statute.” Smokebrush Found. v. City
of Colorado Springs, 2018 CO 10, ¶ 18.
¶ 12 Our first task is thus to determine whether the text at issue is
susceptible of one or more plain-meaning interpretations. See Bd.
of Cnty. Comm’rs, ¶¶ 18-26. A statute is ambiguous “when it is
reasonably susceptible of multiple interpretations.” Elder v.
Williams, 2020 CO 88, ¶ 18. The mere fact, however, that parties
advance opposing plain-meaning interpretations doesn’t establish
that the text is ambiguous. Klun v. Klun, 2019 CO 46, ¶ 18. If the
text is unambiguous, our analysis is done; “we apply it as written —
5
venturing no further.” Blooming Terrace No. 1, LLC v. KH Blake St.,
LLC, 2019 CO 58, ¶ 11.
1. The Direct File Statute
¶ 13 While section 19-2-104(1)(a), (7), C.R.S. 2019, confers
exclusive jurisdiction on the juvenile court over cases concerning
juveniles between ten and eighteen years of age, the statute
recognizes an exception where section 19-2-517 applies. § 19-2-
104(2); see also Sandoval, ¶¶ 16-17. Before turning to the merits of
Garcia’s argument, we offer an overview of the direct file statute.
¶ 14 Direct filing is authorized when the prosecution charges a
juvenile with committing an offense enumerated in the direct file
statute. Sandoval, ¶ 17; see § 19-2-517. Section 19-2-517(1)
specifies the circumstances in which a district attorney may directly
file charges in district court against a juvenile. As relevant here,
this includes when a juvenile “is sixteen years of age or older at the
time of the commission of the alleged offense” and “[i]s alleged to
have committed a class 1 or class 2 felony.” § 19-2-517(1)(a)(I).
¶ 15 When directly filing enumerated charges in district court, the
district attorney can also file unenumerated charges. Flakes v.
People, 153 P.3d 427, 434 (Colo. 2007) (“[T]he district court
6
exercises ancillary jurisdiction to permit the filing of unenumerated
charges” against a juvenile in district court.).
¶ 16 Subsection (6) of section 19-2-517 provides for sentencing of a
juvenile who is convicted of an offense directly filed in district court:
(a) If a juvenile is convicted following the filing
of criminal charges by information or
indictment in the district court pursuant to
this section, the district judge shall sentence
the juvenile either:
(I) As an adult; except that a juvenile is
excluded from the mandatory minimum
sentencing provisions in section 18-1.3-406,
C.R.S., unless the juvenile is convicted of a
class 1 felony or a sex offense that is subject to
part 9 of article 1.3 of title 18, C.R.S.; or
(II) To the youthful offender system in the
department of corrections in accordance with
section 18-1.3-407, C.R.S.; except that a
juvenile shall be ineligible for sentencing to the
youthful offender system if the juvenile is
convicted of:
(A) A class 1 felony;
(B) Any sexual offense described in section 18-
6-301 or 18-6-302, C.R.S., or part 4 of article
3 of title 18, C.R.S.; or
(C) A second or subsequent offense, if the
juvenile received a sentence to the department
of corrections or to the youthful offender
system for the prior offense.
. . . .
7
(b) The district court judge may sentence a
juvenile pursuant to the provisions of this
article if the juvenile is convicted of a lesser
included or nonenumerated felony offense for
which criminal charges could not have been
originally filed by information or indictment in
the district court pursuant to this section. If
the juvenile is convicted of only a misdemeanor
offense or misdemeanor offenses, the court
shall adjudicate the juvenile a delinquent and
sentence the juvenile pursuant to this article.
(c) If a juvenile is convicted of an offense that is
not eligible for district court jurisdiction under
either this section or section 19-2-518, the
juvenile shall be remanded to juvenile court.
§ 19-2-517(6)(a)-(c).
¶ 17 Thus, the direct file statute creates four separate sentencing
tracks based on the severity of the offense of which the juvenile is
convicted after a direct filing in district court. These tracks govern
whether the district court or the juvenile court have jurisdiction to
sentence the juvenile. These tracks also govern the type of sentence
— adult or juvenile — the sentencing court may impose.
¶ 18 First, under section 19-2-517(6)(a) the district court shall
impose the sentence when the juvenile is convicted of an offense
that was eligible for direct file pursuant to section 19-2-517(1).
This includes class 1 or 2 felonies and sexual assaults that are
8
crimes of violence, among other offenses. Under this track, the
district court has the discretion to impose either an adult sentence
or a sentence to the youthful offender system. This discretion,
however, is subject to a limitation: for class 1 felonies and certain
sexual offenses, the court must impose an adult sentence. § 19-2-
517(6)(a)(II)(A)-(C).
¶ 19 Second, under the first clause of section 19-2-517(6)(b), if the
juvenile is convicted of a lesser included offense — or an
unenumerated felony offense that was filed along with a charge that
was eligible for direct file, even if, standing alone, that
unenumerated felony offense couldn’t have been directly filed — the
district court must sentence the juvenile, but retains discretion to
impose either an adult or juvenile sentence.
¶ 20 Third, under the second clause of section 19-2-517(6)(b), if the
juvenile is only convicted of a misdemeanor, the district court must
impose a juvenile sentence.
¶ 21 Finally, under section 19-2-517(6)(c), if the juvenile is
convicted of an offense that isn’t covered by any of the foregoing
subsections, such as a petty offense or traffic offense, then the
9
district court doesn’t retain jurisdiction, but must remand the
juvenile for sentencing in juvenile court.
¶ 22 Accordingly, subsection (6)(c) only applies to situations that
aren’t explicitly covered by the preceding provisions of section 19-2-
517.
2. Application
¶ 23 Here, because Garcia was seventeen years old at the time of
the offenses and the original charges included two class 1 felonies,
the prosecution properly filed charges against him directly in
district court pursuant to section 19-2-517(1)(a)(I). Neither party
disputes this.
¶ 24 At issue is the proper interpretation of subsection (6)(c) of the
direct file statute. § 19-2-517(6)(c) (“If a juvenile is convicted of an
offense that is not eligible for district court jurisdiction under either
this section or [the transfer statute], the juvenile shall be remanded
to juvenile court.”) (emphasis added).
¶ 25 When the parties entered the plea agreement, the prosecution
moved to dismiss the only charges that made Garcia’s case eligible
for direct filing in district court. Garcia argues that when the
district court granted the prosecution’s motion to dismiss the
10
class 1 felony charges, it lost jurisdiction over his case. Garcia
emphasizes that the charges for which he was convicted under the
plea agreement — two counts of tampering with a deceased human
body, class 3 felonies — aren’t, standing alone, eligible for direct
filing under the statute. Therefore, Garcia argues that section 19-2-
517(6)(c) required the district court to remand him for sentencing in
juvenile court. We disagree.
¶ 26 The provisions of subsection (6)(b) are controlling under the
circumstances of this case. Specifically, the first clause of
subsection (6)(b) vests the district court with jurisdiction to impose
the sentence in this case. Subsection (6)(b) provides as follows:
The district court judge may sentence a
juvenile pursuant to the provisions of this
article if the juvenile is convicted of a lesser
included or nonenumerated felony offense for
which criminal charges could not have been
originally filed by information or indictment in
the district court pursuant to this section. . . .
§ 19-2-517(6)(b) (emphasis added).
¶ 27 Garcia pleaded guilty to two unenumerated felonies. It’s true
that, standing alone, the prosecution couldn’t have filed these
unenumerated class 3 tampering charges directly in district court.
The district court, however, had ancillary jurisdiction over the
11
tampering charges because Garcia was also “alleged to have
committed a class 1 . . . felony.” See § 19-2-517(1)(a)(I). Based on
the plain reading of section 19-2-517(6)(b), notwithstanding the
dismissal of the murder charges, the district court retained
jurisdiction to sentence Garcia for these unenumerated felonies.
Moreover, the district court had discretion to impose a juvenile
sentence or an adult sentence. This analysis disposes Garcia’s
jurisdictional challenge.
¶ 28 Garcia’s urged interpretation of the statute would render the
first clause of subsection (6)(b) meaningless. We reject an
interpretation that requires us to subtract words from the statute.
See Smokebrush, ¶ 18. Although we acknowledge that subsection
(6)(c) does provide for remand to the juvenile court when no other
provision of section 19-2-517 applies, we conclude that in Garcia’s
case, subsection (6)(b) is directly on point. Therefore, mandatory
remand to juvenile court wasn’t triggered here.
¶ 29 Garcia’s urged interpretation would also create a glaring
anomaly, as the statute would require the court to remand a
juvenile convicted of an unenumerated felony but retain jurisdiction
12
to sentence the juvenile if he or she is only convicted of a
misdemeanor.
¶ 30 Instead, we conclude that the first clause of subsection (6)(b)
gives the “district court judge” discretion to impose a juvenile
sentence or an adult sentence. Consistent with this — and in
consideration of the reduced severity of the offense — the second
clause of subsection (6)(b) requires the district court to impose a
juvenile sentence for a misdemeanor offense. The fact that the
second clause specifies that the court “shall” impose the sentence
(rather than remand to juvenile court) indicates that the same
requirement extends to sentencing for unenumerated felonies;
however, in the latter case, the district court “may” impose either a
juvenile or an adult sentence. § 19-2-517(6)(b).
¶ 31 This interpretation doesn’t render (6)(c) superfluous. Rather,
it appears that the General Assembly added this subsection to give
unequivocal instruction to courts when all the provisions of the
direct file statute and the transfer statute are inapplicable. For
example, subsection (6)(c) applies when a direct-filed juvenile is
convicted of only a petty offense or a traffic offense that was
charged along with the original eligible offenses. Likewise, the
13
subsection would be triggered when, as in Sandoval, the parties
and the trial court proceed through trial and sentencing on the
misunderstanding that one of the original counts qualified for direct
filing when, in fact, none of them did. See Sandoval, ¶¶ 18-19.
¶ 32 Therefore, the district court retained jurisdiction to impose an
adult sentence on Garcia pursuant to section 19-2-517(6)(b) even
though the prosecution dismissed the class 1 felony charges.
Because we conclude that the district court had jurisdiction under
the provisions of the direct file statute, we need not, and therefore
don’t, reach the issue of whether Garcia would have been subject to
transfer pursuant to section 19-2-518, C.R.S. 2019, or what the
appropriate remedy would be in the event that the district court
didn’t have jurisdiction to impose an adult sentence.
B. Consideration of Dismissed Charges at Sentencing
¶ 33 Next, Garcia contends that the district court abused its
discretion by imposing the maximum sentence for his class 3 felony
convictions after considering conduct related to the dismissed
murder charges. Garcia argues that his sentence amounts to
punishment for failure to admit to offenses that were dismissed and
that were never proved. We disagree.
14
1. Additional Facts
¶ 34 At the two-day sentencing hearing, both parties introduced
extensive testimony from their respective witnesses. The district
court heard testimony from Jon Holt, the lead investigator,
indicating that the text messages and the location history on the
phones involved in discovery didn’t support Garcia’s accounts.
Garcia claimed that unknown masked men surprised him and his
codefendant, seized their phones for several hours, and ultimately
told them to dispose of the victims’ bodies.
¶ 35 Investigator Holt indicated that Garcia’s version of events
wasn’t corroborated by other evidence in the case. The presentence
investigation (PSI) report — on which the court partially relied at
sentencing — offers a coherent summary of evidence uncovered by
investigators, which suggests Garcia’s involvement in the murders:
A timeline was comprised showing a
correlation between [codefendant, Garcia, and
codefendant’s girlfriend], Elizabeth, as well as
the Intoxalock Logs. These messages begin at
5:57 PM on March 22, 2017 and continue until
1:34 PM on March 27, 2017. This timeline
displays a series of events and conversations
linking [codefendant] and [Garcia] to the
disappearance of [victim Macias] and [victim
McMinn] and the burning and disposal of their
15
bodies afterwards. These specific timeline
entries are attached to the report.
Based on the information obtained in the
investigation, it appeared that [codefendant]
lured [victim Macias] to the shop [on] highway
34 to complete a drug transaction. When
[victim Macias] arrived, [codefendant] lured
[victim Macias] to a back room where [Garcia]
was waiting. It is very likely that [victim
Macias] and [victim McMinn] were killed at
that location and moved to an unknown
location. Messages indicate that the shop had
been cleaned and that the bodies were burned
a few days later at an unknown location.
¶ 36 The PSI report supplemented the testimony the district court
heard from Lieutenant Jon Horton, the lead detective, at the
reverse-transfer hearing. At both the sentencing and reverse-
transfer hearings, the defense exercised its right to cross-examine
the prosecution’s witnesses, and to elicit lengthy testimony from
defense witnesses.
¶ 37 Based on the foregoing, the court found an “abundance of
reliable and trustworthy evidence indicating that [Garcia] was
involved and voluntarily participated in the events that led to the
murders.” The court further found that Garcia was “attempting to
conceal his involvement or the involvement of his known
accomplices” in the murders. The court stated:
16
The cell phone records, the text messages
between [Garcia and codefendant], the Google
searches, the GPS coordinates from the
interlocking device on [victim Macias’] car, this
scientific and electronic evidence doesn’t lie.
These are reliable, indisputable, and
incontrovertible evidence of what actually
happened. This evidence is not even remotely
consistent with the statements that [Garcia]
made during the proffer.
After considering all of the evidence that’s been
presented and the factors that I am to consider
when imposing a sentence, including . . . the
imposition of a sentence relative to the
seriousness of the offense, the need to prevent
crime and to promote respect of the law by
providing an effective deterrent to others likely
to commit similar offenses, and to promote
acceptance of responsibility and accountability
by offenders, and healing for victims in the
community, I conclude that a sentence to the
Department of Corrections is called for in this
case.
2. Standard of Review
¶ 38 Sentencing is by its nature a discretionary function. People v.
Beatty, 80 P.3d 847, 855 (Colo. App. 2003). The trial court is
accorded wide latitude in its sentencing decisions. Id. We won’t
reverse a district court’s sentencing decision unless the court
abused its discretion. Lopez v. People, 113 P.3d 713, 720 (Colo.
2005). To constitute an abuse of discretion, a sentence must be
17
manifestly arbitrary, unreasonable, or unfair. People v. Herrera,
2014 COA 20, ¶ 16. Likewise, a lower court abuses its discretion if
its discretionary decision is based on an erroneous understanding
or application of the law. Margerum v. People, 2019 CO 100, ¶ 9.
¶ 39 A party generally can’t challenge the propriety or fairness of a
sentence that’s within the range agreed upon by the parties in the
plea agreement. § 18-1-409, C.R.S. 2021. An appellate court may,
however, review the manner in which the trial court imposed the
sentence, including the sufficiency and accuracy of the evidence on
which the district court based the sentence. Sullivan v. People,
2020 CO 58, ¶ 26.
3. Discussion
¶ 40 First, Garcia wasn’t acquitted of the murder charges. Rather,
the prosecution dismissed those charges as part of a plea
agreement. Under Colorado law, it is proper for a sentencing court
to consider charges that are dismissed as part of a plea agreement.
¶ 41 Second, Garcia’s argument rests on the faulty premise that his
sentence was based on evidence of the murder charges that was
introduced solely at the preliminary hearing. Garcia claims that
this evidence wasn’t subjected to adversarial testing. The record
18
contradicts this. We conclude that the district court did find the
evidence of the dismissed murder charges by a preponderance of
the evidence.
¶ 42 Finally, Garcia’s reliance on Graham v. Florida, 560 U.S. 48
(2010), and Miller v. Alabama, 567 U.S. 460 (2012), is misplaced
because the court didn’t sentence him to life imprisonment without
the possibility of parole.
a. Charges Dismissed as Part of Plea Agreement
¶ 43 In People v. Lowery, 642 P.2d 515 (Colo. 1982), the Colorado
Supreme Court dealt specifically with sentencing following a guilty
plea. In Lowery, the prosecution filed several charges against the
defendant as part of three separate cases pending in district court.
Id. at 516. Pursuant to plea negotiations in one of the cases, the
defendant pleaded guilty to one count of aggravated robbery, a class
3 felony. Id. After the entry of the plea, the court dismissed the
other criminal charges in all of the defendant’s other cases. Id.
¶ 44 When imposing the sentence, the district court considered,
among other things, the PSI reports and the “other charges which
had been filed in the district court, but which were dismissed upon
entry of the plea bargain.” Id. at 518. In upholding the sentence,
19
the supreme court ruled that “[w]ithin the court’s broad discretion
to sentence one convicted of a crime, it is proper for the judge to
consider aggravating or mitigating information, including other
charges dismissed at the time of the plea.” Id. (emphasis added).
¶ 45 Here, even if the court hadn’t found the evidence relating to
the dismissed murder charges by a preponderance of the evidence,
the district court properly considered this evidence. Further, the
twenty-four-year sentence is within the permissible range for two
class 3 felonies. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2021; § 18-1-
408(3), C.R.S. 2021. Moreover, the plea agreement explicitly
contemplated a sentence of up to twenty-four years. Therefore, we
find no abuse of discretion in the imposition of the sentence here.
b. Preponderance of the Evidence and Acquittal
¶ 46 Although it isn’t a prerequisite under Colorado law, the district
court did find the evidence relating to Garcia’s involvement in the
dismissed murder charges by a preponderance of the evidence.
Thus, even when tested according to the requirements for sentences
based on consideration of acquitted charges, we find that the
district court didn’t abuse its discretion.
20
¶ 47 Sentencing courts may consider both uncharged and acquitted
conduct that has been proved by a preponderance of the evidence in
determining the appropriate sentence. United States v. Watts, 519
may consider a wide range of evidence in determining a defendant’s
sentence, including facts relating to charges of which the defendant
has been acquitted); see also People v. Phong Le, 74 P.3d 431 (Colo.
App. 2003) (determining that where defendant was acquitted of
murder, but convicted of other crimes regarding the same victim,
sentencing court properly considered defendant’s conduct that set
events in motion that led to the victim’s death).
¶ 48 Garcia claims that the evidence of the dismissed murder
charges was only presented at the preliminary hearing. From that
premise, Garcia argues that preliminary hearings are limited to
matters necessary to a determination of probable cause, rather than
a consideration of the probability of conviction at the ensuing trial.
Hunter v. Dist. Ct., 190 Colo. 48, 51, 543 P.2d 1265, 1267 (1975).
¶ 49 Probable cause exists if there is a “fair probability” that the
conduct occurred. See People v. Polander, 41 P.3d 698, 703 (Colo.
2001). By contrast, a fact is established by a preponderance of the
21
evidence when, upon consideration of all the evidence, the existence
of that fact is more probable than its nonexistence. People v.
Garner, 806 P.2d 366, 370 (Colo. 1991). Garcia maintains,
therefore, that the district court erred in considering the evidence of
his conduct related to the murder charges.
¶ 50 The district court, however, didn’t only rely on evidence
presented by the prosecution at the preliminary hearing. Rather,
the district court considered evidence from the preliminary hearing
as well as several other sources, including (1) the two-day
sentencing hearing; (2) the reverse-transfer hearing, which the
court combined with the preliminary hearing and proof
evident/presumption great hearing, all of which spanned a total of
five days; (3) the PSI report; and (4) Garcia’s videotaped proffer.
Thus, the district court was justified in saying at sentencing that it
had “a very thorough understanding of the facts of this case, similar
to having conducted a trial.”
i. Appropriate Sentencing Factors and Murder Charges
¶ 51 As an initial matter, the record supports a finding that the
district court didn’t sentence Garcia for having committed the
murders. Rather, in imposing its sentence, the district court
22
considered evidence of Garcia’s involvement in the events that led to
the murders through the prism of two entirely appropriate
sentencing factors.
¶ 52 Under section 18-1-102.5, C.R.S. 2021, a defendant’s
sentence should serve, among others, two key purposes: (1)
exacting proportionate punishment in relation to the seriousness of
the offense; and (2) promoting the acceptance of responsibility and
accountability by offenders. See § 18-1-102.5(1)(a), (f).
¶ 53 At sentencing the court looked to overwhelming evidence that
suggested that Garcia hadn’t been truthful about his involvement in
the serious criminal activity at issue in this case. The court stated:
There is an abundance of reliable and
trustworthy evidence in this case indicating
that [Garcia] was involved and voluntarily
participated in the events that led to the
murders of [victim Macias] and [victim
McMinn]. I consider his attempts to destroy
and conceal the bodies of [the victims] to be
serious in this case, as he was attempting to
conceal his involvement or the involvement of
his known accomplices in these horrible
crimes. Mr. [Garcia] did not want the bodies to
be found because he did not want to be
charged with murder.
As part of the plea agreement that [Garcia]
entered into, he agreed to a proffer agreement,
which required a full, honest, and complete
23
disclosure to law enforcement of the events
surrounding the incident. I’ve reviewed the 3-
and-a-half-hour videotape proffer. I expected,
and I hoped, that [Garcia] would accept
responsibility for these crimes and
demonstrate some remorse. Instead, he was
not truthful. He did not accept any
responsibility for these crimes. And he showed
little remorse.
¶ 54 While, at first glance, it may appear that the district court
simply sentenced Garcia for having committed the murders, we
conclude that the court’s determination was more nuanced.
¶ 55 First, the above-quoted passage indicates that the court
looked to the general severity of the case. This applies to both the
tampering charges and the fact that they occurred in the context of
a murder case. As opposed to tampering with, for example,
electronic records or inanimate property, Garcia pleaded guilty to
the considerably more severe and odious crime of tampering with a
deceased human body. Similarly, the court looked to evidence that
Garcia committed the tampering offenses to conceal involvement in
activity related to first degree murder, the most serious offense with
which the prosecution could have charged Garcia.
¶ 56 Second, the court looked to the fact that, based on all the
evidence, it was clear that Garcia hadn’t been honest about the
24
extent of his involvement in the criminal activity. Thus, the court
noted a concerning lack of remorse, which necessarily indicated
that Garcia had not accepted responsibility for his actions.
¶ 57 Accordingly, Garcia’s assertion that the district court
punished him for the dismissed murder charges is inaccurate.
Rather, in crafting a sentence that was proportionate to the severity
of the criminal activity at issue, the court considered appropriate
factors.
ii. Adversarial Testing of Evidence
¶ 58 As detailed above, we note that apart from the preliminary
hearing, the parties subjected the evidence introduced at the
reverse-transfer hearing and two-day sentencing hearing to
extensive adversarial testing. In basing the sentence, in part, on
this “scientific and electronic” evidence that “doesn’t lie” and was
“reliable, indisputable, and incontrovertible,” the court — without
explicitly stating so — does appear to have found Garcia’s
involvement in the conduct that led to the murders by at least a
preponderance of the evidence.
¶ 59 The district court in Phong Le made a similar determination
25
Phong Le, the jury acquitted the defendant of murder, but found
him guilty of, among other offenses, burglary, theft, and conspiracy
to commit those offenses. Id. at 433. The sentencing court
imposed three consecutive maximum sentences totaling thirty-six
years. Id. at 434. At sentencing, the court stated, despite the
murder acquittals, “but for the actions of this individual, those
individuals would not have died, would not have been killed.” Id.
Just as here, the defendant in Phong Le argued that the sentences
were improper because the court’s comments reflected that the
court was “in effect, sentencing him for murders of which he had
been acquitted.” Id.
¶ 60 A division of this court rejected that argument, holding as
follows:
[E]ven if we were to agree with defendant that
his sentence is based to some extent on
conduct that formed the basis of a charge of
which he was acquitted . . . the sentencing
court’s consideration of defendant’s role in the
crimes that later led to the murders was not
tantamount to punishing him for crimes of
which he was acquitted.
26
Id. at 435. Rather, the court continued, “the [district court]
properly evaluated the overall circumstances of the crimes of which
¶ 61 In sum, the district court here found by a preponderance of
the evidence that Garcia was involved in the conduct that led to the
murders. The evidence of the dismissed murder charges was
subjected to adversarial testing. Accordingly, the district court
properly considered the dismissed charges in evaluating the overall
circumstances of the crimes forming the basis of conviction. The
district court’s sentencing determinations weren’t manifestly
arbitrary, unreasonable, or unfair.
c. Constitutional Claim
¶ 62 Finally, Garcia contends that the district court’s sentence runs
afoul of the Eighth Amendment to the United States Constitution as
articulated in Graham v. Florida and Miller v. Alabama. We
disagree.
¶ 63 The central precept of the Court’s rulings in Graham and Miller
is that juveniles are constitutionally different from adults for
sentencing purposes, such that they are categorically excluded from
27
Court held that the Eighth Amendment prohibits a sentence of life
imprisonment without the possibility of parole for juvenile offenders
convicted of non-homicide offenses. 560 U.S. at 82.
¶ 64 Similarly, in Miller, the Court ruled that a judge must have the
opportunity to consider mitigating circumstances before imposing
the “harshest possible penalty for juveniles.” 567 U.S. at 489. The
district court in that case had also sentenced a fourteen-year-old
convicted of murder to a term of life imprisonment without the
possibility of parole. Id. at 465. The rulings in Graham and Miller
don’t apply to Garcia’s case because the court didn’t sentence
Garcia to a term of life without parole.
¶ 65 “If the sentence is within the range required by law, is based
on appropriate considerations as reflected in the record, and is
factually supported by the circumstances of the case, an appellate
court must uphold the sentence.” People v. Fuller, 791 P.2d 702,
708 (Colo. 1990).
¶ 66 Here, as provided for in the plea agreement, the district court
sentenced Garcia to twenty-four years in the DOC. The record
shows that the district court, as it was required to do, considered
and balanced appropriate factors, including the nature and severity
28
of the offenses, the defendant’s character and rehabilitation
potential, the development of respect for the law, deterrence of
crime, and protection of the public. See id. Further, the court
addressed Garcia directly, saying that “it’s very possible that you
will be paroled before your 30th birthday. You’re going to be able to
marry, raise a family, and hopefully become a productive member of
the community.”
¶ 67 In sum, Graham and Miller are inapposite and the district
court’s sentence was based on appropriate considerations.
Therefore, Garcia’s sentence doesn’t violate constitutional
standards.
III. Conclusion
¶ 68 For the reasons set forth above, the district court’s sentence is
affirmed.
JUDGE FOX and JUDGE JOHNSON concur.
