Peo v. Garcia

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.

. . . .

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(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

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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.

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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

U.S. 148, 157 (1997); see also Beatty, 80 P.3d at 856 (a trial court

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

that was upheld by a division of this court. See 74 P.3d at 435. In

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

he was convicted.” Id. (emphasis added).

¶ 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

certain punishments. See Miller, 567 U.S. at 471. In Graham, the

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.