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

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.
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

¶ 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. 
2

¶ 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.
3

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. 
4

¶ 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 
5

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 
6

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 
7

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 
8

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. 
9

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. 
10

¶ 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 
11

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. 
12

¶ 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 
13

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.
14

¶ 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 
15

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 
16

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 
17

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.
18

¶ 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 
19

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, 
20

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. 
21

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. 
22

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 
23

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. 
24

¶ 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. 
25

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). 
26

¶ 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.
27

¶ 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. 
28

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 
29

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 
30

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 LWPP40, 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 
31

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. 

 

8 As 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 
32

¶ 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. 
33

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 
34

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 
35

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.