Peo v. Vigil

22CA0551 Peo v Vigil 11-14-2024 modified

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0551
Jefferson County District Court No. 97CR1195
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Frank Vigil, Jr.,

Defendant-Appellant.

SENTENCE AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

Opinion Modified
on the Court’s Own Motion
Petition for Rehearing DENIED

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Solicitor General,
Denver, Colorado, for Plaintiff-Appellee

Kathleen A. Lord, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
OPINION is modified as follows:

Page 2, ¶ 2 currently reads:

His convictions were the result of his participation in the kidnapping,
rape, torture, and murder of a fourteen-year-old girl.

Opinion now reads:

His convictions were the result of his participation in the kidnapping,
torture, and murder of a fourteen-year-old girl.
¶1 Defendant, Frank Vigil, Jr. (Vigil), appeals the district court’s

order resentencing him to life with the possibility of parole (LWPP)

after forty years for his after deliberation first degree murder

conviction for a crime he committed as a juvenile. He contends that

the district court erred because, under the statute, his conviction

for felony murder, in addition to after deliberation murder, gave the

court discretion to sentence him to a determinate sentence of thirty

to fifty years. In the alternative, he argues that the sentencing

statute is ambiguous and that the concept of “maximizing the jury

verdict” should not apply to juvenile sentencing schemes. We

conclude that the district court properly interpreted the plain

language of the statute, and that, even if the statute is ambiguous,

the legislative history supports the district court’s interpretation.

Therefore, we affirm his sentence.

I. Background

¶2 In February 1998, Vigil, who was sixteen at the time, was

convicted of first degree felony murder and first degree after

deliberation murder, among other crimes. At the time of his

conviction, after deliberation murder and felony murder were class

1 felonies. Vigil’s felony murder conviction was merged with the

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after deliberation murder count. His convictions were the result of

his participation in the kidnapping, torture, and murder of a

fourteen-year-old girl. Vigil was sentenced to a mandatory sentence

of life without the possibility of parole (LWOP).

¶3 But in Miller v. Alabama, 567 U.S. 460, 489 (2012), the United

States Supreme Court held that imposing a mandatory LWOP

sentence on a juvenile who commits murder violates the Eighth

Amendment’s ban on cruel and unusual punishment. And later,

the Supreme Court announced that Miller’s holding should be

applied retroactively. Montgomery v. Louisiana, 577 U.S. 190, 206

(2016).

¶4 In response to Miller and Montgomery, the General Assembly in

2016 passed a framework for courts to resentence juveniles

unconstitutionally sentenced to LWOP. See § 18-1.3-401(4)(c)(I) to -

(c)(IV), C.R.S. 2024.

¶5 In 2022, Vigil availed himself of his statutory right to be

resentenced. After a two-day hearing, the district court resentenced

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Vigil to LWPP after forty years less earned time for his after

deliberation murder conviction.1

II. Standard of Review and Applicable Law

¶6 Whether a district court has the authority to impose a

particular sentence is a question of statutory interpretation we

review de novo. People v. Lowe, 2021 CO 51, ¶ 13.

¶7 Our main goal when interpreting any statute is to give effect to

the General Assembly’s intent. People v. Reyes, 2016 COA 98, ¶ 8.

To do so, we first look to the statute’s plain language. Id. When a

statute is “part of a complex of sentencing prescriptions, the entire

scheme should be construed to give consistent, harmonious, and

sensible effect to all its parts.” Id. (citation omitted).

III. Analysis

¶8 Section 18-1.3-401(4)(c)(I) authorizes courts to resentence

juveniles who were (1) convicted of a class 1 felony as a result of a

direct file or transfer of an offense committed on or after July 1,

1990, and before July 1, 2006, or (2) sentenced to mandatory

1 Because Vigil challenged his sentences as being illegal for other

convictions, the court held a two-day hearing. Vigil only appeals
his sentence of LWPP for after deliberation murder.

3
LWOP. As of 2018, our supreme court estimated that there were

fifty people serving sentences who fell under the statute. People v.

Brooks, 2018 CO 77, ¶ 13.2

¶9 The statute divides those individuals into two groups. Section

18-1.3-401(4)(c)(I)(A) includes individuals serving mandatory LWOP

sentences for felony murder committed as juveniles (felony murder

group). Individuals in this group can be sentenced either to a

determinate sentence of thirty to fifty years (if the court finds

extraordinary mitigating circumstances) or to a term of life

imprisonment with the possibility of parole after forty years. Id.

¶ 10 The second group in section 18-1.3-401(4)(c)(I)(B) comprise

individuals serving mandatory LWOP sentences for class 1 felonies

other than felony murder (any other class 1 felony group). In other

words, the second group comprises those juveniles who committed

any other form of first degree murder. Brooks, ¶ 13. The any other

class 1 felony group must be sentenced to a term of LWPP after

forty years. § 18-1.3-401(4)(c)(I)(B). Also, this group is not entitled

2 People v. Brooks, 2018 CO 77, ¶¶ 30-31, indicated that the

individuals who fall under the statute might increase due to a
solved “cold case” or because of postconviction relief.

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to a hearing before the district court on mitigating circumstances

for a determinate sentence of thirty to fifty years. Id.3

3 Section 18-1.3-401(4)(c)(I)(A)-(B) states as follows:

(c)(I) Notwithstanding subsections (1)(a)(V)(A), (4)(a), and (4)(b) of
this section, as to a person who is convicted as an adult of a class 1
felony following a direct filing of an information or indictment in the
district court pursuant to section 19-2.5-801, or transfer of
proceedings to the district court pursuant to section 19-2.5-802, or
pursuant to either of these sections as they existed prior to their
repeal and reenactment, with amendments, by House Bill 96-1005,
which felony was committed on or after July 1, 1990, and before
July 1, 2006, and who received a sentence to life imprisonment
without the possibility of parole:

(A) If the felony for which the person was convicted is murder in the
first degree, as described in section 18-3-102(1)(b), as it existed
prior to September 15, 2021, then the district court, after holding a
hearing, may sentence the person to a determinate sentence within
the range of thirty to fifty years in prison, less any earned time
granted pursuant to section 17-22.5-405, if, after considering the
factors described in subsection (4)(c)(II) of this section, the district
court finds extraordinary mitigating circumstances. Alternatively,
the court may sentence the person to a term of life imprisonment
with the possibility of parole after serving forty years, less any
earned time granted pursuant to section 17-22.5-405.

(B) If the felony for which the person was convicted is not murder in
the first degree, as described in section 18-3-102(1)(b), as it existed
prior to September 15, 2021, then the district court shall sentence
the person to a term of life imprisonment with the possibility of
parole after serving forty years, less any earned time granted
pursuant to section 17-22.5-405.

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¶ 11 Application of the sentencing alternatives depends on whether

a defendant was convicted of felony murder or of any other class 1

felony. But Vigil contends that he fits in both groups because he

was convicted of both after deliberation murder and felony murder.

He posits that because the statute does not explicitly guide courts

on the application of the statute for individuals with multiple

convictions, he is entitled to fall under the felony murder group.

Thus, he argues, he is eligible to prove mitigating circumstances

with the possibility of a determinate sentence under section 18-1.3-

401(4)(c)(I)(A).

¶ 12 In disagreeing with Vigil, the district court determined that he

could be resentenced only to LWPP because his felony murder

conviction merged into the after deliberation murder; therefore he

fell into the other class 1 felony group. The court rejected Vigil’s

argument that vacating his after deliberation murder conviction

would maximize the jury verdict. Instead, it concluded that after

deliberation murder was the proper conviction to apply to Vigil’s

resentencing, as it was the greater offense.

¶ 13 We agree with the district court’s interpretation and

application of section 18-1.3-401(4)(c)(I) for five reasons.

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¶ 14 First, we reject Vigil’s argument that sub-subparagraph “(A) is

not written in exclusive terms.” Vigil seeks an interpretation that

an individual does not have to be solely convicted of felony murder

to fall within the felony murder group; rather, that sub-

subparagraph (A) applies if there is any conviction for felony

murder. But we agree with the Attorney General that for Vigil to fall

outside of the any other class 1 felony group, his conviction for after

deliberation murder would need to be vacated because as long as

that conviction stands, he was convicted of a class 1 felony that was

not felony murder. See § 18-1.3-401(4)(c)(I)(B). That conviction

remains in effect.

¶ 15 Second, although dicta, Brooks contemplated a hypothetical

situation similar to Vigil’s circumstance: a juvenile charged as an

adult and convicted of both after deliberation murder and felony

murder for acts committed on or after July 1, 1990, and before July

1, 2006. Brooks, ¶ 33. In that situation, the supreme court

contemplated that a district court could have entered judgment on

a generic count of murder or on a single count of murder after

deliberation and then sentenced the juvenile to LWOP. Id. A

juvenile in those circumstances could then seek postconviction

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relief to invalidate his prior conviction, and the juvenile might

prevail with an amended judgment reflecting a conviction for felony

murder. Id. Such an individual would then qualify for a possible

determinate sentence under section 18-1.3-401(4)(c)(I)(A). Brooks, ¶

33.

¶ 16 The Brooks hypothetical contemplates that for a defendant

with both types of convictions to be eligible for the felony murder

group, the court would need to vacate the after deliberation murder

conviction to leave only a conviction of felony murder. This is not

Vigil’s situation. He does not challenge, in this appeal or otherwise,

his after deliberation murder conviction.

¶ 17 Third, Vigil concedes, and we agree, that his convictions for

felony murder and after deliberation murder cannot both stand.

Our supreme court has held that under the “judicially created rule

of merger ‘outside the context’ of a lesser included offense analysis,”

a defendant’s convictions for those two offenses must be merged, as

it violates double jeopardy if there is a single murder victim.

Thomas v. People, 2021 CO 84, ¶ 31; see also People v. Lowe, 660

P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not

be convicted of two murder convictions for a single victim because

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the legislature had not manifested “any clear intent that a

defendant could be convicted of more than one kind of first-degree

murder where there is but one victim”), abrogated on other grounds

by Callis v. People, 692 P.2d 1045 (Colo. 1984).

¶ 18 But importantly, even if two murder convictions merge

because of a single victim, “the trial court should be directed to

enter as many convictions and impose as many sentences as are

legally possible to fully effectuate the jury’s verdict.” Thomas, ¶ 54

(quoting People v. Glover, 893 P.2d 1311, 1315 (Colo. 1995)).

Therefore, the original trial court and resentencing court were

correct in merging felony murder into after deliberation murder, as

it is the greater offense. See People v. Wood, 2019 CO 7, ¶ 29 (“[B]y

merging the two murder convictions and imposing a single sentence

for first-degree murder, the state district court necessarily vacated

the conviction for second-degree murder, thereby avoiding

multiplicitous convictions.”).

¶ 19 Fourth, separate but related to the third reason, the legislative

history of the resentencing statute supports that felony murder is a

lesser offense than after deliberation murder. Although we

generally do not resort to the canons of statutory construction when

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we, as here, determine the statute is unambiguous, we do so in this

instance because Vigil contends the statute is ambiguous. See

Educhildren LLC v. Cnty. of Douglas Bd. of Equalization, 2023 CO

29, ¶ 27 (When the language of a statute is ambiguous, a court

employs the “tools of statutory interpretation, considering factors

such as ‘the consequences of a given construction, the end to be

achieved by the statute, and legislative history.’”) (citation omitted).

¶ 20 In originally distinguishing between felony murder and after

deliberation murder in section 18-1.3-401(4)(c)(I)(A) and (B) — when

both were class 1 felonies — the General Assembly likely made “a

policy judgment that a juvenile’s conviction for felony murder may

warrant a lesser penalty than a conviction for a different class 1

felony.” Brooks, ¶ 52. Brooks’ supposition manifested into the

policy judgment of the General Assembly when that body

reclassified felony murder and amended section 18-1.3-401(4)(c)(I).

¶ 21 Before September 15, 2021, when felony murder was a class 1

felony, § 18-3-102(1)(b), (3), C.R.S. 2019, the offense was described

as “[a]cting either alone or with one or more persons, he or she

commits or attempts to commit” various felony offenses “and, in the

course of or in furtherance of the crime that he or she is committing

10
or attempting to commit, or of immediate flight therefrom, the death

of a person, other than one of the participants, is caused by

anyone.” Effective September 15, 2021, the General Assembly

repealed section 18-3-102(1)(b), retaining the same offense elements

of felony murder, but reclassifying it as murder in the second

degree, a class 2 felony. Ch. 58, secs. 1-2, §§ 18-3-102, 18-3-103,

2021 Colo. Sess. Laws 235-36. This reclassification was the result

of the General Assembly considering it unjust to mandate the

harshest punishment available for someone “when the death of a

person is caused by a participant without deliberation in the course

of the commission of specified felony offenses.” 2021 Colo. Sess.

Laws at 235.

¶ 22 The General Assembly simultaneously amended section 18-

1.3-401(4)(c)(I)(A) to say, “If the felony for which the person was

convicted is murder in the first degree, as described in section 18-3-

102(1)(b), as it existed prior to [September 15, 2021], then the district

court, after holding a hearing, may sentence the person to a

determinate sentence . . . .” (Emphasis added.) Sec. 4, § 18-1.3-

401, 2021 Colo. Sess. Laws at 237-38. In other words, for

resentencing of juveniles who received LWOP, the court is to

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consider felony murder as it existed as a class 1 felony but

nonetheless treat it differently. Likewise, section 18-1.3-

401(4)(c)(I)(B) contains similar language, noting that provision

applies to individuals “for which the person was convicted is not

murder in the first degree, as described in section 18-3-102(1)(b), as

it existed prior to [September 15, 2021].” 2021 Colo. Sess. Laws at

238.

¶ 23 These legislative amendments distinguish between (a)

individuals who were convicted of felony murder when the death of

a person was caused without deliberation and (b) individuals

convicted of deliberate murder. Vigil was convicted of after

deliberation murder. Although his felony murder conviction was

previously classified as first degree murder, this does not change

the fact that these are two separate crimes and one must merge

into the other because there was a single victim. His interpretation

of the statute that felony murder and after deliberation murder are

interchangeable is contrary to the legislative intent; instead, the

former may receive a determinate sentence (with proof of mitigating

circumstances), whereas the latter may not.

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¶ 24 Fifth and finally, the Attorney General contends, and we agree,

that nothing in Miller or the post-Miller sentencing scheme suggests

that maximizing the sentence for a juvenile is inappropriate or

unconstitutional. Even though the juvenile justice system is

primarily intended to be rehabilitative instead of punitive, this does

not mean that we should not effectuate a jury’s verdict, especially

when Vigil has not cited, nor are we aware of, any Colorado

authority that treats multiplicity issues differently in the juvenile

system.

IV. Conclusion

¶ 25 The sentence is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.

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