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Garcia v. State

Supreme Court of North Dakota

November 16, 2017

Barry C. Garcia, Petitioner and Appellant
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge. AFFIRMED.

          Samuel A. Gereszek (on brief), East Grand Forks, Minnesota, and John R. Mills (argued), San Francisco, California, for petitioner and appellant.

          Birch P. Burdick, State's Attorney, Fargo, North Dakota, for respondent and appellee.


          Tufte, Justice.

         [¶ 1] Barry Garcia appeals from a district court order summarily dismissing his application for post-conviction relief. He argues his sentence of life imprisonment without the possibility of parole was imposed in violation of the Eighth Amendment and this Court should eliminate his parole restriction or remand for resentencing. We affirm.


         [¶ 2] On the evening of November 15, 1995, sixteen-year-old Barry Garcia drove around Fargo-Moorhead with three teenage members of the Skyline Piru Bloods street gang. The teens carried with them a sawed-off shotgun owned by the gang and 10 to 15 shotgun shells. While driving in a West Fargo residential area around 10 p.m., Garcia asked the driver to stop, after which he and another young man exited the vehicle. Garcia took the shotgun in hand and the two began walking around the neighborhood.

         [¶ 3] Nearby, Pat and Cherryl Tendeland were dropping off their friend, Connie Guler, at her home. Guler saw the two teens walking down the sidewalk toward the Tendeland car. Guler thought she saw the shorter of the two, later identified as Garcia, carrying a gun, but Pat Tendeland thought it was an umbrella. The two teens stood near Guler's driveway for awhile and then began walking back toward the Ford sedan. Thinking this was suspicious behavior, Pat Tendeland drove slowly away from Guler's driveway toward the Ford sedan. Garcia lagged behind the other teen, who walked briskly toward the Ford sedan. As the Ford started to pull away, Guler turned and saw Garcia standing next to the front passenger window of the Tendeland car. Garcia raised the shotgun and shot Cherryl Tendeland in the forehead. Shotgun pellets also struck Pat Tendeland's face. Pat Tendeland drove toward a nearby police station while Guler, a nurse, tended to Cherryl's wounds. Upon realizing the severity of Cherryl's wounds, they stopped and called 911 for emergency assistance. An ambulance arrived and took the Tendelands to the hospital. Cherryl Tendeland was pronounced dead at the emergency room.

         [¶ 4] Police officers determined the address of the Ford sedan's registered owner from a description of the sedan and its license plate number. The officers then located the car when it turned into the owner's driveway at 11:45 p.m. Garcia alone refused police orders to either remain in the car or lie on the ground. He fled on foot. Police recovered a sawed-off shotgun from the sedan's backseat along with several shotgun shells. Police chased Garcia and arrested him at a nearby athletic field. He had four shotgun shells in his possession. A juvenile petition was filed alleging Garcia had committed murder, attempted robbery, aggravated assault, and criminal street gang crime. At the State's request, the court transferred Garcia to adult court for trial.

         [¶ 5] At trial, the district court dismissed the robbery and criminal street gang charges. The jury found Garcia guilty of murder, a class AA felony, and aggravated assault, a class C felony. After a sentencing hearing, the district court sentenced Garcia to life imprisonment without parole on the murder conviction, and to a concurrent five years' imprisonment on the aggravated assault conviction.

         [¶ 6] Garcia appealed, arguing his sentence constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. This Court affirmed his conviction and sentence. State v. Garcia, 1997 ND 60, ¶ 60, 561 N.W.2d 599, cert. denied, 522 U.S. 874 (1997).

         [¶ 7] In 1998, Garcia applied for post-conviction relief. The district court denied his application, and Garcia appealed. While his appeal was pending, he filed a second application for post-conviction relief, and the district court denied the application. Garcia appealed, and the two appeals were consolidated. This Court affirmed the district court's decisions. Garcia v. State, 2004 ND 81, 678 N.W.2d 568.

         [¶ 8] In 2004, Garcia petitioned for a writ of habeas corpus in federal district court, raising many of the same issues he raised in his prior state cases, including that his sentence amounts to cruel and unusual punishment under the Eighth Amendment and that his counsel was ineffective because he failed to present mitigating information during sentencing. Garcia v. Bertsch, 2005 WL 4717675 (D. N.D. Sept. 12, 2005). The federal district court denied his petition. Garcia appealed, and the Eighth Circuit Court of Appeals affirmed the federal district court's decision. Garcia v. Bertsch, 470 F.3d 748 (8th Cir. 2006), cert. denied, 551 U.S. 1116 (2007).

         [¶ 9] In 2013, Garcia petitioned for a writ of habeas corpus in federal district court, arguing his sentence constitutes cruel and unusual punishment because he was a juvenile at the time of the offense, citing Miller v. Alabama, 597 U.S. 460 (2012). The federal district court concluded it lacked subject matter jurisdiction over Garcia's second petition and dismissed the petition without prejudice. Garcia v. Bertsch, 2013 WL 1533533 (D. N.D. Apr. 12, 2013).

         [¶ 10] In 2016, Garcia applied for post-conviction relief, arguing his sentence constitutes cruel and unusual punishment and violates the North Dakota and United States Constitutions. After an attorney was appointed to represent Garcia, his application was supplemented, arguing his sentence is unconstitutional as a result of recent United States Supreme Court decisions causing a significant change in substantive and procedural law.

         [¶ 11] The State moved to dismiss or for summary disposition. After a hearing, the district court denied the State's motion to dismiss, granted the State's motion for summary disposition, and denied Garcia's application for post-conviction relief.


         [¶ 12] An application for post-conviction relief may be summarily dismissed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Leavitt v. State, 2017 ND 173, ¶ 4, 898 N.W.2d 435. We review an appeal of a summary denial of post-conviction relief as we would review an appeal from summary judgment. Id. "The party opposing the motion is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact." Id. (quoting Lindsey v. State, 2014 ND 174, ¶ 7, 852 N.W.2d 383).

         [¶ 13] Garcia argues the district court erred in summarily dismissing his application for post-conviction relief, because his sentence of life imprisonment without parole was imposed in violation of the Eighth Amendment to the United States Constitution. He contends the district court inflicted cruel and unusual punishment by sentencing him without an individualized consideration of the distinct attributes of his youth and giving mitigating effect to his youth before he was sentenced to life without parole.

         [¶ 14] The issue raised by Garcia is not a facial challenge to the statutes authorizing the sentence he received. Rather, he argues his sentence violates the Eighth Amendment as a result of inadequate consideration by the sentencing court at the sentencing hearing regarding whether Garcia's murder conviction reflected transient immaturity or irreparable corruption. See Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1224 (2010) ("A violation of the Constitution is an event. There is a moment before the constitutional violation. There is a moment after the violation."). If the district court at sentencing in 1996 gave adequate consideration to these factors, the sentence was constitutional when imposed and remains constitutional today. If these factors were not adequately considered, Garcia argues he must have a new sentencing hearing or we must strike the restriction on parole eligibility from his sentence.

         [¶ 15] The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Eighth Amendment applies to the states through the Fourteenth Amendment. Roper v. Simmons, 543 U.S. 551, 560 (2005). The U.S. Supreme Court has explained that "proportionality is central to the Eighth Amendment" and the amendment's protections include "the right not to be subjected to excessive sanctions." Miller, 567 U.S. at 469 (citations omitted). The proportionality of a sentence is measured with reference to both the offense and the offender. Id. ...

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