Barry C. Garcia, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge. AFFIRMED.
A. Gereszek (on brief), East Grand Forks, Minnesota, and John
R. Mills (argued), San Francisco, California, for petitioner
P. Burdick, State's Attorney, Fargo, North Dakota, for
respondent and appellee.
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
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,
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
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
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.