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Garcia hopes to use new ND law for reducing juvenile sentences

Steven Mottinger represents Barry Garcia during his sentencing hearing July 2, 1996, for the murder of Cherryl Tendeland. Dave Wallis / Forum News Service1 / 2
Shane Tendeland, left, and his father, Pat, said Friday, Jan. 13, 2017, that they were satisfied with a judge's ruling denying a new sentence for Barry Garcia, the person convicted of killing Cherryl Tendeland in 1995. Dave Olson/Forum News Service2 / 2

BISMARCK — Attorneys for Barry Garcia, the man convicted of murdering a West Fargo woman when he was 16 years old more than two decades ago, say their client should be able to use a new North Dakota law to seek a reduced sentence.

Garcia's case will be heard by the state Supreme Court on Thursday, Sept. 14, about 21 years after he was sentenced to life in prison without the possibility of parole for shooting and killing Cherryl Tendeland as she sat in a parked car. Earlier this year, a Cass County judge rejected Garcia's petition to be resentenced.

In a brief, Garcia's attorneys argued his sentence is unconstitutional and the court should lift his parole restriction or send the case back to a lower court for proceedings consistent with a state law enacted this year or for resentencing.

House Bill 1195 allows people who were convicted as an adult for a crime they committed before they were 18 years old to seek a sentence reduction if they have served at least 20 years, the court determines they are not a danger to others and "the interests of justice warrant a sentence reduction." The bill passed the Legislature unanimously and became effective Aug. 1.

Garcia's attorneys, Samuel Gereszek and John Mills, said their client "is potentially eligible for relief under the new law, and this court should provide him with the opportunity to pursue that relief." Garcia is the only person in North Dakota to have been sentenced to life without parole for a crime committed when he or she was a juvenile, according to Cass County State's Attorney Birch Burdick's brief.

But Burdick argued that the new law doesn't apply to Garcia's case. He pointed to another section of state law that says "no part of this code is retroactive unless it is expressly declared to be so."

Rep. Lawrence Klemin, R-Bismarck, the bill's primary sponsor, said he didn't intend for it to be retroactive. He said the legislation arose out of several recent decisions from the U.S. Supreme Court, which said in 2012 that mandatory life without parole sentences for juveniles are unconstitutional.

Garcia's attorneys pointed to that case and others to argue the sentencing court "erroneously minimized the mitigating aspects of Mr. Garcia's youth." They said his his mother was stabbed to death when he was 12 years old, which had a "profound impact" on his life.

His attorneys said Garcia has matured during his time in prison, "embracing responsibility for his past crime and its consequences on the victims' family and community."

But Burdick said, contrary to two of the Supreme Court cases cited by Garcia's counsel, "the trial court was not mandated to sentence Garcia to life without parole for his crime, but rather did so in its discretion." He argued that the "trial court had all the information it needed to make an informed decision on Garcia's sentence."

Burdick noted that the pardon process "provided at least some opportunity to get out of prison if he changed sufficiently." The North Dakota Department of Corrections didn't have a record of Garcia applying for a pardon.

Josh Rovner, juvenile justice advocacy associate at the Sentencing Project based in Washington, D.C., said recent U.S. Supreme Court cases reflect a changing philosophy on sentencing juveniles, adding that one "cannot tell at the moment that someone is a teenager what their prospects are for the rest of their lives." More than 2,000 people across the country are serving life sentences without parole for crimes they committed when they were a juvenile, he said, most due to mandatory sentences.

Shane Tendeland, one of Cherryl's sons, said Wednesday his family prefers Garcia remain behind bars, adding that he hasn't "come out and apologized." He questioned how many appeal opportunities Garcia would be afforded.

"It seems like it never ends," Tendeland said.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

(701) 255-5607
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