Johnson v. Gunter, 92SA327

• Decision Date: 24 May 1993
• Docket Number: No. 92SA327,92SA327
• Citation: 852 P.2d 1263
• Parties: Wilbert JOHNSON, Plaintiff-Appellant, v. Frank GUNTER, Director of Department of Corrections, and, Mark McKinna, Superintendent of Limon Correctional Facility, P.O. Box 10,000, Limon, Colorado 80826, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1263

852 P.2d 1263

Wilbert JOHNSON, Plaintiff-Appellant, v. Frank GUNTER, Director of Department of Corrections, and,

Mark McKinna, Superintendent of Limon Correctional

Facility, P.O. Box 10,000, Limon,

Colorado 80826, Defendants-Appellees.

No. 92SA327.

Supreme Court of Colorado,

En Banc.

May 24, 1993.

Rehearing Denied June 14, 1993.

Wilbert Johnson, pro se.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, John J. Krause, Asst. Attys. Gen., Crim. Enforcement Section, Denver, for defendants-appellees.

Justice ERICKSON delivered the Opinion of the Court.

Wilbert Johnson, appearing pro se, appeals from an order of the Lincoln County District Court denying his petition for habeas corpus relief which sought release from confinement on the basis that his 1985 conviction as an habitual criminal is void. Johnson, who is incarcerated in the Limon Correctional Facility in Lincoln County, asserts that the district court erred in concluding that his claims could not be raised in a petition for writ of habeas corpus, but rather, that they must be raised either on direct appeal or by a Crim.P. 35(c) motion for relief from judgment. For the reasons stated in this opinion, we reverse and remand to the Lincoln County District Court for further proceeding consistent with this opinion. On remand, the Lincoln County District Court is not required to address the substantive claims raised in Johnson's habeas petition because Johnson subsequently filed a CrimP. 35(c) motion for post-conviction relief in the sentencing court in Douglas County asserting substantially the same substantive claims. ¹ The Lincoln County District Court must, however, determine whether Johnson is entitled to habeas corpus relief based on the reversal by the court of appeals of one of the predicate felony convictions supporting Johnson's adjudication and life sentence as an habitual criminal. See People v. Johnson, No. 91CA248 (Colo.App. Nov. 13, 1992), cert. denied, No. 93SC13 (Colo. Apr. 19, 1993).

I

In October 1984, Johnson was charged by information with the crimes of robbery from the elderly; first-degree burglary; theft from the elderly; and conspiracy. Trial commenced on May 25, 1985, in the Douglas County District Court. On May 31, 1985, after the defense rested, the prosecution sought to amend the charging information to include additional counts for violation of the habitual criminal act. §§ 16-13-101 to -103, 8 C.R.S. (1985 Supp.). The Douglas County District Court, over Johnson's objection, allowed the amendment, arraigned Johnson, and proceeded to trial on the habitual criminal charges.

Johnson was convicted by the jury of theft from the elderly and conspiracy, and was adjudged an habitual criminal. On December 19, 1985, Johnson was sentenced to life imprisonment in the Douglas County District Court on the habitual-criminal adjudication, four years for the theft from the elderly conviction, and two years for the conspiracy conviction. ²

On July 9, 1992, Johnson filed a petition for writ of habeas corpus in the Lincoln County District Court, alleging that he was improperly charged, arraigned, and tried on the habitual criminal charges by the Douglas County District Court in 1985. Johnson claimed that his adjudication as an habitual criminal was void and that he was entitled to immediate release. The Lincoln County District Court denied Johnson's petition without conducting a hearing, concluding that the issues raised in Johnson's habeas petition were properly addressed only on direct appeal or by filing a Crim.P. 35(c) motion for post-conviction relief which must be filed in the sentencing court. See Crim.P. 35(c)(3) (stating that a motion "to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a violation of [a defendant's] constitutional rights" may be filed in "the court which imposed the sentence"). ³

Johnson appealed, claiming that the Lincoln County District Court erred by not conducting a hearing on his habeas petition and by not addressing his allegations of error regarding the amendment of the information to include habitual criminal counts after the defense rested, and the simultaneous arraignment and immediate trial of the habitual criminal charges.

II

A habeas corpus proceeding is a civil action, the purpose of which is to determine whether the petitioner is being lawfully detained and held by the respondent. Cardiel v. Brittian, 833 P.2d 748, 751 (Colo.1992). "Where the petitioner asserts a right to freedom from custody, the only issue to be resolved is whether the custodian has authority to deprive the petitioner of liberty." Moody v. Corsentino, 843 P.2d 1355, 1361 (Colo.1993) (citing Cardiel, 833 P.2d at 752). The only parties to a habeas corpus proceeding are the petitioner and the person holding the petitioner in custody, Cardiel, 833 P.2d at 751, and the procedures by which Colorado courts conduct the proceedings are statutorily governed by sections 13-45-101 to -119, 6A C.R.S. (1987 & 1992 Supp.).

Generally, a court will not consider a request for habeas corpus relief unless the petitioner has no other forms of relief available. Kodama v. Johnson, 786 P.2d 417, 419 (Colo.1990); Mulkey v. Sullivan, 753 P.2d 1226, 1232 (Colo.1988); Garrett v. Knight, 173 Colo. 419, 421 480 P.2d 569, 570-71 (1971). However, we have established a limited exception to the general rule in situations were a pro se petitioner has asserted claims in a petition for habeas corpus, that, rather than being brought in a habeas petition should have been raised by way of a Crim.P. 35(c) motion. See Kailey v. State Dept. of Corrections, 807 P.2d 563, 567 (Colo.1991) (stating that although the pro se habeas petitioner was not entitled to habeas corpus relief, the district court should have treated his petition as a Crim.P. 35(c) motion for post-conviction relief); Chatfield v. Colorado Court of Appeals, 775 P.2d 1168, 1173-74 (Colo.1989) (same); White v. Denver Dist. Court, 766 P.2d 632, 634 (Colo.1988) (same). ⁴

In this case, the Lincoln County District Court did not err in its determination that the allegations raised in Johnson's habeas petition were properly raised only on direct appeal, or by way of a Crim.P. 35(c) motion for post-conviction relief and not by a petition for writ of habeas corpus. ⁵ However, based on our prior decisions, the trial court, rather than denying Johnson's habeas petition, should have converted it to a Crim.P. 35(c) motion and transferred venue to the sentencing court in Douglas County. See Kailey, 807 P.2d at 565 (court in which habeas petition was filed treated petition as a motion for post-conviction relief pursuant to CrimP. 35(c) and transferred venue to the sentencing court). ⁶ We disapprove of the Lincoln County District Court's denial and dismissal of Johnson's habeas petition. However, in this case there is no reason to transfer venue to Douglas County because Johnson has already filed a CrimP. 35(c) motion in the Douglas County District Court raising substantially the same issues.

III

Because Johnson subsequently filed a Crim.P. 35(c) motion in the sentencing court in Douglas County, ordinarily we would not remand this case back to the Lincoln County District Court. However, subsequent events support our remand. Specifically, the court of appeals reversed Johnson's 1980 second-degree assault conviction which causes Johnson's confinement on the habitual criminal adjudication and the resulting mandatory life sentence to be the key issue in this habeas corpus case. People v. Johnson, No. 91CA248 (Colo.App. Nov. 13, 1992), cert. denied, No. 93SC13 (Colo. Apr. 19, 1993).

In May 1985, Johnson was adjudged an habitual criminal offender in addition to being convicted by a jury of theft from the elderly and conspiracy. ⁷ The predicate convictions giving rise to Johnson's habitual criminal adjudication were: (1) a March 25, 1981, conviction for second-degree forgery; (2) a November 17, 1980, conviction for second-degree assault; and (3) a September 22, 1967, conviction for burglary and larceny.

On November 13, 1992, in an unpublished opinion, the court of appeals reversed Johnson's 1980 second-degree assault conviction because the trial court in that case had failed to determine Johnson's competency to proceed to trial after the issue of his competency had been raised. People v. Johnson, No. 91CA248 (Colo.App. Nov. 13, 1992), cert. denied, No. 93SC13 (Colo. Apr. 19, 1993). On April 19, 1993, we denied the prosecution's petition for writ of certiorari to review the decision of the court of appeals. Because one of the predicate convictions used to support Johnson's habitual criminal adjudication has been reversed, the habitual criminal judgment may be void. ⁸ If the habitual criminal judgment is void because the statutory requirements of section 16-13-101 have not been satisfied, Johnson would be entitled to immediate release from confinement. See People v. District Court, 192 Colo. 375, 376, 559 P.2d 235, 236 (1977) (stating that a defendant is not precluded from challenging an enhanced sentence resulting from an habitual criminal charge if a predicate conviction supporting the sentence enhancement is later reversed). ⁹

A petition for habeas corpus relief is the proper mechanism for addressing the question of whether Johnson is currently being illegally confined. See Mulkey, 753 P.2d at 1232 (stating that habeas corpus is appropriate to review whether a conviction is void). In the interest of judicial economy, rather than requiring Johnson to file a new petition for habeas corpus relief, we remand this case to the Lincoln County District Court with directions to conduct a hearing on the propriety of Johnson's continued confinement as an habitual criminal once his 1980 second-degree assault conviction was reversed.

IV

We disapprove of the Lincoln...