Close v. People, 06SC520.
| Decision Date | 24 March 2008 |
| Docket Number | No. 06SC520.,06SC520. |
| Citation | 180 P.3d 1015 |
| Parties | James CLOSE, Petitioner v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Douglas K. Wilson, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
John W. Suthers, Attorney General, Laurie A. Booras, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.
In this Crim. P. 35(c) case, we are asked to address the issue of whether conflict-free counsel should be appointed for James Close in order to investigate and pursue potential relief from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception to the time bar and a colorable claim of ineffective assistance of counsel for failure to raise the applicability of People v. Nguyen, 900 P.2d 37 (Colo.1995). The Colorado Office of the Public Defender represented Close in direct appeal and post-conviction proceedings leading to our decision in Close v. People ("Close III"), 48 P.3d 528 (Colo. 2002). Close III involved a timely-filed Crim. P. 35(c) motion brought by the public defender's office on behalf of Close.
After our decision in Close III, Close, filing pro se, amended his previously filed Crim. P. 35(a) motion to include a Crim. P. 35(c) motion requesting the appointment of conflict-free counsel to represent him in ineffective assistance of counsel proceedings involving the public defender's office. In this motion, Close raised the applicability of our decision in Nguyen to his sentence. Applied to Close, Nguyen could result in a reduction of Close's sentence from sixty to thirty years. The public defender's office did not raise the applicability of Nguyen at any time during its representation of Close in the trial court, court of appeals, or before this court in the proceedings leading to our decision in Close III.
In the case now before us, on remand from Close III, the trial court summarily ruled that Close's pro se Crim. P. 35(a) and 35(c) motions, as well as Crim. P. 35(b) and 35(c) motions filed on his behalf by the public defender's office, were all time barred. The court of appeals affirmed. We granted certiorari to review the court of appeals' judgment.1
We hold that the trial court must appoint conflict-free counsel to investigate and pursue potential relief from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception of section 16-5-402(2)(d) and a colorable claim of ineffective assistance of counsel for failure of the public defender's office to raise the applicability of the Nguyen decision to Close's sentence. In light of our decision, we find it unnecessary to address the remainder of the certiorari issues.
Close is currently serving a sixty year Department of Corrections sentence for participating, with three other individuals, in the attack and robbery of six Japanese students from Teikyo Loretto Heights University. A jury convicted Close in 1991 of criminal mischief, under section 18-4-501, 8B, C.R.S. (1986); first degree criminal trespass, under section 18-4-502, C.R.S. (1986); theft, under section 18-4-401, C.R.S. (1986); conspiracy to commit criminal mischief and theft, under section 18-2-101, C.R.S. (1986); aggravated robbery, under section 18-2-201, C.R.S. (1986); attempted aggravated robbery, under section 18-2-101, C.R.S. (1986); second-degree assault, under section 18-3-203, C.R.S. (1986); ethnic intimidation, under section 18-9-121, 8B, C.R.S. (1990 Cum.Supp.); and conspiracy to commit assault and ethnic intimidation, under section 18-2-201, C.R.S. (1986). At sentencing, the trial court applied the mandatory crime-of-violence sentence enhancement to Close's sentence for the six second-degree assault convictions.
During trial, Close was represented by a court-appointed public defender. Following Close's sentencing, the public defender's office requested that the trial judge appoint appellate counsel to represent Close on appeal, arguing that Close's appellate claim had merit. The trial judge then appointed the public defender's office to represent Close in appellate proceedings. With the assistance of the public defender's office, Close filed a direct appeal and, due to a court of appeals' judgment, People v. Close ("Close I"), 867 P.2d 82 (Colo.App.1993), obtained a reduction in his sentence from seventy-five to sixty years. The resulting sixty year sentence was the minimum prescribed by the crime-of-violence statute, as it existed prior to our decision in Nguyen — six consecutive five year sentences for second-degree assault and three consecutive ten year sentences for armed robbery.
The harshness of his remaining sentence, even after a fifteen year reduction, prompted the trial judge to remark that he would reduce Close's sentence even further if that option were available under Colorado law. The trial judge stated:
I do feel, very frankly, that although the crimes involved here were serious, that a 60 year sentence under these circumstances is — well, I can only say that it's more severe than any sentence I would have handed out if the law did not require a 60 year sentence, which it does.
On remand from Close I, Close, acting pro se and with the assistance of the public defender's office, filed Crim. P. 35(a), (b), and (e) motions in an effort to obtain further sentence reduction. That litigation focused on alleged errors in the complicity instruction at trial and the trial court's post-conviction ruling that Close was not entitled to a proportionality review of his sentence. Affirming the trial court, the court of appeals decided against Close on both issues in People v. Close ("Close II"), 22 P.3d 933 (Colo. App.2000).
We granted certiorari on the proportionality review issue and held in Close III that Close was entitled to an abbreviated proportionality review. 48 P.3d 528. Instead of returning the case to the trial court, as we could have, we elected to conduct the abbreviated proportionality review. Upon conducting that review, we upheld Close's sixty year sentence.
At no time in the proceedings leading up to Close III did the public defender's office raise, on Close's behalf, the applicability of Nguyen to Close's sentence.
On remand from Close III, Close filed amended pro se Crim. P. 35(a) and (c) motions for relief from his sixty year sentence. Alleging ineffective assistance of counsel and the applicability of Nguyen to his sentence, he requested the appointment of conflict-free counsel to represent him. Although Close phrased this motion as being directed at his public defender trial counsel, his pro se pleading places the public defender's office in a conflict position and necessarily implicates that office in failing to raise the applicability of Nguyen on his behalf in post-conviction proceedings.
In an effort to protect Close's rights, the public defender's office then filed Crim. P. 35(b) and (c) motions to place the applicability of Nguyen before the trial court. The trial court, without a hearing, summarily ruled that the Crim. P. 35(a), (b), and (c) motions were time barred. In its unpublished opinion that we now review, the court of appeals upheld the application of the section 16-5-402(1) time bar for post-conviction relief. The court of appeals refused to grant any relief from the time bar based on the justifiable excuse or excusable neglect provision of section 16-5-402(2)(d), reasoning that we had not issued a decision holding Nguyen to be retroactive.
We now turn to our analysis of why the court of appeals and the trial court erred in applying the Crim. P. 35(c) time bar of section 16-5-402(1) without holding a hearing, and why conflict-free counsel must be appointed to represent Close in further proceedings.
We hold that the trial court must appoint conflict-free counsel to investigate and pursue potential relief from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception of section 16-5-402(2)(d) and a colorable claim of ineffective assistance of counsel for failure of the public defender's office to raise the applicability of the Nguyen decision to Close's sentence.
Exception to Application of the Time bar
Following our decision in Close III, the trial court and the court of appeals ruled that any further post-conviction relief was time barred. However, Crim. P. 35(c), section 16-5-402(2)(d), contains a provision excusing operation of the time bar when the defendant has justifiable excuse or excusable neglect for not bringing the claim within the otherwise applicable time period. The statute provides:
(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:
(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.
§ 16-5-402(2)(d), C.R.S. (2007) (emphasis added).
Justifiable excuse or excusable neglect based on the alleged ineffective assistance of counsel is a matter that should be addressed, in the first instance, by the trial court. Our review today is limited to the question of whether Close was entitled to a hearing to determine the applicability of the time bar to his Crim. P. 35(c) motion. Because we consider, as a matter of law, whether the facts alleged, if true, could constitute justifiable excuse or excusable neglect pursuant to section 16-5-402(2)(d), we...
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