Estep v. People

• Citation: 753 P.2d 1241
• Decision Date: 18 April 1988
• Docket Number: No. 86SC344,86SC344
• Parties: Park Journee ESTEP, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

Page 1241

753 P.2d 1241

Park Journee ESTEP, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 86SC344.

Supreme Court of Colorado En Banc.

April 18, 1988.

Lance M. Sears, Mary G. Allen, Tegtmeier & Sears, P.C., Colorado Springs, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

ROVIRA, Justice.

The court of appeals dismissed petitioner Park Journee Estep's appeal because the notice of appeal was not filed within the time prescribed by C.A.R. 4(b). Based on the unique facts of this case, we find that the court of appeals erred in denying Estep's motion to vacate the order of dismissal. We therefore reverse the order of dismissal and remand the case to the court of appeals with instructions to accept Estep's notice of appeal as timely filed.

I.

Petitioner Park Journee Estep was convicted by jury of first-degree murder and other crimes for events that occurred in 1974. The trial court imposed sentences to run consecutively for not less than 48 nor more than 67 years in the state penitentiary. The court of appeals reversed the convictions, People v. Estep, 39 Colo.App. 132, 566 P.2d 706 (1977), but we reversed the court of appeals' decision and reinstated the convictions. People v. Estep, 196 Colo. 340, 583 P.2d 927 (1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1796, 60 L.Ed.2d 245 (1979).

In March 1979, Estep filed a motion under Crim.P. 35(a) alleging that the imposition of consecutive sentences was illegal and a separate motion under Crim.P. 35(b) seeking reconsideration of the various sentences. ¹ A hearing was scheduled on the two motions for June 8, 1979, but at the request of Estep's counsel the hearing was continued to--and eventually vacated on--June 29, 1979. No further action was taken on the motions until Estep finally set them for hearing in 1986.

In 1984, an alleged serial killer named Ottis Toole claimed that he had committed the crimes for which Estep was convicted. In light of that confession, Estep's newly retained counsel, Tegtmeier & Sears, P.C., filed a motion in September 1984 for a new trial based on newly discovered evidence under Crim.P. 35(c). ² An extensive and widely publicized hearing on that motion was held from February 6, 1986 until March 10, 1986.

On May 12, 1986, the trial court denied Estep's Rule 35(c) motion upon finding that "the defendant has not sustained his burden of proving that if a retrial were to take place and the Ottis Toole evidence were to be presented to a jury the result would probably be an acquittal." Estep thereafter had forty-five days--until June 26--to file a notice of appeal from the court's ruling. C.A.R. 4(b)(1). On May 23, an associate at Tegtmeier & Sears, Benjamin Waxman, ³ prepared a notice of appeal at the direction of partner Lance Sears and reviewed the notice with Sears. Although Waxman and Sears were aware of the June 26 filing deadline, Sears directed Waxman to place the notice in Estep's file until the court decided Estep's pending motions under Rules 35(a) and 35(b).

On June 19, Sears and Richard Tegtmeier appeared for Estep and Barney Iuppa and Royal Martin appeared for the People at a hearing scheduled on Estep's Rule 35(a) and 35(b) motions. At the outset of the recorded proceeding, the court noted that "the Court has had a discussion in chambers with all four counsel concerning the desirability, if not the necessity, of continuing this hearing." The transcript does not reflect the details of that discussion, but Sears attested in an uncontroverted affidavit later filed in the court of appeals that:

The District Court and District Attorney desired to set the Rule 35(a) and (b) hearing to another date in order to more fully deal with the legal and factual issues involved. The District Attorney was concerned about several of the issues listed with the Rule 35(a) and (b) motions and was adamant about consolidating the ruling on these issues with the previous ruling regarding the motion for new trial and post-conviction relief. Although I voiced concern over the jurisdiction issue, we agreed to stipulate that the trial court's ruling and Mr. Estep's appellate rights could be preserved and the trial court could retain jurisdiction to rule on the pending motion.

The "jurisdiction issue" to which Sears referred was the recognition by the parties and the court that Estep's filing of a notice of appeal from the May 12 decision would divest the trial court of jurisdiction over the pending 35(a) and 35(b) motions and thereby further prolong the determination of those motions. See Schnier v. District Court, 696 P.2d 264 (Colo.1985); People v. Dillon, 655 P.2d 841 (Colo.1982). As a consequence, the court convened formally and the following discussion was held on the record:

MR. IUPPA: It is also discussed that the original notice of appeal is due according to Mr. Sears on or about June 26 of 1986, and that upon the filing of that document the trial court is divested of jurisdiction. In an effort to continue the trial court's jurisdiction to consider those motions we have agreed and would stipulate that the Court, assuming it's legally permissible, would extend the time limit by which that motion or that notice should be filed by 45 days so that we can continue to have this Court consider those motions that are presently pending and have not previously been ruled upon.

THE COURT: Mr. Tegtmeier.

MR. TEGTMEIER: And in addition to that, Your Honor, if indeed counsel feels that it's inappropriate or we are unable to extend that time for which the filing is due, then counsel would stipulate to the Court of Appeals to remand that narrow issue pending the consideration of [the] motion for new trial appeal.

MR. IUPPA: That is correct, Your Honor. We would so stipulate and would ask and join in with defense counsel to ask the Court of Appeals for a limited remand for the purposes of hearing the pending motions.

....

MR. SEARS: Your Honor, there is one other thing, that is, I agree with Mr. Iuppa that we can extend by stipulation the notice of appeal or that we can--that the Court can extend by stipulation the notice of appeal date. But I do not believe the Court could do that indefinitely. I would suggest that an additional 45 days be granted by stipulation for the filing of notice of appeal.

MR. IUPPA: I believe that's what I indicated on my original statement, Your Honor.

THE COURT: [C]ertainly I'm willing to the extent that it's in my--within my power to do so to grant an additional 45 days for filing the notice of appeal on my ruling on the motion for new trial.

It's important that this sentencing matter be resolved so that if there is an appeal everything can be considered by the appellate court at one time. So I will at this time order this hearing continued to July 10 at 9:30 in the morning.

Following the hearing, Sears requested Waxman to prepare for submission to the court of appeals a motion to extend the deadline for filing the notice of appeal. Waxman was unaware that the parties had agreed to a forty-five day extension, and thus the motion Waxman drafted sought only the maximum thirty-day extension permitted under C.A.R. 4(b). As grounds for the enlargement of time, the motion recited the procedural history of the various motions before the trial court and explained:

An enlargement of time as requested herein should be granted in the interest of judicial economy so that the trial court can retain jurisdiction to rule on the Defendant-Appellant's pending Motion to Vacate Sentence and Grant New Trial Pursuant to Rule 35(b) without the necessity of a limited remand. (If the trial court rules against him on this latter motion, the Defendant-Appellant intends to prosecute this appeal separate from his other appeal. Separate appeals are necessary because this court will require substantially more time to resolve the issues related to the Defendant-Appellant's Motion for Postconviction Relief than his Motion to Vacate ...).

Sears reviewed the motion, and Martin, on behalf of the People, joined in and signed the request, but neither Sears nor Martin noticed that the motion requested an extension of only thirty days.

On July 1, the court of appeals granted the motion and accordingly enlarged the time for filing the notice of appeal to and including July 28. Both Sears and Waxman saw the court of appeals' order several days later, but neither put the new deadline on his calendar. Sears continued working under the assumption that the filing deadline was August 11, or forty-five days after the original deadline.

On July 10, the trial court held a hearing on Estep's Rule 35(a) and 35(b) motions. At the conclusion of the hearing, the court took the motions under advisement and indicated that it would rule on them shortly. On August 1, Waxman became concerned that the trial court had not yet ruled on the motions. Upon reviewing the file, he discovered that the deadline for filing the notice of appeal had passed three days earlier, and he brought the problem to Sears' attention.

On August 1, the firm prepared and filed a second motion for enlargement of time, this time requesting under C.A.R. 26(b) that the time for filing the notice of appeal be extended to and including September 11, 1986. The motion noted that one extension had been granted pending the trial court's ruling on the unresolved motions, then cited as "good cause" for the second extension that:

2. It is anticipated that the trial court will rule on the Motion to Vacate Sentence and Grant New Trial pursuant to Rule 35(b) within the next forty-five days thereby allowing that matter to be joined with Defendant-Appellant's appeal from the trial court's denial of his motion for Postconviction Relief.

3. No harm or prejudice will come to any of the parties if this court grants the enlargement of time requested herein.

On August 12, the...