Herr v. People, No. 08SC5.

• Decision Date: 15 December 2008
• Docket Number: No. 08SC5.
• Citation: 198 P.3d 108
• Parties: David HERR, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

198 P.3d 108

David HERR, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 08SC5.

Supreme Court of Colorado, En Banc.

December 15, 2008.

Douglas K. Wilson, Colorado State Public Defender, Todd E. Mair, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

Scott W. Storey, District Attorney, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

In 2004, David Andrew Herr pleaded guilty to a variety of offenses. He was sentenced to eight years in prison, and was recommended for the Regimented Inmate Training Program ("boot camp"), upon completion of which he would be eligible for a reduction in sentence. After it became clear Herr was not eligible for the boot camp program, he filed a Crim. P. 35(b) motion seeking immediate reconsideration of his sentence or, in the alternative, a reasonable delay so he could accumulate a positive record at the Department of Corrections ("DOC"). The trial court granted the alternative request for delay. After Herr requested a hearing on the motion, the trial court reduced Herr's sentence to five years. On appeal, the court of appeals held the trial court's delay in considering the 35(b) motion was unreasonable, and reversed. People v. Herr, No. 06CA0777, slip op. at 8, 2007 WL 4125803 (Colo.App. Nov.21, 2007) (not published pursuant to C.A.R. 35(f)).

We granted certiorari and we now reverse the judgment of the court of appeals. We reaffirm our previous holdings that set forth a two-step reasonableness analysis for evaluating a trial court's jurisdiction to rule on a timely filed 35(b) motion. First, we evaluate whether the trial court ruled on the motion within a reasonable time. Second, if the court did not rule on the motion within a reasonable time, we consider whether the defendant made reasonable efforts to secure a ruling on his motion. A defendant abandons his 35(b) motion when the court does not rule on the motion within a reasonable time and the defendant does not make reasonable efforts to secure a timely ruling. Under the facts of this case, we hold the trial court did not rule on the motion within a reasonable time. However, the defendant made reasonable efforts to secure a timely ruling on his motion, and thus, he did not abandon the motion.

II. Facts and Procedural History

In 2004, David Herr faced a variety of charges in two separate criminal cases before the same judge in Jefferson County District Court. In the first case, Herr pleaded guilty to distribution of a Schedule II controlled substance and contributing to the delinquency of a minor. He was sentenced to five years for each count, to be served concurrently. In the second case, Herr pleaded guilty to charges of vehicular eluding, theft, and third degree assault. He was sentenced to concurrent terms of three years, six months, and two years, respectively. The trial court ordered Herr to serve the sentences for both cases consecutively, resulting in an aggregated sentence of eight years.

In adopting this sentence on September 28, 2004, the trial court recommended Herr participate in the boot camp program established by sections 17-21.7-102, -104, C.R.S. (2008). The trial court stated Herr would be eligible for a reconsideration of his sentence upon his successful completion of the program. In a later document, the trial court judge explained the imposition of the eight-year sentence "was in part designed to give him incentive" to complete boot camp.

However, after sentencing, it was discovered that Herr was not eligible for the boot camp program. As a result, Herr enrolled in alternative treatment and therapy programs.

On January 27, 2005, well within the applicable 120 day window, Herr filed a Crim. P. 35(b) motion seeking reconsideration of his sentence. In that motion, Herr requested the court immediately reduce his sentence, or, in the alternative, grant a reasonable delay in order to afford him an opportunity to show the court evidence of his good record in treatment classes and in the DOC.

On March 1, 2005, the trial court issued an order stating it would delay ruling on Herr's motion. The court indicated it would wait to rule on the motion until Herr filed an additional motion seeking review. The People did not object to Herr's motion or to the court order granting the alternative request for a reasonable delay.

Herr filed a motion seeking a ruling on his 35(b) request on September 23, 2005. In that motion, Herr catalogued his achievements and progress in the DOC and again requested reconsideration of his sentence. The court held a hearing on this motion on March 3, 2006. In a March 6, 2006 ruling, the trial court reiterated its original intent to have Herr complete the boot camp program, while acknowledging that the program was unavailable to Herr, through no fault of his own. The trial court noted Herr's satisfactory record in the DOC and determined "further long-term incarceration of Mr. Herr would have only minimal benefit to him, to the victims of this case, and to society at large." As a result, the trial court ordered Herr's two sentences be served concurrently, thus reducing his aggregate sentence to five years.

The People appealed, arguing the trial court improperly entertained Herr's 35(b) motion and granted a delay for the consideration of that motion for the sole and improper purpose of compiling a favorable DOC record, in conflict with this court's holding in Mamula v. People, 847 P.2d 1135 (Colo.1993). The court of appeals reversed, holding the delay was unreasonably long and served the solitary improper purpose of allowing the defendant an opportunity to create a favorable rehabilitation record at the DOC. Herr appealed and this court granted certiorari in order to determine (1) whether the prosecution waived any objection to the delay, and (2) whether the defendant abandoned his Crim. P. 35(b) motion.¹

III. Analysis

This case hinges on whether the trial court had proper jurisdiction to rule on Herr's 35(b) motion. In the context of 35(b) motions, we evaluate jurisdiction by considering whether the defendant pursued or abandoned his motion. The court of appeals held the trial court lacked jurisdiction to rule on the motion because it engaged in unreasonable delay and Herr did not seek a timely ruling. Herr contends his motion was not abandoned, and thus the court retained proper jurisdiction. We find the issue of the 35(b) ruling properly before this court, regardless of the People's failure to object when the delay was undertaken, and hold the trial court maintained jurisdiction over the case when it granted a reduction in Herr's sentence pursuant to Crim. P. 35(b).

A.

A party is generally precluded from raising an issue on appeal if he failed to object at trial. People v. Schweer, 775 P.2d 582, 583 (Colo.1989); see also People v. Moore, 193 Colo. 81, 562 P.2d 749, 751 (1977) (finding a failure to object deprives the trial court of an opportunity to consider the merits of the dispute, and thus the silent party should be precluded from raising the issue on appeal). However, a challenge to a court's subject matter jurisdiction is not waivable, and may be raised for the first time on appeal. Kirbens v. Martinez, 742 P.2d 330, 334 n. 8 (Colo.1987).

The standards set forth in Crim. P. 35(b) are jurisdictional in nature. The rule vests a trial court with authority to reduce a criminal defendant's sentence if an appropriate motion is filed within 120 days after the sentence is imposed.

This court first considered the jurisdictional limitations of rule 35(b) in People v. Fuqua, 764 P.2d 56 (Colo.1988). In that case, a defendant timely filed a 35(b) motion, but the trial court did not consider that motion until after the 120 day window elapsed. We recognized rule 35(b) "suspend[s] the finality of the original sentence" for 120 days for the limited purpose of reconsidering the sentence, prompted by either the defendant or the trial court itself. Id. at 59.

Therefore, as a practical matter, a challenge to the timeliness of a 35(b) motion or ruling calls into question a trial court's continued subject matter jurisdiction over a given case. See People v. Campbell, 75 P.3d 1151, 1153 (Colo.App.2003). As such, the People's failure to object to the trial court's order granting delay does not preclude us from reviewing the trial court's jurisdiction to consider Herr's 35(b) motion, because imperfect subject matter jurisdiction cannot be waived by a party's silence.

B.

In order to determine whether a trial court enjoys proper jurisdiction to evaluate a timely filed 35(b) motion, we use a two-step analysis. We first consider whether the court ruled on the 35(b) motion within a reasonable time. Fuqua, 764 P.2d at 60. If we find the court did not rule within a reasonable time, we then consider whether the defendant abandoned his motion. Id. at 61. If a defendant does not undertake reasonable efforts to secure a ruling in the face of a trial court's excessive delay, the motion is deemed abandoned. Id. at 58.

1.

We developed this two-step test in two decisions where we examined the jurisdictional ramifications of 35(b) motions, People v. Fuqua and Mamula v. People. In Fuqua, we considered a timely filed 35(b) motion which the court did not review until after the filing deadline. 764 P.2d at 58. We held a court has jurisdiction to rule on a 35(b) motion within a "reasonable time" after the expiration of the 120 day filing window. Id. at 59. We also set forth the framework in which 35(b) jurisdiction is analyzed, which centers on a determination of "abandonment." We held that if a trial court fails to rule on a 35(b) motion within a reasonable time and the defendant does not adequately pursue that motion, the motion is abandoned and jurisdiction will be lost. See id. at 58. In order to prevent abandonment, a defendant must take...