People v. Baker, Court of Appeals No. 16CA0704

Citation461 P.3d 534
Decision Date27 July 2017
Docket NumberCourt of Appeals No. 16CA0704
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas L. BAKER, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas L. Baker, Pro Se

Opinion by JUDGE TAUBMAN

¶ 1 Defendant, Douglas L. Baker, appeals the district court's order denying his postconviction motion challenging his designation as a sexually violent predator (SVP). We conclude that Baker can challenge his SVP designation in a Crim. P. 35(c) motion and that his motion is not time barred. We reverse the order and remand for further proceedings.

I. Background

¶ 2 While Baker was living with his friend's family, he had sexual intercourse several times with his friend's fourteen-year-old daughter.

¶ 3 Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust.

¶ 4 According to the Sexually Violent Predator Assessment Screening Instrument (Screening Instrument), Baker met the criteria to be designated an SVP. In terms of the relationship criterion in the SVP statute, the Screening Instrument found that Baker "established a relationship" with the victim primarily for the purpose of sexual victimization.

¶ 5 At the sentencing hearing in July 2012, the district court sentenced Baker to ten years to life in the custody of the Department of Corrections (DOC). The court stated, "The defendant was screened by the evaluators to determine whether he was a sexually violent predator. And the evaluators determined that he was a sexually violent predator, so the Court will adopt the findings." Baker's counsel objected to the SVP finding and stated that she would follow up with a written motion articulating the objection and requesting a hearing on the issue.

¶ 6 The same day, the district court issued a mittimus that included the SVP designation. There is no indication in the record that Baker's counsel ever filed a written objection to the SVP designation. Baker also did not file a direct appeal challenging any aspect of the judgment, including the SVP designation.

¶ 7 Approximately one year later, Baker's counsel filed a Crim. P. 35(b) motion to reconsider Baker's sentence, arguing that a probationary sentence was appropriate. Baker's counsel also stated that it was not Baker's fault that she was filing the Crim. P. 35(b) motion late. The district court accepted the late-filed motion but denied it on the ground that Baker's DOC sentence remained appropriate.

¶ 8 In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional nineteen days of presentence confinement credit (PSCC). In its response, the prosecution conceded that Baker was entitled to an additional eighteen days of PSCC. The court issued an amended mittimus that included the additional eighteen days of PSCC. Baker later filed a motion seeking a ruling on his Crim. P. 35(a) motion, and the court entered an order stating that it had already ruled on the motion by amending the mittimus to include the additional PSCC.

¶ 9 Soon after, in early 2016, Baker filed the motion at issue, which he titled "Motion to Vacate Sexually Violent Predator Status Pursuant to C.R.S. § 18-3-414.5(1)(a)." In the motion, Baker argued that, under People v. Gallegos , 2013 CO 45, 307 P.3d 1096, the district court had erred in simply adopting the findings in the Screening Instrument without making its own findings whether the relationship criterion of the SVP statute had been met. Baker also argued that the judgment did not become final until 2015 when the district court corrected the illegal sentence, the correction of the illegal sentence renewed the time to file a Crim. P. 35(b) or Crim. P. 35(c) motion, and he was entitled to have the Gallegos decision applied in this case.

¶ 10 The prosecution argued in response that the district court could not reconsider Baker's SVP designation under Crim. P. 35(b) because an SVP designation is not a part of a criminal sentence.

¶ 11 In Baker's reply, he argued that pro se pleadings should be construed liberally and that he "likely should have styled his pro se motion as one for relief pursuant to Crim. P. 35(c)."

¶ 12 The district court issued an order denying the motion because, among other reasons, it had no authority to reconsider Baker's SVP designation under Crim. P. 35(b).

II. Standard of Review

¶ 13 We review de novo. See People v. Chipman , 2015 COA 142, ¶ 26, 370 P.3d 330, 334 (an appellate court reviews a district court's summary denial of a postconviction motion de novo); People v. Romero , 197 P.3d 302, 305 (Colo. App. 2008) (the proper interpretation of statutes and rules of criminal procedure present questions of law that we review de novo).

III. Was Baker's Motion Cognizable Under Crim. P. 35 ?

¶ 14 Baker contends that his motion was cognizable under Crim. P. 35. We disagree that it was cognizable under Crim. P. 35(a) or Crim. P. 35(b), but we conclude it was cognizable under Crim. P. 35(c).

A. Crim. P. 35(a) and Crim. P. 35(b)

¶ 15 The supreme court has clarified that an SVP designation is not part of a criminal sentence. Allen v. People , 2013 CO 44, ¶ 7, 307 P.3d 1102, 1105 ("Unlike a criminal sentence, the SVP designation is not punishment.... [A] trial court's decision to designate an offender as an SVP is legally and practically distinct from its sentencing function.").

¶ 16 Thus, the district court properly concluded that it could not reconsider Baker's SVP designation under Crim. P. 35(b). See id. (authorizing a district court to reconsider a criminal sentence); People v. Brosh , 2012 COA 216M, ¶¶ 7-14, 297 P.3d 1024, 1026-27 (a district court may not reconsider an SVP designation under Crim. P. 35(b) ).

¶ 17 For the same reason, we agree with the People's contention that a defendant cannot challenge an SVP designation under Crim. P. 35(a). See id. (authorizing a district court to correct a criminal "sentence" that was not authorized by law, that was imposed without jurisdiction, or that was imposed in an illegal manner).

B. Crim. P. 35(c)

¶ 18 The district court does not appear to have considered whether Baker could challenge his SVP designation under Crim. P. 35(c). Although Baker did not label his postconviction motion as a Crim. P. 35(c) motion, we construe the arguments in his motion and reply brief as raising a claim under that rule.1 See People v. Bergerud , 223 P.3d 686, 697 (Colo. 2010) (citing cases for the proposition that a court must liberally construe a pro se pleading and apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name).

1. Judgment

¶ 19 The People contend that Baker's claim challenging his SVP designation is not cognizable under Crim. P. 35(c). They argue that Crim. P. 35(c) authorizes only a collateral attack on a conviction or sentence, and an SVP designation is not part of a conviction or sentence. See, e.g. , Crim. P. 35(c)(2)(I) (authorizing a postconviction claim that a conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of Colorado).

¶ 20 The People construe Crim. P. 35(c) too narrowly. " Crim. P. 35(c) provides broad and inclusive postconviction remedies...." Naranjo v. Johnson , 770 P.2d 784, 787 (Colo. 1989). Crim. P. 35(c)(2) in particular lists six different bases for postconviction relief. Included in that list are "[a]ny grounds otherwise properly the basis for collateral attack upon a criminal judgment." Crim. P. 35(c)(2)(VI) ; see also § 18-1-410(1)(g), C.R.S. 2016 (same). Thus, Crim. P. 35(c) not only allows a collateral attack on a conviction or sentence, but also on any part of the judgment in a criminal case.2

¶ 21 Is an SVP designation part of a criminal "judgment"? Crim. P. 32(b)(3)(I) provides,

[a] judgment of conviction shall consist of a recital of the plea, the verdict or findings , the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant, the finding of the amount of earned time credit if the defendant had previously been placed in a community corrections program, an order or finding regarding restitution as required by section 18-1.3-603, C.R.S., and a statement that the defendant is required to register as a sex offender , if applicable.

(emphasis added); see also Black's Law Dictionary 970, 972 (10th ed. 2014) (defining "judgment" as, among other things, "[a] court's final determination of the rights and obligations of the parties in a case" and defining "judgment of conviction" as, among other things, "[t]he written record of a criminal judgment, consisting of the plea, the verdict or findings , the adjudication , and the sentence") (emphasis added).

¶ 22 Thus, a criminal "judgment" includes "findings" made by the district court and any statement that the defendant is required to register as a sex offender.

¶ 23 An SVP designation is a statutory creation, and the SVP statute itself provides that an SVP designation is indeed a "finding," which ultimately requires, among other things, registration as a sex offender. See § 18-3-414.5(2), C.R.S. 2016 ("[T]he court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator. If the defendant is found to be a sexually violent predator, the defendant shall be required to register [as a sex offender]....") (emphasis added).

¶ 24 Also, notably, section 18-3-414.5(2) indicates that a district court should enter its SVP finding directly on the mittimus, providing further support for the conclusion that an SVP designation is part of the "judgment." See id. ("If the department of corrections receives a mittimus that indicates that the court did not make a specific finding of fact or enter an order regarding whether the defendant is a...

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2 cases
  • Hunsaker v. People
    • United States
    • Supreme Court of Colorado
    • 20 Diciembre 2021
    ...sentence renews the limitations period for all arguments for postconviction relief, entirely restarting the three-year clock. See People v. Baker, 2017 COA 102, ¶¶ 37-42, 461 P.3d 534, 540, rev'd on grounds, 2019 CO 97M, 452 P.3d 759. In contrast, the division in this case found that, under......
  • People v. Hunsaker
    • United States
    • Court of Appeals of Colorado
    • 26 Marzo 2020
    ...matter of law, we affirm the district court's order denying that motion.¶ 2 In reaching this conclusion, we disagree with People v. Baker , 2017 COA 102, 461 P.3d 534, rev'd on other grounds , 2019 CO 97M, 452 P.3d 759, in which another division of this court held that the correction of an ......

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