People v. Cali, Supreme Court Case No. 18SC406

• Docket Nº: Supreme Court Case No. 18SC406
• Citation: 459 P.3d 516
• Case Date: March 09, 2020
• Court: Supreme Court of Colorado

459 P.3d 516

The PEOPLE of the State of Colorado, Petitioner,
v.
Osmundo Rivera CALI, Respondent.

Supreme Court Case No. 18SC406

Supreme Court of Colorado.

March 9, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case requires us to consider whether a defendant is entitled to the benefit of amendatory legislation when the amendment took effect while the defendant’s case was pending on direct appeal but the defendant did not raise the issue of the amendatory legislation until after his conviction became final.¹

¶2 We conclude that a defendant is not entitled to the benefit of a statutory amendment when the defendant does not seek relief based on that amendatory legislation until after his or her conviction becomes final.

¶3 Accordingly, we reverse the judgment of the division below.

I. Facts and Procedural History

¶4 The prosecution charged Osmundo Cali with one count of theft of a thing of value of one thousand dollars or more but less than twenty thousand dollars, then a class four felony, as well as with one count of theft by receiving and two habitual criminal counts. The charges stemmed from allegations that Cali took metal storm grates from a construction site and sold them to a scrap metal processing company. The evidence established that the stolen grates were worth approximately $2,616, based on the price paid for them by the construction company.

¶5 Cali’s case proceeded to trial, a jury convicted him of the two substantive offenses, and the trial court adjudicated him a habitual criminal. The court then sentenced Cali to eighteen years on each of the substantive counts, to be served concurrently in the Department of Corrections.

459 P.3d 518

¶6 Cali appealed, arguing that (1) the trial court had plainly erred in failing to instruct the jury properly on the elements of theft; (2) Cali could not be convicted of both theft and theft by receiving for offenses involving the same property; (3) the prosecution had presented insufficient evidence to prove that Cali had two prior criminal convictions; and (4) the trial court should have conducted a proportionality review of his sentence. The division agreed that Cali could not be convicted of both theft and theft by receiving of the same property. See People v. Cali , No. 12CA1730, slip op. at 1, 2014 WL 4947062 (Oct. 2, 2014). It therefore vacated his conviction for theft, allowed the theft by receiving conviction to stand, and did not address the alleged instructional error on the theft count. Id. The division, however, affirmed Cali’s habitual criminal convictions and after conducting its own abbreviated proportionality review, concluded that Cali’s sentence was not grossly disproportionate. Id. This court subsequently denied Cali’s petition for a writ of certiorari, and the mandate issued on May 11, 2015.

¶7 On June 5, 2013, while Cali’s appeal was pending, an amendment to the theft statute became effective. See Ch. 373, secs. 1–3, § 18-4-410, 2013 Colo. Sess. Laws 2195, 2195–98. As pertinent here, the amended statute eliminated the separate crime of theft by receiving and incorporated that offense into the general theft provision. Id. It also modified the classifications for theft. Id. at 2196. Under the new statutory provisions, Cali’s offense would have been classified as a class six felony. Id. Although these amendments took effect prior to the date on which Cali’s appellate counsel filed the opening brief in Cali’s direct appeal, Cali did not address in his appeal the applicability of these provisions to his case.

¶8 After the court of appeals issued its mandate in Cali’s case, Cali filed a pro se petition for postconviction relief pursuant to Crim. P. 35(c). In this petition, Cali raised, as pertinent here, a claim for relief based on a "Substantial Change In The Law." Specifically, he asserted, for the first time, that under the newly amended statute, he could only have been convicted of a class six felony, which would have carried a presumptive sentencing range of one year to eighteen months imprisonment, rather than the eighteen years that he had received under the old provision. See §§ 18-1.3-401(1)(a)(V)(A), - 801(1.5), C.R.S. (2019) (setting forth the presumptive sentencing ranges for felonies committed during the time period at issue and the mandatory aggravated sentence for those adjudged habitual criminals based on their having two prior felony convictions within ten years of the date of commission of the present offense).

¶9 The postconviction court denied Cali’s petition without a hearing. As pertinent here, the court concluded that the amended statute did not entitle Cali to relief because (1) the law changed after Cali’s sentence was imposed; (2) his sentence had been affirmed on appeal; and (3) the amended theft statute was intended to have prospective, not retroactive, application.

¶10 Cali appealed again, and in a split, published opinion, a division of the court of appeals reversed. People v. Cali , 2018 COA 61, ––– P.3d ––––. The majority concluded that its decision was controlled by this court’s opinion in People v. Boyd , 2017 CO 2, 387 P.3d 755, which the majority interpreted as holding "that a convicted defendant is entitled to the benefit of changes to the State’s prosecutorial authority if those changes take effect before the conviction and sentence are final on appeal—irrespective of retroactivity principles." Cali , ¶ 13. In the majority’s view, the State lost its authority to prosecute Cali for a class four felony under the prior version of the theft statute once the amended statute went into effect. Id. at ¶¶ 13–14. The majority further determined that Cali’s postconviction claim was cognizable under section 18-1-410(1)(g), C.R.S. (2019), and Crim. P. 35(c)(2)(VI) as a collateral attack on Cali’s class four felony conviction because each of those provisions authorized a defendant to file a postconviction motion based on "[a]ny grounds otherwise properly the basis for collateral attack upon a criminal judgment," even after that judgment has been affirmed on appeal. Cali , ¶ 19 (quoting § 18-1-410(1)(g) and Crim. P. 35(c)(2)(VI) ). Concluding that Cali had asserted a timely

459 P.3d 519

postconviction claim, the majority thus determined that he was entitled to reversal of his conviction of the class four felony of theft by receiving and that his case should be remanded for entry of a judgment of conviction and sentencing on class six felony theft. Id. at ¶ 21.

¶11 Judge Nieto dissented, deeming Boyd distinguishable from the present case. People v. Cali , 2018 COA 61, ¶ 31, ––– P.3d –––– (Nieto, J., dissenting). Judge Nieto initially noted that, unlike Boyd’s conviction, which was on direct appeal and not final at the time the law changed, Cali’s conviction was final before he filed his Crim. P. 35(c) motion, and this court has consistently applied amendatory legislation only to convictions that were not final. Id. Judge Nieto further observed that Boyd made clear that it was not addressing the effect of amendatory legislation on final convictions. Id. at ¶ 32. Finally, Judge Nieto described what he viewed as "the fundamental difference" between the constitutional amendment at issue in Boyd and the statutory amendment at issue here: the amendment at issue in Boyd removed the State’s authority to prosecute for the offenses there at issue whereas the amendment here left intact the state’s authority to prosecute theft crimes. Id. at ¶ 33. Judge Nieto thus concluded that Cali was not entitled to the relief that he had requested. Id. at ¶ 40.

¶12 The People then petitioned this court for certiorari review, and we granted the petition.

II. Analysis

¶13 We begin by discussing the applicable standard of review and principles of statutory construction. We then turn to the merits of Cali’s claim and conclude that defendants are not entitled to the benefit of amendatory legislation when they first seek relief based on that...