People v. Campbell, 02CA0132.

• Decision Date: 22 May 2003
• Docket Number: No. 02CA0132.,02CA0132.
• Citation: 75 P.3d 1151
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Daniel CAMPBELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

75 P.3d 1151

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Daniel CAMPBELL, Defendant-Appellant.

No. 02CA0132.

Colorado Court of Appeals, Div. V.

May 22, 2003.

As Modified on Denial of Rehearing July 17, 2003.

Ken Salazar, Attorney General, Jennifer Marylee Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Suzan Trinh Almony, Broomfield, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Robert Daniel Campbell, appeals the order denying his motion to reconsider his sentence filed pursuant to § 17-27.7-104, C.R.S.2002. We reverse and remand with directions.

In exchange for the dismissal of four other pending counts, defendant pleaded guilty to one count of sexual assault on a child, § 18-3-405, C.R.S.2002, arising out of a sexual relationship he had with a thirteen-year-old girl. Defendant was sentenced to six years of probation.

Thereafter, defendant pleaded guilty to violating probation, and the court resentenced him to seven years in the Department of Corrections (DOC).

Defendant then filed a motion for reconsideration, pursuant to Crim. P. 35(b), which was denied by the sentencing court on the basis that the sentence was appropriate in light of the updated presentence report and defendant's behavior while on probation.

In the meantime, defendant was admitted into the DOC Regimented Inmate Training Program, otherwise known as "boot camp." After he successfully completed the program, the DOC referred defendant to the sentencing court for reconsideration of his sentence pursuant to § 17-27.7-104(2)(a), C.R.S.2002. The DOC recommended a three-year reduction in sentence. Although defendant did not file a formal motion seeking a sentence reduction at this time, the sentencing court summarily denied this "request" on the basis that defendant's previous motion for reconsideration had already been denied.

Thereafter, approximately ten months after having completed boot camp, defendant, acting pro se, filed a "Motion for Reconsideration After Completion of Boot Camp Pursuant to § 17-27.7-104(2)." Upon the court's order, the prosecution responded to the motion. The sentencing court again summarily denied the motion "for the reasons stated" in the response. Those reasons were that: (1) the court previously denied defendant's request for sentence reconsideration; (2) although he did well in boot camp, his lack of progress in sex offender treatment meant he was still a public safety danger; (3) defendant could not be sentenced to less than five years because he had been convicted of a crime of violence; and (4) his original sentence appropriately provided transition back into the community.

I.

The People argue that the trial court did not have jurisdiction to consider defendant's motion because it was untimely. We remand for findings on this issue, including, specifically, for a determination on defendant's claim of excusable neglect.

The failure to file a Crim. P. 35(b) motion with the trial court within 120 days after the sentence is imposed is jurisdictional. Swainson v. People, 712 P.2d 479 (Colo. 1986). Thus, although the People did not challenge the timeliness of defendant's motion in the trial court, the jurisdictional challenge may be raised at any time. See People v. Verbrugge, 998 P.2d 43 (Colo.App.1999)

.

Section 17-27.7-104(2)(a) provides that when an offender successfully completes a boot camp program he or she "shall automatically be referred [within sixty days] to the sentencing court so that the offender may make a motion for reduction of sentence pursuant to [Crim. P. 35(b) ]." See also Keller v. People, 29 P.3d 290 (Colo.2000)

. Crim. P. 35(b) allows a defendant to request the court reconsider his or her sentence if such a request is made within 120 days after sentence is imposed or within 120 days after the determination of any appeal.

Because Crim. P. 35(b) provides a 120-day time limitation and § 17-27.7-104 requires that an offender complete boot camp before the DOC may refer him or her for resentencing, the People argue that defendant was required to file his motion within 120 days of the date of completion of his boot camp. We agree.

The People acknowledge that § 17-27.7-104 does not contain a statute of limitations. However, because it provides that a motion to reduce sentence must be brought pursuant to Crim. P. 35(b), we conclude that a defendant must bring such a motion within 120 days after the successful completion of a boot camp program. See People v. Morales-Uresti, 934 P.2d 856 (Colo.App.1996)

(§ 17-27.7-104 expressly incorporates the provisions of Crim. P. 35(b) as the framework for considering sentence reduction for any participant in the boot camp program).

In reaching this conclusion, we acknowledge defendant's argument that Keller v. People, supra,

warrants a different result. In Keller, the supreme court stated:

Although section 17-27.7-104(2)(a) references Crim. P. 35(b), our examination of this procedural rule convinces us that the process provided for under section 17-27.7-104(2) is different, both in kind and substance, from that which typically accompanies a Crim. P. 35(b) application for reduction in sentence. Notably absent from the operative provisions of the boot camp statute are the rigid time limitations set forth under Crim. P. 35(b).

Keller v. People, supra, 29 P.3d at 293 (footnote omitted). In so stating, the supreme court interpreted the first sentence of § 17-27.7-104(2)(a), which provides for automatic referral to the sentencing court within sixty days after termination or completion of boot camp. The supreme court held that a defendant was not required to file a motion pursuant to the statute within sixty days after completion of boot camp. However, the Keller court did not address whether the 120-day time limit contained in Crim. P. 35(b) applies here.

We conclude that it does, but that nevertheless, pursuant to Swainson v. People, supra,

defendant must be afforded an opportunity to demonstrate excusable neglect based upon alleged ineffective assistance of his trial counsel.

Here, the DOC filed its "final submitted report" recommending a three-year sentence reduction on December 17, 1999. That report indicated that defendant would complete the boot camp program on December 30, 1999. The sentencing court then summarily denied the referral recommendation on January 10, 2000.

The record indicates that defendant's motion at issue here was filed on October 25, 2001, more than 120 days after defendant completed boot camp.

In his motion, defendant conceded that it was out of time, but he further alleged facts raising excusable neglect based on ineffective assistance of counsel. Defendant asserted that his counsel incorrectly informed him by letter that because the sentencing court had already denied his previous motion for reconsideration, "there isn't anything at this point that we can do about it."

Because the People did not raise the timeliness issue in the trial court, the sentencing court did not consider the timeliness of defendant's motion, including his claim that the untimeliness of his motion was attributable to excusable neglect based upon the incorrect information he had received from his trial counsel.

Although the People now assert that the erroneous information provided by defendant's counsel did not amount to excusable neglect because defendant subsequently became aware of the time limitation, the record does not reflect when defendant learned of the applicable time limits. The record contains correspondence from defendant to the trial court subsequent to his receipt of the letter from his trial counsel, but that...