People v. Clouse

• Decision Date: 15 August 2002
• Docket Number: No. 01CA0725.,01CA0725.
• Citation: 74 P.3d 336
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Eugene CLOUSE, Defendant-Appellant.
• Court: Colorado Court of Appeals

74 P.3d 336

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Eugene CLOUSE, Defendant-Appellant.

No. 01CA0725.

Colorado Court of Appeals, Div. II.

August 15, 2002.

Rehearing Denied January 9, 2003.

Certiorari Denied July 21, 2003.

Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Steven Eugene Clouse, Pro Se.

Opinion by Judge DAILEY.

Defendant, Steven Eugene Clouse, appeals the trial court's order denying his second motion for Crim. P. 35(c) relief. We affirm part of the order, vacate part of it, and remand for further proceedings.

In 1990, defendant was convicted of two counts of second degree burglary, three counts of theft, one count of second degree forgery, and one count of first degree criminal trespass. Upon being adjudicated an habitual offender, he was sentenced to life imprisonment. A division of this court affirmed his convictions and sentence on direct appeal in People v. Clouse, 859 P.2d 228 (Colo.App.1992), and, after the supreme court denied certiorari review, the mandate issued on October 18, 1993.

In 1994, defendant, while represented by counsel, filed a Crim. P. 35(c) motion, asserting seventeen grounds for postconviction relief, including ineffective assistance of trial and appellate counsel. After conducting an evidentiary hearing, the trial court, on July 13, 1995, denied defendant relief other than to make his life sentence in this case concurrent with, rather than consecutive to, a life sentence in another case. A division of this court affirmed the trial court's ruling in People v. Clouse, (Colo.App. No. 95CA1444, Jan. 23, 1997)(not selected for official publication), and the mandate issued on October 3, 1997.

On September 21, 1998, defendant filed a second Crim. P. 35(c) motion, alleging (1) further ineffectiveness of trial and appellate counsel, (2) ineffectiveness of postconviction counsel, and (3) illegality of his habitual criminal sentence. Thereafter, he filed amended motions for postconviction relief on July 24, 2000 and March 14, 2001. In the amended motions, defendant included an additional claim of newly discovered evidence, as well as additional claims of ineffective assistance of postconviction counsel.

The trial court denied defendant's motions on the following grounds: (1) his claims, other than those pertaining to ineffective assistance of postconviction counsel, were successive in nature and time barred under § 16-5-402(1), C.R.S.2001; and (2) his ineffective assistance of postconviction counsel claims were time barred under § 16-5-402(1) because they were not brought within three years of the trial court's denial of postconviction relief.

Defendant now appeals.

I.

Initially, we reject defendant's assertion that his motions were not subject to the three-year limitation period prescribed by § 16-5-402(1).

Section 16-5-402(1) provides time limits for pursuing collateral attacks "following the date of ... conviction" for all crimes except "class 1 felonies." Here, defendant was not convicted of a class 1 felony; his most serious conviction was for the crime of second degree burglary involving a dwelling, a class 3 felony.

For purposes of § 16-5-402(1), it does not matter that defendant, as an habitual offender, was sentenced, like a class 1 felon, to life imprisonment. Had the General Assembly intended the result urged by defendant, it would have referred to offenders subject to life sentences instead of offenders convicted of class 1 felonies. See Mason v. People, 932 P.2d 1377, 1380 (Colo.1997)

(interpreting speedy trial statute); see also People v. J.J.H., 17 P.3d 159, 162 (Colo.2001)(courts should not presume that the legislature used language idly).

We also reject defendant's assertion that the § 16-5-402(1) time bar is inapplicable to his claim of an "illegal" sentence because, under Crim. P. 35(a), there is no time limit for challenging an "illegal" sentence. According to defendant, his sentence is "illegal" because: (1) his "life" sentence with possibility of parole is not authorized by statute; (2) the statutorily authorized sentence is imprisonment for "the term of [defendant's] natural life" under Colo. Sess. Laws 1981, ch. 200, § 16-13-101(2) at 948; and (3) the statutorily authorized sentence is unconstitutional in that it is disproportionately harsh for the crimes he committed.

Contrary to defendant's assertion, a person sentenced to life imprisonment under the applicable version of the habitual criminal statute is eligible for parole after forty years. See People v. Gaskins, 825 P.2d 30, 32-33 (Colo.1992)

. Further, § 16-5-402(1) applies to proportionality reviews of habitual criminal sentences; consequently, the remedy defendant requests is subject to the § 16-5-402(1) time bar. See People v. Talley, 934 P.2d 859, 860 (Colo.App.1996). See also People v. Green, 36 P.3d 125, 126-28 (Colo.App.2001)(§ 16-5-402(1) time bar applicable to defendant's postconviction claim because it was not, in reality, a claim for the correction of an illegal sentence).

In sum, we conclude that defendant's motion was subject to the three-year limitation period of § 16-5-402(1), and because that period commenced upon the completion of defendant's direct appeal, see People v. Hampton, 876 P.2d 1236, 1240-41 (Colo.1994)

(construing the term "conviction" in § 16-5-402), it expired, absent statutory exception, on October 18, 1996, three years after the issuance of the mandate in that appeal.

II.

Defendant contends that the § 16-5-402(1) limitation period was tolled while he litigated his earlier motion for postconviction relief. We disagree.

Recently, another division of this court concluded that neither the timely commencement of a collateral attack, nor the pendency of an appeal from the denial of Crim. P. 35(c) relief, tolls the limitation period with respect to later asserted postconviction claims. People v. Ambos, 51 P.3d 1070, 1072 (Colo.App.2002). The logical corollary to this decision is that the § 16-5-402(1) limitation period is not tolled during the litigation of a postconviction relief motion. Because we agree with this decision and its logical corollary, we conclude that defendant cannot prevail on this point.

Defendant's reliance on 28 U.S.C. § 2244(d)(1), for a contrary result, is misplaced. Section 2244(d)(2) expressly excludes "[t]he time during which a properly filed application for State post-conviction ... review ... is pending" from the time within which a state prisoner must file a petition for federal habeas corpus relief. In contrast, by its terms, § 16-5-402(1) does not exclude any period from computation of the time bar. Nor does it contain any "tolling" language. Rather, § 16-5-402(2)(d), C.R.S.2001, provides only that a court may hear a collateral attack commenced after the limitation period if a defendant's "failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect."

III.

Defendant next contends that the trial court erred in concluding that he had failed to establish justifiable excuse or excusable neglect for the untimely filing of his motions. We are not persuaded as to defendant's newly discovered evidence and sentencing claims, but conclude that further proceedings are necessary to resolve the other claims.

A defendant must allege in a Crim. P. 35 motion facts that, if true, would establish justifiable excuse or excusable neglect for a belated filing. People v. Wiedemer, 852 P.2d 424, 440 n. 15 (Colo.1993); People v. Xiong, 940 P.2d 1119, 1119-20 (Colo.App.1997).

In People v. Wiedemer, supra, 852 P.2d at 441-42, the supreme court set forth the following factors to consider in assessing the issue of justifiable excuse or excusable neglect: (1) whether circumstances or outside influences prevented a challenge to the prior conviction; (2) whether a defendant who had reason to question the constitutionality of a conviction investigated its validity and took advantage of avenues of relief that were available; (3) whether the defendant either knew that the conviction was constitutionally infirm or had reason to question its validity; (4) whether the defendant had other means of preventing the government's use of the conviction so that a postconviction challenge was previously unnecessary; (5) the time between the date of conviction and the defendant's challenge; and (6) the effect that such period has on the state's ability to defend against the challenge.

Whether a defendant has demonstrated justifiable excuse or excusable neglect is a question of fact to be resolved by the trial court, whose ruling we will not overturn if the record supports its findings. People v. Wiedemer, supra; see also People v. Vigil, 983 P.2d 805, 810 (Colo.App.1999).

A.

Defendant contends that justifiable excuse or excusable neglect existed with respect to the belated filing of his claims of newly discovered evidence and disproportionate sentencing. We disagree.

Here, defendant alleged that his incarceration and indigence hindered his ability to find the new evidence. However, the alleged newly discovered evidence pertains to newspaper articles and related police reports of burglaries committed by others. Defendant recounted that his mother found the newspaper articles in July 2000. He acknowledged, however, that the articles and the newspaper were known to him before his 1990 trial. And, although he alleged that his trial counsel had been unable to find the articles, he proffered no reason why the articles or the related police reports could not have been discovered by himself or others before 2000.

Consequently, we conclude that the trial court did not err in finding no justifiable excuse or excusable neglect for defendant's belated claim of newly discovered evidence. See People v. Ambos, supra; People v. Vigil, supra, 983 P.2d at 809-10

(incarceration not justifiable excuse...