People v. Collier
Citation | 151 P.3d 668 |
Decision Date | 30 November 2006 |
Docket Number | No. 05CA0897.,05CA0897. |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lloyd E. COLLIER, Defendant-Appellant. |
Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Lloyd E. Collier, Pro Se.
Opinion by Judge BERNARD.
Defendant, Lloyd E. Collier, appeals the trial court order denying his motion for postconviction relief. We affirm.
The following facts are undisputed. In 2001, defendant pleaded guilty to sexual assault on a child, § 18-3-405(1), C.R.S.2006, a class four felony. On June 29, 2001, defendant was given a suspended sentence of eight years to life in the custody of the Department of Corrections (DOC) and placed on probation. Defendant violated the conditions of his probation, however, and he was resentenced to the DOC in June 2004.
On February 15, 2005, defendant filed a motion to correct an illegal sentence under Crim. P. 35(a). The trial court found that, in substance, defendant's motion challenged the constitutionality of his sentence. Thus, the court treated the motion as having been brought pursuant to Crim. P. 35(c) and ruled it was time barred pursuant to § 16-5-402, C.R.S.2006. The court also denied the motion on the merits.
Defendant contends his postconviction motion is cognizable under Crim. P. 35(a). We disagree, except as to one claim.
The substance of a postconviction motion controls whether it is designated as a Crim. P. 35(a) or 35(c) motion. See People v. Shepard, 151 P.3d 580, 2006 WL 1914093 (Colo. App. No. 04CA1644, July 13, 2006) (considering defendant's Crim. P. 35(a) motion as a 35(c) motion based on its content); People v. Green, 36 P.3d 125 (Colo.App.2001)(same).
Crim. P. 35(a) provides: "The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence." A sentence is "not authorized by law" if it is inconsistent with the statutory scheme outlined by the legislature. People v. Wenzinger, ___ P.3d ___, 2006 WL 1493802 (Colo.App. No. 04CA2322, June 1, 2006); see People v. Rockwell, 125 P.3d 410 (Colo.2005); Delgado v. People, 105 P.3d 634 (Colo.2005); People v. Green, supra.
Crim. P. 35(a) is the proper procedural vehicle for a defendant to use to challenge an illegal sentence. People v. Rockwell, supra. A sentence is illegal if it is "inconsistent with the statutory scheme outlined by the legislature," and an allegation that a sentence is illegal raises questions about the sentencing court's subject matter jurisdiction. People v. Rockwell, supra, 125 P.3d at 414.
Motions under Crim. P. 35(c) are the proper postconviction route in which to challenge convictions or sentences as unconstitutional. See Crim. P. 35(c)(2)(I) ( ); Crim. P. 35(c)(2)(II) ( ); People v. Shepard, supra; People v. Wenzinger, supra.
Defendant's motion asserts five claims that his conviction and sentence are unconstitutional, which are cognizable under Crim. P. 35(c), and one claim that his sentence was imposed in an illegal manner, which is cognizable under Crim. P. 35(a).
Unlike Crim. P. 35(a) motions, Crim. P. 35(c) motions are subject to § 16-5-402(1), C.R.S.2006, which provides in all cases involving felony offenses other than class one felonies, a collateral attack must be brought within three years of the date of conviction. People v. Abeyta, 923 P.2d 318 (Colo.App. 1996).
For purposes of § 16-5-402 and postconviction review, if there is no direct appeal, a conviction occurs when the trial court enters judgment and sentence is imposed. People v. Hampton, 857 P.2d 441 (Colo.App. 1992), aff'd, 876 P.2d 1236 (Colo.1994).
In this case, there was no direct appeal, and defendant's sentence was imposed on June 29, 2001. He filed his postconviction motion on February 15, 2005, which was outside the three-year statute of limitations.
The fact that defendant was resentenced to the DOC in June 2004 upon revocation of his probation does not alter our conclusion. See People v. Cummins, 37 P.3d 507 (Colo.App. 2001)(for purpose of determining timeliness of Crim. P. 35(c) motion, operative sentence is the one imposed upon judgment of conviction, not the one subsequently imposed upon revocation of probation); People v. Metcalf, 979 P.2d 581, 583 (Colo.App.1999) ) .
We conclude that the trial court properly denied defendant's motion because all his claims are time barred.
Defendant contends the trial court aggravated his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This claim is cognizable under Crim. P. 35(c) and not Crim. P. 35(a), and is, therefore, time barred. See People v. Wenzinger, supra, ___ P.3d at ___ (); People v. Gardner, 55 P.3d 231 (Colo.App.2002)(treating Apprendi challenge as a Crim. P. 35(c) claim).
Defendant next contends the trial court sentenced him to two punishments for the same crime, in violation of the Fifth Amendment prohibition against double jeopardy. We conclude this claim is also properly brought under Crim. P. 35(c).
The supreme court, in Graham v. Cooper, 874 P.2d 390 (Colo.1994), treated a defendant's claim his sentence was illegally increased upon amendment of the mittimus, in violation of the constitutional prohibition against double jeopardy, as being properly filed pursuant to Crim. P. 35(a).
However, Graham does not apply here because it was decided before the most recent amendments to Crim. P. 35. Prior to 2004, there was some overlap in the language of Crim. P. 35(a) and 35(c). See People v. Green, supra, 36 P.3d at 127-28 () .
The term "illegal sentence" does not appear in the current version of Crim. P. 35(a). That phrase has been replaced with "a sentence that was not authorized by law." People v. Wenzinger, supra. Thus, under the current version of Crim. P. 35(a), the only circumstance in which a sentence is "not authorized by law" is when it is inconsistent with the statutory scheme outlined by the legislature. People v. Wenzinger, supra (citing People v. Rockwell, supra).
Because there is no longer any overlap between Crim. P. 35(a) and 35(c), and because Crim. P. 35(c) is now the only rule that provides for relief for constitutional claims, we conclude Graham v. Cooper, supra, does not control. See also People v. Shepard, supra ( ); cf. Forma Scientific, Inc. v. BioSera, Inc., 960 P.2d 108 (Colo.1998)(recognizing cases Fed.R.Evid. 407 were superseded by amendments to the rule).
Further, defendant's claim is different from the claim the supreme court considered in Graham. Graham raised the issue of whether a second amended mittimus violated his right to be free from double jeopardy by increasing the length of his sentence after he had begun serving it. See People v. Chavez, 32 P.3d 613 (Colo.App.2001) ( ). Here, the sentences of which defendant complains were imposed together when defendant was sentenced, and so there is no issue of whether his sentence was increased after it was imposed and he had begun serving it.
Also, defendant does not claim his sentence is inconsistent with the statutory scheme; he only claims it violates double jeopardy. We therefore conclude defendant's claim is cognizable under Crim. P. 35(c). See People v. Shepard, supra ( ). Accordingly, this claim is also time barred.
Defendant further contends the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1001, et seq., C.R.S.2006, violates his right to equal protection of the law because it allows judges to impose different sentences for substantially similar crimes.
This is not a Crim. P. 35(a) claim because defendant does not argue his sentence is inconsistent with the statutory scheme. See Crim. P. 35(a); People v. Shepard, supra; People v. Wenzinger, supra. Instead, defendant's claim is that the sentencing scheme set forth in the...
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...P.3d 161, 168 (Colo.App. 2009). A defendant can also raise a double jeopardy sentencing argument under Crim. P. 35(c), People v. Collier, 151 P.3d 668, 672 (Colo.App.2006), and the postconviction court would rule on the same record we have before us now. Nor do we have the same difficulty a......
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People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009)
...No. 06CA1612, Feb. 19, 2009). A defendant can also raise a double jeopardy sentencing argument under Crim. P. 35(c), People v. Collier, 151 P. 3d 668, 672 (Colo. App. 2006), and the postconviction court would rule on the same record we have before us Nor do we have the same difficulty apply......
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