People v. Gilmore

• Decision Date: 03 July 2003
• Docket Number: No. 01CA0120.,01CA0120.
• Citation: 97 P.3d 123
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Reginald GILMORE, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

97 P.3d 123

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Reginald GILMORE, Defendant-Appellant and Cross-Appellee.

No. 01CA0120.

Colorado Court of Appeals, Div. II.

July 3, 2003.

Rehearing Denied October 9, 2003.

Certiorari Denied August 16, 2004.¹

Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado; Jeanne M. Smith, District Attorney, Robin L. Whitinger-Chittum, Deputy District Attorney, Gordon R. Denison, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant.

David S. Kaplan, Colorado State Public Defender, Julie Iskenderian, Deputy State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge CARPARELLI.

Defendant, Reginald Gilmore, appeals a judgment of conviction entered on a jury verdict that found him guilty of possession of a schedule II controlled substance with intent to distribute, possession of a schedule II controlled substance, and two habitual criminal counts. The People appeal defendant's reduced sentence of twenty-four years in the Department of Corrections. We dismiss the People's appeal, affirm the judgment of conviction in part, vacate in part, and remand for correction of the mittimus.

During surveillance of an apartment, a member of the police team saw a man drive up and, later, leave the apartment with defendant. The man then drove away. The police stopped the car shortly thereafter and recovered crack cocaine from a woman passenger. The woman told the police that she purchased the cocaine at the apartment from a man known as "G."

The police obtained a "knock and announce" warrant, which they executed at the apartment three days later. They found defendant in the bathroom, where one piece of rock cocaine was on the floor and another in the toilet. Defendant stated that, when he heard the police outside the apartment door, he took a "crumb" off the kitchen counter and ran down the hall to dispose of it.

At the apartment, the police also found marijuana, a surveillance camera mounted outside the front door, dozens of squares of tinfoil of a size commonly used to package drugs for sale, a safe, a lock box, approximately $3,364 in cash, and documents that showed the apartment as defendant's address.

I. The People's Appeal

We first address the People's appeal. The People contend that the trial court erred when, after an abbreviated proportionality review, it reduced defendant's mandatory sentence of seventy-two years in the Department of Corrections to twenty-four years. Defendant contends that, because the People filed their appeal after the expiration of the time allowed in C.A.R. 4(b)(2), we lack jurisdiction to consider it. We agree with defendant.

Defendant filed his notice of appeal challenging his convictions on the forty-fifth day after the judgment was entered. On the forty-sixth day, the People filed a motion to accept their appeal as timely filed. The People concede that their notice of appeal was not timely, but argue that it constitutes excusable neglect under C.A.R. 4(b)(1) "to wait for the opposing party to file a Notice of Appeal before filing Notice of Cross-Appeal if that is done in the interests of judicial efficiency in the case of an issue only to be pursued if the defendant initiates an appeal." They argue that, if they file appeals without waiting to see what defendants do, they will burden the court "with additional cases [the court] might not otherwise have."

A three judge panel of this court summarily granted the motion without comment. However, we conclude the People's appeal was untimely. Therefore, we are without jurisdiction to consider it.

A. Section 16-12-102(1)

In their opening brief, the People state that this court has jurisdiction because the "District Attorney is statutorily obligated under § 16-12-102(1), C.R.S.2002, to appeal whenever a statute is held to be unconstitutional or inoperative, as has been held here." However, in their reply brief, the People contend that they were not statutorily obligated to appeal because this case falls under the exception in § 16-12-102(1) for cases that raise "the same issue of constitutionality [that] is already pending before a reviewing court in another case." They then argue that "it was not necessary to appeal this case to resolve the general question of the applicability or constitutionality of the Habitual Criminal Statute" because the same issue is pending in two cases before the supreme court. They further argue that, because they were not required to appeal, it was proper for them to wait to see whether defendant appealed. We reject this argument.

Under § 16-12-102(1), the district attorney is required to appeal any criminal case in which an "act of the general assembly is adjudged inoperative or unconstitutional ... unless the same issue of constitutionality is already pending before a reviewing court in another case."

Here, the trial court's decision to reduce the statutorily mandated sentence rendered § 18-1.3-801(1.5), C.R.S.2002 (formerly codified as § 16-13-101(1.5)), inoperative with regard to defendant; it did not declare the Habitual Criminal Statute unconstitutional in any other case. Thus, "the same issue of constitutionality" was not already pending before a reviewing court in another case and the statute's exception to mandatory appeals does not apply. The People were obligated to file a timely appeal regardless of whether defendant appealed. Consequently, this aspect of the People's argument provides no basis to accept their untimely filing.

B. C.A.R. 4(b)

C.A.R. 4(b)(2) provides that: "Unless otherwise provided by statute or Colorado appellate rule, when an appeal by the state or the people is authorized by statute, the notice of appeal shall be filed in the Court of Appeals within forty-five days after the entry of judgment or order appealed from."

A reviewing court must strive to construe a statutory scheme in a manner that gives harmonious and sensible effect to all its parts. People v. Pierrie, 30 P.3d 816 (Colo.App.2001). The same rule of statutory construction applies to the interpretation of rules of procedure. Watson v. Fenney, 800 P.2d 1373 (Colo.App.1990).

Contrary to the People's contention, the excusable neglect provision in C.A.R. 4(b)(1) applies to appeals filed by defendants and not to appeals by the state or the People. C.A.R. 4(b)(2) controls those appeals. Unlike C.A.R. 4(b)(1), C.A.R. 4(b)(2) does not include language that allows extensions of time based on excusable neglect. Thus, neither C.A.R. 4(b)(1) nor C.A.R. 4(b)(2) permits this court to extend the time for notices of appeals by the People on grounds of excusable neglect.

In addition, C.A.R. 4(b) mandates that both parties submit their notices of appeal during the same forty-five-day period. The rule does not provide for sequential submissions, as is provided for civil cross-appeals. See C.A.R. 4(a) ("[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days of the date on which the first notice of appeal is filed").

For these reasons, we conclude that the People's appeal was untimely under C.A.R. 4(b)(2).

C. C.A.R. 26(b)

We further conclude that C.A.R. 26(b) does not allow the People's untimely appeal.

C.A.R. 26(b) provides that: "The appellate court for good cause shown may upon motion enlarge the time prescribed by these rules ... or may permit an act to be done after the expiration of such time." We conclude that there is not good cause to permit the People's late filing pursuant to C.A.R. 26(b).

The People cite Estep v. People, 753 P.2d 1241 (Colo.1988), for the proposition that "interests of judicial economy may properly be considered in deciding whether good cause permits [an appeal by the People] to be filed when a defendant files a direct appeal on the forty-fifth day." The People misinterpret the ruling in Estep.

In Estep, defendant's counsel negligently failed to file a timely appeal of the trial court's ruling on his Crim. P. 35 motion. The supreme court applied C.A.R. 26(b) and held that, when defense counsel's neglect is inexcusable,

the court should consider further whether other factors weigh heavily in favor of permitting the late filing. Those factors include the potential prejudice the appellee may suffer from a late filing, the interests of judicial economy, and the propriety of requiring the defendant to pursue other remedies to redress his counsel's neglect.

Estep v. People, supra, 753 P.2d at 1248.

There, because the defendant's failure to file resulted from inexcusable neglect, he was not entitled to an extension of time under C.A.R. 4(b)(1). However, the court explained that if it declined to accept the appeal, the case would return to the courts because the defendant's remedy for the loss of his right to appeal would be to institute another Crim. P. 35(c) motion and allege that his counsel's negligence constituted ineffective assistance. Estep v. People, supra, 753 P.2d at 1248. In that context, the court concluded that requiring the defendant to pursue yet another Crim. P. 35(c) motion "would not serve the `interests of substantial justice and judicial economy.'" Estep v. People, supra, 753 P.2d at 1248 (quoting Weason v. Colo. Court of Appeals, 731 P.2d 736, 738 n. 2 (Colo.1987)). Instead, it served judicial economy to address the matter immediately rather than require the defendant to file, and the trial court to consider, a new Crim. P. 35 motion. The decision in Estep does not grant parties the power to intentionally forgo a timely filing when they conclude that it would be more efficient for the judiciary if they do so.

Here, the People's tardiness was not for lack of care. Instead, their failure to file within the allotted...