People v. Gresl, 00CA1170.

Citation89 P.3d 499
Decision Date31 December 2003
Docket NumberNo. 00CA1170.,00CA1170.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian GRESL, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. Opinion by Judge TAUBMAN.

Defendant, Brian Gresl, appeals the trial court orders denying his motions for postconviction relief. We vacate the order granting reconsideration of the denial of his Crim. P. 35(b) motion, dismiss the appeal as to the orders denying enforcement of the order granting that reconsideration, and affirm the remainder of the orders.

In November 1995, pursuant to a consolidated plea agreement, defendant pleaded guilty in one case to sexual assault on a child by one in a position of trust (the sex assault case) and in another case to theft (the theft case). In exchange for defendant's guilty pleas, the prosecution agreed to dismissal of the remaining charges in those cases and three other cases.

On June 18, 1996, the trial court sentenced defendant to a twelve-year prison term for the sexual assault conviction and a concurrent three-year term for the theft conviction.

Defendant then filed a timely Crim. P. 35(b) motion on October 15, 1996 in the sexual assault case. That motion was denied following a hearing on March 3, 1997. On April 23, 1997, 309 days after he was sentenced, defendant filed motions in both cases to reconsider the denial of his Crim. P. 35(b) motion. The trial court's order of July 9, 1997, apparently granting the motions to reconsider, is at issue here.

It is unnecessary to set forth the rest of the complicated procedural background of this appeal, which involves several trial court orders ultimately denying defendant's Crim. P. 35(b) and (c) motions.

I. Motions to Reconsider Denial of Crim. P. 35(b) Motion

Defendant first contends that the trial court erred by concluding that the July 9, 1997 order granting his motions to reconsider the denial of his Crim. P. 35(b) motion was a clerical mistake and by denying his Crim. P. 35(c) motion seeking enforcement of the order granting the motions to reconsider. We need not resolve that issue because, in any event, we conclude that the trial court lacked jurisdiction to entertain the motions to reconsider.

We agree with the People that defendant's motions to reconsider the order denying his Crim. P. 35(b) motion amounted to a second Crim. P. 35(b) motion and that, because the motions were filed after the 120-day deadline for filing such motions, the trial court lacked jurisdiction to rule on them.

No provision of the criminal procedure rules specifically authorizes a motion to reconsider an order denying a Crim. P. 35(b) motion or otherwise provides for reconsideration of such an order. See People v. Morales-Uresti, 934 P.2d 856 (Colo.App. 1996)

(court affirms denial of motion to reconsider denial of Crim. P. 35(b) motion without addressing jurisdiction); see also People v. Adams, 905 P.2d 17 (Colo.App.1995)(filing a motion to reconsider cannot extend the time to appeal an order denying a Crim. P. 35(c) motion); cf. Stone v. People, 895 P.2d 1154 (Colo.App.1995)(division noted that a motion to reconsider is not specifically delineated in C.R.C.P. 59, and no other rule or statute established a party's right to file a motion to reconsider except under § 24-4-106(2), C.R.S.2003, of the Administrative Procedure Act and C.A.R. 40).

"Under Crim. P. 35, motions for reduction of sentence must be filed with the trial court within 120 days after sentence is imposed. Once the 120-day limit expires, the trial court's jurisdiction to reduce or change the sentence terminates." Swainson v. People, 712 P.2d 479, 480 (Colo.1986).

That time limit may be extended only in limited circumstances, such as when a defendant is unconstitutionally deprived of the opportunity to file a Crim. P. 35(b) motion because of ineffective assistance of counsel. Swainson v. People, supra.

That time limit may also be extended by statute, such as § 17-27.7-104(2)(a), C.R.S.2003, which allows an inmate participating in the regimented inmate training program to file a Crim. P. 35(b) motion within sixty days of termination or completion of the program. See People v. Smith, 971 P.2d 1056 (Colo.1999). No such extension applies here.

Accordingly, we conclude the trial court lacked jurisdiction to entertain the motions to reconsider because they were filed more than 120 days after defendant's sentence was imposed. See People v. Fuqua, 764 P.2d 56 (Colo.1988)

(the requirement that a Crim. P. 35(b) motion be filed within 120 days after the sentence becomes final is jurisdictional, and a trial court lacks jurisdiction to consider an untimely motion); Swainson v. People, supra (same); People v. Campbell, 75 P.3d 1151 (Colo.App.2003)(same); People v. Arnold, 907 P.2d 686 (Colo.App.1995)(same). We similarly reject defendant's argument that the trial court had jurisdiction to entertain his motions to reconsider because his initial Crim. P. 35(b) motion was timely filed. There is no basis to conclude that defendant's motions to reconsider relate back to the date of his initial Crim. P. 35(b) motion. Accordingly, because defendant's motions to reconsider the denial of his Crim. P. 35(b) motion were filed more than 120 days after the date of his sentencing, the trial court did not have jurisdiction to rule on them.

Finally, the question whether the trial court erred in ruling on those motions is moot. We thus dismiss the appeal as to the September 20, 2001 order and the portion of the May 10, 2001 order regarding the motions to reconsider.

II. Motion to Withdraw Guilty Plea

Defendant next contends he was not advised about the sentencing consequences of his guilty plea to the sex assault charge and that the trial court erred by denying his Crim. P. 35(c) motion to withdraw his guilty plea on that basis. We disagree.

To satisfy the requirements of due process, the record as a whole must show that the defendant entered his or her guilty plea knowingly and voluntarily. Lacy v. People, 775 P.2d 1 (Colo.1989); Waits v. People, 724 P.2d 1329 (Colo.1986).

Before accepting a defendant's guilty plea as knowingly and voluntarily entered, the trial court must ensure that the defendant was advised of the direct consequences of the plea, including the sentences that could be imposed. People v. Marez, 39 P.3d 1190 (Colo.2002); Craig v. People, 986 P.2d 951 (Colo.1999); People v. Weed, 830 P.2d 1095 (Colo.App.1991).

A proper advisement need not comport with any prescribed ritual or script. Craig v. People, supra.

Here, defendant was not advised either in writing or orally by the providency court regarding the range of sentences that could be imposed upon entry of his guilty plea to the sex assault charge. However, the prosecutor mentioned at the beginning of the providency hearing that defendant could be sentenced to up to sixteen years in prison for the sex assault charge, and the court advised him that he could be sentenced to up to twelve years for his theft conviction. Thus, the prosecutor's statement compensated for any deficiency in the court's advisement.

Accordingly, defendant is not entitled to relief based on the providency court's failure to advise him of the full range of sentences that could be imposed for his sex assault conviction. Although the Crim. P. 35(c) court erroneously concluded that defendant had been "advised carefully" of the possible penalties, we find no abuse of discretion in its ultimate denial of his motion. See People v. Jenkins, 768 P.2d 727 (Colo.App.1988)

(a correct result will be upheld on review, even if the reason for the trial court's ruling was wrong).

We likewise find no abuse of discretion in the trial court's rejection of defendant's related claim that he should be permitted to withdraw his plea on the ground that counsel did not advise him about the applicable sentencing ranges. Specifically, even if counsel failed to advise defendant regarding sentencing, he would be unable to establish that counsel's alleged dereliction prejudiced the defense because the sentences imposed are within the range of sentences the prosecutor and the court told him he was at risk of receiving. See Davis v. People, 871 P.2d 769 (Colo.1994)

(to prevail in a proceeding for postconviction relief based on a claim of ineffective assistance of counsel, the defendant must demonstrate not only that counsel's performance was deficient, but also that it prejudiced the defense).

III. Ineffective Assistance of Counsel

Defendant also maintains that the trial court erred by concluding that plea counsel's assistance was not constitutionally ineffective and by denying his Crim. P. 35(c) motion on that basis. We disagree.

To establish that he received ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Valdez, 789 P.2d 406 (Colo.1990); People v. DiGuglielmo, 33 P.3d 1248 (Colo. App.2001).

To satisfy the second requirement of this test, a defendant must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra; Davis v. People, supra.

Thus, defendant here was required to demonstrate that, but for counsel's alleged dereliction, he would not have pleaded guilty. See People v. Garcia, 815 P.2d 937 (Colo.1991); People v. Pozo, 746 P.2d 523 (Colo.1987).

Because a presumption of validity attaches to a judgment of conviction, the burden is on the defendant to prove both elements of his ineffective...

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