People v. Hamm

• Decision Date: 20 June 2019
• Docket Number: Court of Appeals No. 16CA1944
• Citation: 461 P.3d 559
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Marcus HAMM, Defendant-Appellant.
• Court: Colorado Court of Appeals

461 P.3d 559

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Charles Marcus HAMM, Defendant-Appellant.

Court of Appeals No. 16CA1944

Colorado Court of Appeals, Division IV.

Announced June 20, 2019

Rehearing Denied August 15, 2019

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 Defendant, Charles Marcus Hamm, appeals the district court’s denial of his request for an evidentiary hearing on his petition for postconviction relief (the Petition). Hamm contends that his trial counsel was ineffective by not advising him that the penalty reductions enacted through the Uniform Controlled Substances Act of 2013 (the Act) apply retroactively and, therefore, require a reduction in his sentence. He also contends that the district court erred in denying him an evidentiary hearing on his challenge to the voluntariness of his stipulation (the Stipulation) to a thirty-year prison sentence.

¶ 2 We hold that, under section 18-1-410(1)(f)(II), C.R.S. 2018, and Crim. P. 35(c)(1), Hamm’s failure to file a direct appeal precludes him from seeking postconviction review of his sentence based on a "significant change in the law." Further, we hold that the trial court did not err in denying Hamm an evidentiary hearing because the Act does not apply retroactively and thus cannot reduce Hamm’s sentence.

I. Hamm’s Conviction and Postconviction Motions

¶ 3 Hamm was charged with one count of distribution of a controlled substance (3.4 grams of cocaine) in September 2011 and five habitual criminal counts based on his prior felony convictions. A jury convicted him on the distribution count.

¶ 4 The district court continued the trial on the habitual counts while the defense and the People negotiated an agreement on Hamm’s sentence. In exchange for dismissal of the habitual counts, Hamm stipulated to a sentence of thirty years in the custody of the Department of Corrections and five years of parole to avoid a mandatory sentence of sixty-four years.

¶ 5 Hamm filed a pro se motion in the district court to extend the deadline for an appeal. The court denied the motion because he had filed it in the wrong court. Hamm did not directly appeal his conviction or his sentence.

¶ 6 Hamm filed the Petition more than one year later. For purposes of this appeal, he argued in the Petition that his trial counsel had been ineffective by failing to advise him that the General Assembly had recently passed the Act and that the penalty reductions reflected in the Act applied retroactively. Hamm argued that, if the Act had been applied to him, he would have faced a maximum sentence of sixteen years. He also argued that he should be permitted to withdraw the Stipulation because he had entered into it without knowledge of the Act and, further, had agreed to the thirty-year sentence equivocally. He asked the district court to conduct an evidentiary hearing on the Petition.

¶ 7 The district court denied the Petition after determining that the Act did not apply retroactively. The court held that Hamm’s ineffective assistance claim failed because his trial counsel would have been misstating the law if he had advised Hamm that the Act applied retroactively. The court further found that the Stipulation was enforceable because Hamm had entered into it freely, knowingly, and voluntarily. In light of its findings, the district court declined to conduct an evidentiary hearing on the Petition.

II. Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) Bar Hamm’s Ineffective Assistance Claim

¶ 8 We resolve Hamm’s ineffective assistance of counsel claim on grounds not raised in the briefs because, as a matter of law, that claim is not properly before us. See Moody v. People , 159 P.3d 611, 615 (Colo. 2007) ("[A]ppellate courts have the discretion to affirm decisions ... on any basis for which there is a record sufficient to permit conclusions of law, even though they may be on grounds other than those relied upon by the trial court.").

A. The Governing Statute and Rule

¶ 9 Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) bar Hamm’s ineffective assistance claim because Hamm did not file a direct appeal of his conviction and sentence. Thus, the district court should not have considered the claim.

¶ 10 Section 18-1-410 sets forth the circumstances under which a person convicted of a crime may seek postconviction review of his sentence. Subsection (1) of the statute allows a defendant who did not file an appeal to move for postconviction review: "Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make applications for postconviction review." § 18-1-410(1).

¶ 11 Subsection (1)(f) of the statute applies to postconviction motions premised on a "significant change in the law." § 18-1-410(1)(f). Subsection (1)(f)(I) authorizes postconviction motions on the grounds that "there has been significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard." § 18-1-410(1)(f)(I).

¶ 12 The next subsection of the statute imposes conditions on postconviction motions based on a "significant change in the law." A person convicted of a crime is barred from arguing a "significant change in the law" in a postconviction motion if he "has not sought appeal of a conviction within the time prescribed therefor or if a judgment of conviction has been affirmed upon appeal." § 18-1-410(1)(f)(II).

¶ 13 Crim. P. 35(c)(1) contains similar language:

If, prior to filing for relief pursuant to this paragraph (1), a person has sought appeal of a conviction within the time prescribed therefor and if judgment on that conviction has not then been affirmed upon appeal , that person may file an application for postconviction review upon the ground that there has been a significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.

Crim. P. 35(c)(1) (emphasis added).

¶ 14 Therefore, a person may not seek postconviction relief based on a "significant change in the law" unless (a) he has filed a timely appeal and (b) an appellate court has not affirmed his judgment of conviction.

B. Hamm Did Not File an Appeal and, Therefore, May Not Seek Postconviction Relief Based on a "Significant Change in the Law"

¶ 15 Hamm was convicted on the distribution count on January 31, 2013, and stipulated to the thirty-year sentence on September 30, 2013. Hamm filed his motion to extend the deadline for an appeal in the district court on October 21, 2013. The district court denied the motion, however, because Hamm had filed it in the wrong court. See C.A.R. 4(b)(1) ("[T]he appellate court may ... extend the time for filing a notice of appeal ...."). The record contains no indication that Hamm ever filed in this court a motion to extend the time to appeal. In any event, Hamm never filed a direct appeal of his conviction or sentence, which became final when he missed the deadline to file a notice of appeal.

¶ 16 Hamm filed the Petition two years later, on October 11, 2015. Because he did not file an appeal, he did not satisfy the conditions precedent for seeking postconviction relief based on a "significant change in the law," regardless of whether the Act applies retroactively. § 18-1-410(1)(f)(II) ; Crim. P. 35(c)(1) ; see People v. Stellabotte , 2018 CO 66, ¶ 33, 421 P.3d 174, 181 ("Subsection 18-1-410(1)(f)(I) provides for retroactive application of significant change in the law to a defendant’s conviction or sentence but, under subsection (II), during only direct appeal, before the conviction is final. Thus, it applies only to criminal prosecutions and during only a narrow procedural timeframe."); Glazier v. People , 193 Colo. 268, 269, 565 P.2d 935, 936 (1977) ("As we have repeatedly held, a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction."); People v. Thomas , 185 Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (holding that where the defendant sought postconviction relief during the pendency of his appeal, "amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment").

¶ 17 For this reason, we affirm the district court’s denial of Hamm’s request for a hearing on his ineffective assistance of counsel claim.

III. The District Court Did Not Err in Denying Hamm’s Request for an Evidentiary Hearing on His Challenge to the Stipulation

A. Hamm May Appeal the District Court’s Ruling on the Enforceability of the Stipulation

¶ 18 The People argue that Hamm missed the deadline for appealing the district court’s denial of his request for an evidentiary hearing on his challenge to the Stipulation. We disagree and therefore consider the issue on the merits.

¶ 19 Hamm presented through the Petition all of his arguments relevant to this appeal. The district court denied Hamm’s request for an evidentiary hearing on the voluntariness of the Stipulation on November 25, 2015, ten months before the district court adjudicated Hamm’s ineffective assistance of counsel claim. The People contend that Hamm was required to appeal the ruling on his claim concerning the Stipulation within forty-nine days of November 25, 2015, which he did not do. Instead, Hamm filed a notice of appeal of the district court’s denial of his request for an evidentiary hearing on each argument presented in the Petition within forty-nine days of the date on which the district court resolved the last of...