People v. Hartkemeyer, 91CA0304
| Decision Date | 02 July 1992 |
| Docket Number | No. 91CA0304,91CA0304 |
| Citation | 843 P.2d 92 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel R. HARTKEMEYER, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Katherine M. Clark, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Kristin Giovanini, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge MARQUEZ.
Defendant, Daniel R. Hartkemeyer, appeals the order of the trial court denying his Crim.P. 35(c) motion for post-conviction relief. We affirm.
Defendant entered a plea of guilty to a charge of conspiracy to sell or distribute marihuana. Originally sentenced to probation, defendant was resentenced to four years incarceration following revocation of his probation. Subsequently, he filed a motion for post-conviction relief, alleging that his sentence was illegal as he was entitled to the benefit of amendatory legislation which lowered the classification of his offense. The trial court denied the motion without a hearing and without making findings of fact or conclusions of law.
Defendant contends that the trial court's summary disposition of his motion was error. We find no error in denying the motion without a hearing, but we do agree that the trial court erred in failing to make findings or conclusions of law. See People v. Simons, 826 P.2d 382 (Colo.App.1991). However, because the issue presented here, construction of a statute, is one of law, we conclude that reversal is not required.
A motion under Crim.P. 35(c) may be dismissed without a hearing if the motion, the files, and the record clearly establish that the defendant is not entitled to relief. White v. Denver District Court, 766 P.2d 632 (Colo.1988).
Here, the legislation to which defendant refers did not, in fact, lower the classification of his offense. See §§ 18-2-201 and 18-18-106, C.R.S. (1991 Cum.Supp.). Thus, the record supports the trial court's determination of the motion without a hearing.
Section 18-2-201, C.R.S. (1991 Cum.Supp.) was amended effective July 1989 to provide that, if a person conspires to commit a felony which is defined by any statute other than one contained in that title and for which conspiracy no penalty is specifically provided, then such person is guilty of a class 6 felony. However,...
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...a hearing, and the failure of the court to address the ineffective assistance claim is therefore harmless. See People v. Hartkemeyer, 843 P.2d 92, 93 (Colo.App.1992).V. Defendant's Pro Se Request for New Appellate Counsel or to Proceed Pro Se on AppealBefore oral argument in this case, defe......
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People v. Russell
...that the defendant is not entitled to relief, a court may deny a Crim. P. 35(c) motion without a hearing. See People v. Hartkemeyer, 843 P.2d 92 (Colo. App.1992). In such circumstances, the court may also decline to exercise its discretionary authority to appoint counsel. See Duran v. Price......
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...error and does not require reversal. Crim. P. 35(c)(3); People v. Mayes, 981 P.2d 1106, 1107 (Colo.App.1999); People v. Hartkemeyer, 843 P.2d 92, 93 (Colo.App.1992). As more fully set forth below, we conclude that defendant's motion was properly denied as a matter of law. Accordingly, we fu......