People v. Houser

Citation490 P.3d 863
Decision Date27 August 2020
Docket NumberCourt of Appeals No. 17CA0972
CourtCourt of Appeals of Colorado
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy Charles HOUSER, Defendant-Appellant.

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


¶ 1 Defendant, Timothy Charles Houser, appeals the district court's order denying his Crim. P. 35(c) motion for postconviction relief.

The postconviction court rejected Houser's constitutional arguments and his claims of ineffective assistance of counsel without a hearing.

¶ 2 We affirm the postconviction court's denial of Houser's constitutional arguments. We also affirm the portion of the postconviction court's order addressing Houser's claim that his trial counsel was ineffective for failing to raise novel arguments. We hold that an attorney cannot be deemed ineffective solely because he or she did not take positions unsupported or not "clearly foreshadowed" by then-existing law. In addition, we affirm the portion of the order holding that Houser is not entitled to a hearing on his claim that his attorney was ineffective for failing to raise a valid defense, because that claim fails as a matter of law. However, we reverse the postconviction court's denial of Houser's claims that his counsel was ineffective for not challenging the out-of-court identification of Houser and the search warrant resting on such identification, and not challenging the prosecution's alleged outrageous conduct in forcing his first attorney to withdraw. The case is remanded to the postconviction court for a hearing on those claims.

I. Background

¶ 3 Houser was convicted of patronizing a prostituted child in violation of section 18-7-406(1)(a), C.R.S. 2019. Sixteen-year-old A.J. testified at Houser's trial that she earned money through prostitution. She posted an advertisement on Craigslist in which she identified herself as a twenty-year-old "playmate." Houser responded to A.J.’s posting. A.J. told police she went to Houser's "home in Douglas County where he paid her $240 to engage in sexual acts with him." People v. Houser , 2013 COA 11, ¶ 2, 337 P.3d 1238, 1243 ( Houser I ).

¶ 4 Houser was charged with patronizing a prostituted child. Houser filed a pretrial notice of intent to assert an affirmative defense under section 18-1-503.5, C.R.S. 2019, that Houser had reasonably believed A.J. was over the age of eighteen. That statute authorizes a reasonable mistake of age defense, although it does not refer to the child prostitution statutes. The prosecution filed an objection to the notice, arguing that section 18-7-407, C.R.S. 2019, which expressly applies to the child prostitution statutes, precluded Houser from raising such a defense. See § 18-7-407 ("In any criminal prosecution under sections 18-7-402 to 18-7-407, it shall be no defense that the defendant did not know the child's age or that he reasonably believed the child to be eighteen years of age or older.").

¶ 5 Following a hearing, the trial court found that section 18-7-407 bars defendants charged with patronizing a prostituted child from presenting a reasonable mistake of age defense. The court, therefore, prohibited Houser from arguing at trial that he reasonably believed A.J. was at least eighteen years old.

¶ 6 A jury found Houser guilty of patronizing a prostituted child. The trial court sentenced him to thirty days in jail, with ten days’ credit for time served, and sex offender intensive supervised probation for an indeterminate term of ten years to life. Six years later, after Houser failed to comply with the terms of his probation, the trial court resentenced him to two years to life in the custody of the Department of Corrections.

A. Houser's Direct Appeal

¶ 7 Houser appealed his conviction. A division of this court affirmed. Houser I , ¶ 1, 337 P.3d at 1243. Two of the holdings in Houser I are relevant here.

¶ 8 First, the division affirmed the trial court's ruling that Houser was precluded from presenting a reasonable mistake of age defense. Id. at ¶ 27, 337 P.3d at 1246. In comparing sections 18-1-503.5(1) and 18-7-407, the Houser I division acknowledged that the former "mandates that the court allow a reasonable belief defense when the victim is at least fifteen years old, [while] the other expressly prohibits such a defense." Id. at ¶ 19, 337 P.3d at 1245. After meticulously analyzing the legislative history of the two statutes, the division determined that section 18-7-407 applies to the offense of patronizing a prostituted child. Thus, defendants charged with that offense cannot present a reasonable mistake of age defense, as a matter of law. Id. at ¶¶ 18-27, 337 P.3d at 1245-46.

¶ 9 Second, the division declined to consider Houser's unpreserved argument that section 18-7-401(6), C.R.S. 2019, which defines "prostitution by a child," is unconstitutionally vague on its face. Id. at ¶ 49, 337 P.3d at 1250. The division decided that judicial economy did not "afford a basis" for departing from the principle that a constitutional challenge may not be raised for the first time on appeal. Id. at ¶¶ 28, 30, 49, 337 P.3d at 1246, 1247, 1250.

B. Houser's Crim. P. 35(c) Motion

¶ 10 After the Houser I division affirmed his conviction, Houser filed a Crim. P. 35(c) motion challenging the constitutionality of his conviction and sentence, and alleging ineffective assistance of counsel. The postconviction court denied Houser's motion without a hearing. It found that Houser I precluded Houser's constitutional arguments and, even if Houser could present such arguments, they fail on the merits. It also held that Houser failed to establish prejudice and deficient performance and, therefore, is not entitled to a hearing on his ineffective assistance of counsel claims. This appeal followed.

¶ 11 In his appeal, Houser largely reasserts the arguments he presented in his Crim. P. 35(c) motion.

¶ 12 Houser raises four constitutional arguments: (1) the offense of patronizing a prostituted child is unconstitutionally vague; (2) section 18-7-401(6) violates Houser's right to equal protection; (3) section 18-7-407, which Houser I held precludes a defendant from raising an affirmative defense of reasonable mistake of age in child prostitution cases, violates Houser's equal protection and due process rights; and (4) section 18-1.3-1004(2)(a), C.R.S. 2019, the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), is unconstitutional as applied to Houser and, specifically, violates his due process rights.

¶ 13 Further, Houser contends that his trial counsel was ineffective in failing to (1) challenge the constitutionality of section 18-7-407 ; (2) challenge the constitutionality of his sentence under SOLSA; (3) argue that the offense of patronizing a prostituted child is void for vagueness; (4) argue that Houser's conviction under section 18-7-406(1) violates equal protection; (5) raise a valid defense; (6) call a particular witness; and (7) challenge "the State's outrageous conduct." Houser argues that the postconviction court erred in denying him a hearing on the claims raised in his Crim. P. 35(c) motion.

II. Houser's Constitutional Claims

¶ 14 Before we address the merits of Houser's constitutional arguments, we first consider the People's contention that they are not properly before us. The People assert that, because Houser raised only one constitutional argument in his direct appeal, we are precluded from considering all of Houser's constitutional claims under Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) or, in the alternative, under the doctrine of law of the case. We disagree that Houser's void for vagueness argument is not properly before us. However, we agree with the People that we are precluded from considering Houser's other constitutional arguments under Crim. P. 35(c).

A. Although Houser's Void for Vagueness Argument Is Properly Before Us, We Do Not Consider Houser's Other Constitutional Arguments Under Crim. P. 35(c)
1. Crim. P. 35(c)(3)(VI) and Crim. P. 35(c)(3)(VII)

¶ 15 Crim. P. 35(c)(3)(VI) requires us to "deny any claim that was raised and resolved in a prior appeal ...." We must also "deny any claim that could have been presented in an appeal previously brought or postconviction proceeding previously brought ...." Crim. P. 35(c)(3)(VII) ; see Dunlap v. People , 173 P.3d 1054, 1062 n.4 (Colo. 2007).

¶ 16 As discussed above, Houser contended in his direct appeal that the offense of patronizing a prostituted child is unconstitutionally vague, although the division in Houser I declined to consider the argument. Houser I , ¶¶ 28, 49, 337 P.3d at 1246, 1250. Houser's void for vagueness argument, therefore, does not fit within Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) because it was raised, but not resolved, in Houser's direct appeal. We therefore address this argument on the merits. We do not, however, consider Houser's remaining constitutional arguments because Houser could have raised them in his direct appeal but did not do so. See Crim. P. 35(c)(3)(VII).

2. Law of the Case

¶ 17 "[T]he law of the case ‘is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter.’ " Verzuh v. Rouse , 660 P.2d 1301, 1303 (Colo. App. 1982) (quoting United States v. U.S. Smelting Ref. & Mining Co. , 339 U.S. 186, 198, 70 S.Ct. 537, 94 L.Ed. 750 (1950) ). Houser argues that the law of the case doctrine does not apply to his argument that section 18-7-406 is void for vagueness because the division in Houser I "refused to address or resolve" the merits of that argument. We agree. Because Houser's void for vagueness argument was not "litigated and decided" in Houser I , the law of the case doctrine does not preclude us from...

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