People v. Hubbard

• Decision Date: 04 March 1974
• Docket Number: No. 25800,25800
• Citation: 519 P.2d 945,184 Colo. 243
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lloyd Earl HUBBARD, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 945

519 P.2d 945

184 Colo. 243

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lloyd Earl HUBBARD, Defendant-Appellant.

No. 25800.

Supreme Court of Colorado, En Banc.

March 4, 1974.

Rehearing Denied March 25, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Harold A. Haddon, Thomas M. Van Cleave III, Deputy State Public Defenders, Denver, for defendant-appellant.

ERICKSON, Justice.

We are called upon in this appeal to provide standards to guide a trial court in deciding whether to grant a hearing to review allegations set forth in successive Crim.P. 35(b) motions for post-conviction relief.

The trial court ruled that the violations of constitutional rights which were alleged in Hubbard's sixth motion for post-conviction relief were part of five previous Crim.P. 35(b) motions and that Hubbard was barred from seeking further relief under Crim.P. 35(b). We affirm for the reasons set forth in this opinion.

On July 18, 1962, an information was filed charging Hubbard with the crime of aggravated robbery. C.R.S.1953, 40--5--1. aggravated robbery. C.R.S.1953, 40--5--1. Hubbard. At the arraignment, Hubbard notified the court that he desired to plead guilty. The trial judge made a number of inquiries of both Hubbard and his attorney to determine the voluntariness of the proposed plea of guilty. After being reassured by both Hubbard and his trial counsel that the plea was offered voluntarily, the trial judge advised Hubbard of his constitutional rights, the effect of a guilty plea upon those rights, and the possible consequences of a guilty plea. Hubbard persisted in his desire to plead guilty, and the trial judge accepted the plea and subsequently sentenced Hubbard to the penitentiary.

Between the time that sentence was imposed and January 9, 1967, Hubbard filed five motions in the trial court seeking post-conviction relief. Four of the post-conviction motions were filed under Crim.P. 35(b) and the fifth was designated as a petition for writ of habeas corpus. The first four motions were denied by the trial court without a hearing. The fifth motion resulted in a full hearing with the defendant present. The evidence presented at the hearing, however, failed to establish that Hubbard was entitled to post-conviction relief, and the trial judge properly denied the fifth motion. On June 15, 1972, Hubbard filed yet another Crim.P. 35(b) motion in the district court alleging errors which were closely related to those set forth in his five prior motions. Hubbard's sixth Crim.P. 35(b) motion was denied, and the trial judge held that the doctrine of Res judicata was applicable under the facts of this case. Hubbard has appealed the denial of relief and contends that neither the doctrine of Res judicata nor any other doctrine bars him from repeatedly filing motions for post-conviction relief so long as he asserts a meritorious claim. We do not agree.

Although the doctrine of Res judicata does not apply to habeas corpus proceedings or motions filed under Crim.P. 35(b), there must, at some point, be an end to the review of criminal convictions. Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Crim.P. 35(b) provides, in part:

'One who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside . . . may file a motion at any time in the court which imposed the sentence to vacate, set aside or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights . . .. The court need not entertain a second motion or successive motions for similar relief based upon the same or similar allegations on behalf of the same prisoner.'

Post-conviction relief, under Crim.P. 35(b) is available where a defendant's constitutional rights have been violated during trial. Baca v. Gobin, 165 Colo. 593, 441 P.2d 6 (1968). The rule was not intended to establish a procedure which would allow continuing review of issues previously decided against the defendant. Henson v. People, 163 Colo. 302, 430 P.2d 475 (1967). Nor does it authorize the defendant to file successive motions based upon the same or similar allegations in the hope that a sympathetic judicial ear may eventually be found. People ex rel. Wyse v. District Court, Colo., 503 P.2d 154 (1972).

Although Crim.P. 35(b) is primarily intended to provide a procedure which will permit judicial review of alleged constitutional infirmities in criminal proceedings, it is couched in language which recognizes that there must be some finality in the reviewing process. In this case, Hubbard's piece-meal presentation of issues arising out of occurrences at his trial which might constitute violations of his constitutional rights defeats this second purpose of Crim.P. 35(b). Amercian Bar Association Standards for Criminal Justice Relating to Post-Conviction Remedies § 6.2.

At the time Crim.P. 35(b) was adopted to complement the remedies available through a writ of habeas corpus, the constitutional right to counsel had not been thoroughly analyzed or developed by the Supreme Court of the United States. Compare Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), With Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, during the last decade, the scope of the right to counsel provision of the Sixth Amendment to the United States Constitution has been reviewed on several occasions, See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Gideon v. Wain-wright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Fay v. Noia, Supra; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In two prior decisions, this court has followed the clear mandate of the United States Supreme Court to grant the right to counsel to an accused at every stage of the proceeding and implicitly recognized that in the absence of a knowing and intelligent waiver, the assistance of counsel is essential in post-conviction proceedings, unless the asserted claim for relief is wholly unfounded. Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969); Kotal v. People, 167 Colo. 317, 447 P.2d 536 (1968). See American Bar Association Standards for Criminal Justice Relating to Post-Conviction Remedies § 4.4.

Much of the Colorado case law which focuses upon successive Crim.P. 35(b) motions, however, developed at a time when there was no right to appointed counsel in post-conviction proceedings. The case law recognizes that as a practical matter, without the assistance of counsel, a convicted defendant would be hard-pressed to assemble into a single Crim.P. 35(b) motion all of the legal arguments which might result in post-conviction relief. In an attempt to alleviate that dilemma, the standards for deciding when successive Crim.P. 35(b) motions should be allowed were left ill-defined, and discretion was placed in the trial judge to allow or disallow successive motions on a case-by-case basis. By placing discretion in the trial judge, the convicted defendant was assured that every distinct and meritorious allegation which he raised would be reviewed.

In extending the Sixth Amendment's right to counsel provision to encompass post-conviction proceedings, it is possible for full review to be accomplished in a single Crim.P. 35(b) proceeding, and no justification exists for condoning successive and often repetitive motions for post-conviction relief. See Duties of Public Defender, 1969 Perm.Supp., C.R.S.1963, 39--21--4. When no claim is made that newly-discovered evidence, or some other meritorious reason exists for further review, the assistance of counsel in post-conviction proceedings makes it possible for the convicted defendant to receive a full review of all issues pertaining to possible violations of his constitutional rights and at the same time provides the criminal justice system with a method to inject the element of finality into criminal proceedings.

In light of the right to counsel in post-conviction proceedings, we now hold that all allegations relating to the violation of a defendant's constitutional rights should be included in a single Crim.P. 35(b) motion. If a second or successive motion is filed, it may be summarily dismissed without a hearing unless the trial judge finds that the failure to include newly-asserted grounds for relief in the first Crim.P. 35(b) motion is excusable. People v. Scheer, Colo., 518 P.2d 833 (announced January 21, 1974). See Sanders v. United States, supra; Murch v. Mottram, supra; Fay v. Noia, supra; Townsend v. Sain, supra; United States v. Stephens,425 F.2d 247 (10th Cir. 1970); Kinnell v. State, 210 Kan. 785, 504 P.2d 161 (1972); State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971); Lee v. State, 207 Kan. 185, 483 P.2d 482 (1971).

The interpretation of Crim.P. 35(b) which we have adopted has been approved and recommended in principle by the American Bar Association, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, and the National Advisory Commission on Criminal Justice Standards and Goals. The American Bar Association Standards Relating to Post-Conviction Remedies provide, in part:

'2.4 Statute of limitations; abuse of process; stale claims.

* * *

* * *

'(b) It should be considered an abuse of process for a person with a tenable or meritorious claim for post-conviction relief deliberately and knowingly to withhold presentation of that claim until an event occurs which he believes...