People v. Hunsaker

• Decision Date: 26 March 2020
• Docket Number: Court of Appeals No. 17CA1815
• Citation: 490 P.3d 688
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. HUNSAKER, Jr., Defendant-Appellant.

490 P.3d 688

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

v.William J. HUNSAKER, Jr., Defendant-Appellant.

Court of Appeals No. 17CA1815

Colorado Court of Appeals, Division VI.

Announced March 26, 2020

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Hunsaker Emmi, P.C., William J. Hunsaker, Golden, Colorado, for Defendant-Appellant

Opinion by JUDGE GROVE

¶ 1 In this appeal, we decide whether the holding in Leyva v. People , 184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an illegal sentence resets the three-year limitations period for filing a Crim. P. 35(c) motion — applies to any collateral attack that a defendant might assert, or, alternatively, only to those claims that relate to how the illegality in that sentence potentially affected the defendant's original convictions. We conclude that the correction of an illegal sentence only resets the time period for filing a Crim. P. 35(c) motion for those claims that relate to how the illegality in the sentence potentially affected a defendant's original convictions. For that reason, all but one of the claims asserted by defendant, William J. Hunsaker, Jr., in his Crim. P. 35(c) motion are untimely. And, because the timely claim may be denied as a matter of law, we affirm the district court's order denying that motion.

¶ 2 In reaching this conclusion, we disagree with People v. Baker , 2017 COA 102, 461 P.3d 534, rev'd on other grounds , 2019 CO 97M, 452 P.3d 759, in which another division of this court held that the correction of an illegal sentence resets the statutory time bar for collaterally attacking the original judgment of conviction in all respects.

I. Background

¶ 3 In 2006, a jury found Hunsaker guilty of sexual assault on a child and sexual assault on a child as part of a pattern of abuse (pattern count). The court sentenced him to concurrent prison terms of eight years to life for sexual assault on a child and sixteen years to life on the pattern count. On appeal, a division of this court affirmed Hunsaker's convictions. People v. Hunsaker , (Colo. App. No. 06CA2088, Mar. 4, 2010)(not published pursuant to C.A.R. 35(f) ) (Hunsaker I ). The mandate issued on January 31, 2011.

¶ 4 In 2011, Hunsaker filed a Crim. P. 35(a) motion, arguing that the court had illegally imposed sentences applicable to extraordinary risk crimes despite the fact that neither of his convictions presented an extraordinary risk of harm. The prosecution agreed that Hunsaker had not been convicted of an extraordinary risk crime and, accordingly, conceded that Hunsaker had received an illegal sentence for the count of sexual assault on a child. With respect to the pattern count, however, the prosecution maintained that the sentence was legal because the pattern count was a crime of violence. The district court agreed with Hunsaker and amended the mittimus to reflect sentences of six years to life on the sexual assault on a child count and twelve years to life on the pattern count.

¶ 5 The People appealed the court's decision to resentence Hunsaker on the pattern count. A division of this court agreed that the original sentence of sixteen years to life was legal and remanded the case for the district court to reinstate that sentence. People v. Hunsaker , 2013 COA 5, ¶¶ 24, 45-46, 411 P.3d 36 ( Hunsaker II ), aff'd , 2015 CO 46, ¶ 40, 351 P.3d 388. The mandate issued on August 6, 2015. In February 2016, the district court amended the mittimus to reinstate the sentence of sixteen years to life on the pattern count.

¶ 6 On February 16, 2016, Hunsaker filed the Crim. P. 35(c) motion that is the subject of this appeal. He argued that the district court violated his

• right to due process, by failing to follow the statutory requirements for determining his competency and allowing him to be tried and sentenced without determining whether he was competent;

• right to a jury trial, by imposing a sentence in 2006 that exceeded the maximum in the presumptive range on the pattern count without a jury finding of aggravating circumstances; and

• right to be free of double jeopardy, by reinstating the sentence of sixteen years to life on the pattern count after he had completed the minimum term of the indeterminate sentence and had been released on parole because he had a legitimate expectation of finality once he had been released on parole.

¶ 7 Hunsaker also asserted that the four attorneys who represented him during the pretrial proceedings, trial, and sentencing provided ineffective assistance by

• failing to adequately prepare for trial;

• advising him to flee the jurisdiction;

• representing him while under a conflict of interest;

• failing to raise the issue of competency; and

• failing to object to the court's imposition of sentences that were modified for extraordinary risk crimes even though the crimes of which he was convicted did not constitute an extraordinary risk of harm.

¶ 8 After the People filed a response, Hunsaker filed a reply arguing that he did not receive reasonable notice that he was subject to a sentence with a minimum term that exceeded the maximum in the presumptive range without a finding of aggravated circumstances.

¶ 9 The district court denied Hunsaker's Crim. P. 35(c) motion without a hearing.

II. Abandoned Argument

¶ 10 Because he did not reassert it on appeal, Hunsaker has abandoned his double jeopardy argument. See People v. Osorio , 170 P.3d 796, 801 (Colo. App. 2007).

III. Timeliness of Hunsaker's Crim. P. 35(c) Claims

¶ 11 As for the issues that Hunsaker has raised on appeal, he argues that the district court erred by denying his motion without a hearing because he alleged facts that, if true, would provide a basis for relief. We conclude that all but one of Hunsaker's claims are untimely.

¶ 12 We review de novo a district court's denial of a Crim. P. 35(c) motion without a hearing. See People v. Phipps , 2016 COA 190M, ¶ 20, 411 P.3d 1157. A court may deny the motion without a hearing if "the motion, the files, and the record clearly establish that the defendant is not entitled to relief." Osorio , 170 P.3d at 799.

¶ 13 Generally, a defendant must file a Crim. P. 35(c) motion within three years after the date of his felony conviction. See § 16-5-402(1), C.R.S. 2019. Where, as here, there was a direct appeal, a conviction is final when the appellate process has been exhausted. See People v. Hampton , 857 P.2d 441, 444 (Colo. App. 1992), aff'd , 876 P.2d 1236 (Colo. 1994). The date of Hunsaker's conviction for purposes of section 16-5-402(1) was January 31, 2011 — the date the mandate issued in Hunsaker I . The statutory limitations period thus expired on January 31, 2014, but Hunsaker did not file his Crim. P. 35(c) motion until February 16, 2016.¹

¶ 14 Nonetheless, citing Leyva , Hunsaker argues (as he did in the Crim. P. 35(c) motion) that the motion was timely filed because his convictions did not become final (and the three-year limitations period did not start) until the district court reinstated the sentence of sixteen years to life on the pattern count on February 29, 2016. He contends that the People's appeal of the sentence on the pattern count tolled the deadline for filing a Crim. P. 35(c) motion as to any issue involving his convictions or sentences.

¶ 15 In Leyva , the supreme court held that "when an illegal sentence is corrected pursuant to Crim. P. 35(a), it renews the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c)." Leyva , 184 P.3d at 50-51. Yet, despite the apparent breadth of this language, Leyva limited its holding by stating that the illegality allows a defendant "to pursue any good-faith arguments for postconviction relief addressing how that illegality potentially affected his or her original conviction ." Id. at 50 (emphasis added). We read this sentence as requiring some nexus between the original illegal sentence and the claims raised in a future Crim. P. 35(c) motion. Indeed, as the dissenting justices in Leyva noted, the majority tried "to limit the consequences of its rationale by suggesting that the defendant's right to collaterally attack his judgment of conviction remains restricted, even after today's holding, to matters sufficiently affected by or related to the illegality of his sentence." Id. at 51 (Coats, J., dissenting).

¶ 16 We conclude that Leyva limits the renewal of the three-year deadline for filing a Crim. P. 35(c) motion to claims that are related to how the illegality in the original sentence potentially affected a defendant's original conviction. Thus, the illegality in the original sentence on Hunsaker's conviction for sexual assault on a child did renew the three-year period for him to file a Crim. P. 35(c) motion on all claims — but instead only for claims that relate to how the illegality in that sentence may have affected his conviction.

¶ 17 Hunsaker's postconviction claims relate to the district court's actions in determining his competency and in imposing the original sentence on the pattern count (which was legal from the time that it was imposed); trial counsel's performance before and during the trial on matters unrelated to his sentences; and trial counsel's performance during sentencing related to the pattern count. Only the last of these claims — that defense counsel rendered ineffective assistance by failing to object to the imposition of an extraordinary risk sentence where the conviction did not present an extraordinary risk of harm — even arguably relates to the illegality in his original sentence for sexual assault on a child.

¶ 18 Therefore, with the exception of that argument, Hunsaker's limitations period expired on January 31, 2014, three years after the mandate issued in Hunsaker I . Any Crim. P. 35(c) claims that did not relate to how the illegality in Hunsaker's sentence may have affected his conviction were untimely, and the district court...