People v. Merchant, 97CA0599.

• Decision Date: 07 January 1999
• Docket Number: No. 97CA0599.,97CA0599.
• Citation: 983 P.2d 108
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. MERCHANT, Defendant-Appellant.
• Court: Colorado Court of Appeals

983 P.2d 108

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. MERCHANT, Defendant-Appellant.

No. 97CA0599.

Colorado Court of Appeals, Div. II.

January 7, 1999.

Certiorari Denied August 9, 1999.¹

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by Judge CASEBOLT.

Defendant, Thomas P. Merchant, appeals the judgment of conviction and the sentence entered upon verdicts finding him guilty of theft and four habitual criminal counts. We affirm in part, vacate in part, and remand for further proceedings.

Defendant offered to sell the victim's car for her. After she gave him the title to the vehicle, he sold it, but failed to pay her the proceeds.

The habitual criminal counts against defendant were based on felony convictions sustained in the following four cases: (1) case number 83CR68, in which judgment had entered on October 17, 1986; (2) case number 85CR789, in which judgment had entered on October 22, 1986; (3) case number 88CR572, in which judgment had entered on February 5, 1990; and (4) case number 88CR1053, in which judgment had entered on January 18, 1990.

Defendant had timely initiated a collateral attack upon his 85CR789 conviction in case number 88CR1053 when the prosecution had sought to use that conviction for habitual criminal purposes. However, there was not a complete adjudication of that collateral attack. Rather, the trial court in 88CR1053 determined in an initial hearing only that defendant had made a prima facie showing that the 85CR789 conviction was invalid. The court had then continued that hearing to allow the prosecution to prepare and present its response. See Watkins v. People, 655 P.2d 834 (Colo.1982)

(once a defendant makes a prima facie showing of the invalidity of a conviction, the burden shifts to the prosecution to demonstrate its validity). But, before the date scheduled for the continued hearing, defendant entered into a plea agreement in 88CR1053 in which he pleaded guilty to possession of a controlled substance and the habitual criminal charges were dismissed.

In this proceeding, defendant filed a motion attacking all four convictions. However, the trial court dismissed that motion, determining that it was time-barred and that defendant had failed to show justifiable excuse or excusable neglect. This appeal followed defendant's conviction.

I.

Concerning the habitual criminal counts, defendant contends the trial court erred in concluding that his collateral attack upon the four prior convictions was time-barred pursuant to § 16-5-402, C.R.S.1998, and that he had failed to demonstrate justifiable excuse or excusable neglect. We conclude that further findings are necessary.

Section 16-5-402, C.R.S.1998, provides that, in all cases involving felony offenses other than class one felonies, a defendant has three years in which to attack collaterally the validity of the conviction. An untimely collateral attack may be considered, however, if a defendant demonstrates that the failure to seek timely relief was the result of circumstances amounting to justifiable excuse or excusable neglect. Section 16-5-402(2)(d), C.R.S.1998; People v. Abeyta, 923 P.2d 318 (Colo.App.1996).

Here, defendant filed a motion to prevent the use of his previous four convictions for habitual criminal purposes on May 24, 1996. Because it was filed more than three years following the entry of final, unappealed judgments of conviction in all of the previous cases, absent tolling of the time bar of § 16-5-402, C.R.S.1998, or the existence of justifiable excuse or excusable neglect, defendant's collateral attack was untimely. See § 16-5-402(2)(a), C.R.S.1998. However, defendant asserts that, because § 16-5-402 requires only that a collateral attack be "commenced within the applicable time period," his timely initiation of a collateral attack upon the 85CR789 conviction in the 88CR1053 proceeding tolled the limitations period of § 16-5-402 so that he is not prevented from collaterally attacking that conviction here. We disagree.

The interpretation of a statute presents a question of law that we review de novo. Our primary task in construing a statute is to give effect to the intent of the General Assembly by looking first at the language of the statute. See People v. Terry, 791 P.2d 374 (Colo.1990)

.

Statutes should be construed to effectuate the beneficial purpose of the legislative measure. See People v. Bergen, 883 P.2d 532 (Colo.App.1994)

. We must avoid constructions that would defeat an obvious purpose of a statute. People v. Montoya, 942 P.2d 1287 (Colo.App.1996).

The purpose of the limitations period in § 16-5-402 is to alleviate the difficulties attending litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders. See People v. Wiedemer, 852 P.2d 424 (Colo.1993)

.

Defendant's construction of § 16-5-402 defeats that purpose. Under his interpretation, a timely attack, not completely adjudicated, would forever toll the limitations period and allow future attacks upon that same conviction regardless of when such later attacks were filed. The difficulties attending litigation of stale claims would not be lessened if defendants were permitted to revive and litigate collateral attacks after memories have faded, and evidence and witnesses are no longer available.

Likewise, under defendant's interpretation, so long as there was a timely commencement of a collateral attack, a defendant could revive that collateral attack in any later proceeding in which the prosecution attempted to use that conviction, but then dismiss the attack and preserve the "threat" of invalidity forever. Accordingly, principles of finality would be defeated. This would frustrate the statutory provisions directed at bringing closure to post-conviction claims.

As to his argument that the limitations period is tolled, defendant does not cite, nor does our research reveal, any Colorado appellate decisions wherein tolling is considered in the context of the limitation period contained in § 16-5-402. Because civil statutes of limitation are similar in purpose and operation, we therefore look to cases analyzing tolling in that context for guidance. Compare Jones v. Cox, 828 P.2d 218 (Colo.1992)

(purpose of civil statutes of limitation is to promote justice, discourage unnecessary delay, and forestall prosecution of stale claims) with People v. Wiedemer, supra (purpose of limitations period is to alleviate the difficulties attending litigation of stale claims).

In King v. W.R. Hall Transportation & Storage Co., 641 P.2d 916 (Colo.1982), the supreme court considered whether the pendency of mechanics' lien actions filed against defendants who were later dropped because of misjoinder tolled the six-month statute of limitations for bringing mechanics' lien claims. The court stated the general rule that, when a statute does not specifically allow for tolling during the pendency of a prior action, a party cannot deduct from the limitations period the time consumed by the pendency of an action in which he or she sought to have the matter adjudicated, but which was dismissed without prejudice as to him or her. See also Commercial Equity Corp. v. Majestic Savings & Loan Ass'n, 620 P.2d 56 (Colo.App.1980)

; B.C. Investment Co. v. Throm, 650 P.2d 1333 (Colo.App.1982).

Applying that analysis here, we conclude that defendant's timely commencement of a collateral attack upon his 85CR789 conviction in 88CR1053 did not toll the limitations period set forth in § 16-5-402.

First, § 16-5-402 contains no specific provisions allowing the three-year period to be tolled. Second, because defendant could have finalized his collateral attack upon 85CR789 in 88CR1053 or initiated a collateral attack through a Crim. P. 35(c) motion for post-conviction relief, the result was equivalent to a dismissal without prejudice.

Accordingly, unless defendant demonstrates that the failure to seek relief within the applicable period was the result of circumstances amounting to justifiable excuse or excusable neglect, his collateral attack upon the 85CR789 conviction in this proceeding is time-barred pursuant to § 16-5-402. See People v. Abeyta, supra.

Defendant asserts, as he did at trial, five grounds supporting his argument that he had demonstrated justifiable excuse or excusable neglect to excuse the untimely collateral attack upon all four convictions. Specifically, he asserts that: (1) his previous counsel was ineffective in failing to complete the collateral attack upon his 85CR789 conviction; (2) he has a learning disability; (3) his previous counsel represented to him that he would "take care of his prior convictions" but failed to do so even after defendant paid him for that service; (4) he had no funds to hire counsel while he was incarcerated; and (5) he was addicted to cocaine.

Whether the facts and circumstances qualify for the justifiable excuse or excusable neglect exception to the time bar is a question of fact ordinarily to be resolved by the trial court. See People v. Wiedemer, supra.

The relevant factors a trial court should consider in making that determination include: (1) the existence of any impediments preventing a challenge to a prior conviction; (2) whether the defendant had a previous need to make a challenge; (3) whether the defendant knew that a prior conviction was constitutionally infirm or had reason to question its validity; (4) whether there existed other means to prevent use of the convictions; and (5) the effect that the passage of time has had on the government's ability to defend against the...