People v. Salvador, 26334

• Decision Date: 28 July 1975
• Docket Number: No. 26334,26334
• Citation: 189 Colo. 181,539 P.2d 1273
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Lloyd SALVADOR, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1273

539 P.2d 1273

189 Colo. 181

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Lloyd SALVADOR, Defendant-Appellant.

No. 26334.

Supreme Court of Colorado, En Banc.

July 28, 1975.

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

George A. Johnson, Boulder, for defendant-appellant.

HODGES, Justice.

On January 9, 1963, after a three day trial to a jury, defendant Richard Lloyd Salvador was convicted of first-degree murder, and sentenced to life imprisonment. No appeal was initiated. In November of 1967, the defendant filed a Pro se motion seeking a free transcript of the trial. This motion was denied for failure to comply with certain procedural requirements.

On October 8, 1971, the defendant, now represented by counsel, filed a motion for a free transcript asserting eight alleged errors which might be the basis for granting relief, and some of which might involve violated constitutional rights. The trial court granted the defendant a partial transcript.

On May 15, 1973, the defendant filed a motion to vacate judgment under Crim.P. 35(b). Five grounds for relief were alleged. On November 8, 1973, this motion was denied, and this appeal was lodged.

On February 28, 1974, the Governor commuted defendant's sentence to 25 years to life. The defendant later became eligible for parole and has now been released on parole.

I.

The attorney general urges that we should not consider the assignments of error raised by the defendant because his post-conviction collateral attack upon the judgment of conviction is barred by laches. An extension of the doctrine announced in People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974) is urged. In Bucci, the defendant had pled guilty to forgery in 1950, and was sentenced to two to three years in prison. In 1972, he challenged the conviction. We therein recognized and applied § 2.4(c) of the American Bar Association Standards for Criminal Justice Relating to Post-Conviction Remedies, which provides:

'A state has a legitimate interest in avoiding litigation of state claims. Where an applicant has completed service of a challenged sentence and, belatedly, seeks post-conviction relief, he can be charged with the responsibility of showing present need for such relief.'

In Bucci, the defendant had long since completed serving his sentence, and he was unable to make a showing of present need for relief. We therefore upheld the trial court's denial of Bucci's 35(b) motion.

The language in section 2.4(c) is clearly not applicable in the present case. It applies only to persons who have completed serving their sentences. Defendant Salvador still has several years remaining to be served on his sentence of 25 years to life. His release on parole in no way alters the fact that he is still under sentence; that he is in technical custody; and that he is under supervision. Sections 17--1--206 and 207, C.R.S.1973. See also Morissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). A parolee is subject to restrictions which are not applicable to other citizens. People v. Anderson, Colo., 536 P.2d 302.

Nor can it be seriously argued that the mere lapse of time is a bar to post-conviction relief. In several cases, this court has examined convictions when substantial periods of time have elapsed since conviction. Sherbondy v. District Court, 170 Colo. 114, 459 P.2d 133 (1969); Walker v. People, 160 Colo. 286, 417 P.2d 14 (1966); Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969).

II.

We have been limited in our review of this case because of the fact that only a partial transcript of the trial is a part of the appear record. That partial transcript, however, reveals the existence of a trial court error which well could be the basis for relief under the defendant's 35(b) motion before the trial court.

The following facts will demonstrate this trial court error. The partial transcript of the trial covers only a brief segment of the testimony presented at trial. When the prosecution began to question a chief deputy sheriff concerning defendant's inculpatory statements and a confession, defense counsel interposed an objection and requested that the court conduct an In camera hearing regarding the admissibility of evidence pertaining to the defendant's statements and confession.

The court thereupon conducted an In camera hearing and heard the testimony of the chief deputy sheriff concerning the statements and confession of this defendant. The testimony of the defendant was also offered. It revealed that the defendant spent the night immediately prior to the day of the homicide in jail for drunkenness; that after release from jail, he consumed more liquor; that the homicide then occurred; that police officers forcibly restrained him when he apparently attempted suicide; that he was taken to a hospital where he was given some injections and treated for several wounds; and that he became very ill and began vomiting clots of blood. Thereafter, the statements and confession were obtained by the police. The defendant's testimony was to the effect that he was not advised properly of his rights and that his recollection of the events, after he was in police custody, were obscure in his mind.

After this In camera hearing, the trial court ruled as follows:

'The question of voluntariness of the statements that this defendant may have made is one that ultimately will have to be determined by the jury on the basis of facts which may or may not be disputed. I assume they will be, and in this case the essence of the testimony presented in this hearing here in chambers is not directed to coercion or the forcing of the defendant to make an involuntary statement. The defendant, in essence, says that he doesn't remember making certain statements, or has lapses of memory when he doesn't remember what happened. The Jury--the Court doesn't determine it on the basis of facts whether he did make these statements when he was rational or whether he wasn't and then that question will be submitted to the Jury under proper instructions, and I don't think the Court would be advised as a matter of law to sustain the objection.'

Although the partial transcript before this court does not reveal it, it is obvious from the manner in which this alleged error is described in the briefs that testimony concerning the defendant's inculpatory statements and his confession were introduced at trial.

The...