People v. Thomas, 92SA495

• Citation: 867 P.2d 880
• Decision Date: 31 January 1994
• Docket Number: No. 92SA495,92SA495
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mack Willie THOMAS, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 880

867 P.2d 880

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mack Willie THOMAS, Defendant-Appellant.

No. 92SA495.

Supreme Court of Colorado,

En Banc.

Jan. 31, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Laurie A. Booras, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Jeanne Winer, Boulder, for defendant-appellant.

Justice KIRSHBAUM delivered the Opinion of the Court.

Appellant Mack Willie Thomas was convicted of two counts of sexual assault on a child ¹ on August 26, 1986. On appeal, the court of appeals vacated the convictions and remanded the case for further proceedings with respect to the admissibility of hearsay evidence from two child witnesses. People v. Thomas, 770 P.2d 1324 (Colo.App.1988). On certiorari review, we reversed the court of appeals' judgment and reinstated the convictions. Thomas v. People, 803 P.2d 144 (Colo.1990).

On September 27, 1991, Thomas filed a Crim.P. 35(c) motion to vacate his convictions on the ground of ineffective assistance of counsel--an issue not raised in his earlier appeal. The trial court denied the motion on the ground that section 16-5-402(3), 8A C.R.S. (1986), prohibited the filing thereof. ² Having transferred this appeal to this court from the court of appeals pursuant to section 13-4-102(1)(b) and 13-4-110(1)(a), 6A C.R.S. (1987), to review the propriety of the trial court's ruling, ³ we reverse and remand the case with directions to the trial court to conduct further proceedings.

I

In May of 1986, some three and one-half months prior to the commencement of trial in this case, Thomas was convicted of a separate and unrelated charge of sexual assault on a child. Although affirmed on direct appeal, People v. Thomas, No. 86CA1007 (Colo.App. May 25, 1989) (not selected for official publication), cert. denied, No. 89SC396 (Colo. Sept. 18, 1989), the judgment of conviction in that case was ultimately vacated when, at the conclusion of a Crim.P. 35(c) proceeding, the trial court determined that Thomas' constitutional right to effective assistance of counsel had been violated. ⁴ The prosecution elected not to re-file that case.

On August 20, 1992, in the instant case, Thomas filed a motion for new trial or reduction of sentence, pursuant to Crim.P. 35(b). He subsequently filed a motion for new trial pursuant to Crim.P. 35(c), asserting, inter alia, a denial of his right to effective assistance of counsel. In an affidavit filed in support of his Crim.P. 35(c) motion, Thomas avers that although he informed his trial attorney that he, Thomas, desired to testify at trial, he did not do so because of the probability that his credibility would be impeached by reference to the prior conviction. He also avers that his trial attorney advised Thomas that he "had a strong case of ineffective assistance of counsel" with respect to the prior conviction; that Thomas questioned how the "bad" conviction could be used against him, especially when the prior case was on appeal; and that the attorney responded to these inquiries by stating that the prosecutor "would use it to impeach [Thomas]." Thomas' trial attorney did not attempt to suppress the prior conviction.

The trial court denied Thomas' Crim.P. 35(c) motion without conducting an evidentiary hearing on the merits thereof. ⁵ The trial court initially held that the provisions of section 16-5-402(3) prohibited consideration of the motion. Alternatively, the trial court ruled that the decision of Thomas' trial attorney to refrain from filing a motion to suppress the prior conviction represented a strategic decision and did not constitute ineffective assistance of counsel. Thomas appealed, asserting that the provisions of section 16-5-402(3) were not applicable to his Crim.P. 35(c) motion; that if the statute did govern, it violated several federal and Colorado constitutional principles on its face and as applied; and that Thomas was entitled to an evidentiary hearing on his motion.

II

Section 16-5-402, 8A C.R.S. (1986), contains the following pertinent provisions:

Limitation for collateral attack upon trial judgment. (1) Except as otherwise provided in subsection (2) of this section, no person who has been convicted under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction unless such attack is commenced within the applicable time period, as provided in this subsection (1), following the date of said conviction:

All class 1 felonies: No limit

All other felonies: Three years

....

(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:

(a) A case in which the court entering judgment of conviction did not have jurisdiction over the subject matter of the alleged offense;

(b) A case in which the court entering judgment of conviction did not have jurisdiction over the person of the defendant;

(c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the defendant to an institution for treatment as a mentally ill person; or

(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

(3) If the judgment of conviction to which any collateral attack is directed was sustained upon review by a court of appellate jurisdiction in the state where the judgment was entered, no collateral attack on such judgment shall be permitted whether commenced within or outside the time limitations set forth in subsection (1) of this section, unless said collateral attack is based upon an opinion of the court of last resort subsequently announced in the state where the judgment was entered, which opinion is given retroactive effect in a manner invalidating the conviction.

§ 16-5-402, 8A C.R.S. (1986). The General Assembly has thus determined the availability of collateral attacks with respect to two classes of criminal cases. Sections 16-5-402(1) and (2) establish a time limit within which collateral attacks may be asserted in cases where no appeal has been taken or no final decision of an appeal has been rendered. Section 16-5-402(3) addresses criminal cases which have been unsuccessfully appealed and prohibits any collateral attack of a conviction affirmed on appeal unless the conviction is no longer valid because of a retroactively applicable appellate decision in the state in which the conviction was obtained. ⁶

When construing statutory provisions, our responsibility is to effectuate the intent of the General Assembly. E.g., Homestake Enters., Inc. v. Oliver, 817 P.2d 979, 981-82 (Colo.1991); Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527, 530 (Colo.1991). When the statutory language itself does not readily reveal that intent, certain principles of statutory construction guide us. When possible, statutes are to be construed in such manner as to avoid questions of their constitutional validity. Perry Park Water & Sanitation Dist. v. Cordillera Corp., 818 P.2d 728, 732 (Colo.1991); People v. Lybarger, 700 P.2d 910, 915 (Colo.1985). However, we must give full effect to the language used by the General Assembly even if to do so results in a determination that the statute violates constitutional criteria. People v. New Horizons, Inc., 200 Colo. 377, 383, 616 P.2d 106, 110 (1980).

In People v. Germany, 674 P.2d 345, 351-54 (Colo.1983), we held that the predecessor of current section 16-5-402(1) violated constitutional guarantees of due process of law by prohibiting the filing of collateral attacks on judgments of conviction outside the statutorily specified time limits even if the failure to act within those limits resulted from justifiable excuse or excusable neglect. The General Assembly subsequently amended section 16-5-402(2) to permit collateral attacks outside the statutory limitations periods provided by section 16-5-402(1) when the delay resulted from justifiable excuse or excusable neglect. Ch. 117, sec. 1, § 16-5-402(2)(d), 1984 Sess.Laws 486, 486. Although in Germany we were not required to consider the constitutionality of section 16-5-402(3), we did comment on this section as follows It necessarily follows that if a "court of last resort" does not expressly decide the retroactive application of a newly promulgated constitutional rule, subsection (3) would prohibit the defendant from collaterally challenging a prior conviction even though his challenge is based upon a colorable claim that the new rule is such that retroactive application is constitutionally mandated.

Id. at 353 (footnote omitted). We also observed that the provisions of subsection (3) imposed even greater limitations on collateral attacks than the provisions of subsections (1) and (2). Id. at 351. While noting the state's legitimate interest in the finality of convictions, we emphasized the importance of assuring that defendants are afforded meaningful opportunities to challenge allegedly unconstitutional convictions. Id. at 349-50. ⁷

In establishing time frames within which such issues must be raised, the General Assembly recognized the importance of upholding the finality of judgments and furthering the policies embodied in enhanced penalty legislation directed at recidivists. § 16-5-402(2), 8A C.R.S. (1986); People v. Wiedemer, 852 P.2d 424, 436 (Colo.1993). As amended, sections 16-5-402(1) and -402(2) also recognize the necessity of affording...