People v. Tolbert

• Decision Date: 03 May 2007
• Docket Number: No. 05CA1836.,05CA1836.
• Citation: 216 P.3d 1
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Aaron D. TOLBERT, Defendant-Appellant.
• Court: Colorado Court of Appeals

216 P.3d 1

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Aaron D. TOLBERT, Defendant-Appellant.

No. 05CA1836.

Colorado Court of Appeals, Div. III.

May 3, 2007.

Rehearing Denied July 12, 2007.

John W. Suthers, Attorney General, Nancy Bauer Egelhoff, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Aaron D. Tolbert, Pro Se.

Opinion by Judge WEBB.

Defendant, Aaron D. Tolbert, an inmate, appeals the trial court order denying his Crim. P. 35(a) challenge to the parole component of his sentence as illegal. Assuming this component is mandatory, we conclude that it is illegal, and thus we further conclude that the trial court incorrectly denied the motion as successive. Therefore, we vacate the order and remand for further proceedings consistent with this opinion.

I. Facts

Upon pleading guilty to attempted sexual assault (F5), §§ 18-2-101(1) and 18-3-402(1)(b), C.R.S.2006, for conduct occurring on or about June 1, 2002, defendant was sentenced to six years in the Department of Corrections "plus 2 years parole."

Defendant filed a pro se postconviction "Motion to Change Illegal Term of Parole" (first motion). The trial court denied the motion, and defendant did not appeal.

Instead, defendant filed a pro se postconviction "Motion to Remove Mandatory Parole" under Crim. P. 35(a) (second motion). The trial court denied the second motion because it contained the same or substantially similar claims as the first motion, citing DePineda v. Price, 915 P.2d 1278 (Colo.1996) (a defendant is prohibited from using postconviction proceeding to relitigate issues fully and finally resolved in an earlier appeal). Defendant appeals this order but failed to include the first motion in the record.

II. Illegal Sentence

Although the phrase "plus 2 years parole" does not necessarily connote mandatory parole, the second motion asserts that DOC is treating the parole term as mandatory. The Attorney General does not dispute this assertion.

A sentence that is not in full compliance with the sentencing statutes is illegal. Delgado v. People, 105 P.3d 634, 637 (Colo. 2005). Attempted sexual assault committed after July 1, 1996, but before July 1, 2002, is subject to discretionary, not mandatory, parole. See §§ 16-22-102(9), 17-2-201(5)(a.5), C.R.S.2006; Martin v. People, 27 P.3d 846 (Colo.2001); People v. Cooper, 27 P.3d 348 (Colo.2001).

Hence, if defendant's sentence imposes a mandatory parole term, it is illegal because the crime to which defendant pled called for discretionary parole.

III. Successive Motion

We agree with the Attorney General that on the record before us, we cannot disturb the trial court's treatment of the second motion as successive.

Where an appellant urges that a finding or conclusion is unsupported by the evidence, the appellant must include those portions of the record necessary to address the claim. C.A.R. 10(b); Till v. People, 196 Colo. 126, 127, 581 P.2d 299, 299 (1978). If the necessary record is not included, "we will presume that the findings and conclusions of the trial court are correct, and that the evidence supports the judgment." Till v. People supra, 196 Colo. at 127, 581 P.2d at 299; see also People v. Wells, 776 P.2d 386, 390 (Colo.1989).

In seeking postconviction relief, the inmate bears the burden of overcoming the presumption of validity that attaches to prior proceedings. People v. Simpson, 69 P.3d 79, 80 (Colo.2003).

Here, because defendant did not include the first motion in the record, we have no basis on which to conclude that the trial court erred by ruling that the second motion contained the same or substantially similar allegations as the first motion. Further, its ruling is consistent with the comparable titles of the motions, which are set forth in its orders denying them.

Accordingly, we turn to the consequences of that ruling, assuming defendant may have received an illegal sentence.

IV. Absolute Bar

We reject the Attorney General's contention that the trial court properly applied an absolute bar to the second motion because it was successive.

Claims of an illegal sentence include mandatory parole challenges, which must be brought under Crim. P. 35(a). People v. Rockwell, 125 P.3d 410, 415-16 (Colo.2005); People v. Heredia, 122 P.3d 1041 (Colo.App. 2005).

The remedy for error in an earlier ruling is generally an appeal of that ruling, not a second motion on the same ground raised in the prior motion. Henson v. People, 163 Colo. 302, 303-04, 430 P.2d 475, 476 (1967).

Our supreme court has articulated many broad statements against successive postconviction motions seeking the same or similar relief. See, e.g., People v. Hubbard, 184 Colo. 243, 247, 519 P.2d 945, 947 (1974) (postconviction proceedings do not "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") (motion under earlier version of Crim. P. 35(b), now Crim. P. 35(c)); People v. Hampton, 187 Colo. 131, 133, 528 P.2d 1311, 1312 (1974) ("Post-conviction proceedings are provided as a method of preventing injustices from occurring after a defendant has been convicted and sentenced, but not for the purpose of providing a perpetual right of review.") (same); People ex rel. Wyse v. Dist. Court, 180 Colo. 88, 94, 503 P.2d 154, 157 (1972) (postconviction relief "does not afford any person the right to clog judicial machinery with repetitive post-conviction proceedings seeking relief on the same principles of law and the same factual claims") (habeas corpus petition).

Crim. P. 35(c)(3)(VI) expressly bars relief on certain claims that were "raised and resolved in a prior ... postconviction proceeding." But here the second motion is cognizable only under Crim. P. 35(a), which does not contain similar language. Although Crim. P. 35(a) allows for the correction of an illegal sentence "at any time," this phrase does not contemplate relief on a matter that has been resolved in a prior proceeding. See People v. Bradley, 169 Colo. 262, 264-65, 455 P.2d 199, 200 (1969). Thus, we must examine judge-made principles of finality as grounds for barring a successive motion under this section of the rule.

A. Res Judicata

Under res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties from relitigating claims that were or could have been raised in that action. See People v. Hubbard, supra, 184 Colo. at 246, 519 P.2d at 947.

However, "the doctrine of res judicata does not apply" to postconviction motions. People v. Hubbard, supra, 184 Colo. at 246, 519 P.2d at 947; accord People v. Billips, 652 P.2d 1060, 1063 (Colo.1982). But see People v. Abeyta, 923 P.2d 318, 321 (Colo.App.1996) (noting that in Billips, "for some unknown reason but not as a result of any action taken by the defendant, the claim was not addressed by either the trial court or the appellate court").

Moreover, because we have upheld the trial court's conclusion that the first motion raised the same issue as the second motion the res judicata bar of claims that could have been made in a prior proceeding does not help us resolve the scope of the successive bar here.

B. Collateral Estoppel

Collateral estoppel, or issue preclusion, is a narrower rule than res judicata in that once a court has decided an issue necessary to its judgment, the decision will preclude relitigation of that issue in a later action involving a party to the first case. Byrd v. People, 58 P.3d 50, 54 (Colo.2002). Here, the trial court's conclusion that the motions raised the same issue would be sufficient to invoke collateral estoppel.

Based on authorities rejecting res judicata in postconviction proceedings, a division of this court has concluded that collateral estoppel does not apply to postconviction motions under Crim. P. 35. People v. Wright, 662 P.2d 489, 490-91 (Colo.App. 1982) ("Conventional notions of finality of litigation have no place when life or liberty is at stake ...." (quoting Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963))), aff'd, 690 P.2d 1257 (Colo.1984). In People v. Shepard, 151 P.3d 580, 583-84 (Colo.App.2006), however, another division distinguished Wright because "the fact that a court is not precluded from considering a successive motion for postconviction relief does not require it to do so."

Our supreme court has neither spoken to the tension between Wright and Shepard, nor specifically addressed collateral estoppel under Crim. P. 35. In general, state and federal law concerning res judicata and collateral estoppel are similar. Dalal v. Alliant Techsystems, Inc., 934 P.2d 830, 832 (Colo. App.1996). Hence, we look to federal precedent for guidance.

Several federal courts have declined to apply collateral estoppel to motions filed under the prior version of Fed.R.Crim.P. 35(a), which was similar to Crim. P. 35(a). See United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986) (citing Sanders v. United States, supra, 373 U.S. at 15-17, 83 S.Ct. at 1077-78); Paul v. United States, 734 F.2d 1064, 1065-66 (5th Cir.1984). In United States v. Kress, 944 F.2d 155, 162 (3d Cir. 1991), the court took the opposite view, but Kress has never been cited for this holding.

We consider the Mazak view to be well reasoned, and therefore, like the division in People v. Wright, supra, we decline to apply collateral estoppel.

C. Law of the Case

The law of the case doctrine is more flexible than collateral estoppel. Under this doctrine, "prior relevant rulings made in the same case are to be followed unless such application would result in error or unless the ruling is no longer sound due to changed conditions." People v. Dunlap, 975 P.2d 723, 758 (Colo.1999); see also People v. Fogle, 116 P.3d 1227 (Colo.App.2004)(applying law of the case under Crim. P. 35(c)). But "a court may, where appropriate, overlook the doctrine and its own prior ruling to grant relief...