People v. Tomey, 97CA1870
| Decision Date | 15 October 1998 |
| Docket Number | No. 97CA1870,97CA1870 |
| Citation | 969 P.2d 785 |
| Parties | 98 CJ C.A.R. 5378 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry TOMEY, Defendant-Appellant. . Div. I |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Mignon H. Adolph, Assistant Attorney General, Denver, for Plaintiff-Appellee.
Sherman P. Romney, Craig, for Defendant-Appellant.
Opinion by Judge ROTHENBERG.
Defendant, Terry Tomey, appeals the trial court's order denying his Crim. P. 35(c) motion based on newly discovered evidence. We reverse and remand for further proceedings.
A jury found defendant guilty of felony menacing and second degree assault. But, because of a juror having failed to disclose during voir dire that he was previously married to defendant's wife, the trial court granted defendant's motion for a new trial. Before the new trial began, defendant entered a plea of guilty to felony menacing and second degree assault in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (l970).
According to defendant, while he was serving time in the county jail after sentencing, he was informed by another inmate that the victim had told the inmate she had lied about being attacked by defendant and had explained her motive for lying at trial. Based on that disclosure, defendant filed a Crim. P. 35(c) motion alleging newly discovered evidence.
The trial court denied defendant's motion without a hearing, concluding that: (1) because defendant had pled guilty, he was precluded from filing a Crim. P. 35(c) motion based on newly discovered evidence; (2) alternatively, the statement by the inmate was merely impeachment evidence and was not material; (3) it was "unlikely an acquittal would result from the impeachment testimony of this convicted felon"; and (4) the existence of such impeachment evidence was not a fair and just reason to allow defendant to withdraw his guilty plea. Because we conclude defendant was entitled to file for post-conviction review and the trial court improperly characterized the new evidence as not material, we reverse and remand for a hearing on the motion.
Defendant first contends the trial court erred in ruling that a defendant who enters an Alford plea is not entitled to post-conviction review based on newly discovered evidence. We agree.
Crim. P. 35(c)(2) provides in pertinent part:
[E]very person convicted of a crime is entitled as a matter of right to make application for post-conviction review upon the grounds hereinafter set forth.
....
(V) That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice.
In construing Crim. P. 35(c), we employ the same rules of interpretation applicable to statutory construction. We look first to the language of the rule itself, and if the rule is plain and unambiguous, we apply it as written. People v. Fuqua, 764 P.2d 56 (Colo.1988). "Every" means all the separate individuals who constitute the whole, regarded one by one. Black's Law Dictionary 655 (rev. 6th ed.1990).
The language of Crim. P. 35(c) is plain and unambiguous and states that every person convicted of a crime is entitled to post-conviction review.
We therefore conclude that a defendant who enters an Alford plea is entitled to file a motion for post-conviction relief based on newly discovered evidence, and that the trial court erred in ruling otherwise.
Defendant also contends the trial court erred in ruling that the statement by the inmate, even if believed, was merely impeachment evidence and not material. Again, we agree.
Defendant's proffered newly discovered evidence consisted of a hearsay statement allegedly made by the victim to the inmate that was inconsistent with the victim's former testimony. In concluding that it was "unlikely an acquittal would result from the impeachment testimony of this convicted felon," the trial court noted that, pursuant to § 13-90-101, C.R.S.1998, the inmate also would have been subject to impeachment at a new trial because he had a prior felony.
However, the court erroneously concluded that the inmate's testimony was merely impeaching in nature and not material. Under § 16-10-201, C.R.S.1998, such evidence would have been admissible at a new...
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...conclude that there existed a reasonable doubt as to defendant's guilt and thereby bring about an acquittal verdict." People v. Tomey , 969 P.2d 785, 787 (Colo. App. 1998) ; see also Mason v. People , 25 P.3d 764, 768 (Colo. 2001). We must consider this standard through the lens of the dist......
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Farrar v. People, No. 07SC983.
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