People v. Wiedemer, 92SA232
| Decision Date | 10 May 1993 |
| Docket Number | No. 92SA232,92SA232 |
| Citation | 852 P.2d 449 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary L. WIEDEMER, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, 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., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for defendant-appellant.
This is an appeal from an order of the Chaffee County District Court denying a Crim.P. 35(c) motion of the defendant, Gary L. Wiedemer, to vacate a judgment of conviction entered against him in 1973 for conspiracy to commit burglary. The district court ruled that denial was required because the motion had not been filed within the limitation period prescribed by section 16-5-402(1), 8A C.R.S. (1986). The defendant asserts on appeal that section 16-5-402 should not be construed to apply to Crim.P. 35(c) motions but that if it does apply it violates constitutional provisions concerning separation of powers and the rights to habeas corpus, due process, and equal protection of the laws. He also contends that his delay in filing the motion was based on "justifiable excuse or excusable neglect," thereby qualifying for the exception to the statutory limitation period contained in section 16-5-402(2)(d). We are unpersuaded by the defendant's arguments that section 16-5-402 is either inapplicable to Crim.P. 35(c) motions or unconstitutional. We reverse the district court's order, however, and remand the case to that court for further proceedings to determine whether his tardy filing was based upon justifiable excuse or excusable neglect under the standards set forth today in People v. Wiedemer, 852 P.2d 424 (Colo.1993).
In 1972 the defendant was charged in Fremont County District Court with the crimes of burglary, § 40-3-5, 3 C.R.S. (1963), conspiracy to commit burglary, §§ 40-3-5, 40-7-35, 3 C.R.S. (1963), and possession of contraband, § 40-7-58, 3 C.R.S. (1963 & 1967 Supp.). Upon motion, venue was transferred to Chaffee County District Court. Based upon a plea agreement, the defendant pleaded guilty to the conspiracy charge, the other two charges were dismissed, and judgment was entered against him on May 22, 1973, for the felony offense of conspiracy to commit second-degree burglary, §§ 40-3-5, 40-7-35, 3 C.R.S. (1963). The court sentenced the defendant to a term of not less than one nor more than two years imprisonment.
On July 11, 1991, the defendant filed a motion in Chaffee County District Court pursuant to Crim.P. 35(c) seeking to vacate the 1973 judgment of conviction. In support of his claim that he was entitled to this relief, the defendant averred that rights guaranteed to him by the United States and Colorado Constitutions as well as the Colorado Rules of Criminal Procedure were violated in the proceedings that led to the acceptance of his plea. The district attorney opposed vacation of the judgment, relying on the argument that the defendant's motion was time barred by section 16-5-402(1), which limits the period during which a conviction for a felony other than a class 1 felony can be collaterally attacked to three years from the date of conviction. 1 The district court agreed that the motion was not filed within the period allowed by the statute and denied the motion without a hearing. The defendant moved for reconsideration, contending that his failure to seek relief from his conviction within the required time was based on justifiable excuse or excusable neglect and that his motion therefore qualified for an exception to the statute's time bar. See § 16-5- 402(2)(d). He also filed a "Reply to People's Objection" in which he contended that Crim.P. 35(c) motions are not subject to the time limitations of section 16-5-402 and that the statute cannot be construed to apply to such motions without violating constitutional provisions concerning separation of powers and the right to habeas corpus, due process, and equal protection of the laws. The district court found that the defendant's allegations, even if true, did not satisfy the statutory justifiable excuse or excusable neglect standard and therefore denied the motion. Although it did not explicitly address the defendant's constitutional arguments, the court implicitly rejected the constitutional challenges when it denied the defendant's motion. The defendant appealed. 2
On appeal, the defendant asserts first that section 16-5-402 cannot be construed to apply to Crim.P. 35(c) motions without violating constitutional requirements of separation of powers, habeas corpus, due process of law, and equal protection of the laws. Second, he asserts that section 16-5-402 should be construed as inapplicable to Crim.P. 35(c) motions so as to give effect to the plain meaning of its words, to harmonize the statute with section 18-1-410, 8B C.R.S. (1986), to preserve its constitutional validity, to observe appropriate distinctions between direct and collateral attacks, and because the contrary construction is unnecessary to prevent untimely or repetitious challenges to a judgment. We considered and rejected each of the foregoing arguments in Wiedemer, 852 P.2d 424. For the reasons stated in that opinion, we reject those arguments here as well.
The defendant also asserts that the district court erred in concluding that he failed to show justifiable excuse or excusable neglect under section 16-5-402(2)(d) so as to except his motion from the time bar of section 16-5-402(1).
The defendant's conviction for conspiracy to commit second-degree burglary was entered in 1973. He first sought to have it set aside in July 1991 by filing the motion at issue in this case. Clearly then, unless the exception in section 16-5-402(2)(d) applies, his motion is time barred by subsection (1) of the statute and therefore was appropriately denied by the district court. See Wiedemer, 852 P.2d at 440 n. 15; People v. Brack, 796 P.2d 49, 50 (Colo.App.1990).
In Wiedemer, 852 P.2d at 440, 441, we determined that the applicability of the justifiable excuse or excusable neglect exception must be evaluated by balancing "an accused person's interest in ensuring that an unconstitutional conviction is not used against him, society's interests in maintaining the integrity of the criminal justice system, and the State's interests in preserving the finality of criminal convictions and in implementing statutes requiring enhanced sentences for habitual offenders" in a manner that gives effect to the "overriding concern" that a defendant have the constitutionally required meaningful opportunity to challenge his conviction. We then set forth several factors that we determined to be relevant in assessing the relative strengths of these interests, including the existence of circumstances or outside influences preventing the defendant's attack and the extent...
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People v. Hampton
...The statute is applicable to Crim.P. 35(c) motions and does not violate the Colorado or United States Constitutions. People v. Wiedemer, 852 P.2d 449 (Colo.1993). The question we address is whether the time limits imposed by section 16-5-402(1) begin to run upon conviction in the trial cour......
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People v. Talley, 94CA1570
...supreme court has placed no limitation on the application of § 16-5-402 to motions filed pursuant to Crim. P. 35(c). See People v. Wiedemer, 852 P.2d 449 (Colo.1993). Finally, in People v. Hampton, supra, the supreme court concluded that the conviction of a defendant of habitual criminal co......
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People v. Janke, 92CA1968
...the additional five years afforded by Fagerholm to file his challenge. People v. Heitzman, supra, at 852 (fn. 2). See also People v. Wiedemer, 852 P.2d 449, 450 (fn. 1) (Colo.1993) ("Although § 16-5-402 was first enacted in 1981, we have construed it to apply retroactively and to include a ......