People v. Wiedemer

Decision Date10 May 1993
Docket NumberNo. 92SA231,92SA231
Citation852 P.2d 424
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary L. WIEDEMER, Defendant-Appellant.
CourtColorado 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, State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for defendant-appellant.

Justice LOHR delivered the Opinion of the Court.

The defendant, Gary L. Wiedemer, appeals from an order of the Jefferson County District Court denying his motion under Crim.P. 35(c) to vacate a judgment of conviction entered against him in 1964 for felony theft of auto parts. The district court based its decision on a determination that the motion was not filed within the period prescribed by section 16-5-402, 8A C.R.S. (1986), which limits the time for commencing collateral attacks on criminal convictions. On appeal the defendant challenges the applicability and constitutional sufficiency of that statute. He also asserts that if section 16-5-402 does apply to his motion, the district court erred in concluding that he failed to show "justifiable excuse or excusable neglect" for his late filing so as to except him from the time limitations of the statute by its own terms. We conclude that section 16-5-402 applies to the defendant's Crim.P. 35(c) motion and that the statute is constitutionally sufficient. We reverse the district court's order, however, and remand the case to that court for further proceedings to determine whether the defendant's delay in filing his motion resulted from justifiable excuse or excusable neglect under the standards that we set forth in this opinion.


In 1964 the defendant was charged in Jefferson County District Court with the crime of felony theft of auto parts. See § 13-13-5, 2 C.R.S. (1953). 1 He pleaded guilty and was granted probation, but when he violated the terms of the probation order in 1965 the district court revoked his probation and sentenced him to imprisonment for a term of three to five years. Later that same year the defendant moved to vacate both this sentence and the underlying judgment of conviction, asserting that before he entered his plea of guilty, the judge had advised him that the maximum term of imprisonment that could be imposed was six months. The district court vacated the sentence and ordered the defendant released for time served but did not vacate either the conviction or the plea upon which it was based. 2

On September 11, 1991, the defendant filed a motion in Jefferson County District Court under Crim.P. 35(c) to set aside the conviction and guilty plea, alleging that the plea had been taken in violation of standards prescribed by the United States and Colorado Constitutions and by the Colorado Rules of Criminal Procedure. The prosecution moved to strike the defendant's motion on the basis that it was a collateral attack barred by the time limitations of section 16-5-402, 8A C.R.S. (1986). Without holding a hearing, the district court granted the prosecution's motion to strike and found "finality" with regard to the conviction.

The defendant appeals. 3 He asserts first that section 16-5-402 should not be construed to apply to a postconviction motion to set aside a judgment of conviction under Crim.P. 35(c) because such an interpretation would violate statutory construction principles and would bring the statute into conflict with constitutional guarantees of the rights to habeas corpus, due process, and equal protection of the laws and would also violate the constitutional doctrine of separation of powers. The defendant argues further that if section 16-5-402 does apply, the district court erred in finding that his failure to seek relief within the applicable time period did not result from "circumstances amounting to justifiable excuse or excusable neglect" so as to qualify his motion for the exception to the statutory time bar set forth in section 16-5-402(2)(d). Finally, the defendant asserts on the merits that his plea of guilty to the charge of felony theft of auto parts was invalid because he was not informed of the consequences of his plea or of the elements of the offense and because he received ineffective assistance of counsel. We first address the statutory construction and constitutional issues and conclude that Crim.P. 35(c) motions are subject to the time bar of section 16-5-402. See infra part II. We then set forth the standards that a court must apply in order to determine whether a defendant's failure to seek relief within the prescribed time period resulted from circumstances amounting to justifiable excuse or excusable neglect. See part III. Finally, we remand the case to the district court for further proceedings to apply these standards.


The statutory time bar that the district court relied upon in striking the defendant's motion to set aside his conviction and plea of guilty is contained in section 16-5-402. The statute imposes time limitations for commencing collateral attacks on judgments of conviction. The defendant asserts that a motion filed under Crim.P. 35(c) to set aside a conviction is a direct rather than a collateral attack, and is therefore not subject to the statutory bar. In support of this proposed statutory construction, the defendant advances the following arguments: (1) the plain language of section 16-5-402, reinforced by the rule of lenity, does not encompass attacks on convictions that are brought under Crim.P. 35(c); (2) exclusion of Crim.P. 35(c) challenges from the scope of section 16-5-402 is necessary to harmonize that statute and section 18-1-410, 8B C.R.S. (1986); (3) a Crim.P. 35(c) challenge to a conviction differs from a collateral attack as to both the nature of the challenge and the consequence of the remedy; (4) it is unnecessary to construe section 16-5-402 to include Crim.P. 35(c) challenges in order to preclude untimely or repetitious postconviction challenges to judgments of conviction; and (5) if section 16-5-402 is construed to include Crim.P. 35(c) challenges, it will violate constitutional protections of the rights to habeas corpus, due process, and equal protection of the laws as well as the doctrine of separation of powers. We address these contentions in the order stated.


Section 16-5-402(1) provides that subject to exceptions set forth in subsection (2), "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 ... following the date of said conviction." 4 A defendant has three years in which he may attack any felony conviction other than a conviction for a class 1 felony, eighteen months for challenging a misdemeanor conviction, and six months for challenging a conviction for a petty offense. § 16-5-402(1). Presumably because of the severity of sentences imposed for class 1 felonies, the legislature determined that attacks on judgments of conviction for such offenses should never be time barred. Id. The defendant argues that a Crim.P. 35(c) motion is a direct attack on a conviction, not a collateral attack, and therefore the statute does not apply to bar his claims. In support of this contention he first raises arguments based on the plain meaning of the statute and the rule of lenity.

In construing a statute our central purpose is to ascertain and give effect to the intent of the legislature. People v. Schuett, 833 P.2d 44, 47 (Colo.1992); People v. Terry, 791 P.2d 374, 376 (Colo.1990). In so doing, we look first to the language of the statute itself. Schuett, 833 P.2d at 47; Robles v. People, 811 P.2d 804, 806 (Colo.1991). When that language is clear so that the intent can be discerned with reasonable certainty, there is no need to resort to other rules of statutory interpretation. Robles, 811 P.2d at 806. Furthermore, we must avoid constructions that would defeat an obvious purpose of a statute when that purpose is shown clearly on the statute's face. Terry, 791 P.2d at 376.

The legislature explained its intent in enacting section 16-5-402 in subsection (2) of that statute where it listed the exceptions to the time limitations specified in subsection (1):

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.

The overall purpose, therefore, was to make a judgment of conviction unassailable, subject to constitutional constraints, after the expiration of a reasonable period of time for attacking its validity. See People v. Fagerholm, 768 P.2d 689, 692 (Colo.1989) (the primary object of section 16-5-402 was "to reduce as far as constitutionally permissible...

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