People v. Young

• Decision Date: 09 November 1995
• Docket Number: No. 94CA1014,94CA1014
• Citation: 923 P.2d 145
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Byron Terrell YOUNG, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 145

923 P.2d 145

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Byron Terrell YOUNG, Defendant-Appellant.

No. 94CA1014.

Colorado Court of Appeals,

Div. IV.

Nov. 9, 1995.

Rehearing Denied Dec. 14, 1995.

Certiorari Denied Sept. 3, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Donald R. Knight, Littleton, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Byron Terrell Young, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of aggravated robbery and two habitual criminal counts. He also appeals his sentence. We affirm.

On the evening of August 28, 1991, a man with a gun approached the victim in a store parking lot and demanded her purse. After taking the purse, the robber left the parking lot on foot.

Later that evening, a police officer drove the victim to the apartment complex where she and another witness to the robbery observed the defendant and identified him as the robber. Defendant had been detained by the police after someone had reported having opened a gate for a man who was carrying a gun and a white purse. Defendant and a woman companion were stopped upon leaving the apartment that had purportedly been entered by the man with the purse and gun.

Following his identification by the victim and another eyewitness, defendant was arrested. The next day, defendant's parole officer and a detective conducted a search of defendant's apartment and seized a gun, a purse, and some money and clothing.

Some time after his arrest, defendant fled the state. He was later arrested in Oklahoma and brought back to Colorado pursuant to the Interstate Agreement on Detainers Act (IAD). The convictions here at issue followed.

I.

Defendant contends that the trial court erred in failing to dismiss the first habitual criminal count against him because the information, some of the trial testimony, the jury instructions, and the verdict form all referred to the wrong case number with respect to a prior felony conviction of defendant. We perceive no error.

The information charged that defendant had previously been convicted of felony theft in case number 88 CR 1151. This erroneous docket number was mentioned by the prosecutor in his opening statement and appeared in the jury instructions. In addition, a witness from the district attorney's office testified that evidence of defendant's previous conviction was contained in file number 88 CR 5111. The actual judgment of conviction, however, which was admitted into evidence, revealed that the correct docket number for the prior conviction was 88 CR 1511.

During deliberations, the jury noticed the discrepancy in the case numbers and brought it to the court's attention by sending a note. At that time, counsel for defendant made a motion to dismiss the first habitual criminal count. The trial court denied the motion.

Defense counsel then requested that the jurors be told that they must follow the instructions they had already been given, and the court agreed to give such an instruction. Despite their expressed reservations about signing a verdict form containing the wrong case number, the jurors returned a guilty verdict. At defendant's sentencing, his counsel renewed, and the court again denied, the motion to dismiss.

The habitual criminal statute requires that the prosecutor, in the habitual criminal phase of a trial, prove beyond a reasonable doubt that "the defendant has been previously convicted as alleged." Section 16-13-103(4)(b), C.R.S. (1986 Repl.Vol. 8A).

Here, the defects in the information and the verdict form appear to have been the result of a clerical error and constitute defects of form rather than substance. Technical defects in the form of the information do not require reversal unless the substantial rights of the defendant are prejudiced. People v. Hunter, 666 P.2d 570 (Colo.1983).

Defendant has neither alleged nor demonstrated that he was prejudiced by the discrepancy in the file numbers. The record reveals that defendant was placed on notice as to the specific criminal convictions alleged to form the predicate of the habitual criminal charges.

In the habitual criminal phase of trial, the prosecution has the burden of proving the prior conviction and the identity of the accused. O'Day v. People, 114 Colo. 373, 166 P.2d 789 (1946).

Here, based on the evidence presented, the jury could have found beyond a reasonable doubt that the defendant was the person who was previously convicted of felony theft in case number 88 CR 1511. Supporting evidence included not only a certified copy of the judgment of conviction itself, but also official photographic and fingerprint documents verifying that the defendant was the individual convicted in that case.

We therefore conclude that the trial court properly denied defendant's motion to dismiss the first habitual criminal count.

II.

Defendant next contends that the trial court erred in denying his motion to dismiss both habitual criminal counts because of inaccuracies in the dates of the convictions as alleged in the information. We disagree with this contention.

Both habitual criminal counts in the information allege that defendant was sentenced for the prior convictions on January 31, 1989. However, the evidence, including the judgments of conviction themselves, established that defendant was actually sentenced on October 13, 1988. January 31, 1989, was the date of defendant's resentencing and transfer to the Department of Corrections from Community Corrections.

The defense filed a motion to dismiss both habitual criminal counts based on the evidence that the sentences were imposed on a date different from that alleged in the information. The trial court denied the motion.

With respect to habitual criminal counts, the statute requires that the indictment or information allege "that the defendant on a date and at a place specified was convicted of a specific felony." Section 16-13-103(2), C.R.S. (1986 Repl.Vol. 8A).

A variance between the specific date of the offense as alleged and the date as proven at trial is not fatal, absent a showing that the defendant was impaired in his defense to the charge at trial or in his ability to plead the judgment as a bar to a subsequent proceeding. People v. Adler, 629 P.2d 569 (Colo.1981). Defendant has made no such showing here.

Defendant urges that the requirement of showing prejudice as a result of a defect in dates in the information should not apply when the defect involves habitual criminal charges because § 16-13-103(2) requires that the charging document specify the date of conviction. Under the circumstances here, we disagree.

An analogous argument regarding the habitual criminal statute was addressed by a division of this court in People v. Wieghard, 709 P.2d 81 (Colo.App.1985). There, the defendant contended that the habitual criminal charges should have been dismissed because § 16-13-103(2) required an allegation in the information that each conviction was for an offense that would be a felony if committed in Colorado, and the information charging defendant did not contain such an allegation. Although conceding that the information did not comply with the statute, the Wieghard court rejected defendant's contention on the grounds that the defect was not prejudicial to the defendant.

We likewise conclude that, absent a showing of prejudice to defendant, an inaccuracy or discrepancy in the date of prior conviction alleged in the information does not mandate a dismissal of the habitual criminal counts.

For a defendant to be classified as a habitual criminal under § 16-13-101(1), C.R.S. (1986 Repl.Vol. 8A), he or she must have been twice convicted of felonies within ten years of the date of commission of his or her most recent offense. Here, because both the October 1988 and January 1989 dates were within ten years of the commission of the substantive offense for which defendant was being tried, and because a reasonable jury could have found that defendant's identity was established beyond a reasonable doubt as to the prior convictions, the mistake did not affect the substantial rights of the defendant.

Finally, defendant does not urge or demonstrate that he had failed to receive notice or was unaware of the actual convictions alleged to serve as the predicate of the habitual criminal charges. Nor has he shown that his defense was impaired by reason of the date discrepancy.

We therefore find no reversible error in the trial court's refusal to dismiss the habitual criminal counts.

III.

Defendant also maintains that the trial court erred in failing to grant him a hearing on his claim of ineffective assistance of counsel in connection with the convictions supporting the habitual criminal counts. We perceive no error.

On January 31, 1992, counsel for the defendant filed a motion to dismiss the habitual criminal counts. The trial court initially ruled that the motion was time-barred because more than three years had passed since the date of the convictions defendant was collaterally attacking. Subsequent proceedings, however, resulted in the court finding that the motion was timely filed.

The court then dismissed the habitual criminal counts upon a finding that defendant had not been properly advised of his rights at the time he had entered his pleas in those cases. Upon the prosecution's challenge to that ruling, in People v. District Court, 868 P.2d 400 (Colo.1994), the supreme court held that defendant's advisement was adequate and ordered the trial court to reinstate the habitual criminal counts. The supreme court did not rule on the issue of whether defendant's collateral attack on his prior convictions was time-barred.

Defendant argues that the supreme court's failure to determine whether his collateral attack was...