2012 COA 14
Colo. Ct. App.2012Background
- Davis pled guilty in 2000 to first-degree aggravated motor vehicle theft and was sentenced to six years with five years of mandatory parole.
- On Oct. 28, 2004, Davis was released and placed on parole; a November 2004 warrant issued for his arrest due to alleged failure to report to parole.
- Davis was later convicted in Wyoming of receiving stolen property and was returned to Colorado custody around July 30, 2008.
- On Aug. 12, 2008, a parole revocation complaint alleged three parole violations: failure to report, leaving Colorado without permission, and committing receiving-stolen-property.
- Davis appeared at an Aug. 19, 2008 parole revocation hearing, expressed no dispute about the Wyoming conviction, and requested parole revocation; the Parole Board granted the revocation.
- During proceedings, the district court sent the motion to the Attorney General but did not serve the Public Defender, who had not been appointed; after reviewing the AG’s pleading, the court denied Davis’s Crim. P. 35(c) motion without a Public Defender Respondent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the failure to notify the Public Defender violated Crim. P. 35(c)(8)(V). | Davis claims the court failed to serve the motion on the Public Defender as required. | The court may summarize denial without PD input where appropriate; service is not mandated. | Remanded to serve the PD and allow response; errors potentially prejudicial require reversal. |
| Whether the procedural error was harmless. | Procedural noncompliance could have prejudiced Davis by denying PD review. | Court’s error could be harmless if not influencing outcome. | Harmlessness not established; reversal and remand required for proper PD participation. |
Key Cases Cited
- People v. Kyler, 991 P.2d 810 (Colo.1999) (de novo review of Crim. P. 35(c) motion)
- People v. Zhuk, 239 P.3d 437 (Colo.2010) (construction of rule of procedure reviewed de novo)
- People v. Osorio, 170 P.3d 796 (Colo.App.2007) (discusses timing and necessity of PD service under Crim. P. 35(c))
- Silva v. People, 156 P.3d 1164 (Colo.2007) (necessity of indigency and PD appointment in postconviction)
- White v. Denver Dist. Court, 766 P.2d 632 (Colo.1988) (Crim. P. 35(c) relates to parole revocation relief)