Horton v. Suthers

G11 Rаlph HORTON, Petitioner-Appellee, D. RAMIREZ, Petitioner, Micaela SUTHERS, John Executive Director of Department the Colorado of Correc- The PEOPLE of the State of tions, Respondent-Appellant. Colorado, Respondent. No. 00SA58. No. 99SC814. Supreme Colorado, Court of Colorado,

Supreme Court of En Banc. En Banc. Jan. Sept.17,2001. As Rehearing Modified on Denial of

March Kaplan, David S. Colorado State Public

Defender, Griffin, Deputy Elizabeth State Defender, Denver, CO, Attorneys

Public

the Petitioner. Salazar, Attorney General, Jerry

Ken N.

Jones, Special Attorney General, Assistant Division, Denver,

Appellate CO, Attorneys f Respondent.

PER CURIAM. Kourlis, Justice and Justice Justice Hobbs opinion

Rice are of the (Colo. appeals,

the court of 997 P.2d 1200

App.1999), affirmed; should be whereas Mullarkey, Martinez,

Chief Justice Justice

and Justice opinion Bender are of the that it

should be reversed. Justice Coats does not

participate. divided, equally

Since the court is the deci- appeals

sion of the court of is affirmed 85(e).

operation of law. See C.A.R.

Justice participate. COATSdoes not reviewing prior precedent

after our and rele- precedent jurisdictions, vant from other con- clude that the director's exhaustion of reme- jurisdictional and, dies as a result, was actually waivable and in this case Finally, waived. we discuss the doctrine of invited error and conclude that the director invited agreeing the error that Horton requested. was entitled to the relief he Ac- cordingly, Crowley we affirm County District Court.

I. Facts and Procedure 22, 1997, On October Horton was convicted City County the District Court for the and (the court) of Denver trial of the sale or possession of a I II schedule controlled Kaplan, David S. Colorado State Public substance, felony. $ a class 3 See 18-18- Defender, Lord, Appellate Kathleen A. Chief 405(2)(a)(I), 6 C.R.S. On December Defender, Denver, Deputy CO, Public Attor- the trial court sentenced Horton to community years. corrections for two neys Petitioner-Appellee. After for community rejected Horton, corrections Salazar, General, Attornеy Ken Joseph trial court years resentenced Horton to two Sanchez, General, Attorney Assistant Civil (DOC). Department in the of Corrections Section, Litigation Denver, CO, Attorneys for granted The trial court also Horton credit for Respondent-Appellant. days presentence confinement. On 12, 1998, February the trial court amended opinion Justice MARTINEZ delivered the mittimus Horton's case to include the of the Court. mandatory parole period. Specifically, Department The director of the of Corree- mittimus was amended to include the lan (director) appeal following tions initiated this guage, "any parole term of authorized Crowley County grant District Court's 18-1-105(1)(a@)(V)." Section CRS Horton Ralph petition for writ of habeas However, paroled February 1999. bеlow, corpus. hearing As discussed at the parole he violated his and was thus returned petition, agreed on Horton's the director had to the DOC on June 1999. Crowley County with Horton that the Dis- pro On October Horton filed a se petition trict Court should both hear the and petition for writ of habeas in the grant requested the relief therein. Crowley County District Court. Horton's unpersuaded by We are the director's as- claimed that he ‍‌​‌‌‌​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌​‌​​​​‌‌​‌​‌​​‌​​‌​‌​​‌‍was entitled to im- appeal Crowley County because, although sertion on that the mediate release he had sentence, fully served his was ille- DOC (the court) District Court did not gally refusing specifi- have to release him. More hear Horton's cally, Horton asserted that he was entitled to requested and because Hor- immediate release bеcause he had served his required ton was first to exhaust reme- his two-year entire parole sentence before his pursuant reaching dies to Crim. P. In was revoked. conclusion, this we are first to ad- subject-matter jurisdiction, dress the issue of writ, The habeas court issued the and a generally both and in the context of the writ hearing was held on November corpus. of habeas then consider corpus, We his return to the writ of habeas and corpus hearing, at the habeas remedies, and, legal doctrine of exhaustion of 18-1-105(1)(a)(V)(A), (2000), felony years. 1. Section 6 C.R.S. a class 3 is five provides mandatory period parole petition for writ of habeas in the dressed not have court did the habeas argued that corpus. the case. jurisdiction over stated argument, the director support of § 17-22.5-808 on C.R.S. 5. Based P. previously filed Crim. had Horton Johnson, 97CA214, the A. People v. Mark illegal 35(a) sentence to correct motion object this Court does [director] at the court, pending was still the trial request relief. granting [Horton's] further hearing. The director time THEREFORE, does [the director] sub court lacked contended re- request for habeas oppose [Horton's] had Horton jurisdiction because ject-matter lief, 35(c) motion filed a Crim. previously appeal was on been denied had representations Relying director's on the 98CA9Q4.2 habe- The as No. appeals court of reconsider, response to the motion arguments the director's accepted as court the relief granted Horton the habeas court corpus on of habeas denied the writ 19, 2000, January or and on requested, he 3, 1999. November immediately. release him the DOC to dered judgment to us.4 appealed this The director 2, 1999, de the trial court December On below, we affirm. discussed For the reasons 85(a) on the motion P. Horton's Crim. nied subject-matter it did not have grounds that Analysis the court the case because

jurisdiction over II. According jurisdiction.3 such appeals had arguments on two The director asserts reconsideration ly, filed a motion for Horton First, the habeas he contends that appeal. 10, December 1999. court on with the habeas jurisdiction to subject-matter lacked court responded to the motion The director peti- requested in Horton's relief that by agreeing with Horton reconsideration corpus after thе trial for writ of habeas tion properly hear the now court could the habeas 85(a) P. motion. his Crim. court had denied sought Horton the relief matter and that specifically, the director asserts More re Specifically, the director's proper. was legal reme- all of his defendant must exhaust sponse stated: filing petition P. before under Crim. 35 dies Second, as- corpus. he for writ of habeas [Horton's] Based on close review 4. subject-matter that, Court appeal before the Colorado if we find that pending serts request for relief court, Appeals [Horton's] in jurisdiction proper was corpus writ of habeas upon petition erroneously the merits of decided that court Court, of habeas are not Horton's for writ this the issues before requestеd. The di- by granting the relief agrees [director] Therefore same. the second now has rector asserts this Court [Horton] with appeal. in ad- first time this the issues jurisdiction to consider 35(c) they were filed after appeals' motions because court of record 2. Our own review of the - Jones, filed); People appeal v. had been was in fact the notice case No. 98CA94 reveals that (Colo.1981) (once conviction, appeal ap- 631 P.2d 1133 appeal not an of Horton's direct 35(c) perfected, court is divested of the trial On has been peal of a Crim. P. motion. of the denial any 30, 1999, orders in the jurisdiction to issue further appeals af- the court of December Small, case). People P.2d 153 Horton, v. People But v. firmed Horton's conviction. cf. 30, 1999). (Colo.App.Dec. (Colo.1981) properly (holding the trial court No. 98CA94 P. 35 motion defendant's Crim. enierlained the grounds speedy sentence on trial to vacate his Court, People v. Dist. 638 P.2d 3. See appeal though of his conviction even the direct (Colo.1981) (holding perfection of an speedy issue was pending trial because granting judgment relief under appeal of a final trial). specifically for decision after reserved 35(c) subject- divests the trial court of Crim. P. jurisdiction for an to entertain motion matter appeal jurisdiction over an judgment, 4. This court has that case that affects the order granting 35(b) court of a district a final for reduction motion under Crim. Bossert, corpus. § denying 13-4- sentence); a writ of habeas People 722 P.2d also see Price, (2001); 102(1)(е), Meyers (Colo.1986) (trial 5 C.R.S. lacked 1001 n. 230 n. 1 jurisdiction upon Crim. P. to rule the defendant's

G15 Subject-Matter peal by agreeing sought A. Jurisdiction Hor- petition. ton's habeas Upon filing initial of his corpus, the director for writ of habeas assert- Subject-Matter Jurisdiction and ed that the habeas court did not have sub- Corpus the Writ of Habeas jurisdiction. However, ject-matter in re- reconsider, sponse motion to Horton's Contrary assertion, to the director's position, agreeing director his with reversed subject-matter the habeas court did not lack juris- Horton did have jurisdiction. fact, all district courts diction. The director further he stated that jurisdiction state have to en object granting did not to the court tertain and decide habeas cases. See requested, Horton which was immediate rе- 1845-101, § (2001) 5 CRS. Duran custody. lease from Price, (Colo.1994); Stilley Tinsley, 158 Colo. Subject-Matter Generally Jurisdiction (1963). great "Since it is the writ of freedom Subject-matter "con Anglo-American jurisprudence, it is not to authority cerns 'the court's to deal hedged any way inor circumscribed with judg class of cases in which it renders requirements." technical People ex rel. - " ment." ClosedBasin Landowners Ass'n. v. Court, Wyse v. Dist. Dist., Rio Grande Water Conservation Further, 156 the Colorado (Colo.1987) 627, (quoting P.2d 636 In re Mar provides privilege Constitution that "[the of Stroud, (Colo. 168, riage 631 P.2d 170 of corpus the writ of habeas shall never be 1981)). subject-matter jurisdic A court has suspended, in unless when case of rebellion type tion if "the case is one of the of cases invasion, public safety may or require it." empowered that the court has been to enter II, § Colo.Const. art. sovereign tain from which the court Paine, Webber, authority." are, however, derives its Jack There some limits to Curtis, Adams, 508, son may & Inc. v. 718 P.2d petition the issues that in be raised for (Colo.1986). 513 corpus writ of habeas and heard a habeas court. The sole issue for resolution in a properly The director asserts corpus proceeding pe habeas is whether the subject-matter jurisdiction is not an issue See, being unlawfully titioner is detained. parties: waivable "Jurisdiction is not Gunter, e.g., 1384, Graham v. 855 P.2d 1385 away conferred or taken from a court based (Colo.1993). Thus, a habeas court position party regarding on the of a "inquire justice legality judg into the or of a jurisdiction; instead, jurisdiction court's con legally constituted, ment or decree of a cоurt authority cerns the court's to decide the class 13-45-1088). $ other manner." judgment of cases in it renders and is words, may only other a habeas court hear determined as a matter of law." Winslow presented pleaded peti matters in a properly Denver, City County Constr. Co. v. & 960 habeas,5 namely tion for whether the sen (Colo.1998). 685, However, P.2d 690 as ex Graham, illegal. tence is void or See 855 below, plained subject- the director conflates 1385; Sullivan, P.2d at Mulkey v. 753 P.2d matter with the doctrine of ex 1226, Black, (Colo.1988); 1232 Johnson v. Accordingly, haustion of remedies. the di 99, 137 Colo. 322 P.2d 103 attempt subject- rector did not to confer jurisdiction upon matter articulating habeas court As a result of our cases law, contrary petitions to as he now In corpus, contends. limitations of for habeas we stеad, merely oppor clearly waived the have defined contours of habeas tunity present regard particular to the exhaustion of remedies with to some attempts present ap- he example, discrete issues. For we have held In some instances in which a defendant has P. 35 motion and See, considered the merits. improper ground Gunter, peti 1384, asserted an e.g., for relief Graham v. 855 P.2d 1384-85 corpus, tion for habeas this court has instructed (Colo.1993). that such motion should be converted to a Crim.

616 demands allegation that his confes very nature of the writ 'The writ: petitioner's the initiative in a that it be administered justiciable issue not a was coerced sion miscarriages jus v. Patter Shearer corpus proceeding, flexibility insure that 247, 320, 248 319, 411 P.2d son, 159 Colo. surfaced and сorrect its reach are tice within Kort, (quoting 222 Harris trial violation 690 P.2d (1966); alleged speedy ed." that an 1082, 22 Nelson, 89 S.Ct. in a for writ 394 U.S. v. properly asserted is not People, (1969)). Dodge v. 178 Colo. L.Ed.2d 281 corpus, (1972), that an 214 495 P.2d credits is not good time attempt restore Petition for Writ 3. Horton's in a for writ properly asserted Corpus of Habeas Johnson, 786 P.2d v. corpus, Kodama case, petition for ha- In this (Colo.1990), and that an ineffec 417, 419-20 pertinent part, corpus alleged, beas proper of counsel claim assistance tive and ille incarceration was void his continued proceeding, Tul ly in habeas asserted determining constitutes a what gal. (Colo.1994). Neal, P.2d v. ler purposes of "illegal" "void" Further, that in some cireum- held we have the writ subject-matter jurisdiction vis-a-vis may request stancеs, writ for the peti allegation that a corpus, the of habeas complete release falls short of relief that immediate release entitled to tioner Kort, See, e.g., Marshall custody. proper recognized by this court as been (Colo.1984), rev'd in See, e.g., petitioning for writ.6 basis Carmel, grounds, Jacobs part on other Gunter, Johnson Brittain, (Colo .1993); Cardiel specific kinds of issues Beyond these Black, (Colo.1992); at 123- the lawfulness go to the issue of that do not Accordingly, the habeas 322 P.2d at 103. restraint, howev continued petitioner's jurisdiction to hear court had er, holdings also stand prior our petition. Horton's and decide jurisdiction corpus is that proposition habeas presented with a court is when habeas broad of Remedies B. Exhaustion petition for the writ. Fоr properly pleaded a Stilley stated that example, the that habeas Our determination "Itlo Hor- writ, subject-matter jurisdiction because had conditions on issuance impose corpus pleaded habeas properly ton filed a remedies exhausting other available such as inquiry. The di- here, our pro petition does not end have is such as we in situations jurisdiction regarding is argument are rector's suspension of the writ.... We tanto a straightforward as- complex than the more Rules unmindful of Rule 35 Colorado not allegations im- were that Horton's ... sertion Procedure and observe of Criminal petition. The pleaded in a habeas impose any properly way rule in no seeks petitioner only that a corpus contends not director on the issuance habeas conditions petition properly pleaded for remedy must file a only for those affords a writs-it writ, petitioner sentence, argues that a remedy but he also a seeking proper a P. 85 all remedies under Crim. at his must exhaust may or not seek prisoner seek 86-87, subject-matter jur- 385 before Stilley, 153 Colo. at ‍‌​‌‌‌​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌​‌​​​​‌‌​‌​‌​​‌​​‌​‌​​‌‍election." a court has petition a for writ Further, to consider "open-ended relief isdiction P.2d at 688-89. argues thus corpus. The director purpose the essential accords with "void," leged confinement was that his continued merits of the we do not reach the 6. Because arguments error question based on the invited for relief was director's doctrine, no that his claim there is 618-620, infra, page see discussion at petition of habeas properly in a for writ asserted what constitutes address the issue of we need not corpus. We therefore need resolve pleaded" petition a writ of habe- "properly a parameters question are for of what the broader corpus. prior has articulated Our case law as petition writ. Our "properly pleaded" through open are to attack that "void" sentences not define therefore, does decision today, writ, "illegal" are not. but sentences the See, may properly in a scope be asserted of issues that Mulkey, e.g., at 1232. Because corpus. petition for writ of habeas corpus al writ of habeas alleged requirement any possibility of exhaustion of conclusion that that exhaus might jurisdictional; must, tion of petitioner remedies remedies according argument, to the director's exhaust jurisdictional. juris-

all remedies under Crim. P. 85 before Supreme prece United States Court triggered in a diction could be habeas court. supports dent our conclusion. That Court any requirement has held that of exhaustion 1. Exhaustion of Remedies corpus of remedies in the habeas context is is Not Jurisdictional See, jurisdictional. e.g., Castille v. Peo exhaust, argument The director's 346, 349, ples, 489 U.S. 109 S.Ct. ing remedies under Crim. P. 35 is a condition (1989); Greer, Granberry L.Ed.2d 380 precedent having jurisdic to a habeas court 129,131, U.S. 107 S.Ct. 95 L.Ed.2d 119 above, tion is erroneous. As discussed all (1987); Johnston, Bowen v. 306 U.S. jurisdic district courts have (1939).7 59 S.Ct. 83 L.Ed. 455 In reach petitions to hear tion for writs of habeas conclusion, ing this the Court reasoned that corpus. Whether a must file a the exhaustion of remedies doctrine is based before, of, in Crim. P. 35 motion or lieu principle comity, on the rather than on the goes for the writ to the issue of jurisdictional power of federal courts to en whether habeas court should exercise that Castille, petitions tertain corpus. for habeas jurisdiction, not whether the habeas court 1056; 489 U.S. at Granberry, S.Ct. jurisdiction has such in the first instance. Therefore, 481 U.S. at 107 S.Ct. 1671. The several observations drawn argument the state waive the prior holdings regarding from our the nature petitioner has failed to exhaust his remedies. jurisdiction and extent of a habeas court's Granberry, 1671; 481 U.S. at 107 S.Ct. support lend to our conclusion that the di Maass, see also Brown v. 11 F.3d rector's exhaustion of remedies (9th Cir.1993). Further, at least one state IL.A.2, misplaced. part See discussion su supreme court has held that exhaustion of jurisdiction pra. corpus Such broad habeas remedies context is not suggests presented that district courts jurisdictional, Wallace, See In re 3 Cal.3d petitions may grant deny clear-cut or Cal.Rptr. petitions notwithstanding such the availabili 35; ty of relief under Crim. P. "Prohibition lie, courts, does not this court or district 2. The Director Waived the Exhaustion prevent having courts of habe- Argument of Remedies proceeding ... as Accordingly, the deny director's asser requested." Stilley, the relief precedent 385 P.2d at 689. Our thus tion that Horton must exhaust all remedies initiating under Crim. P. 85 before a habeas supports general proposition the that habeas corpus jurisdiction broad, jurisdictional proceeding is as well as our in nature.8 Although (11th Cir.1986) Supreme Baggiano, the United States Court's 785 F.2d 970 regarding ("First, conclusions exhaustion of remedies requiring the benefit of administrative gives parties were in the context of a federal habeas exhaustion is that it and the proceeding, requires agency's longstanding the benefit of the that all state reme- expertise.... requir- The same does dies be exhausted before a federal not hold for habeas action remedies."); filed, ing exhaustion of state court depart John- is we see no reason to from that Linda, City son v. Loma 24 reasoning Cal.4th Court's in the context of the state of (2000) ("Ex- Cal.Rptr.2d corpus proceeding presently that is be- jurisdic- haustion of administrative remedies is 'a note, however, fore us. We that our reference to prerequisite tiоnal to resort to the Ex- courts.' corpus precedent federal habeas is narrow in remedies, hand, judicial haustion of on the other scope. only We consider the doctrine of federal necessary giving binding is to avoid 'effect to the corpus precedent imply to exhaustion of agency's administrative decision because that de- remedies is in the state habeas finality aggrieved cision had achieved due to the context. party's pursue judicial failure to the exclusive remedies, judicial ") 8. The doctrine of exhaustion of remedy reviewing administrative action.' case, implicated (citations omitted) Thus, present (emphasis original). should not be confused with the although doctrine of exhaustion of ad we have held that of exhaustion admin- remedies, ministrative implicates jurisdiction, which is not at issue in istrative remedies see Alacare, Co., generally this case. See Inc.-North v. State v. Golden's Concrete 962 P.2d 919 (1902) ("The 72, 70 S.W. 529 Eyer, 96 Tex. of go the existence it does Because a deduction error] invited is but of [doctrine court, rather to wheth- but

jurisdiction of estoppel."); Graham of from the doctrine that to exercise elect should the court er Graham, 41 Wash.2d regard- the director's jurisdiction, ("[The (1953) error ... of invited doctrine legal reme- of of exhaustion ing doctrine or waiver of a phase estoppel of as one arises by corpus cases was waivable in habeas dies that inconsistent with right position a to take case, counsel In this parties taken."). species of the Although a initiаlly conceded, he just that when did director invited estoppel, equitable doctrine of of reconsideration court's upon the habeas estoppel. narrower than is error doctrine petition, trig is error doctrine Specifically, the relief, invited The requested grant Horton's should by party in the gered by actions taken subject- concept of the conflation director's contrast, estoppel is litigation. In course ex- the doctrine of jurisdiction and matter underlying conduct usually triggered request for renders his remedies haustion of a court. brought before of action a cause improper. error, Thus, while the doctrine of invited estop- conceptual basis encompassing the Error Doctrine Invited The C. against only actions pel, properly invoked litigation: in the course taken request for relief is The director's cardinal rule of error. error is a doctrine of invited Invited improper under ‍‌​‌‌‌​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌​‌​​​​‌‌​‌​‌​​‌​​‌​‌​​‌‍the range of conduct. applied to a wide review previous essence, reversed his the director inducing an party from prevents It ... conceded specifically position [ruling] and inappropriate or erroneous case and hear the court should seeking profit from that er- later then reply Horton. his requested error is ... The idea of invited ror. brief, that con expressly admits ju- underlying notions of protect principles contrary argument he makes cession by allocating economy integrity dicial error bars the of invited to us. The doctrine responsibility for the induce- appropriate way. changing course director error, Having induced ment of error. may not at a later party in a normal case Generally Doctrine Invited Error 1. The the error to stage [proceedings] use immediate and adverse conse- aside its set cap error of invited The doctrine quences. party may not principle that "a tures the appeal of an error that he complain on Co., 208 W.Va. Coal Roberts v. Consolidation case; injected he must into the invited or Accordingly, 539 S.E.2d consequences acts." Peo of his abide disappointed "[oJperates to bar the doctrine (Colo. ple Zapata, an ad- arguing appeal litigant from 1989). described as The doctrine has been product of er- was the verse decision below principle." estoppel application ror, party urged "an the lower court to when Co., 383, alleged Upjohn 21 Cal.4th 87 to be er- Norgart adopt proposition v. the now 79, (1999); 453, Rec., 479, P.2d 92 see ror." Brett Cal.Rptr.2d 981 144 N.J. v. Am. Great 705, Missouri, A.2d 717 Railway Co. v. 677 Kan. & Tex. also required, corpus, varies from (Colo.1998), controlling pre- if holding writ of is not that be- remedies the exhaustion of administrative deals with case, which cedent in the present reviewing issues require cause the habeas judicial We the remedies. exhaustion solely province of the trial or jur- the that were before exhaustion of administrative remedies judicial sentencing in courts to conserve case in the administra- isdiction is vested court, as is the resources, agency to make initial is review- to enable the Instead, tive context. competent and ing both expertise for which it is issues matters its determinations on within address, judicial why the constitu- compile a record sufficient which is and to well-suited to jurisdiction in all review, statute vest opportunity and the habeas give agency tion the petitions the in to entertain habeas district courts at 923. The exhaus- correct own errors. Id. its instance. the first judicial in the context of tion of remedies

619 juror have held that the doctrine of invited clined the trial replace We court's offer to a applies implicating error even to errors con juror). Thus, with an alternate the fact that rights. Zapata, stitutional 779 P.2d at 1309 expressly acquiesced to the ha- Alaniz, (citing Geer v. 138 Colo. 331 hearing beas court the fоr writ of (1958)). 260, P.2d 262 The doctrine has been granting sought applied against plaintiffs both and defendants by Horton application warrants of the doe- See, and civil e.g., both criminal cases. trine of invited error.10 Gleason, 145, Palmer v. 154 Colo. 147-48 389 (1964) 90, (invoking P.2d 91 the doctrine Application 2. The of the Invited case); against People a defendant a civil v. Error Doctrine to this Case Shackelford, 511 P.2d 20 (1973) (invoking against the doctrine a defen present The facts of this case no reason for Wells, case); dant in a criminal Leister v. 300 depart longstanding us to recogni our (1923) Mo. (invoking 254 S.W. 75 application tion and of the invited error rule. case). against plaintiff 'doctrine in a civil improperly To hold otherwise would reward director previ for conduct we have Further, the doctrine is not limitеd ously by overlooked when undertaken a de party requests to cases which a See, e.g., Zapata, fendant. 779 P.2d at 1307 particular court take a action and then later ("On certiorari, prosecution asserts the complains of that same action. Hansen v. invited error doctrine bars review Co., State Farm Mut. Auto. Ins. 957 P.2d jury instruction, of error in a where the ap The doctrine instruction by was drafted and tendered plies party expressly acquiesces where one does."); defense. conclude We it see opposing party.9 conduct the court Hansen, 1384-85; also 957 P.2d People at See, e.g., (holding id. at 1385 that the invited Montoya, (Colo.App.1996). 928 P.2d applied error doctrine where the trial court rejected jury instruction tendered de Because consideration of the merits fendant State Farm and State Farm elected arguments improper director's based on instruction, replacement to tender error, the doctrine of invited we do not ad thereby implicitly agreeing with the court's dress whether exhaustion of remedies under action); People, Boothe v. Crim. P. 85 in some cireum- (Colo. 1991) (Lohr, J., concurring) (holding stances before a for writ of habeas applied that the invited error doctrine where corpus may Compare Stilley, be filed. fully defendant's counsel "was advised and 86-87, ("To Colo. 385 P.2d at 688-89 im requiesced response in the court's writ, pose conditions on issuance of the such jury's question" agree ap and "did exhausting as other available remedies propriate response" responsе sug was the here, pro situations such as we have tanto court); gested by People Gregor, writ.") suspension Moody (Colo.App.2000) (holding Corsentino, (Colo.1993) applied the invited error doctrine where the ("Generally, a court will not consider a re acquiesced instruction); jury defendant to a quest for habeas relief unless the People Raglin, 21 (Colo.App. 2000) (holding has no other form that the invited error of relief avail doctrine able."). applied expressly where the defendant de Expressly agreeing Significantly, application to conduct the trial court our of the doctrine - opposing party merely failing or is distinct from merely of invited error di- mandates the object. application to Our of the invited error appli- rector's claim cannot be considered. Our apply- doctrine in this case should not be read as error, then, cation of the doctrine of invited does Instead, case, ing object. to a failure to in this imply not determine or there was actual expressly agreed pro- the director with Horton's error in this case. posed affirmatively acquiesced relief and thus to granting the habeas court's of that relief.

III, already tion, to have he claimed - Conclusion ‍‌​‌‌‌​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌​‌​​​​‌‌​‌​‌​​‌​​‌​‌​​‌‍ap- for the custodian was Counsel

served. failed to unaware of and therefore parently that because controlling conclude We the bring the court's attention to court should both the agreed that not-yet-final Relying the on mittimus. grant corpus and petition for the hear Johnson, appeals' оpinion People of therein, of the doctrine requested the relief the (Colo.App.1999), counsel for P.2d 928 chal- him from precludes now error invited however, any sentence agreed, custodian appeal. on Ac- those issues of lenging either period of manda- an additional that included judgment of the the affirm we cordingly, in the defendant's tory parole for someone Court. County District Crowley illegal. As sub- would be we cireamstances Johnson, People

sequently made clear (Colo.2001)(reversing court concurs. specially Justice COATS mandatory pa- period of appeals), such of by statute. in fact role was concurring: COATS, specially Justice effect, only agreed that the not the custodian legally made to serve petitioner not could period parole specified section 18- estopped the of that the director I too believe higher court challenging by appeal 1-105(1)(a)(V)(A), to a the district court from agreed. I expressly judgment to which he requested grant to the relief had however, characterize the am, to reluctant the court petitioner, but also that "invited error" for case as this concession requested and dis- should an intentional confounding it with fear of custody charge petitioner I reasons at trial. for tactical choice made department. that I not make clear do separately to write (and majority not understand believe do appellate proce principle of It is a basic without imply) that a eustodian is opinion to the trial court has been dure that unless seeking of an erro- correction means of alleged an given opportunity to correct discharge in which he has ac- neous order error, not on review for it will be considered Rules of quiesced. Rule 60 of the Colorado People v. anything plain than error. other designed to strike the Procedure is Civil (deelin- (Colo.1988) Gallegos, 764 P.2d between considerations appropriate balance People's appeal ing merits of to consider case, justice in an individual finality and in absence of challenging legality of sentence why that rule is either and I see no reason objection request of trial contemporaneous or insufficiently pro- inapplicable flexiblе 85(a) to pursuant correct Crim. granting orders relief from erroneous vide Lewis, error); Deason corpus context. in the (relying Bigler (Colo.App.1985) (1927), Bigler, 260 P. 1081 pro petitioner's counsel As the se right ap proposition party has no clear, provide petitioner did made peal order or to which his from an Judg- the amended the district court with obtained); regularly see also consent Mittimus, Sentence, ment, in which the Co., Auto. Ins. Hansen v. State Farm Mut. he serve two sentencing court directed that ("It (Colo.1998) long Department years custody practice to review er this court's been mandatory any period plus Corrections responsible alleged by party who is rors section 18-1- parole authorized - - - error."). or not the claimed Whether 105(1)(a)(V)(A). fact, rep- rulings beyond exception for policy allows an in- sentence to the court that his resented jurisdiction of courts of years incarcera- than two cluded no more

G21 accomplish remedies that could prisoner's general jurisdiction, the Bender v. Williams Dist., port Area Sch. 475 U.S. release remain S.Ct. available in other courts.1 (1986) (imposing duty 89 L.Ed.2d 501 a policy The supporting considerations the satisfy on federal courts to them various limiting doctrines a party from jurisdiction selves of the of lower federal changing position appeal its are too obvi- courts, they in part because are courts of well-accepted ous and require to discussion. jurisdiction), limited the custodian should still though Even corpus habeas is unique legal a estopped challenging be discharge the remedy, implicating only individual but general order at issue here. aAs court of important public interests, also and even state, jurisdiction within the the district court though encouraged custodians should be to clearly legislature a court to which the ensure that individuals are not held in custo- given authority prison to entertain the dy longer law, than is authorized corpus, er's for a writ and regularity interests of finality judicial and its issuance of and the writ order of dis process by simply would be permit- ill-served charge specifically were relief authorized ting the custodian to judicial abandon his legislature for this class of cases. See commitments will or seek high- reversal -108, §§ 13-45-101to 5 C.R.S. very judgments er courts of the in which he joined well-settled, below. It is also howev- grounds upon While thе which habeas re er, ctreumstances, there are related to lief proper narrowly would be are cireum- the fault parties greater and the inter- statute, 13-45-102, -108, §§ scribed justice equity, ests of and in which concerns court's granting reasons for relief authorized finality give way. must for this kind deprive of action cannot it of jurisdiction to rule. Rule 60 of provides the civilrules for relief event, however, a determination that a sen judgments from final in such limited cireum- tence mandatory parole to would exceed the Although stances. corpus is a kind of jurisdiction court, sentencing special statutory proceeding, we have made void, therefore squarely be falls within the nature, clear that it is civil in having as its statutorily grounds authorized granting focus the discharge entitlement to from cus relief, if even that determination is tody legality rather than the aof conviction § 18-45-102(2)(a); erroncous. See Stilley v. Gunter, or sentence. Graham v. (1963) Tinsley, 153 Colo. 385 P.2d 677 (Colo.1993). proper party The (sentence statutory not within limitations is against defend a claim for habeas relief is merely void); erroneous but see also therefore petitioner custodian of the Birdwell, re Cal.App.4th 58 Cal. People rather than the of the state. Duran (1996) Rptr.2d (imposition Price, of unau The thorized sentence is act excess of court's procedural requirements of the habeas cor jurisdiction). Similarly, while it be pus clearly precedence statute take over the er- particular ror in a case for a district rules, 81(a) (rules court to 1(a), civil see aр C.R.C.P. so, granting do writ of habeas ply special statutory proceedings except discharging prisoner beyond conflict), where inconsistent or in but jurisdiction merely of the court way because prescribes other statute in no post- or limits deprive majority, available avenues of 1. Unlike the does not I understand the custodian - asserting petitioner's to be that the claim had to district peti- court of to entertain a raised, all, sentencing pursu- if at tion for writ of habeas and to order release, petitioner's though asserting immediate even ant to it Crim. 35 rather than jurisdic- failure to exhaust alternate might remedies is timely be error to do so face of a Similarly, Price, objection. tional. I consider the federal exhaus- Duran v. 868 P.2d 375 Cf limiting (Colo.1994) (habeas petitions by prisoners tion doctrine state court should have treated pursuant § petition, 28 U.S.C. 2254 to claiming be based on entitlement to release because parole sentence had been served before was re- considerations little, federalism with if any, Nevertheless, voked, applicability 35(c) agree here. I as Crim. P. motion and transferred court). sentencing venue to pursue failure of the to first other mistake, Johnson, the result of as Burton v. his sentence pleting judgment remedies. Cf. law, return to prisoner's Cir.1992) (arriving at of fact or either (10th F.2d 690 would de barred but custody not be would applica respect to the conclusion same the case. See equities of upon the pend 60(b) context bility Fed.R.Civ.P. (Colo.1989). Brittain, P.2d 570 Brown The proceedings). federal relevant the considerations I believe errors only for clerical permits rule by the release an erroneous correction by mistakes, misrepresentations also but justifying re- those not unlike are custodian making the developments party, opposing discharge. order an erroncous lief from any other equitable, or longer no concur. specially I therefore relief, have held we While justifying reason not in itself change in decisional law pursuant ground for relief a sufficient McClellan, 16 60(b)(5), Davidson

C.R.C.P. (Colo.2001), reliance

P.3d ever be before reversed

opinions that were been over have since or that

coming final cireumstances, may, some under

ruled justification State sufficient amount Spencer . and Aaron L. ROBERTSON McMillan, 925 P.2d Co. v. Auto. Ins. Farm Plaintiffs-Appellants Cowen, A. (Colo.1996). unique pub Given Cross-Appellees, serve having felons convicted interest lic As by the General mandated the sentences COMPANY, a MALL WESTMINSTER 60(b)(5) ap partiсular sembly, C.R.C.P. corporation, Defendant- Colorado discharge orders. to erroneous plicability Cross-Appellant. ‍‌​‌‌‌​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌​‌​​​​‌‌​‌​‌​​‌​​‌​‌​​‌‍Appellee and that a sentence well-settled It is also No. 98CA1782. by range authorized within is not even time, Appeals, at corrected legislature can be Court Colorado III. Div. acquiesced it was or not whether 85(a); Gallegos, 764 Crim. parties. See 27, 2001.* Sept. does Specifically, a sentence at 77. April Denied Certiorari parole mandat- period of special not include imposed if it illegal, even ed statute Craig Peo- agreement. plea

pursuant to a an 951, 964 While

ple, 986 withdrawn, plea induced

improperly parties is fashioned illegal sentence Id. specific performance. subject Insulating all reconsideration felon discharging a convicted an order

review of the mini- allege service not even

who does his statutorily required for

mum sentence

crime, solely on invitation based law, applicable to misconstrue

parties to condon- its effect tantamount

would be custodian Had the illegal sentence.

ing an com- the defendant before

simply released ED. August Opinion Announced

*Prior Rehearing GRANT- Petition WITHDRAWN.

Case Details

Case Name: Horton v. Suthers

Court Name: Supreme Court of Colorado

Date Published: Mar 4, 2002

Citation: 43 P.3d 611

Docket Number: 00SA58

Court Abbreviation: Colo.