v.
Lloyd E. COLLIER, Defendant-Appellant.
[
Jоhn W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Lloyd E. Collier, Pro Se.
Opinion by Judge BERNARD.
Defendant, Lloyd E. Collier, appeals the trial court order denying his motion for postconviction relief. We affirm.
The following facts are undisputed. In 2001, defendant pleaded guilty to sexual assault on a child, § 18-3-405(1), C.R.S.2006, a class four felony. On June 29, 2001, defendant was given a suspended sentence of eight years to life in the custody of the Department of Corrections (DOC) and placed on probation. Defendant violated the conditions of his probation, however, and he was resentenced to the DOC in June 2004.
On February 15, 2005, defendant filed a motion to correct an illegal sentence under Crim. P. 35(a). The trial court found that, in substance, defendant's motion challenged the constitutionality of his sentence. Thus, the court treated the motion as having been brought pursuant to Crim. P. 35(c) and ruled it was time barred pursuant to § 16-5-402, C.R.S.2006. The court also denied the motion on the merits.
Defendant contends his postconviсtion motion is cognizable under Crim. P. 35(a). We disagree, except as to one claim.
The substance of a postconviction motion controls whether it is designated as a Crim. P. 35(a) or 35(c) motion. See People v. Shepard,
Crim. P. 35(a) provides: "The court may correct a sentence that was not authorized by law or that was impоsed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence." A sentence is "not authorized by law" if it is inсonsistent with the statutory scheme outlined by the legislature. People v. Wenzinger, ___ P.3d ___,
Crim. P. 35(a) is the proper procedural vehicle for a defendant to use to challenge an illegal sentence. People v. Rockwell, supra. A sentence is illegal if it is "inconsistent with the statutory scheme outlined by the legislature," and an allegation that a sentence is illegal raises questions about the sentencing court's subject matter jurisdiction. People v. Rockwell, supra,
Motions under Crim. P. 35(c) are the proper postconviction route in which to challenge convictions or sentences as unconstitutional. See Crim. P. 35(c)(2)(I) (providing for relief where the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state); Crim. P. 35(c)(2)(II) (providing for relief where the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of this state);
People v. Shepard, supra; People v. Wenzinger, supra.
Defendant's motion asserts five claims that his conviction and sentence are unconstitutional, which are cognizable under Crim. P. 35(c), and one claim that his sentence was imposed in an illegal manner, which is cognizable under Crim. P. 35(a).
Unlike Crim. P. 35(a) motions, Crim. P. 35(c) motions are subject to § 16-5-402(1), C.R.S.2006, which provides in all cases involving felony offеnses other than class one felonies, a collateral attack must be brought within three years of the date of conviction. People v. Abeyta,
For purposes of § 16-5-402 and postconviction review, if there is no direct appeal, a conviction occurs when the trial court enters judgment and sentence is imposed. People v. Hampton,
In this case, there was no direct appeal, and defendant's sentencе was imposed on June 29, 2001. He filed his postconviction motion on February 15, 2005, which was outside the three-year statute of limitations.
The fact that defendant was resentenced to the DOC in June 2004 upon revоcation of his probation does not alter our conclusion. See People v. Cummins,
We conclude that the trial court properly denied defendant's motion becаuse all his claims are time barred.
Defendant contends the trial court aggravated his sentence in violation of Apprendi v. New Jersey,
Defendant next contends the trial court sentenced him to two punishments for thе same crime, in violation of the Fifth Amendment prohibition against double jeopardy. We conclude this claim is also properly brought under Crim. P. 35(c).
The supreme court, in Graham v. Cooper,
However, Graham does not apply here because it was decided before the most recent amendments to Crim. P. 35. Prior to 2004, there was some overlap in the language of Crim. P. 35(a) and 35(c). See People v. Green, supra,
not in accordance with the sentence authorized by law.'").
The term "illegal sentence" does not appear in the current vеrsion of Crim. P. 35(a). That phrase has been replaced with "a sentence that was not authorized by law." People v. Wenzinger, supra. Thus, under the current version of Crim. P. 35(a), the only circumstance in which a sentence is "not authorized by lаw" is when it is inconsistent with the statutory scheme outlined by the legislature. People v. Wenzinger, supra (citing People v. Rockwell, supra).
Because there is no longer any overlap between Crim. P. 35(a) and 35(c), and because Crim. P. 35(c) is now the only rule that provides for relief for constitutional claims, we conclude Graham v. Cooper, supra, does not control. See also People v. Shepard, supra (Crim. P. 35(c) allows motions for postconviction relief based upon allegations a sentence was imposed in violation of the federal or stаte constitution); cf. Forma Scientific, Inc. v. BioSera, Inc.,
Further, defendant's claim is different from the claim the supreme court considered in Graham. Grahаm raised the issue of whether a second amended mittimus violated his right to be free from double jeopardy by increasing the length of his sentence after he had begun serving it. See People v. Chavez,
Also, defendant does not claim his sentence is inconsistent with the statutory scheme; he only claims it violates double jeopardy. We therefore conclude defendant's claim is cognizable under Crim. P. 35(c). See People v. Shepard, supra (concluding defendant's due process claim, brought under Crim. P. 35(a), was cognizable under Crim. P. 35(c) only). Accordingly, this claim is also time barred.
Defendant further contends the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1001, et seq., C.R.S.2006, violates his right to equal protection of the law because it allows judges to impose different sentences for substantially similar crimes.
This is not a Crim. P. 35(a) claim because defendant does not argue his sentence is inconsistent with the statutory scheme. See Crim. P. 35(a); People v. Shepard, supra; People v. Wenzinger, supra. Instead, defendant's claim is that the sentencing scheme set forth in the Colorado Sex Offender Lifetime Supervision Act violates equal protection of the laws and is therefore unconstitutional.
This claim is also cognizable under Crim. P. 35(c). See People v. Shepard, supra, and is time barred.
Defendant next contends the Colorado Sex Offender Lifetime Supervision Act violates his right to due process of law because it does not provide for a continuing opportunity to be heard and does not give offenders a meaningful chance to demonstrate their rehabilitation.
Again, this is not a Crim. P. 35(a) claim because defendant dоes not argue his sentence is inconsistent with the statutory scheme, see People v. Wenzinger, supra, but instead argues his sentence is unconstitutional. See People v. Shepard, supra. This claim is likewise time barred.
Defendant argues his due process rights were violated because the trial court used an unreliable test, the Sexually Violent Predator Assessment and Screening Instrument, in sentencing him. This claim falls under Crim. P. 35(c) because defendant alleges his sentence was imposed in violation of a provision of the federal constitution, Crim. P. 35(c)(2)(I), and is, therefore, time barred.
Defendant submits he was not given the complete range of psychological and physiological testing required for his sex offender evaluation before he was sentеnced. Defendant asserts such testing is required by §§ 16-11.7-104 and 16-11.7-105, C.R.S.2006.
In essence, defendant's claim is that his sentence was imposed in an illegal manner. Such a claim was properly brought under Crim. P. 35(a), but had to be assertеd within 120 days of sentencing. See Crim. P. 35(a); People v. Wenzinger, supra. Thus, it, too, is time barred.
Defendant filed his motion more than three years after he was sentenced. Thus, all six of his claims are time barred, and the trial court did not err in so ruling. Because we reach this cоnclusion, we do not address the merits of the motion.
Defendant contends the trial court erred in declining to appoint counsel to assist him in this proceeding. We disagree.
A defendant does not have a Sixth Amendment right to counsel in postconviction proceedings. Duran v. Price,
Hence, the trial court did not err in declining to appoint counsel.
The order is affirmed.
Judge MÃRQUEZ and Judge ROTHENBERG concur.