The People of the State of Colorado, Plaintiff-Appellee, v. Osmundo Rivera Cali, Defendant-Appellant.
No. 15CA2082
Colorado Court of Appeals
May 3, 2018
2018COA61
Opinion by JUDGE ASHBY; Terry, J., concurs; Nieto, J., dissents
El Paso County District Court No. 11CR3659; Honorable Barney Iuppa, Judge; ORDER REVERSED, JUDGMENT VACATED, AND CASE REMANDED WITH DIRECTIONS; Division VII
SUMMARY
May 3, 2018
2018COA61
No. 15CA2082, People v. Cali — Criminal Procedure — Postconviction Remedies — Collateral Attack Upon a Criminal Judgment
A division of the court of appeals considers whether a defendant is entitled to the benefit of a statutory amendment that took effect before his conviction was final on appeal even though the defendant requested the benefit of the amendment in a
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Osmundo Rivera Cali, Pro Se
*Sitting by assignment of the Chief Justice under provisions of
I. Background
¶ 2 In 2012, Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to eighteen years in the custody of the Department of Corrections.
¶ 3 In August 2012, Cali directly appealed his convictions, arguing, among other things, that he could not be convicted of theft and theft by receiving because both offenses involved the same stolen property. A division of this court agreed and, in October 2014, vacated his theft conviction while affirming his theft by
¶ 4 Meanwhile, in June 2013, after Cali had filed his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. Ch. 373, sec. 3,
¶ 5 The postconviction court denied Cali‘s motion without a hearing. In doing so, it ruled that Cali was not entitled to the benefit of the changed statute because “the law changed after his sentence was imposed, his sentence has been affirmed on appeal and because the ‘new’ Theft [sic] statute was intended to have prospective, not retroactive, application.”
II. Cali Was Entitled to the Benefit of the Changed Statute
¶ 7 As the postconviction court acknowledged, whether Cali is entitled to the benefit of the changed statute is a purely legal question. We therefore review the postconviction court‘s ruling de novo. See People v. Valdez, 178 P.3d 1269, 1278 (Colo. App. 2007).
¶ 8 The prosecution argues that “the long-established rule in Colorado is that the law in effect at the time the offense is committed is the law that controls both the prosecution and punishment of the defendant.” It cites People v. Orr, 39 Colo. App. 289, 566 P.2d 1361 (1977), for this rule. But this argument misconstrues the relevant rule and the holding in Orr. Contrary to
¶ 9 This rule originated in People v. Thomas, 185 Colo. 395, 398, 525 P.2d 1136, 1138 (1974), wherein the supreme court held that a criminal defendant was entitled to the benefit of a statutory change that took effect after he committed the offense but before his conviction became final. In doing so, the court said, “[t]he view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law.” Id.
¶ 10 For decades, “both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the ‘benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.‘” People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold, 190 Colo. 136, 137, 543 P.2d 1251, 1252 (1975)), aff‘d, 2017 CO 2.
¶ 11 Boyd was convicted of possession of a small amount of marijuana and sentenced. Id. at ¶ 2. But before that conviction and sentence became final on appeal, an amendment to the state constitution (Amendment 64) took effect that made it legal to possess the amount of marijuana that Boyd had been convicted of possessing. Id. at ¶ 4. A division of this court held that under Thomas and its progeny, Amendment 64 applied retroactively to decriminalize Boyd‘s conduct because the amendment took effect while Boyd‘s direct appeal was still pending. Id. at ¶¶ 14-25. Both the majority and the partial dissent in that division specifically and thoroughly addressed Thomas and its progeny, along with several statutes implicating retroactivity principles. Id. at ¶¶ 14-35; id. at ¶¶ 55-86 (Bernard, J., concurring in part and dissenting in part).
¶ 13 We understand the supreme court‘s holding in Boyd to be that a convicted defendant is entitled to the benefit of changes to the State‘s prosecutorial authority if those changes take effect before the conviction and sentence are final on appeal — irrespective of retroactivity principles. Although Boyd addressed the loss of the
¶ 14 Here, the circumstances of Cali‘s case are essentially the same as those in Boyd. At the time of his conviction and sentence, the theft by receiving statute provided that Cali‘s offense was a class 4 felony. But before his conviction and sentence became final on appeal, that statute was repealed and replaced with a new statute that classified his offense as a class 6 felony. In other words, before Cali‘s conviction became final, the State lost the authority to prosecute Cali for committing the class 4 felony of theft by receiving. Id.
¶ 15 We recognize that the elements of the class 4 felony and the class 6 felony are identical. But that does not matter. The Supreme Court, in United States v. Chambers, 291 U.S. 217 (1934),
¶ 16 Thus, under Boyd and Chambers, Cali could have successfully requested reversal of his class 4 felony conviction had he done so during his direct appeal. However, Cali failed to do so. Instead, he requested this relief in a postconviction motion after his conviction became final on appeal. Boyd did not address this specific circumstance. And the prosecution argues that this procedural difference bars Cali from receiving the benefit of the new statute. We disagree.
¶ 17 The prosecution seeks to construe Cali‘s postconviction claim as one “essentially seeking relief under section 18-1-410(1)(f)(I),”
¶ 18 But, as the supreme court made clear in Boyd, it is not retroactive application of the amendment that entitles Cali to the benefit of the new statute. Instead, under Boyd, the amended statute applies to Cali because the State lost the authority to apply the old statute to him when it was repealed during the pendency of his direct appeal and before his conviction was final. Because Cali‘s claim was not based on retroactive application of the new statute, it was not cognizable as a claim for relief under
¶ 19 Cali‘s postconviction claim sought to reverse his conviction of the class 4 felony and instead stand convicted of the class 6 felony. It was therefore cognizable as a collateral attack on the class 4 felony conviction under
¶ 20 Finally, the dissent argues that allowing Cali to request application of the changed statute to his case after his conviction was final on appeal would violate longstanding principles of finality. We respectfully point out that
III. Additional Authority That Does Not Affect Our Conclusion
¶ 22 Because they have impacted the development of case law in this area, we make observations about two additional sources of authority relevant to our conclusion, although the parties did not raise either. First, we are aware that the supreme court, in People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), addressed whether reducing a defendant‘s sentence under a provision of section 18-1-410 violated the separation of powers doctrine by empowering courts to grant commutations. Then, as now, the Colorado Constitution provided that only the governor has the power to grant “reprieves, commutations and pardons after conviction.”
¶ 24 We perceive no separation of powers violation resulting from our conclusion in Cali‘s case. Unlike the Herrera defendants, Cali is not requesting a judicial commutation or reduction of his sentence. The Herrera court defined the power of commutation as “the power to reduce punishment from a greater to a lesser
¶ 25 Second, we address
[t]he repeal, revision, amendment, or consolidation of any statute or part of a statute . . . shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, . . . either civil or criminal, which shall have been incurred under such statute, unless the repealing, revising, amending, or consolidating act so expressly provides.
¶ 26 The statutory language appears to contradict the Thomas rule and our holding that Cali is entitled to the benefit of the new statute. But the supreme court has explained that the postconviction review remedies of
¶ 27 More importantly, the supreme court concluded in Boyd that when the State loses the authority to prosecute a defendant‘s conviction before that conviction is final on appeal, the defendant is entitled to reversal of that conviction. As discussed above, we see no reason why it would be legally significant that the State‘s authority is removed by statutory rather than constitutional amendment. Applying
¶ 28 Finally, we note that the supreme court has granted certiorari in two cases in which the respective defendants committed theft before the new theft statute took effect, but were found guilty, convicted, and sentenced after the new statute took effect. See People v. Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017); People v. Patton, (Colo. App. No. 14CA2359, Aug. 11, 2016) (not
IV. Conclusion
¶ 29 The postconviction court‘s order denying Cali‘s claim that he was entitled to the benefit of the changed theft statute is reversed. We also vacate Cali‘s conviction of the class 4 felony and remand the case to the postconviction court with directions to enter a judgment of conviction of the class 6 felony and sentence Cali accordingly.
JUDGE TERRY concurs.
JUDGE NIETO dissents.
¶ 30 In a well-written opinion, the majority has determined that the supreme court in People v. Boyd, 2017 CO 2, has abandoned the longstanding rules on the retroactive application of amendatory statutes. I do not agree with the majority‘s reading of Boyd and do not agree that it has application to the facts of this case. Instead, I conclude that because Cali‘s conviction was final before he filed his
I. Boyd
¶ 31 Boyd is distinguishable for several reasons. First, and importantly, Boyd‘s conviction was on direct appeal and was not final, while here, Cali‘s conviction was final before he filed his
¶ 32 Second, in Boyd, the supreme court very clearly said what it was deciding. “This case presents an opportunity to resolve whether Amendment 64 deprived the State of the power to continue to prosecute cases where there was a nonfinal conviction . . . with a pending right to appeal when Amendment 64 became effective.” Boyd, 2017 CO 2, ¶ 5 (emphasis added). The court also made clear what it was not deciding. “We do not find it necessary to address
¶ 33 Third, I would note the fundamental difference between the constitutional amendment in Boyd and the statutory amendment here. The constitution is the root source of all the State‘s authority to act. Once Amendment 64 was effective, the State no longer had authority to prosecute Boyd for the offenses alleged in that case. The amendment provided that “the following acts are not unlawful and shall not be an offense under Colorado law . . . .”
¶ 34 Accordingly, I would decide this appeal without attempting to apply the holding in Boyd to the facts of this case.
II. Finality
¶ 35 The majority has set out the facts and pertinent history of this case. I will not repeat them here, except to emphasize that Cali‘s conviction was affirmed on appeal, certiorari was denied, and the mandate issued in May 2015 — making his conviction final before he filed the postconviction motion in September 2015.
¶ 37 In this appeal Cali pursues only the claim that the 2013 amendment applies in his case. If the amendment applies, the conviction would be a class 6 felony, which would yield a lower habitual offender sentence. I perceive no error and would affirm the trial court‘s order.
¶ 38 Cali‘s request to apply a “substantive change in the law” would fall within the provision in
While
Crim. P. 35(c)(1) provides a remedy to an offender whose conviction or sentence is affected by a change in the law during the pendency of a direct appeal of such conviction or sentence, it does not provide a remedy to an offender claiming the benefit of changes in the law that occur during the pendency of other post-conviction proceedings.
804 P.2d 247, 250 (Colo. App. 1990).
¶ 39 Cali contends that his conviction was not final, and, therefore, he was entitled to be sentenced under the amended statute. I do not agree.
¶ 40 Convictions are final when direct appeal has been exhausted and a petition for certiorari has been forfeited or denied. Edwards, 129 P.3d at 983; People v. Hampton, 876 P.2d 1236, 1239 (Colo. 1994). Significantly, in the binding precedent, People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974), the relevant statute was amended while the appeal was pending, but the issue was not raised until after finality had attached to the conviction. Our supreme court held that, even there, relief could not be granted after the conviction was final. The facts in the Arellano case are on
¶ 41 Finality is not just a technicality; it is a hard boundary. The following cases demonstrate how firm the boundary is. In People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), when the General Assembly explicitly authorized courts to review sentences after a conviction became final, the supreme court invalidated the statute as a breach of the separation of powers doctrine. In People v. Carter, 186 Colo. 391, 527 P.2d 875 (1974), the supreme court held that judicial review of sentences before finality is a proper judicial function. In People v. Arellano, the supreme court held that after the conviction was final, relief could not be granted on a motion filed after finality. 185 Colo. at 283, 524 P.2d at 306. Then in People v. Thomas, the defendant filed a motion for postconviction review of his sentence while his direct appeal was pending. The motion was based on a statute that amended the penalty for his offense. The supreme court held that the motion could be
¶ 42 In each of these cases the decision pivoted on when the conviction became final.
¶ 43 All these cases drew the line at finality. I would continue to do so and would affirm the trial court‘s denial of Cali‘s