William J. Hunsaker, Jr., Petitioner v. The People of the State of Colorado, Respondent
No. 20SC360
Supreme Court of Colorado, En Banc
December 20, 2021
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 17CA1815
Attorneys for Petitioner: Hunsaker Emmi, P.C. William J. Hunsaker Arvada, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General Megan C. Rasband, Assistant Attorney General Denver, Colorado
OPINION
HART, JUSTICE
¶1 After criminal defendants are convicted, Colorado Rule of Criminal Procedure 35 provides them with three types of postconviction remedies. A defendant may seek correction of an illegal sentence "at any time"-even many years after the conviction. Crim. P. 35(a). A defendant may ask the court to reduce a sentence within certain limited timeframes. Crim. P. 35(b). And a defendant may bring other specified types of postconviction challenges to a conviction or sentence but must generally do so within three years of the date of conviction. See Crim. P. 35(c); § 16-5-402(1), C.R.S. (2021). The question we are asked to answer here is how Crim P. 35(a), which permits the correction of a sentence "at any time," should interact with Crim. P. 35(c), which has a three-year statute of limitations subject to only a few specific exceptions provided in section 16-5-402(1).
¶2 We have considered this question once before, in Leyva v.
People,
¶3 We reaffirm our conclusion in Leyva that, where a
court corrects an illegal sentence, the defendant may
thereafter pursue an otherwise time-barred Crim. P. 35(c)
motion. However, the corrected sentence only allows
defendants to raise arguments addressing how the illegality
in their sentence potentially affected the original
conviction. In reaching this conclusion, we reaffirm our
holding in People v. Hampton,
¶4 In this case, defendant William Hunsaker, Jr., missed the deadline for filing his Crim. P. 35(c) motion. However, his original sentence was illegal, and the district court corrected it. His late filing of a collateral attack related to the illegality in his sentence is thus justifiably excused. We affirm the court of appeals' conclusion that one of Hunsaker's Crim. P. 35(c) arguments is related to the illegality in his sentence and remand for further proceedings consistent with this opinion.
¶5 William Hunsaker, Jr., has spent the last fifteen years challenging his convictions for two criminal offenses. In June 2006, a jury found him guilty of sexual assault on a child ("count I") and sexual assault on a child as a pattern of abuse ("count II"). The trial court found that these were "extraordinary risk" crimes, subject to an enhanced sentence for that reason, and sentenced Hunsaker to eight years to life for count I and sixteen years to life for count II, to run concurrently. Hunsaker appealed, and his convictions were affirmed. On January 31, 2011, the mandate issued.
¶6 Two months later, Hunsaker filed a Crim. P. 35(a) motion, arguing that his sentence was illegal as to both counts because neither was an extraordinary risk crime. The prosecution agreed that neither count constituted an extraordinary risk crime but maintained that the count II sentence to sixteen years was nonetheless lawful because that count charged a per se crime of violence. The district court concluded that both sentences were illegal and, in June 2011, amended the mittimus to reflect Hunsaker's sentence of six years to life for count I and twelve years to life for count II.
¶7 The prosecution appealed the court's finding as to count
II. In January 2013, a division of the court of appeals
concluded that the original count II sentence was lawful, and
in June 2015, we affirmed. Hunsaker v. People,
¶8 That same month, Hunsaker filed the Crim. P. 35(c) motion for postconviction review that is now before this court. He argued that his conviction was infirm because the district court had violated his rights to a jury trial, to due process, and to be free from double jeopardy. Additionally, Hunsaker argued that he had received ineffective assistance of counsel for several reasons, including because counsel failed to object to the imposition of an illegal sentence. The district court found Hunsaker's motion timely, and the prosecution did not argue otherwise. Nonetheless, it denied Hunsaker's motion on the merits without a hearing.
¶9
Hunsaker appealed, and the court of appeals affirmed, albeit
on different grounds. See Hunsaker, ¶ 1, 490
P.3d at 690. Addressing an argument the prosecution raised
for the first time on appeal, the division found all but one
of Hunsaker's arguments time-barred.[1] Id. As
the division explained, under section 16-5-402(1), most
felony defendants must file a Crim. P. 35(c) motion
within three years of the date of their conviction. Hunsaker, ¶ 13,
¶10
The division then asked whether Leyva might
nonetheless allow Hunsaker's motion to proceed. Id. at ¶¶ 14-16,
¶11
In reaching this conclusion, the division of the court of
appeals here disagreed with another division, which had
concluded that, under Leyva, correction of an
illegal sentence renews the limitations period for filing a
Crim. P. 35(c) motion with regard to all claims. See Baker, ¶¶ 37-42,
¶12 Hunsaker filed a petition for certiorari review, which we granted.[2]
¶13 After setting out the standard of review, we examine the law leading up to our decision in Leyva and acknowledge that certain contradictory language in that case has caused confusion. We then explain that, although Leyva incorrectly stated that a conviction is not final until a sentence is lawful, its narrower holding is correct: The correction of an illegal sentence allows a defendant to subsequently pursue a collateral attack related to the illegality in the original sentence. This is true because the tardiness of these arguments is justifiably excused under section 16-5-402(2)(d). We also reaffirm Hampton's conclusion that a "conviction" for purposes of section 16-5-402(1) occurs once appeal is exhausted.
¶14 We then turn to Hunsaker's Crim. P. 35(c) motion, finding that it was filed after the deadline established by section 16-5-402(1), but, because his original sentence was illegal, the late filing of arguments related to that illegality is permitted by section 16-5-402(2)(d). Because neither the district court nor the court of appeals has had an opportunity to consider arguments about the applicability of section 16-5-402(2)(d) to Hunsaker's other claims under the particular circumstances of this case, we remand for further proceedings consistent with this opinion.
¶15 We review questions of statutory interpretation de novo. People v. Huckabay,
¶16 "This court has plenary authority to promulgate and
interpret the rules of criminal procedure." People
v. Bueno,
¶17 Under Colorado law, individuals convicted of a crime are entitled to turn to the courts for various remedies. For example, after a trial court enters a judgment of conviction and imposes a sentence, the defendant has a right to challenge the finding of guilt and the sentence on direct appeal. § 16-12-101, C.R.S. (2021). The notice of that appeal must be filed within forty-nine days after the entry of the order or judgment appealed from. C.A.R. 4.
¶18 Separately, defendants may seek postconviction review of either a sentence or a conviction. See § 18-1-410(1), C.R.S. (2021) (providing that "every person convicted of a crime is entitled as a matter of right to make applications for postconviction review"). Crim. P. 35 provides three avenues for this relief.
¶19
First, a defendant may move to correct a sentence "that
was not authorized by law or that was imposed without
jurisdiction at any time." Crim P. 35(a). These
"illegal sentence" claims can encompass a wide
range of different factual circumstances. Some involve
allegations like those presented here-that the court imposed
a prison term longer than is permitted by the applicable
statute. Others involve claims that the restitution imposed
was either not permitted or was in the wrong amount, see,
e.g., People v. Brooks,
¶20
Second, a defendant has eighteen weeks after a series of
specified events to ask the court to reduce a sentence. Crim.
P. 35(b). The correction of an illegal sentence pursuant to
Crim. P. 35(a) restarts the clock for purposes of 35(b). Delgado,
¶21 Finally, a defendant can file a postconviction challenge not only to the sentence imposed but to the underlying conviction itself by filing a Crim. P. 35(c) motion. But to make such an application, defendants must file a motion within the time limits established by section 16-5-402(1) or show that an exception in section 16-5-402(2) applies. Felony defendants-except those convicted of class one felonies-have three years from the time of their "convictions" to file a Crim. P. 35(c) motion unless they can identify an exception that permits a later filing.[3] To timely file a Crim. P. 35(c) motion, then, defendants must understand when their "conviction" occurred for purposes of section 16-5-402(1).[4]
¶22
In Hampton, we asked whether a
"conviction" occurs for these purposes after the
trial court enters a judgment of conviction or after a
defendant exhausts the appellate process.
¶23
Later, in Leyva, we asked whether a
"conviction" occurs after a defendant's appeal
was exhausted even if the defendant's sentence was later
determined to be illegal.
¶24 Leyva, however, has caused confusion. In that case we stated, rather broadly, that an illegal sentence would "renew[] the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c)." Id. at 51. But we also stated, more narrowly, that "[i]f an illegality is discovered in a prisoner's sentence, the prisoner should be allowed to pursue any good-faith arguments for postconviction relief addressing how that illegality potentially affected his or her original conviction." Id. at 50. Because Leyva argued that "the late-discovered illegality in his sentence help[ed] establish that he received ineffective assistance of counsel in entering his guilty plea," id., our remand was consistent with both the broader statement and the narrower one.
¶25 Hunsaker and the court of appeals in Baker read the former language as requiring that correction of an illegal sentence restarts the limitations period for all arguments a defendant might raise in a collateral attack.[5] But the prosecution and the court of appeals here rely on the latter language to conclude that correction of an illegal sentence only renews the Crim. P. 35(c) limitations period for arguments related to the illegality in the sentence.
¶26 We now affirm Leyva's more limited statement and
disavow the notion that a "conviction" does not
occur until an illegal sentence is corrected. A defendant who
successfully corrects an illegal sentence may thereafter
collaterally attack their conviction, but they may only raise
arguments addressing how the illegality in the sentence
potentially affected the original conviction.[6] This is true not
because a "conviction" for purposes of section
16-5-402(1) never becomes final until a legal sentence is
entered but rather because these sorts of arguments are
properly brought pursuant to section 16-5-402(2)(d), which
allows for otherwise
untimely collateral attacks in cases of justifiable excuse
and excusable neglect. In reaching this conclusion, we
reaffirm our holding in Hampton-"the meaning of
the word 'conviction' in section 16-5-402(1) refers
to a conviction after a defendant's appeal has been
exhausted."
¶27
In Leyva, we suggested that, just as a trial
court's entry of judgment is not yet final because it is
subject to appeal, a conviction containing an illegal
sentence is not yet final because it is subject to
correction.
¶28
In Leyva's case, for example, his conviction became
final-as we defined that concept in Hampton- in 1993
when Leyva declined to pursue a direct appeal. See Leyva,
¶29 Further, this clarification of Leyva's holding is consistent with our reasoning in Hampton. There, we resolved a potential conflict between two statutory rights. Because there is no similar tension between the right to collateral attack and the right to correct an illegal sentence, an open-ended expansion of the three-year time limit established by the legislature for Crim. P. 35(c) claims is not warranted.
¶30 Hunsaker argues, however, that the rights to correct an illegal sentence and to seek postconviction review do in fact conflict. According to Hunsaker, in cases where the prosecution appeals a district court's order to correct an illegal sentence-as happened here-the district court would be divested of jurisdiction over any simultaneously filed Crim. P. 35(c) motion during the pendency of that appeal and the defendant could thereby lose the right to file a 35(c) motion. We disagree for two reasons.
¶31
First, a district court may well retain jurisdiction over
Crim. P. 35(c) arguments that are unrelated to the illegal
sentence because the doctrine of
divestment only prevents a lower court from entering
"rulings affecting the judgment subject to
appeal." Sanoff v. People,
¶32
Second, and perhaps even more important, the possibility that
a district court might find that it lacks jurisdiction to act
on a defendant's Crim. P. 35(c) claims does not prevent
the defendant from timely filing a Crim. P. 35(c) motion. Section 16-5-402(1) defines when a defendant must file a
motion for postconviction relief; it says nothing about when
a court must rule on that motion. Cf. People v.
Fuqua,
¶33
Of course, under section 16-5-402(2)(d), a defendant who
misses the deadline for filing a Crim. P. 35(c) motion may
nonetheless seek postconviction review if the "failure
to seek relief within the applicable time period was the
result of circumstances amounting to justifiable excuse or
excusable neglect." And Crim. P. 35(c)(3)(I) explains
that "[a]ny motion filed outside of the time limits set
forth in § 16-5-402[] shall allege facts which, if true,
would establish one of the
exceptions listed in § 16-5-402(2)[]." The
justifiable excuse exception to section 16-5-402(1)'s
time limits "give[s] effect to the overriding
concern" that, as a matter of due process, defendants
must have a "meaningful opportunity" to challenge
their convictions, and it recognizes that strict time limits
on postconviction review can sometimes undermine any such
opportunity. People v. Wiedemer,
¶34
A court's correction of an illegal sentence is precisely
the sort of outside circumstance that excuses the untimely
filing of a collateral attack with regard to claims that the
illegal sentence rendered the conviction itself infirm. Cf. Craig v. People,
¶35 But the court's correction of an illegal sentence cannot excuse the defendant's failure to timely bring a collateral attack unrelated to that illegality. Those arguments were always available to the defendant, regardless of whether the court would eventually correct the sentence.
¶36 For purposes of section 16-5-402(1), Hunsaker's conviction became final on January 31, 2011, when he exhausted direct appeal and the mandate issued affirming his conviction. But Hunsaker did not file his Crim. P. 35(c) motion until February 16, 2016-well past his three-year deadline. Accordingly, Hunsaker's motion is untimely, and it cannot proceed unless an exception under section 16-5-402(2) applies.
¶37 Hunsaker's original sentence was illegal, and the district court amended the mittimus to reflect the proper sentence in February 2016. Before this time-when the court entered the final, lawful sentence-Hunsaker was justifiably excused for not raising a collateral attack related to the illegality in his sentence.[7] As such, the court can hear Hunsaker's otherwise time-barred Crim. P. 35(c) motion to the extent it presses arguments related to the illegality in his original sentence.
¶38 Hunsaker's Crim. P. 35(c) motion raises several arguments. First, he contends that the trial judge violated his due process rights because, after his counsel and the prosecution raised the issue of Hunsaker's competence, the court failed to follow statutory requirements for assessing a defendant's competence and allowed Hunsaker to be tried, convicted, and sentenced without any competency determination. Second, Hunsaker argues that the court violated his right to a jury trial by imposing a sentence beyond the maximum in the presumptive range without a jury finding of aggravating circumstances. Third, he argues that the court violated his right to be free from double jeopardy by increasing his sentence after he completed the minimum term and was released on parole. And finally, he maintains that he received ineffective assistance of counsel because counsel (1) failed to adequately prepare for trial; (2) advised Hunsaker to flee the jurisdiction; (3) had a conflict of interest; (4) failed to attend trial and sentencing; (5) failed to handle Hunsaker's competency appropriately; and (6) failed to object to the imposition of sentences for extraordinary risk crimes.
¶39 Hunsaker has asserted on appeal that each of these arguments is "related to" the illegality in his sentence because (1) the court that erred when sentencing him is the same court that erred by violating his due process rights, right to a jury trial, and right to be free from double jeopardy; (2) had the court sentenced him correctly in the first place, he never would have had to pursue a Crim. P. 35(a) motion and would have instead moved directly to collateral attack; and (3) counsel's ineffective assistance at sentencing is tied together with all of the instances where counsel was allegedly ineffective. But Hunsaker pushes Leyva too far.
¶40 In assessing Hunsaker's six arguments, the court of appeals correctly determined that the only one that relates to the illegality in Hunsaker's original sentence is the argument that counsel was deficient for failing to object to the imposition of an extraordinary risk sentence for count I. Hunsaker's other five arguments address counsel's performance and the court's errors leading up to and during trial, violation of Hunsaker's right to a jury trial, and error related to the reinstatement of his count II sentence, which was actually lawful. Because such arguments are unrelated to the illegality in Hunsaker's count I sentence, their late filing cannot be excused by the correction of Hunsaker's sentence.
¶41 Under the particular circumstances of this case, however, these arguments also may fall within section 16-5-402(2)(d)'s justifiable excuse and excusable neglect exception. Hunsaker seems likely to have relied on the language in Leyva that we have now disavowed in delaying the filing of his Crim. P. 35(c) motion. This point, however, was not argued in the courts below, and we decline to address it now. Instead, we remand for further proceedings consistent with this opinion, including proceedings relevant to the applicability of section 16-5-402(2).
¶42 For these reasons, we affirm the decision of the court of appeals and remand the case for further proceedings consistent with this opinion.
JUSTICE GABRIEL dissents, and CHIEF JUSTICE BOATRIGHT joins in the dissent.
JUSTICE GABRIEL, dissenting.
¶43
Today, the majority concludes that (1) the time for filing a
postconviction motion under Crim. P. 35(c) begins to run upon
the entry of the mandate after a defendant's direct
appeal, even if the defendant's sentence was illegal; and
(2) the correction of a defendant's illegal sentence
resets the time period for filing a Crim. P. 35(c) motion
only for those claims that relate to how the sentence
illegality may have affected the defendant's original
conviction. Maj. op. ¶¶ 3, 26, 36. Because the
majority's decision is inconsistent with this court's
longstanding precedent, most notably our decision in
Leyva v. People,
¶44 The majority has adequately laid out the pertinent facts, and I need not repeat that recitation here. I, however, emphasize three facts that I deem particularly pertinent to my analysis.
¶45 First, a mandate reflecting a completely legal sentence did not enter in this case until August 6, 2015, and Hunsaker filed his Crim. P. 35(c) motion six months later, on February 16, 2016.
¶46 Second, the People did not argue in the postconviction court that Hunsaker's Crim. P. 35(c) motion was untimely, and the court expressly found that Hunsaker's motion was timely filed. This conclusion made perfect sense, given that the postconviction court had previously ruled, "[B]ecause the time period for filing a motion to reconsider a sentence does not begin to run until the imposition of a legal sentence, the Court will withhold as premature any ruling on the Defendant's [alternative motion under Crim. P. 35(b) for a sentence reduction] at this time." Hunsaker reasonably relied on this statement in waiting to file his Crim. P. 35(c) motion.
¶47 Third, in their answer brief in the court of appeals, the People argued, for the first time, that Hunsaker's motion was untimely as to claims unrelated to the potential effect of his illegal sentence on his original judgment of conviction, and the division ultimately agreed.
¶48 I begin by discussing Leyva, and I explain why the court's decision today is inconsistent with that longstanding precedent. I then explain why I believe the majority errs in concluding that the time for filing a Crim. P. 35(c) motion begins to run upon the entry of the mandate after a direct appeal, even if the defendant's sentence was illegal. I end by expressing my view that even if Hunsaker filed any of his Crim. P. 35(c) claims late, then, on the undisputed facts of this case, justifiable excuse and excusable neglect are manifest, and for that reason as well, Hunsaker should be permitted to pursue all of his Crim. P. 35(c) claims.
¶49
In Leyva,
[B]ecause Defendant Joshua Leyva's original judgment of conviction contained an illegal sentence on one count, the entire sentence was illegal. The sentence was therefore subject to correction and the judgment of conviction was subject to amendment, such that the judgment of conviction was not final or fully valid. Accordingly, the three-year deadline for bringing a Crim. P. 35(c) motion regarding the original conviction was not triggered until Leyva's sentence was corrected, and his judgment of conviction amended.
¶50
In reaching this conclusion, we recited several longstanding
principles of law that, at least until today, I thought were
incontrovertible. Specifically, we observed that we had
previously considered the meaning of the term
"conviction," as that term is used in section 16-5-402(1), C.R.S. (2021), and had concluded that the term
"refers to a conviction after a defendant's appeal
has been exhausted." Id. at 50 (quoting People v. Hampton,
¶51 In light of the foregoing, we concluded, "[W]hen an illegal sentence is corrected pursuant to Crim. P. 35(a), it renews the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c)." Id. at 50-51. We therefore remanded the case for consideration of all of Leyva's Crim. P. 35(c) claims, even though his sentence was deemed illegal as to only one count. Id. at 49-51.
¶52
In my view, our decision in Leyva resolves the issue
now before us. Here, as in Leyva, Hunsaker's
original sentence was illegal in part. This, in turn,
rendered illegal Hunsaker's entire sentence on all
counts, such that the judgment against him was not fully
valid or final and was therefore not yet a
"conviction" for purposes of section 16-5-402(1). See Leyva,
¶53
I am not persuaded otherwise by the majority's (and the
division's) reliance on the statement in Leyva
that, "[i]f an illegality is discovered in a
prisoner's sentence, the prisoner should be allowed to
pursue any good-faith arguments for postconviction relief
addressing how that illegality potentially affected his or
her original conviction." Id. at 50. There, we
were not distinguishing between Crim. P. 35(c) claims that
were related to the illegality and claims that were not. Indeed, were that what we intended, we would not have
remanded the case with instructions to allow Leyva to pursue
all of his Crim. P. 35(c) claims, whether they related to the
illegality or not. See People v. Baker, 2017 COA
102, ¶¶ 40-41,
¶54 A number of troubling consequences flow from the majority's decision to depart from Leyva.
¶55 First, section 16-5-402(1) sets the time limit for a postconviction challenge based on the date of "conviction," and, as noted above, a "conviction" has long been understood to refer to a final and valid conviction. See, e.g., Leyva 184 P.3d at 50. Section 16-5-402(1) does not provide one timeline for valid convictions and another timeline for invalid convictions, but the majority effectively rewrites the statute to create such a distinction. This, however, is not a court's proper role.
¶56
Our decision in Hampton, on which the majority
extensively relies, is not to the contrary. The issue before
us in Hampton,
¶57 Second, the majority's ruling creates substantial uncertainty as to the timeline for filing a Crim. P. 35(c) motion. Must defendants with legitimate illegal sentence claims file postconviction motions before knowing what their proper sentences are (i.e., before knowing what their judgments of conviction are)? And when, exactly, is a claim related to the illegality? The majority's decision invites litigation on a wealth of new issues, in direct contravention of the majority's purported concern for finality. See maj. op. ¶ 27.
¶58 Third, the majority's ruling today ensures piecemeal Crim. P. 35(c) litigation in any case involving an illegal sentence claim, again in direct contravention of the majority's stated concern for finality, not to mention Crim. P. 35(c)'s express prohibition on successive motions. See Crim. P. 35(c)(3)(VI)-(VII). In addition, the majority now effectively requires a postconviction claimant to file a placeholder Crim. P. 35(c) motion, while simultaneously pursuing relief under Crim. P. 35(a) in the appellate courts. Maj. op. ¶ 32. I am not aware of any precedent or rule supporting such a procedure, nor do I perceive a persuasive justification for it. Although the majority appears to impose this requirement in order to address its concern for "stale claims," id. at ¶ 28, filing a placeholder motion and then waiting, perhaps years, for simultaneous Crim. P. 35(a) proceedings to conclude does nothing to alleviate that concern. Instead, such a procedure introduces unnecessary complexity and duplication of effort, with the attendant risks of creating traps for the unwary and inviting conflicting rulings from different courts.
¶59 Finally, in my view, the majority effectively overrules the principal holding in Leyva without even a mention of the settled principles of stare decisis. Contrary to the People's exposition of the parade of horribles that would result from adherence to Leyva, that decision has been on the books for over a decade without adverse consequences of which I am aware. I perceive no basis to dispose of a clear, longstanding, and well-working rule in favor of a rule that I believe will engender confusion and additional litigation for years to come.
¶60 I likewise am unpersuaded by the People's suggestion that the conclusion that I would reach today would result in the possibility of a renewed Crim. P. 35(c) deadline many years down the road, at the risk of great prejudice to the People. In my view, the likelihood of the scenario that the People portend is remote because it presumes that postconviction claimants will delay filing Crim. P. 35(c) motions in the hope that, someday, they may have an argument that their sentences were illegal. Assuredly, convicted defendants will not sit in prison, holding back Crim P. 35(c) claims in the hope of raising them sometime in the unforeseeable future. Moreover, because successful Crim. P. 35(a) claims are rare, I would anticipate that those convicted of crimes will ordinarily file Crim. P. 35(c) claims within the three-year limitations period, unless, perhaps, they have a then-existing Crim. P. 35(a) claim. In that case, it would make sense for these claimants to wait, so that they would not be forced to collaterally attack their judgments of conviction before even knowing what those judgments are.
¶61 Nor am I persuaded by the People's related contention that applying Leyva in cases like this may create a scenario in which the People will be unable to defend against long-delayed Crim. P. 35(c) claims. Again, in my view, the likelihood of such claims is remote. Moreover, the consequences of such a delayed filing would likely impose more of a burden on postconviction claimants than on the People, because such claimants may find it difficult, if not impossible, to prove their Crim. P. 35(c) claims long after the fact.
¶62 For these reasons, I would adhere to Leyva and conclude that the correction of an illegal sentence resets the three-year deadline for filing a Crim. P. 35(c) motion attacking the original judgment of conviction. Accordingly, I would conclude that each of Hunsaker's Crim. P. 35(c) claims was timely filed, and I would allow Hunsaker to pursue those claims.
¶63
For the same reasons, I also disagree with the majority's
view that the date of Hunsaker's conviction for purposes
of section 16-5-402(1) was January 31, 2011, the date the
mandate affirming Hunsaker's conviction on direct appeal
issued, even though that mandate included an illegal
sentence. See maj. op. ¶ 36. As noted above, as
of the issuance of that mandate, Hunsaker's conviction
was "neither fully valid nor final," Leyva,
¶64 In so concluding, I am not persuaded by the majority's assertion that the principle that we articulated in Leyva is problematic because it would suggest that "a sentence that had been final for many years would suddenly cease to be final." Maj. op. ¶ 27. In so stating, the majority simply assumes its conclusion, namely, that an illegal sentence can be a final sentence. Unlike the majority, I am not troubled by a rule providing that a sentence is not final until it is legal. Indeed, that is precisely why our criminal procedure rules allow a defendant to challenge an illegal sentence at any time. Crim. P. 35(a). And to the extent that finality is delayed for whatever time it may take to correct an illegal sentence, I perceive no basis to hold that delay against the defendant, who was forced to endure the illegal sentence, perhaps for a lengthy period of time.
¶65 Lastly, even were I to agree with the majority that most of Hunsaker's Crim. P. 35(c) claims were somehow untimely, I would conclude, unlike the majority, maj. op. ¶ 41, that, on the undisputed facts of this case, justifiable excuse and excusable neglect are manifest and Hunsaker should therefore be permitted to pursue those claims.
¶66
Under section 16-5-402(2)(d), the three-year deadline for
collaterally attacking a conviction does not apply
"[w]here the court hearing the collateral attack finds
that the failure to seek relief within the applicable time
period was the
result of circumstances amounting to justifiable excuse or
excusable neglect." In determining whether a defendant
has demonstrated justifiable excuse or excusable neglect,
courts must examine the particular facts of the case so as to
effectuate the overriding concern that defendants have a
meaningful opportunity to challenge their convictions. Close v. People,
¶67 Here, for two reasons, I believe that any untimeliness by Hunsaker was the product of justifiable excuse or excusable neglect.
¶68
First, in filing when he did, Hunsaker relied on our
unequivocal conclusion in Leyva,
¶69 Second, as noted above, the postconviction court specifically advised Hunsaker that it deemed premature any ruling on a time-limited postconviction motion while Hunsaker's motion to correct his illegal sentence was pending. In my view, Hunsaker reasonably interpreted this statement as applying to his Crim. P. 35(c) motion as well, and it would be manifestly unfair to preclude Hunsaker from pursuing his Crim. P. 35(c) claims when he delayed filing those claims in compliance with the postconviction court's ruling.
¶70 I would therefore conclude that even if Hunsaker's Crim. P. 35(c) motion were untimely, his delay in filing was the product of justifiable excuse or excusable neglect, and for that reason as well, he should be permitted to pursue his Crim. P. 35(c) claims here.
¶71 For these reasons, I believe that Hunsaker timely filed all of his Crim. P. 35(c) claims, and even if he somehow did not, any untimeliness was the product of justifiable excuse or excusable neglect. Accordingly, I would reverse the judgment of the division below and conclude that Hunsaker may pursue all of his Crim. P. 35(c) claims in this case.
¶72 I therefore respectfully dissent.
¶73 I am authorized to state that CHIEF JUSTICE BOATRIGHT joins in this dissent. ---------
Notes:
[1] Under section 16-5-402(1.5), an appellate court may deny a motion for postconviction relief as untimely based on "the face of the motion, files, and record in a case . . . regardless of whether the issue of timeliness was raised in the trial court."
[2] We granted certiorari to review the following issues:
1. Whether the court of appeals erred in holding that when an illegal sentence is corrected pursuant to Crim. P. 35(a), it only renews the three-year deadline for collaterally attacking the original judgment of conviction for claims related to how the illegality in the original sentence potentially affected the original conviction, directly in conflict with its holding in People v. Baker,2017 COA 102 , rev'd on other grounds,2019 CO 97M ,452 P.3d 759 (Colo. 2019).
21. [REFRAMED] Whether the court of appeals erred in holding that the date of conviction was, for purposes of postconviction relief under section 16-5-402(1), C.R.S. (2020), the date of the mandate affirming petitioner's conviction, where the judgment of conviction was corrected pursuant to Crim. P. 35(a) but only one of the claims asserted in a later-filed Crim. P. 35(c) motion relates to the illegality in the original sentence.
[3] Individuals convicted of a class one felony may pursue postconviction review any time after their conviction. § 16-5-402(1).
[4] The term "conviction" can
have different meanings in different contexts, see Hampton,
[5] The court of appeals division in
Baker relied on our remand for general consideration
of the ineffective assistance claim as evidence that
Leyva could only stand for the broader proposition
that the Crim. P. 35(c) clock is reset as to all claims. Baker, ¶ 41,
[6] Of course, if the limitations period for seeking postconviction relief has not yet otherwise run, the defendant may raise all appropriate arguments.
[7] It makes no difference that, at this point, the court reinstated the original count II sentence. It was not until the prosecution's Crim. P. 35(a) appeal was complete that Hunsaker could know to what extent his sentence was illegal and thus understand what sort of related collateral attack he could mount.
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