No. 90CA1566Colorado Court of Appeals.
Decided February 27, 1992. Opinion Modified, and as Modified Rehearing Denied March 26, 1992. Certiorari Granted August 17, 1992 (92SC279).
Certiorari Granted on the following issues: Whether application of the statute of limitations for “collateral attacks” to motions filed under Crim. P. 35(c) effectively suspends the right to a writ of habeas corpus, in violation of article II, section 21 of the Colorado Constitution. Whether the language of the statute of limitations, which limits its application to “collateral attacks,” must be strictly construed to preclude application of the statute to direct attacks on convictions filed pursuant to Crim. P. 35(c). Whether the court of appeals interpretation of the “justifiable excuse” provision of § 16-5-402(2)(d), 8A C.R.S. (1986), effectively rendered the provision meaningless, and violated the defendant’s right to due process. Cause remanded with directions to remand to the district court to address the defendant’s justifiable excuse or excusable neglect claims in accordance with the standards set forth i People v. Wiedemer, 852 P.2d ___ (Colo. May 10, 1993), BY THE COURT July 6, 1993.
Appeal from the District Court of Larimer County Honorable John-David Sullivan, Judge.
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Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Clement P. Engle, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Patrick J. Mulligan, Deputy State Public Defender, for Defendant-Appellant.
Division V.
Opinion by JUDGE DAVIDSON.
[1] Defendant, Edgar Burton Robinson, appeals from the order of the trial court dismissing his Crim. P. 35(c) motion as untimely. We affirm. [2] In 1977, defendant entered a plea of guilty to first degree sexual assault. He received a two-year deferred sentence. In 1990, defendant filed a Crim. P. 35(c) motion to vacate the conviction. [3] In its opposition brief, the prosecution argued that the motion was untimely pursuant to § 16-5-402, C.R.S. (1986 Repl. Vol. 8A). That statute provides that a person may not “collaterally attack the validity” of a conviction unless the attack is begun within various time spans ranging from six months for petty offenses to no limit for class 1 felonies. The period applicable to first degree assault is three years. [4] The trial court agreed that the motion was untimely, and it was dismissed without a hearing. On appeal, defendant contends that the dismissal was in error because § 16-5-402 does not apply to attacks on convictions filed pursuant to Crim. P. 35. We disagree.I.
[5] As a threshold matter, we address the People’s argument that defendant’s appeal should be dismissed because he may have litigated the merits of this Crim. P. 35(c) claim in another proceeding and has failed to allege specifically that his claims are not duplicative. Although an appeal duplicating an appeal previously denied may be dismissed, People v. Holmes, 819 P.2d 541 (Colo.App. 1991), there is no requirement that a defendant affirmatively assert that the relief sought has not been previously denied, and we find no indication in this record that any such duplicative relief has been considered or denied on appeal.
II.
[6] Whether motions filed under Crim. P. 35 are included in the provisions of § 16-5-402 is a matter of first impression in Colorado. Our supreme court specifically declined to reach this issue in People v. Germany, 674 P.2d 345 (Colo. 1983), because it held that the then current version of the statute was unconstitutional. However, in Moland v. People, 757 P.2d 137 (Colo. 1988), the court specifically stated in a footnote that a defendant’s right to obtain post-conviction review pursuant to Crim. P. 35
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was subject to the requirements of § 16-5-402. While this statement was dictum, we view it as highly instructive.
[7] Additionally, in People v. Fagerholm, 768 P.2d 689 (Colo. 1989), the supreme court upheld the constitutionality of § 16-5-402 in the context of a Crim. P. 35 motion. In People v. Brack, 796 P.2d 49 (Colo.App. 1990), this court also upheld the denial of a Crim. P. 35 motion based upon § 16-5-402, although, in those cases, the applicability of § 16-5-402to such proceedings was not challenged.
A.
[8] In interpreting particular statutory provisions, this court must seek to discern the intent of the General Assembly, looking first to the language of the statute itself, and giving effect to the statutory terms in accordance with their commonly accepted meaning. Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990). The intent of the General Assembly in creating time limitations on collateral attacks, as stated in § 16-5-402(2), C.R.S. (1986 Repl. Vol. 8A), is to avoid litigation of stale claims and to avoid frustration of the statutory provisions directed at repeat, prior, and habitual offenders.
(1965), cert. denied, 383 U.S. 926, 86 S. Ct. 929, 15 L. Ed. 845 (1966). A successful attack on use bars only the use of the prior conviction in that incidental proceeding; the conviction itself remains. Watkins v. People, 655 P.2d 834 (Colo. 1982). The successful attack on use does not prevent relitigation of the issue of the validity of the subject conviction in a subsequent proceeding, or even in a Crim. P. 35 attack of the same conviction. Wright v. People, 690 P.2d 1257 (Colo. 1984). [12] However, although avenues for collateral attacks do differ, an attack on the conviction itself has long been considered a collateral attack, whether through Crim. P. 35 or its federal counterpart, 28 U.S.C. § 2255
(1988). See Bales v. People, 713 P.2d 1280 (Colo. 1986) (“a defendant may collaterally attack a prior conviction by either filing a Crim. P. 35(c) motion in the sentencing court or by filing a proper motion to prohibit the prosecution from using evidence of a prior conviction in a pending criminal prosecution”); U.S. v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232
(1952); U.S. v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) U.S. v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). See also People v. Fagerholm, supra, (Vollack, J., dissenting) (“[defendant] collaterally attacked both prior convictions under Crim. P. 35”). Also, writs of habeas corpus, of which Crim. P. 35 is a modern equivalent, were traditionally considered collateral proceedings. See U.S. v. Hayman, supra. [13] The General Assembly is presumed cognizant of judicial precedent in a particular area when it enacts legislation in that
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area. Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987). We therefore may assume that it was fully aware of the accepted uses of the term “collaterally attack” as used in the lexicon of criminal law.
[14] Moreover, a common sense reading of the plain language of the statute dictates the conclusion that the General Assembly intended not a technical definition of “collateral,” but its commonly accepted meaning within a criminal law context. “Statutes must be construed so as to effectuate their intent and beneficial purposes, not to defeat them.”Colorado State Board of Medical Examiners v. Saddoris, 825 P.2d 39(Colo. 1992). The purpose of the statute is explicit — to prevent defendants from thwarting the effect of repeat offender statutes and to end rampant relitigation of stale claims. The scope of the statute is sweeping (“no person shall collaterally attack the validity of a [prior conviction] unless . . . .”), and reading the statute as defendant urges would limit it drastically. To the contrary, we must construe a statute to effectuate the legislative intent, Martinez v. Continental Enterprises, 730 P.2d 308 (Colo. 1986), and the intent here is unmistakable. Cf. People v. Fagerholm, supra; Moland v. People, supra.
B.
[15] Defendant argues, however, that even if § 16-5-402 applies to Crim. P. 35 motions, Crim. P. 35(c)(3) provides that one who is aggrieved and claims a right to be released or to have a judgment set aside may file a motion for such relief at any time, and, citing People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978), he contends that such procedural rule takes precedence over a procedural statute. We disagree.
C.
[18] A statute must be construed so as to avoid constitutional infirmities People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979). Defendant argues that the application of Crim. P. 35 motions to § 16-5-402 will render the statute unconstitutional because the statute will conflict with Colo. Const. art. II, § 21, which prohibits any suspension of the writ of habeas corpus. First, we note that although our supreme court did not specifically address the state suspension clause, the court upheld the constitutionality of § 16-5-402 in the context of a Crim. P. 35 motion in People v. Fagerholm, supra.
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only those collateral attacks previously made available by legislative and judicial expansion of the scope of postconviction relief beyond that which is constitutionally mandated.
[20] Third, the General Assembly may impose statutory conditions on state applications for habeas corpus. See People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154 (1972); Stilley v. Tinsley, supra; see also§ 13-45-101, C.R.S. (1987 Repl. Vol. 6A) and § 18-1-410, C.R.S. (1986 Repl. Vol. 8B). And, similar state statutes of limitations on collateral attacks have been upheld as constitutional. See Davis v. State, 443 N.W.2d 707 (Iowa 1989) (state legislature may attach reasonable time limitations to the exercise of state constitutional rights). See also United States v. Randolph, 262 F.2d 10 (7th Cir. 1958), cert. denied, 359 U.S. 1004, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959) (upholds Illinois’ five-year statute of limitations for post-conviction relief). [21] Having considered this jurisprudence, we determine that § 16-5-402
must be construed to include Crim. P. 35 motions within its terms. However, insofar as defendant’s argument raises a claim of facial unconstitutionality, we do not have jurisdiction to decide that issue. Section 13-4-102(1)(b), C.R.S. (1987 Repl. Vol. 6A).
III.
[22] Defendant also contends that the trial court erred in finding that he was not excused for his failure to attack the conviction within the statutory time period. We disagree.
IV.
[24] For the same reason, we reject defendant’s contention that he has been denied equal protection of the law. Defendant’s argument is premised on the assumption that he was barred by a lack of present need from timely filing his postconviction challenge. Specifically, he contends that habitual criminal charges filed against a defendant in June 1989 could be attacked, but not those filed after the July 1 deadline. Since we have determined that defendant was not barred by lack of present need, we also reject his equal protection argument.