v. Taylor ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 13, 2018
2018COA175
No. 17CA0280, People v. Taylor — Criminal Procedure —
Postconviction Remedies — Successive Postconviction
Proceedings
A division of the court of appeals holds that Crim. P.
35(c)(3)(VII) supersedes the rule stated in People v. Naranjo, 738
P.2d 407, 409 (Colo. App. 1987), that a defendant can file a second
Crim. P. 35(c) motion raising new postconviction claims if the
defendant filed an initial Crim. P. 35(c) motion pro se.
COLORADO COURT OF APPEALS 2018COA175
Court of Appeals No. 17CA0280
Arapahoe County District Court No. 05CR1909
Honorable Charles M. Pratt, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Joseph Taylor,
Defendant-Appellant.
ORDER AFFIRMED
Division III
Opinion by JUDGE WEBB
Harris and Welling, JJ., concur
Announced December 13, 2018
Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Lisa A. Polansky Attorney at Law, LLC, Lisa A. Polansky, Boulder, Colorado, for
Defendant-Appellant
¶1 This case is about two bites at the proverbial apple.
Defendant, Christopher Joseph Taylor, appeals the postconviction
court’s order denying his second Crim. P. 35(c) motion. We affirm
because the motion was successive. Answering an undecided
question, we hold that Crim. P. 35(c)(3)(VII) supersedes the rule
stated in People v. Naranjo, 738 P.2d 407, 409 (Colo. App. 1987),
that a defendant can file a second Crim. P. 35(c) motion raising new
postconviction claims if the defendant filed an initial Crim. P. 35(c)
motion pro se.
I. Background
¶2 A jury found defendant guilty of first degree murder,
attempted first degree murder, and assault. On direct appeal, a
division of this court affirmed the judgment of conviction. See
People v. Taylor, (Colo. App. No. 06CA2614, Sept. 9, 2010) (not
published pursuant to C.A.R. 35(f)) (Taylor I).
¶3 Defendant moved for transcripts at state expense to prepare a
Crim. P. 35(c) motion. The postconviction court denied the motion.
¶4 A few months later, defendant filed a pro se Crim. P. 35(c)
motion raising seven claims, most of them asserting that his trial
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counsel had provided ineffective assistance. He also requested the
appointment of postconviction counsel.
¶5 The postconviction court summarily denied defendant’s Crim.
P. 35(c) motion and his request for the appointment of
postconviction counsel. A division of this court affirmed. See
People v. Taylor, (Colo. App. No. 12CA1984, Jan. 16, 2014) (not
published pursuant to C.A.R. 35(f)) (Taylor II). The opinion does not
indicate that defendant appealed the denial of his motion for
transcripts at state expense.
¶6 Defendant then filed a second pro se Crim. P. 35(c) motion,
which he amended. He renewed some of the claims from his first
Crim. P. 35(c) motion and raised new claims. This time, the
postconviction court appointed counsel, who filed a supplemental
motion. The prosecution responded, arguing in part that the new
claims in the second motion were barred as successive.
¶7 The postconviction court issued a written order denying the
second Crim. P. 35(c) motion without a hearing. The court first
held that the claims from defendant’s first Crim. P. 35(c) motion
were barred as successive under Crim. P. 35(c)(3)(VI). But the court
did not bar defendant’s new claims as successive. Instead, the
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court explained that it was “not convinced” that Crim. P.
35(c)(3)(VII) supersedes prior case law holding that a defendant can
raise new postconviction claims in a second Crim. P. 35(c) motion if
the first Crim. P. 35(c) motion was filed pro se. The court denied
the new claims on the merits.
II. Standard of Review
¶8 We review de novo. See People v. Lopez, 2015 COA 45, ¶ 68
(an appellate court reviews de novo a postconviction court’s denial
of a Crim. P. 35(c) motion without a hearing); People v. Bonan, 2014
COA 156, ¶ 26 (an appellate court reviews de novo whether a Crim.
P. 35(c) motion is properly denied as successive). And we may
affirm a district court’s ruling for any reason supported by the
record. People v. Heisler, 2017 COA 58, ¶ 44.
III. Crim. P. 35(c)(3)(VI)
¶9 Starting with the claims in defendant’s second Crim. P. 35(c)
motion that he had raised in his first Crim. P. 35(c) motion,
defendant argues that the claims are not barred as successive
under Crim. P. 35(c)(3)(VI) because they were not “raised and
resolved” in the proceedings on the first Crim. P. 35(c) motion. See
Crim. P. 35(c)(3)(VI) (“The court shall deny any claim that was
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raised and resolved in a prior appeal or postconviction proceeding
on behalf of the same defendant.”). He emphasizes that in
preparing and filing his first Crim. P. 35(c) motion, he was not
represented by counsel and did not have access to the trial
transcripts.
¶ 10 But defendant does not cite, nor are we aware of, any
authority holding that a defendant does not “raise” a claim within
the meaning of Crim. P. 35(c)(3)(VI) merely because the defendant is
pro se or lacks access to trial transcripts. To “raise” a claim means
“to bring [it] up for consideration.” Webster’s Third New
International Dictionary 1877 (2002); see also Black’s Law
Dictionary 1449 (10th ed. 2014) (“[t]o bring [it] up for discussion or
consideration; to introduce or put forward”). Defendant’s first Crim.
P. 35(c) motion addressed seven claims in twenty-two pages of
argument supported by twenty-six pages of exhibits. So, we
conclude that he “raised” those claims in his first Crim. P. 35(c)
motion within the meaning of Crim. P. 35(c)(3)(VI).
¶ 11 And we further conclude that the claims were “resolved” within
the meaning of Crim. P. 35(c)(3)(VI). After all, the postconviction
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court denied the first Crim. P. 35(c) motion in a written order and a
division of this court affirmed. See Taylor II.
¶ 12 For these reasons, we discern no error in the postconviction
court’s ruling that the renewed claims in the second Crim. P. 35(c)
motion are barred as successive under Crim. P. 35(c)(3)(VI). But
whether defendant’s new claims were equally successive presents a
closer question.
IV. Crim. P. 35(c)(3)(VII)
¶ 13 Addressing the new postconviction claims in the second Crim.
P. 35(c) motion, the Attorney General argues that these claims are
barred as successive under Crim. P. 35(c)(3)(VII). Defendant
responds that the claims are not because Crim. P. 35(c)(3)(VII) —
which was added to Crim. P. 35 in 2004 — did not supersede prior
case law holding that a defendant can raise new postconviction
claims in a second Crim. P. 35(c) motion if the first Crim. P. 35(c)
motion was filed pro se. See, e.g., People v. Hubbard, 184 Colo.
243, 248, 519 P.2d 945, 948 (1974); Naranjo, 738 P.2d at 409. We
conclude that these cases have been superseded by Crim. P.
35(c)(3)(VII).
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¶ 14 In Hubbard, the supreme court held that “all allegations
relating to the violation of a defendant’s constitutional rights should
be included in a single Crim. P. 35(b) motion.” Id. at 249, 519 P.2d
at 948. But the supreme court premised that holding on a
defendant being represented by postconviction counsel. It
explained that “without the assistance of counsel, a convicted
defendant would be hard-pressed to assemble into a single Crim. P.
35(b) motion all of the legal arguments which might result in
post-conviction relief.” Id. at 248, 519 P.2d at 948.
¶ 15 In Naranjo, a division of this court applied Hubbard and held
that if a defendant is not represented by counsel when the
defendant files a first Crim. P. 35(c) motion, the defendant may file
a second Crim. P. 35(c) motion raising new postconviction claims.
See 738 P.2d at 409.
¶ 16 Importantly, when Hubbard and Naranjo were decided, the
provision in Crim. P. 35 barring successive postconviction claims
provided as follows: “The court need not entertain a second motion
or successive motions for similar relief based upon the same or
similar allegations on behalf of the same prisoner.” Crim. P. 35(c)(3)
(1987) (emphasis added); Crim. P. 35(b)(2) (1974) (emphasis added).
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Thus, Crim. P. 35(c) barred only claims that had already been
raised in a prior Crim. P. 35(c) motion. It did not bar new
postconviction claims raised for the first time in a second or
subsequent Crim. P. 35(c) motion. Further, the language was
permissive: a court “need not” entertain a successive postconviction
motion. Crim. P. 35(c)(3) (1987); Crim. P. 35(b)(2) (1974).
¶ 17 In 2004, the supreme court added Crim. P. 35(c)(3)(VII), which
differs from the old rule in two ways. First, this provision now bars
postconviction claims that “could have been presented in an appeal
previously brought or postconviction proceeding previously
brought.” Crim. P. 35(c)(3)(VII). Second, the new language is
mandatory rather than permissive: a postconviction court “shall”
deny any such new postconviction claims. Crim. P. 35(c)(3)(VII); see
Willhite v. Rodriguez-Cera, 2012 CO 29, ¶ 17 (“The word ‘shall’
connotes a mandatory requirement.”).
¶ 18 Crim. P. 35(c)(3)(VII) lists five exceptions to the general rule
barring new postconviction claims raised in a second or subsequent
Crim. P. 35(c) motion. But defendant does not argue that any of
those five enumerated exceptions applies. Rather, he merely
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repeats that the rule from Hubbard and Naranjo remains in full
force.
¶ 19 This argument falls short because Crim. P. 35(c)(3)(VII) does
not include an exception codifying Naranjo. If the supreme court
had intended to preserve the rule from Naranjo when it adopted
Crim. P. 35(c)(3)(VII), it could have specifically accounted for a
defendant who filed the first Crim. P. 35(c) motion pro se. Because
it did not do so, we treat that omission as intentional. See Cain v.
People, 2014 CO 49, ¶ 13 (“Under the rule of interpretation
expressio unius exclusio alterius, the inclusion of certain items
implies the exclusion of others.”) (citation omitted); In re Marriage of
Chalat, 112 P.3d 47, 57 (Colo. 2005) (“[W]e must presume that the
General Assembly, having chosen to speak with such exactitude,
did not intend any implied exceptions.”); see also People v. Steen,
2014 CO 9, ¶ 10 (“We employ the same interpretive rules applicable
to statutory construction to construe a rule of criminal procedure.”).
¶ 20 Crim. P. 35(c)(3)(VII) has been in effect throughout this case.
Thus, when defendant filed his first Crim. P. 35(c) motion, he was
on notice that he needed to include all of his postconviction claims
in that Crim. P. 35(c) motion. See Adams v. Sagee, 2017 COA 133,
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¶ 12 (“[T]he state may require pro se defendants in criminal cases to
adhere to procedural rules, though their cases often implicate
constitutional rights.”); cf. People v. McPherson, 53 P.3d 679, 682
(Colo. App. 2001) (A “defendant’s indigence, ignorance of the law,
and lack of legal counsel do not amount to justifiable excuse or
excusable neglect for an untimely filed collateral attack.”).
¶ 21 For these reasons, we reject defendant’s argument that being
pro se when he filed his first Crim. P. 35(c) motion is an exception
to the rule barring a second Crim. P. 35(c) motion raising new
postconviction claims.
¶ 22 Defendant also argues that he should have been allowed to file
a second Crim. P. 35(c) motion raising new claims because, when
he filed his first Crim. P. 35(c) motion, he did not have access to the
trial transcripts. The postconviction court did not address that
argument.
¶ 23 Defendant does not explain how lack of access to the
transcripts prevented him from raising all of his postconviction
claims in his first Crim. P. 35(c) motion. Recall, in his first Crim. P.
35(c) motion, defendant was able to raise seven claims spanning
twenty-two pages without access to transcripts. The lack of
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transcripts is not an enumerated exception under Crim. P.
35(c)(3)(VII), nor is access to the trial transcript a constitutional
right. See Jurgevich v. Dist. Court, 907 P.2d 565, 567 (Colo. 1995)
(stating that “[a] defendant does not have a constitutional right to a
free transcript to search for errors to raise in a collateral attack”).
And the federal circuits have held that lack of access to transcript is
not a basis for equitable tolling. See Lloyd v. Van Natta, 296 F.3d
630, 634 (7th Cir. 2002) (“[T]he other circuits to consider this issue
have held that the unavailability of a transcript does not allow
equitable tolling to excuse an otherwise untimely [habeas] petition.
We find these cases persuasive, and we join our sister circuits in
holding that equitable tolling does not excuse [petitioner’s] late filing
simply because he was unable to obtain a complete trial transcript
before he filed his [habeas] petition.”) (citations omitted).
¶ 24 In the end, we decline defendant’s invitation to read into the
rule exceptions that it does not contain. As written, Crim. P.
35(c)(3)(VII) bars defendant’s new postconviction claims raised for
the first time in his second Crim. P. 35(c) motion.
V. Conclusion
¶ 25 The order is affirmed.
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JUDGE HARRIS and JUDGE WELLING concur.
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