City & County of Denver v. Rhinehart , 1987 Colo. App. LEXIS 738 ( 1987 )

CRISWELL, Judge.

Defendant, Keith Rhinehart, appeals the order of the Denver Superior Court denying his motion to vacate his previous convictions of municipal ordinance violations. We affirm.

In 1954, after trial in the Denver Municipal Court, defendant was convicted of violating three Denver municipal ordinances that prohibited: (1) perpetrating a fraudulent scheme, trick, or device; (2) obtaining funds through false pretenses; and (3) engaging in fortune telling, palmistry, or clairvoyance. He appealed to the Denver Superior Court, was tried de novo by a jury, and was again convicted of all three charges. He appealed the judgments of conviction to the Colorado Supreme Court which affirmed without written opinion. Rhinehart v. City & County of Denver, 133 Colo. 137, 292 P.2d 345 (1956). The defendant paid his $300 fine, served his 180-day jail sentence, and thereafter left Colorado.

In 1984, he filed a motion with the Superior Court, grounded upon the provisions of Crim.P. 35, seeking a vacation of those convictions and a new trial upon the charges. He claimed that his 1954 trial resulted in the various constitutional deprivations outlined in Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958). His motion asserted that he had a present need for such relief, because the convictions had been “injurious to him in his professional career” and had otherwise caused him irreparable injury.

At the hearing upon his motion, defendant drew attention to certain of the procedures followed during the course of his trial, including utilization of the “preponderance of the evidence,” rather than the “beyond a reasonable doubt,” standard for the City’s burden of proof. In addition, he testified that he was a minister of the Aquarian Foundation and that his convictions had been a “continuous source of harassment” for himself and members of his congregation by people who knew of those convictions. Neither in the trial court nor here, however, has defendant pointed to any legal sanction, restriction, or disadvantage which he has suffered, or which he might suffer, as a result of those convictions.

The trial court, relying on C.R.C.P. 60(b) and its reference to “excusable neglect,” noted that defendant’s evidence had established only that his convictions had been a continual source of embarrassment to him, and it ruled that such evidence failed to justify defendant’s delay in seeking relief. It denied defendant’s Crim.P. 35 motion.

Thereafter, defendant filed a motion for reconsideration, accompanied by his affidavit. This motion placed reliance upon the provisions of § 16-5-402, C.P.S. (1986 Repl. Vol. 8A), which allows a collateral attack upon a conviction of a criminal statute beyond the time period otherwise established for such actions, where the failure to seek such relief is the result of justifiable excuse or excusable neglect. His affidavit explained that he had consulted with a number of attorneys over the years and, until shortly before he filed his motion, he had consistently been advised that he could not successfully seek to have his convictions vacated. The trial court denied that motion.

In this court, defendant contends that the trial court erred in denying this motion for reconsideration. Thus, he seeks an order from this court directing the Superior Court to re-open the hearing, so that he might make a “full record” as to the reasons for his delay in seeking the relief he sought from that court. However, we conclude that, in any event, defendant’s evidence failed to establish a sufficient present need for the vacation of his convictions; consequently, we decline to enter such an order.

At all stages in these proceedings, both in the trial court and here, the parties have assumed that there is some postconviction relief, other than that which might be obtained by means of a direct appeal, which is available to a person who has been convicted of a municipal ordinance violation. Without deciding that question, we shall make the same assumption. Further, we shall also assume, purely arguendo, that the procedure for obtaining such relief is governed by the provisions of Crim.P. 35(c). But see Crim.P. 54(a).

The test for determining whether a person, who has completed his sentence, may obtain postconviction relief is set forth in IV ABA, Standards for Criminal Justice, Standard 22-2.4(c) (2d ed. 1980). People v. Muniz, 667 P.2d 1377 (Colo.1983). That Standard provides that:

“(c) Where an applicant has completed service of a challenged sentence and belatedly seeks postconviction relief, he or she can be charged with the burden of showing present need for such relief. A sufficient showing of present need is made where:

(i) an applicant is facing prosecution or has been convicted and the challenged conviction or sentence may be, or has been, a factor in sentencing for the current offense;

(ii) an applicant may be disadvantaged in obtaining parole under a later sentence; or

(iii) an applicant is under a civil disability resulting from the challenged conviction and preventing the applicant from a desired and otherwise feasible action or activity.”

Defendant’s evidence makes it apparent that his situation does not fall into any of the three categories described in this Standard.

Moreover, even if we were to assume that circumstances other than those described in the Standard would suffice to show a present need for relief, we are unaware of any situation in which a present need for relief was found, unless some legal sanction, restriction, or disadvantage had resulted, or could have resulted, from the conviction. See People v. Muniz, supra (conviction being considered for sentence enhancement purpose in subsequent case); People v. Salvador, 189 Colo. 181, 539 P.2d 1273 (Colo.1975) (defendant on parole for challenged conviction); People v. Bravo, 692 P.2d 325 (Colo.App.1984) (conviction hindering commutation of sentence under subsequent conviction); People v. West, 42 Colo.App. 217, 592 P.2d 22 (1979) (Texas statute required conviction to be considered in determining parole eligibility).

In the most recent case decided by this court, People v. Moland, 721 P.2d 1214 (Colo.App.1986) (cert, granted July 7,1986), we initially grounded a determination that a present need might exist to set aside a conviction because of the pendency of a habitual criminal count based upon the challenged conviction; however, when that count was later dismissed, we dismissed the defendant’s appeal from a denial of his Crim.P. 35(c) motion on the grounds of mootness.

While we are not prepared to delineate the precise extent of the concept of present need, we do conclude that something more than mere harassment by others is required to set aside 30-year-old convictions for the violation of municipal ordinances.

The order of the trial court is affirmed.

PIERCE, J., concurs. TURSI, J., dissents.