22CA1725 Peo v Porter 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1725
City and County of Denver District Court Nos. 89CR207, 89CR208 & 89CR209
Honorable Christopher J. Baumann, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Reginald M. Porter,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUSTICE MARTINEZ*
Lipinsky and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Defendant, Reginald M. Porter, appeals the postconviction
court’s denial of his Crim. P. 35(c) motion. We affirm.
I. Background
¶ 2 The relevant facts giving rise to this case are set forth in the
opinion resolving Porter’s appeal of the orders denying his first two
Crim. P. 35(c) motions, People v. Porter, (Colo. App. No. 97CA0586,
May 27, 1999) (not published pursuant to C.A.R. 35(f)) (Porter I).
In 1988, the prosecution filed five separate
petitions alleging that defendant, then a
juvenile, had committed numerous acts which
if committed by an adult would constitute
felonies. The prosecution also filed five
accompanying motions to transfer jurisdiction
over the cases to the district court.
On Tuesday, January 17, 1989, defendant
appeared in juvenile court with his parents
and counsel. A minute order entered that
same day in each of defendant’s five cases
reads as follows: “Disposition reached.
Motion to transfer has been confessed by
defendant. . . . Motion granted. Cases to be
transferred to district court as requested.
Bond continued.”
On Monday, January 23, 1989, the parties
appeared before a district court judge. That
judge, however, refused to accept jurisdiction
over the transferred cases because the minute
orders were unsigned and because, in her
view, they did not contain a sufficient
explanation of the basis for the transfer orders.
2
On Tuesday, January 24, 1989, the
prosecution filed felony informations in district
court based on the same acts alleged in the
delinquency petitions. On the face of each
information the following statement was
included: “Juvenile is 17 years of age. Petition
was filed in juvenile ct. with motion to transfer.
Juvenile waived jurisdiction. Case transferred
to Denver District Ct.” A different district
court judge accepted the informations as filed
on that same day.
On February 15, 1989, defendant appeared
with counsel and pled guilty to an added count
of first degree sexual assault in one case and
two counts of aggravated robbery (one count in
each of two other cases). In exchange, the
prosecution stipulated to concurrent sentences
for the two aggravated robbery convictions and
moved to dismiss all remaining counts as well
as all of the charges in the other two
transferred cases.
The trial court accepted defendant’s guilty
pleas in accordance with the parties’
agreement and sentenced defendant to 16
years in the custody of the Department of
Corrections on the sexual assault conviction
with lesser concurrent sentences for the two
aggravated robbery convictions.
Porter I, No. 97CA0586, slip. op. at 1-2.
¶ 3 In 1992, Porter filed his first Crim. P. 35(c) motion, which
postconviction counsel supplemented in 1995. Porter alleged
ineffective assistance of plea counsel and moved to withdraw his
3
guilty pleas, claiming that he was improperly advised of the
consequences of his pleas and had erroneously believed he would
be sentenced as a juvenile. At an evidentiary hearing, the
postconviction court denied the motion but permitted Porter to file a
second Crim. P. 35(c) motion regarding a jurisdictional issue that
was raised during the hearing.
¶ 4 In 1997, Porter’s postconviction counsel filed the second Crim.
P. 35(c) motion. Porter moved to vacate his pleas and sentences,
arguing that the district court “was without jurisdiction over [him]”
because the juvenile cases were never properly transferred to the
district court. Porter argued that the motion was not time barred
under section 16-5-402, C.R.S. 2023, because he was asserting a
jurisdictional claim. At a non-evidentiary hearing, postconviction
counsel argued that the minute order acknowledging Porter’s
confession of the motions to transfer and transferring the cases to
district court did not qualify as a proper juvenile court order for
transfer under section 19-2-806, C.R.S. 1989.
1
At the end of the
hearing, the postconviction court denied the motion, finding that
1
Section 19-2-806 is now codified at section 19-2.5-802, C.R.S.
2023.
4
the minute order constituted a proper written order for transfer and
consequently, the district court obtained jurisdiction.
¶ 5 Porter appealed both orders. See Porter I. The division
dismissed the appeal of the order denying the 1992 motion because
the time to appeal had passed. Id. at 6-7. The division affirmed the
postconviction court’s denial of the 1997 motion, holding that “the
dispositive question [wa]s whether th[e] minute orders [entered on
January 17, 1989,] were statutorily sufficient to transfer
jurisdiction to the district court.” Id. at 3-4.
[There is] no merit to defendant’s claim that
the juvenile court’s transfer order was deficient
because the court did not conduct a transfer
hearing and consider the statutory list of
factors which must be considered when a
juvenile court is deciding whether to grant a
transfer petition.
. . . .
Here, defendant appeared at a juvenile court
hearing and confessed the petitions to
transfer, thereby essentially stipulating to the
existence of factors sufficient to warrant
transfer. This was sufficient to meet the
procedural requirements for transfer set forth
in the statute.
Id. at 4-5. The mandate was issued on November 5, 1999, following
the supreme court’s denial of certiorari.
5
¶ 6 In 2001, Porter filed a Crim. P. 35(a) motion to correct an
illegal sentence, alleging that the district court imposed a
mandatory term of parole not contemplated by the sentencing
statutes at the time. The postconviction court granted the motion
and amended the mittimus to correct the period of parole.
¶ 7 In 2002, Porter discharged his sentence.
¶ 8 In 2004, Porter was convicted of multiple offenses in Gilpin
County and was adjudicated a habitual criminal based on the 1989
II), rev’d, 2015 CO 34. Porter challenged the habitual charges,
arguing that the 1989 convictions were entered without jurisdiction
because the cases were not properly transferred from juvenile court.
Id. at 24. The district court agreed and dismissed the habitual
charges. Id. at ¶¶ 4, 24-25. A division of this court reversed the
court’s decision, finding that collateral estoppel barred Porter from
relitigating the jurisdictional issue that was resolved in Porter I.
Porter II, ¶ 28. Nonetheless, the division found that double
jeopardy barred reinstatement of the habitual charges. Id. at ¶ 29.
The supreme court reversed the division’s double jeopardy decision
and reinstated the habitual charges, assuming without deciding
6
that the division was correct in its decision regarding collateral
estoppel. People v. Porter, 2015 CO 34, ¶ 30 & n.2 (Porter III). On
remand, Porter was again adjudicated a habitual criminal. People
¶ 9 In 2021, Porter filed the Crim. P. 35(c) motion at issue here
and later filed a supplement to the motion. In his motions, Porter
asserted that the district court lacked subject matter jurisdiction
over his 1989 cases because he could not have waived the juvenile
court’s jurisdiction without a transfer hearing. Postconviction
counsel was appointed and filed a supplemental motion, largely
adopting the arguments in Porter’s pro se motions. Counsel also
asserted an ineffective assistance of counsel claim and requested a
sentence reconsideration under Crim. P. 35(b). In its response, the
prosecution argued that Porter’s claims were successive, time
barred, and moot.
¶ 10 The postconviction court denied the motion without a hearing.
The court found that (1) Porter’s jurisdictional claim was
successive; (2) his ineffective assistance of counsel claim was time
barred; and (3) his Crim. P. 35(b) claim was “without basis.”
7
II. Analysis
¶ 11 Porter contends that his jurisdictional claim is not successive
because it is grounded in subject matter jurisdiction, unlike his
previous jurisdictional claim, which he argues was based on the
absence of personal jurisdiction. In addition, Porter contends that
his ineffective assistance of counsel claim is not time barred
because the time bar contains an exception for convictions entered
without jurisdiction. Because we conclude that Porter’s previous
claim challenged the subject matter jurisdiction of the court, we
disagree with both contentions.
¶ 12 Before addressing Porter’s arguments on appeal, we note that
he has abandoned the other claims in his motion by not pursuing
2021 CO 83.
A. Standard of Review
¶ 13 We review de novo the denial of a Crim. P. 35(c) motion
¶ 14 A postconviction court may deny a Crim. P. 35(c) motion
without a hearing “if the motion, files, and record clearly establish
that the defendant is not entitled to relief; if the allegations, even if
8
true, don’t provide a basis for relief; or if the claims are bare and
conclusory in nature and lack supporting factual allegations.” Id.
at ¶ 8.
B. Subject Matter Jurisdiction
¶ 15 A Crim. P. 35(c) claim that was raised and resolved, or could
have been raised, in a prior appeal or postconviction proceeding
must be denied as successive unless an enumerated exception
applies. Crim. P. 35(c)(3)(VI)-(VII); see People v. Houser, 2020 COA
128, ¶ 15. Porter argues that his jurisdictional claim is not
successive because the trial court and the court of appeals
previously ruled on the issue of personal jurisdiction, and his
current motion raises a claim of subject matter jurisdiction. We
disagree with Porter’s characterization of his previous jurisdictional
argument and the grounds on which the courts resolved it.
¶ 16 Subject matter jurisdiction concerns a court’s authority to
hear and determine the particular type of case before it. People v.
Sandoval, 2016 COA 57, ¶ 45. It “must be properly invoked before
the district court can act . . . by the filing of a legally sufficient
complaint, information, or indictment.” People v. Sims, 2019 COA
66, ¶ 15. “By contrast, personal jurisdiction involves a court’s
9
authority over a particular individual” and is conferred by a
defendant’s physical presence in court. Sandoval, ¶ 46.
¶ 17 There has never been a dispute over Porter’s physical presence
in court, and therefore no dispute over personal jurisdiction.
Rather, Porter has always argued that the district court lacked
authority to enter the judgment of conviction because his cases
were not properly transferred from juvenile court. This is an issue
Juvenile Court’s authority to entertain [a] defendant’s case and the
Denver District Court’s lack of authority to do so is not a question
of personal jurisdiction” but rather one of subject matter
jurisdiction.). Although the 1997 motion generally stated that the
district court “was without jurisdiction over Mr. Porter,” Porter
specifically argued in such motion that the district court lacked
authority to hear Porter’s cases because the transfer from juvenile
court to district court was procedurally defective. Despite Porter’s
assertion to the contrary, the division in Porter I did not distinguish
between personal and subject matter jurisdiction in its analysis.
Nonetheless, the division could not have considered personal
jurisdiction when there was no dispute that Porter was brought
10
before the district court, which alone is sufficient to confer personal
jurisdiction. See id. at ¶ 54 (concluding that the district court’s
subject matter jurisdiction was at issue based, in part, on the
finding that “this is not a case where the Denver District Court
lacked jurisdiction over defendant’s person — there is no dispute
that he was brought before the court”).
¶ 18 Because Porter argued in his original postconviction claim that
the court lacked subject matter jurisdiction to enter the 1989
convictions, and the division resolved that issue in Porter I, his
latest postconviction claim regarding subject matter jurisdiction is
successive.
C. Ineffective Assistance of Counsel
¶ 19 Crim. P. 35(c) claims are subject to section 16-5-402, which
provides that, in all cases involving felony offenses other than class
1 felonies, a collateral attack must be brought within three years of
the date of conviction. § 16-5-402(1). A defendant may only pursue
a Crim. P. 35(c) motion outside the three-year period if a statutory
exception applies. § 16-5-402(2). One such exception is when “the
court entering judgment of conviction . . . did not have jurisdiction
over the subject matter of the alleged offense.” § 16-5-402(2)(a).
11
¶ 20 If the defendant did not file a direct appeal of the judgment —
as is the case here — “a conviction occurs when the trial court
enters judgment and sentence is imposed.” People v. Collier, 151
P.3d 668, 671 (Colo. App. 2006). Porter was originally sentenced on
April 6, 1989, which permitted him to file Crim. P. 35(c) claims on
or before April 6, 1992. Porter argues this period was tolled
because his Crim. P. 35(a) motion was granted on January 29,
2001. But even assuming that it was, and his new deadline was
January 29, 2004, he filed the current motion in March 2021, more
than seventeen years too late. Porter contends that he is exempted
from this deadline based on his first claim that the court lacked
jurisdiction to enter his 1989 convictions. Because we have
affirmed the denial of that claim, Porter’s argument for an exception
to the time bar fails.
¶ 21 We therefore conclude that Porter’s ineffective assistance claim
is time barred.
III. Disposition
¶ 22 The order is affirmed.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.
