22CA1618 Peo v Germain 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1618
Mesa County District Court No. 11CR128
Honorable Gretchen B. Larson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Germain,
Defendant-Appellant.
APPEAL DISMISSED
Division VI
Opinion by JUDGE BERNARD*
Lipinsky and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Gregory Lansky, Alternate Defense Counsel, Aurora, 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.
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¶ 1 Defendant, William Germain, appeals the postconviction
court’s decision denying his Crim. P. 35(a) motion to correct an
illegal sentence. We dismiss his appeal as moot.
I. Background
¶ 2 In 2011, defendant pled guilty to attempted sexual assault on
a child, a class 5 felony. The trial court sentenced him to probation
for eight years, with four years of that sentence to be served in a
community corrections facility as a condition of his probation.
¶ 3 Defendant escaped seventeen days after entering the
residential program at the community corrections facility. The
prosecution charged him with violating his probation in this case
and the class 3 felony of escape in a separate case. The prosecution
eventually charged him with the class 5 felony of stalking in a third
case. All these cases were resolved in a plea disposition in which he
admitted to violating his probation in this case, and he pled guilty
to the charges in the second and third cases. In exchange for the
prosecution’s agreement not to pursue habitual criminal charges,
the new plea agreement contained a stipulated controlling sentence
of eighteen years in prison.
2
¶ 4 More specifically, in November 2012, the trial court found that
defendant’s two prior felony convictions and his commission of new
felony offenses after escaping from the community corrections
facility justified a sentence in the aggravated range on the
attempted sexual assault on a child charge. The court resentenced
him to five years in prison to run concurrently with a five-year
prison sentence for stalking and consecutively to a thirteen-year
prison sentence for escape.
¶ 5 In October 2021, defendant filed a pro se Crim. P. 35(a) motion
in which he argued that he had been illegally sentenced to an
aggravated term of five years in prison on a charge for which the
maximum prison term was three years. Five days later, he filed a
second Crim. P. 35(a) motion in which he argued that his original
four-year community corrections sentence and subsequent five-year
prison resentence constituted a “double illegal sentence,” and he
asked for an adjustment to his “original sentence.”
¶ 6 The postconviction court appointed postconviction counsel,
who filed a supplemental motion asserting that defendant’s original
four-year community corrections sentence — which, recall, was a
condition of probation — was illegal because (1) it exceeded the
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presumptive range for a class 5 felony; and (2) the trial court did
not make any factual findings to support an aggravated sentence.
Counsel argued that the presumptive range for a direct sentence to
community corrections under section 18-1.3-401, C.R.S. 2023, was
also applicable to defendant’s sentence to community corrections as
a condition of probation under section 18-1.3-301(b), C.R.S. 2023.
¶ 7 In its response to the Crim. P. 35(a) motion, the prosecution
submitted that the issue was moot because, after defendant had
escaped, he entered into a new plea disposition and the trial court
sentenced him pursuant to that disposition.
¶ 8 In his reply, defendant responded that the issue was not moot
because he was still suffering the consequences of his illegal
sentence: he was serving the prison term for the escape conviction
while he was also serving the illegal sentence described in the
previous paragraph. He further asserted that, if the court were to
correct his illegal sentence relying on Crim. P. 35(a), the deadline
for filing a Crim. P. 35(c) motion would be renewed and “there [was]
an argument that [his] related escape sentence was illegal if the
sentence in this matter is void.” Finally, defendant contended that
his claim fell within the exception to mootness that permits review
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of otherwise moot issues that are capable of repetition yet evade
review because Colorado courts had not yet addressed whether
presumptive sentencing ranges under section 18-1.3-401 apply to
sentences to community corrections as a condition of probation.
¶ 9 The postconviction court agreed with the prosecution, and it
denied the Crim. P. 35(a) motion as moot.
¶ 10 On appeal, defendant contends that the postconviction court
erred by denying his motion, maintaining that his original four-year
community corrections sentence as a condition of probation was
illegal.
¶ 11 To the extent that defendant raised additional claims in his
motion that he has not pursued on appeal, we conclude that he has
abandoned them. See People v. Ortega, 266 P.3d 424, 428 (Colo.
App. 2011).
II. Mootness
¶ 12 Relying on People v. Fritz, 2014 COA 108, the prosecution
asserts that defendant’s appeal is moot because his sentence to
community corrections was vacated when the trial court
resentenced him under the new plea disposition. We agree.
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A. Standard of Review and Applicable Law
¶ 13 We review de novo whether an appeal is moot. Id. at ¶ 20. An
appeal is moot if granting relief would have no practical effect on an
actual or existing controversy. Id. at ¶ 21. When evaluating
whether a contention is moot in the context of a case such as this
one, we must consider both the direct and collateral consequences
of a conviction. Id. at ¶ 21; see Moland v. People, 757 P.2d 137, 139
(Colo. 1988)(“[A] criminal case is moot only if it is shown that there
is no possibility that any collateral legal consequences will be
imposed on the basis of the challenged conviction.” (quoting Sibron
v. New York, 392 U.S. 40, 57 (1968)). “Whether collateral
consequences preclude an issue from being deemed moot turns on
showing the reasonable possibility of such consequences.” People
In Interest of C.G., 2015 COA 106, ¶ 16. “[T]he standard requires a
demonstration of more than an abstract, purely speculative injury,
but does not require proof that it is more probable than not that the
prejudicial consequences will occur.” Id.
¶ 14 When a trial court imposes a new legal sentence after a
defendant enters into a new plea agreement, and the defendant’s
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allegedly illegal sentence has been vacated, “the new legal sentence
necessarily supersedes the original sentence.” Fritz, ¶ 23.
B. Analysis
¶ 15 Defendant admitted that he had violated the terms of his
probation, and he agreed to a new plea disposition, stipulating that
he would receive a new sentence for attempted sexual assault on a
child. For that crime, the court resentenced him to a five-year
prison term, which was a legal sentence for the following reasons.
¶ 16 The presumptive sentencing range for a class 5 felony is one to
three years imprisonment. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2023.
The presence of extraordinary mitigating or aggravating
circumstances permits the court to impose six months to six years
imprisonment. § 18-1.3-401(6). The trial court’s five-year sentence
was based on a finding of aggravating circumstances.
¶ 17 The new legal five-year sentence for attempted sexual assault
on a child vacated defendant’s original community corrections
sentence as a condition of probation. See Fritz, ¶ 23. Because the
new prison sentence necessarily superseded the original community
corrections sentence, our determination of whether the earlier
sentence was illegal would not have a practical effect on this case.
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See id. Consequently, we conclude that defendant’s illegal sentence
claim is moot.
¶ 18 Defendant also has not shown that a favorable ruling in this
appeal would have significant collateral consequences for him. He
asserts that his appeal is not moot because he retains a “concrete
interest” in the successful outcome of his illegal sentence claim. He
continues that the correction of an illegal sentence would reset the
deadline for filing Crim. P. 35(c) collateral attacks and that “there
can also be an argument that [his] related escape sentence can be
challenged if the sentence in this matter is void.” But, as asserted
on appeal without additional argument, these are “abstract, purely
speculative” claims that do not show that there is a “reasonable
possibility” that the judgment may result in significant collateral
consequences. See C.G., ¶¶ 13, 16.
III. Exception to Mootness
¶ 19 Defendant contends that, should we determine his claim is
moot, we should nonetheless review it under the exception to the
mootness doctrine that allows for review of an issue that is “capable
of repetition yet evading review.” People v. Garcia, 2014 COA 85,
¶ 22. “Issues are capable of repetition when they could, or are
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likely to, reoccur in the future.” Anderson v. Applewood Water
required to complete the legal process will necessarily render each
Credit Mgmt. v. Dist. Ct., 193 Colo. 344, 346, 565 P.2d 1345, 1346
(1977)); see also Romero v. People, 179 P.3d 984, 986 n.2 (Colo.
2007)(electing to review a moot issue under the exception for issues
capable of repetition, yet evading review, “given the relatively short
sentences involved and the length of the appeals process”).
¶ 20 Defendant submits that his claim falls within this exception
because no Colorado appellate court has published an opinion
deciding whether the presumptive ranges in section 18-1.3-401
apply to community corrections sentences that are imposed as a
condition of probation under section 18-1.3-301(b).
¶ 21 Although this issue is arguably capable of repetition in other
cases in which defendants have been sentenced to community
corrections as a condition of probation, it will not evade review.
This claim could be presented for future review — without the
concern that the “time required to complete the legal process will
necessarily render [the] specific challenge moot” — if a trial court
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sentences a defendant to an aggravated term in community
corrections as a condition of probation and if the defendant timely
appeals or if he or she files a timely Crim. P. 35(a) motion.
“Accordingly, we need not decide the issue here, when it would have
no practical effect on an actual controversy.” People v. DeBorde,
we to wait for another case like this one to find its way to us with a
defendant still serving her sentence, we might wait in vain. DUI
sentences are often shorter than the time necessary for appeal and
certiorari review.”).
¶ 22 The appeal is dismissed.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.
