23CA0400 Peo v Pittman 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0400
Arapahoe County District Court No. 01CR3217
Honorable David Karpel, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Emanuel Vernell Pittman,
Defendant-Appellant.
ORDER AFFIRMED
Division I
Opinion by JUDGE WELLING
Schock and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Emanual Vernell Pittman, Pro Se
*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, Emanuel Vernell Pittman, appeals the
postconviction court’s order denying his Crim. P. 35(c) motion. We
affirm.
I. Background
¶ 2 In December 2001, Pittman was charged with sexual assault,
a class 3 felony, and a crime of violence sentence enhancer. He
accepted a plea deal and pleaded guilty to the lesser offense of
attempted sexual assault, a class 5 felony. In December 2002, the
court sentenced him to six years in the Department of Corrections
with a two-year term of mandatory parole. Based on this plea,
Pittman was required to register as a sex offender.
¶ 3 In February 2004, Pittman filed a pro se motion, arguing that
he should be subject to discretionary rather than mandatory parole.
The court granted this motion and amended the mittimus
accordingly. The People challenged the change to Pittman’s
sentence, asking the court to further amend the mittimus to reflect
the court’s original sentence. The court granted the People’s
motion, vacating the amended mittimus and reinstating the original
sentence with mandatory parole in place.
2
¶ 4 In March 2005, Pittman filed a pro se petition under Crim.
P. 35(a) asking the court to reevaluate his February 2004 motion to
amend the mittimus. The postconviction court denied this petition,
and Pittman appealed. On appeal, a division of this court reversed
the order and remanded the case to the postconviction court to
correct the mittimus to reflect that Pittman’s sentence included
discretionary, not mandatory, parole. People v. Pittman, (Colo. App.
No. 05CA1059, Dec. 7, 2006) (not published pursuant to C.A.R.
35(f)). The postconviction court amended the mittimus accordingly
in February 2007.
¶ 5 In October 2010, Pittman filed a pro se motion to vacate the
requirement that he register as a sex offender, arguing that because
he never received an offense-specific evaluation he shouldn’t have
to register.
¶ 6 In January 2011, while the October 2010 motion was still
pending, Pittman filed a Crim. P. 35(a) motion, arguing that his
sentence was illegal for the same reason — namely, that he never
received an offense-specific evaluation.
¶ 7 In September 2011, the postconviction court denied both
motions, noting that the record showed that Pittman had received
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an offense-specific evaluation. Pittman appealed the denial of both
motions, and a division of this court affirmed on the basis that
Pittman’s motions were untimely. People v. Pittman, (Colo. App. No.
11CA2016, Mar. 28, 2013) (not published to C.A.R. 35(f)).
¶ 8 In November 2017, Pittman moved to discontinue his sex
offender registration. The postconviction court denied the motion
because Pittman wasn’t then eligible to discontinue registration. He
filed another motion to discontinue sex offender registration in
February 2022, which the postconviction court again denied
because Pittman was incarcerated and, therefore, wasn’t required to
register until after he was released.
1
¶ 9 In January 2023 — nearly twenty-one years after his
conviction entered in this case — Pittman filed a Crim. P. 35(c)
motion, arguing that his sentence should be vacated because his
plea counsel didn’t tell him he would have to register as a sex
offender after he completed parole, and, therefore, his sentence was
unconstitutional. The postconviction court concluded that this
1
Pittman is currently serving a ninety-six-year habitual criminal
sentence for first degree assault of an at-risk adult in an unrelated
case. See People v. Pittman, (Colo. App. No. 21CA1180, Jan. 18,
2024) (not published pursuant to C.A.R. 35(e)).
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motion was procedurally barred as successive under Crim
P. 35(c)(3)(VII) and denied the motion. This appeal followed.
II. Analysis
¶ 10 Pittman contends that the postconviction court erred by
denying his January 2023 Crim. P. 35(c) motion. Because
Pittman’s motion was untimely and successive, the postconviction
court correctly denied the motion without a hearing.
¶ 11 We review the denial of a postconviction motion without a
hearing de novo. People v. Trujillo, 169 P.3d 235, 237 (Colo. App.
2007).
¶ 12 A defendant has three years to collaterally attack a final
judgment for a class 5 felony. § 16-5-402(1), C.R.S. 2023. “If an
appellate court can determine on the face of the motion, files, and
record in a case that a collateral attack is outside the time limits
specified [in the statute], the appellate court may deny relief on that
basis, regardless of whether the issue of timeliness was raised in
the trial court.” § 16-5-402(1.5); see also People v. Xiong, 940 P.2d
1119, 1119 (Colo. App. 1997). Unless an exception applies, a court
“shall deny any [Crim. P. 35(c)] claim that could have been
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presented in an appeal previously brought or postconviction
proceeding previously brought.” Crim. P. 35(c)(3)(VII).
¶ 13 Pittman’s motion was properly denied as untimely. His
conviction for attempted sexual assault, a class 5 felony, entered in
December 2002. Consequently, Pittman had until December 2005
to timely file a Crim. P. 35(c) motion challenging this conviction,
unless he demonstrated justifiable excuse or excusable neglect.
See § 16-5-402(2)(d). Pittman’s Crim. P. 35(c) motion is therefore
procedurally barred as untimely, and Pittman makes no allegation
of justifiable excuse or excusable neglect to justify the untimeliness.
¶ 14 Second, Pittman’s motion was properly denied as successive.
Generally, postconviction claims that were raised and resolved in a
previous appeal or postconviction proceeding are procedurally
barred unless an exception applies. Crim. P. 35(c)(3)(VI). A
defendant may file an otherwise successive claim in cases where the
claim is either based on (a) evidence not previously discovered
through the exercise of due diligence; or (b) “on a new rule of
constitutional law that was previously unavailable, if that rule has
been applied retroactively by the United States Supreme Court or
Colorado appellate courts.” Id. As noted, Pittman has filed several
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postconviction motions since his conviction entered in December
2002. Because neither of the exceptions to the successiveness bar
applies in this case, Pittman’s Crim. P. 35(c) claim is also
procedurally barred as successive. See Crim. P. 35(c)(3)(VI).
¶ 15 Accordingly, the district court properly denied Pittman’s Crim.
P. 35(c) motion.
III. Disposition
¶ 16 We affirm the postconviction court’s order.
JUDGE SCHOCK and JUDGE TAUBMAN concur.
