22CA2160 Peo v Curtis 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2160
Adams County District Court No. 09CR2309
Honorable Roberto Ramirez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Andrew Curtis,
Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE HARRIS
Brown and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Erin Hunn, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
1
¶ 1 Defendant, William Andrew Curtis, appeals the district court’s
order summarily denying his third postconviction motion. We
affirm.
I. Background
¶ 2 In 2010, a jury convicted Curtis of sexual assault under
section 18-3-402(1)(a), C.R.S. 2010. The trial court sentenced him
to twelve years to life in prison and, after considering an evaluator’s
recommendation and making factual findings, designated him a
sexually violent predator (SVP).
¶ 3 On direct appeal, Curtis challenged his conviction but not his
SVP designation. A division of this court affirmed his conviction.
See People v. Curtis, (Colo. App. No. 10CA2537, May 16, 2013) (not
published pursuant to C.A.R. 35(f)) (Curtis I).
¶ 4 Thereafter, Curtis filed several postconviction motions seeking
reversal of his SVP designation.
¶ 5 In 2015, Curtis filed a pro se Crim. P. 35(c) motion, which was
later supplemented by appointed counsel. He asserted, among
other claims, that the trial court erred by designating him an SVP
and that trial counsel was ineffective for failing to challenge the
designation at sentencing. After a hearing on several of Curtis’s
2
claims, including the SVP claim, the postconviction court denied
the Rule 35(c) motion.
¶ 6 On appeal, the division addressed both the substantive claim
— that the evidence did not support the trial court’s SVP finding —
and the ineffective assistance of counsel claim. People v. Curtis, slip
op. at ¶¶ 38-45 (Colo. App. No. 18CA1299, Apr. 1, 2021) (not
published pursuant to C.A.R. 35(e)) (Curtis II). The division
concluded that, contrary to Curtis’s argument, the record supported
a finding under People v. Gallegos, 2013 CO 45, that Curtis had
established a relationship with the victim primarily for the purpose
of sexual victimization. Curtis II, No. 18CA1299, ¶¶ 38-41. It
therefore determined that the trial court had not erred by
designating him an SVP. Id. And in light of the record support for
the designation, the division rejected Curtis’s argument that
counsel had provided ineffective assistance at sentencing. Id. at
¶¶ 42-45.
¶ 7 Then, in 2022, Curtis filed a second pro se postconviction
motion, this time under Crim. P. 35(a), again alleging that the trial
court had erred by designating him an SVP. The postconviction
court construed the motion as a Rule 35(c) motion, see People v.
3
Baker, 2017 COA 102, ¶ 14 (a defendant must challenge an SVP
designation under Crim. P. 35(c), not Crim. P. 35(a)), rev’d on other
grounds, 2019 CO 97M, and denied it as untimely.
¶ 8 A month after the denial of his Crim. P. 35(a) motion, Curtis
filed the current pro se motion, styled as a C.R.C.P. 60(b) motion to
set aside the trial court’s SVP designation. The postconviction court
construed the motion as a Crim. P. 35(c) motion and denied it as
untimely and successive. Curtis filed a motion for reconsideration,
which the court also denied.
II. Analysis
¶ 9 Curtis contends that the court erred by denying his Rule 60(b)
motion. Reviewing de novo, see People v. Cali, 2020 CO 20, ¶ 14,
we disagree.
¶ 10 As an initial matter, to the extent Curtis maintains that a
C.R.C.P. 60(b) motion is a cognizable vehicle for challenging an SVP
designation, that argument fails. A postconviction challenge to an
SVP designation must be brought under Crim. P. 35(c), as a
collateral attack on the criminal judgment. Baker, ¶¶ 18-24. And
because a criminal rule governs postconviction challenges to an
SVP designation, the civil rules of procedure do not apply. See
4
Crim. P. 57(b) (explaining that the court should “look to the Rules of
Civil Procedure . . . if no Rule of Criminal Procedure” applies).
Thus, we agree with the postconviction court that Curtis’s motion
must be construed as a Crim. P. 35(c) motion. See, e.g., DePineda
v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (resolution of a
postconviction motion turns on the substantive issues raised, not
on the motion’s label).
¶ 11 Rule 35(c) claims are subject to procedural bars. As relevant
here, subject to certain exceptions, the court must deny any claim
that is successive. A claim is successive if it was raised and
resolved in a prior appeal or postconviction proceeding, see Crim. P.
35(c)(3)(VI), or if it could have been raised in a prior proceeding but
was not, see Crim. P. 35(c)(3)(VII).
¶ 12 Curtis contends that his motion is not successive because the
trial court did not consider whether he had established a
relationship with the victim for the primary purpose of sexual
victimization. He says he could not have raised that argument on
direct appeal because the supreme court did not clarify the
definition of the “established a relationship” prong of the SVP test
until 2013, when it decided Gallegos. And, he argues, the
5
postconviction court did not make a specific finding on that prong
either, so the issue has never been resolved.
¶ 13 Even accepting all of that as true, the argument still fails. On
appeal of the denial of Curtis’s initial Rule 35(c) motion, the division
considered and fully resolved his claim that, under Gallegos, he was
not an SVP because the evidence did not support the “established a
relationship” criterion. See Curtis II, No. 18CA1299, slip op. at
¶¶ 39, 41. Thus, the claim was raised and resolved in a prior
postconviction proceeding. See DePineda, 915 P.2d at 1281 (“[A]
defendant is prohibited from using a proceeding under Crim. P. 35
to relitigate issues fully and finally resolved in an earlier appeal.”).
¶ 14 Under Crim. P. 35(c)(3)(VI), a claim that has been raised and
resolved can only proceed if it is based on newly discovered
evidence or a new constitutional rule that applies retroactively.
Crim. P. 35(c)(3)(VI)(a), (b). Curtis does not argue that his claim
satisfies one of these exceptions.
¶ 15 Instead, he argues that to the extent the claim was resolved by
Curtis II, that decision was wrongly decided. We reject that
argument under the law of the case doctrine.
6
¶ 16 The law of the case doctrine contains two branches, analyzed
differently depending on whether the prior law of the case involves
the court’s own rulings or the rulings of a higher court. See Owners
Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 23.
When the court’s own rulings are at issue, the doctrine, though
discretionary, expresses the practice of courts generally to “refuse to
reopen what has been decided.” People v. Morehead, 2019 CO 48,
¶ 10 (quoting People ex rel. Gallagher v. Dist. Ct., 666 P.2d 550, 553
(Colo. 1983)). Thus, courts ordinarily follow their prior rulings
unless the ruling is no longer sound due to changed conditions.
See Stockdale v. Ellsworth, 2017 CO 109, ¶ 37. When a higher
court’s rulings are at issue, the doctrine — known as the mandate
rule in those circumstances — is not discretionary. See Owners
Ins. Co., ¶ 24. Under the mandate rule, the holdings of an appellate
court become the law of the case, which a district court must follow
on remand. Id.
¶ 17 Therefore, in reviewing Curtis’s latest postconviction motion,
the postconviction court was required to follow the Curtis II
division’s holding that the record supported Curtis’s SVP
designation. And although we could depart from the division’s prior
7
holding, we see no reason to do so, as the legal landscape has not
changed since that decision.
¶ 18 Accordingly, we conclude that Curtis’s postconviction motion
was successive, and the postconviction court properly denied it.
III. Disposition
¶ 19 The order is affirmed.
JUDGE BROWN and JUDGE LUM concur.
