People v. Hansen ( 1998 )

Justice ERICKSON

concurring in part and dissenting in part:

I concur in the majority’s conclusion that the trial court erred in setting aside the defendant’s conviction for first degree assault, but disagree with the conclusion that the trial court did not err in granting defendant the right to review his conviction for first degree assault pursuant to Crim. P. 35(c).

During the trial, defendant asserted that the evidence wás insufficient to convict him of the crime charged and that the evidence failed to establish that the assault created a substantial risk of death. Defendant appealed his convictions to the court of appeals, but subsequently filed a motion to dismiss the appeal which was granted in 1994.

Hence, because defendant had an opportunity to review the issues he now asserts in his post-conviction motion on direct appeal and did not pursue that remedy, I would deny further review. In my view, defendant deliberately, or inexcusably, failed to raise the issues which he asserted during the original trial on direct appeal and should not be permitted review pursuant to Crim. P. 35(c).

Defendant’s effort to obtain post-conviction relief is an abuse of process. The trial court should have denied defendant’s Crim. P. 35(c) motion for post-conviction relief. See People v. Rodriguez, 914 P.2d 230 (Colo.1996) (ABA, Standards for Criminal Justice, Standard 22-6.1 (2d. ed.1986) was approved). That standard is applicable here, and thus, I would reverse the district court’s order granting post-conviction relief and remand with directions to reinstate the original judgment of conviction and sentence.