v. Cali , 2018 COA 61 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 3, 2018
2018COA61
No. 15CA2082, People v. Cali — Criminal Procedure —
Postconviction Remedies — Collateral Attack Upon a Criminal
Judgment
A division of the court of appeals considers whether a
defendant is entitled to the benefit of a statutory amendment that
took effect before his conviction was final on appeal even though the
defendant requested the benefit of the amendment in a Crim. P.
35(c) postconviction motion after his conviction became final on
appeal. The division concludes that under People v. Boyd, 2017 CO
2, the statutory amendment that took effect before the defendant’s
conviction was final on appeal deprived the State of the authority to
prosecute the defendant for the offense of which he was convicted.
Although the defendant did not raise the State’s loss of authority to
prosecute him before his conviction became final on appeal, the
division concludes that the defendant could collaterally attack his
conviction on this ground under Crim. P. 35(c)(2)(VI) after his
conviction became final on appeal. The defendant is therefore
entitled to the benefit of the statutory amendment.
COLORADO COURT OF APPEALS 2018COA61
Court of Appeals No. 15CA2082
El Paso County District Court No. 11CR3659
Honorable Barney Iuppa, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Osmundo Rivera Cali,
Defendant-Appellant.
ORDER REVERSED, JUDGMENT VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE ASHBY
Terry, J., concurs
Nieto*, J., dissents
Announced May 3, 2018
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Osmundo Rivera Cali, 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. 2017.
¶1 Defendant, Osmundo Rivera Cali, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion. We apply People v.
Boyd, 2017 CO 2, to conclude that a defendant whose conviction
has been affirmed on direct appeal may nevertheless collaterally
attack that conviction in a postconviction motion on the ground
that the State lost the authority to prosecute his conviction during
the pendency of his direct appeal. We therefore reverse the
postconviction court’s order, vacate Cali’s conviction, and remand
the case with directions.
I. Background
¶2 In 2012, Cali was convicted of theft and theft by receiving,
both class 4 felonies, as well as two habitual criminal counts. The
trial court sentenced him to eighteen years in the custody of the
Department of Corrections.
¶3 In August 2012, Cali directly appealed his convictions,
arguing, among other things, that he could not be convicted of theft
and theft by receiving because both offenses involved the same
stolen property. A division of this court agreed and, in October
2014, vacated his theft conviction while affirming his theft by
1
receiving conviction. See People v. Cali, (Colo. App. No. 12CA1730,
Oct. 2, 2014) (not published pursuant to C.A.R. 35(f)).
¶4 Meanwhile, in June 2013, after Cali had filed his notice of
appeal in the direct appeal and while the appeal was still pending,
the legislature reclassified theft by receiving, as committed by Cali,
to a class 6 felony. Ch. 373, sec. 3, § 18-4-410, 2013 Colo. Sess.
Laws 2197-98 (repealing theft by receiving statute); Ch. 373, sec. 1,
§ 18-4-401, 2013 Colo. Sess. Laws 2195-96 (incorporating
substantive offense of theft by receiving into offense of theft). Cali
did not request the benefit of the amended theft by receiving statute
in his direct appeal. Instead, after his direct appeal became final,
Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant
here, that he was entitled to the benefit of the changed statute.
¶5 The postconviction court denied Cali’s motion without a
hearing. In doing so, it ruled that Cali was not entitled to the
benefit of the changed statute because “the law changed after his
sentence was imposed, his sentence has been affirmed on appeal
and because the ‘new’ Theft [sic] statute was intended to have
prospective, not retroactive, application.”
2
¶6 Cali now appeals the postconviction court’s ruling.1 He argues
that the trial court erred by analyzing his postconviction claim as a
request for retroactive application of the statutory amendment.
Instead, he argues that because the amendment took effect while
his direct appeal was still pending and before his conviction became
final, he is entitled to the benefit of the amendment. We agree.
II. Cali Was Entitled to the Benefit of the Changed Statute
¶7 As the postconviction court acknowledged, whether Cali is
entitled to the benefit of the changed statute is a purely legal
question. We therefore review the postconviction court’s ruling de
novo. See People v. Valdez, 178 P.3d 1269, 1278 (Colo. App. 2007).
¶8 The prosecution argues that “the long-established rule in
Colorado is that the law in effect at the time the offense is
committed is the law that controls both the prosecution and
punishment of the defendant.” It cites People v. Orr, 39 Colo. App.
289, 566 P.2d 1361 (1977), for this rule. But this argument
misconstrues the relevant rule and the holding in Orr. Contrary to
1Cali’s other claims in his pro se Crim. P. 35(c) motion are
unrelated to the statutory amendment and are not before us in this
appeal.
3
the prosecution’s argument, the rule in Colorado, as stated by the
division in Orr, is that “[g]enerally the law in effect at the time the
offense is committed controls; however, if a lesser penalty is enacted
by the legislature before the final disposition of a defendant’s case,
the defendant is entitled to the benefits of the legislative change.”
Id. at 293, 566 P.2d at 1364 (citation omitted).
¶9 This rule originated in People v. Thomas, 185 Colo. 395, 398,
525 P.2d 1136, 1138 (1974), wherein the supreme court held that a
criminal defendant was entitled to the benefit of a statutory change
that took effect after he committed the offense but before his
conviction became final. In doing so, the court said, “[t]he view that
amendatory legislation mitigating the penalties for crimes should be
applied to any case which has not received final judgment finds
substantial support in the common law.” Id.
¶ 10 For decades, “both the supreme court and the court of appeals
have consistently applied the Thomas rule to give convicted criminal
defendants the ‘benefit of amendatory legislation which became
effective at any time before the conviction became final on appeal.’”
People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold,
190 Colo. 136, 137, 543 P.2d 1251, 1252 (1975)), aff’d, 2017 CO 2.
4
While this rule itself is clear, what is not clear is whether its
application implicates retroactivity principles. In other words, it is
not clear whether giving a defendant the benefit of a changed
statute before his or her conviction becomes final on appeal is
retroactive application of the new statute or merely application of
the new statute to a still-pending case. The supreme court’s recent
opinion in Boyd suggests the latter.
¶ 11 Boyd was convicted of possession of a small amount of
marijuana and sentenced. Id. at ¶ 2. But before that conviction
and sentence became final on appeal, an amendment to the state
constitution (Amendment 64) took effect that made it legal to
possess the amount of marijuana that Boyd had been convicted of
possessing. Id. at ¶ 4. A division of this court held that under
Thomas and its progeny, Amendment 64 applied retroactively to de-
criminalize Boyd’s conduct because the amendment took effect
while Boyd’s direct appeal was still pending. Id. at ¶¶ 14-25. Both
the majority and the partial dissent in that division specifically and
thoroughly addressed Thomas and its progeny, along with several
statutes implicating retroactivity principles. Id. at ¶¶ 14-35; id. at
¶¶ 55-86 (Bernard, J., concurring in part and dissenting in part).
5
¶ 12 After granting certiorari, the supreme court took a different
approach. The supreme court majority affirmed that Boyd was
entitled to the benefit of Amendment 64. Boyd, 2017 CO 2, ¶ 10.
But, as the dissent pointed out, the majority did so without
addressing retroactivity principles and without even using the term
“retroactive” in its substantive analysis. Id. at ¶ 11 (Eid, J.,
dissenting) (“The majority carefully avoids using the term
‘retroactive’ (except when it cannot, as in the certiorari question
upon which this court granted).”) (citation omitted). Instead, the
majority held that as of Amendment 64’s effective date, the State
lost the authority to prosecute Boyd’s conviction. Id. at ¶ 9
(majority opinion). Because Amendment 64 deprived the State of its
authority to prosecute Boyd before her conviction became final on
appeal, the majority reasoned that Boyd was entitled to reversal of
that conviction. Id. at ¶ 10.
¶ 13 We understand the supreme court’s holding in Boyd to be that
a convicted defendant is entitled to the benefit of changes to the
State’s prosecutorial authority if those changes take effect before
the conviction and sentence are final on appeal — irrespective of
retroactivity principles. Although Boyd addressed the loss of the
6
State’s prosecutorial authority by constitutional amendment,
nothing in the supreme court’s analysis suggests that the loss of
the State’s prosecutorial authority by statutory amendment would
have any different effect. And in our view, there is no legally
significant difference; the State either has the authority to
prosecute a defendant for a specific offense based on his or her
conduct and impose the specific penalties based on the legislative
classification for that offense or it does not.
¶ 14 Here, the circumstances of Cali’s case are essentially the same
as those in Boyd. At the time of his conviction and sentence, the
theft by receiving statute provided that Cali’s offense was a class 4
felony. But before his conviction and sentence became final on
appeal, that statute was repealed and replaced with a new statute
that classified his offense as a class 6 felony. In other words, before
Cali’s conviction became final, the State lost the authority to
prosecute Cali for committing the class 4 felony of theft by
receiving. Id.
¶ 15 We recognize that the elements of the class 4 felony and the
class 6 felony are identical. But that does not matter. The
Supreme Court, in United States v. Chambers, 291 U.S. 217 (1934),
7
a case upon which our supreme court relied in Boyd, explained that
the State’s authority to prosecute a defendant “necessarily
depend[s] upon the continued life of the statute that the
prosecution seeks to apply.” Id. at 223. The statute classifying
theft by receiving as a class 4 felony died when the amendment took
effect. The State therefore lost the authority to apply that statute to
Cali. That a different statute classifying theft by receiving as a class
6 felony could then be applied to Cali does not change the fact that
the State lost the authority to enforce the statute under which Cali
had been convicted.
¶ 16 Thus, under Boyd and Chambers, Cali could have successfully
requested reversal of his class 4 felony conviction had he done so
during his direct appeal. However, Cali failed to do so. Instead, he
requested this relief in a postconviction motion after his conviction
became final on appeal. Boyd did not address this specific
circumstance. And the prosecution argues that this procedural
difference bars Cali from receiving the benefit of the new statute.
We disagree.
¶ 17 The prosecution seeks to construe Cali’s postconviction claim
as one “essentially seeking relief under section 18-1-410(1)(f)(I),”
8
C.R.S. 2017. This provision authorizes “retroactive application of
[a] changed legal standard” in the interests of justice. § 18-1-
410(1)(f)(I). Relief under this provision is, however, unavailable if a
judgment of conviction has been affirmed on appeal. See § 18-1-
410(1)(f)(II). And Crim. P. 35(c)(1) provides for the same relief under
the same conditions and with the same limitations.
¶ 18 But, as the supreme court made clear in Boyd, it is not
retroactive application of the amendment that entitles Cali to the
benefit of the new statute. Instead, under Boyd, the amended
statute applies to Cali because the State lost the authority to apply
the old statute to him when it was repealed during the pendency of
his direct appeal and before his conviction was final. Because Cali’s
claim was not based on retroactive application of the new statute, it
was not cognizable as a claim for relief under section 18-1-
410(1)(f)(I) or Crim. P. 35(c)(1).
¶ 19 Cali’s postconviction claim sought to reverse his conviction of
the class 4 felony and instead stand convicted of the class 6 felony.
It was therefore cognizable as a collateral attack on the class 4
felony conviction under section 18-1-410(1)(g) and Crim. P.
35(c)(2)(VI). Each of those provisions authorizes a defendant to file
9
a postconviction motion based on “[a]ny grounds otherwise properly
the basis for collateral attack upon a criminal judgment” after that
judgment has been affirmed on appeal. And although Cali could
have raised this issue in his direct appeal, because the statute
changed after he initiated that appeal, the claim was not barred.
See Crim. P. 35(c)(3)(VII)(a) (providing that a court shall deny any
claim that could have been raised in prior appeal except “[a]ny
claim based on events that occurred after initiation of the
defendant’s prior appeal”).
¶ 20 Finally, the dissent argues that allowing Cali to request
application of the changed statute to his case after his conviction
was final on appeal would violate longstanding principles of finality.
We respectfully point out that Crim. P. 35(c)(2)(VI) specifically
authorizes defendants to collaterally attack their convictions on
“[a]ny grounds otherwise properly the basis for collateral attack”
after their convictions are final on appeal. And we are unaware of
any authority stating that the State’s loss of authority to prosecute
a defendant for the offense he was convicted of is an improper
ground on which to collaterally attack a conviction.
10
¶ 21 We therefore conclude that Cali has asserted a timely
postconviction claim under section 18-1-410(1)(g) and Crim. P.
35(c)(2)(VI) that entitles him to reversal of his conviction of class 4
felony theft by receiving. However, because a jury found that he
was guilty of theft by receiving and because that offense is a class 6
felony under the new statute, the trial court must convict him of the
class 6 felony and sentence him accordingly.
III. Additional Authority That Does Not Affect Our Conclusion
¶ 22 Because they have impacted the development of case law in
this area, we make observations about two additional sources of
authority relevant to our conclusion, although the parties did not
raise either. First, we are aware that the supreme court, in People
v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), addressed whether
reducing a defendant’s sentence under a provision of section 18-1-
410 violated the separation of powers doctrine by empowering
courts to grant commutations. Then, as now, the Colorado
Constitution provided that only the governor has the power to grant
“reprieves, commutations and pardons after conviction.” Colo.
Const. art. IV, § 7.
11
¶ 23 The Herrera defendants2 sought postconviction review of their
sentences under a statute that provided for postconviction review if
“there has been a significant change in the law, applied to
[defendant’s] conviction or sentence, [a]llowing in the interest of
justice retroactive application of the changed legal standard.”
Herrera, 183 Colo. at 159, 516 P.2d at 627 (quoting § 40-1-510(1)(f),
C.R.S. 1971 & amended by Ch. 152, sec. 2, § 40-1-510, 1973 Colo.
Sess. Laws 533). The court held that the defendants’ requests for
judicial review of their sentences under this statute were effectively
requests for judicial commutations. Id. at 161-62, 516 P.2d at 628.
Because Colorado’s constitution gives the commutation power
exclusively to the governor, the supreme court denied the
defendants’ requests for review. Id. at 162, 516 P.2d at 629.
¶ 24 We perceive no separation of powers violation resulting from
our conclusion in Cali’s case. Unlike the Herrera defendants, Cali
is not requesting a judicial commutation or reduction of his
sentence. The Herrera court defined the power of commutation as
“the power to reduce punishment from a greater to a lesser
2 Eight cases were consolidated for appeal.
12
sentence.” Id. at 161, 516 P.2d at 628. Cali has not asked for a
reduction of his sentence; he has sought reversal of his class 4
felony conviction. If Cali’s sentence is reduced, it will be because he
will stand convicted of a different class of felony, not because his
sentence was commuted. As discussed above, Cali’s claim is a
collateral attack on his class 4 felony conviction, not a request that
we commute his sentence and leave his conviction intact.
¶ 25 Second, we address section 2-4-303, C.R.S. 2017. That
provision states that
[t]he repeal, revision, amendment, or
consolidation of any statute or part of a statute
. . . shall not have the effect to release,
extinguish, alter, modify, or change in whole or
in part any penalty, . . . either civil or criminal,
which shall have been incurred under such
statute, unless the repealing, revising,
amending, or consolidating act so expressly
provides.
¶ 26 The statutory language appears to contradict the Thomas rule
and our holding that Cali is entitled to the benefit of the new
statute. But the supreme court has explained that the
postconviction review remedies of section 18-1-410 effectively
trump section 2-4-303 in criminal cases. See Noe v. Dolan, 197
Colo. 32, 36 n.3, 589 P.2d 483, 486 n.3 (1979) (“Where a criminal
13
penalty is at issue, this court has consistently adhered to the
principle enunciated in [Thomas] . . . . This result is dictated by the
legislative intent evidenced by the postconviction review remedy
authorized by section 18-1-410(1)(f) . . . .”) (addressing retroactive
application of a changed legal standard).
¶ 27 More importantly, the supreme court concluded in Boyd that
when the State loses the authority to prosecute a defendant’s
conviction before that conviction is final on appeal, the defendant is
entitled to reversal of that conviction. As discussed above, we see
no reason why it would be legally significant that the State’s
authority is removed by statutory rather than constitutional
amendment. Applying section 2-4-303 to uphold convictions that
the State has lost the authority to prosecute before they are final on
appeal would therefore violate the holding in Boyd.
¶ 28 Finally, we note that the supreme court has granted certiorari
in two cases in which the respective defendants committed theft
before the new theft statute took effect, but were found guilty,
convicted, and sentenced after the new statute took effect. See
People v. Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017);
People v. Patton, (Colo. App. No. 14CA2359, Aug. 11, 2016) (not
14
published pursuant to C.A.R. 35(e)) (cert. granted Feb. 6, 2017). In
both cases, the opinions of this court, announced prior to the
supreme court’s opinion in Boyd, analyzed whether the respective
defendants were entitled to the benefit of the changed statute under
principles of retroactivity. See Stellabotte, ¶¶ 44-48; Patton, No.
14CA2359, slip op. at 11-12. We expect and hope that the supreme
court will consider Boyd’s applicability to those cases.
IV. Conclusion
¶ 29 The postconviction court’s order denying Cali’s claim that he
was entitled to the benefit of the changed theft statute is reversed.
We also vacate Cali’s conviction of the class 4 felony and remand
the case to the postconviction court with directions to enter a
judgment of conviction of the class 6 felony and sentence Cali
accordingly.
JUDGE TERRY concurs.
JUDGE NIETO dissents.
15
JUDGE NIETO, dissenting.
¶ 30 In a well-written opinion, the majority has determined that the
supreme court in People v. Boyd, 2017 CO 2, has abandoned the
longstanding rules on the retroactive application of amendatory
statutes. I do not agree with the majority’s reading of Boyd and do
not agree that it has application to the facts of this case. Instead, I
conclude that because Cali’s conviction was final before he filed his
Crim. P. 35(c) motion, the trial court properly denied the motion.
Therefore, I respectfully dissent.
I. Boyd
¶ 31 Boyd is distinguishable for several reasons. First, and
importantly, Boyd’s conviction was on direct appeal and was not
final, while here, Cali’s conviction was final before he filed his Crim.
P. 35(c) motion that is the subject of this appeal. The majority finds
the finality of Cali’s conviction to be of no consequence in its
application of Boyd to this appeal. This conclusion, in my view,
implies that the supreme court in Boyd abandoned, or at least
disregarded, its decision in People v. Thomas, 185 Colo. 395, 525
P.2d 1136 (1974), and its progeny, which have consistently applied
amendatory legislation only to convictions that were not final. See
16
People v. Boyd, 2015 COA 109, ¶ 21 (“[B]oth the supreme court and
the court of appeals have consistently applied the Thomas rule to
give” the benefit of amendatory legislation to defendants where
convictions were not final.) (collecting cases), aff’d, 2017 CO 2. In
another case, our supreme court noted that “[w]e have also
recognized that the concept of finality is an important landmark on
the Colorado criminal justice landscape. And we have noted its
enhanced significance in the context of Crim. P. 35(c) proceedings.”
Edwards v. People, 129 P.3d 977, 982 (Colo. 2006) (citation
omitted). It seems to me that the supreme court would not have
made this significant change to an important and longstanding rule
only by implication in an opinion that does not even mention
Thomas.
¶ 32 Second, in Boyd, the supreme court very clearly said what it
was deciding. “This case presents an opportunity to resolve
whether Amendment 64 deprived the State of the power to continue
to prosecute cases where there was a nonfinal conviction . . . with a
pending right to appeal when Amendment 64 became effective.”
Boyd, 2017 CO 2, ¶ 5 (emphasis added). The court also made clear
what it was not deciding. “We do not find it necessary to address
17
the effect of Amendment 64 on final convictions.” Id. at ¶ 2 n.1
(emphasis added). Therefore, I would not rely on Boyd in a
postconviction proceeding as authority to apply an amendatory
statute to a conviction that had become final following direct
appeal.
¶ 33 Third, I would note the fundamental difference between the
constitutional amendment in Boyd and the statutory amendment
here. The constitution is the root source of all the State’s authority
to act. Once Amendment 64 was effective, the State no longer had
authority to prosecute Boyd for the offenses alleged in that case.
The amendment provided that “the following acts are not unlawful
and shall not be an offense under Colorado law . . . .” Colo. Const.
art. XVIII, § 16(3). Thus, the underpinning necessary for the State
to take criminal action against Boyd was taken away by
Amendment 64 as of its effective date. The statutory amendment
here left intact the authority of the State to prosecute theft crimes,
and it only changed the penalties that can be imposed for offenses
that occur after the effective date of the amendment. See § 2-4-202,
C.R.S. 2017 (“A statute is presumed to be prospective in its
operation.”). This fundamental difference in the effect of
18
Amendment 64 and the statutory amendment here makes Boyd
inapplicable in this case. The amendatory statute here did not
purport to deprive the State of its authority to prosecute a
defendant for conduct defined as criminal by the General Assembly.
The majority has equated a statute that amended the penalty
prescribed for certain conduct to a constitutional amendment that
specifically removed the State’s authority to prosecute certain
conduct. It interprets Boyd to imply that the statutory amendment
that adjusted the penalty for a crime constituted a “loss of the
State’s prosecutorial authority.” Supra ¶ __. I do not agree with
that proposition.
¶ 34 Accordingly, I would decide this appeal without attempting to
apply the holding in Boyd to the facts of this case.
II. Finality
¶ 35 The majority has set out the facts and pertinent history of this
case. I will not repeat them here, except to emphasize that Cali’s
conviction was affirmed on appeal, certiorari was denied, and the
mandate issued in May 2015 — making his conviction final before
he filed the postconviction motion in September 2015.
19
¶ 36 Cali’s Crim. P. 35(c) motion claimed, among other things not
raised here, that his sentence was improper under the June 2013
legislative amendment. The trial court rejected this claim, finding
that the amendment occurred after his sentencing, his sentence
had been affirmed on appeal, and the amendment was prospective.
¶ 37 In this appeal Cali pursues only the claim that the 2013
amendment applies in his case. If the amendment applies, the
conviction would be a class 6 felony, which would yield a lower
habitual offender sentence. I perceive no error and would affirm the
trial court’s order.
¶ 38 Cali’s request to apply a “substantive change in the law” would
fall within the provision in Crim. P. 35(c) permitting a motion based
on “a significant change in the law, applied to the applicant’s
conviction or sentence, allowing in the interests of justice
retroactive application.” But this rule only applies if “judgment on
that conviction has not then been affirmed upon appeal” prior to
filing the motion. Crim. P. 35(c)(1); see also § 18-1-410(1)(f)(I), (II),
C.R.S. 2017 (containing the same limitation). The text of both the
statute and the rule prohibit the relief Cali requested after his
20
conviction became final. In People v. White, a division of this court
agreed with this plain meaning of Crim. P. 35(c):
While Crim. P. 35(c)(1) provides a remedy to an
offender whose conviction or sentence is
affected by a change in the law during the
pendency of a direct appeal of such conviction
or sentence, it does not provide a remedy to an
offender claiming the benefit of changes in the
law that occur during the pendency of other
post-conviction proceedings.
804 P.2d 247, 250 (Colo. App. 1990).
¶ 39 Cali contends that his conviction was not final, and, therefore,
he was entitled to be sentenced under the amended statute. I do
not agree.
¶ 40 Convictions are final when direct appeal has been exhausted
and a petition for certiorari has been forfeited or denied. Edwards,
129 P.3d at 983; People v. Hampton, 876 P.2d 1236, 1239 (Colo.
1994). Significantly, in the binding precedent, People v. Arellano,
185 Colo. 280, 524 P.2d 305 (1974), the relevant statute was
amended while the appeal was pending, but the issue was not
raised until after finality had attached to the conviction. Our
supreme court held that, even there, relief could not be granted
after the conviction was final. The facts in the Arellano case are on
21
all fours with the present case: the relevant statute was amended
while Cali’s appeal was pending, but Cali filed his motion after the
mandate issued in his direct appeal. His conviction was final, and
he is not entitled to the relief he requested.
¶ 41 Finality is not just a technicality; it is a hard boundary. The
following cases demonstrate how firm the boundary is. In People v.
Herrera, 183 Colo. 155, 516 P.2d 626 (1973), when the General
Assembly explicitly authorized courts to review sentences after a
conviction became final, the supreme court invalidated the statute
as a breach of the separation of powers doctrine. In People v.
Carter, 186 Colo. 391, 527 P.2d 875 (1974), the supreme court held
that judicial review of sentences before finality is a proper judicial
function. In People v. Arellano, the supreme court held that after
the conviction was final, relief could not be granted on a motion
filed after finality. 185 Colo. at 283, 524 P.2d at 306. Then in
People v. Thomas, the defendant filed a motion for postconviction
review of his sentence while his direct appeal was pending. The
motion was based on a statute that amended the penalty for his
offense. The supreme court held that the motion could be
22
entertained because it was filed before his conviction was final. 185
Colo. at 397, 525 P.2d at 1137.
¶ 42 In each of these cases the decision pivoted on when the
conviction became final.
¶ 43 All these cases drew the line at finality. I would continue to do
so and would affirm the trial court’s denial of Cali’s Crim. P. 35(c)
motion because his conviction was final before he filed his motion,
and therefore the rule and section 18-1-410(1)(f)(I), (II) deny him the
relief he requested.
23