Colorado's Revived Collateral Attack Statute
| Jurisdiction | Colorado,United States |
| Citation | Vol. 19 No. 5 Pg. 843 |
| Pages | 843 |
| Publication year | 1990 |
1990, May, Pg. 843. Colorado's Revived Collateral Attack Statute
The "collateral attack" statute, CRS § 16-5-402, was enacted in 1981 to curb attacks on criminal convictions by limiting the period of time within which a conviction must be challenged.(fn1) The original version of this statute was struck down as unconstitutional in People v. Germany(fn2) because (1) in some cases, with no notice to the defendant, it immediately cut off the right to collaterally attack a conviction and (2) it did not provide an exception for an untimely attack where the failure to assert a claim within the statutory time period was the result of circumstances other than the defendant's culpable negligence.(fn3)
In response to Germany, the Colorado legislature amended the statute by adding subsection (2)(d) to CRS § 16-5-402, effective July 1, 1984. The new subsection allows a late attack where the failure to file a timely challenge was the result of circumstances amounting to "justifiable excuse or excusable neglect."(fn4) Because CRS § 16-5-402 is retrospective, in People v. Fagerholm, the Colorado Supreme Court engrafted a five-year grace period to the statute to afford defendants with outstanding convictions sufficient notice and opportunity to challenge those judgments.(fn5) As a result, the amended statute became effective July 1, 1989.(fn6)
Now that it has been revived, the applicability and validity of the collateral attack statute undoubtedly will be the subject of another round of litigation. This article examines the relevant issues that likely will be raised and discusses the arguments and law that apply to these issues.
Criminal convictions are used in three basic ways in a subsequent criminal proceeding: (1) to enhance punishment;(fn7) (2) in the case of a felony conviction, to impeach a defendant's testimony;(fn8) and (3) as a predicate to a status offense.(fn9) Under the collateral attack statute, there may be a forfeiture of a defendant's due process right to the suppression of unconstitutional prior convictions that the prosecution seeks to introduce in a subsequent, unrelated criminal proceeding.(fn10)
Under the habitual criminal statute, CRS § 16-13-101, a defendant can receive a sentence of twenty-five to fifty years for a third felony conviction and a life sentence for his or her fourth conviction. The dire consequences of an habitual criminal adjudication highlight a significant, but not uncommon, result that may occur on the successful application of the collateral attack statute.
The effect of CRS § 16-5-402 on a defendant's right to testify also is noteworthy. In trials where a defendant testifies, the admission of a prior conviction for impeachment purposes can be devastating. Even if a defendant does not testify, the threatened admission of a prior, unconstitutional conviction can impermissibly burden the defendant's fundamental constitutional right to testify.(fn11) This threat can result in a reversal of the conviction on appeal if the defendant (1) indicates that he or she would have testified if the prior conviction had been suppressed and (2) demonstrates the invalidity of the prior conviction.(fn12)
The successful challenge of the collateral attack statute in Germany and the five-year grace period imposed by Fagerholm leave many unanswered questions concerning the application and constitutionality of the statute. These questions have not yet been resolved by Colorado appellate courts.
The term "collateral attack," as used in CRS § 16-5-402, has not been defined. The challenge of a prior conviction in a suppression motion in a subsequent, unrelated criminal proceeding has been denominated as a collateral attack.(fn13)
Although there is no statutory definition of the term, Colorado courts have defined a collateral attack on a judgment as
Another avenue of definition is to consider the circumstances of an attack on a judgment. A challenge under a post-conviction motion should be considered a "direct" attack because a successful claim under this remedy will vacate a conviction, whereas a suppression motion in an unrelated proceeding will only prevent the use of the conviction in that proceeding.(fn18) Furthermore, if a judgment has not been litigated on appeal, a post-conviction attack will constitute the first challenge of the judgment. Therefore, such an attack logically should be construed as being "direct," at least where the claim is filed under Crim.P. 35(c) or CRS § 18-1-410.
In People v. Fultz, the Colorado Court of Appeals defined "excusable neglect" under CRS § 16-5-402(2)(d) as
In Fultz, excusable neglect was not established where the defendant failed to initiate a timely attack after the influence of tranquilizing drugs had subsided and he had been released from prison. Certiorari was denied in Fultz and, although the issue was raised in Foger-holm, the Supreme Court has not defined excusable neglect under the statute in that or any other casethe failure to act result[ing] from circumstances which would cause a reasonably careful person to neglect a duty. If there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as a result of some unavoidable hindrance or occurrence, excusable neglect exists.(fn19)
It may be argued that "excusable neglect" is demonstrated if a defendant never previously had a "present need"(fn20) and reason to examine the conviction with the advice and assistance of counsel.(fn21) Because criminal defendants often have a limited education,(fn22) it is unfair to expect defendants to discern whether legal errors exist in their convictions unless they had a reason to review the matter with the assistance of counsel. Although this argument is not consistent with the definition of excusable neglect announced in Fultz, the definition used in that case was derived from civil law. This is contrary to Germany and other cases, which state that notions of finality in civil law are not applicable in a criminal context where a person's life or liberty is at stake.(fn23)
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