Crim. P. 35(c): Colorado Law Regarding Postconviction Relief
| Publication year | 1993 |
| Pages | 729 |
| Citation | Vol. 04 No. 1993 Pg. 729 |
1993, April, Pg. 729. Crim. P. 35(c): Colorado Law Regarding Postconviction Relief
In Colorado, postconviction remedies have been available since the first publication of the Code of Criminal Procedure ("Crim. P.") in 1961. However, postconviction relief only began to flourish in the last decade. Only recently have the appellate courts precisely defined the perimeters of postconviction relief.
The present Crim. P. 35 became effective November 13, 1979. It contains sections (a), correction of an illegal sentence; (b), reduction of a sentence; and (c), postconviction remedies. In 1971, the Colorado General Assembly enacted CRS § 18-1-410, which is the statutory counterpart to Crim. P. 35(c).
This article discusses the mechanism for postconviction relief, consisting of the motion, hearing and appellate review. The article also encompasses the limitations placed on postconviction remedies.
The purpose of a Crim. P. 35(c) motion is to provide a postconviction remedy subsequent to a direct appeal to review constitutional errors made at trial.(fn1) A conviction imposed in violation of a basic constitutional right is invalid and may not be used to support guilt or to enhance punishment. This precept finds its source in the principle that unconstitutional convictions, in addition to being of suspect reliability, abridge the very charter from which the government draws its authority to prosecute anyone.(fn2) Crim. P. 35(c) provides a method of preventing injustices from occurring after a defendant has been convicted and sentenced.(fn3) This protection of constitutional rights requires that postconviction remedies be broad and flexible.(fn4)
Because postconviction relief is founded on constitutional principles, Crim. P. 35(c) affords a convicted person all remedies that are available through a writ of habeas corpus.(fn5) As with a federal habeas corpus proceeding, a proceeding under Crim. P. 35(c) is governed by equitable principles.(fn6) Thus, postconviction relief is available only if a defendant's constitutional rights have been violated during trial.(fn7)
To commence a Crim. P. 35(c) proceeding, a defendant must file with the sentencing court a motion that alleges errors of constitutional magnitude in the trial proceedings. Mere error, unless of constitutional dimension, is no ground for postconviction relief.(fn8)
A bald allegation of constitutional error is insufficient when specific facts are not pleaded to support the claim.(fn9) The defendant has the burden of alleging with particularity ultimate facts which support a conclusion that a judicial proceeding was illegal or irregular.(fn10) The defendant need not set forth the evidentiary support for his or her allegation in the Crim. P. 35(c) motion. Instead, the defendant need only assert facts that, if true, would provide a basis for relief.(fn11) If specific facts to support the defendant's claim do not appear in the motion for postconviction relief, no issue is raised which requires an evidentiary hearing.(fn12)
Nevertheless, when specific facts that implicitly relate to constitutional error are alleged, a failure to plead the constitutional violation with specificity is not fatal.(fn13) A Crim. P. 35(c) motion that does not contain sufficient allegations to support the claim asserted may be dismissed for failure to state a claim on which relief may be granted.(fn14)
A habeas corpus petition should be treated as a Crim. P. 35(c) motion based on the substantive constitutional issues raised therein, rather than on the label placed on the pleading.(fn15)
In a Crim. P. 35(c) proceeding, the court must grant a hearing unless (1) the motion, files and record clearly establish that the defendant is not entitled to relief; (2) the motion lacks factual allegations sufficient to support a constitutional claim;(fn16) (3) the motion, files and record present only issues...
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