Chapter 8 - § 8.3 • COLLATERAL ATTACKS ON CONVICTIONS

• Jurisdiction: Colorado

§ 8.3 • COLLATERAL ATTACKS ON CONVICTIONS

§ 8.3.1—Introduction

Crim. P. 35(c) and C.R.S. § 18-1-410 permit post-conviction review of judgments of conviction when it is alleged that the conviction was obtained, or the sentence was imposed, in violation of the U.S. or Colorado constitutions, or on certain other enumerated grounds.

If the court finds that the defendant is entitled to post-conviction relief, the court shall vacate the judgment, impose a new sentence, grant a new trial, or make such orders as appropriate to restore a right that was violated. A conviction that is vacated pursuant to a post-conviction attack may not be used to support a subsequent criminal conviction, or to enhance a subsequent sentence. This principle applies to traffic cases as well as to criminal cases. People v. Swann, 770 P.2d 411, 412 (Colo. 1989). Thus, a defendant with an alcohol-related traffic conviction within five years of the date of a subsequent conviction, who is subject to an enhanced sentence, may challenge the validity of the prior conviction in an effort to render the sentencing enhancement provision inapplicable in the new case.

There are procedural and substantive issues associated with these sorts of collateral attacks. This section addresses the time limitations on such attacks, the procedure for raising and litigating such attacks, and the substantive claims that can be made in such attacks.

The grounds for a post-conviction attack set forth in Crim. P. 35(c)(2) include:

1) The conviction or sentence violated the constitution or laws of the United States or the State of Colorado;

2) The statute upon which the defendant was convicted is unconstitutional or the defendant's conduct was constitutionally protected;

3) The court lacked jurisdiction over the defendant or the subject matter;

4) Material facts exist, which were not presented at trial, and which could not have been discovered by reasonable diligence prior to trial, and which, in the interests of justice, require that the conviction or sentence be vacated;

5) Any other grounds properly the basis for collateral attack on the judgment; or

6) The imposed sentence has been fully served or there has been an unlawful revocation.

C.R.S. § 18-1-410(1) includes an additional ground for post-conviction attack; that is, if there has been a significant change in the law allowing retroactive application in the interests of justice. This ground may not be sought if the defendant has not previously filed an appeal or if the judgment of conviction has been affirmed. C.R.S. § 18-1-410(1)(f)(I) and (II).

§ 8.3.2—The Statute of Limitation on Collateral Attacks

C.R.S. § 42-4-1702 requires that a collateral attack on a conviction for DUI, DWAI, or DUI per se must be "commenced within six months after the date of entry of the judgment." C.R.S. § 42-4-1708(5)(a) requires that a collateral attack on traffic infractions must also be commenced within six months. C.R.S. § 16-5-402 addresses collateral attacks on most felonies, misdemeanors, and petty offenses. Interestingly, there appears to be no statute of limitations addressing traffic convictions that are neither alcohol-related nor infractions. Collateral attacks on felony and misdemeanor convictions are the source for much of the case law arising out of claims under this statute. A collateral attack made pursuant to Crim. P. 35(c) is governed by these statutes of limitation. People v. Wiedemer, 852 P.2d 424, 438 (Colo. 1993).

C.R.S. § 42-4-1702 establishes the time limits on collateral attacks on DUI convictions. That section, titled Alcohol or Drug-Related Traffic Offenses - Collateral Attack, provides:

(1) No person against whom a judgment has been entered for DUI, DUI per se, DWAI, or UDD shall collaterally attack the validity of that judgment unless such attack is commenced within six months after the date of entry of the judgment.

(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in paragraph (a) of this subsection (1) shall be [There is no paragraph (a) in subsection (1). Presumably, the legislature meant simply to refer to subsection (1).]:

(a) A case in which the court entering judgment did not have jurisdiction over the subject matter of the alleged infraction;

(b) A case in which the court entering judgment did not have jurisdiction over the person of the violator;

(c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment or certification of the violator to an institution for treatment as a person with a mental health disorder; or

(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

C.R.S. § 42-4-1708(5) is the six-month statute of limitation for attacks on traffic infractions. The language is identical in all pertinent respects.

The statute of limitation begins to run when the trial court enters judgment and imposes sentence. If an appeal is filed, the statute begins to run when the direct appeal has been exhausted. People v. Hampton, 876 P.2d 1236, 1241 (Colo. 1994). The filing of a federal habeas corpus petition does not toll the statute of limitations. People v. Abad, 962 P.2d 290, 291-92 (Colo. App. 1997).

These statutes of limitation have survived constitutional attack. People v. Trimble, 839 P.2d 1168 (Colo. 1992) (C.R.S. § 42-4-1702 constitutional); Wiedemer, 852 P.2d 424 (C.R.S. § 16-5-402 constitutional). Without the "excusable neglect" and "justifiable excuse" exceptions, a previous version of the statute of limitations was held to offend the constitution. People v. Germany, 674 P.2d 345 (Colo. 1983).

Generally, a collateral attack filed outside of the relevant statute of limitation can be denied without a hearing on the substance of the claim. A person attacking a prior conviction outside the relevant time limit bears the burden of establishing that he or she falls within one of the exceptions. Abad, 962 P.2d at 291. See also People v. Rainer, 2013 COA 51.

§ 8.3.3—Justifiable Excuse and Excusable Neglect

The most common claim of exemption from the time limits is based on the provision in all three statutes of limitation that an otherwise untimely filing may nonetheless be considered by the court if the late filing was due to "justifiable excuse or excusable neglect." C.R.S. § 42-4-1702(2)(d). It is this type of claim that constitutes the bulk of the litigation on claims of exemption from the statutes of limitation.

The overwhelming majority of reported cases addressing time limitations on collateral attacks do so in the context of felony cases and C.R.S. § 16-5-402. However, since the "justifiable excuse or excusable neglect" language is identical in the statutes, and since the statute of limitation pertaining to traffic convictions was enacted after the felony statute was passed and amended (1984), cases interpreting C.R.S. § 16-5-402 can fairly be assumed to apply to C.R.S. § 42-4-1702 as well. The Colorado Supreme Court made this clear in People v. Trimble, 839 P.2d 1168, 1171-72 (Colo. 1992), holding that a trial court should consider whether "justifiable excuse or excusable neglect" justified an otherwise untimely filing, and no case has suggested that the language should be interpreted any differently in the context of traffic cases.

Once the prosecutor or the trial court raises the timeliness issue, the defendant carries the burden of establishing that an exception to the time bar applies. People v. Abad, 962 P.2d 290, 291 (Colo. App. 1997). C.R.S. § 16-5-402(1.5) provides that an appellate court may deny relief to a party challenging a prior conviction if the attack was not filed in a timely fashion, regardless of whether the issue of timeliness was raised in the trial court. No such amendment was made to the statutes limiting collateral attacks on traffic convictions, suggesting that a failure to raise the time bar in the trial court is binding on appeal.

People v. Wiedemer, 852 P.2d 424 (Colo. 1993), established the framework for resolving claims of excusable neglect or justifiable excuse. That court deemed it "unworkable and unwise" to attempt any precise definition of the phrase "[b]ecause the strength of the individual and societal interests implicated in the insulation of convictions from collateral attack will vary with every situation . . . ." Id. at 441. The interests implicated are "an accused person's interest in ensuring that an unconstitutional conviction is not used against him, society's interests in maintaining the integrity of the criminal justice system, and the State's interests in preserving the finality of criminal convictions and in implementing statutes requiring enhanced sentences for habitual offenders." Id. at 440 (citing People v. Germany, 674 P.2d 345, 349-50 (Colo. 1983)).

In making the determination whether excusable neglect or justifiable excuse applies, a trial court should consider the circumstances throughout the entire period from the time of the conviction in question. Wiedemer, 852 P.2d at 441-42.

The factors a trial court should consider include, but are not limited to: (1) evidence of events that prevented the defendant from seeking post-conviction relief in a timely fashion; (2) the efforts made by the defendant in investigating the validity of his or her conviction; (3) whether the defendant had other methods of remedying the problem that rendered a post-conviction challenge unnecessary; (4) whether the defendant had any previous need to challenge a conviction; (5) whether the defendant knew, or had reason to...