23CA1607 Peo v Al-Siddiq 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1607 City and County of Denver District Court No. 12CR2962 Honorable A. Bruce Jones, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Chappell Rafiq-Abdul Al-Siddiq,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE PAWAR Tow and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Chappell Rafiq-Abdul Al-Siddiq, Pro Se ¶1 Defendant, Chappell Rafiq-Abdul Al-Siddiq, appeals the
postconviction court’s order denying, without a hearing, his second
motion for postconviction relief. We affirm.
I. Background
¶2 Al-Siddiq was accused of sexually assaulting his girlfriend’s
twelve-year-old daughter in two separate incidents on the same
night. One of the incidents occurred in the living room and the
other occurred in the bathroom. For the living room incident, Al-
Siddiq was charged with sexual assault on a child and sexual
assault on a child — position of trust. For the bathroom incident,
he was charged with unlawful sexual contact. The jury found him
guilty of all three counts and the trial court merged the sexual
assault counts.
¶3 Al-Siddiq was also charged with habitual criminal counts.
After a hearing on those counts, the trial court determined that the
prosecution proved that Al-Siddiq had three previous felony
convictions. It therefore sentenced him to four times the maximum
of the presumptive range for the triggering offenses under section
18-1.3-801(2)(a)(I)(A), C.R.S. 2024. The resulting sentences were
forty-eight years to life for sexual assault on a child — position of
1 trust and twenty-four years to life for unlawful sexual contact. The
trial court imposed those sentences consecutively, resulting in a
total sentence of seventy-two years to life.
¶4 Al-Siddiq directly appealed, challenging his conviction and
sentence. A division of this court affirmed. People v. Al-Siddiq,
(Colo. App. No. 14CA2339, Sept. 28, 2017) (not published pursuant
to C.A.R. 35(e)).
¶5 Al-Siddiq then filed a Crim. P. 35(c) motion alleging ineffective
assistance of trial counsel, which the postconviction court denied.
He appealed that ruling and another division of this court affirmed.
People v. Al-Siddiq, (Colo. App. No. 21CA1219, Dec. 29, 2022) (not
published pursuant to C.A.R. 35(e)).
¶6 In August 2023, Al-Siddiq filed the pro se postconviction
motion that gave rise to this appeal. In it, he raised numerous
challenges to his sentence. The postconviction court denied the
motion without a hearing and Al-Siddiq appeals.
II. Al-Siddiq’s Postconviction Claims
¶7 The claims at issue in this appeal are all challenges to Al-
Siddiq’s sentence. Some are arguments that the sentence was
illegal because it violated the relevant sentencing statutes. Others
2 are arguments that the sentence was imposed in an illegal manner
or in violation of the law.
¶8 Arguments that a sentence was illegal because it was not
authorized by statute may be raised at any time — they are not
subject to denial simply because they are successive or late. Crim.
P. 35(a).
¶9 On the other hand, all other challenges to a sentence are
subject to various timeliness and successiveness bars. See Crim. P.
35(b), (c); § 16-5-402, C.R.S. 2024; People v. Barton, 174 P.3d 786,
789 (Colo. 2008). Illegal manner arguments must be raised within
126 days of the sentence being imposed or affirmed on appeal.
Crim. P. 35(a), (b). And courts must deny as successive an
argument that a sentence was imposed in violation of the law if it
could have been presented in a prior direct appeal or prior
postconviction proceeding. Crim. P. 35(c)(3)(VII).
¶ 10 Al-Siddiq filed his second postconviction motion almost six
years after his conviction and sentence were affirmed on direct
appeal. It was also filed after the denial of his first postconviction
motion was affirmed on appeal. In other words, the postconviction
motion in this appeal was filed (1) more than 126 days after the
3 sentence was affirmed on appeal and (2) after his direct appeal and
first postconviction motion in which Al-Siddiq could have
challenged his sentence.
¶ 11 Consequently, all of Al-Siddiq’s arguments that his sentence
was imposed in an illegal manner or in violation of the law are
either time-barred or successive. We will therefore not consider his
contentions that (1) his sentence was constitutionally
disproportionate; (2) there was insufficient evidence to support the
habitual criminal convictions; (3) his habitual counts should have
been resolved by the jury, not the court; (4) his habitual criminal
convictions violated his right to equal protection and to be free from
double jeopardy; (5) the absence of a presentence investigation prior
to sentencing rendered his sentence void; and (6) the trial court
erred by amending the mittimus without providing him proper
notice.
¶ 12 Al-Siddiq’s remaining arguments challenge the legality of his
sentence in that they assert that his sentence was not authorized
by law. These arguments are properly before us and we will
address their merits. We review de novo whether Al-Siddiq’s
4 sentence was authorized by the relevant sentencing statutes. See
People v. Jenkins, 2013 COA 76, ¶ 11.
¶ 13 Al-Siddiq argues that he could not have been sentenced to
consecutive indeterminate terms at four times the maximum of the
triggering offenses because (1) his triggering offenses were not
crimes of violence; (2) he was not designated a sexually violent
predator (SVP); (3) the position of trust element is not an
“aggravating factor”; and (4) his two triggering offenses were not
separate acts and therefore should have precipitated concurrent
sentences. We disagree.
¶ 14 Al-Siddiq was sentenced under section 18-1.3-801(2)(a). This
section provides that every person convicted of “any felony” in
Colorado must be sentenced to four times the maximum of the
presumptive range for that triggering felony if they have been
previously convicted of three other felonies that arose out of
separate and distinct criminal episodes and were separately
brought and tried. § 18-1.3-801(2)(a)(I)(A).
¶ 15 Al-Siddiq’s triggering offenses (sexual assault on a child —
position of trust and unlawful sexual contact) were felonies. And
the prosecution proved that he was previously convicted of three
5 other felonies that arose out of separate and distinct criminal
episodes and were separately brought and tried. Accordingly, he
was subject to a sentence of four times the maximum of the
presumptive range for the triggering offenses.
¶ 16 The maximum of the presumptive range for sexual assault on
a child — position of trust was twelve years to life. §§ 18-1.3-
401(1)(a)(V)(A), 1004(1)(a), C.R.S. 2024. And the maximum of the
presumptive range for unlawful sexual contact was six years to life.
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23CA1607 Peo v Al-Siddiq 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1607 City and County of Denver District Court No. 12CR2962 Honorable A. Bruce Jones, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Chappell Rafiq-Abdul Al-Siddiq,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE PAWAR Tow and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Chappell Rafiq-Abdul Al-Siddiq, Pro Se ¶1 Defendant, Chappell Rafiq-Abdul Al-Siddiq, appeals the
postconviction court’s order denying, without a hearing, his second
motion for postconviction relief. We affirm.
I. Background
¶2 Al-Siddiq was accused of sexually assaulting his girlfriend’s
twelve-year-old daughter in two separate incidents on the same
night. One of the incidents occurred in the living room and the
other occurred in the bathroom. For the living room incident, Al-
Siddiq was charged with sexual assault on a child and sexual
assault on a child — position of trust. For the bathroom incident,
he was charged with unlawful sexual contact. The jury found him
guilty of all three counts and the trial court merged the sexual
assault counts.
¶3 Al-Siddiq was also charged with habitual criminal counts.
After a hearing on those counts, the trial court determined that the
prosecution proved that Al-Siddiq had three previous felony
convictions. It therefore sentenced him to four times the maximum
of the presumptive range for the triggering offenses under section
18-1.3-801(2)(a)(I)(A), C.R.S. 2024. The resulting sentences were
forty-eight years to life for sexual assault on a child — position of
1 trust and twenty-four years to life for unlawful sexual contact. The
trial court imposed those sentences consecutively, resulting in a
total sentence of seventy-two years to life.
¶4 Al-Siddiq directly appealed, challenging his conviction and
sentence. A division of this court affirmed. People v. Al-Siddiq,
(Colo. App. No. 14CA2339, Sept. 28, 2017) (not published pursuant
to C.A.R. 35(e)).
¶5 Al-Siddiq then filed a Crim. P. 35(c) motion alleging ineffective
assistance of trial counsel, which the postconviction court denied.
He appealed that ruling and another division of this court affirmed.
People v. Al-Siddiq, (Colo. App. No. 21CA1219, Dec. 29, 2022) (not
published pursuant to C.A.R. 35(e)).
¶6 In August 2023, Al-Siddiq filed the pro se postconviction
motion that gave rise to this appeal. In it, he raised numerous
challenges to his sentence. The postconviction court denied the
motion without a hearing and Al-Siddiq appeals.
II. Al-Siddiq’s Postconviction Claims
¶7 The claims at issue in this appeal are all challenges to Al-
Siddiq’s sentence. Some are arguments that the sentence was
illegal because it violated the relevant sentencing statutes. Others
2 are arguments that the sentence was imposed in an illegal manner
or in violation of the law.
¶8 Arguments that a sentence was illegal because it was not
authorized by statute may be raised at any time — they are not
subject to denial simply because they are successive or late. Crim.
P. 35(a).
¶9 On the other hand, all other challenges to a sentence are
subject to various timeliness and successiveness bars. See Crim. P.
35(b), (c); § 16-5-402, C.R.S. 2024; People v. Barton, 174 P.3d 786,
789 (Colo. 2008). Illegal manner arguments must be raised within
126 days of the sentence being imposed or affirmed on appeal.
Crim. P. 35(a), (b). And courts must deny as successive an
argument that a sentence was imposed in violation of the law if it
could have been presented in a prior direct appeal or prior
postconviction proceeding. Crim. P. 35(c)(3)(VII).
¶ 10 Al-Siddiq filed his second postconviction motion almost six
years after his conviction and sentence were affirmed on direct
appeal. It was also filed after the denial of his first postconviction
motion was affirmed on appeal. In other words, the postconviction
motion in this appeal was filed (1) more than 126 days after the
3 sentence was affirmed on appeal and (2) after his direct appeal and
first postconviction motion in which Al-Siddiq could have
challenged his sentence.
¶ 11 Consequently, all of Al-Siddiq’s arguments that his sentence
was imposed in an illegal manner or in violation of the law are
either time-barred or successive. We will therefore not consider his
contentions that (1) his sentence was constitutionally
disproportionate; (2) there was insufficient evidence to support the
habitual criminal convictions; (3) his habitual counts should have
been resolved by the jury, not the court; (4) his habitual criminal
convictions violated his right to equal protection and to be free from
double jeopardy; (5) the absence of a presentence investigation prior
to sentencing rendered his sentence void; and (6) the trial court
erred by amending the mittimus without providing him proper
notice.
¶ 12 Al-Siddiq’s remaining arguments challenge the legality of his
sentence in that they assert that his sentence was not authorized
by law. These arguments are properly before us and we will
address their merits. We review de novo whether Al-Siddiq’s
4 sentence was authorized by the relevant sentencing statutes. See
People v. Jenkins, 2013 COA 76, ¶ 11.
¶ 13 Al-Siddiq argues that he could not have been sentenced to
consecutive indeterminate terms at four times the maximum of the
triggering offenses because (1) his triggering offenses were not
crimes of violence; (2) he was not designated a sexually violent
predator (SVP); (3) the position of trust element is not an
“aggravating factor”; and (4) his two triggering offenses were not
separate acts and therefore should have precipitated concurrent
sentences. We disagree.
¶ 14 Al-Siddiq was sentenced under section 18-1.3-801(2)(a). This
section provides that every person convicted of “any felony” in
Colorado must be sentenced to four times the maximum of the
presumptive range for that triggering felony if they have been
previously convicted of three other felonies that arose out of
separate and distinct criminal episodes and were separately
brought and tried. § 18-1.3-801(2)(a)(I)(A).
¶ 15 Al-Siddiq’s triggering offenses (sexual assault on a child —
position of trust and unlawful sexual contact) were felonies. And
the prosecution proved that he was previously convicted of three
5 other felonies that arose out of separate and distinct criminal
episodes and were separately brought and tried. Accordingly, he
was subject to a sentence of four times the maximum of the
presumptive range for the triggering offenses.
¶ 16 The maximum of the presumptive range for sexual assault on
a child — position of trust was twelve years to life. §§ 18-1.3-
401(1)(a)(V)(A), 1004(1)(a), C.R.S. 2024. And the maximum of the
presumptive range for unlawful sexual contact was six years to life.
Because both maximum sentences for the triggering offenses were
indeterminate, Al-Siddiq’s habitual criminal sentences were also
indeterminate: forty-eight years to life for sexual assault — position
of trust and twenty-four years to life for unlawful sexual contact.
These sentences were required by statute regardless of whether (1)
his triggering offenses were crimes of violence, (2) the position-of-
trust element was an aggravating factor, or (3) he was designated
an SVP.
¶ 17 We also disagree with Al-Siddiq’s argument that running the
sentences consecutively was prohibited. Generally, when a
defendant is convicted of multiple offenses the sentencing court has
discretion whether to run the sentences concurrently or
6 consecutively. See Juhl v. People, 172 P.3d 896, 899 (Colo. 2007).
The court is stripped of that discretion, however, if multiple offenses
involve a single victim and are supported by identical evidence —
only then must sentences for those offenses be concurrent. Id.
¶ 18 Here, the two triggering offenses occurred on the same night
but were not supported by identical evidence. One was based on
conduct that occurred in the living room and the other was based
on conduct that occurred in the bathroom. Therefore, the relevant
sentencing statutes did not require the trial court to impose
concurrent sentences and the consecutive sentences were legal.
III. Disposition
¶ 19 The postconviction court’s order is affirmed.
JUDGE TOW and JUDGE SCHUTZ concur.