Peo v. Hall

Opinion

23CA1906 Peo v Hall 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1906 Arapahoe County District Court No. 08CR272 Honorable Jacob Edson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Demond Thornton Hall,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE HARRIS Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Demond Thornton Hall, Pro Se ¶1 Defendant, Demond Thornton Hall, appeals the denial of his

Crim. P. 35(a) motion. We affirm.

I. Background

¶2 In 2008, Hall pleaded guilty pursuant to a plea agreement to

one count of sexual exploitation of a child and one count of sexual

assault on a child by one in a position of trust (SAOC-POT). See

§ 18-6-403(5)(a), C.R.S. 2024; § 18-3-405.3(2)(a), C.R.S. 2024.

Under the agreement, the parties stipulated to concurrent

sentences of six years in the custody of the Department of

Corrections (DOC) on the sexual exploitation of a child conviction

and twenty years to life of sex offender intensive supervision

probation (SOISP) on the SAOC-POT conviction. The court imposed

the stipulated sentences.

¶3 In 2013, Hall was paroled on his sexual exploitation sentence

and began serving the remainder of his SOISP sentence. Less than

a year later, Hall’s probation officer initiated proceedings to revoke

Hall’s SOISP.1

1 The filing of the probation revocation complaint resulted in the

revocation of Hall’s parole; he served 180 days on the parole revocation.

1 ¶4 After a revocation hearing, the district court found that Hall

had violated multiple conditions of probation, revoked the SOISP

sentence, and resentenced Hall to eight years to life in the custody

of the DOC to be followed by a parole term of twenty years to life

(the revocation sentence). On direct appeal, a division of this court

affirmed the revocation sentence. People v. Hall, slip op. at ¶ 12

(Colo. App. No. 14CA2488, Oct. 13, 2016) (not published pursuant

to C.A.R. 35(e)).

¶5 In August 2023, nearly ten years after his resentencing, Hall

filed a pro se Crim. P. 35(a) motion, asserting that his original

sentence to both imprisonment (for the exploitation count) and

probation (for the SAOC-POT count) was illegal under Allman v.

People, 2019 CO 78, and, therefore, the revocation sentence had to

be vacated. Hall also argued that the revocation sentence violated

his rights under the Double Jeopardy Clause. He asked the court

to set an evidentiary hearing and appoint him counsel.

¶6 Instead, without setting a hearing or appointing counsel, the

court denied the motion in a written order, concluding that under

post-Allman supreme court decisions, Hall’s original prison-plus-

probation sentence was legal.

2 II. Analysis

¶7 On appeal, Hall renews his arguments that (1) because his

original sentence was illegal, his revocation sentence is likewise

unlawful and must be vacated; and (2) his sentence violates his

rights under the Double Jeopardy Clause. He also appears to

assert that he has completed his sentence, and therefore his

continued confinement is unlawful.2

A. Standard of Review

¶8 A defendant may raise an illegal sentence claim at any time.

See People v. Bowerman, 258 P.3d 314, 316 (Colo. App. 2010). An

illegal sentence is one that is not authorized by law, meaning it is

inconsistent with the sentencing scheme established by the

legislature. People v. Jenkins, 2013 COA 76, ¶ 11. The legality of a

sentence is a question of law that we review de novo. People v.

Bassford, 2014 COA 15, ¶ 20.

2 To the extent Hall raises a claim related to the statute of

limitations for the revocation proceedings, that claim was neither raised in the Crim. P. 35(a) motion nor developed sufficiently on appeal. Therefore, we do not address it. See People v. Cali, 2020 CO 20, ¶ 34 (appellate court will not consider issues not raised in the postconviction motion); People v. Stone, 2021 COA 104, ¶ 52 (appellate court does not address undeveloped arguments).

3 B. Illegal Sentence Claim

¶9 We begin with the question of whether Hall’s original sentence

of six years imprisonment and concurrent SOISP was illegal. (By

beginning there, we assume without deciding that if the original

sentence was illegal, the revocation sentence cannot stand.)

¶ 10 In Allman v. People, the supreme court held that “when a court

sentences a defendant for multiple offenses in the same case, it may

not impose imprisonment for some offenses and probation for

others.” 2019 CO 78, ¶ 28. But a couple of years later, the

supreme court clarified that Allman’s prison-plus-probation

prohibition does not apply to sentencing under the Colorado Sex

Offender Lifetime Supervision Act of 1998 (SOLSA), as SOLSA

created “an entirely freestanding sentencing framework.” People v.

Manaois, 2021 CO 49, ¶¶ 3, 47. Thus, under the SOLSA exception

to Allman’s rule, a defendant may “receive[] a prison sentence for a

non-sex offense and a consecutive SOISP sentence for a sex

offense.” Id. at ¶ 5.

¶ 11 Hall received a determinate prison sentence for the

exploitation conviction (a “sex-related” offense, id. at ¶ 46; see also

§ 18-1.3-1007(1)(a)(III), C.R.S. 2024 (listing non-sex offenses that

4 fall under SOLSA’s probation sentencing scheme)) and an

indeterminate SOISP sentence for the SAOC-POT conviction (a “sex

offense” under SOLSA, see § 18-1.3-1003(5)(a)(V), C.R.S. 2024).

Because the SOLSA exception applies under these circumstances,

Hall’s original sentence did not run afoul of Allman’s general rule.

See People v. Lowe, 2021 CO 51, ¶ 17 (holding that determinate

prison sentence for sex-related offense plus SOISP sentence for sex

offense was lawful).

¶ 12 Nonetheless, Hall argues that his sentence is unlawful, noting

three purported problems. We reject his arguments.

¶ 13 First, we acknowledge that Allman’s rule was informed in part

by the court’s determination that the legislature did not intend to

subject a defendant to simultaneous supervision as a parolee and a

probationer — a practical consequence of a prison-plus-probation

sentence. Allman, ¶ 39. But in Manaois, the supreme court

concluded that the legislature’s clear intent to allow prison-plus-

probation sentences under SOLSA overrode any concern about dual

supervision in non-SOLSA cases. Manaois, ¶ 67 & n.18.

¶ 14 Second, we are not persuaded that because Hall’s SOISP

sentence was ordered to run concurrently with, not consecutively

5 to, his prison sentence, the SOLSA exception does not apply. Hall

does not explain why this distinction matters, and the only related

authority we have found suggests it does not. Cf. People v.

Snedeker, 2023 COA 46, ¶¶ 5, 16 (Allman did not prohibit the

court, in resolving two cases, from imposing a prison sentence in

one case and a concurrent probation sentence in the other case)

(cert. granted Feb. 26, 2024).

¶ 15 Third, to the extent Hall contends that his sentence is

unlawful for the independent reason that the court had to impose

consecutive sentences under section 18-1.3-1004(5)(a), C.R.S.

2024, we disagree. Section 18-1.3-1004(5)(a) mandates consecutive

sentencing in SOLSA cases involving multiple convictions arising

from the same incident — but only if the court imposes an

indeterminate prison sentence for the sex offense. Hall’s original

sentence did not include an indeterminate prison sentence for a sex

offense (he received a determinate sentence for a “sex-related”

offense and SOISP for the sex offense), so section 18-1.3-1004(5)(a)

does not apply.

¶ 16 In sum, we conclude that Hall’s original sentence was lawful.

And because the legality of a sentence is a question of law, and no

6 facts are in dispute, Hall was not entitled to an evidentiary hearing

or the appointment of counsel in connection with his Crim. P. 35(a)

motion. See People v. Lepine, 744 P.2d 81, 83 (Colo. App. 1987);

see also People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (“A

trial court may decline to appoint counsel in connection with a

[postconviction] motion that may be denied as a matter of law

without an evidentiary hearing.”).3

C. Double Jeopardy Claim

¶ 17 Hall’s argument concerning an alleged violation of his double

jeopardy rights is unclear. If his argument is that the court could

not impose the revocation sentence once he had started serving

SOISP, that argument is foreclosed by our well-settled precedent.

See, e.g., People v. Castellano, 209 P.3d 1208, 1209-10 (Colo. App.

2009) (double jeopardy does not bar the imposition of an increased

sentence after revocation of probation); § 16-11-206(5), C.R.S. 2024

3 Hall’s reliance on Crim. P. 35(c) procedures is misplaced, as his

motion is properly construed as a motion to correct an illegal sentence under Crim. P. 35(a). See People v. Larsen, 2023 COA 28, ¶ 16 (explaining that the substance of a postconviction motion controls what type of motion it is).

7 (“If probation is revoked, the court may then impose any sentence

. . . which might originally have been imposed . . . .”).

¶ 18 But regardless of whether we have properly articulated his

argument, the claim is time barred. A double jeopardy claim, which

challenges the constitutionality of a sentence, is cognizable under

Crim. P. 35(c), not Crim. P. 35(a). See People v. Collier, 151 P.3d

668, 672 (Colo. App. 2006). Generally, Crim. P. 35(c) claims must

be raised within three years of the date the defendant’s judgment of

conviction becomes final. See § 16-5-402(1), C.R.S. 2024. Hall’s

amended judgment of conviction became final in February 2017,

when his revocation sentence was affirmed on appeal and the

mandate issued. See Hunsaker v. People, 2021 CO 83, ¶ 36. Hall

filed his postconviction motion in August 2023, more than six years

later, and he did not allege justifiable excuse or excusable neglect

for his late filing. See People v. Clouse, 74 P.3d 336, 340 (Colo.

App. 2002) (a defendant must allege facts in his postconviction

motion that, if true, would establish justifiable excuse or excusable

neglect for the delay in filing).

8 D. Unlawful Confinement Claim

¶ 19 As we understand Hall’s argument, he says that because his

original prison-plus-probation sentences ran concurrently, by the

time of his resentencing, he had already served about seven years of

his SOISP sentence in prison. And as of the date of his

postconviction motion, he had served seven or eight years of the

revocation sentence, for a total time served on the SAOC-POT

conviction of about fifteen years.

¶ 20 To the extent Hall contends that he has discharged his

revocation sentence, we note first that the upper end of the

revocation sentence is life in prison, and second, that a claim

challenging a mandatory release date must be brought in a separate

civil action against the DOC or the State Board of Parole. See

People v. Huerta, 87 P.3d 266, 267 (Colo. App. 2004). Thus, we

may not address this claim under Crim. P. 35(a).

III. Disposition

¶ 21 The order is affirmed.

JUDGE YUN and JUDGE KUHN concur.