Peo v. Owens

• Court: Colorado Court of Appeals
• Decided: November 21, 2024
• Docket: 24CA0038
• Status: Unpublished

Opinion

24CA0038 Peo v Owens 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0038 City and County of Denver District Court No. 06CR7406 Honorable Ericka F.H. Englert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gregory Mark Owens,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE LIPINSKY J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Gregory Mark Owens, Pro Se ¶1 Gregory Mark Owens appeals the district court’s order denying

his fifth Crim. P. 35(c) motion (the fifth motion) without a hearing.

We affirm.

¶2 A jury found Owens guilty of first degree murder. On direct

appeal, Owens contended, as relevant here, that the prosecution

violated his Fifth Amendment privilege against self-incrimination by

“us[ing] his pre-arrest silence as substantive evidence of his guilt

and sanity.” People v. Owens, slip op. at 8 (Colo. App. No.

08CA1834, May 16, 2013) (not published pursuant to C.A.R. 35(f)).

A division of this court rejected Owens’s Fifth Amendment

argument and affirmed the judgment of conviction. See id. at 8-13,

19.

¶3 In 2014, Owens filed his first pro se Crim. P. 35(c) motion (the

first motion), in which he asserted, as relevant here, a different Fifth

Amendment violation from the one presented in his direct appeal:

the trial court erred by denying his motion to suppress the

inculpatory statements he made during a custodial interrogation

without a valid waiver of his rights under Miranda v. Arizona, 384

U.S. 436 (1966). The district court summarily denied the first

motion without addressing Owens’s Miranda claim.

1 ¶4 Owens did not appeal the denial of the first motion. Instead,

he filed three more pro se postconviction motions, each of which

included, among other claims, a Miranda claim. The district court

summarily denied these motions as successive in 2015, 2017, and

2021. See Crim. P. 35(c)(3)(VI), (VII). Owens appealed the denial of

his fourth postconviction motion, and a division of this court

affirmed. See People v. Owens, (Colo. App. No. 21CA2050, June 15,

2023) (not published pursuant to C.A.R. 35(e)).

¶5 Owens filed the fifth motion in 2023, in which he asserted,

among other claims, another Miranda claim. He argued that the

Miranda claim in the fifth motion was excepted from the

successiveness bar because the claim rested on section 16-3-406,

C.R.S. 2024, a statute enacted in 2023. Ch. 192, sec. 1, § 16-3-

406, 2023 Colo. Sess. Laws 963-65. Owens asserted that section

16-3-406 established “a new rule of constitutional law that was

previously unavailable” and, therefore, his argument premised on

the statute was not successive under Crim. P. 35(c)(3)(VI)(b), (VII)(c).

The district court denied the fifth motion as successive, and Owens

appeals. All of Owens’s arguments in this appeal rest on section

16-3-406.

2 ¶6 We review de novo a district court’s decision to deny a Crim. P.

35(c) motion without an evidentiary hearing. People v. Cali, 2020

CO 20, ¶ 14, 459 P.3d 516, 519. A district court may deny a

defendant’s Crim. P. 35(c) motion without an evidentiary hearing if

the motion, files, and record of the case show to the satisfaction of

the court that the defendant is not entitled to relief. Crim. P.

35(c)(3)(IV).

¶7 Generally, a district court must deny any claim that was

raised and resolved, or that could have been presented, in a prior

appeal or postconviction proceeding. See Crim. P. 35(c)(3)(VI), (VII).

One of the exceptions to this requirement applies to postconviction

claims “based on a new rule of constitutional law that was

previously unavailable, if that rule should be applied retroactively to

cases on collateral review.” Crim. P. 35(c)(3)(VII)(c). Owens

contends that the enactment of section 16-3-406 qualifies as an

exception under Crim. P. 35(c)(3)(VII)(c). We disagree.

¶8 Section 16-3-406 did not establish a new rule of constitutional

law that was previously unavailable — rather, the statute explicitly

codified the procedural safeguards recognized in Miranda to

“provide independent statutory protection consistent with Miranda

3 in no greater or lesser degree.” § 16-3-406(1)(i) (emphasis added);

see § 16-3-406(1)(e)-(h). In other words, the statute provides the

same constitutional protections that the Supreme Court prescribed

in Miranda in 1966.

¶9 The specific rule of law that Owens seeks to apply — that any

waiver of the privilege against self-incrimination must be made

voluntarily, knowingly, and intelligently — is not new and was

available to Owens at the time of his direct appeal in 2008. See

Miranda, 384 U.S. at 444; see also People v. Harris, 552 P.2d 10, 12

(Colo. 1976). Even if section 16-3-406 could be viewed as

establishing a new rule of law, the rule appears in a newly enacted

statute and is not a “new rule of constitutional law” that was

previously unavailable. Crim. P. 35(c)(3)(VII)(c) (emphasis added).

Accordingly, Crim. P. 35(c)(3)(VII) bars as successive the Miranda

claim that Owens presented in the fifth motion.

¶ 10 Owens does not assert that any other exception in Crim. P.

35(c)(3)(VII) applies to the claims raised in the fifth motion. Thus,

we conclude that the fifth motion is successive, no exception to the

successiveness bar applies, and the district court properly denied

the fifth motion without a hearing.

4 ¶ 11 The order is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.