11CA1918 Peo v Padilla 12-12-2013
COLORADO COURT OF APPEALS
Court of Appeals No. 11CA1918 City and County of Denver District Court No. 05CR4119 Honorable Christina M. Habas, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Javier L. Padilla,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE RICHMAN Graham and Navarro, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced December 12, 2013
John W. Suthers, Attorney General, John J. Fuerst III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant Defendant, Javier L. Padilla, appeals the trial court’s order
denying his postconviction motion filed under Crim P. 35(a) and (b)
challenging the constitutionality of his sentence. We affirm.
I. Background
Insofar as it is pertinent to this appeal, defendant was charged
with and tried on numerous counts relating to a shooting incident
in which three people were injured. Following a jury trial, the trial
court merged two convictions for extreme indifference assault into
two convictions for first degree assault with a deadly weapon, and
entered a judgment of conviction against defendant on three counts
of attempted first degree murder (extreme indifference) and two
counts of first degree assault with a deadly weapon, together with
several counts of crime of violence enhancers. The court imposed
consecutive sentences on all counts.
On direct appeal defendant challenged the assault convictions
on the grounds that the verdict forms were fatally ambiguous.
The division rejected his argument, noting that:
The original draft of the forms mistakenly referred to attempted first degree assault. The court noticed this mistake and tried to correct it by removing the word “attempt” from the forms. However, on three of the four forms the
1 court failed to remove all the language that referred to attempt. The jury returned guilty verdicts on all four forms.
Although the division concluded that the forms were ambiguous, it
affirmed the conviction because the record showed that the jury
intended to find defendant guilty of first degree assault.
On direct appeal defendant also argued that because the
convictions for first degree assault and attempted murder (extreme
indifference) were based on the same conduct, the convictions
violate the prohibition against double jeopardy. The division
rejected this argument. Defendant did not argue on direct appeal
that the convictions for the assaults and attempted murder violated
double jeopardy because they were based on identical evidence.
The Colorado Supreme Court denied certiorari review on
February 16, 2010, and the mandate issued on March 19, 2010.
Defendant timely filed his combined Rule 35(a) and (b) motion. The
trial court denied the motion, which we conclude here was actually
a Rule 35(c) motion, without a hearing.
II. Applicable Law and Standard of Review
“A court must hold an evidentiary hearing on a Crim. P. 35(c)
motion unless the motion, the files, and the record clearly establish
2 that the allegations in the motion lack merit and do not entitle the
defendant to relief.” Kazadi v. People, 2012 CO 73, ¶ 17.
We review a district court’s summary denial of a motion for
postconviction relief de novo. See People v. Gardner, 250 P.3d
1262, 1266 (Colo. App. 2010).
III. Analysis
In his postconviction motion and on appeal defendant
contends that the trial court (1) violated his due process rights by
imposing ten-year consecutive sentences on the assault convictions
because the jury found defendant guilty only of “attempted” first
degree assault, rather than first degree assault, and erred by
imposing a sentence for assault inconsistent with its stated
objective at the sentencing hearing; and did not rule on the issue in
denying his combined Rule 35(a) and (b) motion; and (2) violated his
rights against double jeopardy by imposing separate and
consecutive sentences for the convictions for first degree assault
and attempted murder (extreme indifference) because they were
based on identical evidence.
3 A. Defendant’s Motion is a Rule 35(c) motion
The People assert that while styled a Rule 35 (a) and (b)
motion, defendant’s motion is properly considered under Rule 35(c).
We address the People’s procedural argument before addressing, if
necessary, the merits of the trial court’s ruling. See People v.
Wenzinger, 155 P.3d 415, 419 (Colo. App. 2006).
As a threshold matter, we determine that defendant’s motion
is, in fact, a Rule 35(c) motion. Defendant’s first and second issues
contend that he was sentenced in violation of the due process and
double jeopardy provisions of the state and federal constitutions.
Such contentions fall within Rule 35(c)(2)(I) (“That the . . . sentence
imposed [was] in violation of the Constitution or laws of the United
States or the constitution or the laws of this state.”). The
contentions do not fall within the purview of subsection (a) which
provides that “[t]he court may correct a sentence that was not
authorized by law or that was imposed without jurisdiction at any
time and may correct a sentence imposed in an illegal manner
within the time provided herein for the reduction of sentence.”
Crim. P. 35(a). They also do not fall within subsection (b) which
provides that the court can reduce a sentence provided a timely
4 motion is filed. Because defendant alleged a violation of
constitutional rights under the due process clauses and double
jeopardy protections of the federal and state constitutions, he failed
to state a claim that his sentence was “not authorized by law” or
“imposed without jurisdiction.” Wenzinger, 155 P.3d at 419.
Defendant argues for the first time in his reply brief that Rule
35 is ambiguous and must be construed in his favor. We do not
address arguments raised for the first time in a reply brief. People
v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990).
B. Successive Claims
The People contend that all of defendant’s claims should be
rejected as successive, because they were previously litigated on
direct appeal, or could have been litigated. We agree.
Crim. P. 35(c)(3)(VI) provides, “[t]he court shall deny any claim
that was raised and resolved in in a prior appeal or postconviction
proceeding on behalf of the same defendant [except in situations
not relevant here].”
Crim. P. 35(c)(3)(VII) states that a court “shall deny any claim
that could have been presented in an appeal previously brought or
postconviction proceeding previously brought [subject to exceptions
5 not applicable here].” “Once a claim has been raised and disposed
of on appeal, it cannot be raised again in a later Crim. P. 35
motion.” People v. Davis, 759 P.2d 742, 746 (Colo. Ct. App. 1988)
(citing People v. Johnson, 638 P.2d 61 (Colo. 1981)). “[F]ailure to
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11CA1918 Peo v Padilla 12-12-2013
COLORADO COURT OF APPEALS
Court of Appeals No. 11CA1918 City and County of Denver District Court No. 05CR4119 Honorable Christina M. Habas, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Javier L. Padilla,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE RICHMAN Graham and Navarro, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced December 12, 2013
John W. Suthers, Attorney General, John J. Fuerst III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant Defendant, Javier L. Padilla, appeals the trial court’s order
denying his postconviction motion filed under Crim P. 35(a) and (b)
challenging the constitutionality of his sentence. We affirm.
I. Background
Insofar as it is pertinent to this appeal, defendant was charged
with and tried on numerous counts relating to a shooting incident
in which three people were injured. Following a jury trial, the trial
court merged two convictions for extreme indifference assault into
two convictions for first degree assault with a deadly weapon, and
entered a judgment of conviction against defendant on three counts
of attempted first degree murder (extreme indifference) and two
counts of first degree assault with a deadly weapon, together with
several counts of crime of violence enhancers. The court imposed
consecutive sentences on all counts.
On direct appeal defendant challenged the assault convictions
on the grounds that the verdict forms were fatally ambiguous.
The division rejected his argument, noting that:
The original draft of the forms mistakenly referred to attempted first degree assault. The court noticed this mistake and tried to correct it by removing the word “attempt” from the forms. However, on three of the four forms the
1 court failed to remove all the language that referred to attempt. The jury returned guilty verdicts on all four forms.
Although the division concluded that the forms were ambiguous, it
affirmed the conviction because the record showed that the jury
intended to find defendant guilty of first degree assault.
On direct appeal defendant also argued that because the
convictions for first degree assault and attempted murder (extreme
indifference) were based on the same conduct, the convictions
violate the prohibition against double jeopardy. The division
rejected this argument. Defendant did not argue on direct appeal
that the convictions for the assaults and attempted murder violated
double jeopardy because they were based on identical evidence.
The Colorado Supreme Court denied certiorari review on
February 16, 2010, and the mandate issued on March 19, 2010.
Defendant timely filed his combined Rule 35(a) and (b) motion. The
trial court denied the motion, which we conclude here was actually
a Rule 35(c) motion, without a hearing.
II. Applicable Law and Standard of Review
“A court must hold an evidentiary hearing on a Crim. P. 35(c)
motion unless the motion, the files, and the record clearly establish
2 that the allegations in the motion lack merit and do not entitle the
defendant to relief.” Kazadi v. People, 2012 CO 73, ¶ 17.
We review a district court’s summary denial of a motion for
postconviction relief de novo. See People v. Gardner, 250 P.3d
1262, 1266 (Colo. App. 2010).
III. Analysis
In his postconviction motion and on appeal defendant
contends that the trial court (1) violated his due process rights by
imposing ten-year consecutive sentences on the assault convictions
because the jury found defendant guilty only of “attempted” first
degree assault, rather than first degree assault, and erred by
imposing a sentence for assault inconsistent with its stated
objective at the sentencing hearing; and did not rule on the issue in
denying his combined Rule 35(a) and (b) motion; and (2) violated his
rights against double jeopardy by imposing separate and
consecutive sentences for the convictions for first degree assault
and attempted murder (extreme indifference) because they were
based on identical evidence.
3 A. Defendant’s Motion is a Rule 35(c) motion
The People assert that while styled a Rule 35 (a) and (b)
motion, defendant’s motion is properly considered under Rule 35(c).
We address the People’s procedural argument before addressing, if
necessary, the merits of the trial court’s ruling. See People v.
Wenzinger, 155 P.3d 415, 419 (Colo. App. 2006).
As a threshold matter, we determine that defendant’s motion
is, in fact, a Rule 35(c) motion. Defendant’s first and second issues
contend that he was sentenced in violation of the due process and
double jeopardy provisions of the state and federal constitutions.
Such contentions fall within Rule 35(c)(2)(I) (“That the . . . sentence
imposed [was] in violation of the Constitution or laws of the United
States or the constitution or the laws of this state.”). The
contentions do not fall within the purview of subsection (a) which
provides that “[t]he court may correct a sentence that was not
authorized by law or that was imposed without jurisdiction at any
time and may correct a sentence imposed in an illegal manner
within the time provided herein for the reduction of sentence.”
Crim. P. 35(a). They also do not fall within subsection (b) which
provides that the court can reduce a sentence provided a timely
4 motion is filed. Because defendant alleged a violation of
constitutional rights under the due process clauses and double
jeopardy protections of the federal and state constitutions, he failed
to state a claim that his sentence was “not authorized by law” or
“imposed without jurisdiction.” Wenzinger, 155 P.3d at 419.
Defendant argues for the first time in his reply brief that Rule
35 is ambiguous and must be construed in his favor. We do not
address arguments raised for the first time in a reply brief. People
v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990).
B. Successive Claims
The People contend that all of defendant’s claims should be
rejected as successive, because they were previously litigated on
direct appeal, or could have been litigated. We agree.
Crim. P. 35(c)(3)(VI) provides, “[t]he court shall deny any claim
that was raised and resolved in in a prior appeal or postconviction
proceeding on behalf of the same defendant [except in situations
not relevant here].”
Crim. P. 35(c)(3)(VII) states that a court “shall deny any claim
that could have been presented in an appeal previously brought or
postconviction proceeding previously brought [subject to exceptions
5 not applicable here].” “Once a claim has been raised and disposed
of on appeal, it cannot be raised again in a later Crim. P. 35
motion.” People v. Davis, 759 P.2d 742, 746 (Colo. Ct. App. 1988)
(citing People v. Johnson, 638 P.2d 61 (Colo. 1981)). “[F]ailure to
include all grounds for relief in the first motion will ‘ordinarily result
in a second application containing such grounds being summarily
denied.’” People v. Tolbert, 216 P.3d 1, 7 (Colo. App. 2007) (quoting
People v. Scheer, 184 Colo. 15, 20, 518 P.2d 833, 835 (1974)).
C. Due Process Claims
In defendant’s direct appeal, he challenged his assault
convictions on the ground that the verdict forms were fatally
ambiguous and that defendant was found guilty only of attempted
first degree assault, not of first degree assault. The division rejected
his argument because the jury’s intended meaning could be
ascertained by reference to the record. See People v. Martin, 851
P.2d 186, 188 (Colo. App. 1992). As described above, the division
specifically addressed the inclusion of the word “attempted” and
determined that the inconsistencies in the verdict forms rendered
them ambiguous. However, it concluded that the record showed
that the jury intended to find defendant guilty of first degree assault
6 on all four counts, the verdict forms were not void, and affirmed the
first degree assault convictions. The first claim in defendant’s
postconviction motion was raised and decided in his direct appeal.
Because the convictions for assault were correctly entered, the
trial court did not sentence defendant “inconsistent” with its stated
intentions. In his reply, defendant concedes that the “[f]irst degree
assault carries a minimum mandatory sentence of 10 years in
prison.” That is the sentence that was imposed by the trial court.
D. Double Jeopardy
Similarly, the second claim raised by defendant was raised
and decided, or could have been raised, in his direct appeal. In his
direct appeal, defendant argued that the convictions for first degree
assault and attempted murder (extreme indifference) violated
double jeopardy because they were based on the “same conduct.”
The previous division rejected defendant’s contention because “the
legislature may authorize multiple punishments based on the same
criminal conduct if each offense requires proof of a fact which the
other does not.”
In his postconviction motion, defendant now asserts that the
consecutive sentences for the convictions for first degree assault
7 and attempted murder (extreme indifference) violate double
jeopardy because they were based on “identical evidence.” We view
this contention solely as a constitutional argument because the
postconviction motion did not assert that the consecutive sentences
violate section 18-1-408(3), C.R.S. 2013.1 Notwithstanding the
difference in wording, this argument is either the same as the one
rejected by the division on direct appeal, or is one that could have
been raised on direct appeal. Accordingly, since it was not
presented in that proceeding, it is barred. See Crim. P. 35(c)(3)(VII);
People v. Banks, 924 P.2d 1161, 1163-64 (Colo. App. 1996) (citing
People v. Rodriguez, 914 P.2d 230 (Colo. 1996)).
III. Conclusion
The order is affirmed.
JUDGE GRAHAM and JUDGE NAVARRO concur.
1 Section 18-1-408(3) requires concurrent sentences when
convictions for two or more offenses are supported by identical evidence.