24CA0532 Peo v Stevens 01-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0532 El Paso County District Court Nos. 95CR3067 & 95CR3461 Honorable David Shakes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Shane Stevens,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Shane Stevens, Pro Se ¶1 Defendant, Shane Stevens, appeals the district court’s order
denying his pro se Crim. P. 35(a) motion to correct an illegal
sentence. We affirm.
I. Background
A. Plea Disposition and Sentencing
¶2 In 1995, Stevens, then a juvenile, entered into a plea
disposition resolving two separate, unrelated cases in El Paso
County District Court. In Case No. 95CR3067, he pleaded guilty to
attempted first degree assault, and in Case No. 95CR3461, he
pleaded guilty to first degree sexual assault and escape.
¶3 Stevens was initially sentenced to twelve years in prison for
the attempted assault count, consecutive to a four-year prison term
for the escape count. Those sentences were suspended on the
condition that Stevens complete six years in the Youthful Offender
System (YOS). For the sexual assault count, the court sentenced
Stevens to a six-year term of probation to be served consecutively to
his YOS sentence.
¶4 In 1997, Stevens escaped from YOS. The district court
revoked his YOS sentence and imposed a sixteen-year prison
sentence in Case No. 95CR3067, consecutive to a sixteen-year
1 prison sentence in Case No. 95CR3461. The minute orders don’t
reflect a consideration of the originally imposed probationary
sentence, and there are no corresponding updated mittimuses.
¶5 Stevens filed a motion to reconsider his thirty-two-year
sentence. Among other things, he asserted that, during the
providency hearing, the district court repeatedly told him he would
receive a maximum of sixteen years in prison if he failed to
successfully complete YOS. The court granted the motion and
amended Stevens’ prison sentences to run concurrently with one
another. While the amended judgments reflected concurrent
sixteen-year prison sentences for each count, they still made no
mention of the originally imposed probationary term for sexual
assault.
B. Previous Crim. P. 35(c) Proceedings and Appeals
¶6 In 1998, Stevens filed a pro se Crim. P. 35(c) motion seeking to
have his guilty pleas and corresponding convictions in both cases
vacated on various grounds. The public defender initially appointed
to investigate Stevens’ request for postconviction relief withdrew,
concluding that the claims lacked merit. The district court agreed
and denied Stevens’ motion. On appeal, a division of this court
2 reversed and remanded the case with directions to appoint
conflict-free counsel “for the purpose of pursuing . . . any arguably
meritorious claims [Stevens] may have.” People v. Stevens, (Colo.
App. No. 00CA1817, Aug. 30, 2001) (not published pursuant to
C.A.R. 35(f)) (Stevens I).
¶7 In 2002 and 2003, postconviction counsel filed an amended
Crim. P. 35(c) motion and a memorandum of law in support of the
amended motion. Relying on Chae v. People, 780 P.2d 481 (Colo.
1989), counsel claimed, as relevant here, that Stevens’ plea
agreement was invalid because it contained an illegal sentence — a
probation sentence ordered to be served consecutively to a prison
sentence — and that the illegal portion of the sentence couldn’t be
“severed from the plea agreement without a resulting material
compromise of the same.”
¶8 The district court denied Stevens’ claim. However, after
determining that it had erroneously revoked the previously imposed
sentence to probation when it revoked Stevens’ YOS term and
hadn’t adequately advised Stevens about mandatory parole, the
court (1) vacated Stevens’ sixteen-year prison sentence for sexual
assault; (2) reinstated the six-year probation term for that offense,
3 to be served consecutively to Stevens’ prison terms; and
(3) amended the two remaining prison sentences to thirteen years
each, to be served concurrently.
¶9 Stevens appealed the district court’s order denying his guilty
plea challenge, and a division of this court affirmed, reasoning that
the district court had discretion to impose consecutive prison and
probation sentences. People v. Stevens, slip op. at 3-6 (Colo. App.
No. 04CA0289, Dec. 1, 2005) (not published pursuant to C.A.R.
35(f)) (Stevens II).
¶ 10 Several years later, in 2021, Stevens filed another pro se
postconviction motion citing Crim. P. 35(a) and Crim. P. 35(c). He
argued that, although he had served his sentences, the supreme
court’s holding in Allman v. People, 2019 CO 78, ¶¶ 33, 40 — that a
court may not impose sentences to both imprisonment and
probation for multiple offenses in the same case — rendered the
sentencing scheme provided in his plea agreement illegal and that
he should therefore be permitted to withdraw from the plea
agreement and, thus, withdraw his guilty plea. Concluding that
Stevens’ sentence was not prohibited by Allman, the district court
denied the motion without a hearing.
4 ¶ 11 A division of this court affirmed the district court’s denial on
different grounds. People v. Stevens, (Colo. App. No. 21CA1829,
Jan. 26, 2023) (not published pursuant to C.A.R. 35(e)) (Stevens III).
The division concluded that, although Allman rendered Stevens’
original sentences to prison and probation illegal, the issue was
moot because he had fully served his sentences. Id. at ¶¶ 18-19.
The division also concluded that Stevens’ challenge to the validity of
his plea, properly construed under Crim. P. 35(c), was successive
because it was raised and resolved in Stevens II and because Allman
didn’t provide an exception to the bar on successive motions. Id. at
¶¶ 20-28.
C. Current Postconviction Proceedings
¶ 12 In 2024, Stevens filed the pro se Crim. P. 35(a) motion at
issue. He again argued that his mixed prison and probation
sentences were illegal, which rendered his plea agreement invalid.
He also argued that he wasn’t procedurally barred from raising the
claim because illegal sentence claims can be raised at any time.
Acknowledging that he had fully served his sentences in these
cases, Stevens asserted that the sentences imposed were “void ab
initio” and required “the judgment of conviction [to] be vacated.” He
5 further asserted that he had a “present need” to challenge the
sentences because he is required to register as a sex offender for
life. Thus, Stevens asked the district court to rule that his plea was
invalid, “vacate the guilty plea,” and allow him to “plead anew.”
¶ 13 The district court denied Stevens’ motion as follows: “The
motion to correct illegal sentence is denied. The issue is moot and
was addressed in the Court of Appeals decision in 21CA1829 on
January 26, 2023 at pages 8 and 9.”
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24CA0532 Peo v Stevens 01-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0532 El Paso County District Court Nos. 95CR3067 & 95CR3461 Honorable David Shakes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Shane Stevens,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Shane Stevens, Pro Se ¶1 Defendant, Shane Stevens, appeals the district court’s order
denying his pro se Crim. P. 35(a) motion to correct an illegal
sentence. We affirm.
I. Background
A. Plea Disposition and Sentencing
¶2 In 1995, Stevens, then a juvenile, entered into a plea
disposition resolving two separate, unrelated cases in El Paso
County District Court. In Case No. 95CR3067, he pleaded guilty to
attempted first degree assault, and in Case No. 95CR3461, he
pleaded guilty to first degree sexual assault and escape.
¶3 Stevens was initially sentenced to twelve years in prison for
the attempted assault count, consecutive to a four-year prison term
for the escape count. Those sentences were suspended on the
condition that Stevens complete six years in the Youthful Offender
System (YOS). For the sexual assault count, the court sentenced
Stevens to a six-year term of probation to be served consecutively to
his YOS sentence.
¶4 In 1997, Stevens escaped from YOS. The district court
revoked his YOS sentence and imposed a sixteen-year prison
sentence in Case No. 95CR3067, consecutive to a sixteen-year
1 prison sentence in Case No. 95CR3461. The minute orders don’t
reflect a consideration of the originally imposed probationary
sentence, and there are no corresponding updated mittimuses.
¶5 Stevens filed a motion to reconsider his thirty-two-year
sentence. Among other things, he asserted that, during the
providency hearing, the district court repeatedly told him he would
receive a maximum of sixteen years in prison if he failed to
successfully complete YOS. The court granted the motion and
amended Stevens’ prison sentences to run concurrently with one
another. While the amended judgments reflected concurrent
sixteen-year prison sentences for each count, they still made no
mention of the originally imposed probationary term for sexual
assault.
B. Previous Crim. P. 35(c) Proceedings and Appeals
¶6 In 1998, Stevens filed a pro se Crim. P. 35(c) motion seeking to
have his guilty pleas and corresponding convictions in both cases
vacated on various grounds. The public defender initially appointed
to investigate Stevens’ request for postconviction relief withdrew,
concluding that the claims lacked merit. The district court agreed
and denied Stevens’ motion. On appeal, a division of this court
2 reversed and remanded the case with directions to appoint
conflict-free counsel “for the purpose of pursuing . . . any arguably
meritorious claims [Stevens] may have.” People v. Stevens, (Colo.
App. No. 00CA1817, Aug. 30, 2001) (not published pursuant to
C.A.R. 35(f)) (Stevens I).
¶7 In 2002 and 2003, postconviction counsel filed an amended
Crim. P. 35(c) motion and a memorandum of law in support of the
amended motion. Relying on Chae v. People, 780 P.2d 481 (Colo.
1989), counsel claimed, as relevant here, that Stevens’ plea
agreement was invalid because it contained an illegal sentence — a
probation sentence ordered to be served consecutively to a prison
sentence — and that the illegal portion of the sentence couldn’t be
“severed from the plea agreement without a resulting material
compromise of the same.”
¶8 The district court denied Stevens’ claim. However, after
determining that it had erroneously revoked the previously imposed
sentence to probation when it revoked Stevens’ YOS term and
hadn’t adequately advised Stevens about mandatory parole, the
court (1) vacated Stevens’ sixteen-year prison sentence for sexual
assault; (2) reinstated the six-year probation term for that offense,
3 to be served consecutively to Stevens’ prison terms; and
(3) amended the two remaining prison sentences to thirteen years
each, to be served concurrently.
¶9 Stevens appealed the district court’s order denying his guilty
plea challenge, and a division of this court affirmed, reasoning that
the district court had discretion to impose consecutive prison and
probation sentences. People v. Stevens, slip op. at 3-6 (Colo. App.
No. 04CA0289, Dec. 1, 2005) (not published pursuant to C.A.R.
35(f)) (Stevens II).
¶ 10 Several years later, in 2021, Stevens filed another pro se
postconviction motion citing Crim. P. 35(a) and Crim. P. 35(c). He
argued that, although he had served his sentences, the supreme
court’s holding in Allman v. People, 2019 CO 78, ¶¶ 33, 40 — that a
court may not impose sentences to both imprisonment and
probation for multiple offenses in the same case — rendered the
sentencing scheme provided in his plea agreement illegal and that
he should therefore be permitted to withdraw from the plea
agreement and, thus, withdraw his guilty plea. Concluding that
Stevens’ sentence was not prohibited by Allman, the district court
denied the motion without a hearing.
4 ¶ 11 A division of this court affirmed the district court’s denial on
different grounds. People v. Stevens, (Colo. App. No. 21CA1829,
Jan. 26, 2023) (not published pursuant to C.A.R. 35(e)) (Stevens III).
The division concluded that, although Allman rendered Stevens’
original sentences to prison and probation illegal, the issue was
moot because he had fully served his sentences. Id. at ¶¶ 18-19.
The division also concluded that Stevens’ challenge to the validity of
his plea, properly construed under Crim. P. 35(c), was successive
because it was raised and resolved in Stevens II and because Allman
didn’t provide an exception to the bar on successive motions. Id. at
¶¶ 20-28.
C. Current Postconviction Proceedings
¶ 12 In 2024, Stevens filed the pro se Crim. P. 35(a) motion at
issue. He again argued that his mixed prison and probation
sentences were illegal, which rendered his plea agreement invalid.
He also argued that he wasn’t procedurally barred from raising the
claim because illegal sentence claims can be raised at any time.
Acknowledging that he had fully served his sentences in these
cases, Stevens asserted that the sentences imposed were “void ab
initio” and required “the judgment of conviction [to] be vacated.” He
5 further asserted that he had a “present need” to challenge the
sentences because he is required to register as a sex offender for
life. Thus, Stevens asked the district court to rule that his plea was
invalid, “vacate the guilty plea,” and allow him to “plead anew.”
¶ 13 The district court denied Stevens’ motion as follows: “The
motion to correct illegal sentence is denied. The issue is moot and
was addressed in the Court of Appeals decision in 21CA1829 on
January 26, 2023 at pages 8 and 9.”
II. Analysis
¶ 14 On appeal, Stevens contends that the district court erred by
denying his Crim. P. 35(a) motion. He maintains that his mixed
prison and probation sentences were illegal under Allman, which
rendered his plea agreement invalid. He again asserts that (1) he
has a “present need” to challenge his sentences because he is
required to register as a sex offender, (2) his plea agreement should
be vacated, and (3) he should be allowed to plead anew.
¶ 15 As to Stevens’ claim that his prison and probation sentences
were illegal under Allman, the division in Stevens III previously
ruled that, while the sentences were indeed illegal, such a claim
was moot because Stevens had fully served his sentences. This
6 determination is the law of the case, and we see no reason to depart
from it. See People v. Tolbert, 216 P.3d 1, 5 (Colo. App. 2007)
(successive Crim. P. 35(a) claims are subject to the law of the case
doctrine, under which courts follow earlier rulings from the same
case unless it would result in error or the rulings are no longer
sound due to changed conditions).
¶ 16 Stevens’ claim that his illegal sentence rendered his plea
agreement invalid, thereby requiring vacatur of the plea agreement,
is cognizable under Crim. P. 35(c), not Crim. P. 35(a). See People v.
Rockwell, 125 P.3d 410, 414 (Colo. 2005) (“[M]otions that challenge
the validity of a defendant’s plea or the manner in which it was
taken are properly brought under Crim. P. 35(c).”). With certain
exceptions not argued here, Crim. P. 35(c)(3)(VI) and (VII) require a
district court to deny a Crim. P. 35(c) claim as successive if the
issue was or could’ve been raised and resolved in a prior appeal or
postconviction proceeding.
¶ 17 Here, Stevens’ precise claim was raised and resolved in
Stevens III and is therefore successive. He cannot merely change
the caption of his motion to one under Crim. P. 35(a) in order to
re-raise the claim. Nor may he use postconviction motions as a
7 means of obtaining perpetual review of his convictions. See People
v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996).
III. Disposition
¶ 18 The order is affirmed.
JUDGE FOX and JUDGE LUM concur.