People v. Vargas-Reyes

434 P.3d 1198
CourtColorado Court of Appeals
DecidedDecember 27, 2018
DocketCourt of Appeals No. 17CA1690
StatusPublished

This text of 434 P.3d 1198 (People v. Vargas-Reyes) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Vargas-Reyes, 434 P.3d 1198 (Colo. Ct. App. 2018).

Opinion

Opinion by JUDGE TOW

¶ 1 Defendant, Gustavo Adolfo Vargas-Reyes, appeals the denial of his second Crim. P. 35(c) motion, which he filed seventeen years after the judgment of conviction and eleven years after his first Crim. P. 35(c) motion. However, before resolving Vargas-Reyes's claim, we must first determine whether he has sought relief in the correct court. Because we determine that his motion was resolved by a county court judge, we lack jurisdiction and thus dismiss the appeal.

I. Background

¶ 2 In 2000, the prosecution charged Vargas-Reyes with possession of a schedule II controlled substance, a class 4 felony, and lingering in the gaming area of a casino by a person under twenty-one years of age, a class 2 misdemeanor. The prosecution filed the information in county court, pursuant to section 16-5-101(1)(c), C.R.S. 2018.

¶ 3 At the dispositional hearing, Vargas-Reyes, represented by counsel (plea counsel), pleaded guilty to two misdemeanors: the lingering in the gaming area charge and an added count of attempted possession of a schedule V controlled substance, and he received a suspended thirty-day jail sentence and twenty-four hours of community service. Pursuant to the plea agreement, the People filed a motion to dismiss the felony charge, which the court granted.

¶ 4 Six years later, Vargas-Reyes, represented by new counsel (first postconviction *1199counsel), filed his first Crim. P. 35(c) motion (the 2006 motion). In it, he asserted that the United States Citizenship and Immigration Services had recently denied his application to adjust his status to a lawful permanent resident because of his misdemeanor drug conviction in this case. He also alleged that, because of that drug conviction, he was subject to deportation from the United States. He claimed that his guilty plea was not voluntary, knowing, and intelligent because his plea counsel never asked him about his immigration status and never informed him of the immigration consequences of his guilty plea.

¶ 5 The evidentiary hearing on the motion was presided over by Gilpin County Judge Frederic Rodgers, the same judge who had accepted the plea and imposed the sentence six years earlier. The court determined that it would hold a bifurcated proceeding in which it would first address whether the motion was time barred before addressing the merits. At the conclusion of the first stage of the proceeding, the court denied the motion as time barred on the ground that Vargas-Reyes had not shown justifiable excuse or excusable neglect for the late filing. That order was never appealed.

¶ 6 In 2017, Vargas-Reyes hired new postconviction counsel, and filed the Crim. P. 35(c) motion at issue (the 2017 motion). In this new postconviction motion, he alleged that he had recently been charged in federal court with illegal entry into the United States. He reasserted his claim that his plea counsel had been ineffective by not informing him of the immigration consequences of his guilty plea, but this time included an allegation that plea counsel had made "affirmative misrepresentations" to him. He also claimed that his first postconviction counsel had provided ineffective assistance by, among other things, failing to object to the use of a bifurcated proceeding at the 2006 evidentiary hearing.

¶ 7 Gilpin County Judge David Taylor summarily denied Vargas-Reyes's second Crim. P. 35(c) motion in a written order on August 2, 2017. Vargas-Reyes then filed this appeal within the time period provided in C.A.R. 4(b).1

II. Appellate Jurisdiction

¶ 8 The People suggest that we may not have jurisdiction to hear this appeal because the appeal might be from the county court, rather than the district court, in Gilpin County. This court issued an order to show cause on the jurisdictional issue, and Vargas-Reyes filed a response. The motions division deferred ruling on the issue. We now address it and conclude that the People are correct.

¶ 9 Jurisdiction is a question of law, which we review de novo. People v. Maser , 2012 CO 41, ¶ 10, 278 P.3d 361.

¶ 10 Appellate jurisdiction over county court decisions rests not with this court, but with the district court for the judicial district in which the relevant county court sits. See §§ 13-6-310(1), 16-2-114(1), C.R.S. 2018; Crim. P. 37(a) ; Maser , ¶ 12. Thus, if the denial of the postconviction motion was entered in county court, we lack jurisdiction to address Vargas-Reyes's claims. If it is an appeal from district court, we may hear the appeal. See § 13-4-102(1), C.R.S. 2018; C.A.R. 1(a) ; Maser , ¶ 12.

¶ 11 The People's concern is that a county judge issued the postconviction order at issue. However, that a county judge issued the order does not adequately inform our inquiry. "Courts, not judges, are vested with jurisdiction." People v. Jachnik , 116 P.3d 1276, 1277 (Colo. App. 2005). Thus, the operative question is not whether the judge who issued the ruling was a county or district judge, but rather whether the order was issued by the county or district court.

¶ 12 Complicating the issue is the fact that the Chief Judge of the First Judicial District (which includes Gilpin County and Jefferson County) has issued a standing order of temporary assignment authorizing county court *1200judges in that district to act in the capacity of a district judge in any felony case not involving a class 1, class 2, or class 3 felony. This is an appropriate exercise of authority by a chief judge. See People v. Sherrod , 204 P.3d 466, 469 (Colo. 2009) (noting that "county judges can ... be appointed to preside over matters in the district court," and discussing source of a chief judge's authority to issue such an order).

¶ 13 Thus, there are times when county judges such as Judge Rodgers and Judge Taylor act under their authority as county judges appointed by the Governor, and other times when their conduct is that of acting district judges appointed by their Chief Judge. Again, the dispositive question here is which hat Judge Taylor was wearing, so to speak, when he denied Vargas-Reyes's postconviction motion. To answer this question, however, we must also explore which hat Judge Rodgers was wearing when he accepted Vargas-Reyes's plea.

A. The Commencement of a Criminal Action

¶ 14 In 1972, the legislature repealed and re-enacted the criminal procedure code, providing in part for a variety of methods of instituting a criminal action. See Ch. 44, sec. 1, § 39-5-101, 1972 Colo. Sess. Laws 213.

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Related

People v. Maser
2012 CO 41 (Supreme Court of Colorado, 2012)
People v. Jachnik
116 P.3d 1276 (Colorado Court of Appeals, 2005)
People v. Sherrod
204 P.3d 466 (Supreme Court of Colorado, 2009)

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Bluebook (online)
434 P.3d 1198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vargas-reyes-coloctapp-2018.