Peo v. Moore

23CA1682 Peo v Moore 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1682
Jefferson County District Court No. 10CR1588
Honorable Philip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher L. Moore,

Defendant-Appellant.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division A
Opinion by CHIEF JUDGE ROMÁN
Hawthorne* and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Philip J. Weiser, Attorney General, Megan C. Rasband, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Christopher L. Moore, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Christopher L. Moore, appeals the district court’s

order denying his most recent Crim. P. 35(c) motion without a

hearing. We affirm the order but remand for correction of the

mittimus.

I. Background

¶2 A jury convicted Moore of aggravated incest, sexual

exploitation of a child, and two counts of sexual assault on a child

as part of a pattern of abuse (pattern counts). The trial court

merged the aggravated incest count with one of the pattern counts

and imposed consecutive indeterminate prison sentences of

thirty-two years to life for each pattern count, and a consecutive

determinate six-year sentence for the sexual exploitation count.

The court stated that Moore would be subject to “a lifetime of

parole.”

¶3 On direct appeal, a division of this court affirmed Moore’s

convictions. However, the division remanded the case to correct the

minimum term of Moore’s two indeterminate sentences to

twenty-four years. People v. Moore, (Colo. App. No. 12CA0787,

Sept. 17, 2015) (not published pursuant to C.A.R. 35(f)) (Moore I).

The appellate mandate in the direct appeal was issued on October

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26, 2016, and the district court issued an amended mittimus

consistent with the Moore I remand on November 4, 2016.

¶4 Moore then filed an unsuccessful Crim. P. 35(b) motion. He

appealed the order denying relief, and a division of this court

affirmed. People v. Moore, (Colo. App. No. 17CA0869, July 12,

2018) (not published pursuant to C.A.R. 35(e)) (Moore II).

¶5 In September 2020, Moore filed a Crim. P. 35(c) motion raising

several claims of ineffective assistance of counsel. Without holding

a hearing, the district court addressed the claims and denied relief.

A division of this court affirmed on the alternative basis that the

motion was untimely. People v. Moore, (Colo. App. No. 21CA0354,

Sept. 29, 2022) (not published pursuant to C.A.R. 35(e)) (Moore III).

¶6 In March 2023, Moore filed another Crim. P. 35(c) motion, the

denial of which is at issue here. He acknowledged that the motion

was filed beyond the limitations period in section 16-5-402(1),

C.R.S. 2024. But, he argued, his failure to seek relief within the

applicable three-year period was the result of circumstances

amounting to justifiable excuse. Namely, he asserted that “his

original sentence was illegal” as determined by Moore I and he was

raising “arguments related to that illegality,” which, in his view, was

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“permitted by section 16-5-402(2)(d)” under Hunsaker v. People,

2021 CO 83. He further asserted that his claims were not

successive.

¶7 Substantively, Moore asserted that trial counsel was ineffective

in failing to:

(1) investigate and discover the sentence illegality addressed in

Moore I;

(2) adequately investigate his background, including trauma in

his childhood, and seek a psychosexual evaluation in order

to obtain a plea bargain;

(3) “look at the evidence prior to setting [the case] for trial”;

(4) file a motion to sever the counts involving his son;

(5) challenge the expertise of a particular witness;

(6) adequately understand his criminal history;

(7) conduct an adequate voir dire during jury selection; and

(8) conduct an adequate pretrial investigation.

¶8 Moore further asserted that his direct appeal counsel took

extensions of over three years to file an opening brief and failed to

(1) communicate with him; (2) conduct an adequate investigation;

(3) advise him of postconviction filing deadlines; and (4) inform the

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court of appeals that he received ineffective counsel of trial counsel

at sentencing and was entitled to a new sentencing hearing on

remand. Last, he asserted that the trial court abused its discretion

by permitting the prosecutor to introduce res gestae evidence at his

trial.

¶9 The district court denied the motion without a hearing,

concluding that it was untimely and successive.

II. Discussion

¶ 10 Moore contends that the district court erred by denying his

motion without a hearing. Reviewing the matter de novo, People v.

Cali, 2020 CO 20, ¶ 14, we disagree.

A. The Motion is Time Barred

¶ 11 Although Moore’s motion acknowledged the untimeliness of

his claims under section 16-5-402(1), he nonetheless contends that

a remand is necessary “to determine the timeliness of [his] claims”

and “to determine . . . justifiable excuse or excusable neglect.” We

disagree.

¶ 12 Absent an enumerated exception, section 16-5-402(1) gives

felony defendants convicted of non-class 1 felonies — like Moore —

three years from the time of their “convictions” to file a Crim. P.

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35(c) motion. Hunsaker, ¶ 21. When a defendant directly appeals

his judgment of conviction, as Moore did, the limitations period for

seeking postconviction review under Crim. P. 35(c) begins to run

when the direct appeal has been exhausted. Id. at ¶ 22. This is

true even if an illegal sentence is subsequently corrected. Id. at

¶ 26 (disavowing the notion that a conviction — for purposes of the

time limitation on Crim. P. 35(c) review — does not occur until an

illegal sentence is corrected).

¶ 13 Consistent with this framework, Moore had until October 26,

2019 — three years from the end of his direct appeal when the

mandate issued — to file the instant Crim. P. 35(c) motion. Thus,

because it was filed in 2023, it was time barred unless an

enumerated exception applied.

¶ 14 As noted, Moore asserted in his motion that the justifiable

excuse exception set forth in section 16-5-402(2)(d) applied because

the correction of his illegal sentence following Moore I permitted him

to pursue a collateral attack related to the illegality in the original

sentence. True, Hunsaker held that the “correction of an illegal

sentence is precisely the sort of outside circumstance that excuses

the untimely filing of a collateral attack with regard to claims that

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the illegal sentence rendered the conviction itself infirm.” Id. at ¶

34. But such a late filing must be “related to” the sentence

illegality; the correction of an illegal sentence cannot excuse the

failure to timely bring a collateral attack unrelated to that illegality

because “[t]hose arguments were always available to the defendant,

regardless of whether the court . . . eventually correct[ed] the

sentence.” Id. at ¶¶ 34-35.

¶ 15 With two exceptions, none of the claims raised in Moore’s

postconviction motion were related to the sentence illegality

identified by Moore I. The two that arguably were related to the

sentence illegality were (1) trial counsel’s alleged failure to

investigate and discover it and (2) direct appeal counsel’s failure to

inform the court of appeals that Moore received ineffective counsel

of trial counsel at sentencing. But even assuming that Moore could

raise these two claims after the expiration of the three-year deadline

in 2019, he failed to account for why he waited another four years

to raise them in the instant motion. See People v. Wiedemer, 852

P.2d 424, 441 (Colo. 1993) (a defendant claiming justifiable excuse

or excusable neglect must account for the entire period of his

delay). And to the extent his motion offered additional

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justifications, none of them establish justifiable excuse or excusable

neglect:

• He claimed that he failed to file his Crim. P. 35(c) due to his

direct appeal counsel’s failure to advise him of the statutory

time limitation. But ignorance of the time bar does not

constitute justifiable excuse or excusable neglect. People v.

White, 981 P.2d 624, 626 (Colo. App. 1998).

• He claimed that his appeal of the denial of his Crim. P. 35(b)

motion tolled the time for filing his Crim. P. 35(c) petition. But

even accepting that proposition as true, it does not explain

why Moore waited until 2023 to file the instant motion when

his Rule 35(b) proceedings concluded in 2018.

B. The Claims Are Successive

¶ 16 In any event, even if we assume, for the sake of argument that

any of Moore’s postconviction claims are excused from the time bar,

a district court “shall,” with limited exceptions, deny any claim that

could have been presented in a “previously brought” postconviction

proceeding or appeal. All of Moore’s claims could have been

presented in his prior Crim. P. 35(c) motion or, in the case of the

alleged error related to the admission of res gestae evidence, on

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direct appeal. And to the extent the res gestae claim was premised

on the abolishment of the res gestae doctrine in Rojas v. People,

2022 CO 8, Rojas does not provide an exception to the

successiveness bar. See Crim. P. 35(c)(3)(VII)(c) (exempting from the

successiveness bar claims based on a previously unavailable new

rule of constitutional law); see also People v. Cooper, 2023 COA 113,

¶ 10 (Rojas did not announce a new constitutional rule).

¶ 17 On appeal, Moore asserts that his claims are not successive

because (1) the merits of many of his claims have never been fully

addressed and he has never received a hearing on any of his

postconviction claims; and (2) he has represented himself in all his

postconviction proceedings and has never been represented by

counsel. Rule 35(c)(3)(VII) doesn’t require claims to have been fully

litigated and resolved on the merits to be successive. It requires

only that the claims could have been presented in a previous

postconviction proceeding or appeal. See People v. Thompson, 2020

COA 117, ¶ 44 (rejecting argument that postconviction claims were

not successive because the defendant “ha[d] never previously”

litigated them). And Moore’s pro se status is of no consequence to

the successiveness determination. See People v. Taylor, 2018 COA

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175, ¶ 21 (rejecting argument that a defendant’s pro se status when

he filed his first Crim. P. 35(c) motion is an exception to the rule

barring a second Crim. P. 35(c) as successive).

III. New Claims

¶ 18 For the first time on appeal, Moore contends that (1) he did

not know he could decline to waive the thirty-day preliminary

hearing rule and (2) there were discovery violations by the

prosecution. These claims are not properly before us because they

were not raised in the motion under review. See People v. Goldman,

923 P.2d 374, 375 (Colo. App. 1996). However, to the extent Moore

asserts that these alleged errors resulted in a jurisdictional defect,

we disagree. Even if a discovery violation occurs, a court still has

jurisdiction over the case because subject matter jurisdiction

concerns the court’s authority to deal with a class of cases, not its

authority to enter a particular judgment within that class. People v.

Owen, 122 P.3d 1006, 1008 (Colo. App. 2005); Wood v. People, 255

P.3d 1136, 1140 (Colo. 2011); see Crim. P. 16(III)(g) (if a prosecuting

attorney fails to comply with its discovery obligations under Crim.

P. 16, a court may order sanctions that it deems just under the

circumstances). Likewise, a district court is not stripped of

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jurisdiction where the preliminary hearing is held more than thirty

days after the demand. See People v. Thompson, 736 P.2d 423, 424

(Colo. App. 1987); see also People v. Gillis, 2020 COA 68, ¶ 23 (a

defendant who wishes to challenge a court’s failure to hold a

preliminary hearing in accordance with procedural rules must seek

immediate review in the supreme court).

¶ 19 Also for the first time on appeal, Moore challenges the legality

of his sentence on a new basis. As we understand him, he claims

that his indeterminate sentences are not authorized by law because

(1) the district court did not hold a resentencing hearing following

the Moore I remand and (2) he is subject to discretionary parole for

these counts. Because a court may correct a sentence not

authorized by law at any time, we address these claims.

¶ 20 As an initial matter, the failure to hold a resentencing hearing

presents a challenge to the manner in which a sentence was

imposed. The time limitation for filing such a challenge expired, at

the latest, 126 days after the district court issued the amended

mittimus correcting Moore’s sentence on November 4, 2016. See

Crim. P. 35(a), (b). In any event, Moore I determined that an

additional sentencing hearing on remand was not necessary

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because the “trial court clearly and unequivocally state[d] its

intention to impose the maximum sentence.” Moore I, slip op. at

19-20.

¶ 21 As to Moore’s parole claim, the pattern counts were committed

between 2004 and 2010 and were sex offenses subject to

sentencing under the Sex Offender Lifetime Supervision Act

(SOLSA). See People v. Manaois, 2021 CO 49, ¶ 36 (stating that

SOLSA applies to any sex offense — as that term is defined in

section 18-1.3-1003(5), C.R.S. 2024 — committed on or after

November 1, 1998); see also § 18-1.3-1003(5)(a)(IV) (sexual assault

on a child is a sex offense). A division of this court has determined

that neither “mandatory” nor “discretionary” parole is “an accurate

characterization of the applicable statutes” governing parole under

SOLSA. People v. Tucker, 194 P.3d 503, 504 (Colo. App. 2008).

Thus, we reject Moore’s claim that he is subject to “discretionary

parole.” And to the extent he claims that he is subject to

discretionary parole for his sexual exploitation of a child conviction,

he is incorrect because sexual exploitation of a child is subject to a

mandatory parole period. See §§ 18-6-403(3)(b.5), (5)(a),

17-2-201(5)(a.6), C.R.S. 2024.

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IV. The Mittimus Requires Correction

¶ 22 The People assert, and we agree, that the case should be

remanded to correct the mittimus. See Crim. P. 36 (“Clerical

mistakes in judgments, orders, or other parts of the record and

errors in the record arising from oversight or omission may be

corrected by the court at any time . . . .”). The mittimus reflects an

indeterminate twelve-year sentence for count one (aggravated

incest). Because count one was merged with one of the pattern

counts, there should be no corresponding sentence for count one.

Likewise, the mittimus simply states “lifetime parole.” As the People

note, parole for the pattern counts is an indeterminate twenty years

to life. §§ 17-2-201(5)(a.7), 18-1.3-1006(1)(b), 18-3-405(2)(d), C.R.S.

2024; see Manaois, ¶ 44 (the parole period for a sex offender

convicted of a class 3 felony is indeterminate and has a minimum

term of twenty years); Tucker, 194 P.3d at 504 (“[R]ather than

characterizing the language as “mandatory” parole or

“discretionary” parole, the better practice would be to state on the

mittimus that parole is determined under section

18-1.3-1006(1)(b) . . . , subject to the provisions of section

17-2-201(5)(a.7).”).

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¶ 23 The sexual exploitation of a child count, a class 4 felony,

carries a three-year period of mandatory parole; thus, the mittimus

should likewise so state. §§ 17-2-201(5)(a.6), 18-6-403(5)(b),

18-1.3-401(1)(a)(V)(A), C.R.S. 2024.

V. Disposition

¶ 24 The order is affirmed, and the case is remanded for correction

of the mittimus.

JUDGE HAWTHORNE and JUDGE BERGER concur.

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