Peo v. Pittman

23CA0400 Peo v Pittman 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0400

Arapahoe County District Court No. 01CR3217

Honorable David Karpel, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Emanuel Vernell Pittman,

Defendant-Appellant.

ORDER AFFIRMED

Division I

Opinion by JUDGE WELLING

Schock and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Emanual Vernell Pittman, 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. 2023.

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¶ 1 Defendant, Emanuel Vernell Pittman, appeals the

postconviction court’s order denying his Crim. P. 35(c) motion. We

affirm.

I. Background

¶ 2 In December 2001, Pittman was charged with sexual assault,

a class 3 felony, and a crime of violence sentence enhancer. He

accepted a plea deal and pleaded guilty to the lesser offense of

attempted sexual assault, a class 5 felony. In December 2002, the

court sentenced him to six years in the Department of Corrections

with a two-year term of mandatory parole. Based on this plea,

Pittman was required to register as a sex offender.

¶ 3 In February 2004, Pittman filed a pro se motion, arguing that

he should be subject to discretionary rather than mandatory parole.

The court granted this motion and amended the mittimus

accordingly. The People challenged the change to Pittman’s

sentence, asking the court to further amend the mittimus to reflect

the court’s original sentence. The court granted the People’s

motion, vacating the amended mittimus and reinstating the original

sentence with mandatory parole in place.

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¶ 4 In March 2005, Pittman filed a pro se petition under Crim.

P. 35(a) asking the court to reevaluate his February 2004 motion to

amend the mittimus. The postconviction court denied this petition,

and Pittman appealed. On appeal, a division of this court reversed

the order and remanded the case to the postconviction court to

correct the mittimus to reflect that Pittman’s sentence included

discretionary, not mandatory, parole. People v. Pittman, (Colo. App.

No. 05CA1059, Dec. 7, 2006) (not published pursuant to C.A.R.

35(f)). The postconviction court amended the mittimus accordingly

in February 2007.

¶ 5 In October 2010, Pittman filed a pro se motion to vacate the

requirement that he register as a sex offender, arguing that because

he never received an offense-specific evaluation he shouldn’t have

to register.

¶ 6 In January 2011, while the October 2010 motion was still

pending, Pittman filed a Crim. P. 35(a) motion, arguing that his

sentence was illegal for the same reason — namely, that he never

received an offense-specific evaluation.

¶ 7 In September 2011, the postconviction court denied both

motions, noting that the record showed that Pittman had received

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an offense-specific evaluation. Pittman appealed the denial of both

motions, and a division of this court affirmed on the basis that

Pittman’s motions were untimely. People v. Pittman, (Colo. App. No.

11CA2016, Mar. 28, 2013) (not published to C.A.R. 35(f)).

¶ 8 In November 2017, Pittman moved to discontinue his sex

offender registration. The postconviction court denied the motion

because Pittman wasn’t then eligible to discontinue registration. He

filed another motion to discontinue sex offender registration in

February 2022, which the postconviction court again denied

because Pittman was incarcerated and, therefore, wasn’t required to

register until after he was released.

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¶ 9 In January 2023 — nearly twenty-one years after his

conviction entered in this case — Pittman filed a Crim. P. 35(c)

motion, arguing that his sentence should be vacated because his

plea counsel didn’t tell him he would have to register as a sex

offender after he completed parole, and, therefore, his sentence was

unconstitutional. The postconviction court concluded that this

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Pittman is currently serving a ninety-six-year habitual criminal

sentence for first degree assault of an at-risk adult in an unrelated

case. See People v. Pittman, (Colo. App. No. 21CA1180, Jan. 18,

2024) (not published pursuant to C.A.R. 35(e)).

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motion was procedurally barred as successive under Crim

P. 35(c)(3)(VII) and denied the motion. This appeal followed.

II. Analysis

¶ 10 Pittman contends that the postconviction court erred by

denying his January 2023 Crim. P. 35(c) motion. Because

Pittman’s motion was untimely and successive, the postconviction

court correctly denied the motion without a hearing.

¶ 11 We review the denial of a postconviction motion without a

hearing de novo. People v. Trujillo, 169 P.3d 235, 237 (Colo. App.

2007).

¶ 12 A defendant has three years to collaterally attack a final

judgment for a class 5 felony. § 16-5-402(1), C.R.S. 2023. “If an

appellate court can determine on the face of the motion, files, and

record in a case that a collateral attack is outside the time limits

specified [in the statute], the appellate court may deny relief on that

basis, regardless of whether the issue of timeliness was raised in

the trial court.” § 16-5-402(1.5); see also People v. Xiong, 940 P.2d

1119, 1119 (Colo. App. 1997). Unless an exception applies, a court

“shall deny any [Crim. P. 35(c)] claim that could have been

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presented in an appeal previously brought or postconviction

proceeding previously brought.” Crim. P. 35(c)(3)(VII).

¶ 13 Pittman’s motion was properly denied as untimely. His

conviction for attempted sexual assault, a class 5 felony, entered in

December 2002. Consequently, Pittman had until December 2005

to timely file a Crim. P. 35(c) motion challenging this conviction,

unless he demonstrated justifiable excuse or excusable neglect.

See § 16-5-402(2)(d). Pittman’s Crim. P. 35(c) motion is therefore

procedurally barred as untimely, and Pittman makes no allegation

of justifiable excuse or excusable neglect to justify the untimeliness.

¶ 14 Second, Pittman’s motion was properly denied as successive.

Generally, postconviction claims that were raised and resolved in a

previous appeal or postconviction proceeding are procedurally

barred unless an exception applies. Crim. P. 35(c)(3)(VI). A

defendant may file an otherwise successive claim in cases where the

claim is either based on (a) evidence not previously discovered

through the exercise of due diligence; or (b) “on a new rule of

constitutional law that was previously unavailable, if that rule has

been applied retroactively by the United States Supreme Court or

Colorado appellate courts.” Id. As noted, Pittman has filed several

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postconviction motions since his conviction entered in December

2002. Because neither of the exceptions to the successiveness bar

applies in this case, Pittman’s Crim. P. 35(c) claim is also

procedurally barred as successive. See Crim. P. 35(c)(3)(VI).

¶ 15 Accordingly, the district court properly denied Pittman’s Crim.

P. 35(c) motion.

III. Disposition

¶ 16 We affirm the postconviction court’s order.

JUDGE SCHOCK and JUDGE TAUBMAN concur.