Peo v. Hall

23CA1137 Peo v Hall 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1137

Mesa County District Court No. 15CR351

Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clinton Rafael Hall,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Lipinsky and Schutz, JJ., concur

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

Announced July 18, 2024

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Clinton Rafael Hall, Pro Se

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¶ 1 Defendant, Clinton Rafael Hall, appeals the district court’s

May 16, 2023, order denying his most recent Crim. P. 35(c) motion

without a hearing. We affirm.

I. Background

¶ 2 Hall pleaded guilty to two counts of class 3 felony sexual

assault on a child by one in a position of trust, in exchange for the

dismissal of some thirty additional charges and stipulated,

indeterminate sentences in the custody of the Department of

Corrections. The district court accepted the plea and sentenced

Hall on October 6, 2015. Although the written Request to Plead

Guilty (Rule 11 advisement) indicated that Hall’s crimes carried

mandatory parole terms of five years, the district court advised him

that the crimes carried indeterminate parole periods of twenty years

to life, which the court then imposed.

¶ 3 In 2018, Hall timely filed a Crim. P. 35(c) motion; however,

after the court appointed counsel, Hall withdrew his motion

through counsel.

¶ 4 In 2020, Hall filed a pro se “Motion for Illegal Sentence

Pursuant to Crim. P. 35(a),” in which he asserted that his sentence

was illegal because the district court rejected the five-year parole

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terms specified in his request to plead guilty without advising him

that he could withdraw his plea as a result. The district court

denied the motion, concluding that Hall’s sentence was proper

because five years of parole would have been illegal under the

relevant statute. The court also concluded that, to the extent Hall

was claiming he had not been properly advised, he was not entitled

to relief under Crim. P. 35(a) but might be entitled to relief under

Crim. P. 35(c).

¶ 5 A division of this court affirmed the order denying relief,

accepting Hall’s concession that his indeterminate parole period

was authorized by law and rejecting — as untimely — his appellate

assertion that his sentence was imposed in an illegal manner.

People v. Hall, (Colo. App. No. 20CA0978, Apr. 21, 2022) (not

published pursuant to C.A.R. 35(e)).

¶ 6 In April 2023, Hall filed another postconviction motion, this

one captioned “Motion for Illegal Sentence Pursuant Crim. P. 35(c).”

The motion was substantively identical to his 2020 Crim. P. 35(a)

motion. However, in an attachment labeled “Addendum,” Hall

asserted that “[c]ircumstances beyond [his] control . . . created the

lateness of this motion.” In particular, he asserted that his

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postconviction counsel who withdrew his 2018 Crim. P. 35(c)

motion failed to understand his claims. And he asserted that “[t]he

ineffectiveness of all the councils [sic] and the unethical

presentation of an illegal plea agreement [a]ffected the outcome of

the proceedings.” Last, he asserted that his ignorance of the law

should excuse his late filing.

¶ 7 On May 1, 2023, the district court denied Hall’s motion on the

basis that it was successive to his previously withdrawn 2018 Crim.

P. 35(c) motion. Hall did not timely appeal the court’s May 1 ruling.

¶ 8 Instead, on May 15, Hall filed a “Motion for Postconviction

Relief Pursuant to Crim. P. 35(c),” in which he claimed that (1) his

plea counsel misadvised him about the period of parole, rendering

his guilty plea “unknowing and unwilling”; and (2) his guilty plea

was entered “under coercion and undue influence.”

¶ 9 The district court denied the May 2023 motion, again on the

basis that it was successive to the withdrawn 2018 motion.

II. Discussion

¶ 10 On appeal, Hall contends that the district court erred by

denying his May 2023 Crim. P. 35(c) motion. He does not appear to

challenge the order denying his April 2023 Crim. P. 35(c) motion,

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nor could he, given that his notice of appeal would have been

untimely as to that order.

¶ 11 Hall claims that the district court erred by concluding that his

May 2023 Crim. P. 35(c) motion was successive to his withdrawn

2018 Crim. P. 35(c) motion. Reviewing the matter de novo, People v.

Cali, 2020 CO 20, ¶ 14, we conclude that we need not resolve this

claim because Hall’s May 2023 Crim. P. 35(c) motion was (1)

successive to his April 2023 Crim. P. 35(c) motion and (2) barred by

the limitations period set forth in section 16-5-402(1), C.R.S. 2023.

See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (an

appellate court may affirm the postconviction court for any reason

supported by the record).

¶ 12 With limited exceptions not applicable here, a district court

shall deny a Crim. P. 35(c) motion where the claims asserted

therein were, or could have been, raised and resolved in a prior

postconviction proceeding. See Crim. P. 35(c)(3)(VI)-(VII). As noted,

in April 2023, Hall filed a Crim. P. 35(c) motion that the

postconviction court denied on May 1, 2023. Instead of appealing

the May 1 order denying relief, he filed another Crim. P. 35(c)

motion on May 15. The May 2023 motion was successive to the

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April 2023 motion. Accordingly, the district court did not err by

denying it.

¶ 13 In any event, both Hall’s April and May 2023 motions were

barred by the time limitation for collateral attacks upon non-class 1

felony convictions, which requires such attacks to be raised in the

first three years after the conviction becomes final. See

§ 16-5-402(1); see also § 16-5-402(1.5) (“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 subsection

(1) of this section, the appellate court may deny relief on that basis,

regardless of whether the issue of timeliness was raised in the trial

court.”). For purposes of section 16-5-402 and postconviction

review, if there is no direct appeal, a conviction becomes final when

the district court enters judgment and sentence is imposed. People

v. Collier, 151 P.3d 668, 671 (Colo. App. 2006). Because Hall did

not pursue a direct appeal, his conviction became final on October

6, 2015, when he was sentenced. Thus, absent circumstances

amounting to justifiable excuse or excusable neglect, see

§ 16-5-402(2)(d), Hall had until October 6, 2018, to file a Crim. P.

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35(c) motion. For this reason, the two motions he filed in 2023

were nearly five years late.

¶ 14 In his May 2023 motion, Hall claimed that he “originally filed

within the time limits set forth in section 16-5-402(1),” presumably

referring to his 2018 Crim. P. 35(c) motion. But the 2018 motion

was withdrawn. And, in any event, the timely filing of a collateral

attack does not toll the limitation period for later filed

postconviction motions. See People v. Clouse, 74 P.3d 336, 339

(Colo. App. 2002); People v. Ambos, 51 P.3d 1070, 1072 (Colo. App.

2002). Hall made no allegations of justifiable excuse or excusable

neglect in his May 2023 motion.

¶ 15 Although Hall made some of these allegations in his April 2023

motion, the allegations would have been insufficient even if the

order denying that motion were properly before us.

¶ 16 A Crim. P. 35(c) motion must allege facts that, if true, would

establish justifiable excuse or excusable neglect to entitle the

moving party to a hearing on the applicability of this exception to

the section 16-5-402 time bar. People v. Hinojos, 2019 CO 60, ¶ 17;

People v. Wiedemer, 852 P.2d 424, 440 n.15 (Colo. 1993). And a

defendant claiming justifiable excuse or excusable neglect must

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account for the entire period of his delay. See Wiedemer, 852 P.2d

at 441 (explaining that, when deciding whether a defendant has

shown justifiable excuse or excusable neglect, a court should

“consider the circumstances existing throughout the entire period

from the inception of the conviction in question”).

¶ 17 Hall’s allegation in his April 2023 addendum that his 2018

postconviction counsel misunderstood the claim he wished to raise

at that time does nothing to account for the fact that Hall waited

until 2023 to file motions for Crim. P. 35(c) relief. Nor does his

claimed ignorance of the law excuse the untimeliness of his Crim. P.

35(c) motions. People v. Green, 36 P.3d 125, 128 (Colo. App. 2001)

(“Ignorance or misunderstanding of the law and lack of legal

assistance does not excuse the late filing of a Crim. P. 35(c)

motion.”). And his claim that “[t]he ineffectiveness of all the

councils [sic] and the unethical presentation of an illegal plea

agreement [a]ffected the outcome of the proceedings” is too bare and

conclusory to establish why he waited nearly five years from the

expiration of the filing deadline to file his 2023 motions.

III. Disposition

¶ 18 The order is affirmed.

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JUDGE LIPINSKY and JUDGE SCHUTZ concur.