Peo v. Moore-Vivour

23CA1687 Peo v Moore-Vivour 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1687
Arapahoe County District Court No. 09CR810
Honorable David N. Karpel, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Moore-Vivour,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 17, 2024

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Brownstone P.A., George Thomas, Winter Park, Florida, for Defendant-
Appellant
¶1 Defendant, David Moore-Vivour, appeals the district court’s

order denying his Crim. P. 35 postconviction motion. We affirm.

I. Background

¶2 In November 2009, a jury found Moore-Vivour guilty of two

felonies — attempted second degree murder and first degree assault

— and four misdemeanors — two counts of third degree assault,

criminal mischief, and obstructing telephone service. In January

2010, the court sentenced him to a total of thirty years in the

custody of the Department of Corrections (DOC). Specifically, the

court imposed concurrent twenty-five-year sentences on the

felonies, two-year jail sentences on the two misdemeanor assault

charges to be served concurrent with each other but consecutive to

the felony sentences, and eighteen-month sentences on the

remaining misdemeanors, consecutive to each other and to all other

sentences. The original mittimus provided that the jail sentences

would be served in the DOC.

¶3 A month later, on its own motion, the court amended Moore-

Vivour’s sentence such that the aggregate five-year jail sentence for

the misdemeanor offenses were to be served in jail, to be followed by

the concurrent twenty-five-year felony sentences in the custody of

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the DOC. The amendment did not increase the total number of

years of the sentence; it only changed the location where Moore-

Vivour would serve the misdemeanor sentences. On appeal, a

division of this court affirmed Moore-Vivour’s convictions. People v.

Moore-Vivour, (Colo. App. No. 10CA0466, Apr. 11, 2013) (not

published pursuant to C.A.R. 35(f)). Moore-Vivour did not raise any

issues related to the amended mittimus in his direct appeal.

¶4 In March 2016, Moore-Vivour filed a Crim. P. 35(c) motion for

relief alleging ineffective assistance of counsel. After an evidentiary

hearing, the district court denied this motion, and a division of this

court affirmed that decision. People v. Moore-Vivour, (Colo. App. No.

19CA0857, Aug. 19, 2021) (not published pursuant to C.A.R. 35(e)).

Later, Moore-Vivour filed a Crim. P. 35(a) motion asserting that the

five-year sentence for his misdemeanor charges was illegal under

section 18-1.3-501(1)(c.5), C.R.S. 2024. The district court

summarily denied Moore-Vivour’s request for relief. Moore-Vivour

did not appeal that ruling.

¶5 After discovering that his presentencing confinement credit

(PSCC) was only being applied to one felony count, Moore-Vivour

filed a motion to amend his mittimus to accurately reflect the

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application of his PSCC to both felony charges. In February 2023,

the district court granted this motion and amended the mittimus to

correctly apply the PSCC to both felony counts.

¶6 After the court revised his mittimus, Moore-Vivour filed a pro

se Crim. P. 35(a) motion, and then subsequently filed an amended

motion through counsel. In the amended motion, Moore-Vivour

identified two issues. First, he contended that the district court

violated his constitutional right to be present when it amended his

mittimus in 2023, without giving him the opportunity to be present.

Second, Moore-Vivour re-asserted his contention that his combined

sentence of five years for his misdemeanor crimes was illegal under

section 18-1.3-501(1)(c.5). The district court denied both claims.

¶7 This appeal followed.

II. Right to Be Present

¶8 Moore-Vivour claims his constitutional right to be present at

all critical stages of the criminal proceeding was violated when the

district court amended his mittimus. We disagree.

A. Standard of Review

¶9 As a threshold matter, we note that though Moore-Vivour

styles this claim as falling under Crim. P. 35(a) — and the district

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court analyzed it as such — the argument raises a constitutional

claim and thus is more properly cognizable under Crim. P. 35(c).

¶ 10 The substance of a postconviction motion controls its

designation as a Crim. P. 35(a) or 35(c) matter. People v. Collier,

151 P.3d 668, 670 (Colo. App. 2006).

¶ 11 “Motions under Crim. P. 35(c) are the proper postconviction

route in which to challenge convictions or sentences as

unconstitutional.” Id. We review de novo a postconviction Crim P.

35(c) motion. People v. Taylor, 2018 COA 175, ¶ 8.

B. Analysis

¶ 12 Moore-Vivour claims his constitutional right to be present was

violated on two occasions. The first alleged violation took place in

February 2010, when the district court amended Moore-Vivour’s

mittimus to reflect a five-year jail sentence for his misdemeanor

offenses with the remainder to be served — consecutive to the jail

sentence — in the custody of the DOC. The second alleged violation

took place in February 2023, when the district court amended

Moore-Vivour’s mittimus to accurately reflect the application of his

PSCC to both felony counts.

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¶ 13 To the extent that Moore-Vivour contends that the amendment

of his mittimus in February 2010 was a violation of his

constitutional rights, this claim is both untimely and successive. It

is untimely because it was filed well outside of the time permitted

for postconviction challenges of misdemeanor convictions and

sentences. § 16-5-402(1), C.R.S. 2024. It is successive because

neither Moore-Vivour’s direct appeal nor his previously filed Crim.

P. 35(c) claim included this challenge. Taylor, ¶ 17 (holding that

Crim. P. 35(c)(3)(VII) bars postconviction claims that could have

been presented in a previous proceeding).

¶ 14 We therefore only address Moore-Vivour’s argument that the

district court’s amendment of his mittimus in February 2023 was a

violation of his constitutional rights.

1. Applicable Law

¶ 15 A defendant has the right to be present at all critical phases of

a criminal proceeding. People v. Garcia, 251 P.3d 1152, 1156 (Colo.

App. 2010). This right is guaranteed by due process “if the

fundamental fairness of the proceeding would be undermined by

the defendant’s absence.” People v. Isom, 140 P.3d 100, 104 (Colo.

App. 2005), aff’d, 2017 CO 110. Therefore, for due process

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purposes, a defendant’s presence is unnecessary if it “would be

useless or only slightly beneficial.” People v. Gallegos, 226 P.3d

1112, 1120 (Colo. App. 2009).

¶ 16 An order that requires the resentencing of a defendant triggers

their constitutional right to be present because “[a] sentencing

hearing is a critical stage of a criminal proceeding.” People v. Fritts,

2014 COA 103, ¶ 9 (quoting People v. Munsey, 232 P.3d 113, 125

(Colo. App. 2009)).

2. Application

¶ 17 Moore-Vivour contends the 2023 mittimus amendment was a

critical stage in the criminal proceeding because it amounted to a

resentencing. Cf. Fritts, ¶ 9 (noting that an order that would result

in the defendant having to be resentenced would trigger the

entitlement to counsel because sentencing is a critical stage).

¶ 18 The crux of Moore-Vivour’s argument rests on the holdings of

two cases. In both cases, the court imposed new sentences that

impacted the amount of time defendants would be incarcerated and

did so without affording the defendant notice or the opportunity to

be present. See People v. Emig, 493 P.2d 368, 369 (Colo. 1972)

(finding a violation of constitutional rights occurred where the trial

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court amended defendant’s sentence to state that his jail sentence

would be served upon release from prison); People v. Renfrow, 605

P.2d 915, 916 (Colo. 1980) (finding a violation of a defendant’s

constitutional rights when the sentence was reduced in his

absence).

¶ 19 But Moore-Vivour’s argument misunderstands the

fundamental difference between an amendment of a mittimus to

reflect presentence confinement and a resentencing. The trial court

is required to note the correct presentence confinement credit on

the mittimus. People v. Ostuni, 58 P.3d 531, 533 (Colo. 2002); see

also Beecroft v. People, 874 P.2d 1041, 1045 n.12 (Colo. 1994)

(“When a defendant is sentenced to the DOC, the court does not

have discretion to grant or deny confinement credit; the sentencing

court must simply note if the defendant is entitled to confinement

credit and if he is, note the amount of the credit.”). Thus, amending

the mittimus to accurately reflect the correct presentence

confinement does not alter the sentence but, rather, merely

correctly restates it.

¶ 20 “[A] mittimus may be corrected in the defendant’s absence

without running afoul of his right to be present at sentencing.”

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People v. Nelson, 9 P.3d 1177, 1178-79 (Colo. App. 2000). Thus,

Moore-Vivour’s argument fails.1

III. Maximum Aggregate Jail Time

A. Standard of Review

¶ 21 Pursuant to Crim. P. 35(a), the court may correct an illegal

sentence at any time. People v. Rockwell, 125 P.3d 410, 414 (Colo.

2005). “[A]n illegal sentence is one that is inconsistent with the

terms specified by statutes.” People v. Green, 36 P.3d 125, 126

(Colo. App. 2001). “The legality of a sentence is a question of law

that we review de novo.” People v. Bassford, 2014 COA 15, ¶ 20.

B. Analysis

¶ 22 Moore-Vivour claims that, under section 18-1.3-501(1)(c.5),

the “stacking” of his misdemeanor charges to create a combined

sentence of five years is illegal. We disagree.

1 Moore-Vivour contends, for the first time, in his reply brief that

the court violated Crim. P. 43 when it amended the mittimus
without him present. Because it was first raised in his reply, this
argument is not properly before us, and we decline to address it.
See People v. Cline, 2022 COA 135, ¶ 75 n.3.

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1. Applicable Law

¶ 23 The “primary purpose [of statutory interpretation] is to

ascertain and give effect to the General Assembly’s intent.” Pineda-

Liberato v. People, 2017 CO 95, ¶ 22. “Constructions that defeat

the obvious legislative intent should be avoided . . . .” People v.

Frazier, 77 P.3d 838, 839 (Colo. App. 2003), aff'd, 90 P.3d 807

(Colo. 2004). To begin, we evaluate the statute’s plain meaning and

consider it within the context of the statute as a whole. Lewis v.

Taylor, 2016 CO 48, ¶ 20.

2. Application

¶ 24 Section 18-1.3-501(1)(c.5) provides, “[t]he maximum

consecutive sentence to the county jail for misdemeanor crimes

charged in a single case is twenty-four months.” In 2010, the

district court sentenced Moore-Vivour to serve a combined total of

five years for four misdemeanor convictions. Moore-Vivour

contends that under the current iteration of the law his sentence is

three years longer than what is statutorily allowed. He correctly

reads the current iteration of the statute but fails to recognize that

his sentence is not governed by that language.

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¶ 25 The General Assembly enacted subsection (c.5) in 2021.

Ch. 462, sec. 186, § 18-1.3-501(1)(c.5), 2021 Colo. Sess. Laws

3170. In doing so, the legislature explicitly provided that it “applies

to offenses committed on or after the applicable effective date of this

act,” which was March 1, 2022. Sec. 803, 2021 Colo. Sess. Laws at

3332. “[When] the General Assembly indicates in an effective date

clause that a statute shall apply prospectively, courts are bound by

that language.” People v. Summers, 208 P.3d 251, 257 (Colo. 2009).

Because Moore-Vivour committed his offenses before the effective

date of the twenty-four-month cap on jail sentences, the cap does

not apply to his sentence. Consequently, his sentence is not illegal.

IV. Disposition

¶ 26 The order is affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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