Peo v. Porter

22CA1725 Peo v Porter 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1725

City and County of Denver District Court Nos. 89CR207, 89CR208 & 89CR209

Honorable Christopher J. Baumann, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reginald M. Porter,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUSTICE MARTINEZ*

Lipinsky and Schutz, JJ., concur

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

Announced July 3, 2024

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 Defendant, Reginald M. Porter, appeals the postconviction

court’s denial of his Crim. P. 35(c) motion. We affirm.

I. Background

¶ 2 The relevant facts giving rise to this case are set forth in the

opinion resolving Porter’s appeal of the orders denying his first two

Crim. P. 35(c) motions, People v. Porter, (Colo. App. No. 97CA0586,

May 27, 1999) (not published pursuant to C.A.R. 35(f)) (Porter I).

In 1988, the prosecution filed five separate

petitions alleging that defendant, then a

juvenile, had committed numerous acts which

if committed by an adult would constitute

felonies. The prosecution also filed five

accompanying motions to transfer jurisdiction

over the cases to the district court.

On Tuesday, January 17, 1989, defendant

appeared in juvenile court with his parents

and counsel. A minute order entered that

same day in each of defendant’s five cases

reads as follows: “Disposition reached.

Motion to transfer has been confessed by

defendant. . . . Motion granted. Cases to be

transferred to district court as requested.

Bond continued.”

On Monday, January 23, 1989, the parties

appeared before a district court judge. That

judge, however, refused to accept jurisdiction

over the transferred cases because the minute

orders were unsigned and because, in her

view, they did not contain a sufficient

explanation of the basis for the transfer orders.

2

On Tuesday, January 24, 1989, the

prosecution filed felony informations in district

court based on the same acts alleged in the

delinquency petitions. On the face of each

information the following statement was

included: “Juvenile is 17 years of age. Petition

was filed in juvenile ct. with motion to transfer.

Juvenile waived jurisdiction. Case transferred

to Denver District Ct.” A different district

court judge accepted the informations as filed

on that same day.

On February 15, 1989, defendant appeared

with counsel and pled guilty to an added count

of first degree sexual assault in one case and

two counts of aggravated robbery (one count in

each of two other cases). In exchange, the

prosecution stipulated to concurrent sentences

for the two aggravated robbery convictions and

moved to dismiss all remaining counts as well

as all of the charges in the other two

transferred cases.

The trial court accepted defendant’s guilty

pleas in accordance with the parties’

agreement and sentenced defendant to 16

years in the custody of the Department of

Corrections on the sexual assault conviction

with lesser concurrent sentences for the two

aggravated robbery convictions.

Porter I, No. 97CA0586, slip. op. at 1-2.

¶ 3 In 1992, Porter filed his first Crim. P. 35(c) motion, which

postconviction counsel supplemented in 1995. Porter alleged

ineffective assistance of plea counsel and moved to withdraw his

3

guilty pleas, claiming that he was improperly advised of the

consequences of his pleas and had erroneously believed he would

be sentenced as a juvenile. At an evidentiary hearing, the

postconviction court denied the motion but permitted Porter to file a

second Crim. P. 35(c) motion regarding a jurisdictional issue that

was raised during the hearing.

¶ 4 In 1997, Porter’s postconviction counsel filed the second Crim.

P. 35(c) motion. Porter moved to vacate his pleas and sentences,

arguing that the district court “was without jurisdiction over [him]”

because the juvenile cases were never properly transferred to the

district court. Porter argued that the motion was not time barred

under section 16-5-402, C.R.S. 2023, because he was asserting a

jurisdictional claim. At a non-evidentiary hearing, postconviction

counsel argued that the minute order acknowledging Porter’s

confession of the motions to transfer and transferring the cases to

district court did not qualify as a proper juvenile court order for

transfer under section 19-2-806, C.R.S. 1989.

1

At the end of the

hearing, the postconviction court denied the motion, finding that

1

Section 19-2-806 is now codified at section 19-2.5-802, C.R.S.

2023.

4

the minute order constituted a proper written order for transfer and

consequently, the district court obtained jurisdiction.

¶ 5 Porter appealed both orders. See Porter I. The division

dismissed the appeal of the order denying the 1992 motion because

the time to appeal had passed. Id. at 6-7. The division affirmed the

postconviction court’s denial of the 1997 motion, holding that “the

dispositive question [wa]s whether th[e] minute orders [entered on

January 17, 1989,] were statutorily sufficient to transfer

jurisdiction to the district court.” Id. at 3-4.

[There is] no merit to defendant’s claim that

the juvenile court’s transfer order was deficient

because the court did not conduct a transfer

hearing and consider the statutory list of

factors which must be considered when a

juvenile court is deciding whether to grant a

transfer petition.

. . . .

Here, defendant appeared at a juvenile court

hearing and confessed the petitions to

transfer, thereby essentially stipulating to the

existence of factors sufficient to warrant

transfer. This was sufficient to meet the

procedural requirements for transfer set forth

in the statute.

Id. at 4-5. The mandate was issued on November 5, 1999, following

the supreme court’s denial of certiorari.

5

¶ 6 In 2001, Porter filed a Crim. P. 35(a) motion to correct an

illegal sentence, alleging that the district court imposed a

mandatory term of parole not contemplated by the sentencing

statutes at the time. The postconviction court granted the motion

and amended the mittimus to correct the period of parole.

¶ 7 In 2002, Porter discharged his sentence.

¶ 8 In 2004, Porter was convicted of multiple offenses in Gilpin

County and was adjudicated a habitual criminal based on the 1989

convictions in this case. See People v. Porter, 2013 COA 130 (Porter

II), rev’d, 2015 CO 34. Porter challenged the habitual charges,

arguing that the 1989 convictions were entered without jurisdiction

because the cases were not properly transferred from juvenile court.

Id. at 24. The district court agreed and dismissed the habitual

charges. Id. at ¶¶ 4, 24-25. A division of this court reversed the

court’s decision, finding that collateral estoppel barred Porter from

relitigating the jurisdictional issue that was resolved in Porter I.

Porter II, ¶ 28. Nonetheless, the division found that double

jeopardy barred reinstatement of the habitual charges. Id. at ¶ 29.

The supreme court reversed the division’s double jeopardy decision

and reinstated the habitual charges, assuming without deciding

6

that the division was correct in its decision regarding collateral

estoppel. People v. Porter, 2015 CO 34, ¶ 30 & n.2 (Porter III). On

remand, Porter was again adjudicated a habitual criminal. People

v. Porter, 2019 COA 73, ¶ 4 (Porter IV).

¶ 9 In 2021, Porter filed the Crim. P. 35(c) motion at issue here

and later filed a supplement to the motion. In his motions, Porter

asserted that the district court lacked subject matter jurisdiction

over his 1989 cases because he could not have waived the juvenile

court’s jurisdiction without a transfer hearing. Postconviction

counsel was appointed and filed a supplemental motion, largely

adopting the arguments in Porter’s pro se motions. Counsel also

asserted an ineffective assistance of counsel claim and requested a

sentence reconsideration under Crim. P. 35(b). In its response, the

prosecution argued that Porter’s claims were successive, time

barred, and moot.

¶ 10 The postconviction court denied the motion without a hearing.

The court found that (1) Porter’s jurisdictional claim was

successive; (2) his ineffective assistance of counsel claim was time

barred; and (3) his Crim. P. 35(b) claim was “without basis.”

7

II. Analysis

¶ 11 Porter contends that his jurisdictional claim is not successive

because it is grounded in subject matter jurisdiction, unlike his

previous jurisdictional claim, which he argues was based on the

absence of personal jurisdiction. In addition, Porter contends that

his ineffective assistance of counsel claim is not time barred

because the time bar contains an exception for convictions entered

without jurisdiction. Because we conclude that Porter’s previous

claim challenged the subject matter jurisdiction of the court, we

disagree with both contentions.

¶ 12 Before addressing Porter’s arguments on appeal, we note that

he has abandoned the other claims in his motion by not pursuing

them on appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d,

2021 CO 83.

A. Standard of Review

¶ 13 We review de novo the denial of a Crim. P. 35(c) motion

without a hearing. People v. Delgado, 2019 COA 55, ¶ 6.

¶ 14 A postconviction court may deny a Crim. P. 35(c) motion

without a hearing “if the motion, files, and record clearly establish

that the defendant is not entitled to relief; if the allegations, even if

8

true, don’t provide a basis for relief; or if the claims are bare and

conclusory in nature and lack supporting factual allegations.” Id.

at ¶ 8.

B. Subject Matter Jurisdiction

¶ 15 A Crim. P. 35(c) claim that was raised and resolved, or could

have been raised, in a prior appeal or postconviction proceeding

must be denied as successive unless an enumerated exception

applies. Crim. P. 35(c)(3)(VI)-(VII); see People v. Houser, 2020 COA

128, ¶ 15. Porter argues that his jurisdictional claim is not

successive because the trial court and the court of appeals

previously ruled on the issue of personal jurisdiction, and his

current motion raises a claim of subject matter jurisdiction. We

disagree with Porter’s characterization of his previous jurisdictional

argument and the grounds on which the courts resolved it.

¶ 16 Subject matter jurisdiction concerns a court’s authority to

hear and determine the particular type of case before it. People v.

Sandoval, 2016 COA 57, ¶ 45. It “must be properly invoked before

the district court can act . . . by the filing of a legally sufficient

complaint, information, or indictment.” People v. Sims, 2019 COA

66, ¶ 15. “By contrast, personal jurisdiction involves a court’s

9

authority over a particular individual” and is conferred by a

defendant’s physical presence in court. Sandoval, ¶ 46.

¶ 17 There has never been a dispute over Porter’s physical presence

in court, and therefore no dispute over personal jurisdiction.

Rather, Porter has always argued that the district court lacked

authority to enter the judgment of conviction because his cases

were not properly transferred from juvenile court. This is an issue

of subject matter jurisdiction. See id. at ¶¶ 56-57 (“[T]he Denver

Juvenile Court’s authority to entertain [a] defendant’s case and the

Denver District Court’s lack of authority to do so is not a question

of personal jurisdiction” but rather one of subject matter

jurisdiction.). Although the 1997 motion generally stated that the

district court “was without jurisdiction over Mr. Porter,” Porter

specifically argued in such motion that the district court lacked

authority to hear Porter’s cases because the transfer from juvenile

court to district court was procedurally defective. Despite Porter’s

assertion to the contrary, the division in Porter I did not distinguish

between personal and subject matter jurisdiction in its analysis.

Nonetheless, the division could not have considered personal

jurisdiction when there was no dispute that Porter was brought

10

before the district court, which alone is sufficient to confer personal

jurisdiction. See id. at ¶ 54 (concluding that the district court’s

subject matter jurisdiction was at issue based, in part, on the

finding that “this is not a case where the Denver District Court

lacked jurisdiction over defendant’s person — there is no dispute

that he was brought before the court”).

¶ 18 Because Porter argued in his original postconviction claim that

the court lacked subject matter jurisdiction to enter the 1989

convictions, and the division resolved that issue in Porter I, his

latest postconviction claim regarding subject matter jurisdiction is

successive.

C. Ineffective Assistance of Counsel

¶ 19 Crim. P. 35(c) claims are subject to section 16-5-402, which

provides that, in all cases involving felony offenses other than class

1 felonies, a collateral attack must be brought within three years of

the date of conviction. § 16-5-402(1). A defendant may only pursue

a Crim. P. 35(c) motion outside the three-year period if a statutory

exception applies. § 16-5-402(2). One such exception is when “the

court entering judgment of conviction . . . did not have jurisdiction

over the subject matter of the alleged offense.” § 16-5-402(2)(a).

11

¶ 20 If the defendant did not file a direct appeal of the judgment —

as is the case here — “a conviction occurs when the trial court

enters judgment and sentence is imposed.” People v. Collier, 151

P.3d 668, 671 (Colo. App. 2006). Porter was originally sentenced on

April 6, 1989, which permitted him to file Crim. P. 35(c) claims on

or before April 6, 1992. Porter argues this period was tolled

because his Crim. P. 35(a) motion was granted on January 29,

2001. But even assuming that it was, and his new deadline was

January 29, 2004, he filed the current motion in March 2021, more

than seventeen years too late. Porter contends that he is exempted

from this deadline based on his first claim that the court lacked

jurisdiction to enter his 1989 convictions. Because we have

affirmed the denial of that claim, Porter’s argument for an exception

to the time bar fails.

¶ 21 We therefore conclude that Porter’s ineffective assistance claim

is time barred.

III. Disposition

¶ 22 The order is affirmed.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.