Peo v. Lane

23CA0554 Peo v Lane 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0554

City and County of Denver District Court No. 01CR3805

Honorable Alex C. Myers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Christian Lane,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE LIPINSKY

Schutz and Martinez*, JJ., concur

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

Announced July 11, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Zobel Law, LLC, Cassandra Zobel, 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.

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¶ 1 In court of appeals case numbers 23CA0556 and 23CA0554,

Anthony Christian Lane appeals the postconviction court’s denial of

his single Crim. P. 35(c) petition requesting a second proportionality

review of his sentences imposed in two separate cases. Although

the court resolved Lane’s petition in one order, Lane filed two

appeals — one for each of the underlying criminal cases.

¶ 2 We resolve both of Lane’s appeals by affirming the order.

I. Background

¶ 3 In Denver District Court Case No. 01CR2287 (the underlying

case for court of appeals case number 23CA0556) (the first criminal

case), a jury convicted Lane of aggravated robbery, second degree

kidnapping, aggravated motor vehicle theft, and possession of a

weapon by a previous offender. (The record shows that Lane also

goes by Christian Jordan and Nathan Jordan; Nathan Jordan is his

legal name. Because the briefs in this appeal refer to him by

Anthony Lane, we use that name in this opinion.) The trial court

adjudicated him a habitual criminal based on his prior convictions

for robbery and attempted escape and sentenced him to an

aggregate term of seventy-two years in the custody of the

Department of Corrections (DOC).

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¶ 4 Approximately six months later, a jury convicted Lane of

aggravated robbery in another case, Denver District Court Case No.

01CR3805 (the underlying case for court of appeals case number

23CA0554) (the second criminal case). The trial court adjudicated

Lane a habitual criminal in the second case based on the same two

prior convictions as those on which the trial court in the first

criminal case relied to adjudicate him a habitual criminal. After

adjudicating Lane a habitual criminal, the trial court in the second

criminal case sentenced him to forty-eight years in the custody of

the DOC, with that sentence to run consecutively to the sentence in

the first criminal case.

¶ 5 Lane directly appealed his convictions in the two cases, and

divisions of this court affirmed. People v. Lane, (Colo. App. No.

02CA1488, May 12, 2005) (not published pursuant to C.A.R. 35(f));

People v. Lane, (Colo. App. No. 02CA2208, May 12, 2005) (not

published pursuant to C.A.R. 35(f)). The mandates in the direct

appeals were issued on September 28, 2005, and November 3,

2005, respectively.

¶ 6 In 2012, the General Assembly amended the Habitual

Criminal Act to end the use of certain noncustodial escape offenses

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as a triggering offense for adjudicating a person a habitual criminal.

Ch. 183, sec. 1, § 18-1.3-801(5), 2012 Colo. Sess. Laws 695-96.

The amendment expressly only applied prospectively. Ch. 183, sec.

2, 2012 Colo. Sess. Laws 696 (“The provisions of this act apply to

offenses committed on or after the effective date of this act.”). In

2017, the General Assembly extended the 2012 legislation to

prohibit the use of escapes from community corrections facilities or

halfway houses as predicate offenses for purposes of imposing a

habitual sentence. Ch. 374, sec. 1, § 18-1.3-801(5), 2017 Colo.

Sess. Laws 1937.

¶ 7 In 2016, Lane filed a single Crim. P. 35(c) motion in both

cases. The postconviction court denied the motion as untimely.

Lane did not appeal such ruling.

¶ 8 Later in 2016, Lane filed a single motion requesting a

proportionality review of his sentences in both cases. In such

motion, he argued that his combined 120-year sentence in the two

cases “for two non-homicide” convictions was grossly

disproportionate compared to the sentences imposed on other

individuals who committed similar offenses and because his actions

did not result in bodily injury to the victims. The postconviction

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court conducted a brief abbreviated proportionality review and

concluded “there is no gross disproportionality in [Lane’s] sentence

under the Habitual Criminal Statute.” Lane did not appeal this

decision.

¶ 9 On November 4, 2019, the supreme court announced Wells-

Yates v. People, 2019 CO 90M, 454 P.3d 191, and two companion

cases, Melton v. People, 2019 CO 89, 451 P.3d 415, and People v.

McRae, 2019 CO 91, 451 P.3d 835 (collectively, the Wells-Yates

cases). The Wells-Yates cases clarified how Colorado courts should

conduct proportionality reviews of habitual criminal sentences.

¶ 10 More than three years later, on November 25, 2022, Lane filed

a Crim. P. 35(c) petition in which he requested a new

proportionality review of the sentences imposed in both cases in

light of the holdings in the Wells-Yates cases. (We refer to the filing

as a “petition” because that is what Lane’s court-appointed lawyer

called it. Crim. P. 35(c) refers to “a motion” but, for purposes of this

case, there is no distinction between a “petition” and a “motion.”)

He asserted that his petition was exempted from the timeliness and

successiveness procedural bars applicable to Crim. P. 35(c) motions

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because the Wells-Yates cases announced a new substantive rule of

constitutional law that should be applied retroactively.

¶ 11 In a detailed order, the postconviction court denied Lane’s

petition as untimely and without merit. Although the court

concluded that the Wells-Yates cases announced new rules, it

found that the rules were procedural and, therefore, did not apply

retroactively.

¶ 12 Lane appeals this order.

II. Discussion

¶ 13 Lane contends that the postconviction court erred by

concluding that the rule announced in the Wells-Yates cases was

procedural rather than substantive. And because he claims the

rule was substantive and applies retroactively, he argues that his

petition was exempt from the timeliness and successiveness

procedural bars applicable to Crim. P. 35(c) cases. We disagree.

A. Standard of Review

¶ 14 We review de novo whether a postconviction court erred by

denying a Crim. P. 35(c) motion without a hearing. People v. Cali,

2020 CO 20, ¶ 14, 459 P.3d 516, 519. Courts may summarily deny

a Crim. P. 35(c) motion without a hearing when the motion, files,

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and record establish that a defendant’s allegations are without

merit and do not warrant postconviction relief. Crim. P. 35(c)(3)(IV);

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

¶ 15 We also review de novo the legal question of whether the Wells-

Yates cases apply retroactively. See People v. Lucy, 2020 CO 68,

¶ 19, 467 P.3d 332, 336.

B. Lane’s Petition Was Untimely and Successive

¶ 16 A postconviction court generally must deny any Crim. P. 35(c)

claim as successive if the defendant raised the claim and a court

resolved it in a prior appeal or postconviction motion, Crim. P.

35(c)(3)(VI), or the defendant raised the claim more than three years

after the defendant’s conviction became final, Crim. P. 35(c)(3)(VII);

see § 16-5-402(1), C.R.S. 2023. Where, as here, a defendant files a

direct appeal, the defendant’s conviction becomes final upon the

issuance of the mandate. See Hunsaker v. People, 2021 CO 83,

¶ 36, 500 P.3d 1110, 1118.

¶ 17 Lane requested a proportionality review for the first time in

2016. The court conducted an abbreviated proportionality review

and found no inference of gross disproportionality. Lane did not

appeal that ruling. His petition is therefore successive.

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¶ 18 Moreover, the mandates in Lane’s direct appeals issued on

September 28, 2005, and November 3, 2005, respectively. Thus,

Lane’s three-year limitations periods for filing a Crim. P. 35(c)

motion expired on September 28, 2008, and November 3, 2008,

respectively. But Lane did not file the petition at issue until

November 25, 2022 — more than fourteen years too late. His

petition is therefore also untimely.

C. The Wells-Yates Cases Did Not Announce a New Rule of

Constitutional Law

¶ 19 There is an exception for successive postconviction claims that

are based 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.” Crim. P.

35(c)(3)(VI)(b). The justifiable excuse or excusable neglect exception

may allow review of an otherwise time-barred postconviction claim

based on a case announcing a new rule of substantive

constitutional law. See People v. Rainer, 2013 COA 51, ¶¶ 24-29,

412 P.3d 520, 525-26, rev’d on other grounds, 2017 CO 50, 394

P.3d 1141; see also § 16-5-402(2)(d).

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¶ 20 New constitutional rules of criminal procedure generally do

not apply retroactively to final convictions on collateral review.

Edwards v. People, 129 P.3d 977, 983 (Colo. 2006); see also People

v. Johnson, 142 P.3d 722, 724 (Colo. 2006). But if the new rule of

constitutional law is substantive in nature, the bar against

retroactive application does not apply. See Welch v. United States,

578 U.S. 120, 128 (2016); Johnson, 142 P.3d at 724. A new rule of

constitutional law is substantive in nature if it “alters the range of

conduct or the class of persons that the law punishes.” Johnson,

142 P.3d at 725 (alteration omitted) (quoting Schriro v. Summerlin,

542 U.S. 348, 353 (2004)). In contrast, a rule is procedural if it

“regulate[s] only the manner of determining the defendant’s

culpability.” Id. (quoting Schriro, 542 U.S. at 353).

¶ 21 Lane asserts that the Wells-Yates cases announced a new

substantive rule of constitutional law that requires courts to

consider legislative changes during a proportionality review even if

those changes only apply prospectively.

¶ 22 Several weeks after the postconviction court denied Lane’s

petition for a second proportionality review, a division of this court

addressed the new rules the Wells-Yates cases announced

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regarding proportionality reviews of habitual criminal sentences and

whether those new rules are substantive or procedural. See People

v. McDonald, 2023 COA 23, ¶¶ 15-24, 531 P.3d 420, 424-26 (cert

granted Nov. 14, 2023). The division held that the rules announced

in the Wells-Yates cases clarified, in part, that “courts performing

proportionality evaluations should consider amendatory legislation

even if it applies only prospectively.” Id. at ¶ 22, 531 P.3d at 425.

But because Wells-Yates “did not impact who is subject to the

Habitual Criminal Act and its heightened penalties” and “only

clarified the methods Colorado courts should use when evaluating

whether a habitual sentence is constitutionally disproportionate in

a given case,” the division concluded that the new rules are

procedural, not substantive, and therefore do not apply

retroactively. Id. at ¶¶ 21, 24, 531 P.3d at 425-26.

¶ 23 We agree with the division’s reasoning and holding in

McDonald and follow it here. In doing so, we conclude that Lane

failed to establish an exemption to the timeliness and

successiveness procedural bars based on a new substantive rule of

constitutional law.

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¶ 24 The postconviction court therefore did not err by finding that

the rule announced in the Wells-Yates cases was procedural and

denying Lane’s petition without a hearing.

D. The People’s Additional Arguments

¶ 25 The People separately argue that we “need not reach the

retroactivity question because, even if Wells-Yates did apply to his

case, its announcement does not excuse Lane’s three-year delay in

filing his renewed request.” The People also assert that Lane is not

entitled to a second proportionality review because the

postconviction court “conducted essentially the same analysis

required under Wells-Yates when it reviewed his request the first

time.”

¶ 26 We need not address these separate assertions, however,

because we resolved Lane’s argument as successive on the grounds

that the rules announced in the Wells-Yates cases do not apply

retroactively.

III. Disposition

¶ 27 The order is affirmed in both of Lane’s appeals.

JUDGE SCHUTZ and JUSTICE MARTINEZ concur.