People v. Clinton Cooper

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 30, 2023

2023COA113

No. 22CA0914, People v. Cooper — Criminal Procedure —
Postconviction Remedies — Retroactive Application of Changed
Legal Standard

After a division of the court of appeals affirmed the defendant’s

conviction on direct appeal, the defendant filed a Crim. P. 35(c)

motion arguing that, because Rojas v. People, 2022 CO 8, which

abolished the res gestae doctrine, established a new rule of criminal

procedure, it should be applied retroactively pursuant to Teague v.

Lane, 489 U.S. 288 (1989). The postconviction court denied relief

under Rule 35(c), concluding that Rojas “did not amount to” a

watershed rule of criminal procedure that applied retroactively

under Teague.

This division affirms, albeit on different grounds. The division

concludes that Teague does not apply because Rojas did not
announce a new constitutional rule of criminal procedure. Instead,

section 18-1-410(1)(f)(II), C.R.S. 2023, and Rule 35(c)(1) bar any

postconviction claims seeking retroactive application of a significant

nonconstitutional change in the law once the conviction has

become final.
COLORADO COURT OF APPEALS 2023COA113

Court of Appeals No. 22CA0914
Montrose County District Court No. 15CR20
Honorable Keri A. Yoder, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clinton Cooper,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Kuhn, JJ., concur

Announced November 30, 2023

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-
Appellant
¶1 Clinton Cooper appeals the postconviction court’s order

denying his supplemental Crim. P. 35(c) motion. The

postconviction court denied the supplemental motion after

concluding that Rojas v. People, 2022 CO 8, which eliminated res

gestae as an independent theory of evidentiary relevance, “did not

amount to” a watershed rule of criminal procedure that applied

retroactively to postconviction proceedings under Teague v. Lane,

489 U.S. 288 (1989). We affirm the order but for a slightly different

reason. We conclude that Teague does not apply because Rojas did

not announce a new constitutional rule of criminal procedure.

I. Background

¶2 Cooper was charged with one count of sexual assault on a

child by one in a position of trust based on allegations that he had

assaulted his stepdaughter. The stepdaughter’s sister witnessed

the alleged assault but delayed reporting it because she had told

the stepdaughter she would not tell anyone. To help explain the

delayed disclosure, the prosecution sought to introduce as res

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gestae evidence1 that, almost a year after the alleged assault, the

sister saw Cooper “approach her bedroom window and attempt to

look at her while she was changing,” which prompted her to come

forward. At a motions hearing, Cooper’s attorney conceded that

this evidence could be introduced as res gestae.

¶3 After a second trial,2 Cooper was convicted as charged. A

division of this court affirmed the conviction on direct appeal, and

his conviction became final when our supreme court denied his

petition for a writ of certiorari. See People v. Cooper (Colo. App. No.

17CA0410, Apr. 18, 2019) (not published pursuant to C.A.R. 35(e))

(cert. denied Sept. 23, 2019). Approximately one year later, Cooper

filed a timely Crim. P. 35(c) motion for postconviction relief, in

which he argued that both his trial and appellate attorneys

provided ineffective assistance. After reviewing the petition, the

court set an evidentiary hearing on Cooper’s claims. However, on

1 The prosecution filed a notice of intent to admit this evidence

under either res gestae or CRE 404(b), and also under section
16-10-301(3), C.R.S. 2023, which articulates additional
circumstances when evidence of other acts may be admitted during
a sex assault trial.

2 The court declared a mistrial after the first jury could not reach a

unanimous verdict.

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February 22, 2022, and several days before the evidentiary hearing,

Rojas announced a new rule abolishing res gestae as a theory of

relevance in criminal cases. Thus, during the hearing, the court

granted Cooper’s request to file supplemental briefing to address

Rojas.

¶4 In his supplemental motion, Cooper argued, as relevant here,

that, if Rojas announced a new rule abandoning the res gestae

doctrine, then it should be applied retroactively to his case, and his

conviction should be reversed because “inadmissible res gestae

testimony tainted his trial.” In a detailed written order, the court

denied the postconviction motion in its entirety, including the

supplemental motion. In denying the supplemental motion, the

postconviction court concluded that, although Rojas established a

new rule, it did not “amount to one of the rare and small watershed

core rules that call into question [Cooper’s] underlying conviction”

and, therefore, did not apply retroactively to Cooper’s case.

¶5 Cooper now appeals.

II. Analysis

¶6 Cooper argues that the postconviction court erred by

concluding that Rojas did not announce a watershed rule of

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criminal procedure that should be applied retroactively to his case.

We disagree that the postconviction court erred.

A. Standard of Review

¶7 Whether Rojas applies retroactively on collateral review is a

question of law that we review de novo. See Howard-Walker v.

People, 2019 CO 69, ¶ 22 (“We review questions of law de novo.”).

We may affirm the postconviction court’s ruling on any ground

supported by the record, whether or not the postconviction court

relied on or considered that ground. People v. Hamm, 2019 COA

90, ¶ 23.

B. Discussion

¶8 Colorado has adopted the test established in Teague to

determine whether a new constitutional rule of criminal procedure

applies retroactively to cases on collateral review under Crim. P.

35(c). Edwards v. People, 129 P.3d 977, 983 (Colo. 2006). Under

Teague, Colorado courts apply a three-part test that considers

(1) whether the defendant’s conviction is final; (2) whether the rule

in question is in fact new; and (3) if the rule is new, whether it

meets either of the two Teague exceptions to the general bar on

retroactivity. Edwards, 129 P.3d at 983. These two Teague

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exceptions are that (1) the new rule is substantive in nature

because it forbids criminal punishment of certain kinds of conduct

or (2) the new rule is a “watershed” procedural rule that implicates

the fundamental fairness and accuracy of the criminal proceeding.

People v. McDonald, 2023 COA 23, ¶¶ 13-14 (cert. granted Nov. 14,

2023).

¶9 But Teague applies only to “new constitutional rules of criminal

procedure.” Danforth v. Minnesota, 552 U.S. 264, 274 (2008)

(emphasis added) (quoting Teague, 489 U.S. at 310 (plurality

opinion)). “If the new rule is not founded on constitutional

concerns, it does not implicate Teague.” Reina-Rodriguez v. United

States, 655 F.3d 1182, 1188 (9th Cir. 2011). This requirement is

consistent with Colorado case law, which has applied the Teague

test only to new rules of criminal procedure involving constitutional

rights. See, e.g., People v. Tate, 2015 CO 42, ¶ 61 (concluding that

the new constitutional rule announced in Miller v. Alabama,

567 U.S. 460 (2012), was not a watershed rule of procedure and

therefore did not apply retroactively to cases on collateral review);

People v. Johnson, 142 P.3d 722, 728 (Colo. 2006) (concluding that

the new constitutional rule announced in Blakely v. Washington,

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542 U.S. 296 (2004), was not a watershed rule of criminal

procedure and thus did not apply retroactively to the defendant’s

conviction); Edwards, 129 P.3d at 988 (holding that the new

constitutional rule announced in Crawford v. Washington, 541 U.S.

36 (2004), was not a “watershed rule of criminal procedure and

therefore does not apply retroactively to cases involving

postconviction proceedings”); McDonald, ¶ 24 (holding that, to the

extent Wells-Yates v. People, 2019 CO 90M, announced new rules of

constitutional law for criminal cases, the rules were procedural and

thus did not apply retroactively); People v. McDowell, 219 P.3d 332,

337-38 (Colo. App. 2009) (concluding that Missouri v. Seibert,

542 U.S. 600, 609 (2004), which held unconstitutional the

“two-step Miranda” process, was not a watershed rule of criminal

procedure and thus did not apply retroactively to the defendant’s

conviction); People v. Bradbury, 68 P.3d 494, 499 (Colo. App. 2002)

(concluding that the new constitutional rule announced in

Apprendi v. New Jersey, 530 U.S. 466 (2000), was not a watershed

rule of criminal procedure to be applied retroactively).

¶ 10 We now turn to whether Rojas announced a new

constitutional rule of criminal procedure. In Rojas, our supreme

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court abolished the common law res gestae doctrine, at least in

criminal cases. Rojas, ¶¶ 4 n.1, 41. In its place, the supreme court

adopted an intrinsic-extrinsic framework to determine whether the

admission of uncharged misconduct evidence must be analyzed

under CRE 404(b). Id. at ¶ 52. The court explained as follows:

Intrinsic acts are those (1) that directly prove
the charged offense or (2) that occurred
contemporaneously with the charged offense
and facilitated the commission of it. Evidence
of acts that are intrinsic to the charged offense
are exempt from Rule 404(b) because they are
not “other” crimes, wrongs, or acts.
Accordingly, courts should evaluate the
admissibility of intrinsic evidence under [CRE]
401-403. If extrinsic evidence suggests bad
character (and thus a propensity to commit
the charged offense), it is admissible only as
provided by Rule 404(b) and after [an analysis
as set forth in People v. Spoto, 795 P.2d 1314
(Colo. 1990)]. Conversely, if extrinsic evidence
does not suggest bad character, Rule 404(b)
does not apply and admissibility is governed
by Rules 401-403.

Rojas, ¶ 52. Rojas, however, did not announce a new constitutional

rule. See Yusem v. People, 210 P.3d 458, 469 n.16 (Colo. 2009)

(The “[e]rroneous admission of CRE 404(b) evidence is not error of

constitutional dimension.”); see also People v. Salas, 2017 COA 63,

¶ 10 (same); People v. Casias, 2012 COA 117, ¶ 60 (same).

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¶ 11 Thus, because Rojas did not implicate a constitutional rule,

Teague does not apply. See, e.g., Reina-Rodriguez, 655 F.3d at

1188 (explaining that a new rule announced in a case limiting the

definition of burglary “is not a new constitutional rule, since it does

not implicate constitutional rights,” and “[a]s a result, Teague’s

retroactivity bar does not apply”); United States v. Talk, 158 F.3d

1064, 1071 (10th Cir. 1998) (concluding that retroactive application

of a decision was not barred by Teague because the decision was

“neither new nor constitutional”), abrogated on other grounds as

recognized in United States v. Harms, 371 F.3d 1208, 1210 (10th

Cir. 2004).

¶ 12 Our conclusion that Rojas is not a “new constitutional rule” is

fatal to Cooper’s claim. Under section 18-1-410(1)(f)(II), C.R.S.

2023, and Crim. P. 35(c)(1), a defendant is barred from seeking

retroactive application of a “significant change in the law” to a

conviction or sentence when the defendant “has not sought appeal

of a conviction within the time prescribed” or the “judgment of

conviction has been affirmed upon appeal.” Hamm, ¶¶ 12-14

(quoting § 18-1-410(1)(f)(II)); People v. Banks, 924 P.2d 1161, 1163

(Colo. App. 1996) (“[R]elitigation of a claim based on a change of law

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is specifically prohibited in a post-conviction proceeding once a

judgment of conviction has been affirmed upon appeal.”).

¶ 13 There is an exception for a defendant to seek review outside

these timeframes for an alleged constitutional violation. Crim. P.

35(c)(2). But this exception is available only for (1) “[a]ny claim

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”; or (2) “[a]ny

claim based on a new rule of constitutional law that was previously

unavailable, if that rule should be applied retroactively to cases on

collateral review.” Crim. P. 35(c)(3)(VI)(b), (c)(3)(VII)(c) (emphases

added). Given our conclusion above, that exception does not apply

here.

¶ 14 Thus, section 18-1-410(1)(f)(II) and Rule 35(c)(1) bar any

postconviction claims seeking retroactive application of a significant

nonconstitutional change in the law once the conviction has

become final. See People v. Cali, 2020 CO 20, ¶¶ 20-24.

¶ 15 For all these reasons, we affirm the postconviction court’s

order denying Cooper’s supplemental motion, albeit on different

grounds. See Hamm, ¶ 23.

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III. Disposition

¶ 16 The order is affirmed.

JUDGE FREYRE and JUDGE KUHN concur.

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