Peo v. Germain

22CA1618 Peo v Germain 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1618

Mesa County District Court No. 11CR128

Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Germain,

Defendant-Appellant.

APPEAL DISMISSED

Division VI

Opinion by JUDGE BERNARD*

Lipinsky and Schutz, JJ., concur

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

Announced July 3, 2024

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Gregory Lansky, Alternate Defense Counsel, Aurora, 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 Defendant, William Germain, appeals the postconviction

court’s decision denying his Crim. P. 35(a) motion to correct an

illegal sentence. We dismiss his appeal as moot.

I. Background

¶ 2 In 2011, defendant pled guilty to attempted sexual assault on

a child, a class 5 felony. The trial court sentenced him to probation

for eight years, with four years of that sentence to be served in a

community corrections facility as a condition of his probation.

¶ 3 Defendant escaped seventeen days after entering the

residential program at the community corrections facility. The

prosecution charged him with violating his probation in this case

and the class 3 felony of escape in a separate case. The prosecution

eventually charged him with the class 5 felony of stalking in a third

case. All these cases were resolved in a plea disposition in which he

admitted to violating his probation in this case, and he pled guilty

to the charges in the second and third cases. In exchange for the

prosecution’s agreement not to pursue habitual criminal charges,

the new plea agreement contained a stipulated controlling sentence

of eighteen years in prison.

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¶ 4 More specifically, in November 2012, the trial court found that

defendant’s two prior felony convictions and his commission of new

felony offenses after escaping from the community corrections

facility justified a sentence in the aggravated range on the

attempted sexual assault on a child charge. The court resentenced

him to five years in prison to run concurrently with a five-year

prison sentence for stalking and consecutively to a thirteen-year

prison sentence for escape.

¶ 5 In October 2021, defendant filed a pro se Crim. P. 35(a) motion

in which he argued that he had been illegally sentenced to an

aggravated term of five years in prison on a charge for which the

maximum prison term was three years. Five days later, he filed a

second Crim. P. 35(a) motion in which he argued that his original

four-year community corrections sentence and subsequent five-year

prison resentence constituted a “double illegal sentence,” and he

asked for an adjustment to his “original sentence.”

¶ 6 The postconviction court appointed postconviction counsel,

who filed a supplemental motion asserting that defendant’s original

four-year community corrections sentence — which, recall, was a

condition of probation — was illegal because (1) it exceeded the

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presumptive range for a class 5 felony; and (2) the trial court did

not make any factual findings to support an aggravated sentence.

Counsel argued that the presumptive range for a direct sentence to

community corrections under section 18-1.3-401, C.R.S. 2023, was

also applicable to defendant’s sentence to community corrections as

a condition of probation under section 18-1.3-301(b), C.R.S. 2023.

¶ 7 In its response to the Crim. P. 35(a) motion, the prosecution

submitted that the issue was moot because, after defendant had

escaped, he entered into a new plea disposition and the trial court

sentenced him pursuant to that disposition.

¶ 8 In his reply, defendant responded that the issue was not moot

because he was still suffering the consequences of his illegal

sentence: he was serving the prison term for the escape conviction

while he was also serving the illegal sentence described in the

previous paragraph. He further asserted that, if the court were to

correct his illegal sentence relying on Crim. P. 35(a), the deadline

for filing a Crim. P. 35(c) motion would be renewed and “there [was]

an argument that [his] related escape sentence was illegal if the

sentence in this matter is void.” Finally, defendant contended that

his claim fell within the exception to mootness that permits review

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of otherwise moot issues that are capable of repetition yet evade

review because Colorado courts had not yet addressed whether

presumptive sentencing ranges under section 18-1.3-401 apply to

sentences to community corrections as a condition of probation.

¶ 9 The postconviction court agreed with the prosecution, and it

denied the Crim. P. 35(a) motion as moot.

¶ 10 On appeal, defendant contends that the postconviction court

erred by denying his motion, maintaining that his original four-year

community corrections sentence as a condition of probation was

illegal.

¶ 11 To the extent that defendant raised additional claims in his

motion that he has not pursued on appeal, we conclude that he has

abandoned them. See People v. Ortega, 266 P.3d 424, 428 (Colo.

App. 2011).

II. Mootness

¶ 12 Relying on People v. Fritz, 2014 COA 108, the prosecution

asserts that defendant’s appeal is moot because his sentence to

community corrections was vacated when the trial court

resentenced him under the new plea disposition. We agree.

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A. Standard of Review and Applicable Law

¶ 13 We review de novo whether an appeal is moot. Id. at ¶ 20. An

appeal is moot if granting relief would have no practical effect on an

actual or existing controversy. Id. at ¶ 21. When evaluating

whether a contention is moot in the context of a case such as this

one, we must consider both the direct and collateral consequences

of a conviction. Id. at ¶ 21; see Moland v. People, 757 P.2d 137, 139

(Colo. 1988)(“[A] criminal case is moot only if it is shown that there

is no possibility that any collateral legal consequences will be

imposed on the basis of the challenged conviction.” (quoting Sibron

v. New York, 392 U.S. 40, 57 (1968)). “Whether collateral

consequences preclude an issue from being deemed moot turns on

showing the reasonable possibility of such consequences.” People

In Interest of C.G., 2015 COA 106, ¶ 16. “[T]he standard requires a

demonstration of more than an abstract, purely speculative injury,

but does not require proof that it is more probable than not that the

prejudicial consequences will occur.” Id.

¶ 14 When a trial court imposes a new legal sentence after a

defendant enters into a new plea agreement, and the defendant’s

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allegedly illegal sentence has been vacated, “the new legal sentence

necessarily supersedes the original sentence.” Fritz, ¶ 23.

B. Analysis

¶ 15 Defendant admitted that he had violated the terms of his

probation, and he agreed to a new plea disposition, stipulating that

he would receive a new sentence for attempted sexual assault on a

child. For that crime, the court resentenced him to a five-year

prison term, which was a legal sentence for the following reasons.

¶ 16 The presumptive sentencing range for a class 5 felony is one to

three years imprisonment. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2023.

The presence of extraordinary mitigating or aggravating

circumstances permits the court to impose six months to six years

imprisonment. § 18-1.3-401(6). The trial court’s five-year sentence

was based on a finding of aggravating circumstances.

¶ 17 The new legal five-year sentence for attempted sexual assault

on a child vacated defendant’s original community corrections

sentence as a condition of probation. See Fritz, ¶ 23. Because the

new prison sentence necessarily superseded the original community

corrections sentence, our determination of whether the earlier

sentence was illegal would not have a practical effect on this case.

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See id. Consequently, we conclude that defendant’s illegal sentence

claim is moot.

¶ 18 Defendant also has not shown that a favorable ruling in this

appeal would have significant collateral consequences for him. He

asserts that his appeal is not moot because he retains a “concrete

interest” in the successful outcome of his illegal sentence claim. He

continues that the correction of an illegal sentence would reset the

deadline for filing Crim. P. 35(c) collateral attacks and that “there

can also be an argument that [his] related escape sentence can be

challenged if the sentence in this matter is void.” But, as asserted

on appeal without additional argument, these are “abstract, purely

speculative” claims that do not show that there is a “reasonable

possibility” that the judgment may result in significant collateral

consequences. See C.G., ¶¶ 13, 16.

III. Exception to Mootness

¶ 19 Defendant contends that, should we determine his claim is

moot, we should nonetheless review it under the exception to the

mootness doctrine that allows for review of an issue that is “capable

of repetition yet evading review.” People v. Garcia, 2014 COA 85,

¶ 22. “Issues are capable of repetition when they could, or are

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likely to, reoccur in the future.” Anderson v. Applewood Water

Ass’n, 2016 COA 162, ¶ 28. They evade review when the “time

required to complete the legal process will necessarily render each

specific challenge moot.” Id. (quoting Rocky Mountain Ass’n of

Credit Mgmt. v. Dist. Ct., 193 Colo. 344, 346, 565 P.2d 1345, 1346

(1977)); see also Romero v. People, 179 P.3d 984, 986 n.2 (Colo.

2007)(electing to review a moot issue under the exception for issues

capable of repetition, yet evading review, “given the relatively short

sentences involved and the length of the appeals process”).

¶ 20 Defendant submits that his claim falls within this exception

because no Colorado appellate court has published an opinion

deciding whether the presumptive ranges in section 18-1.3-401

apply to community corrections sentences that are imposed as a

condition of probation under section 18-1.3-301(b).

¶ 21 Although this issue is arguably capable of repetition in other

cases in which defendants have been sentenced to community

corrections as a condition of probation, it will not evade review.

This claim could be presented for future review — without the

concern that the “time required to complete the legal process will

necessarily render [the] specific challenge moot” — if a trial court

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sentences a defendant to an aggravated term in community

corrections as a condition of probation and if the defendant timely

appeals or if he or she files a timely Crim. P. 35(a) motion.

“Accordingly, we need not decide the issue here, when it would have

no practical effect on an actual controversy.” People v. DeBorde,

2016 COA 185, ¶ 34; cf. Walton v. People, 2019 CO 95, ¶ 8 (“Were

we to wait for another case like this one to find its way to us with a

defendant still serving her sentence, we might wait in vain. DUI

sentences are often shorter than the time necessary for appeal and

certiorari review.”).

¶ 22 The appeal is dismissed.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.