Peo v. Rhodes

23CA0748 Peo v Rhodes 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0748
Arapahoe County District Court No. 02CR2008
Honorable Eric B. White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Zachary Caine Rhodes,

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 November 14, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Solicitor General,
Denver, Colorado, for Plaintiff-Appellee

Gail K. Johnson, Alternate Defense Counsel, Boulder Colorado; Dan M. Meyer,
Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Zachary Caine Rhodes, appeals the district court’s

order denying his most recent Crim. P. 35(c) motion. We affirm.

I. Background

¶2 In 2003, a jury convicted Rhodes of first degree burglary,

felony menacing, and a crime of violence sentence enhancer. He

was adjudicated a habitual criminal based on evidence that he had

four prior felony convictions: (1) a 1989 conviction for attempted

unlawful possession of a Schedule II controlled substance; (2) a

1991 conviction for attempted escape; (3) a 1998 conviction for

driving after revocation prohibited; and (4) a 2001 conviction for

aggravated driving with a revoked license. The trial court sentenced

him to concurrent prison terms of sixty-four years for first degree

burglary and twelve years for menacing. Rhodes directly appealed

the judgment, and a division of this court affirmed. People v.

Rhodes, (Colo. App. No. 04CA1890, May 31, 2007) (not published

pursuant to C.A.R. 35(f)) (Rhodes I).

¶3 In 2008, Rhodes filed a postconviction motion seeking a

proportionality review, arguing that his sixty-four-year sentence for

burglary constituted cruel and unusual punishment. After

receiving the prosecution’s response, the district court denied relief.

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¶4 Rhodes did not appeal, instead filing a Crim. P. 35(c) motion

asserting claims of ineffective assistance and improper

nondisclosures by the prosecution but lodging no challenge to his

sentence. The district court denied this motion without a hearing,

and a division of this court affirmed. People v. Rhodes, (Colo. App.

No. 09CA0069, Jan. 28, 2010) (not published pursuant to C.A.R.

35(f)) (Rhodes II).

¶5 More than ten years after the opinion in Rhodes II, our

supreme court announced Wells-Yates v. People, 2019 CO 90M,

which clarified how Colorado courts should conduct proportionality

reviews in the context of habitual criminal cases. See id. at ¶ 17.

¶6 Three years after the decisions in Wells-Yates, Rhodes filed

another Crim. P. 35(c) motion seeking a new proportionality review

“pursuant to . . . the principles set forth in” that case and its

companion cases. He acknowledged that his motion was barred by

the three-year time limitation in section 16-5-402(1), C.R.S. 2024.

He argued, however, that his untimeliness should be excused

because his failure to seek relief within the applicable limitations

period was the result of circumstances amounting to justifiable

excuse or excusable neglect. In particular, he asserted that

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• his claims were based on new substantive rules of

constitutional law, as articulated in Wells-Yates, that were

previously unavailable and that should be applied

retroactively to cases on collateral review;

• his challenge to his habitual sentences was based on events

that occurred after initiation of his prior appeal and

postconviction proceeding — specifically, “statutory

amendments and the issuance of Wells-Yates” and its

companion cases; and

• an objective factor external to the defense and not

attributable to it — namely, the existence of adverse

precedent, abrogated by Wells-Yates — made raising the

claims earlier impracticable.

Rhodes also acknowledged that his motion was successive. But he

argued that the exceptions to the successiveness bar applied

“[g]iven th[e] changed legal landscape.”

¶7 In a detailed written order, the district court denied relief,

concluding that the motion was (1) untimely and without adequate

allegations of justifiable excuse or excusable neglect and

(2) successive. In particular, the district court relied on People v.

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McDonald, 2023 COA 23 (cert. granted Nov. 14, 2023), to conclude

that Wells-Yates does not apply retroactively because, to the extent

it announced any new rules of constitutional law, those rules were

procedural, not substantive.

II. Discussion

¶8 Rhodes contends that the district court erred by denying his

Crim. P. 35(c) motion without a hearing. Reviewing that decision de

novo, People v. Cali, 2020 CO 20, ¶ 14, we disagree.

¶9 When, as is concededly the case here, a defendant seeks to

collaterally attack his judgment of conviction outside the time

limitations set forth in section 16-5-402(1), he must allege facts

that, if true, would entitle him to relief from the time bar. People v.

Chavez-Torres, 2019 CO 59, ¶ 13 (citing People v. Wiedemer, 852

P.2d 424, 440 n.15 (Colo. 1993)). “[T]he only exceptions to the time

limitations specified in subsection (1)” are those set forth in

subsection (2). § 16-5-402(2) (emphasis added).

¶ 10 As pertinent here, a defendant who invokes the timeliness

exception set forth in section 16-5-402(2)(d) must allege facts

establishing justifiable excuse or excusable neglect for the entire

period of their delay. Wiedemer, 852 P.2d at 441 (noting that, in

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determining justifiable excuse or excusable neglect, courts should

“consider the circumstances existing throughout the entire period

from the inception of the conviction”).

¶ 11 We agree with the People that Rhodes failed to do so.

¶ 12 As set forth above, Wells-Yates and its companion cases were

announced in 2019. But Rhodes’s motion did not explain why he

waited to raise arguments tethered to those cases until 2022, three

years after they were announced. As the People concede, “it takes

some time to digest an opinion and draft a [Crim. P. 35(c)] petition,”

but in his motion, Rhodes offered no explanation for why he needed

three years to begin pursuing relief, or why that period of delay was

justified or excused. See Chavez-Torres, ¶ 14 (noting that one factor

in determining whether there was justifiable excuse or excusable

neglect is “the extent to which the defendant, having reason to

question the constitutionality of a conviction, timely investigated its

validity and took advantage of available avenues of relief”)

(emphasis added). And to the extent Rhodes does so for the first

time on appeal, we decline to consider these new arguments. Cali,

¶ 34; see also People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996)

(rejecting defendant’s attempt to fortify on appeal issues

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inadequately raised in the district court and upholding dismissal of

the claims regardless of adequacy of presentation on appeal); People

v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (allegations not

raised in a Crim. P. 35(c) motion or hearing on that motion and not

ruled upon by trial court are not properly before this court for

review).

¶ 13 In any event, as the district court concluded, a division of this

court has rejected the argument that postconviction proportionality

claims based on the principles discussed in Wells-Yates are

excepted from the procedural bars of Crim. P. 35(c). McDonald,

¶ 24; id. at ¶ 8 (characterizing both successiveness and timeliness

as procedural bars). Specifically, McDonald rejected Rhodes’s very

claim that Wells-Yates and its companion cases created any new,

substantive rules of constitutional law that should be applied

retroactively. The division explained that even if Wells-Yates and its

companion cases created new rules of constitutional law, “those

rules are procedural, not substantive, and therefore don’t apply

retroactively.” Id. at ¶ 12. We agree with the analysis and

conclusion in McDonald and apply them here.

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¶ 14 Rhodes offers yet another rationale to support a finding of

justifiable excuse or excusable neglect. He asserts that his

proportionality challenge relies on factual and legal developments

that occurred long after his convictions became final and that were

outside of his control. He claims that (1) none of his predicate

offenses are currently felonies; (2) the legislature has revised the

Habitual Criminal Act to allow habitual criminals to seek sentence

reductions after ten years of incarceration; and (3) Wells-Yates held

that such “statutory changes [are] the most valid indicia of

Colorado’s evolving standards of decency.” Because the

combination of these legislative and judicial events was outside of

his control, he argues, the justifiable excuse or excusable neglect

exception is satisfied.

¶ 15 The People correctly point out that the legislative changes on

which Rhodes relies are either expressly prospective, presumed to

be so, or only applicable to nonfinal convictions. People v.

Stellabotte, 2018 CO 66, ¶ 29 (“[W]e apply expressly prospective

statutes only prospectively” and “when the General Assembly does

not indicate statutory changes are to apply only prospectively,”

defendants may only “receive the benefit of the amendatory

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legislation to their non-final convictions.”); § 2-4-202, C.R.S. 2024

(“A statute is presumed to be prospective in its operation.”).

¶ 16 Moreover, the mere fact that the legislature has made

prospective revisions to either the Habitual Criminal Act or the

classification of Rhodes’s predicate offenses does not alone establish

justifiable excuse or excusable neglect. See People v. Talley, 934

P.2d 859, 861 (Colo. App. 1996) (amendment to habitual criminal

statute did not establish justifiable excuse or excusable neglect for

untimeliness of postconviction motion that was based on the

amendment, where amendment was prospective only). At oral

argument, Rhodes’s counsel asserted that Wells-Yates overruled

Talley. We note that Wells-Yates did not discuss — or even cite —

Talley and see nothing in Wells-Yates’s analysis that calls into

question Talley’s continued efficacy. Indeed, the defendant in

Wells-Yates was pursuing her proportionality challenge in her direct

appeal, see Wells-Yates, ¶¶ 29-34, so the case has no bearing

whatsoever on a justifiable excuse or excusable neglect analysis.

¶ 17 We also reject Rhodes’s apparent claim that a change in the

law is essentially tantamount to justifiable excuse or excusable

neglect — even for final convictions. If that were the case, the

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exception (justifiable excuse and excusable neglect) would swallow

the rule (procedural changes in the law are not retroactively

applicable to convictions that are already final at the time the

change in the law is announced). Instead, as the People also point

out, the consideration of legislative changes in addressing the

merits of a proportionality challenge is necessarily dependent on the

retroactivity of Wells-Yates. And because we agree with the division

in McDonald, we necessarily reject Rhodes’s additional theory of

establishing justifiable excuse or excusable neglect.

¶ 18 For the foregoing reasons, we conclude that Rhodes failed to

allege facts that would establish justifiable excuse or excusable

neglect for his belated filing. Having so concluded, we need not

opine on the district court’s alternate finding that Rhodes’s filing

was also successive.

III. Disposition

¶ 19 The order is affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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