v. Hunsaker , 2020 COA 48 ( 2020 )

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
March 26, 2020
2020COA48
No. 17CA1815, People v. Hunsaker — Criminal Procedure —
Postconviction Remedies — Correction of an Illegal Sentence
This opinion considers whether the holding in Leyva v. People,
184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an illegal
sentence resets the three-year limitations period for filing a Crim. P.
35(c) motion — applies to any collateral attack that a defendant
might assert, or, alternatively, only to those claims that relate to
how the illegality in that sentence potentially affected the
defendant’s original convictions. Disagreeing with People v. Baker,
2017 COA 102, rev’d on other grounds, 2019 CO 97M, the majority
concludes that the correction of an illegal sentence only resets the
time period for filing a Crim. P. 35(c) motion for those claims that
relate to how the illegality in the sentence potentially affected a
defendant’s original convictions.
COLORADO COURT OF APPEALS 2020COA48
Court of Appeals No. 17CA1815
Larimer County District Court No. 03CR1173
Honorable Devin R. Odell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William J. Hunsaker, Jr.,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE GROVE
Graham*, J., concurs
Richman, J., concurs in part and dissents in part
Announced March 26, 2020
Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Hunsaker Emmi, P.C., William J. Hunsaker, Golden, 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. 2019.
¶1 In this appeal, we decide whether the holding in Leyva v.
People, 184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an
illegal sentence resets the three-year limitations period for filing a
Crim. P. 35(c) motion — applies to any collateral attack that a
defendant might assert, or, alternatively, only to those claims that
relate to how the illegality in that sentence potentially affected the
defendant’s original convictions. We conclude that the correction of
an illegal sentence only resets the time period for filing a Crim. P.
35(c) motion for those claims that relate to how the illegality in the
sentence potentially affected a defendant’s original convictions. For
that reason, all but one of the claims asserted by defendant,
William J. Hunsaker, Jr., in his Crim. P. 35(c) motion are untimely.
And, because the timely claim may be denied as a matter of law, we
affirm the district court’s order denying that motion.
¶2 In reaching this conclusion, we disagree with People v. Baker,
2017 COA 102, rev’d on other grounds, 2019 CO 97M, in which
another division of this court held that the correction of an illegal
sentence resets the statutory time bar for collaterally attacking the
original judgment of conviction in all respects.
1
I. Background
¶3 In 2006, a jury found Hunsaker guilty of sexual assault on a
child and sexual assault on a child as part of a pattern of abuse
(pattern count). The court sentenced him to concurrent prison
terms of eight years to life for sexual assault on a child and sixteen
years to life on the pattern count. On appeal, a division of this
court affirmed Hunsaker’s convictions. People v. Hunsaker, (Colo.
App. No. 06CA2088, Mar. 4, 2010) (not published pursuant to
C.A.R. 35(f)) (Hunsaker I). The mandate issued on January 31,
2011.
¶4 In 2011, Hunsaker filed a Crim. P. 35(a) motion, arguing that
the court had illegally imposed sentences applicable to
extraordinary risk crimes despite the fact that neither of his
convictions presented an extraordinary risk of harm. The
prosecution agreed that Hunsaker had not been convicted of an
extraordinary risk crime and, accordingly, conceded that Hunsaker
had received an illegal sentence for the count of sexual assault on a
child. With respect to the pattern count, however, the prosecution
maintained that the sentence was legal because the pattern count
was a crime of violence. The district court agreed with Hunsaker
2
and amended the mittimus to reflect sentences of six years to life on
the sexual assault on a child count and twelve years to life on the
pattern count.
¶5 The People appealed the court’s decision to resentence
Hunsaker on the pattern count. A division of this court agreed that
the original sentence of sixteen years to life was legal and remanded
the case for the district court to reinstate that sentence. People v.
Hunsaker, 2013 COA 5, ¶¶ 24, 45-46 (Hunsaker II), aff’d, 2015 CO
46, ¶ 40. The mandate issued on August 6, 2015. In February
2016, the district court amended the mittimus to reinstate the
sentence of sixteen years to life on the pattern count.
¶6 On February 16, 2016, Hunsaker filed the Crim. P. 35(c)
motion that is the subject of this appeal. He argued that the
district court violated his
 right to due process, by failing to follow the statutory
requirements for determining his competency and
allowing him to be tried and sentenced without
determining whether he was competent;
 right to a jury trial, by imposing a sentence in 2006 that
exceeded the maximum in the presumptive range on the
3
pattern count without a jury finding of aggravating
circumstances; and
 right to be free of double jeopardy, by reinstating the
sentence of sixteen years to life on the pattern count after
he had completed the minimum term of the
indeterminate sentence and had been released on parole
because he had a legitimate expectation of finality once
he had been released on parole.
¶7 Hunsaker also asserted that the four attorneys who
represented him during the pretrial proceedings, trial, and
sentencing provided ineffective assistance by
 failing to adequately prepare for trial;
 advising him to flee the jurisdiction;
 representing him while under a conflict of interest;
 failing to raise the issue of competency; and
 failing to object to the court’s imposition of sentences
that were modified for extraordinary risk crimes even
though the crimes of which he was convicted did not
constitute an extraordinary risk of harm.
4
¶8 After the People filed a response, Hunsaker filed a reply
arguing that he did not receive reasonable notice that he was
subject to a sentence with a minimum term that exceeded the
maximum in the presumptive range without a finding of aggravated
circumstances.
¶9 The district court denied Hunsaker’s Crim. P. 35(c) motion
without a hearing.
II. Abandoned Argument
¶ 10 Because he did not reassert it on appeal, Hunsaker has
abandoned his double jeopardy argument. See People v. Osorio,
170 P.3d 796, 801 (Colo. App. 2007).
III. Timeliness of Hunsaker’s Crim. P. 35(c) Claims
¶ 11 As for the issues that Hunsaker has raised on appeal, he
argues that the district court erred by denying his motion without a
hearing because he alleged facts that, if true, would provide a basis
for relief. We conclude that all but one of Hunsaker’s claims are
untimely.
¶ 12 We review de novo a district court’s denial of a Crim. P. 35(c)
motion without a hearing. See People v. Phipps, 2016 COA 190M,
¶ 20. A court may deny the motion without a hearing if “the
5
motion, the files, and the record clearly establish that the defendant
is not entitled to relief.” Osorio, 170 P.3d at 799.
¶ 13 Generally, a defendant must file a Crim. P. 35(c) motion within
three years after the date of his felony conviction. See § 16-5-
402(1), C.R.S. 2019. Where, as here, there was a direct appeal, a
conviction is final when the appellate process has been exhausted.
See People v. Hampton, 857 P.2d 441, 444 (Colo. App. 1992), aff’d,
876 P.2d 1236 (Colo. 1994). The date of Hunsaker’s conviction for
purposes of section 16-5-402(1) was January 31, 2011 — the date
the mandate issued in Hunsaker I. The statutory limitations period
thus expired on January 31, 2014, but Hunsaker did not file his
Crim. P. 35(c) motion until February 16, 2016.1
¶ 14 Nonetheless, citing Leyva, Hunsaker argues (as he did in the
Crim. P. 35(c) motion) that the motion was timely filed because his
convictions did not become final (and the three-year limitations
period did not start) until the district court reinstated the sentence
1 Although there is an exception to the three-year limitations period
if a defendant shows that his “failure to seek relief within the
applicable time period was the result of circumstances amounting
to justifiable excuse or excusable neglect,” § 16-5-402(2)(d), C.R.S.
2019, Hunsaker did not allege that there was justifiable excuse or
excusable neglect for the late Crim. P. 35(c) arguments.
6
of sixteen years to life on the pattern count on February 29, 2016.
He contends that the People’s appeal of the sentence on the pattern
count tolled the deadline for filing a Crim. P. 35(c) motion as to any
issue involving his convictions or sentences.
¶ 15 In Leyva, the supreme court held that “when an illegal
sentence is corrected pursuant to Crim. P. 35(a), it renews the
three-year deadline for collaterally attacking the original judgment
of conviction pursuant to Crim. P. 35(c).” Leyva, 184 P.3d at 50-51.
Yet, despite the apparent breadth of this language, Leyva limited its
holding by stating that the illegality allows a defendant “to pursue
any good-faith arguments for postconviction relief addressing how
that illegality potentially affected his or her original conviction.” Id. at
50 (emphasis added). We read this sentence as requiring some
nexus between the original illegal sentence and the claims raised in
a future Crim. P. 35(c) motion. Indeed, as the dissenting justices in
Leyva noted, the majority tried “to limit the consequences of its
rationale by suggesting that the defendant’s right to collaterally
attack his judgment of conviction remains restricted, even after
today’s holding, to matters sufficiently affected by or related to the
illegality of his sentence.” Id. at 51 (Coats, J., dissenting).
7
¶ 16 We conclude that Leyva limits the renewal of the three-year
deadline for filing a Crim. P. 35(c) motion to claims that are related
to how the illegality in the original sentence potentially affected a
defendant’s original conviction. Thus, the illegality in the original
sentence on Hunsaker’s conviction for sexual assault on a child did
renew the three-year period for him to file a Crim. P. 35(c) motion
on all claims — but instead only for claims that relate to how the
illegality in that sentence may have affected his conviction.
¶ 17 Hunsaker’s postconviction claims relate to the district court’s
actions in determining his competency and in imposing the original
sentence on the pattern count (which was legal from the time that it
was imposed); trial counsel’s performance before and during the
trial on matters unrelated to his sentences; and trial counsel’s
performance during sentencing related to the pattern count. Only
the last of these claims — that defense counsel rendered ineffective
assistance by failing to object to the imposition of an extraordinary
risk sentence where the conviction did not present an extraordinary
risk of harm — even arguably relates to the illegality in his original
sentence for sexual assault on a child.
8
¶ 18 Therefore, with the exception of that argument, Hunsaker’s
limitations period expired on January 31, 2014, three years after
the mandate issued in Hunsaker I. Any Crim. P. 35(c) claims that
did not relate to how the illegality in Hunsaker’s sentence may have
affected his conviction were untimely, and the district court
properly denied them without a hearing. See Osorio, 170 P.3d at
799; see also People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)
(an appellate court may affirm the district court on any ground
supported by the record).
¶ 19 In reaching this conclusion, we necessarily disagree with the
division in Baker. See People v. Thomas, 195 P.3d 1162, 1164
(Colo. App. 2008) (one division of this court is not bound by the
decision of another division). In Baker, the division declined to read
any limitation into Leyva’s holding, concluding that the supreme
court (1) repeatedly phrased its holding broadly; and (2) remanded
the case for “consideration of the defendant’s ineffective assistance
of counsel claims on all of the defendant’s convictions, even though
it determined the defendant’s sentence was illegal on only one
count.” Baker, ¶¶ 40-41.
9
¶ 20 We are not persuaded that Leyva’s phrasing negated the
limiting language used in the opinion. Nor do we believe that the
broad remand in that case requires a similar result here. To the
contrary, the scope of Leyva’s mandate was consistent with the
opinion’s limiting language because the defendant’s Crim. P. 35(c)
motion included an argument that “the late-discovered illegality in
his sentence helps establish that he received ineffective assistance
of counsel.” Leyva, 184 P.3d at 50.
¶ 21 In our view, it makes sense to require some connection
between the illegality that formed the basis of an illegal sentence
and an otherwise belatedly raised claim. Concluding that no such
connection is necessary would run counter to the state’s interest in
the finality of convictions by allowing otherwise time-barred
defendants to file repeated motions under Crim. P. 35(a) with the
hope of discovering an illegality that reopens the Crim. P. 35(c)
door. But we discern no good reason to allow the period for filing
any and all potential Crim. P. 35(c) claims to recommence simply
because some component of a defendant’s sentence was
inconsistent with statutory authority, regardless of the extent of the
illegality. See People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.
10
2006) (“[A] sentence is ‘illegal’ under Crim. P. 35(a) if it is
‘inconsistent with the statutory scheme outlined by the legislature.’”
(quoting People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005))).
¶ 22 Here, unlike the defendant in Leyva, Hunsaker made no
attempt in his postconviction motion to link the illegality of the
sentence on the sexual assault on a child count to his collateral
attack on the judgment of conviction. That is, he did not argue that
the illegality in his sentence had any bearing on the question
whether his underlying conviction was constitutionally obtained.
Thus, Baker’s reliance on Leyva’s remand does not persuade us
that the statutory limitations period should be reset for all of
Hunsaker’s claims.
IV. Extraordinary Risk Crime Argument
¶ 23 Next, we will assume, without deciding, that the three-year
limitations period was reset with respect to Hunsaker’s claim that
trial counsel was constitutionally ineffective for failing to object
when the court modified the presumptive range for an extraordinary
risk crime and that the claim was timely filed. Even so, we
conclude that the claim fails as a matter of law.
11
¶ 24 A court may deny an ineffective assistance of counsel claim, as
a matter of law, if the defendant does not make sufficient
allegations that, if true, would entitle him to relief. See People v.
Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011), aff’d on other
grounds, 2015 CO 37.
¶ 25 To prove an ineffective assistance of counsel claim, a
defendant must show that his counsel’s performance was deficient
— that is, it fell below an objective standard of reasonableness —
and that the deficient performance prejudiced the defense. See
Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). “Because a
defendant must show both deficient performance and prejudice, a
court may resolve the claim solely on the basis that the defendant
has failed in either regard.” People v. Karpierz, 165 P.3d 753, 759
(Colo. App. 2006).
¶ 26 The test for evaluating counsel’s performance is whether
counsel’s conduct was “within the range of competence demanded
of attorneys in criminal cases under prevailing professional norms.”
People v. Garcia, 815 P.2d 937, 941 (Colo. 1991). “To prove
prejudice, a defendant must show a reasonable probability that, but
for counsel’s ineffective assistance, the result of the proceeding
12
would have been different.” Karpierz, 165 P.3d at 759. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
¶ 27 In the Crim. P. 35(c) motion, Hunsaker alleged that trial
counsel’s performance was deficient for failing to object to the
court’s modification of the presumptive sentencing ranges for
extraordinary risk crimes, even though the crimes for which he was
convicted were no longer considered to be an extraordinary risk of
harm after the legislature repealed the classification in 2004. He
argued that counsel’s deficient performance prejudiced his defense
because, if counsel had brought the repeal to the court’s attention,
it would have resulted in the court imposing a sentence of twelve
years to life.
¶ 28 Although Hunsaker did not specify this, a sentence of twelve
years to life would have been applicable only to the pattern count.
Therefore, we limit our analysis of how the illegality in the sentence
on the sexual assault on a child count could have affected the
sentence on the pattern count.
¶ 29 We agree that the allegation that trial counsel’s failure to
object to the court’s modification of the sentencing range for an
13
extraordinary risk crime when the crime of sexual assault on a
child was not an extraordinary risk crime, if true, would have
constituted deficient performance. However, Hunsaker has not
shown how the outcome of the sentencing hearing would have been
different with regard to the sentence on the pattern count, because
the fact that the presumptive sentencing range on the sexual
assault on a child count should have been different has no bearing
on the presumptive sentencing range on the pattern count.
Hunsaker’s claim regarding the presumptive range on the pattern
count is time barred because the original sentence on that count
was legal. The limitations period has not been reset with regard to
that claim.
¶ 30 Under these facts, we conclude that the court also properly
denied this claim without a hearing. See Osorio, 170 P.3d at 799;
see also Aarness, 150 P.3d at 1277.
V. Conclusion
¶ 31 The order is affirmed.
JUDGE GRAHAM concurs.
JUDGE RICHMAN concurs in part and dissents in part.
14
JUDGE RICHMAN, concurring in part and dissenting in part.
¶ 32 I agree with the majority’s comment that for purposes of
enforcing a time limitation on postconviction motions, it makes
sense to require some connection between the illegality that formed
the basis of a successful illegal sentence claim and a later-filed
claim under Crim. P. 35(c). Otherwise, the goal of finality embodied
in section 16-5-402(1), C.R.S. 2019, is undermined.
¶ 33 However, I cannot state with certainty that the language of
Leyva v. People, 184 P.3d 48, 50-51 (Colo. 2008), requires that
connection, and thus I must express my disagreement with the
majority. At least three times in the Leyva opinion, the majority
states its holding without requiring a connection between the illegal
sentence and the scope of the Crim. P. 35(c) motion.
[T]he three-year deadline for bringing a Crim.
P. 35(c) motion regarding the original
conviction was not triggered until Leyva’s
sentence was corrected, and his judgment of
conviction amended.
184 P.3d at 49.
[T]he only question is whether Leyva’s
collateral attack on his 1993 conviction,
brought within three years of his resentencing,
was properly brought within three years “of
15
said conviction,” as that term is used in
section 16-5-402(1).
Id. at 49-50.
We conclude that when an illegal sentence is
corrected pursuant to Crim. P. 35(a), it renews
the three-year deadline for collaterally
attacking the original judgment of conviction
pursuant to Crim. P. 35(c).
Id. at 50-51.
¶ 34 While the opinion also states that “[i]f an illegality is
discovered in a prisoner’s sentence, the prisoner should be allowed
to pursue any good-faith arguments for postconviction relief
addressing how that illegality potentially affected his or her original
conviction,” id. at 50, that sentence, until further clarified by the
supreme court, does not appear to be the holding of the case. See
People v. Baker, 2017 COA 102, ¶ 40, rev’d on other grounds, 2019
CO 97M.1
1The supreme court granted certiorari in Baker on this very issue.
People v. Baker, No. 17SC570, 2017 WL 5477160 (Colo. Nov. 13,
2017) (unpublished order) (“Whether the correction of a sentence
not authorized by law renews the three-year deadline for collaterally
attacking the original judgment of conviction in all respects.”).
However, it then decided the case on different grounds. Perhaps it
will grant certiorari in this case and clarify the issue.
16
¶ 35 Thus, I must disagree with the majority’s reliance on that
sentence. I must further disagree that all of Hunsaker’s claims,
other than the one regarding trial counsel’s failure to object to the
district court’s modification of the sentencing range for an
extraordinary risk crime, are barred by the time limitation.
¶ 36 Nonetheless, I concur with the majority that the district court
properly denied the claim regarding trial counsel’s failure to object
to the court’s modification of the sentencing range for an
extraordinary risk crime, for the reasons stated by the majority.
¶ 37 I would also conclude that Hunsaker’s claim that the district
court denied his right to due process by failing to follow the
statutory requirements for determining his competency, and by
allowing him to be tried and sentenced without a competency
determination, was an issue that could have been presented in a
previous appeal. It was therefore successive and barred under
Crim. P. 35(c)(3)(VII). Accordingly, I would affirm the district court’s
order as to this claim.
¶ 38 Finally, because I conclude that Hunsaker’s ineffective
assistance of counsel claims were timely brought, I would remand
this case for a hearing on his claims that counsel was ineffective for
17
(1) failing to adequately prepare for trial; (2) advising him to flee the
jurisdiction; and (3) failing to raise the issue of competency. I do
not find the district court’s reasons for denying these claims to be
persuasive for several reasons.
¶ 39 First, the district court’s order does not appear to address the
claim that counsel was inadequately prepared for trial.
¶ 40 Second, the order concludes that the allegation that counsel
advised Hunsaker to flee the jurisdiction is “very difficult to believe.”
That may be so, but a defendant is entitled to a hearing so long as
he has asserted facts in his postconviction motion that, if true,
would provide a basis for relief under Crim. P. 35. People v.
Morones-Quinonez, 2015 COA 161, ¶ 6 (citing White v. Denver Dist.
Court, 766 P.2d 632, 635 (Colo. 1988)). The district court did not
apply that standard.
¶ 41 Third, the order rejected the claim that counsel improperly
failed to raise the issue of competency by simply stating, “counsel
properly raised and resolved that issue.” While the record reflects
that counsel stated that Hunsaker’s mental health issues, which
were previously raised, had “been resolved with regard to his
lawyers,” that statement does not clarify that these issues were
18
withdrawn after consultation with Hunsaker and with his consent.
On remand, I would order the district court to examine the
circumstances that led to counsel’s statement and determine
whether it was authorized by Hunsaker.
¶ 42 To the extent that the district court denied Hunsaker’s other
postconviction claims, I would affirm those rulings.
19