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People v. Montgomery

Court of Appeals of Colorado, First Division

December 4, 2014

The People of the State of Colorado, Plaintiff-Appellee,
v.
John Anthony Montgomery, Defendant-Appellant

Jefferson County District Court Nos. 09CR173, 09CR661 & 09CR1868. Honorable Lily W. Oeffler, Judge.

John W. Suthers, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

John Anthony Montgomery, Pro se.

Opinion by TAUBMAN, JUDGE. Terry and Richman, JJ., concur.

OPINION

TAUBMAN, JUDGE

Page 594

[¶1] Defendant, John Anthony Montgomery, appeals the order denying his motion for postconviction relief filed under Crim. P. 35(a), which asserts that his sentence to the custody of the Department of Corrections (DOC) is illegal and excessive. We affirm.

I. Background

[¶2] Montgomery pleaded guilty in three related criminal cases involving the sexual assault of three children. He was convicted of one count of sexual assault on a child and two counts of sexual assault on a child in a position of trust -- pattern of abuse.

[¶3] The trial court sentenced Montgomery under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA) to two consecutive sixteen-years-to-life terms and one consecutive six-years-to-life term. Montgomery filed a motion to reconsider his sentence under Crim. P. 35(b), which the court denied. He then filed a motion under Crim. P. 35(a),

Page 595

alleging that his sentence was illegal and excessive. After the trial court denied his Crim. P. 35(a) motion, he appealed.

II. Illegal Sentence

[¶4] Montgomery makes three arguments supporting his contention that his sentence is illegal. He contends that (1) SOLSA violates article V, section 21 of the Colorado Constitution because the statute's title does not reflect its substance; (2) SOLSA is invalid because courts have found its language to be ambiguous; and (3) the Colorado Supreme Court unconstitutionally interpreted SOLSA's ambiguous language instead of seeking input from the legislature.

[¶5] In making these arguments, Montgomery directs us to his Crim. P. 35(a) motion for a further explanation of his arguments. However, such incorporation by reference is not permitted. C.A.R. 57; Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo. App. 2006) (Incorporation by reference " is improper because it attempts to shift . . . the task of locating and synthesizing the relevant facts and arguments." ).

[¶6] The sections of Montgomery's brief contending that SOLSA is ambiguous and that the supreme court unconstitutionally interpreted SOLSA's language are replete with conclusory statements supported by little or no case law. See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (declining to address " underdeveloped arguments" in a party's brief); see also People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (we do not consider issues presented in a perfunctory manner). ...


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