County District Court No. 86CR123 Honorable Katherine R.
Cynthia H. Coffman, Attorney General, John J. Fuerst III,
Senior Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Adam
Mueller, Deputy State Public Defender, Denver, Colorado, for
1 This is the latest chapter in the efforts
of defendant, Patrick K. Wood, to vacate his felony murder
conviction and thereby to stand convicted only of second
degree murder, aggravated robbery, and menacing.
2 In 1986, Wood was convicted of felony
murder, second degree murder, aggravated robbery, and
menacing. For the past ten years, Wood has sought to remove
his felony murder conviction, resulting in a long line of
decisions. These cases include Wood's successful
appeal to the United States Supreme Court on the issue of the
timeliness of his federal habeas corpus petition. Following
that decision, the Tenth Circuit Court of Appeals
conditionally granted Wood's habeas corpus petition,
directing that his felony murder conviction would be vacated
unless a state court acted within a reasonable time to vacate
either his felony murder conviction or his second degree
murder conviction. The Tenth Circuit remanded to the federal
district court to enter the conditional grant. Following the
federal district court's entry of a conditional grant of
the habeas corpus petition, the state district court granted
the People's request to vacate the second degree murder
conviction, rather than the felony murder conviction.
3 Wood appeals the state district
court's vacation of his second degree murder conviction.
He contends that the People did not have authority to request
that the state district court vacate his second degree murder
conviction, nor did the court have the jurisdiction or
authority to do so. Although we conclude that the People had
the authority to file their request, we conclude that the
district court did not have the authority to rule on it.
Accordingly, we vacate the state district court's order.
We remand with instructions for the state district court to
vacate Wood's felony murder conviction and correct the
mittimus accordingly, leaving in place the second degree
murder, aggravated robbery, and menacing convictions.
4 In 1986, while attempting to rob a pizza delivery
store, Wood shot and killed an assistant store manager. After
a bench trial, the court convicted Wood of first degree
felony murder, second degree murder, aggravated robbery, and
two counts of menacing. The court merged the second degree
murder and aggravated robbery convictions into the felony
murder conviction and imposed a life sentence.
5 A division of this court affirmed Wood's
conviction in an unpublished opinion. See People v.
Wood (Colo.App. No. 87CA0273, May 4, 1989) (not
published pursuant to C.A.R. 35(f)).
6 In 1995, following his direct appeal, Wood filed a
pro se Crim. P. 35(c) motion in the Adams County District
Court challenging his felony murder conviction. The district
court, however, never acted on the motion. He filed another
Crim. P. 35(c) motion in 2004, alleging that the prohibition
against double jeopardy was violated because he was convicted
of both felony murder and second degree murder of the same
victim. The trial court denied his motion under Crim. P.
35(c)(3)(VII), asserting that "each and every one of the
grounds asserted could have been presented in an appeal
pursued by [Wood] after his conviction."
7 Wood appealed the denial of his Crim. P. 35(c)
motion to a division of our court. The division affirmed,
concluding that his challenge to his second degree murder
conviction was time barred and his challenge to his felony
murder conviction was barred because it could have been
raised on direct appeal. People v. Wood, (Colo.App.
No. 04CA2252, Aug. 3, 2006) (not published pursuant to C.A.R.
35(f)). The supreme court denied certiorari. Wood v.
People, (Colo. No. 06SC703, Feb. 5, 2007) (unpublished
8 In 2008, Wood filed a second habeas corpus petition, only
challenging his felony murder conviction. He contended that
convicting him of both felony murder and second degree murder
of the same victim violated his right to be free from double
jeopardy. Wood v. Milyard, No. CIV.A. 08-CV-00247-W,
2009 WL 1973531, at *1 (D. Colo. July 6, 2009),
aff'd, 403 F.App'x 335 (10th Cir. 2010),
rev'd and remanded, 566 U.S. ___, 132 S.Ct. 1826
(2012). The Colorado Attorney General did not challenge the
timeliness of Wood's habeas corpus petition. After
dismissing some claims for failure to exhaust state remedies,
the court denied Wood's double jeopardy claim.
Id. at *6. Wood appealed.
9 The Tenth Circuit Court of Appeals directed the
parties to brief whether the statute of limitations barred
Wood's petition. The Attorney General argued that
Wood's petition was untimely. Wood, 403
F.App'x at 336-37. The Tenth Circuit agreed with the
Attorney General and denied habeas corpus relief. Wood filed
a petition for certiorari, which the United States Supreme
Court granted. The Court held that the Attorney General had
forfeited its statute of limitations defense and remanded the
case to the Tenth Circuit to consider the merits of
Wood's appeal. Wood, 566 U.S. at, 132 S.Ct. at
10 On remand, the Tenth Circuit held that
the Double Jeopardy Clause precluded the imposition of two
convictions for a single murder, notwithstanding that the
district court had merged the convictions for sentencing
purposes. Wood v. Milyard, 721 F.3d 1190, 1194-98
(10th Cir. 2013) ("Double jeopardy doctrine prohibits
cumulative punishments the legislature hasn't authorized.
And it's long since settled that a conviction, even a
conviction without a corresponding sentence, amounts to a
punishment for purposes of federal double jeopardy
analysis."). The Tenth Circuit ordered the federal
district court to grant Wood conditional habeas corpus relief
and vacate the felony murder conviction, unless the Adams
County District Court corrected the double jeopardy error by
vacating "either of the two murder convictions":
Because vacating either murder conviction will suffice to
remedy Mr. Wood's double jeopardy complaint, the most
equitable result in this case would be one that permits the
elimination of his lesser, second degree murder conviction -
or at least permits the Colorado courts that tried him to
choose which conviction will go. Toward that end, we think
the appropriate way forward is to remand this case to the
district court with instructions to grant the writ of habeas
corpus conditionally. It should vacate the first degree
murder conviction Mr. Wood challenges in federal court and
over which we have the power of review if and only if no
state court vacates either of the two murder
convictions within a reasonable time.
Id. at 1197. On remand, the federal district court
entered a conditional habeas corpus writ with similar
instructions for the Adams County District Court. See
Wood v. Milyard, No. 08-CV-00247-WYD, 2014 WL 321075, at
*2 (D. Colo. Jan. 29, 2014).
11 The People then filed the motion for resentencing
at issue here in the Adams County District Court. At the
resentencing hearing, the People told the court:
The Order [from the federal district court] requires that the
Court to [sic] do a re-sentencing of the Defendant. . . .
[T]he Opinion is requiring that the Prosecutor make a
selection between Felony Murder and Second Degree Murder at
the re-sentencing hearing.
12 The People did not request that Wood be
resentenced, but requested that the court vacate the second
degree murder conviction. The district court subsequently
vacated the second degree murder and aggravated robbery
convictions and issued an amended mittimus which, contrary to
its order, still contained the second degree murder and
aggravated robbery convictions, albeit with a note that they
were vacated. Thereafter, the federal district court vacated
the conditional habeas corpus petition. Wood, 2014
WL 321075, at *2.
13 On appeal, Wood contends that the Adams County
District Court erred in vacating his second degree murder
conviction rather than his felony murder conviction for three
reasons: (1) the People had no authority to file the
"Motion for Resentencing"; (2) the district court
lacked jurisdiction and authority to vacate the second degree
murder conviction; and (3) equity dictated that the district
court should have vacated the felony murder conviction under
the verdict maximization doctrine and the doctrine of laches.
In the alternative, Wood contends that if the People had
authority to request and the district court had jurisdiction
and authority to vacate the second degree murder conviction,
we must remand to the district court because the district
court entered the mittimus incorrectly.
14 Following oral arguments, we asked for
supplemental briefs on (1) how People v. Spykstra,
234 P.3d 662 (Colo. 2010), and People in Interest of
E.G., 2016 CO 19, 368 P.3d 946, apply to either the
People's ability to file the motion for resentencing or
the district court's authority to decide the People's
motion; (2) whether section 13-1-115, C.R.S. 2016, grants the
district court authority or ancillary jurisdiction; (3)
whether section 20-1-102, C.R.S. 2016, provides authority for
the People's motion for resentencing; and (4) whether the
district court had inherent authority to hear this case.
15 We conclude that the People had authority to file
the motion "to resentence." We also conclude that
the district court had subject matter jurisdiction over the
motion. However, we conclude that the district court did not
have authority to rule on the motion and, therefore, it erred
in vacating Wood's second degree murder conviction. Thus,
we do not address Wood's contention that equity dictated
that the court should have vacated the felony murder
conviction, or his contention that we should remand for the
district court to remove the second degree murder and
aggravated robbery convictions from his mittimus.
People's Authority to File the "Motion for
16 Wood contends that the People had no authority to
file their motion for resentencing. We conclude that the
People had authority to file their motion.
Standard of Review
17 Whether the People had the authority to
file a motion before the district court is a question of
standing. See generally People v. Brothers, 2013 CO
31, ¶ 8, 308 P.3d 1213, 1215 (holding that whether the
district attorney could move to quash third-party subpoenas
was a question of standing). Standing is a question of law
that we review de novo. Spykstra, 234 P.3d at 666.
18 In relation to the People's
authority, we asked the parties to discuss how two cases -
Spykstra and E.G. - apply to the
People's ability to file their motion and to the district
court's authority to decide the People's motion. We
conclude that Spykstra addresses the People's
authority to act and E.G. addresses a district
court's authority to act. We discuss E.G. in
detail in Part III.C.1.
19 In Spykstra, the district court
denied the People's motion to quash two subpoenas duces
tecum served by the defendant on the parents of the victim in
a child sexual assault case. 234 P.3d at 667. The supreme
court held the People had authority to move to quash the
subpoenas because they had general authority to act and no
statute prohibited them from filing such a motion.
Id. Further, the limited exceptions to a district
attorney's general authority to appear on behalf of the
State - such as disqualification and express legislative
limitation - did not apply. Id.
20 The court concluded that a district attorney has
the general authority to appear and participate in
proceedings to which the People are a party under section
20-1-102(1). Id. The court further held that only a
specific statute or rule can limit the People's general
21 First, we must address the substance of the
People's motion. While the People titled their motion a
"motion for resentencing, " we do not necessarily
consider it as such. See People v. Collier, 151 P.3d
668, 670 (Colo.App. 2006) (holding that the substance of a
motion controls its designation). At the hearing on the
motion for resentencing, the People did not request that the
court resentence Wood. Rather, they requested that the court
vacate Wood's second degree murder conviction. The People
also argue that their motion was simply a motion to alert the
state district court to the federal district court's
conditional grant of habeas corpus. Therefore, we consider
the People's motion to have been seeking two different
objectives: (1) to notify the state district court about the
federal district ...