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People v. Baker

Court of Appeals of Colorado, First Division

July 27, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Douglas L. Baker, Defendant-Appellant.

         Jefferson County District Court No. 09CR3045 Honorable Dennis Hall, Judge

          Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas L. Baker, Pro Se


          TAUBMAN JUDGE.

         ¶ 1 Defendant, Douglas L. Baker, appeals the district court's order denying his postconviction motion challenging his designation as a sexually violent predator (SVP). We conclude that Baker can challenge his SVP designation in a Crim. P. 35(c) motion and that his motion is not time barred. We reverse the order and remand for further proceedings.

         I. Background

         ¶ 2 While Baker was living with his friend's family, he had sexual intercourse several times with his friend's fourteen-year-old daughter.

         ¶ 3 Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust.

         ¶ 4 According to the Sexually Violent Predator Assessment Screening Instrument (Screening Instrument), Baker met the criteria to be designated an SVP. In terms of the relationship criterion in the SVP statute, the Screening Instrument found that Baker "established a relationship" with the victim primarily for the purpose of sexual victimization.

         ¶ 5 At the sentencing hearing in July 2012, the district court sentenced Baker to ten years to life in the custody of the Department of Corrections (DOC). The court stated, "The defendant was screened by the evaluators to determine whether he was a sexually violent predator. And the evaluators determined that he was a sexually violent predator, so the Court will adopt the findings." Baker's counsel objected to the SVP finding and stated that she would follow up with a written motion articulating the objection and requesting a hearing on the issue.

         ¶ 6 The same day, the district court issued a mittimus that included the SVP designation. There is no indication in the record that Baker's counsel ever filed a written objection to the SVP designation. Baker also did not file a direct appeal challenging any aspect of the judgment, including the SVP designation.

         ¶ 7 Approximately one year later, Baker's counsel filed a Crim. P. 35(b) motion to reconsider Baker's sentence, arguing that a probationary sentence was appropriate. Baker's counsel also stated that it was not Baker's fault that she was filing the Crim. P. 35(b) motion late. The district court accepted the late-filed motion but denied it on the ground that Baker's DOC sentence remained appropriate.

         ¶ 8 In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional nineteen days of presentence confinement credit (PSCC). In its response, the prosecution conceded that Baker was entitled to an additional eighteen days of PSCC. The court issued an amended mittimus that included the additional eighteen days of PSCC. Baker later filed a motion seeking a ruling on his Crim. P. 35(a) motion, and the court entered an order stating that it had already ruled on the motion by amending the mittimus to include the additional PSCC.

         ¶ 9 Soon after, in early 2016, Baker filed the motion at issue, which he titled "Motion to Vacate Sexually Violent Predator Status Pursuant to C.R.S. § 18-3-414.5(1)(a)." In the motion, Baker argued that, under People v. Gallegos, 2013 CO 45, 307 P.3d 1096, the district court had erred in simply adopting the findings in the Screening Instrument without making its own findings whether the relationship criterion of the SVP statute had been met. Baker also argued that the judgment did not become final until 2015 when the district court corrected the illegal sentence, the correction of the illegal sentence renewed the time to file a Crim. P. 35(b) or Crim. P. 35(c) motion, and he was entitled to have the Gallegos decision applied in this case.

         ¶ 10 The prosecution argued in response that the district court could not reconsider Baker's SVP designation under Crim. P. 35(b) because an SVP designation is not a part of a criminal sentence.

         ¶ 11 In Baker's reply, he argued that pro se pleadings should be construed liberally and that he "likely should have styled his pro se motion as one for relief pursuant to Crim. P. 35(c)."

         ¶ 12 The district court issued an order denying the motion because, among other reasons, it had no authority to reconsider ...

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