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People v. Joslin

Court of Appeals of Colorado, Sixth Division

February 22, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Matthew Joslin, Defendant-Appellant.

         Mesa County District Court Nos. 09CR1694 & 13CR1449 Honorable Richard T. Gurley, Judge

          Cynthia H. Coffman, Attorney General, Marissa R. Miller, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Matthew Joslin, Pro Se

          FURMAN JUDGE

         ¶ 1 In two separate cases, Matthew Joslin, defendant, accepted the benefit of a plea bargain. In 2009, he was charged with six sex offenses but pleaded guilty to only two. He was sentenced to probation and ordered to pay over $8000 in fees. He was not ordered to pay restitution. In 2013, Joslin faced thirty new charges, twenty-one of which were class 3 felonies, but he pleaded guilty to only four. He was sentenced to ninety-two years to life in the custody of the Department of Corrections and ordered to pay over $14, 000 in fees and $1520 in restitution.

         ¶ 2 When Joslin did not pay the restitution within a year, he was charged interest on that unpaid restitution pursuant to section 18-1.3-603(4)(b), C.R.S. 2014. He then filed two nearly identical Crim. P. 35(c) motions, alleging that in each case he was never told that he would be charged interest on unpaid restitution. He claimed that he would never have pleaded guilty if he had known he would have to pay interest. The district court denied the motions without a hearing.

         ¶ 3 On appeal, Joslin essentially contends that he is entitled to postconviction relief because either the district court or his counsel (or both) was required to tell him that he would be required to pay interest on unpaid restitution - and neither did. Central to addressing Joslin's contentions is the premise that defendants must be advised of the direct, but not collateral, consequences of a plea. People v. Campbell, 174 P.3d 860, 864 (Colo.App. 2007); see also Crim. P. 11(b)(4); People v. Birdsong, 958 P.2d 1124, 1128 (Colo. 1998). We conclude that interest on unpaid restitution is a collateral consequence of a plea and that neither the district court nor Joslin's counsel had a duty to advise Joslin of this possibility. Thus, we affirm the district court's order denying Joslin's postconviction motion without a hearing.

         I. Denial of Crim. P. 35(c) Motions

         ¶ 4 A district court may deny a Crim. P. 35(c) motion without a hearing if the allegations are bare and conclusory; the allegations, even if true, do not warrant relief; or the record refutes the claims. People v. Duran, 2015 COA 141, ¶ 9; see also Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). In other words, to warrant a hearing on a Crim. P. 35(c) motion, a defendant must allege facts that, if true, entitle the defendant to postconviction relief. Crim. P. 35(c)(3)(IV); see also White v. Denver Dist. Court, 766 P.2d 632, 635 (Colo. 1988).

          ¶ 5 We review the district court's summary denial of a Crim. P. 35(c) motion de novo. People v. Lopez, 2015 COA 45, ¶ 68.

         ¶ 6 In his Crim. P. 35(c) motions, Joslin alleged that neither the district court nor his counsel told him that he would be required to pay interest on unpaid restitution. Taking these facts as true, if either the district court or Joslin's counsel had a duty to advise him of the interest provision, Joslin would be entitled to a hearing on his motions. We first address the district court's duty, then defense counsel's duty.

         II. The District Court's Duty

         ¶ 7 A district court has a duty to ensure that a defendant is advised of the direct, but not collateral, consequences of the plea. Campbell, 174 P.3d at 864; see also Crim. P. 11(b). Direct consequences are those that have a definite, immediate, and largely automatic effect on the range of possible punishment. Campbell, 174 P.3d at 864. In contrast, collateral consequences are contingent on a future event or action taken by some individual other than the sentencing court. Id.

         ¶ 8 Joslin contends that being charged interest on unpaid restitution is a direct consequence of his plea. We disagree. It is true that interest on unpaid restitution is largely automatic. Section 18-1.3-603(4)(b), C.R.S. 2014, states that "[a]ny order for restitution . . . shall also be deemed to order that: (I) The defendant owes interest ...


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