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Abu-Nantambu-El v. State

Court of Appeals of Colorado, Seventh Division

March 8, 2018

Abdu-Latif Kazembe Abu-Nantambu-El, Plaintiff-Appellant,
v.
State of Colorado, Defendant-Appellee.

         City and County of Denver District Court No. 15CV520 Honorable Morris B. Hoffman, Judge

          Abdu-Latif Kazembe Abu-Nantambu-El, Pro Se

          Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

          OPINION

          FREYRE JUDGE.

          ¶ 1 Defendant-petitioner, Abdu-Latif Kazembe Abu-Nantambu-El, appeals the district court's order granting the State of Colorado's motion to dismiss his petition for compensation pursuant to the "Compensation for Certain Exonerated Persons" statute, sections 13-65-101 to -103, C.R.S. 2017 (Exoneration Statute).[1] As a matter of first impression, we consider whether a defendant-petitioner whose felony convictions were vacated, but who remains convicted of a misdemeanor in the same case, is eligible for compensation under the Exoneration Statute. We conclude he is not. We further conclude that, because he is not eligible to file a petition under the Exoneration Statute, we need not address whether the court deprived him of his right to a jury trial under the statute. Accordingly, we affirm the district court's order granting the State's motion to dismiss.

          I. Background

         ¶ 2 A jury convicted Abu-Nantambu-El (formerly known as Paul Delano McKnight, Jr.) of first degree sexual assault (a class 3 felony), second degree kidnapping (a class 2 felony), and third degree assault (a class 1 misdemeanor) in the same case, all arising out of an incident in which the victim claimed that Abu-Nantambu-El had raped her. His convictions were affirmed on appeal. People v. McKnight, 813 P.2d 331 (Colo. 1991).

         ¶ 3 Abu-Nantambu-El then filed a pro se Crim. P. 35(c) motion claiming ineffective assistance of counsel. He presented evidence that scientific testing was available during his trial and that his attorney never requested it. During the postconviction proceedings, a scientific test was conducted and it ruled out Abu-Nantambu-El as the contributor of the semen sample found in the victim's underwear.

         ¶ 4 The district court found that Abu-Nantambu-El's counsel provided ineffective assistance and that, but for the ineffective assistance, Abu-Nantambu-El would probably not have been convicted of the kidnapping and sexual assault charges. The court vacated these two felony convictions.

          ¶ 5 However, the court also found that counsel's ineffective assistance had not affected Abu-Nantambu-El's third degree assault conviction, and it denied his Crim. P. 35(c) motion as to that conviction. The court's order was affirmed on appeal. See People v. McKnight, slip op. at 12 (Colo.App. No. 97CA1638, Jan. 14, 1999) (not published pursuant to C.A.R. 35(f)). The prosecution elected not to retry the felony counts, but Abu-Nantambu-El remains convicted of the misdemeanor in that case.

         ¶ 6 Based on the order vacating his felony convictions, Abu-Nantambu-El filed a petition for compensation pursuant to the Exoneration Statute. The State filed a C.R.C.P. 12(b)(5) motion to dismiss, contending that Abu-Nantambu-El was not eligible to seek relief because (1) the order vacating the kidnapping and sexual assault convictions was based on ineffective assistance of trial counsel, a ground "unrelated to the petitioner's actual innocence"; and (2) Abu-Nantambu-El remained convicted of third degree assault, and therefore he did not satisfy the portion of the statute requiring that "all convictions in the case" be vacated or reversed. The district court rejected the State's first argument, but agreed with its second argument and granted the motion to dismiss. The State did not cross-appeal the court's "actual innocence" finding, so the only issue we consider is the eligibility requirements for filing a petition for compensation under the Exoneration Statute.

         II. Analysis

         ¶ 7 Abu-Nantambu-El contends that the district court erred when it concluded that his misdemeanor conviction precluded him from filing a petition under section 13-65-102(2)(a), C.R.S. 2017, because it was never vacated or reversed and remains on his record. He also contends that the court erred by rejecting his request for a jury trial under section 13-65-102(6)(b). We reject his first contention and therefore do not consider his second contention.

         A. Standard of Review and Applicable Law

         ¶ 8 We review de novo the district court's grant of a motion to dismiss. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). In reviewing a motion to dismiss, we accept all matters of material fact in the petition as true and view the allegations in the light most favorable to the plaintiff. See Bly v. Story, 241 P.3d 529, 533 (Colo. 2010). Under this standard, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Warne v. Hall, 2016 CO 50, ¶ 9 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). That is, a party must plead sufficient facts that, if taken as true, suggest plausible grounds to support a claim for relief. Warne, ¶ 24.

         ¶ 9 Statutory interpretation presents a question of law, which we review de novo. People v. Garcia, 113 P.3d 775, 780 (Colo. 2005). When interpreting a statute, a court must ascertain and give effect to the General Assembly's "purpose or intent in enacting the statute." Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To determine legislative intent, we first look to the language of the statute, giving words and phrases their commonly accepted and understood meanings. Garcia, 113 P.3d at 780; Martin, 27 P.3d at 851. If those words are clear and unambiguous, we apply the statute as written. See Martin, 27 ...


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