Paso County District Court No. 11CR3659. Honorable Barney
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren,
Assistant Attorney General, Denver, Colorado, for
Osmundo Rivera Cali, Pro se.
J., concurs. Nieto[*] , J., dissents.
[¶1] Defendant, Osmundo Rivera Cali, appeals
the postconviction court's order denying his Crim. P.
35(c) motion. We apply People v. Boyd, 387 P.3d 755,
2017 CO 2, to conclude that a defendant whose conviction has
been affirmed on direct appeal may nevertheless collaterally
attack that conviction in a postconviction motion on the
ground that the State lost the authority to prosecute his
conviction during the pendency of his direct appeal. We
therefore reverse the postconviction court's order,
vacate Cali's conviction, and remand the case with
[¶2] In 2012, Cali was convicted of theft
and theft by receiving, both class 4 felonies, as well as two
habitual criminal counts. The trial court sentenced him to
eighteen years in the custody of the Department of
[¶3]In August 2012, Cali directly appealed
his convictions, arguing, among other things, that he could
not be convicted of theft and theft by receiving because both
offenses involved the same stolen property. A division of
this court agreed and, in October 2014, vacated his theft
conviction while affirming his theft by receiving conviction.
See People v. Cali, (Colo.App. No.
12CA1730, Oct. 2, 2014) (not published pursuant to C.A.R.
[¶4] Meanwhile, in June 2013, after Cali had
filed his notice of appeal in the direct appeal and while the
appeal was still pending, the legislature reclassified theft
by receiving, as committed by Cali, to a class 6 felony. Ch.
373, sec. 3, § 18-4-410, 2013 Colo. Sess. Laws 2197-98
(repealing theft by receiving statute); Ch. 373, sec. 1, §
18-4-401, 2013 Colo. Sess. Laws 2195-96 (incorporating
substantive offense of theft by receiving into offense of
theft). Cali did not request the benefit of the amended theft
by receiving statute in his direct appeal. Instead, after his
direct appeal became final, Cali timely filed a pro se
Crim. P. 35(c) motion asserting, as relevant here,
that he was entitled to the benefit of the changed statute.
[¶5] The postconviction court denied
Cali's motion without a hearing. In doing so, it ruled
that Cali was not entitled to the benefit of the changed
statute because " the law changed after his sentence was
imposed, his sentence has been affirmed on appeal and because
the 'new' Theft [sic] statute was intended to have
prospective, not retroactive, application."
[¶6] Cali now appeals the postconviction
court's ruling. He argues that the trial court erred
by analyzing his postconviction claim as a request for
retroactive application of the statutory amendment. Instead,
he argues that because the amendment took effect while his
direct appeal was still pending and before his conviction
became final, he is entitled to the benefit of the amendment.
Cali Was Entitled to the Benefit of the Changed Statute
[¶7] As the postconviction court
acknowledged, whether Cali is entitled to the benefit of the
changed statute is a purely legal question. We therefore
review the postconviction court's ruling de novo.
See People v. Valdez, 178 P.3d 1269, 1278
[¶8] The prosecution argues that " the
long-established rule in Colorado is that the law in effect
at the time the offense is committed is the law that controls
both the prosecution and punishment of the defendant."
It cites People v. Orr, 39 Colo.App. 289, 566 P.2d
1361 (1977), for this rule. But this argument misconstrues
the relevant rule and the holding in Orr . Contrary
to the prosecution's argument, the rule in Colorado, as
stated by the division in Orr, is that "
[g]enerally the law in effect at the time the offense is
committed controls; however, if a lesser penalty is enacted
by the legislature before the final disposition of a
defendant's case, the defendant is entitled to the
benefits of the legislative change." Id. at
293, 566 P.2d at 1364 (citation omitted).
[¶9] This rule originated in People v.
Thomas, 185 Colo. 395, 398, 525 P.2d 1136, 1138 (1974),
wherein the supreme court held that a criminal defendant was
entitled to the benefit of a statutory change that took
effect after he committed the offense but before his
conviction became final. In doing so, the court said, "
[t]he view that amendatory legislation mitigating the
penalties for crimes should be applied to any case which has
not received final judgment finds substantial support in the
common law." Id.
[¶10] For decades, " both the supreme
court and the court of appeals have consistently applied the
Thomas rule to give convicted criminal defendants
the 'benefit of amendatory legislation which became
effective at any time before the conviction became final on
appeal.'" People v. Boyd,395 P.3d 1128,
2015 COA 109, ¶ 21 (quoting People v. Griswold, 190
Colo. 136, 137, 543 P.2d 1251, 1252 (1975)),
aff'd, 387 P.3d 755, 2017 CO 2. While this rule
itself is clear, what is not clear is whether its application
implicates retroactivity principles. In other words, it is
not clear whether giving a defendant the benefit of a changed
statute before his or her conviction becomes final on appeal