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People v. Cali

Court of Appeals of Colorado, Seventh Division

May 3, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Osmundo Rivera Cali, Defendant-Appellant.

          El Paso County District Court No. 11CR3659 Honorable Barney Iuppa, Judge.

          Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Osmundo Rivera Cali, Pro Se

          OPINION

          ASHBY, JUDGE.

         ¶ 1 Defendant, Osmundo Rivera Cali, appeals the postconviction court's order denying his Crim. P. 35(c) motion. We apply People v. Boyd, 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 directions.

         I. Background

         ¶ 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 Corrections.

         ¶ 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. 35(f)).

         ¶ 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.[1] 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. We agree. II. 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 (Colo.App. 2007).

         ¶ 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, 2015 COA 109, ¶ 21 (quoting People v. Griswold, 190 Colo. 136, 137, 543 P.2d 1251, 1252 (1975)), aff'd, 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 is retroactive application of the new statute or merely application of the new statute to a still-pending case The supreme court's recent opinion in Boyd suggests the latter

         ¶ 11 Boyd was convicted of possession of a small amount of marijuana and sentenced Id. at ¶ 2 But before that conviction and sentence became final on appeal, an amendment to the state constitution (Amendment 64) took effect that made it legal to possess the amount of marijuana that Boyd had been convicted of possessing Id. at ¶ 4 A division of this court held that under Thomas and its progeny, Amendment 64 applied retroactively to decriminalize Boyd's conduct because the amendment took effect while Boyd's direct appeal was still pending Id. at ¶¶ 14-25 Both the majority and the partial dissent in that division specifically and thoroughly addressed Thomas and its progeny, along with several statutes implicating retroactivity principles Id. at ¶¶ 14-35; Id. at ¶¶ 55-86 (Bernard, J, concur ring in part and dissenting in part).

         ¶ 12 After granting certiorari, the supreme court took a different approach. The supreme court majority affirmed that Boyd was entitled to the benefit of Amendment 64. Boyd, 2017 CO 2, ¶ 10. But, as the dissent pointed out, the majority did so without addressing retroactivity principles and without even using the term "retroactive" in its substantive analysis. Id. at ¶ 11 (Eid, J., dissenting) ("The majority carefully avoids using the term 'retroactive' (except when it cannot, as in the certiorari question upon which this court granted).") (citation omitted). Instead, the majority held that as of Amendment 64's effective date, the State lost the authority to prosecute Boyd's conviction. Id. at ¶ 9 (majority opinion). Because Amendment 64 deprived the State of its authority to prosecute Boyd before her conviction became final on appeal, the majority reasoned that Boyd was entitled to reversal of that conviction. Id. at ¶ 10.

         ¶ 13 We understand the supreme court's holding in Boyd to be that a convicted defendant is entitled to the benefit of changes to the State's prosecutorial authority if those changes take effect before the conviction and sentence are final on appeal - irrespective of retroactivity principles. Although Boyd addressed the loss of the State's prosecutorial authority by constitutional amendment, nothing in the supreme court's analysis suggests that the loss of the State's prosecutorial authority by statutory amendment would have any different effect. And in our view, there is no legally significant difference; the State either has the authority ...


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