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
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.
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,
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.
We agree. II. Cali Was Entitled to the Benefit of the Changed
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."
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
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 ...