Arapahoe County District Court No. 05CR1909 Honorable Charles
M. Pratt, Judge
Cynthia H. Coffman, Attorney General, John T. Lee, Senior
Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee
Lisa
A. Polansky Attorney at Law, LLC, Lisa A. Polansky, Boulder,
Colorado, for Defendant-Appellant
OPINION
WEBB,
JUDGE
¶
1 This case is about two bites at the proverbial apple.
Defendant, Christopher Joseph Taylor, appeals the
postconviction court's order denying his second Crim. P.
35(c) motion. We affirm because the motion was successive.
Answering an undecided question, we hold that Crim. P.
35(c)(3)(VII) supersedes the rule stated in People v.
Naranjo, 738 P.2d 407, 409 (Colo.App. 1987), that a
defendant can file a second Crim. P. 35(c) motion raising new
postconviction claims if the defendant filed an initial Crim.
P. 35(c) motion pro se.
I.
Background
¶
2 A jury found defendant guilty of first degree murder,
attempted first degree murder, and assault. On direct appeal,
a division of this court affirmed the judgment of conviction.
See People v. Taylor, (Colo.App. No. 06CA2614, Sept.
9, 2010) (not published pursuant to C.A.R. 35(f)) (Taylor
I).
¶
3 Defendant moved for transcripts at state expense to prepare
a Crim. P. 35(c) motion. The postconviction court denied the
motion.
¶
4 A few months later, defendant filed a pro se Crim. P. 35(c)
motion raising seven claims, most of them asserting that his
trial counsel had provided ineffective assistance. He also
requested the appointment of postconviction counsel.
¶
5 The postconviction court summarily denied defendant's
Crim. P. 35(c) motion and his request for the appointment of
postconviction counsel. A division of this court affirmed.
See People v. Taylor, (Colo.App. No. 12CA1984, Jan.
16, 2014) (not published pursuant to C.A.R. 35(f))
(Taylor II). The opinion does not indicate that
defendant appealed the denial of his motion for transcripts
at state expense.
¶
6 Defendant then filed a second pro se Crim. P. 35(c) motion,
which he amended. He renewed some of the claims from his
first Crim. P. 35(c) motion and raised new claims. This time,
the postconviction court appointed counsel, who filed a
supplemental motion. The prosecution responded, arguing in
part that the new claims in the second motion were barred as
successive.
¶
7 The postconviction court issued a written order denying the
second Crim. P. 35(c) motion without a hearing. The court
first held that the claims from defendant's first Crim.
P. 35(c) motion were barred as successive under Crim. P.
35(c)(3)(VI). But the court did not bar defendant's new
claims as successive. Instead, the court explained that it
was "not convinced" that Crim. P. 35(c)(3)(VII)
supersedes prior case law holding that a defendant can raise
new postconviction claims in a second Crim. P. 35(c) motion
if the first Crim. P. 35(c) motion was filed pro se. The
court denied the new claims on the merits.
II.
Standard of Review
¶
8 We review de novo. See People v. Lopez, 2015 COA
45, ¶ 68 (an appellate court reviews de novo a
postconviction court's denial of a Crim. P. 35(c) motion
without a hearing); People v. Bonan, 2014 COA 156,
ΒΆ 26 (an appellate court reviews de novo whether a Crim.
P. 35(c) motion is properly denied as successive). And we may
affirm a district ...