People v. Taylor

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          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, 2010 WL 3504825 (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, 2014 WL 171833 (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.

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         [¶ 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 ...