Opinion
22CA0742
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Gregory Robert Rivas, Defendant-Appellee.
Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee. Gregory Robert Rivas, Pro Se.
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Weld County District Court No. 08CR937 Honorable Julie C. Hoskins, Judge
Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee.
Gregory Robert Rivas, Pro Se.
OPINION
FOX JUDGE.
¶ 1 Defendant, Gregory Robert Rivas, appeals the postconviction court's orders denying his Crim. P. 35(c) motion without a hearing and declining to conduct an extended proportionality review of his sentence. We affirm.
I. Background
¶ 2 In 2010, a jury convicted Rivas of four counts of aggravated robbery while possessing a real or simulated deadly weapon, two counts of attempted aggravated robbery while possessing a real or simulated deadly weapon, robbery against an at-risk adult, and four counts of theft. In a later bench trial, the trial court found that Rivas was a habitual offender and convicted him of numerous habitual offender sentence enhancers pursuant to section 18-1.3801(2), C.R.S. 2010, given that Rivas was convicted of more than three prior felonies arising out of "separate and distinct criminal episodes." The court sentenced Rivas on each count and ordered the sentences be served concurrently, with a controlling sentence of sixty-four years in the custody of the Department of Corrections.
¶ 3 Rivas has appealed his convictions and sentence several times. In 2014, on direct appeal, Rivas argued that the trial court erred by (1) questioning two jurors in private and violating his right to a public trial; (2) dismissing a juror who had a personal friendship with defense counsel; (3) refusing to appoint substitute counsel after Rivas expressed displeasure with counsel's representation; and (4) referring to the jurors by numbers instead of names, arguably implying he posed a danger to them. People v. Rivas, slip op. at 2, 4, 7, 15 (Colo.App. No. 10CA1641, Jan. 23, 2014) (not published pursuant to C.A.R. 35(f)). He also argued that (5) his conviction for robbery of an at-risk adult needed to be vacated because it merged with his aggravated robbery conviction, and (6) his habitual offender charges should have been tried to a jury rather than the court. Id. at 17-18. A division of this court agreed that Rivas's conviction for robbery of an at-risk adult should be vacated because it merged with his aggravated robbery charge but rejected his other contentions. Id. at 19.
¶ 4 In 2016, Rivas filed a Rule 35(c) motion for postconviction relief, raising six claims of ineffective assistance of counsel. The postconviction court initially denied the motion without a hearing on the grounds that the petition did not specify the basis for the relief requested, but the order was reversed on appeal. People v. Rivas, slip op. at 4-6 (Colo.App. No. 17CA0713, June 21, 2018) (not published pursuant to C.A.R. 35(e)). On remand, the postconviction court found that the allegations did not merit relief and denied the motion without a hearing. A division of this court affirmed. People v. Rivas, (Colo.App. No. 19CA0195, May 27, 2021) (not published pursuant to C.A.R. 35(e)).
¶ 5 In 2021, Rivas requested a proportionality review of his sentence. Finding there was "no inference of gross disproportionality" in Rivas's sentence, the district court declined to conduct an extended proportionality review.
¶ 6 In 2022, Rivas again requested postconviction relief pursuant to Rule 35(c), arguing that (1) he was denied a fair trial because the prosecution failed to amend the information to include the habitual offender charges against him, thus depriving the trial court of jurisdiction; and (2) his trial and appellate counsel were both ineffective. The postconviction court denied the motion without a hearing on the grounds that (1) the trial court had jurisdiction because the prosecution added the habitual offender charges via a proper motion to amend the complaint, granted well in advance of trial, that gave the defense ample notice to prepare; and (2) the claims of ineffective assistance of counsel were time barred.
¶ 7 On appeal here, Rivas challenges the postconviction court's denial of his Rule 35(c) motion without a hearing and its refusal to conduct an extended proportionality review of his sentence. As to his Rule 35(c) claims, Rivas argues that the postconviction court misapplied People v. Thomas, 832 P.2d 990 (Colo.App. 1991), and People v. Daniels, 973 P.2d 641 (Colo.App. 1998). Rivas also contends the court erred in denying the ineffective assistance of counsel claims as untimely.
II. Rule 35(c) Standard of Review
¶ 8 "We review the legality of a sentence and the summary denial of a Crim. P. 35 motion de novo." People v. McDonald, 2023 COA 23, ¶ 26 (cert granted Nov. 14, 2023). "We may affirm the court's ruling on any ground supported by the record, even if that ground was not articulated or considered by the court." People v. Manyik, 2016 COA 42, ¶ 69.
¶ 9 Rule 35(c) permits defendants to collaterally challenge their convictions on many grounds, including, for example, that the conviction violated the United States or Colorado Constitutions, the trial court rendered judgment without jurisdiction, or simply "[a]ny grounds otherwise properly the basis for collateral attack upon a criminal judgment." Crim. P. 35(c)(2)(I)-(VI). Because requests for proportionality review challenge the constitutionality of a sentence, they are cognizable under Rule 35(c) - and Rule 35(c)'s procedural requirements apply. See People v. Moore-El, 160 P.3d 393, 395 (Colo.App. 2007).
¶ 10 Rule 35(c) motions must meet several procedural requirements, or they will be denied. First, Rule 35(c) motions must be timely. Crim. P. 35(c)(3)(I). The time limit for Rule 35(c) motions begins once a defendant's conviction is "final" - that is, when the mandate issues after a defendant exhausts his direct appeal remedies. People v. Hampton, 857 P.2d 441, 444-45 (Colo.App. 1992), aff'd, 876 P.2d 1236 (Colo. 1994); see also People v. Stanley, 169 P.3d 258, 259 (Colo.App. 2007) (a conviction is final when the Colorado Supreme Court denies the defendant's petition for a writ of certiorari and the mandate issues). Generally, postconviction motions must be filed within three years. § 16-5402(1), C.R.S. 2023. But a postconviction challenge that contends the trial court lacked subject matter jurisdiction or jurisdiction over the defendant is not subject to these time limits. § 16-5-402(2)(a)-(b). And postconviction challenges alleging "that the sentencing court lacked subject matter jurisdiction" are also exempt from the bar on successive claims. Crim. P. 35(c)(3)(VII)(d).
¶ 11 Moreover, issues raised during an appeal of a Rule 35(c) denial must be preserved or may, in some instances, be deemed abandoned. People v. Osorio, 170 P.3d 796, 801 (Colo.App. 2007) ("[C]laims raised in defendant's postconviction motion, but not reasserted here, have been abandoned on appeal.").
¶ 12 Finally, "although we will broadly construe a pro se litigant's pleadings to effectuate the substance, rather than the form, of those pleadings, we will not consider issues not raised before the district court in a motion for postconviction relief." People v. Cali, 2020 CO 20, ¶ 34.
A. Rivas's Lack of Amended Information Claim
¶ 13 The first issue Rivas raises on appeal is whether the postconviction court erred by denying him an evidentiary hearing in response to his allegations that the trial court improperly permitted the prosecution to add the habitual offender charges without an amended information, resulting in the trial court imposing his sentence without jurisdiction. We affirm the postconviction court.
1. Additional Background
¶ 14 The record shows that the prosecution's complaint and information was filed on June 3, 2008, and charged Rivas with aggravated robbery with a real or simulated weapon and theft. On August 11, 2008, the prosecution moved to add additional counts ("counts three through seven") and to "amend the filed Complaint and Information" to add the habitual offender charges. The trial court granted the motion on August 12, 2008. The prosecution never submitted an amended information reflecting the full list of charges against Rivas.
The initial case concerned only one of Rivas's robberies, but on December 1, 2008, the prosecution filed a motion to consolidate six of Rivas's other cases into one. On January 13, 2009, the trial court granted the motion, resulting in Rivas facing all the charges against him in a single trial.
¶ 15 Rivas primarily highlights the following exchange between the trial court and the prosecution during the bench trial on Rivas's habitual offender counts to show that the trial court wrongfully sentenced him without an amended information and therefore without jurisdiction.
THE COURT: . . . I would just inquire at this point, all of the evidence having been presented, if the People have - I looked
through the file and I cannot find that the information was ever amended in this matter to add Counts 3 through 7, do you have that? . . .
[PROSECUTION]: It [was filed on] 8-11-08, [and] granted People to add count -
THE COURT: I see that the motion was granted, I don't see that the information was ever amended, that you ever filed an actual amended information. I certainly see that the motion was granted and that the motion was filed and the motion sets forth Counts 3, 4, 5, 6, and 7, and that [the prior judge] granted that on 8-12-08, but I just don't see that the information itself was amended.
[PROSECUTION]: We didn't amend, we added Counts 3 through 7. If you look at the page ....
THE COURT: Okay. I have got that file open and looking under the information and I don't see that the information filed on June 3, 2008, was ever amended. I do note that at that time, the cases hadn't all been joined, but I don't see that amendment that amended information was ever filed. Do you have that?
[PROSECUTION]: No, Your Honor, because it wasn't an amendment, it was an additional count, we filed additional counts.
THE COURT: Whenever you file additional counts, you file amended information.
[PROSECUTION]: We do on normal counts, I have never done that before in a habitual case. I guess I'm trying to figure out - I understand
what the Court is asking for, but I don't know that that is the way it was filed, it is filed as added counts and the Court granted our request to add the counts.
THE COURT: We did and [the prior judge] granted it, but I think there is an issue and I'm not saying what the issue is that I don't have an actual information with those added counts, but I guess my first question is if it is there I - that's fine. I'll take any argument on that also.
[PROSECUTION]: Your Honor, I do think that this motion - and I understand the Court saying it is not couched in the term of an amended information, but I think it serves as information and complaint that the People added Counts 3 through 7.
In his opening brief, Rivas contends that within this exchange defense counsel stated that he did not receive a copy of this motion, but the record Rivas points to does not include such a statement.
The trial court then found, based on Thomas and Daniels, that the lack of an amended information did not deprive it of jurisdiction over the case. The postconviction court agreed, and we do too.
2. Analysis
¶ 16 Because postconviction claims alleging that a trial court lacked jurisdiction are not subject to the timeliness requirements or the bar on successive claims applicable to most postconviction motions, this issue was properly before the postconviction court. See § 16-5-402(2)(a)-(b); Crim. P. 35(c)(3)(VII)(d). But on the merits, Rivas's claim fails. Contrary to Rivas's contentions, the two cases highlighted by the trial court and relied upon by the postconviction court, Thomas and Daniels, support the finding that the trial court had jurisdiction - even without an amended information.
¶ 17 Crim. P. 7(b)(2) details that an information is deemed "technically sufficient and correct" if (1) it is presented by those authorized by law to prosecute the charged offense (the prosecution); (2) it identifies the defendant by name, genetic information, or description; (3) the offense was committed in the trial court's jurisdiction; and (4) "the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction."
¶ 18 "The purposes served by a criminal information are to advise the defendant of the nature of the charges against him, to enable him to prepare a defense, and to protect him from further prosecution for the same offense." Thomas, 832 P.2d at 992. When an information "fails to charge an essential element of an offense, or . . . does not contain allegations of a chargeable offense," the trial court does not have jurisdiction over a defendant. Id. But in Thomas, a division of this court concluded that the failure to amend an information does not deprive the trial court of jurisdiction in every circumstance. See id.
¶ 19 In Thomas, the prosecution first charged the defendant with one unclassified felony and then six months later moved to amend the information to add a class 3 felony. Id. at 991. "The motion was granted on the first day of trial, but no amended information was ever filed, nor did defendant ever enter any plea to the information as amended." Id. The division held that the lack of an amended information did not deprive the trial court of jurisdiction over the defendant. Id. at 992. The prosecution's motion "was not defective in form or substance; it contained all of the essential elements of the crime; and it was sufficiently specific to give the defendant notice of the charge and to allow the court to pronounce judgment upon conviction." Id. Thus, because the motion included everything that an amended information would have included - and gave the defendant the required notice of the charges against him - the trial court had jurisdiction. Id.
¶ 20 In Daniels, another division of this court agreed with the holding in Thomas when considering the addition of habitual offender charges without an amended information. Daniels, 973 P.2d 645-46. There, it was disputed whether an amended information had been filed or was lost, and the trial court was unaware of a motion to amend the information. Id. at 646. Yet because the "[d]efendant's counsel stated that she had received transcripts of two of the pleas and was ready . . . to argue the motion to amend the information adding the habitual criminal counts" and because she "stated that she had received the prosecution's motion to amend well in advance of the hearing and . . . had no objection," the trial court never lost jurisdiction and could grant a motion to amend the information. Id. The division concluded, "[r]egardless of whether the motion to amend the information was filed or was lost, defendant was aware of it. Thus, he was put on adequate notice and could properly defend himself during the habitual criminal phase of the trial." Id.
¶ 21 Put succinctly,
[w]hen a defendant receives a written motion to amend an information and the motion is not defective, contains all the essential elements of
the crime, and is sufficiently specific to give the defendant notice of the charge and allow the court to pronounce judgment, then a failure to file the amended information does not result in a lack of jurisdiction.Id. This is precisely what occurred here.
¶ 22 The prosecution's motion to amend the information to add the habitual offender charges met the requirements of Rule 7(b)(2)(I)-(IV):
• It was filed by a Colorado deputy district attorney.
• It referenced Rivas by his full name in each count.
• It identified five separate Colorado criminal cases in which Rivas pleaded guilty to a total of six various felonies, including their case numbers, the approximate dates Rivas was sentenced, and the names of the sentencing judges - establishing the elements of a habitual offender charge pursuant to section 18-1.3801(2).
• It cited the specific charging statute, section 18-1.3-801 (albeit without identifying a subsection), behind each count and detailed the charged offenses - presenting the required "degree of certainty" sufficient for a court to
"pronounce judgment upon a conviction." Crim. P. 7(b)(2)(I)-(IV).
¶ 23 Further, as the postconviction court noted, the motion certified that a copy was sent to the defense as it was "placed in the Public Defenders['] tray located in the District Attorney's office." And our review of the record discloses that Rivas's counsel was aware of the habitual offender counts and never objected to the amendment of the information by motion, in hearings following the motion's submission, or at trial. Indeed, in a hearing on October 20, 2008, the subject of the habitual offender counts was briefly raised, and Rivas's defense counsel expressed no confusion or surprise at the mention of the additional counts.
¶ 24 Most importantly, at the bench trial for the habitual offender counts, Rivas's defense counsel never expressed surprise or confusion about the nature of the proceeding, did not object on the grounds that the defense did not have notice of the charges, and responded to the prosecution's evidence of Rivas's prior convictions. Furthermore, the time between when the additional charges were added (August 11, 2008) and the bench trial (June 22, 2010) was just under two years - giving Rivas and counsel sufficient time to acquaint themselves with the charges.
¶ 25 Collectively, the motion to add the habitual offender charges met the requirements of Rule 7(b), gave Rivas notice, and was sufficient to provide the trial court subject matter jurisdiction. See Daniels, 973 P.2d at 646. Therefore, the trial court did not lose jurisdiction over Rivas due to the prosecution's failure to file an amended information. See id.
B. Rivas's Ineffective Assistance of Counsel Claim
¶ 26 Rivas also contends that the postconviction court erred by finding that his claims for ineffective assistance of trial and appellate counsel were time barred. We affirm the postconviction court.
¶ 27 The time limit for Rule 35(c) motions begins once a defendant exhausts his direct appeal remedies and the mandate issues. Hampton, 857 P.2d at 444-45; see also § 16-5-402(1). After Rivas's direct appeal, his mandate issued on August 26, 2015. Thus, he had until August 26, 2018, to collaterally attack his convictions via Crim. P. 35(c). See Hampton, 857 P.2d at 444-45; see also § 16-5402(1). Rivas filed the motion alleging ineffective assistance of his trial and appellate counsel on appeal on March 15, 2022, and he never alleged that his late filing was the result of justifiable excuse or excusable neglect. See § 16-5-402(2)(d). Therefore, the motion was untimely and the postconviction court did not err by refusing to review it. See Hampton, 857 P.2d at 444-45; see also § 16-5-402(1). Furthermore, because Rivas already raised a number of ineffective assistance of counsel claims in his 2016 postconviction motion, his motion was also successive. See People v. Tennyson, 2023 COA 2, ¶ 13 (cert. granted Sept. 11, 2023); Manyik, ¶ 69.
¶ 28 Rivas argues his Rule 35(c) motion was timely because the time limit should have been tolled once a division of this court remanded the denial of his 2016 postconviction motion to the postconviction court. The mandate from that appeal issued on February 3, 2022. But "the timely commencement of a collateral attack fails to toll the limitations period with respect to additional postconviction claims not contained in the timely filed motion." People v. Ambos, 51 P.3d 1070, 1071-72 (Colo.App. 2002). Further, the deadline for Rule 35(c) motions "is not tolled during the litigation of a postconviction relief motion." People v. Clouse, 74 P.3d 336, 339 (Colo.App. 2002).
¶ 29 Because Rivas's postconviction allegations of ineffective assistance of trial and appellate counsel are untimely and successive, it was not error for the trial court to reject the claims without a hearing.
C. Rivas's Proportionality Review Claim
¶ 30 Rivas last contends that the trial court erred by declining to conduct an extended proportionality review in response to his October 21, 2021, motion. In his motion to the postconviction court Rivas argued that his habitual offender charges entitled him to an extended proportionality review of his sentence and that the overall magnitude of his crimes, recent state legislation, and court precedents supported a finding that his sentence was grossly disproportionate.
¶ 31 The court found that Rivas's convictions for aggravated robbery with a real or simulated weapon were per se grave or serious crimes, and his convictions for theft and attempted aggravated robbery were grave and serious. For the convictions that were not per se grave and serious, the court considered the factual circumstances of Rivas's triggering offenses, and any statutory changes to the sentencing regimes, and compared them to the harshness of each of the sets of triggering and predicate habitual offender sentences. The court concluded that "none of the defendant's offenses are so lacking in gravity or seriousness so as to imply a grossly disproportionate sentence."
¶ 32 Though Rivas's request for a proportionality review was not filed under Rule 35(c), we use the same procedural framework to evaluate Rivas's motion for proportionality review. See Moore-El, 160 P.3d at 395. As a result, we conclude that Rivas's request for a proportionality review is untimely as it was filed on October 21, 2021, past the 2018 deadline, and successive because it could have been included in his earlier postconviction motions. See Hampton, 857 P.2d at 444-45; Tennyson, ¶ 13; Manyik, ¶ 69.
¶ 33 The People also argue that Rivas's proportionality claim has been abandoned because he fails to support or develop it on appeal. And indeed, Rivas spends only a few lines in his opening brief noting this argument, without development or support. Per C.A.R. 28(a)(7)(B), it is the appellant's responsibility to provide us with "a clear and concise discussion of the grounds upon which the party relies" along with relevant citations to authorities and the record - we do not "consider bald legal propositions presented without argument or development." People v. Sanders, 2023 CO 62, ¶ 16. Furthermore, while Rivas expands on this argument in his reply brief, "an appellate court will not consider arguments raised for the first time in a reply brief." People v. Owens, 2024 CO 10, ¶ 90.
¶ 34 Thus, while "[p]leadings by pro se litigants must be broadly construed to ensure that they are not denied review of important issues because of their inability to articulate their argument like a lawyer," we may not effectively rewrite Rivas's pleadings, nor may we advocate on his behalf. Cali, ¶ 34 (quoting Jones v. Williams, 2019 CO 61, ¶ 5). Where, as here, an appellant fails to properly present an argument for our review by failing to brief an issue, provide relevant legal authority, or develop a legal argument, we must affirm the district court. Sanders, ¶¶ 16-19.
For these same reasons, we decline to address the argument raised in the People's answer brief concerning whether Rivas was entitled to postconviction counsel. Rivas's opening brief does not develop this argument, save for a brief mention that he petitioned the district court for the appointment of counsel in preparation for an evidentiary hearing on his Crim. P. 35(c) claims. Thus, we may not consider it. See People v. Sanders, 2023 CO 62, ¶ 16.
III. Disposition
¶ 35 We affirm the orders of the postconviction court.
JUDGE GROVE and JUDGE SULLIVAN concur.