People v. Taylor

Opinion by JUDGE WEBB

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY Criminal Procedure — Postconviction Remedies — Successive Postconviction Proceedings

A division of the court of appeals holds 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. ¶ 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.

¶ 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 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.

¶ 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, ¶ 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 court's ruling for any reason supported by the record. People v. Heisler, 2017 COA 58, ¶ 44.

¶ 9 Starting with the claims in defendant's second Crim. P. 35(c) motion that he had raised in his first Crim. P. 35(c) motion, defendant argues that the claims are not barred as successive under Crim. P. 35(c)(3)(VI) because they were not "raised and resolved" in the proceedings on the first Crim. P. 35(c) motion. See Crim. P. 35(c)(3)(VI) ("The court shall deny any claim that was court denied the first Crim. P. 35(c) motion in a written order and a division of this court affirmed. See Taylor II. ¶ 12 For these reasons, we discern no error in the postconviction court's ruling that the renewed claims in the second Crim. P. 35(c) motion are barred as successive under Crim. P. 35(c)(3)(VI). But whether defendant's new claims were equally successive presents a closer question.

¶ 13 Addressing the new postconviction claims in the second Crim. P. 35(c) motion, the Attorney General argues that these claims are barred as successive under Crim. P. 35(c)(3)(VII). Defendant responds that the claims are not because Crim. P. 35(c)(3)(VII) — which was added to Crim. P. 35 in 2004 — did not supersede 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. See, e.g., People v. Hubbard, 184 Colo. 243, 248, 519 P.2d 945, 948 (1974); Naranjo, 738 P.2d at 409. We conclude that these cases have been superseded by Crim. P. 35(c)(3)(VII). transcripts is not an enumerated exception under Crim. P. 35(c)(3)(VII), nor is access to the trial transcript a constitutional right. See Jurgevich v. Dist. Court, 907 P.2d 565, 567 (Colo. 1995) (stating that "[a] defendant does not have a constitutional right to a free transcript to search for errors to raise in a collateral attack"). And the federal circuits have held that lack of access to transcript is not a basis for equitable tolling. See Lloyd v. Van Natta, 296 F.3d 630, 634 (7th Cir. 2002) ("[T]he other circuits to consider this issue have held that the unavailability of a transcript does not allow equitable tolling to excuse an otherwise untimely [habeas] petition. We find these cases persuasive, and we join our sister circuits in holding that equitable tolling does not excuse [petitioner's] late filing simply because he was unable to obtain a complete trial transcript before he filed his [habeas] petition.") (citations omitted). ¶ 24 In the end, we decline defendant's invitation to read into the rule exceptions that it does not contain. As written, Crim. P. 35(c)(3)(VII) bars defendant's new postconviction claims raised for the first time in his second Crim. P. 35(c) motion.

¶ 25 The order is affirmed. JUDGE HARRIS and JUDGE WELLING concur.