The Colorado Court of Appeals issued its opinion in People v. Stovall on January 19, 2012.
Crim.P. 35(a)—Plea—Ineffective Assistance of Counsel—Timeliness—Sentence.
Defendant appealed the trial court’s orders denying his Crim.P. 35(a) and (c) motions. The orders were affirmed.
Defendant shot and killed a neighbor’s dog on November 28, 2001. After a third party reported that gunshots had been fired, a deputy sheriff placed defendant under arrest for unlawful discharge of a firearm and cruelty to animals, both misdemeanors. Defendant’s twin brother then arrived and shot the arresting deputy in the head, killing him. Defendant and his brother stole a pickup truck from a neighbor at gunpoint, and defendant shot another officer in the lower back, permanently paralyzing him. During the next twenty-four hours, defendant and his brother engaged in a series of high-speed chases with law enforcement officers from various jurisdictions, firing weapons at eighteen officers without striking them. The brothers eventually surrendered.
Two attorneys from the Office of the Colorado State Public Defender (plea counsel), one a death penalty specialist, were appointed to represent defendant. Counsel negotiated a plea agreement wherein defendant would plead guilty to all of the pending charges and be sentenced to consecutive maximum sentences in the presumptive range for each charge; in exchange, the prosecutor would not seek the death penalty for either brother. Pursuant to that agreement, defendant pled guilty to one count of felony first-degree murder with a predicate offense of escape for the death of the deputy sheriff, thirteen counts of attempted after deliberation first-degree murder, five counts of attempted extreme indifference first-degree murder, and one count of aggravated robbery.
On appeal, defendant contended that his plea was not knowing and voluntary because of ineffective assistance of his plea counsel. Specifically, defendant argued that his plea counsel were ineffective because they failed to advise him that he could not be convicted of first-degree felony murder with a predicate offense of escape pursuant to CRS § 18-3-102(1)(b) when the escape was a petty offense. Because defendant’s plea counsel properly advised him and his claim was based on a misunderstanding of the law, he failed to state any facts that would constitute ineffective assistance of plea counsel.
Defendant also contended that plea counsel were ineffective because they did not examine the autopsy reports, police reports, or ballistic reports, and did not interview any witnesses before advising him to plead guilty. However, defendant did not specifically identify any exculpatory evidence or lack of evidence that would have affected his decision to plead guilty. Therefore, defendant’s argument is entirely speculative and insufficient to meet his burden of alleging facts that would allow the post-conviction court to find that he was prejudiced by counsel’s alleged failure to investigate.
Defendant also contended that the trial court erred in dismissing his Crim.P. 35(c) motion as time barred under CRS § 16-5-402 for the non-class felony convictions. However, defendant filed his Crim.P. 35(c) motion after the time had expired and failed to prove any justifiable excuse or excusable neglect for the untimely filing. Therefore, the court did not err in dismissing his motion.
Defendant further argued that the sentence imposed on him was illegal because his convictions for attempted after deliberation first-degree murder and attempted extreme indifference first-degree murder required inconsistent findings of fact. The information reflected that each attempted murder charge—after deliberation and extreme indifference —involved a different victim. Consequently, the sentence imposed on defendant was not illegal.