June 26, 2019

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

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