v. Cali

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
May 3, 2018

2018COA61

No. 15CA2082, People v. Cali — Criminal Procedure —
Postconviction Remedies — Collateral Attack Upon a Criminal
Judgment

A division of the court of appeals considers whether a

defendant is entitled to the benefit of a statutory amendment that

took effect before his conviction was final on appeal even though the

defendant requested the benefit of the amendment in a Crim. P.

35(c) postconviction motion after his conviction became final on

appeal. The division concludes that under People v. Boyd, 2017 CO

2, the statutory amendment that took effect before the defendant’s

conviction was final on appeal deprived the State of the authority to

prosecute the defendant for the offense of which he was convicted.

Although the defendant did not raise the State’s loss of authority to

prosecute him before his conviction became final on appeal, the
division concludes that the defendant could collaterally attack his

conviction on this ground under Crim. P. 35(c)(2)(VI) after his

conviction became final on appeal. The defendant is therefore

entitled to the benefit of the statutory amendment.
COLORADO COURT OF APPEALS 2018COA61

Court of Appeals No. 15CA2082
El Paso County District Court No. 11CR3659
Honorable Barney Iuppa, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Osmundo Rivera Cali,

Defendant-Appellant.

ORDER REVERSED, JUDGMENT VACATED,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE ASHBY
Terry, J., concurs
Nieto*, J., dissents

Announced May 3, 2018

Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Osmundo Rivera Cali, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Osmundo Rivera Cali, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion. We apply People v.

Boyd, 2017 CO 2, to conclude that a defendant whose conviction

has been affirmed on direct appeal may nevertheless collaterally

attack that conviction in a postconviction motion on the ground

that the State lost the authority to prosecute his conviction during

the pendency of his direct appeal. We therefore reverse the

postconviction court’s order, vacate Cali’s conviction, and remand

the case with directions.

I. Background

¶2 In 2012, Cali was convicted of theft and theft by receiving,

both class 4 felonies, as well as two habitual criminal counts. The

trial court sentenced him to eighteen years in the custody of the

Department of Corrections.

¶3 In August 2012, Cali directly appealed his convictions,

arguing, among other things, that he could not be convicted of theft

and theft by receiving because both offenses involved the same

stolen property. A division of this court agreed and, in October

2014, vacated his theft conviction while affirming his theft by

1
 receiving conviction. See People v. Cali, (Colo. App. No. 12CA1730,

Oct. 2, 2014) (not published pursuant to C.A.R. 35(f)).

¶4 Meanwhile, in June 2013, after Cali had filed his notice of

appeal in the direct appeal and while the appeal was still pending,

the legislature reclassified theft by receiving, as committed by Cali,

to a class 6 felony. Ch. 373, sec. 3, § 18-4-410, 2013 Colo. Sess.

Laws 2197-98 (repealing theft by receiving statute); Ch. 373, sec. 1,

§ 18-4-401, 2013 Colo. Sess. Laws 2195-96 (incorporating

substantive offense of theft by receiving into offense of theft). Cali

did not request the benefit of the amended theft by receiving statute

in his direct appeal. Instead, after his direct appeal became final,

Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant

here, that he was entitled to the benefit of the changed statute.

¶5 The postconviction court denied Cali’s motion without a

hearing. In doing so, it ruled that Cali was not entitled to the

benefit of the changed statute because “the law changed after his

sentence was imposed, his sentence has been affirmed on appeal

and because the ‘new’ Theft [sic] statute was intended to have

prospective, not retroactive, application.”

2
¶6 Cali now appeals the postconviction court’s ruling.1 He argues

that the trial court erred by analyzing his postconviction claim as a

request for retroactive application of the statutory amendment.

Instead, he argues that because the amendment took effect while

his direct appeal was still pending and before his conviction became

final, he is entitled to the benefit of the amendment. We agree.

II. Cali Was Entitled to the Benefit of the Changed Statute

¶7 As the postconviction court acknowledged, whether Cali is

entitled to the benefit of the changed statute is a purely legal

question. We therefore review the postconviction court’s ruling de

novo. See People v. Valdez, 178 P.3d 1269, 1278 (Colo. App. 2007).

¶8 The prosecution argues that “the long-established rule in

Colorado is that the law in effect at the time the offense is

committed is the law that controls both the prosecution and

punishment of the defendant.” It cites People v. Orr, 39 Colo. App.

289, 566 P.2d 1361 (1977), for this rule. But this argument

misconstrues the relevant rule and the holding in Orr. Contrary to

1Cali’s other claims in his pro se Crim. P. 35(c) motion are
unrelated to the statutory amendment and are not before us in this
appeal.

3
 the prosecution’s argument, the rule in Colorado, as stated by the

division in Orr, is that “[g]enerally the law in effect at the time the

offense is committed controls; however, if a lesser penalty is enacted

by the legislature before the final disposition of a defendant’s case,

the defendant is entitled to the benefits of the legislative change.”

Id. at 293, 566 P.2d at 1364 (citation omitted).

¶9 This rule originated in People v. Thomas, 185 Colo. 395, 398,

525 P.2d 1136, 1138 (1974), wherein the supreme court held that a

criminal defendant was entitled to the benefit of a statutory change

that took effect after he committed the offense but before his

conviction became final. In doing so, the court said, “[t]he view that

amendatory legislation mitigating the penalties for crimes should be

applied to any case which has not received final judgment finds

substantial support in the common law.” Id.

¶ 10 For decades, “both the supreme court and the court of appeals

have consistently applied the Thomas rule to give convicted criminal

defendants the ‘benefit of amendatory legislation which became

effective at any time before the conviction became final on appeal.’”

People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold,

190 Colo. 136, 137, 543 P.2d 1251, 1252 (1975)), aff’d, 2017 CO 2.

4
 While this rule itself is clear, what is not clear is whether its

application implicates retroactivity principles. In other words, it is

not clear whether giving a defendant the benefit of a changed

statute before his or her conviction becomes final on appeal is

retroactive application of the new statute or merely application of

the new statute to a still-pending case. The supreme court’s recent

opinion in Boyd suggests the latter.

¶ 11 Boyd was convicted of possession of a small amount of

marijuana and sentenced. Id. at ¶ 2. But before that conviction

and sentence became final on appeal, an amendment to the state

constitution (Amendment 64) took effect that made it legal to

possess the amount of marijuana that Boyd had been convicted of

possessing. Id. at ¶ 4. A division of this court held that under

Thomas and its progeny, Amendment 64 applied retroactively to de-

criminalize Boyd’s conduct because the amendment took effect

while Boyd’s direct appeal was still pending. Id. at ¶¶ 14-25. Both

the majority and the partial dissent in that division specifically and

thoroughly addressed Thomas and its progeny, along with several

statutes implicating retroactivity principles. Id. at ¶¶ 14-35; id. at

¶¶ 55-86 (Bernard, J., concurring in part and dissenting in part).

5
¶ 12 After granting certiorari, the supreme court took a different

approach. The supreme court majority affirmed that Boyd was

entitled to the benefit of Amendment 64. Boyd, 2017 CO 2, ¶ 10.

But, as the dissent pointed out, the majority did so without

addressing retroactivity principles and without even using the term

“retroactive” in its substantive analysis. Id. at ¶ 11 (Eid, J.,

dissenting) (“The majority carefully avoids using the term

‘retroactive’ (except when it cannot, as in the certiorari question

upon which this court granted).”) (citation omitted). Instead, the

majority held that as of Amendment 64’s effective date, the State

lost the authority to prosecute Boyd’s conviction. Id. at ¶ 9

(majority opinion). Because Amendment 64 deprived the State of its

authority to prosecute Boyd before her conviction became final on

appeal, the majority reasoned that Boyd was entitled to reversal of

that conviction. Id. at ¶ 10.

¶ 13 We understand the supreme court’s holding in Boyd to be that

a convicted defendant is entitled to the benefit of changes to the

State’s prosecutorial authority if those changes take effect before

the conviction and sentence are final on appeal — irrespective of

retroactivity principles. Although Boyd addressed the loss of the

6
 State’s prosecutorial authority by constitutional amendment,

nothing in the supreme court’s analysis suggests that the loss of

the State’s prosecutorial authority by statutory amendment would

have any different effect. And in our view, there is no legally

significant difference; the State either has the authority to

prosecute a defendant for a specific offense based on his or her

conduct and impose the specific penalties based on the legislative

classification for that offense or it does not.

¶ 14 Here, the circumstances of Cali’s case are essentially the same

as those in Boyd. At the time of his conviction and sentence, the

theft by receiving statute provided that Cali’s offense was a class 4

felony. But before his conviction and sentence became final on

appeal, that statute was repealed and replaced with a new statute

that classified his offense as a class 6 felony. In other words, before

Cali’s conviction became final, the State lost the authority to

prosecute Cali for committing the class 4 felony of theft by

receiving. Id.

¶ 15 We recognize that the elements of the class 4 felony and the

class 6 felony are identical. But that does not matter. The

Supreme Court, in United States v. Chambers, 291 U.S. 217 (1934),

7
 a case upon which our supreme court relied in Boyd, explained that

the State’s authority to prosecute a defendant “necessarily

depend[s] upon the continued life of the statute that the

prosecution seeks to apply.” Id. at 223. The statute classifying

theft by receiving as a class 4 felony died when the amendment took

effect. The State therefore lost the authority to apply that statute to

Cali. That a different statute classifying theft by receiving as a class

6 felony could then be applied to Cali does not change the fact that

the State lost the authority to enforce the statute under which Cali

had been convicted.

¶ 16 Thus, under Boyd and Chambers, Cali could have successfully

requested reversal of his class 4 felony conviction had he done so

during his direct appeal. However, Cali failed to do so. Instead, he

requested this relief in a postconviction motion after his conviction

became final on appeal. Boyd did not address this specific

circumstance. And the prosecution argues that this procedural

difference bars Cali from receiving the benefit of the new statute.

We disagree.

¶ 17 The prosecution seeks to construe Cali’s postconviction claim

as one “essentially seeking relief under section 18-1-410(1)(f)(I),”

8
 C.R.S. 2017. This provision authorizes “retroactive application of

[a] changed legal standard” in the interests of justice. § 18-1-

410(1)(f)(I). Relief under this provision is, however, unavailable if a

judgment of conviction has been affirmed on appeal. See § 18-1-

410(1)(f)(II). And Crim. P. 35(c)(1) provides for the same relief under

the same conditions and with the same limitations.

¶ 18 But, as the supreme court made clear in Boyd, it is not

retroactive application of the amendment that entitles Cali to the

benefit of the new statute. Instead, under Boyd, the amended

statute applies to Cali because the State lost the authority to apply

the old statute to him when it was repealed during the pendency of

his direct appeal and before his conviction was final. Because Cali’s

claim was not based on retroactive application of the new statute, it

was not cognizable as a claim for relief under section 18-1-

410(1)(f)(I) or Crim. P. 35(c)(1).

¶ 19 Cali’s postconviction claim sought to reverse his conviction of

the class 4 felony and instead stand convicted of the class 6 felony.

It was therefore cognizable as a collateral attack on the class 4

felony conviction under section 18-1-410(1)(g) and Crim. P.

35(c)(2)(VI). Each of those provisions authorizes a defendant to file

9
 a postconviction motion based on “[a]ny grounds otherwise properly

the basis for collateral attack upon a criminal judgment” after that

judgment has been affirmed on appeal. And although Cali could

have raised this issue in his direct appeal, because the statute

changed after he initiated that appeal, the claim was not barred.

See Crim. P. 35(c)(3)(VII)(a) (providing that a court shall deny any

claim that could have been raised in prior appeal except “[a]ny

claim based on events that occurred after initiation of the

defendant’s prior appeal”).

¶ 20 Finally, the dissent argues that allowing Cali to request

application of the changed statute to his case after his conviction

was final on appeal would violate longstanding principles of finality.

We respectfully point out that Crim. P. 35(c)(2)(VI) specifically

authorizes defendants to collaterally attack their convictions on

“[a]ny grounds otherwise properly the basis for collateral attack”

after their convictions are final on appeal. And we are unaware of

any authority stating that the State’s loss of authority to prosecute

a defendant for the offense he was convicted of is an improper

ground on which to collaterally attack a conviction.

10
¶ 21 We therefore conclude that Cali has asserted a timely

postconviction claim under section 18-1-410(1)(g) and Crim. P.

35(c)(2)(VI) that entitles him to reversal of his conviction of class 4

felony theft by receiving. However, because a jury found that he

was guilty of theft by receiving and because that offense is a class 6

felony under the new statute, the trial court must convict him of the

class 6 felony and sentence him accordingly.

III. Additional Authority That Does Not Affect Our Conclusion

¶ 22 Because they have impacted the development of case law in

this area, we make observations about two additional sources of

authority relevant to our conclusion, although the parties did not

raise either. First, we are aware that the supreme court, in People

v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), addressed whether

reducing a defendant’s sentence under a provision of section 18-1-

410 violated the separation of powers doctrine by empowering

courts to grant commutations. Then, as now, the Colorado

Constitution provided that only the governor has the power to grant

“reprieves, commutations and pardons after conviction.” Colo.

Const. art. IV, § 7.

11
¶ 23 The Herrera defendants2 sought postconviction review of their

sentences under a statute that provided for postconviction review if

“there has been a significant change in the law, applied to

[defendant’s] conviction or sentence, [a]llowing in the interest of

justice retroactive application of the changed legal standard.”

Herrera, 183 Colo. at 159, 516 P.2d at 627 (quoting § 40-1-510(1)(f),

C.R.S. 1971 & amended by Ch. 152, sec. 2, § 40-1-510, 1973 Colo.

Sess. Laws 533). The court held that the defendants’ requests for

judicial review of their sentences under this statute were effectively

requests for judicial commutations. Id. at 161-62, 516 P.2d at 628.

Because Colorado’s constitution gives the commutation power

exclusively to the governor, the supreme court denied the

defendants’ requests for review. Id. at 162, 516 P.2d at 629.

¶ 24 We perceive no separation of powers violation resulting from

our conclusion in Cali’s case. Unlike the Herrera defendants, Cali

is not requesting a judicial commutation or reduction of his

sentence. The Herrera court defined the power of commutation as

“the power to reduce punishment from a greater to a lesser

2 Eight cases were consolidated for appeal.

12
 sentence.” Id. at 161, 516 P.2d at 628. Cali has not asked for a

reduction of his sentence; he has sought reversal of his class 4

felony conviction. If Cali’s sentence is reduced, it will be because he

will stand convicted of a different class of felony, not because his

sentence was commuted. As discussed above, Cali’s claim is a

collateral attack on his class 4 felony conviction, not a request that

we commute his sentence and leave his conviction intact.

¶ 25 Second, we address section 2-4-303, C.R.S. 2017. That

provision states that

[t]he repeal, revision, amendment, or
consolidation of any statute or part of a statute
. . . shall not have the effect to release,
extinguish, alter, modify, or change in whole or
in part any penalty, . . . either civil or criminal,
which shall have been incurred under such
statute, unless the repealing, revising,
amending, or consolidating act so expressly
provides.

¶ 26 The statutory language appears to contradict the Thomas rule

and our holding that Cali is entitled to the benefit of the new

statute. But the supreme court has explained that the

postconviction review remedies of section 18-1-410 effectively

trump section 2-4-303 in criminal cases. See Noe v. Dolan, 197

Colo. 32, 36 n.3, 589 P.2d 483, 486 n.3 (1979) (“Where a criminal

13
 penalty is at issue, this court has consistently adhered to the

principle enunciated in [Thomas] . . . . This result is dictated by the

legislative intent evidenced by the postconviction review remedy

authorized by section 18-1-410(1)(f) . . . .”) (addressing retroactive

application of a changed legal standard).

¶ 27 More importantly, the supreme court concluded in Boyd that

when the State loses the authority to prosecute a defendant’s

conviction before that conviction is final on appeal, the defendant is

entitled to reversal of that conviction. As discussed above, we see

no reason why it would be legally significant that the State’s

authority is removed by statutory rather than constitutional

amendment. Applying section 2-4-303 to uphold convictions that

the State has lost the authority to prosecute before they are final on

appeal would therefore violate the holding in Boyd.

¶ 28 Finally, we note that the supreme court has granted certiorari

in two cases in which the respective defendants committed theft

before the new theft statute took effect, but were found guilty,

convicted, and sentenced after the new statute took effect. See

People v. Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017);

People v. Patton, (Colo. App. No. 14CA2359, Aug. 11, 2016) (not

14
 published pursuant to C.A.R. 35(e)) (cert. granted Feb. 6, 2017). In

both cases, the opinions of this court, announced prior to the

supreme court’s opinion in Boyd, analyzed whether the respective

defendants were entitled to the benefit of the changed statute under

principles of retroactivity. See Stellabotte, ¶¶ 44-48; Patton, No.

14CA2359, slip op. at 11-12. We expect and hope that the supreme

court will consider Boyd’s applicability to those cases.

IV. Conclusion

¶ 29 The postconviction court’s order denying Cali’s claim that he

was entitled to the benefit of the changed theft statute is reversed.

We also vacate Cali’s conviction of the class 4 felony and remand

the case to the postconviction court with directions to enter a

judgment of conviction of the class 6 felony and sentence Cali

accordingly.

JUDGE TERRY concurs.

JUDGE NIETO dissents.

15
 JUDGE NIETO, dissenting.

¶ 30 In a well-written opinion, the majority has determined that the

supreme court in People v. Boyd, 2017 CO 2, has abandoned the

longstanding rules on the retroactive application of amendatory

statutes. I do not agree with the majority’s reading of Boyd and do

not agree that it has application to the facts of this case. Instead, I

conclude that because Cali’s conviction was final before he filed his

Crim. P. 35(c) motion, the trial court properly denied the motion.

Therefore, I respectfully dissent.

I. Boyd

¶ 31 Boyd is distinguishable for several reasons. First, and

importantly, Boyd’s conviction was on direct appeal and was not

final, while here, Cali’s conviction was final before he filed his Crim.

P. 35(c) motion that is the subject of this appeal. The majority finds

the finality of Cali’s conviction to be of no consequence in its

application of Boyd to this appeal. This conclusion, in my view,

implies that the supreme court in Boyd abandoned, or at least

disregarded, its decision in People v. Thomas, 185 Colo. 395, 525

P.2d 1136 (1974), and its progeny, which have consistently applied

amendatory legislation only to convictions that were not final. See

16
 People v. Boyd, 2015 COA 109, ¶ 21 (“[B]oth the supreme court and

the court of appeals have consistently applied the Thomas rule to

give” the benefit of amendatory legislation to defendants where

convictions were not final.) (collecting cases), aff’d, 2017 CO 2. In

another case, our supreme court noted that “[w]e have also

recognized that the concept of finality is an important landmark on

the Colorado criminal justice landscape. And we have noted its

enhanced significance in the context of Crim. P. 35(c) proceedings.”

Edwards v. People, 129 P.3d 977, 982 (Colo. 2006) (citation

omitted). It seems to me that the supreme court would not have

made this significant change to an important and longstanding rule

only by implication in an opinion that does not even mention

Thomas.

¶ 32 Second, in Boyd, the supreme court very clearly said what it

was deciding. “This case presents an opportunity to resolve

whether Amendment 64 deprived the State of the power to continue

to prosecute cases where there was a nonfinal conviction . . . with a

pending right to appeal when Amendment 64 became effective.”

Boyd, 2017 CO 2, ¶ 5 (emphasis added). The court also made clear

what it was not deciding. “We do not find it necessary to address

17
 the effect of Amendment 64 on final convictions.” Id. at ¶ 2 n.1

(emphasis added). Therefore, I would not rely on Boyd in a

postconviction proceeding as authority to apply an amendatory

statute to a conviction that had become final following direct

appeal.

¶ 33 Third, I would note the fundamental difference between the

constitutional amendment in Boyd and the statutory amendment

here. The constitution is the root source of all the State’s authority

to act. Once Amendment 64 was effective, the State no longer had

authority to prosecute Boyd for the offenses alleged in that case.

The amendment provided that “the following acts are not unlawful

and shall not be an offense under Colorado law . . . .” Colo. Const.

art. XVIII, § 16(3). Thus, the underpinning necessary for the State

to take criminal action against Boyd was taken away by

Amendment 64 as of its effective date. The statutory amendment

here left intact the authority of the State to prosecute theft crimes,

and it only changed the penalties that can be imposed for offenses

that occur after the effective date of the amendment. See § 2-4-202,

C.R.S. 2017 (“A statute is presumed to be prospective in its

operation.”). This fundamental difference in the effect of

18
 Amendment 64 and the statutory amendment here makes Boyd

inapplicable in this case. The amendatory statute here did not

purport to deprive the State of its authority to prosecute a

defendant for conduct defined as criminal by the General Assembly.

The majority has equated a statute that amended the penalty

prescribed for certain conduct to a constitutional amendment that

specifically removed the State’s authority to prosecute certain

conduct. It interprets Boyd to imply that the statutory amendment

that adjusted the penalty for a crime constituted a “loss of the

State’s prosecutorial authority.” Supra ¶ __. I do not agree with

that proposition.

¶ 34 Accordingly, I would decide this appeal without attempting to

apply the holding in Boyd to the facts of this case.

II. Finality

¶ 35 The majority has set out the facts and pertinent history of this

case. I will not repeat them here, except to emphasize that Cali’s

conviction was affirmed on appeal, certiorari was denied, and the

mandate issued in May 2015 — making his conviction final before

he filed the postconviction motion in September 2015.

19
¶ 36 Cali’s Crim. P. 35(c) motion claimed, among other things not

raised here, that his sentence was improper under the June 2013

legislative amendment. The trial court rejected this claim, finding

that the amendment occurred after his sentencing, his sentence

had been affirmed on appeal, and the amendment was prospective.

¶ 37 In this appeal Cali pursues only the claim that the 2013

amendment applies in his case. If the amendment applies, the

conviction would be a class 6 felony, which would yield a lower

habitual offender sentence. I perceive no error and would affirm the

trial court’s order.

¶ 38 Cali’s request to apply a “substantive change in the law” would

fall within the provision in Crim. P. 35(c) permitting a motion based

on “a significant change in the law, applied to the applicant’s

conviction or sentence, allowing in the interests of justice

retroactive application.” But this rule only applies if “judgment on

that conviction has not then been affirmed upon appeal” prior to

filing the motion. Crim. P. 35(c)(1); see also § 18-1-410(1)(f)(I), (II),

C.R.S. 2017 (containing the same limitation). The text of both the

statute and the rule prohibit the relief Cali requested after his

20
 conviction became final. In People v. White, a division of this court

agreed with this plain meaning of Crim. P. 35(c):

While Crim. P. 35(c)(1) provides a remedy to an
offender whose conviction or sentence is
affected by a change in the law during the
pendency of a direct appeal of such conviction
or sentence, it does not provide a remedy to an
offender claiming the benefit of changes in the
law that occur during the pendency of other
post-conviction proceedings.

804 P.2d 247, 250 (Colo. App. 1990).

¶ 39 Cali contends that his conviction was not final, and, therefore,

he was entitled to be sentenced under the amended statute. I do

not agree.

¶ 40 Convictions are final when direct appeal has been exhausted

and a petition for certiorari has been forfeited or denied. Edwards,

129 P.3d at 983; People v. Hampton, 876 P.2d 1236, 1239 (Colo.

1994). Significantly, in the binding precedent, People v. Arellano,

185 Colo. 280, 524 P.2d 305 (1974), the relevant statute was

amended while the appeal was pending, but the issue was not

raised until after finality had attached to the conviction. Our

supreme court held that, even there, relief could not be granted

after the conviction was final. The facts in the Arellano case are on

21
 all fours with the present case: the relevant statute was amended

while Cali’s appeal was pending, but Cali filed his motion after the

mandate issued in his direct appeal. His conviction was final, and

he is not entitled to the relief he requested.

¶ 41 Finality is not just a technicality; it is a hard boundary. The

following cases demonstrate how firm the boundary is. In People v.

Herrera, 183 Colo. 155, 516 P.2d 626 (1973), when the General

Assembly explicitly authorized courts to review sentences after a

conviction became final, the supreme court invalidated the statute

as a breach of the separation of powers doctrine. In People v.

Carter, 186 Colo. 391, 527 P.2d 875 (1974), the supreme court held

that judicial review of sentences before finality is a proper judicial

function. In People v. Arellano, the supreme court held that after

the conviction was final, relief could not be granted on a motion

filed after finality. 185 Colo. at 283, 524 P.2d at 306. Then in

People v. Thomas, the defendant filed a motion for postconviction

review of his sentence while his direct appeal was pending. The

motion was based on a statute that amended the penalty for his

offense. The supreme court held that the motion could be

22
 entertained because it was filed before his conviction was final. 185

Colo. at 397, 525 P.2d at 1137.

¶ 42 In each of these cases the decision pivoted on when the

conviction became final.

¶ 43 All these cases drew the line at finality. I would continue to do

so and would affirm the trial court’s denial of Cali’s Crim. P. 35(c)

motion because his conviction was final before he filed his motion,

and therefore the rule and section 18-1-410(1)(f)(I), (II) deny him the

relief he requested.

23