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ADVANCE SHEET HEADNOTE
March 9, 2020
2020 CO 20
No. 18SC406 People v. Cali—Amendatory Legislation—Post-Conviction Motions—
Theft.
This case requires the supreme court to consider whether a defendant is
entitled to the benefit of amendatory legislation when the amendment took effect
while the defendant’s case was pending on direct appeal but the defendant did
not raise the issue of the amendatory legislation until after his conviction became
final.
The court concludes that a defendant is not entitled to the benefit of a
statutory amendment when the defendant does not seek relief based on that
amendatory legislation until after his or her conviction becomes final.
Accordingly, the court reverses the judgment of the division below.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 20
Supreme Court Case No. 18SC406
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA2082
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Osmundo Rivera Cali.
Judgment Reversed
en banc
March 9, 2020
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
The Noble Law Firm, LLC
Antony Noble
Lakewood, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case requires us to consider whether a defendant is entitled to the
benefit of amendatory legislation when the amendment took effect while the
defendant’s case was pending on direct appeal but the defendant did not raise the
issue of the amendatory legislation until after his conviction became final.1
¶2 We conclude that a defendant is not entitled to the benefit of a statutory
amendment when the defendant does not seek relief based on that amendatory
legislation until after his or her conviction becomes final.
¶3 Accordingly, we reverse the judgment of the division below.
I. Facts and Procedural History
¶4 The prosecution charged Osmundo Cali with one count of theft of a thing of
value of one thousand dollars or more but less than twenty thousand dollars, then
a class four felony, as well as with one count of theft by receiving and two habitual
criminal counts. The charges stemmed from allegations that Cali took metal storm
grates from a construction site and sold them to a scrap metal processing company.
The evidence established that the stolen grates were worth approximately $2,616,
based on the price paid for them by the construction company.
1 Specifically, we granted certiorari to review the following issue:
Whether the court of appeals erred by applying a statutory
amendment to a final conviction.
2
¶5 Cali’s case proceeded to trial, a jury convicted him of the two substantive
offenses, and the trial court adjudicated him a habitual criminal. The court then
sentenced Cali to eighteen years on each of the substantive counts, to be served
concurrently in the Department of Corrections.
¶6 Cali appealed, arguing that (1) the trial court had plainly erred in failing to
instruct the jury properly on the elements of theft; (2) Cali could not be convicted
of both theft and theft by receiving for offenses involving the same property;
(3) the prosecution had presented insufficient evidence to prove that Cali had two
prior criminal convictions; and (4) the trial court should have conducted a
proportionality review of his sentence. The division agreed that Cali could not be
convicted of both theft and theft by receiving of the same property. See People v.
Cali, No. 12CA1730, slip op. at 1 (Oct. 2, 2014). It therefore vacated his conviction
for theft, allowed the theft by receiving conviction to stand, and did not address
the alleged instructional error on the theft count. Id. The division, however,
affirmed Cali’s habitual criminal convictions and after conducting its own
abbreviated proportionality review, concluded that Cali’s sentence was not
grossly disproportionate. Id. This court subsequently denied Cali’s petition for a
writ of certiorari, and the mandate issued on May 11, 2015.
¶7 On June 5, 2013, while Cali’s appeal was pending, an amendment to the theft
statute became effective. See Ch. 373, secs. 1–3, § 18-4-410, 2013 Colo. Sess. Laws
3
2195, 2195–98. As pertinent here, the amended statute eliminated the separate
crime of theft by receiving and incorporated that offense into the general theft
provision. Id. It also modified the classifications for theft. Id. at 2196. Under the
new statutory provisions, Cali’s offense would have been classified as a class six
felony. Id. Although these amendments took effect prior to the date on which
Cali’s appellate counsel filed the opening brief in Cali’s direct appeal, Cali did not
address in his appeal the applicability of these provisions to his case.
¶8 After the court of appeals issued its mandate in Cali’s case, Cali filed a pro
se petition for postconviction relief pursuant to Crim. P. 35(c). In this petition, Cali
raised, as pertinent here, a claim for relief based on a “Substantial Change In The
Law.” Specifically, he asserted, for the first time, that under the newly amended
statute, he could only have been convicted of a class six felony, which would have
carried a presumptive sentencing range of one year to eighteen months
imprisonment, rather than the eighteen years that he had received under the old
provision. See §§ 18-1.3-401(1)(a)(V)(A), -801(1.5), C.R.S. (2019) (setting forth the
presumptive sentencing ranges for felonies committed during the time period at
issue and the mandatory aggravated sentence for those adjudged habitual
criminals based on their having two prior felony convictions within ten years of
the date of commission of the present offense).
4
¶9 The postconviction court denied Cali’s petition without a hearing. As
pertinent here, the court concluded that the amended statute did not entitle Cali
to relief because (1) the law changed after Cali’s sentence was imposed; (2) his
sentence had been affirmed on appeal; and (3) the amended theft statute was
intended to have prospective, not retroactive, application.
¶10 Cali appealed again, and in a split, published opinion, a division of the court
of appeals reversed. People v. Cali, 2018 COA 61, __ P.3d __. The majority
concluded that its decision was controlled by this court’s opinion in People v. Boyd,
2017 CO 2, 387 P.3d 755, which the majority interpreted as holding “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.” Cali, ¶ 13. In the majority’s
view, the State lost its authority to prosecute Cali for a class four felony under the
prior version of the theft statute once the amended statute went into effect. Id. at
¶¶ 13–14. The majority further determined that Cali’s postconviction claim was
cognizable under section 18-1-410(1)(g), C.R.S. (2019), and Crim. P. 35(c)(2)(VI) as
a collateral attack on Cali’s class four felony conviction because each of those
provisions authorized a defendant to file a postconviction motion based on “[a]ny
grounds otherwise properly the basis for collateral attack upon a criminal
judgment,” even after that judgment has been affirmed on appeal. Cali, ¶ 19
5
(quoting § 18-1-410(1)(g) and Crim. P. 35(c)(2)(VI)). Concluding that Cali had
asserted a timely postconviction claim, the majority thus determined that he was
entitled to reversal of his conviction of the class four felony of theft by receiving
and that his case should be remanded for entry of a judgment of conviction and
sentencing on class six felony theft. Id. at ¶ 21.
¶11 Judge Nieto dissented, deeming Boyd distinguishable from the present case.
People v. Cali, 2018 COA 61, ¶ 31, __ P.3d __ (Nieto, J., dissenting). Judge Nieto
initially noted that, unlike Boyd’s conviction, which was on direct appeal and not
final at the time the law changed, Cali’s conviction was final before he filed his
Crim. P. 35(c) motion, and this court has consistently applied amendatory
legislation only to convictions that were not final. Id. Judge Nieto further
observed that Boyd made clear that it was not addressing the effect of amendatory
legislation on final convictions. Id. at ¶ 32. Finally, Judge Nieto described what
he viewed as “the fundamental difference” between the constitutional amendment
at issue in Boyd and the statutory amendment at issue here: the amendment at
issue in Boyd removed the State’s authority to prosecute for the offenses there at
issue whereas the amendment here left intact the state’s authority to prosecute
theft crimes. Id. at ¶ 33. Judge Nieto thus concluded that Cali was not entitled to
the relief that he had requested. Id. at ¶ 40.
6
¶12 The People then petitioned this court for certiorari review, and we granted
the petition.
II. Analysis
¶13 We begin by discussing the applicable standard of review and principles of
statutory construction. We then turn to the merits of Cali’s claim and conclude
that defendants are not entitled to the benefit of amendatory legislation when they
first seek relief based on that legislation after their convictions are final, even if the
legislation went into effect before their convictions became final. Finally, we
address Cali’s claim of ineffective assistance of appellate counsel, which he raises
for the first time in this court, and we conclude that that claim is not properly
before us.
A. Standard of Review and Principles of Statutory Construction
¶14 We review questions of statutory interpretation de novo. People v.
Stellabotte, 2018 CO 66, ¶ 10, 421 P.3d 174, 176. We likewise review de novo a
postconviction court’s decision to deny a Crim. P. 35(c) motion without an
evidentiary hearing. People v. Genrich, 2019 COA 132M, ¶ 39, __ P.3d __.
¶15 In construing a statute, our primary purpose is to ascertain and give effect
to the legislature’s intent. McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389. To
do this, we look first to the statutory language, giving words and phrases their
7
plain and ordinary meanings. Id. We read these words and phrases in context,
and we construe them according to the rules of grammar and common usage. Id.
¶16 In addition, we must endeavor to effectuate the purpose of the legislative
scheme. Id. at ¶ 38, 442 P.3d at 389. In doing so, we read that scheme as a whole,
giving consistent, harmonious, and sensible effect to all of its parts and avoiding
constructions that would render any words or phrases superfluous or that would
lead to illogical or absurd results. Id.
¶17 We do not add words to a statute or subtract words from it. Turbyne v.
People, 151 P.3d 563, 567 (Colo. 2007). And if different statutory provisions cannot
be harmonized, then the specific provision will control over the general provision.
Beren v. Beren, 2015 CO 29, ¶ 11, 349 P.3d 233, 239; see also § 2-4-205, C.R.S. (2019)
(providing that if a general provision conflicts with a special or local provision and
the conflict is irreconcilable, then “the special or local provision prevails as an
exception to the general provision, unless the general provision is the later
adoption and the manifest intent is that the general provision prevail”).
¶18 If a statute is clear and unambiguous, then we need not resort to further aids
of statutory construction. People v. Rojas, 2019 CO 86M, ¶ 12, 450 P.3d 719, 721.
B. Applicability of Amendatory Legislation
¶19 Cali asserts that he should receive the benefit of the amended theft statute
that passed and became law during the pendency of his appeal, even though he
8
did not raise the issue of the amendatory legislation’s applicability until after his
conviction was final. We are not persuaded.
¶20 Section 18-1-410 governs the postconviction remedies available to criminal
defendants. That statute provides, in pertinent part:
[E]very person convicted of a crime is entitled as a matter of right to
make applications for postconviction review. Except as otherwise
required by subsection (1.5) of this section, an application for
postconviction review must, in good faith, allege one or more of the
following grounds to justify a hearing thereon:
....
(f)(I) That there has been significant change in the law, applied to the
applicant’s conviction or sentence, allowing in the interests of justice
retroactive application of the changed legal standard.
(II) The ground set forth in this paragraph (f) may not be asserted if, prior to
filing for relief pursuant to this paragraph (f), a person has not sought appeal
of a conviction within the time prescribed therefor or if a judgment of
conviction has been affirmed upon appeal.
§ 18-1-410(1) (emphasis added).
¶21 As we indicated in Stellabotte, a decision that issued after the division’s
ruling here, under this statute, a defendant is entitled to the benefit of amendatory
legislation that has mitigated the penalties for the crime at issue as long as the
defendant has requested such relief before his or her conviction has become final
(i.e., after the expiration of the time for appeal or upon the issuance of the mandate
following an appeal). See Stellabotte, ¶ 26, 421 P.3d at 179 (noting that under
section 18-1-410(1)(f), criminal defendants are entitled to the benefit of amendatory
9
legislation that became effective at any time before the defendants’ convictions
became final on direct appeal); People v. Thomas, 525 P.2d 1136, 1138 (Colo. 1974)
(construing the predecessor to section 18-1-410(1)(f) and noting that applying
changed legal standards is “especially appropriate” when a change in the law
reducing a defendant’s sentence intervenes before “conviction is had and sentence
is imposed”).
¶22 Indeed, we have long held that a trial court lacks the authority to apply
amendatory legislation to a defendant’s judgment of conviction after that
judgment becomes final. See People v. Herrera, 516 P.2d 626, 628–29 (Colo. 1973)
(noting that after a final conviction, only the Governor has the power to reduce a
sentence and that any effort by a court to exercise that power would violate the
separation of powers doctrine); see also People v. Arellano, 524 P.2d 305, 306 (Colo.
1974) (construing the predecessor to section 18-1-410(1)(f) and noting that Herrera
“drew the line of finality beyond which further judicial proceedings could not be
maintained”).
¶23 Applying the foregoing principles in Arellano, 524 P.2d at 306, we concluded
that the defendant was not entitled to the benefit of amendatory legislation that
substantially reduced the penalty for the crime of conviction when he did not raise
the issue until after his conviction was final. There, we addressed circumstances
that were nearly identical to those presented here. The defendant had been
10
convicted of possession of narcotic drugs. Id. He appealed, and a division of the
court of appeals affirmed his conviction. Id. While his appeal was pending,
however, the General Assembly had amended the statute under which he had
been convicted and sentenced, and the amended provision “substantially
reduce[d] the penalty for violation thereof.” Id. After losing his appeal, the
defendant filed a motion for postconviction relief, requesting a reduction in his
sentence to conform to the new penalty provisions. Id. The trial court denied this
motion, and we ultimately affirmed that decision, concluding that because the
defendant had exhausted his appeals and his conviction had become final before
he filed his motion for postconviction relief, the trial court “was without
jurisdiction to entertain his motion for relief.” Id. We were not persuaded
otherwise by the fact that the amended legislation took effect during the course of
Arellano’s direct appeal. Id. (noting that Herrera had announced a constitutional
rule that “after conviction and exhaustion of appellate remedies, relief from a
sentence validly imposed may not be obtained through the judiciary, but rather
the remedy therefor lies in the executive department by way of commutation”).
¶24 In our view, Arellano is dispositive here. Specifically, because Cali’s
conviction became final upon the issuance of the mandate from the court of
appeals and he did not file his petition for postconviction relief until after that date,
the trial court could not grant him the relief that he requested.
11
¶25 In reaching this conclusion, we are not persuaded by Cali’s contention that,
even if he is not entitled to relief under subsection 18-1-410(1)(f), he has prima facie
claims for postconviction relief under subsection 18-1-410(1)(g). That provision
states that a person convicted of a crime may make an application for
postconviction relief based on “[a]ny grounds otherwise properly the basis for
collateral attack upon a criminal judgment.” § 18-1-410(1)(g). Cali asserts that his
claim under this provision does not seek a modification of his sentence based on
amendatory legislation, which would fall under subsection (1)(f), but rather it
provides a remedy under Crim. P. 35(c)(3)(V) to restore a right to which he was
entitled. The right, he argues, was the right to the benefit of the amended theft
statute to which Cali was entitled on direct appeal, and he asserts that he is entitled
to the restoration of that right because he received ineffective assistance of counsel
during his direct appeal.
¶26 Under Cali’s interpretation of section 18-1-410(1), the pre-finality
requirement set forth in subsection (1)(f) would not apply in any case in which a
defendant has alleged that he or she received the ineffective assistance of appellate
counsel. In our view, however, such an exception would swallow the rule and
render the limit set forth in subsection (1)(f) meaningless. As noted above, we
must avoid such constructions. See McCoy, ¶ 38, 442 P.3d at 389.
12
¶27 We likewise are unpersuaded by Cali’s argument that our decision in Boyd,
¶ 1, 387 P.3d at 756, controls this case. In Boyd, the defendant had been convicted
of, among other things, possession of less than one ounce of marijuana. Id. at ¶ 2,
387 P.3d at 756. Prior to the filing of Boyd’s direct appeal, however,
Amendment 64, which legalized the possession of up to one ounce of marijuana
for personal use, became effective. Id. Boyd then filed a notice of appeal and
subsequently argued in the court of appeals that her conviction for possession of
less than one ounce of marijuana should be vacated based on Amendment 64. Id.
¶28 In a split decision, a division of the court of appeals agreed and reversed
Boyd’s possession conviction, and we subsequently affirmed that decision,
concluding that Amendment 64 “nullified the State’s authority to continue to
prosecute Boyd on appeal” and “rendered inoperative the pertinent language of
[the statute under which Boyd was convicted] because it legalized what the statute
had prohibited.” Id. at ¶¶ 2, 9–10, 387 P.3d at 756, 58. We thus stated:
Amendment 64 deprived the State of its power to continue to
prosecute cases where there was a nonfinal conviction for possession
of less than one ounce of marijuana and where there was a pending
right to appeal (subsequently exercised by filing a timely notice of
appeal) at the time the Amendment became effective.
Id. at ¶ 10, 387 P.3d at 758.
¶29 For two reasons, Boyd is distinguishable.
13
¶30 First, unlike in Boyd, the statutory amendment at issue in the present case
did not legalize the conduct that formed the basis of Cali’s conviction. Compare
§ 18-4-401(2)(c), C.R.S. (2011) (defining theft as a “class 4 felony if the value of the
thing involved is one thousand dollars or more but less than twenty thousand
dollars”), with Ch. 373, sec. 1, § 18-4-401(2)(f), 2013 Colo. Sess. Laws 2195, 2196
(defining theft as a “class 6 felony if the value of the thing involved is two
thousand dollars or more but less than five thousand dollars”). Rather, the
amendment merely changed the classifications of theft, thereby resulting in
reduced presumptive sentencing ranges for theft crimes, including the crime at
issue here.
¶31 Second, in Boyd, we addressed a case in which the defendant had sought the
benefit of the amendatory legislation before her conviction was final. Boyd, ¶ 2,
387 P.3d at 756. We did not address the scenario before us today, in which a
defendant seeks the benefit of amendatory legislation after his or her conviction is
final.
¶32 For these reasons, we conclude that Cali is not entitled to the benefit of the
amendatory legislation here.
C. Ineffective Assistance of Counsel
¶33 Cali alternatively asserts that even if he is not entitled to seek the benefit of
the amended theft statute at this stage of his case (i.e., after his judgment of
14
conviction was final), he has a meritorious claim that he was denied the effective
assistance of appellate counsel when counsel failed to request the benefit of the
amended theft statute in the course of Cali’s direct appeal. Although Cali concedes
that he did not raise this argument in his pro se postconviction motion, he argues
that his motion should be broadly construed so as to encompass such a claim. We
again are unpersuaded.
¶34 “Pleadings 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.” Jones v. Williams, 2019 CO 61, ¶ 5, 443 P.3d 56, 58.
It is not this court’s role, however, to rewrite a pro se litigant’s pleadings. See
Goodwin v. Iowa Dist. Court, 936 N.W.2d 634, 643 n.2 (Iowa 2019). Nor may we act
as an advocate for a pro se litigant. Id.; see also Burghart v. Corr. Corp. of Am.,
224 P.3d 1278, 1280–81 (Okla. Civ. App. 2009) (“This liberal construction of pro se
pleadings does not, however, require the court to act as the pro se party’s
advocate.”). Accordingly, 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. See DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996).
¶35 Here, Cali’s petition for postconviction relief asserted (1) a violation of
double jeopardy when the trial court instructed the jury on both theft and theft by
15
receiving based on the same underlying conduct; (2) an inadequate advisement
regarding his right to testify; and (3) the existence of a substantial change in the
law that, had it been applied in his case, would have reduced the level of felony
and presumptive sentence for his conduct. Construing these claims broadly, as
we must, we cannot say that Cali raised an ineffective assistance of counsel claim
in his petition.
¶36 Accordingly, we will not consider such a claim for the first time in this court.
III. Conclusion
¶37 Because Cali’s conviction became final before he first requested the
application of the amended theft statute to his case, he was not entitled to receive
the benefit of that amendatory legislation, even though the amendment went into
effect during the pendency of his direct appeal. Moreover, because Cali did not
raise a claim of ineffective assistance of appellate counsel in his postconviction
motion in the district court, such a claim is not properly before us.
¶38 For these reasons, we reverse the judgment of the division below.
16
People v. Cali
Combined Opinion