dissenting.
Because I believe the majority confounds the question of jurisdiction to impose sentence with the legality of the sentence actually imposed, and because I fear the implications of its rationale extend far beyond the limitation on collateral attacks at issue here, I respectfully dissent.
In essence, the majority's opinion extends the court's rationale in Delgado v. People, 105 P.3d 634 (Colo.2005), beyond the context of discretionary sentence reduction, see Crim. P. 85(b), and applies it as well to a "conviction," for purposes of limiting collateral attacks, see § 16-5-402, C.R.S. (2007). In Delgado, this court interpreted Crim. P. 85(b)'s 120-day limitation on a sentencing court's authority to discretionarily reduce a criminal sentence to be triggered only by "a legally imposed criminal sentence," meaning that the 120-day limitation does not begin to run from the imposition of a sentence later found to be illegal. Although I criticized the court's imputation of this additional requirement of legality at that time, see Delgado, 105 P.3d at 638-39 (Coats, J., dissenting), the holding in Delgado was at least limited to an interpretation of this court's own rule defining the point at which a sentence becomes final and the discretion to reduce it therefore passes from the judicial to the executive branch of government. See id. at 638; see also People v. Herrera, 183 Colo. 155, 161-62, 516 P.2d 626, 628-29 (1973).
While the argument advanced by the majority today is not entirely clear to me, the majority does clearly conclude that a "convietion" must include the defendant's sentence as one of its component parts, and therefore it cannot be a valid and final "determination of guilt and sentencing," or a valid and final "conviction," unless that sentence is also legal. By the majority's reasoning, if a defendant ultimately succeeds in demonstrating that his sentence is illegal, his guilty verdict and initial sentence never amounted to a "conviction," and therefore failed to set in motion any time limitation on his right to collaterally attack his conviction. By understanding the term "conviction" to include only guilty pleas, or other guilty verdicts, for which a valid and final sentence is imposed, the majority not only ignores the clear purpose of section 16-5-402, but also draws into question the validity of virtually every judicial act contingent only upon a final judgment of conviction.
The majority trie to limit the consequences of its rationale by suggesting that the defendant's right to collaterally attack his judgment of conviction remains restricted, even after today's holding, to matters sufficiently affected by or related to the illegality of his sentence. See maj. op. at 50. If, however, the statute of limitations on collateral attacks does not begin to run until sometime after the entry of a valid sentence, as the majority holds, it would seem clear that no collateral attack on a defendant's conviction, regardless of its nature, could be sooner time-barred. The majority's interpretation therefore simply flies in the face of the expressed intent of the statute by permitting defendants to litigate extremely stale claims, for reasons other than those falling within the statute's expressly enumerated exceptions.
Similarly, without any explanation how it could be the case, the majority purports to restrict its rationale concerning convictions solely to the statute of limitations on collateral attacks. See maj. op. at 50 n. 2. Unless a "conviction" in that context refers to a "judgment of conviction," as defined for criminal procedure purposes at Crim. P. 32(b)(8), it is difficult to understand why a "conviction" necessarily includes a sentence at all. In any event, if the reference to "sentence" in Crim. P. 35(b) implies only a legally imposed sentence, and that same implication applies to a "conviction" for purposes of the statute of limitations on collateral attacks, it is far from clear why it should not apply equally to the *52"sentence" component of a judgment of conviction generally.
If the same reasoning applies, even the period for filing a notice of appeal can begin to run only upon the imposition of a valid sentence. And if the illegality of a sentence initially imposed prevents the defendant's entire judgment of conviction from becoming final, any appellate court reviewing such an un-final conviction presumably lacks jurisdiction to do so, rendering its resolution of the defendant's initial assignments of error a nullity, permitting their relitigation by a court with jurisdiction.
There is of course nothing in the term "conviction" to suggest that it was not intended to apply equally to all guilty verdicts upon which a sentence is imposed, whether that sentence turns out to be legal or not. Quite the contrary, when the term "conviction" is used in reference to a review of its validity, it seems painfully obvious that the detection of existing error is the object of the review, and therefore the finality of a convietion cannot be conditioned on its validity, or legality. Whether intended by the majority or not, its sweeping pronouncement-that despite containing all of the components required by Crim. P. 32(b)(8), what otherwise appears to be a judgment of conviction is not a "conviction" at all unless or until it includes a "valid" sentence-has the necessary effect of retroactively depriving any higher court of jurisdiction to review an illegal sentence or, for that matter, a judgment of conviction containing an illegal sentence.
The majority's rationale seems to me to be not only cireular and problematic, but wholly unnecessary as well. Should the correction of an illegal sentence actually make apparent or meaningful a ground for relief, only sometime after the three-year limitation period of the statute has run, its "good cause" provision provides an adequate and appropriate basis for nevertheless permitting further challenge. Because that would not appear to be the case where, as here, the defendant must be aware, at least by the time he challenges his sentence as illegal, that his prior counsel has failed to object to an illegal sentence, I respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.