dissenting.
I respectfully dissent.
In my opinion the majority misperceives the nature and function of post-conviction remedies for constitutionally defective convictions. See Crim.P. 35(c); ABA, Standards for Criminal Justice, Standard § 22-1.1, et seq. (2d ed. 1980); and L. Yack-le, Postconviction Remedies (1981). Whether an individual is eligible for post-conviction relief is a question of substantive criminal law. Part of that substantive law is found in the U.S. Constitution. The remainder is determined by state constitutional law, by statute, by rules of court, or by common-law principles. Whether an individual, otherwise eligible for postconviction relief may be denied a remedy, is generally an equitable question.
Rhinehart alleges several of his due process rights were violated during the municipal ordinance prosecution. I address only one: his right to have Denver prove the charges beyond a reasonable doubt. He submitted a jury instruction on proof beyond a reasonable doubt, but it was rejected by the trial court. Instead, the jury was instructed that the burden of proof was by a preponderance of the the evidence. Although, on appeal, his conviction was affirmed without written opinion, see Rhinehart v. City & County of Denver, 133 Colo. 137, 292 P.2d 345 (1956), the briefs filed in that appeal show that this issue was properly presented for review.
Crim.P. 35(c)(2) provides that every person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the grounds contained therein. Relief under Crim.P. 35(c) is in fact an equitable concept. People v. Turman, 659 P.2d 1368 (Colo.1983). Although Rhinehart may not be entitled to a per se right to postconviction relief based on “legal need” as outlined in IV ABA, Standards for Criminal Justice Standard 22-2.4(c) (2d ed. 1980) (Histories & Commentaries), he nevertheless is entitled to a determination of whether, under all of the attendant circumstances, this patently void judgment should be set aside. Cf. United States v. Cariola, 323 F.2d 180 (3rd Cir.1963).
Here, Denver concedes that Rhinehart’s trials did not comport with the due process requirements specified in decisions beginning with Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958). However, it argues that Merris is not retroactively applicable, and therefore, his attack on his convictions are not within § 16-5-402(3), *951C.R.S. (1986 Repl.Vol. 8A). I disagree. See Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); People v. Curtis, 681 P.2d 504 (Colo.1984).
In People v. Germany, 674 P.2d 345 (Colo.1983), the court noted the right in a criminal proceeding to have the prosecution establish guilt by proof beyond a reasonable doubt as an example of a “newly” announced constitutional rule that had been applied retroactively, citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), applied retroactively in Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972). Both In re Winship and Ivan were proceedings in juvenile matters treated as civil in the forum states. In effect, these cases treat the judgments of conviction as void in that the court was without jurisdiction to render a criminal judgment in a civil-type procedure.
In Canon City v. Merris, supra, it was held that when sanctions imposed for the violation of a municipal ordinance are penal in nature the defendant is entitled to all the state and federal rights accorded one in a criminal procedure. There is no dispute that the penalties imposed upon the defendant in this case were penal. Therefore, the question necessarily arises whether defendant is entitled to relief pursuant to § 18-1-410, C.R.S. (1986 RepLVol. 8B); § 16-5-402(3); Crim.P. 35(c).
A careful reading of defendant’s collateral attack on his conviction shows that it is within § 16-5-402(3), which provides:
“If the judgment of conviction to which any collateral attack is directed was sustained upon review by a court of appellate jurisdiction in the state where the judgment was entered, no collateral attack on such judgment shall be permitted whether commenced within or outside the time limitations set forth in subsection (1) of this section, unless said collateral attack is based upon an opinion of the court of last resort subsequently announced in the state where the judgment was entered, which opinion is given retroactive effect in a manner invalidating the conviction. ” (emphasis supplied)
Since, as noted above, the conviction at issue was affirmed on appeal to our supreme court, and Canon City v. Merris, supra, was announced after the conviction, this subsection of the statute is applicable. By its plain language, there is no statutory time limitation on a subsection (3) attack. Instead, the subsection bars all collateral attacks of affirmed convictions unless certain criteria are met: collateral attack must be based on an opinion of the court of last resort; that opinion must have been announced after the judgment of conviction was entered; and the announced opinion must be retroactively applicable in a manner invalidating the conviction. The conviction at issue here meets the above criteria.
The major purpose of the constitutional standard of proof beyond a reasonable doubt is to overcome an aspect of a criminal trial that substantially impairs the truth-finding function and is to be given complete retroactive effect. Ivan v. City of New York, supra (applying retroactively the rule of In re Winship). Therefore, the rule of Merris falls within the ambit of those entitled to full retroactive application.
Defendant, because of confusion between counsel and the trial court, did fail to present evidence at an initial hearing. However, in seeking reconsideration, defendant submitted an affidavit outlining diligent, extensive, continuous, and expensive efforts to obtain legal assistance to challenge the conviction. Further, defendant has alleged that the convictions have led to many acts of violence against himself and his church, including a fire bombing and a bloody assault on a 78-year-old member of the church, on its door step. Thus, in my view, the trial court’s refusal to consider this matter was an abuse of discretion. See L. Yackle, supra.
Further, I find there is no justification in denying defendant the right granted him by Crim.P. 35(c)(2) because of any alleged prejudice to the People. The reasons for this conclusion are as follows: 1) defendant did seek relief by timely appeal, 2) defendant has served the sentence imposed upon him and the People have no need or inter*952est in further prosecution, 3) the original conviction was in essence a void conviction because the trial court was without jurisdiction to impose a criminal sanction in a civil proceeding, 4) defendant expended continuous time and money seeking legal assistance to attack the conviction, and finally 5) the fundamental fairness of our legal system is best served by removal of such convictions from a defendant’s record. See L. Yackle, supra; IV ABA, Standards for Criminal Justice Standards 22-2.1 and 22-2.4 (2d ed. 1980) (Histories & Commentaries).
Therefore, the order of the superior court should be reversed and the cause should be remanded for rehearing, by an appropriate court pursuant to § 13-7-112(2), C.R.S. (1986 Cum.Supp.).