dissenting:
Although I agree with substantially all of Justice Vollack’s dissent, I v^te separately to emphasize that the posture of this case does not require us to address the constitutionality of section 16-5-402(3), 8A C.R.S. (1986), or to remand for a further hearing.
The majority acknowledges that when possible, a statute is to be construed to avoid questions concerning the statute’s constitutional validity. Maj. op. at 883 (citing Perry Park Water & Sanitation Dist. v. Cordillera Corp., 818 P.2d 728, 732 (Colo.1991); People v. Lybarger, 700 P.2d 910, 915 (Colo.1985)). The majority holds that the only reasonable interpretation of section 16-5-402(3) is that it is a “draconian” bar to post-conviction relief that “for all practical purposes eliminates the ability of a person who has appealed a conviction to challenge its constitutionality even though no court has considered the constitutional issue raised.” Maj. op. at 884.
I believe that the majority’s interpretation is overbroad and unnecessarily results in a holding that section 16-5-402(3) is unconstitutional. In my view, a reasonable construction of Colorado’s statutes relating to post-conviction relief, and the facts in this case, provide a sound basis for not addressing the constitutionality of section 16-5-402(3) and denying a further hearing. Therefore, I dissent.
I
The General Assembly originally provided for post-conviction relief by enacting section 18-1-410, 8B C.R.S. (1986), which states in pertinent part:
Postconviction remedy. (1) Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make applications for postconviction review. An application for postconviction review must, in good faith, allege one or more of the following grounds to justify a hearing thereon:
(a) That the conviction was obtained or sentence imposed in violation of the constitution or laws of the United States or the constitution or laws of this state;
(b) That the applicant was convicted under a statute that is in violation of the constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected;
(c) That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;
(d) That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
(e) That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned of by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation *889of the conviction or sentence in the interest of justice;
(f)(1) 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.
To avoid litigation of stale claims, and to prevent relitigation of issues that were, or should have been resolved in defendant’s initial appeal, the General Assembly subsequently enacted section 16-5-402(3), 8A C.R.S. (1986), which provides:
(3) 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 by 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.
The intent of the General Assembly is clear when the two post-conviction-remedy statutes are construed together.1 Post-conviction remedies that are available in a defendant’s initial appeal are barred, but post-conviction remedies that are not reasonably available in an initial appeal can be asserted within the limitations imposed by section 16--5-402.
This interpretation of the statute allows section 16-5-402 to be construed in harmony with section 18-1-410. See Riley v. People, 828 P.2d 254, 257 (Colo.1992) (stating statutes should be construed in harmony with each other). In addition, the construction avoids questions of constitutional invalidity. See People v. Loomis, 698 P.2d 1320 (Colo.1985) (holding that if possible, a statute should be construed in such a way as to find in constitutional).
The General Assembly first enacted section 18-1-410 to provide a mechanism for defendants to challenge allegedly unconstitutional convictions. Subsequently, the General Assembly recognized the importance of upholding the finality of judgments and enacted limitations on collateral relief. See maj. op. at 884; People v. Wiedemer, 852 P.2d 424, 436 (Colo.1993). . In my view, subsection (3) should be construed in light of the General Assembly’s intent to facilitate the goal of upholding the finality of judgments. See, e.g., Homestake Enters., Inc. v. Oliver, 817 P.2d 979, 981-82 (Colo.1991). In addition, the subsection should be interpreted in order to give it force and effect. Saxton v. Perry, 47 Colo. 263,107 P. 281 (1910). Thus, the most reasonable construction of section 16-5-402(3) is that it was enacted to uphold the finality of a judgment by requiring a defendant to raise post-conviction challenges in his initial appeal.
II
The facts in this case demonstrate a pattern of conduct and issues that should have been addressed in Thomas’ initial appeal. The defendant has been convicted of a number of crimes premised on the sexual assault of children. In Thomas v. People, 803 P.2d 144 (Colo.1990), on direct review, we reversed the court of appeals decision in People v. Thomas, 770 P.2d 1324 (Colo.App.1988), and ordered reinstatement of Thomas’ conviction for sexual assault on a neighbor’s child and on his own daughter.
Subsequently, Thomas attempted to collaterally attack his conviction. Thomas peti*890tioned for habeas corpus in the federal court. The petition was denied in both the trial court and on appeal. Thomas v. Gunter, 962 F.2d 1477 (10th Cir.1992). He also has petitioned for post-conviction relief pursuant to Crim.P. 35(c) on a claim of ineffective assistance of counsel. The claim of ineffective assistance of counsel is predicated on defense counsel’s failure to have the defendant’s earlier conviction of sexual assault on another child suppressed.2 Thomas did not raise the claim of ineffective assistance of counsel in his initial appeal. The Crim.P. 35(c) motion based on ineffective assistance of counsel was denied on the merits and because of the time limitations imposed by section 16-5-402, 8A C.R.S. (1986). This appeal followed. The record reflects that the defendant has had numerous lawyers — some were discharged, one withdrew, and one continues to represent the defendant. The lawyer that tried the sexual assault case before the court was not the same lawyer that handled the defendant’s appeal.3 In my view, Thomas should have raised the ineffective assistance of counsel claim in his initial appeal if grounds existed for such a claim when he appealed.
I would not grant further review and do not agree that section 16-5-402(3) is unconstitutional.
Accordingly, I dissent.
I am authorized to say that Chief Justice ROVIRA and Justice VOLLACK join in this dissent.
Justice VOLLACKdissenting:
The majority reverses the judgment of the district court and remands the case with directions to conduct an evidentiary hearing on Mack Willie Thomas’ Rule 35(c) claim of ineffective assistance of counsel. The majority holds that section 16-5-402(3), 8A C.R.S. (1986), is unconstitutional and that the trial judge’s denial of the defendant’s request for a hearing on his 35(e) motion is not supported by the evidence.
I do not believe that it is necessary to reach the question of the constitutionality of section 16-5-402(3). The trial judge denied Thomas’ Rule 35(c) claim on alternative grounds, one of which was based on the application of the statute. The other ground was based on conclusions the district court reached after it followed a well-established approach considering the merits of the Rule 35(c) motion. Because I believe that the district court correctly decided the issue on the second alternative ground, and because I believe the majority fails to enunciate a legal standard to evaluate the district court’s actions, I dissent.
I.
The district court denied Thomas’ Rule 35(c) motion without a hearing on two grounds: that section 16-5-402(3) prohibited consideration of the motion, and that Thomas’ motion was without merit. The majority summarily dismisses the district court’s holding that Thomas’ motion for postconviction relief was without merit. The district court held that the failure of Thomas’ trial attorney to move to exclude the prior conviction constituted a strategic decision. The majority disagrees, deciding that the record does not support this conclusion. Maj. op. at 887. The majority’s cursory review of Thomas’ assertions and its conclusory resolution that Thomas is entitled to a hearing is not convincing.
Under Crim.P. 35(c)(3), a trial court is not required to hold a hearing on a motion for postconviction relief if the motion, files, and record of the case “clearly establish that the allegations presented in the defendant’s motion are without merit and do not warrant *891postconviction relief.” White v. District Court, 766 P.2d 632, 634 (Colo.1988) (quoting People v. Trujillo, 190 Colo. 497, 499, 549 P.2d 1312, 1313 (1976)).
After concluding in two pages that section 16-5-402(3) barred Thomas’ postconviction relief, the district court, ruling on the second, alternative ground, went on to devote eight pages of its twelve-page, single-spaced ruling to the merits of Thomas’ 35(e) claims. After citing the applicable law, the district court noted that Thomas relied primarily on Cummings v. People, 785 P.2d 920 (Colo.1990), to support his ineffective assistance of counsel claim. The issue in Cummings was whether the trial counsel’s erroneous decision to collaterally attack the prior conviction at the close of the prosecution’s case rather than before the trial began constituted ineffective assistance of counsel. We remanded that case to the trial court for further evaluation because the record was incomplete.
In denying Thomas’ motion, the district court reasoned that Thomas’ reliance on Cummings was misplaced because that case raised a different issue, i.e., when to attack the prior conviction, in contrast to a decision not to attack the prior conviction at all. The district court concluded that the decision of Thomas’ attorney not to attack the conviction was a strategic decision, within the exclusive province of the lawyer. The district court ruled that
it is clear that trial counsel was aware of the infirmities in the prior conviction. With this knowledge and after discussing it with the defendant, counsel made the strategical decision not to collaterally attack the defendant’s prior conviction.... [T]he defendant’s disagreement as to whether counsel made the appropriate strategical decision does not constitute ineffective assistance of counsel.
The district court also relied on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for its decision that Thomas’ claims did not have merit. Under Strickland, a defendant making an ineffective assistance of counsel claim must not only show that counsel’s performance fell below an objective standard of reasonableness, but also that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different,” that is, the defendant would have been found not guilty. Id. at 694, 104 S.Ct. at 2068. In denying Thomas’ motion, the trial judge concluded that, even if the prior conviction had been attacked and suppressed and Thomas had testified, he still would have been convicted.
The majority concludes that Thomas is entitled to an evidentiary hearing because Thomas asserts that he can prove that “his attorney’s failure to move to suppress the prior conviction was below the requisite standard of care of a criminal attorney” in the community.” Maj. op. at 888. However, the majority never mentions, much less applies, the second part of the Strickland test, that is, whether Thomas can show that, but for his attorney’s alleged error, he would have been found not guilty. The district court’s ruling on the motion concluded, and I agree, that Thomas cannot show that the trial court would have prohibited the prosecution’s use of his prior conviction for sexual assault on a child and that the verdict would have been different had he testified.
II.
The majority does not enunciate a legal standard for reviewing the district court’s decision that Thomas’ Rule 35(c) motion was without merit and thus not deserving of a hearing. The majority does not explicitly cite the legal standard it applies. Instead, the opinion states: “In view of Thomas’ aver-ments and the totality of the circumstances surrounding both criminal proceedings, we conclude that the record does not support such conclusion.” Maj. op. at 887.
We have never explicitly enunciated the standard by which we will review a district court’s decision on a defendant’s Rule 35(c) motion. However, jurisdictions that have explicitly decided the standard of review for post-conviction relief resembling Rule 35(c) have chosen to employ a standard that does not disturb a district court’s ruling unless there was an abuse of discretion or unless the ruling was clearly erroneous. See, e.g., Shockley v. State, 565 A.2d 1373, 1377 (Del.1989) (“[I]n reviewing a denial of [ineffective *892assistance of counsel claim], our standard of review is abuse of discretion.”); State v. Moss, 240 Neb. 21, 480 N.W.2d 198, 202 (1992) (In ruling on an ineffective assistance of counsel claim, “the trial court’s findings will be upheld unless such findings are clearly erroneous.”); Wolfe v. State, 117 Idaho 645, 791 P.2d 26, 28 (App.1990) (In post-conviction relief proceedings, “[a] finding by the trial court that the applicant has not met his burden of proof is entitled to great weight and will not be disturbed on appeal unless it is clearly erroneous.”); Pelton v. State, 831 S.W.2d 651, 653 (Mo.App.1992) (“[T]he standard of review of a denial of [post-conviction relief] is limited to a determination of whether the findings and conclusions of the hearing court are clearly erroneous.”); Halverson v. State, 372 N.W.2d 463, 467 (S.D.1985) (“Our standard of review in [ineffective assistance of counsel cases] is to hold that the findings of fact, conclusions of law, and order of the court hearing the petition are dispositive unless clearly erroneous.”).
The district court in this case devoted most of its twelve-page, single-spaced opinion to the merits of Thomas’ 35(c) claims. The court’s analysis of each of Thomas’ contentions is thorough and well reasoned. As it makes conclusions of fact and law, the court cites the appropriate case law and convincingly applies the law to the facts of the ease. The district court’s application of the test of Strickland to the ineffective assistance of counsel claim is accurate, and its conclusions are supported by the record.
I believe the district court, in its application of Strickland and other ease law to the merits of the case, appropriately denied Thomas’ Rule 35(c) motion. By no interpretation could one conclude that the court abused its discretion or issued a ruling that was clearly erroneous.
III.
I conclude that the district court acted appropriately in denying Thomas’ Rule 35(c) motion on the merits, making it unnecessary for this court to reach the question of the constitutionality of section 16-5-402(3). I dissent.
I am authorized to say that Chief Justice ROVTRA and Justice ERICKSON join in this dissent.
. In People v. Heitzman, 852 P.2d 443, 447 (Colo.1993), we stated: "We are also satisfied that subsection (3) has no application to this proceeding. The defendant’s conviction was never appealed and therefore was never sustained by a court of appellate jurisdiction.... Because the defendant has not asserted that he is affected by the alleged constitutional defect of subsection (3), we conclude that he lacks standing to raise this argument as a challenge to the constitutionality of section 16-5-402.” Despite this holding, this court addressed whether 18-1-410(1) and 16-5-402(3) are in irreconcilable conflict. The brief, facial analysis of the two statutes only establishes that section 18-1-410 was not applicable in that case because any conflict between section 18 — 1— 410 and section 16-5-402 would result in section 16-5-402 being applied. Any further extension of this dicta would be in direct contravention to the holding in Heitzman that section (3) is sever-able from the rest of the statute and was not applicable in that case.
. The defendant's earlier conviction was set aside and a new trial ordered four years after Thomas was convicted of the crimes that are the subject of this Crim.P. 35(c) motion. People v. Thomas, No. 86CA1007 (Colo.App.1989) (not selected for official publication). The district attorney elected not to retry the case involving the earlier conviction.
. In its amicus brief, the Colorado State Public Defender raises the issue of how a lawyer who is both trial and appellate counsel for an individual can reasonably raise the issue of his own ineffectiveness on appeal. In my view, this is best addressed under the rubric of whether the ineffective assistance of counsel claim was reasonably available on appeal. The amicus' concern, however, does not affect this case because Thomas had different counsel at trial and on appeal.