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 

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. 
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 

¶ 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 
2 

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.” 
3 

¶ 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 

 

1 Cali’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. 
4 

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. 
5 

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 decriminalize 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). 
6 

¶ 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 
7 

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), 
8 

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),” 
9 

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 
10 

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. 
11 

¶ 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. 
12 

¶ 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. 
13 

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 
14 

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 
15 

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. 
16 

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 
17 

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 
18 

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 
19 

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. 
20 

¶ 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 
21 

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 
22 

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 
23 

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.