CO Code § 18-1-410 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1 - Provisions Applicable to Offenses Generally|Part 4 - Rights of Defendant|§ 18-1-410. Postconviction Remedy

  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. 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:   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;    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;    That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;    That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;    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 of the conviction or sentence in the interest of justice;      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. (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.    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.       Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or    That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release. (1.5) An application for postconviction review in a class 1 felony case where a sentence of death has been imposed shall be limited to claims of newly discovered evidence and ineffective assistance of counsel; except that, for any sentence of death imposed on or after the date upon which the Colorado supreme court adopts rules implementing the unitary system of review established by part 2 of article 12 of title 16, C.R.S., any application for postconviction review in such case shall be governed by the provisions of part 2 of article 12 of title 16, C.R.S.         Except as otherwise required by paragraph (b) of this subsection (2), procedures to be followed in implementation of the right to postconviction remedy shall be as prescribed by rule of the supreme court of the state of Colorado.    In any class 1 felony case where a sentence of death has been imposed, the district court shall expeditiously consider an application for postconviction remedy. It is the general assembly's intent that the district court give priority to cases in which a sentence of death has been imposed.         Except as otherwise provided in paragraph (b) of this subsection (3), an appeal of any order by the district court granting or denying postconviction relief in a case in which a sentence of death has been imposed shall be to the Colorado supreme court as provided by section 13-4-102 (1)(h), C.R.S. The procedures to be followed in the implementation of such review shall be in accordance with any rules adopted by the Colorado supreme court in response to the legislative intent expressed in section 16-12-101.5 (1), C.R.S.    In any class 1 felony case in which a sentence of death is imposed on or after the date upon which the Colorado supreme court adopts rules implementing the unitary system of review established under part 2 of article 12 of title 16, C.R.S., the procedures for appealing any order by the district court granting or denying postconviction relief and review by the Colorado supreme court of such order shall be governed by the provisions of part 2 of article 12 of title 16, C.R.S., and by such rules adopted by the supreme court.        History. Source: L. 71: R&RE, p. 402, § 1. C.R.S. 1963: § 40-1-510 . L. 73: P. 533, § 2. L. 75: (1)(f) amended, p. 211, § 28, effective July 16. L. 94: IP(1) and (2) amended and (1.5) and (3) added, p. 1474, § 2, effective July 1. L. 97: (1.5) and (3) amended, p. 1583, § 5, effective June 4.    Cross references:   For limitations on collateral attacks, see § 16-5-402 ; for similar provisions concerning postconviction remedies, see Crim. P. 35.   ANNOTATION   Law reviews. For comment on People v. Herrera (183 Colo. 155 , 516 P.2d 626 (1973)), see 46 U. Colo. L. Rev. 311 (1974); for article, “Crim. P. 35(c): Colorado Law Regarding Postconviction Relief”, see 22 Colo. Law. 729 (1993).   Interests of justice control. Unless otherwise required in the interests of justice, any grounds for postconviction relief which have been fully and finally litigated should not be relitigated. Morse v. People, 180 Colo. 49 , 501 P.2d 1328 (1972).   Proceedings where relief applicable. It is apparent on the federal constitutional level and on the state level, both as a matter of constitutional policy as expressed by the supreme court and of legislative policy, that criminal safeguards attach regardless of the formal designation of a proceeding if the proceeding substantively involves incarceration or other criminal sanctions. Mora v. District Court, 177 Colo. 381 , 494 P.2d 596 (1972).   Relief granted where after-discovered evidence would render conviction uncertain. This section shows a legislative intent that in situations where it cannot be said with certainty that the jury would have convicted the defendant had it known the after-discovered evidence and where there is a possibility of perjury, at least for alleged crimes committed after July 1, 1972, postconviction relief may be granted. People v. Armstead, 179 Colo. 387 , 501 P.2d 472 (1972).   The general assembly intended subsection (1)(f) to confer a right of review of sentences, to the end that sentences might be equalized in light of changes in the Colorado criminal laws. People v. Herrera, 183 Colo. 155 , 516 P.2d 626 (1973).   But subsection (1)(f) invades the governor's exclusive power to grant a commutation after conviction as provided in § 7 of art. IV, Colo. Const., and therefore violates the doctrine of separation of powers embodied in art. III, Colo. Const. People v. Herrera, 183 Colo. 155 , 516 P.2d 626 (1973); People v. Johnson, 185 Colo. 285 , 523 P.2d 1403 (1974); People v. Rupert, 185 Colo. 288 , 523 P.2d 1406 (1974); People v. Arellano, 185 Colo. 280 , 524 P.2d 305 (1974); People v. Chavez, 185 Colo. 310 , 524 P.2d 307 (1974); People v. Simms, 186 Colo. 447 , 528 P.2d 228 (1974).   Relief from a sentence validly imposed may not be obtained through the judiciary after final conviction. People v. Rupert, 185 Colo. 288 , 523 P.2d 1406 (1974).   After conviction and exhaustion of appellate remedies, relief from a validly imposed criminal sentence may not be obtained through the judiciary. People v. Arellano, 185 Colo. 280 , 524 P.2d 305 (1974).   Trial court was without jurisdiction to grant postconviction relief from sentence imposed upon conviction for second-degree murder which became final on December 11, 1968. People v. Fulmer, 185 Colo. 366 , 524 P.2d 606 (1974).   Because once a criminal conviction has become final, any remedy lies in the executive department by way of commutation. People v. Arellano, 185 Colo. 280 , 524 P.2d 305 (1974); People v. Chavez, 185 Colo. 310 , 524 P.2d 307 (1974).   Where the governor has commuted defendant's sentence, the supreme court lacks jurisdiction to reduce or in any way alter or amend the sentence as commuted. People v. Simms, 186 Colo. 447 , 528 P.2d 228 (1974).   Where appellant filed his motion for postconviction remedy before his conviction had become final, the court had jurisdiction to entertain his motion for relief. People v. Thomas, 185 Colo. 395 , 525 P.2d 1136 (1974).   Because a defendant whose conviction has not become final is entitled to the benefits of amendatory legislation mitigating the penalty for the crime of which he was convicted. McClure v. District Court, 187 Colo. 359 , 532 P.2d 340 (1975); People v. Marlott, 191 Colo. 304 , 552 P.2d 491 (1976); People v. Macias, 631 P.2d 584 (Colo. 1981).   A defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes when the relief is sought before finality has attached to the judgment of conviction. Shook v. District Court, 188 Colo. 76 , 533 P.2d 41 (1975); Litsey v. District Court, 193 Colo. 341 , 565 P.2d 1343 (1977).   A defendant is entitled to the benefits of amendatory legislation mitigating the penalty for a crime where a defendant seeks relief from the sentence imposed before his conviction has become final. Naranjo v. District Court, 189 Colo. 21 , 536 P.2d 36 (1975).   Sentence imposed by the trial court which did not afford the defendant the benefit of amendatory legislation was not a valid and legal sentence. As such, it was subject to correction by the trial court at any time. People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977).   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. People v. Cali, 2020 CO 20, 459 P.3d 516.   Where criminal statute declared unconstitutional. Where, within 120 days of imposition of sentence, the criminal statute underlying a conviction for disorderly conduct was declared unconstitutional, the court had jurisdiction to set aside the convictions and sentences and dismiss the charged offenses, even though the sentences for disorderly conduct were to be served concurrently with the sentences imposed for another offense for which defendants were properly convicted. People v. Henderson, 40 Colo. App. 147, 574 P.2d 872 (1977).   Subsection (1)(f) provides for the application of changed legal standards where there is a change in law mitigating penalties for crimes, and the application of the changed legal standards is mandatory. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974).   Subsection (1)(f) is especially appropriate where a change in the law intervenes before conviction is had and sentence is imposed. People v. Thomas, 185 Colo. 395 , 525 P.2d 1136 (1974).   Remedy not applicable to § 42-4-1202 . While this section provides for consideration of a significant change in the law upon review of a conviction of a crime, such review is not afforded to one who fails to comply with the implied consent statute, former § (3)(e) , because no crime is involved there. Noe v. Dolan, 197 Colo. 32 , 589 P.2d 483 (1979).   Repeal of § 16-11-101 (1)(d) effective three months after sentencing. Where the effective date (July 1, 1979) of the repeal of § 16-11-101 (1)(d) was more than three months after the defendant was sentenced under its provisions, the repeal did not entitle the defendant to relief under subsection (1)(f)(I). People v. Steelman, 200 Colo. 177 , 613 P.2d 334 (1980).   Subsection (1)(f)(I) of this section permits the provisions of art. XVIII, § 16, of the state constitution (known as amendment 64), which decriminalized possession of one ounce or less of marijuana for personal use, to apply retroactively to defendants whose convictions were subject to appeal or postconviction motion on the effective date of the amendment, December 10, 2012. People v. Russell, 2014 COA 21 M, 396 P.3d 71, aff'd, 2017 CO 3, 387 P.3d 750.   Therefore, defendant's convictions for possession of less than one ounce of marijuana and possession of marijuana concentrate must be vacated. People v. Russell, 2014 COA 21 M, 396 P.3d 71, aff'd, 2017 CO 3, 387 P.3d 750, aff'd, 2017 CO 3, 387 P.3d 750.   A conviction for possession of one ounce or less of marijuana on appeal when art. XVIII, § 16(3), of the state constitution passed must be vacated. Article XVIII, § 16(3), of the state constitution applies retroactively to a conviction for possession of less than one ounce that was pending on appeal when that constitutional provision passed. The ameliorating effect of subsection (1)(f) applies to significant changes in the law adopted in the constitution. People v. Boyd, 2015 COA 109 , 395 P.3d 1128, aff'd, 2017 CO 2, 387 P.3d 755.   When motions under subsection (1)(f) to be filed. Motions filed pursuant to Crim. P. 35(b) and subsection (1)(f) may be filed at any time before the conviction becomes final. Litsey v. District Court, 193 Colo. 341 , 565 P.2d 1343 (1977).   A person may not seek postconviction relief based on a “significant change in the law” unless (1) the person has filed a timely appeal and (2) an appellate court has not affirmed the person's judgment of conviction. People v. Hamm, 2019 COA 90 , 461 P.3d 559.   No modification where old crimes repealed and replaced by new ones. It was clearly not the legislative intent behind this section to permit the modification of sentences where the earlier crimes have been subsequently repealed and substantially new crimes have been enacted in their place. People v. Marlott, 191 Colo. 304 , 552 P.2d 491 (1976).   It was not the legislative intent behind this section to permit the modification of sentences where the earlier crimes have been subsequently repealed and substantially new crimes have been enacted in their place. People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978).   Relitigation of a claim based on a change of law is specifically prohibited in a postconviction proceeding once a judgment of conviction has been affirmed upon appeal. People v. Banks, 924 P.2d 1161 (Colo. App. 1996).   Effect of § 16-5-402 . Even though the Colorado criminal code grants a convicted offender the right to seek collateral review of a constitutionally flawed conviction, the effect of § 16-5-402 (1) is to immediately cut off this right for all persons whose convictions antedate the statute by an interval of time in excess of the statutory limitation period. Such retrospective elimination of an existing statutory right, which the general assembly itself has recognized as a matter of “substantive right” included “within the concept of due process of law”, cannot be squared with the constitutional prohibition against retrospectively depriving a person of a statutory right without due process of law. People v. Germany, 674 P.2d 345 (Colo. 1983) (decided under former law).   Motion properly denied without evidentiary hearing where only issues of law raised. Where motion for postconviction relief of sentence reduction, alleging that the penalty for the degree of burglary of which defendant had been convicted had been reduced from five to 20 years to one to 10 years confinement in the state penitentiary, raised only issues of law, it was properly denied without an evidentiary hearing. People v. Martinez, 184 Colo. 155 , 524 P.2d 73 (1974).   No error occurred in manner hearing conducted. Where court had no jurisdiction to deal with motion for postconviction relief, no error occurred in the manner in which the hearing on such motion was conducted. People v. Mankowsky, 187 Colo. 145 , 529 P.2d 314 (1974).   When final conviction becomes basis for imposition of life sentence pursuant to the provisions of the habitual criminal statute, the supreme court has jurisdiction to determine whether that conviction may validly be considered under the terms of the recidivist statute. People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978).   Defendant convicted of theft by receiving does not receive ameliorative benefit when retroactive application of amendatory legislation is clearly not intended by its own terms. Legislation that amended theft by receipt statute to provide that amendment shall apply to acts committed on or after July 1, 1985 makes it clear that amendatory legislation is to apply prospectively only. People v. McCoy, 764 P.2d 1171 (Colo. 1988).   If a statute is silent as to whether it applies only prospectively, a defendant may seek retroactive application if defendant benefits from a significant change in the law. Defendant who committed and was charged with theft prior to the statutory amendment but was convicted and sentenced after the amendment should receive the benefit of the amendment to the theft statute when the amendment does not explicitly state that it is either retroactive or prospective. People v. Trujillo, 2018 COA 12 , 433 P.3d 78.   Five-year grace period from the effective date of § 16-5-402 on July 1, 1984, was implied for person seeking to challenge a constitutionally flawed conviction under this section, where conviction predated the length of time specified as a limitation period in § 16-5-402 . People v. Fagerholm, 768 P.2d 689 (Colo. 1989).   Time limitations in § 16-5-402 are supplementary to and not in conflict with § 18-1-410 . People v. Wiedemer, 852 P.2d 424 (Colo. 1993).   Statute as basis for jurisdiction. See People v. White, 623 P.2d 868 (Colo. 1981).   Irreconcilable conflict exists between this section and § 16-5-402 , and § 16-5-402 prevails as it is the later enacted statute. People v. Heitzman, 852 P.2d 443 (Colo. 1993).   Time bar in § 16-5-402 applies where defendant's motion is a collateral attack and is a request for post-conviction relief under this section. People v. Vigil, 983 P.2d 805 (Colo. App. 1999).   For purposes of postconviction review and collateral attack limitations, a “conviction” occurs when the trial court enters judgment and sentence is imposed, if there is no appeal; if an appeal is pursued, then the conviction is not final until the appellate process is exhausted. People v. Hampton, 857 P.2d 441 (Colo. App. 1992), aff'd, 876 P.2d 1236 (Colo. 1994).   Trial court erred in granting defense counsel's motion to dismiss defendant's application for postconviction relief. Although trial counsel is generally accepted to be the “captain of the ship” with regard to tactics and matters of trial strategy, every person convicted of a crime has a statutory right to make application for postconviction relief on any of a number of designated grounds. Dooly v. People, 2013 CO 34, 302 P.3d 259.   Applied in People v. McClure, 190 Colo. 250 , 545 P.2d 1038 (1976); Salas v. District Court, 190 Colo. 447 , 548 P.2d 605 (1976); People v. Lobato, 192 Colo. 357 , 559 P.2d 224 (1977); People v. Orr, 39 Colo. App. 289, 566 P.2d 1361 (1977); Tacorante v. People, 624 P.2d 1324 (Colo. 1981).