Peo v. Hudy

24CA0185 Peo v Hudy 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0185
Gunnison County District Court No. 00CR97
Honorable J. Steven Patrick, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Christopher C. Hudy,

Defendant-Appellee.

ORDER REVERSED

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Jessica J. Waggoner, District Attorney, Brannon Jordan, Deputy District
Attorney, Gunnison, Colorado, for Plaintiff-Appellant

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado; John
Kenneth Pineau, Boulder, Colorado, for Defendant-Appellee
¶1 The People appeal the postconviction court’s order granting

Christopher C. Hudy’s Crim. P. 35(c) petition to remove his

designation as a sexually violent predator (SVP). Because Hudy’s

SVP designation was previously challenged and upheld on direct

appeal, and because he was not entitled to be reassessed based on

a new SVP screening instrument, his Crim. P. 35(c) petition was

successive. We therefore reverse the postconviction court’s order.

I. Background

¶2 The division that considered Hudy’s direct appeal summarized

the underlying facts in this case as follows:

The victim testified that she was showering in
a college dormitory early one morning when
defendant entered the bathroom carrying a
blanket. Defendant was a person known to
the victim because she had previously rebuffed
his advances.

Defendant attacked the victim by covering her
head with the blanket. The victim was able to
free her head from the blanket as defendant
pushed her down into the tub. When the
victim screamed for help, defendant repeatedly
punched her in the head. Defendant covered
the victim’s mouth and snapped her neck back
and forth until she lost consciousness.

When the victim awoke, she discovered that
defendant was sitting on top of her and
inserting his finger into her vagina. The victim

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screamed for help, and defendant began
punching her again before fleeing from the
bathroom.

People v. Hudy, slip op. at 1 (Colo. App. No. 01CA1932, June 19,

2003) (not published pursuant to C.A.R. 35(f)) (Hudy I).

¶3 A jury convicted Hudy of first degree sexual assault, first

degree burglary, second degree assault, and three crime of violence

counts. People v. Hudy, slip op. at 1 (Colo. App. No. 04CA2210,

Jan. 26, 2006) (not published pursuant to C.A.R. 35(f)) (Hudy II).

The trial court sentenced him to concurrent sixteen-year terms in

the custody of the Department of Corrections (DOC) for the second

degree assault and first degree burglary convictions, to run

consecutively to an indeterminate term of sixteen years to life on

the sexual assault conviction. Id. In addition, the trial court found

that Hudy was an SVP pursuant to section 18-3-414.5, C.R.S.

2005. Id.

¶4 Hudy challenged his SVP designation on direct appeal, and a

division of this court concluded that the trial court properly

determined that Hudy was an SVP pursuant to the statute. Hudy I,

slip op. at 4. He then filed a timely Crim. P. 35(b) motion for

reduction of sentence, arguing that the trial court erred by basing

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his sentence on the conclusion that he was at a high risk to

reoffend. Hudy II, slip op. at 3. The postconviction court denied the

motion, and the Hudy II division affirmed. Id. He subsequently

filed additional postconviction motions, which were denied.

¶5 In November 2022, more than twenty years after Hudy’s SVP

designation, an expert in sex offender evaluations certified by the

Colorado Sex Offender Management Board (SOMB) evaluated Hudy

under the then-current SVP risk assessment screening instrument

and produced a report recommending that Hudy no longer be

designated as an SVP. A year later, Hudy filed a Crim. P. 35(c)

motion asking the postconviction court to remove his SVP

designation. He explained that he had “made steady progress

inside DOC through treatment”; that the SVP screening instrument

had been updated since his original evaluation in 2001; and that a

certified evaluator in 2022 had found that he no longer qualified for

the SVP designation. Although he acknowledged that, under Crim.

P. 35(c)(3)(VI), the postconviction court was required to deny any

claim that was raised and resolved in a prior appeal or

postconviction proceeding, he argued that his motion fell under the

exception for claims “based on evidence that could not have been

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discovered previously through the exercise of due diligence,” Crim.

P. 35(c)(3)(VI)(a) — namely, the 2022 evaluation.

¶6 The People opposed the motion, arguing that it was

successive, untimely, and contrary to Colorado case law holding

that offenders designated as SVPs under past versions of the

screening instrument are not entitled to be reassessed under any

revised versions. See People v. Mendoza, 313 P.3d 637, 644 (Colo.

App. 2011). Given the division’s holding in Mendoza, they argued,

the 2022 evaluation could not be considered newly discovered

evidence under Crim. P. 35(c)(3)(VI)(a).

¶7 After a hearing at which the 2022 evaluator testified regarding

the updated SVP screening instrument and his evaluation of Hudy,

the postconviction court granted Hudy’s motion, finding that he was

“no longer appropriate to be classified as [an SVP].” The court did

not address the People’s arguments that the motion was successive

and untimely or that the 2022 evaluation did not fall within the

Crim. P. 35(c)(3)(VI)(a) exception for newly discovered evidence.

Although it acknowledged Mendoza, the court concluded that a

more recent case holding that a motion challenging an SVP

designation is cognizable under Crim. P. 35(c) represented contrary

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authority. See People v. Baker, 2017 COA 102, ¶ 14, rev’d on other

grounds, 2019 CO 97M. “[A]t this time,” the court found, “following

successful completion of sex offender treatment and the passage of

23 years, [Hudy] is no longer [an SVP].”

II. Analysis

¶8 The People contend that (1) the postconviction court’s reliance

on Baker was misplaced; (2) the court was required to deny Hudy’s

motion as successive under Crim. P. 35(c)(3)(VI); and (3) the court

was required to deny Hudy’s motion as untimely under section

16-5-402(1), C.R.S. 2024. Because we agree with the People’s first

two contentions, we reverse.1

A. Governing Law and Standard of Review

¶9 Under section 18-3-414.5(1)(a), C.R.S. 2024, an SVP is an

offender

(1) who is eighteen years of age or older as of
the date of the offense; (2) who has been
convicted of an enumerated sexual offense;
(3) whose victim was a stranger or was a
person with whom the offender established or
promoted a relationship primarily for the
purpose of sexual victimization; and (4) who is

1 Having concluded that Hudy’s motion was successive, we need not

address whether it was timely or whether justifiable excuse or
excusable neglect exists for the late filing.

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likely to subsequently commit one or more of
the enumerated offenses under the
circumstances specified in the statute.

Mendoza, 313 P.3d at 640; see § 18-3-414.5(1)(a).

¶ 10 The SVP statute is part of an enactment by which the General

Assembly sought to create a program that establishes evidence-

based standards to evaluate, identify, treat, manage, and monitor

sex offenders. People v. Williamson, 2021 COA 77, ¶ 13;

§ 16-11.7-101, C.R.S. 2024. “To that end, the General Assembly

created the SOMB and tasked it with consulting on, approving, and,

as necessary, revising a ‘risk assessment screening instrument’ to

‘assist the sentencing court in determining the likelihood that an

adult sex offender will’ recidivate.” Williamson, ¶ 13 (quoting

§ 16-11.7-103(4)(d), C.R.S. 2024). Section 16-11.7-103(4)(d)

provides as follows:

The [SOMB] shall consult on, approve, and
revise, as necessary, the risk assessment
screening instrument developed by the division
of criminal justice to assist the sentencing
court in determining the likelihood that an
adult sex offender will commit one or more of
the offenses specified in [the SVP statute]
under the circumstances described in [that
statute]. In carrying out this duty, the [SOMB]
shall consider research on adult sex offender
risk assessment and shall consider as one

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element the risk posed by an adult sex
offender who suffers from psychopathy or a
personality disorder that makes the person
more likely to engage in sexually violent
predatory offenses. If a defendant is found to
be a sexually violent predator, the defendant
shall be required to register . . . and shall be
subject to community notification . . . .

¶ 11 A defendant may challenge an SVP designation under Rule

35(c). Baker, ¶ 14. A postconviction court’s ruling on a Rule 35(c)

motion after a hearing presents a mixed question of fact and law.

People v. Sharp, 2019 COA 133, ¶ 12. “We defer to the court’s

findings of fact if they have record support, but we review any legal

conclusions de novo.” Id. We also review the court’s interpretation

of statutes and the rules of criminal procedure de novo. Allen v.

People, 2013 CO 44, ¶ 4; People v. Segura, 2024 CO 70, ¶ 21.

B. Discussion

¶ 12 The People argue that Hudy’s Rule 35(c) motion is successive

because his SVP designation was previously challenged and upheld

on direct appeal. They further contend that Mendoza precluded the

postconviction court from considering Hudy’s 2022 SVP evaluation

as newly discovered evidence. We agree.

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¶ 13 Crim. P. 35(c) allows a defendant to challenge a judgment of

conviction on the ground that it was obtained in violation of his

constitutional or statutory rights. See Crim. P. 35(c)(2)(I); People v.

Valdez, 178 P.3d 1269, 1279 (Colo. App. 2007). But a defendant is

not entitled to perpetual review of his postconviction claims. See

People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996). The

postconviction court is therefore required to deny any claim that

was raised and resolved in a prior appeal or postconviction

proceeding. Crim. P. 35(c)(3)(VI). An exception exists for “[a]ny

claim based on evidence that could not have been discovered

previously through the exercise of due diligence.” Crim. P.

35(c)(3)(VI)(a).

¶ 14 Although Mendoza is not a Crim. P. 35(c) case, it is

nonetheless instructive. In that case, the defendant argued that the

SVP screening instrument had been revised since the time of his

evaluation and that, had he been evaluated instead under the

revised version, “he would not have scored enough points to qualify

as an SVP.” Mendoza, 313 P.3d at 644. Accordingly, he argued, his

SVP status must be reversed. Id. A division of this court held that,

even if it were true that the defendant would not have been

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designated as an SVP under the revised screening instrument, he

was not entitled to be reevaluated. Id. Although “[s]ection

16-11.7-103(4)(d) expressly requires the [SOMB] to ‘revise, as

necessary, the risk assessment screening instrument,’” the court

explained, “[t]hat statute does not, however, allow offenders

designated as SVP’s under past versions of the [screening

instrument] to be reassessed under any revised versions.” Id. The

division reasoned that holding otherwise “would lead to absurd

results [by requiring] district courts to reevaluate all previously

designated SVP’s every time the [SOMB] revises the [screening

instrument] to determine whether they meet the new SVP criteria.”

Id.

¶ 15 In light of Mendoza’s holding that offenders designated as

SVPs are not entitled to be reassessed under revised versions of the

screening instrument, Hudy’s 2022 evaluation did not constitute

newly discovered evidence under Crim. P. 35(c)(3)(VI)(a). The

postconviction court was thus required to deny Hudy’s challenge to

his SVP designation as successive under Crim. P. 35(c)(3)(VI)

because his designation was previously raised and resolved on

direct appeal. Accordingly, it was improper for the postconviction

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court to consider Hudy’s 2022 evaluation and remove his SVP

designation.

¶ 16 We are not persuaded otherwise by the postconviction court’s

conclusion that Baker represents contrary authority and calls

Mendoza into doubt. In Baker, the defendant filed a postconviction

motion arguing that the trial court had erred by “simply adopting

the findings in the [SVP] [s]creening [i]nstrument without making its

own findings [about] whether the relationship criterion of the SVP

statute had been met.” Baker, ¶ 9. The postconviction court

denied the motion, finding that “it had no authority to reconsider

[the defendant’s] SVP designation under Crim. P. 35(b).” Id. at ¶ 12.

Rejecting the State’s arguments to the contrary, the division held

that the defendant’s motion challenging his SVP designation was

cognizable under Crim. P. 35(c). Id. at ¶¶ 14, 19. After concluding

that the motion was neither successive nor time barred, id. at ¶¶ 18

n.1, 37, the division remanded the case for the postconviction court

to reconsider the defendant’s SVP designation based on his

argument about the relationship criterion, id. at ¶ 43. Importantly,

the division noted that the postconviction court “should reconsider

[the defendant’s] SVP designation based on the existing record.” Id.

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¶ 17 Baker differs from Mendoza, and from the present case, in that

the defendant there was not seeking to have the court consider a

new SVP evaluation conducted under a revised screening

instrument. Rather, the defendant in Baker was challenging his

original designation as an SVP. There is thus nothing in Baker that

runs contrary to or calls into doubt Mendoza’s holding that

“[s]ection 16-11.7-103(4)(d) . . . does not . . . allow offenders

designated as SVP’s under past versions of the [screening

instrument] to be reassessed under any revised versions.”

Mendoza, 313 P.3d at 644.

¶ 18 We therefore conclude that the postconviction court erred by

granting Hudy’s Rule 35(c) motion to remove his SVP designation.

III. Noncompliance with Appellate Rules

¶ 19 Finally, Hudy contends that the People’s failure to comply with

the appellate rules warrants dismissal of this appeal. Specifically,

the People’s opening brief does not comply with (1) C.A.R. 28(a)(6),

which requires a summary of the arguments; (2) C.A.R. 28(e), which

requires references to the record; or (3) C.A.R. 28(f), which allows

addendums to briefs only in limited circumstances not applicable

here. See C.A.R. 38(a) (“The appellate court may dismiss an

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appeal . . . or impose other sanctions it deems appropriate . . . for

the failure to comply with . . . these appellate rules . . . .”); Bruce v.

City of Colorado Springs, 252 P.3d 30, 32 (Colo. App. 2010)

(recognizing that dismissing an appeal may be an appropriate

sanction for failure to comply with C.A.R. 28).

¶ 20 While we decline to dismiss the appeal, we caution the People

that, in the future, failure to comply with C.A.R. 28 or other

applicable appellate rules may result in striking the noncomplying

brief or other appropriate sanctions, including dismissal.

IV. Disposition

¶ 21 The order is reversed.

JUDGE J. JONES and JUDGE BROWN concur.

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