Peo v. Franklin

23CA0921 Peo v Franklin 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0921
City and County of Denver District Court No. 22CR808
Honorable Ericka F.H. Englert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Benjamin O. Franklin,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE KUHN
Moultrie and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for
Defendant-Appellant

* Sitting by assignment of the Chief Justice under provisions of Colo. Const.
art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Benjamin O. Franklin, appeals the notation on the

mittimus listing his first degree assault conviction as a class 3

felony. We remand for correction of the mittimus.

I. Background

¶2 The prosecution charged Franklin with, among other offenses,

first degree assault with a deadly weapon causing serious bodily

injury under section 18-3-202(1)(a), C.R.S. 2024.

¶3 At trial, Franklin argued that he committed the assault in the

heat of passion. The trial court instructed the jury on the elements

of first degree assault under section 18-3-202(1)(a). The court also

instructed the jury that, if it found Franklin guilty on the first

degree assault charge, it should also determine whether Franklin

committed the assault upon a provoked and sudden heat of passion

as provided by section 18-3-202(2)(a).

¶4 The jury found Franklin guilty of, among other offenses, first

degree assault. In a special interrogatory, the jury also found that

Franklin committed the assault upon a provoked and sudden heat

of passion.

¶5 The presentence investigation report (PSIR) correctly noted

that the jury had found Franklin guilty of “Assault 1-SBI with

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Deadly Weapon - Heat of Passion F5” under section “18-3-202(1)(a),

(2)(a).” The PSIR also correctly noted that the applicable sentencing

range for that class 5 felony, which was a crime of violence and an

extraordinary risk crime, was two-and-a-half to eight years in

prison. See § 18-1.3-401(1)(a)(V.5)(A), (8)(a)(I), (10)(a), (10)(b)(XII),

C.R.S. 2024; § 18-1.3-406(2)(a)(I)(A), (2)(a)(II)(C), C.R.S. 2024;

§ 18-3-202(1)(a), (2)(a), (2)(c).

¶6 At sentencing, the prosecutor asked the court to sentence

Franklin “to the maximum of 8 years” on the assault conviction.

The court sentenced Franklin to eight years in prison on that

conviction.

¶7 However, the mittimus issued on the day of sentencing did not

list Franklin’s first degree assault conviction as a class 5 felony

under section 18-3-202(1)(a) and (2)(a). Instead, the mittimus listed

that conviction as a class 3 felony under only section

18-3-202(1)(a).

II. Analysis

¶8 Franklin contends, the People concede, and we agree — based

on the clear record before us — that the mittimus incorrectly lists

Franklin’s first degree assault conviction as a class 3 felony under

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only section 18-3-202(1)(a). The record clearly shows that Franklin

was convicted of, and sentenced on, a class 5 felony count of first

degree assault committed under a sudden heat of passion. See

§ 18-3-202(1)(a), (2)(a).

¶9 The parties also agree that the aforementioned error on the

mittimus constitutes a clerical error. Under Crim. P. 36, “[c]lerical

mistakes in judgments, orders, or other parts of the record and

errors in the record arising from oversight or omission may be

corrected by the court at any time and after such notice, if any, as

the court orders.” Clerical errors under Crim. P. 36 can include

“not only errors made by the clerk in entering the judgment, but

also those mistakes apparent on the face of the record . . . which

cannot reasonably be attributed to the exercise of judicial

consideration or discretion.” People v. Baker, 2019 CO 97M, ¶ 21

(quoting People v. Glover, 893 P.2d 1311, 1316 (Colo. 1995)).

¶ 10 Based on the clear record before us, we agree that the

aforementioned error on the mittimus constitutes a clerical error.

Such an error can be corrected “at any time,” id., and the parties’

briefs show that they both have notice of the error, see Crim. P. 36.

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III. Disposition

¶ 11 We note that, after Franklin appealed his judgment of

conviction, he filed a pro se motion for correction of the mittimus in

the underlying trial court case. We take judicial notice of the

subsequent proceedings in the trial court case. See People v. Sa’ra,

117 P.3d 51, 56 (Colo. App. 2004). The trial court issued an order,

granting his request in part. The court then issued an amended

mittimus listing Franklin’s conviction for first degree assault

committed under a sudden heat of passion as a class 5 felony.

However, Franklin’s filing of his appeal on this very issue divested

the trial court of jurisdiction relating to the judgment on appeal.

See People v. Dillon, 655 P.2d 841, 844 (Colo. 1982) (“Unless

otherwise specifically authorized by statute or rule, once an appeal

has been perfected, the trial court has no jurisdiction to issue

further orders in the case relative to the order or judgment appealed

from.”).

¶ 12 Accordingly, Franklin’s judgment of conviction for first degree

assault mitigated by circumstances of a provoked and sudden heat

of passion under section 18-3-202(1)(a) and (2)(a) is affirmed. The

case is remanded to the district court to correct the mittimus to

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reflect that Franklin’s first degree assault conviction is a class 5

felony under section 18-3-202(1)(a) and (2)(a). The court should

issue an amended mittimus after reacquiring jurisdiction following

issuance of the appellate mandate. The remainder of the judgment

is not challenged on appeal and remains undisturbed.

JUDGE MOULTRIE and JUDGE BERGER concur.

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