v. Hunsaker

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.

SUMMARY
March 26, 2020

2020COA48

No. 17CA1815, People v. Hunsaker — Criminal Procedure —
Postconviction Remedies — Correction of an Illegal Sentence

This opinion considers whether the holding in Leyva v. People,

184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an illegal

sentence resets the three-year limitations period for filing a Crim. P.

35(c) motion — applies to any collateral attack that a defendant

might assert, or, alternatively, only to those claims that relate to

how the illegality in that sentence potentially affected the

defendant’s original convictions. Disagreeing with People v. Baker,

2017 COA 102, rev’d on other grounds, 2019 CO 97M, the majority

concludes that the correction of an illegal sentence only resets the

time period for filing a Crim. P. 35(c) motion for those claims that

relate to how the illegality in the sentence potentially affected a

defendant’s original convictions.
COLORADO COURT OF APPEALS 2020COA48

Court of Appeals No. 17CA1815
Larimer County District Court No. 03CR1173
Honorable Devin R. Odell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William J. Hunsaker, Jr.,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE GROVE
Graham*, J., concurs
Richman, J., concurs in part and dissents in part

Announced March 26, 2020

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Hunsaker Emmi, P.C., William J. Hunsaker, Golden, 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. 2019.
¶1 In this appeal, we decide whether the holding in Leyva v.

People, 184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an

illegal sentence resets the three-year limitations period for filing a

Crim. P. 35(c) motion — applies to any collateral attack that a

defendant might assert, or, alternatively, only to those claims that

relate to how the illegality in that sentence potentially affected the

defendant’s original convictions. We conclude that the correction of

an illegal sentence only resets the time period for filing a Crim. P.

35(c) motion for those claims that relate to how the illegality in the

sentence potentially affected a defendant’s original convictions. For

that reason, all but one of the claims asserted by defendant,

William J. Hunsaker, Jr., in his Crim. P. 35(c) motion are untimely.

And, because the timely claim may be denied as a matter of law, we

affirm the district court’s order denying that motion.

¶2 In reaching this conclusion, we disagree with People v. Baker,

2017 COA 102, rev’d on other grounds, 2019 CO 97M, in which

another division of this court held that the correction of an illegal

sentence resets the statutory time bar for collaterally attacking the

original judgment of conviction in all respects.

1
I. Background

¶3 In 2006, a jury found Hunsaker guilty of sexual assault on a

child and sexual assault on a child as part of a pattern of abuse

(pattern count). The court sentenced him to concurrent prison

terms of eight years to life for sexual assault on a child and sixteen

years to life on the pattern count. On appeal, a division of this

court affirmed Hunsaker’s convictions. People v. Hunsaker, (Colo.

App. No. 06CA2088, Mar. 4, 2010) (not published pursuant to

C.A.R. 35(f)) (Hunsaker I). The mandate issued on January 31,

2011.

¶4 In 2011, Hunsaker filed a Crim. P. 35(a) motion, arguing that

the court had illegally imposed sentences applicable to

extraordinary risk crimes despite the fact that neither of his

convictions presented an extraordinary risk of harm. The

prosecution agreed that Hunsaker had not been convicted of an

extraordinary risk crime and, accordingly, conceded that Hunsaker

had received an illegal sentence for the count of sexual assault on a

child. With respect to the pattern count, however, the prosecution

maintained that the sentence was legal because the pattern count

was a crime of violence. The district court agreed with Hunsaker

2
and amended the mittimus to reflect sentences of six years to life on

the sexual assault on a child count and twelve years to life on the

pattern count.

¶5 The People appealed the court’s decision to resentence

Hunsaker on the pattern count. A division of this court agreed that

the original sentence of sixteen years to life was legal and remanded

the case for the district court to reinstate that sentence. People v.

Hunsaker, 2013 COA 5, ¶¶ 24, 45-46 (Hunsaker II), aff’d, 2015 CO

46, ¶ 40. The mandate issued on August 6, 2015. In February

2016, the district court amended the mittimus to reinstate the

sentence of sixteen years to life on the pattern count.

¶6 On February 16, 2016, Hunsaker filed the Crim. P. 35(c)

motion that is the subject of this appeal. He argued that the

district court violated his

 right to due process, by failing to follow the statutory

requirements for determining his competency and

allowing him to be tried and sentenced without

determining whether he was competent;

 right to a jury trial, by imposing a sentence in 2006 that

exceeded the maximum in the presumptive range on the

3
pattern count without a jury finding of aggravating

circumstances; and

 right to be free of double jeopardy, by reinstating the

sentence of sixteen years to life on the pattern count after

he had completed the minimum term of the

indeterminate sentence and had been released on parole

because he had a legitimate expectation of finality once

he had been released on parole.

¶7 Hunsaker also asserted that the four attorneys who

represented him during the pretrial proceedings, trial, and

sentencing provided ineffective assistance by

 failing to adequately prepare for trial;

 advising him to flee the jurisdiction;

 representing him while under a conflict of interest;

 failing to raise the issue of competency; and

 failing to object to the court’s imposition of sentences

that were modified for extraordinary risk crimes even

though the crimes of which he was convicted did not

constitute an extraordinary risk of harm.

4
¶8 After the People filed a response, Hunsaker filed a reply

arguing that he did not receive reasonable notice that he was

subject to a sentence with a minimum term that exceeded the

maximum in the presumptive range without a finding of aggravated

circumstances.

¶9 The district court denied Hunsaker’s Crim. P. 35(c) motion

without a hearing.

II. Abandoned Argument

¶ 10 Because he did not reassert it on appeal, Hunsaker has

abandoned his double jeopardy argument. See People v. Osorio,

170 P.3d 796, 801 (Colo. App. 2007).

III. Timeliness of Hunsaker’s Crim. P. 35(c) Claims

¶ 11 As for the issues that Hunsaker has raised on appeal, he

argues that the district court erred by denying his motion without a

hearing because he alleged facts that, if true, would provide a basis

for relief. We conclude that all but one of Hunsaker’s claims are

untimely.

¶ 12 We review de novo a district court’s denial of a Crim. P. 35(c)

motion without a hearing. See People v. Phipps, 2016 COA 190M,

¶ 20. A court may deny the motion without a hearing if “the

5
motion, the files, and the record clearly establish that the defendant

is not entitled to relief.” Osorio, 170 P.3d at 799.

¶ 13 Generally, a defendant must file a Crim. P. 35(c) motion within

three years after the date of his felony conviction. See § 16-5-

402(1), C.R.S. 2019. Where, as here, there was a direct appeal, a

conviction is final when the appellate process has been exhausted.

See People v. Hampton, 857 P.2d 441, 444 (Colo. App. 1992), aff’d,

876 P.2d 1236 (Colo. 1994). The date of Hunsaker’s conviction for

purposes of section 16-5-402(1) was January 31, 2011 — the date

the mandate issued in Hunsaker I. The statutory limitations period

thus expired on January 31, 2014, but Hunsaker did not file his

Crim. P. 35(c) motion until February 16, 2016.1

¶ 14 Nonetheless, citing Leyva, Hunsaker argues (as he did in the

Crim. P. 35(c) motion) that the motion was timely filed because his

convictions did not become final (and the three-year limitations

period did not start) until the district court reinstated the sentence

1 Although there is an exception to the three-year limitations period
if a defendant shows that his “failure to seek relief within the
applicable time period was the result of circumstances amounting
to justifiable excuse or excusable neglect,” § 16-5-402(2)(d), C.R.S.
2019, Hunsaker did not allege that there was justifiable excuse or
excusable neglect for the late Crim. P. 35(c) arguments.

6
of sixteen years to life on the pattern count on February 29, 2016.

He contends that the People’s appeal of the sentence on the pattern

count tolled the deadline for filing a Crim. P. 35(c) motion as to any

issue involving his convictions or sentences.

¶ 15 In Leyva, the supreme court held that “when an illegal

sentence is corrected pursuant to Crim. P. 35(a), it renews the

three-year deadline for collaterally attacking the original judgment

of conviction pursuant to Crim. P. 35(c).” Leyva, 184 P.3d at 50-51.

Yet, despite the apparent breadth of this language, Leyva limited its

holding by stating that the illegality allows a defendant “to pursue

any good-faith arguments for postconviction relief addressing how

that illegality potentially affected his or her original conviction.” Id. at

50 (emphasis added). We read this sentence as requiring some

nexus between the original illegal sentence and the claims raised in

a future Crim. P. 35(c) motion. Indeed, as the dissenting justices in

Leyva noted, the majority tried “to limit the consequences of its

rationale by suggesting that the defendant’s right to collaterally

attack his judgment of conviction remains restricted, even after

today’s holding, to matters sufficiently affected by or related to the

illegality of his sentence.” Id. at 51 (Coats, J., dissenting).

7
¶ 16 We conclude that Leyva limits the renewal of the three-year

deadline for filing a Crim. P. 35(c) motion to claims that are related

to how the illegality in the original sentence potentially affected a

defendant’s original conviction. Thus, the illegality in the original

sentence on Hunsaker’s conviction for sexual assault on a child did

renew the three-year period for him to file a Crim. P. 35(c) motion

on all claims — but instead only for claims that relate to how the

illegality in that sentence may have affected his conviction.

¶ 17 Hunsaker’s postconviction claims relate to the district court’s

actions in determining his competency and in imposing the original

sentence on the pattern count (which was legal from the time that it

was imposed); trial counsel’s performance before and during the

trial on matters unrelated to his sentences; and trial counsel’s

performance during sentencing related to the pattern count. Only

the last of these claims — that defense counsel rendered ineffective

assistance by failing to object to the imposition of an extraordinary

risk sentence where the conviction did not present an extraordinary

risk of harm — even arguably relates to the illegality in his original

sentence for sexual assault on a child.

8
¶ 18 Therefore, with the exception of that argument, Hunsaker’s

limitations period expired on January 31, 2014, three years after

the mandate issued in Hunsaker I. Any Crim. P. 35(c) claims that

did not relate to how the illegality in Hunsaker’s sentence may have

affected his conviction were untimely, and the district court

properly denied them without a hearing. See Osorio, 170 P.3d at

799; see also People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)

(an appellate court may affirm the district court on any ground

supported by the record).

¶ 19 In reaching this conclusion, we necessarily disagree with the

division in Baker. See People v. Thomas, 195 P.3d 1162, 1164

(Colo. App. 2008) (one division of this court is not bound by the

decision of another division). In Baker, the division declined to read

any limitation into Leyva’s holding, concluding that the supreme

court (1) repeatedly phrased its holding broadly; and (2) remanded

the case for “consideration of the defendant’s ineffective assistance

of counsel claims on all of the defendant’s convictions, even though

it determined the defendant’s sentence was illegal on only one

count.” Baker, ¶¶ 40-41.

9
¶ 20 We are not persuaded that Leyva’s phrasing negated the

limiting language used in the opinion. Nor do we believe that the

broad remand in that case requires a similar result here. To the

contrary, the scope of Leyva’s mandate was consistent with the

opinion’s limiting language because the defendant’s Crim. P. 35(c)

motion included an argument that “the late-discovered illegality in

his sentence helps establish that he received ineffective assistance

of counsel.” Leyva, 184 P.3d at 50.

¶ 21 In our view, it makes sense to require some connection

between the illegality that formed the basis of an illegal sentence

and an otherwise belatedly raised claim. Concluding that no such

connection is necessary would run counter to the state’s interest in

the finality of convictions by allowing otherwise time-barred

defendants to file repeated motions under Crim. P. 35(a) with the

hope of discovering an illegality that reopens the Crim. P. 35(c)

door. But we discern no good reason to allow the period for filing

any and all potential Crim. P. 35(c) claims to recommence simply

because some component of a defendant’s sentence was

inconsistent with statutory authority, regardless of the extent of the

illegality. See People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.

10
2006) (“[A] sentence is ‘illegal’ under Crim. P. 35(a) if it is

‘inconsistent with the statutory scheme outlined by the legislature.’”

(quoting People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005))).

¶ 22 Here, unlike the defendant in Leyva, Hunsaker made no

attempt in his postconviction motion to link the illegality of the

sentence on the sexual assault on a child count to his collateral

attack on the judgment of conviction. That is, he did not argue that

the illegality in his sentence had any bearing on the question

whether his underlying conviction was constitutionally obtained.

Thus, Baker’s reliance on Leyva’s remand does not persuade us

that the statutory limitations period should be reset for all of

Hunsaker’s claims.

IV. Extraordinary Risk Crime Argument

¶ 23 Next, we will assume, without deciding, that the three-year

limitations period was reset with respect to Hunsaker’s claim that

trial counsel was constitutionally ineffective for failing to object

when the court modified the presumptive range for an extraordinary

risk crime and that the claim was timely filed. Even so, we

conclude that the claim fails as a matter of law.

11
¶ 24 A court may deny an ineffective assistance of counsel claim, as

a matter of law, if the defendant does not make sufficient

allegations that, if true, would entitle him to relief. See People v.

Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011), aff’d on other

grounds, 2015 CO 37.

¶ 25 To prove an ineffective assistance of counsel claim, a

defendant must show that his counsel’s performance was deficient

— that is, it fell below an objective standard of reasonableness —

and that the deficient performance prejudiced the defense. See

Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). “Because a

defendant must show both deficient performance and prejudice, a

court may resolve the claim solely on the basis that the defendant

has failed in either regard.” People v. Karpierz, 165 P.3d 753, 759

(Colo. App. 2006).

¶ 26 The test for evaluating counsel’s performance is whether

counsel’s conduct was “within the range of competence demanded

of attorneys in criminal cases under prevailing professional norms.”

People v. Garcia, 815 P.2d 937, 941 (Colo. 1991). “To prove

prejudice, a defendant must show a reasonable probability that, but

for counsel’s ineffective assistance, the result of the proceeding

12
would have been different.” Karpierz, 165 P.3d at 759. “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

¶ 27 In the Crim. P. 35(c) motion, Hunsaker alleged that trial

counsel’s performance was deficient for failing to object to the

court’s modification of the presumptive sentencing ranges for

extraordinary risk crimes, even though the crimes for which he was

convicted were no longer considered to be an extraordinary risk of

harm after the legislature repealed the classification in 2004. He

argued that counsel’s deficient performance prejudiced his defense

because, if counsel had brought the repeal to the court’s attention,

it would have resulted in the court imposing a sentence of twelve

years to life.

¶ 28 Although Hunsaker did not specify this, a sentence of twelve

years to life would have been applicable only to the pattern count.

Therefore, we limit our analysis of how the illegality in the sentence

on the sexual assault on a child count could have affected the

sentence on the pattern count.

¶ 29 We agree that the allegation that trial counsel’s failure to

object to the court’s modification of the sentencing range for an

13
extraordinary risk crime when the crime of sexual assault on a

child was not an extraordinary risk crime, if true, would have

constituted deficient performance. However, Hunsaker has not

shown how the outcome of the sentencing hearing would have been

different with regard to the sentence on the pattern count, because

the fact that the presumptive sentencing range on the sexual

assault on a child count should have been different has no bearing

on the presumptive sentencing range on the pattern count.

Hunsaker’s claim regarding the presumptive range on the pattern

count is time barred because the original sentence on that count

was legal. The limitations period has not been reset with regard to

that claim.

¶ 30 Under these facts, we conclude that the court also properly

denied this claim without a hearing. See Osorio, 170 P.3d at 799;

see also Aarness, 150 P.3d at 1277.

V. Conclusion

¶ 31 The order is affirmed.

JUDGE GRAHAM concurs.

JUDGE RICHMAN concurs in part and dissents in part.

14
JUDGE RICHMAN, concurring in part and dissenting in part.

¶ 32 I agree with the majority’s comment that for purposes of

enforcing a time limitation on postconviction motions, it makes

sense to require some connection between the illegality that formed

the basis of a successful illegal sentence claim and a later-filed

claim under Crim. P. 35(c). Otherwise, the goal of finality embodied

in section 16-5-402(1), C.R.S. 2019, is undermined.

¶ 33 However, I cannot state with certainty that the language of

Leyva v. People, 184 P.3d 48, 50-51 (Colo. 2008), requires that

connection, and thus I must express my disagreement with the

majority. At least three times in the Leyva opinion, the majority

states its holding without requiring a connection between the illegal

sentence and the scope of the Crim. P. 35(c) motion.

[T]he three-year deadline for bringing a Crim.
P. 35(c) motion regarding the original
conviction was not triggered until Leyva’s
sentence was corrected, and his judgment of
conviction amended.

184 P.3d at 49.

[T]he only question is whether Leyva’s
collateral attack on his 1993 conviction,
brought within three years of his resentencing,
was properly brought within three years “of

15
said conviction,” as that term is used in
section 16-5-402(1).

Id. at 49-50.

We conclude that when an illegal sentence is
corrected pursuant to Crim. P. 35(a), it renews
the three-year deadline for collaterally
attacking the original judgment of conviction
pursuant to Crim. P. 35(c).

Id. at 50-51.

¶ 34 While the opinion also states that “[i]f an illegality is

discovered in a prisoner’s sentence, the prisoner should be allowed

to pursue any good-faith arguments for postconviction relief

addressing how that illegality potentially affected his or her original

conviction,” id. at 50, that sentence, until further clarified by the

supreme court, does not appear to be the holding of the case. See

People v. Baker, 2017 COA 102, ¶ 40, rev’d on other grounds, 2019

CO 97M.1

1The supreme court granted certiorari in Baker on this very issue.
People v. Baker, No. 17SC570, 2017 WL 5477160 (Colo. Nov. 13,
2017) (unpublished order) (“Whether the correction of a sentence
not authorized by law renews the three-year deadline for collaterally
attacking the original judgment of conviction in all respects.”).
However, it then decided the case on different grounds. Perhaps it
will grant certiorari in this case and clarify the issue.

16
¶ 35 Thus, I must disagree with the majority’s reliance on that

sentence. I must further disagree that all of Hunsaker’s claims,

other than the one regarding trial counsel’s failure to object to the

district court’s modification of the sentencing range for an

extraordinary risk crime, are barred by the time limitation.

¶ 36 Nonetheless, I concur with the majority that the district court

properly denied the claim regarding trial counsel’s failure to object

to the court’s modification of the sentencing range for an

extraordinary risk crime, for the reasons stated by the majority.

¶ 37 I would also conclude that Hunsaker’s claim that the district

court denied his right to due process by failing to follow the

statutory requirements for determining his competency, and by

allowing him to be tried and sentenced without a competency

determination, was an issue that could have been presented in a

previous appeal. It was therefore successive and barred under

Crim. P. 35(c)(3)(VII). Accordingly, I would affirm the district court’s

order as to this claim.

¶ 38 Finally, because I conclude that Hunsaker’s ineffective

assistance of counsel claims were timely brought, I would remand

this case for a hearing on his claims that counsel was ineffective for

17
(1) failing to adequately prepare for trial; (2) advising him to flee the

jurisdiction; and (3) failing to raise the issue of competency. I do

not find the district court’s reasons for denying these claims to be

persuasive for several reasons.

¶ 39 First, the district court’s order does not appear to address the

claim that counsel was inadequately prepared for trial.

¶ 40 Second, the order concludes that the allegation that counsel

advised Hunsaker to flee the jurisdiction is “very difficult to believe.”

That may be so, but a defendant is entitled to a hearing so long as

he has asserted facts in his postconviction motion that, if true,

would provide a basis for relief under Crim. P. 35. People v.

Morones-Quinonez, 2015 COA 161, ¶ 6 (citing White v. Denver Dist.

Court, 766 P.2d 632, 635 (Colo. 1988)). The district court did not

apply that standard.

¶ 41 Third, the order rejected the claim that counsel improperly

failed to raise the issue of competency by simply stating, “counsel

properly raised and resolved that issue.” While the record reflects

that counsel stated that Hunsaker’s mental health issues, which

were previously raised, had “been resolved with regard to his

lawyers,” that statement does not clarify that these issues were

18
withdrawn after consultation with Hunsaker and with his consent.

On remand, I would order the district court to examine the

circumstances that led to counsel’s statement and determine

whether it was authorized by Hunsaker.

¶ 42 To the extent that the district court denied Hunsaker’s other

postconviction claims, I would affirm those rulings.

19