Peo v. Fletcher

18CA1614 Peo v Fletcher 12-16-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1614

Arapahoe County District Court No. 99CR1397

Honorable Elizabeth A. Weishaupl, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Charles William Fletcher III,

Defendant-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE FURMAN

Lipinsky and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 16, 2021

Philip J. Weiser, Attorney General, Lisa K. Michaels, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Charles William Fletcher III, appeals the postconviction court’s

order denying his most recent Crim. P. 35(c) motion. We affirm.

¶ 2 A jury found Fletcher guilty of attempted second degree

murder, second degree kidnapping, first degree assault, two counts

of aggravated robbery, two counts of second degree assault, and

conspiracy to commit aggravated robbery.

¶ 3 The trial court also found him guilty on eight habitual criminal

counts and imposed consecutive sentences totaling 320 years in the

custody of the Department of Corrections.

¶ 4 On direct appeal, a division of this court affirmed Fletcher’s

convictions but reversed his sentences in part and remanded for the

trial court to impose some of the sentences concurrently. See

People v. Fletcher, (Colo. App. No. 03CA0182, Aug. 10, 2006) (not

published pursuant to C.A.R. 35(f)). The trial court adjusted the

sentences on remand accordingly.

¶ 5 Over the next six years, Fletcher filed several postconviction

motions properly construed as Crim. P. 35(c) motions that the

postconviction court denied. Fletcher appealed the last of the

denied rulings and a division of this court affirmed. See People v.

2

Fletcher, (Colo. App. No. 14CA2143, Mar. 3, 2016) (not published

pursuant to C.A.R. 35(f)).

¶ 6 Then, in 2017, Fletcher filed this postconviction motion, which

he first labeled as a habeas corpus petition, and then labeled as a

Crim. P. 35(a) motion. In this motion, Fletcher claimed that (1) his

habitual sentences were “constitutionally infirm”; (2) he was entitled

to a jury trial on his habitual charges; and (3) the prosecution

illegally filed the habitual criminal counts after the jury was sworn

in. The postconviction court issued a written order construing the

motion as a Crim. P. 35(c) motion and summarily denying it on the

grounds that it was time barred and successive.

¶ 7 Fletcher raises these same three claims on appeal and asks us

to read his pro se motion liberally to include a fourth claim that his

habitual sentence was illegal because the trial court did not

separately arraign him on the habitual criminal charges.

¶ 8 We review the summary denial of Fletcher’s postconviction

motion de novo. People v. Medina, 2019 COA 103M, ¶ 4. Because

the postconviction court properly construed each of Fletcher’s

claims as a Crim. P. 35(c) claim and properly concluded that the

claims were time barred, we affirm.

3

I. Fletcher’s Claims Were Crim. P. 35(c) Claims

¶ 9 We first conclude that the postconviction court did not err in

concluding that Fletcher’s claims were all properly construed as

Crim. P. 35(c) claims.

¶ 10 “The substance of a postconviction motion” determines what

type of Crim. P. 35 motion it is. People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006). Crim. P. 35(a) allows a court to “correct a

sentence that was not authorized by law or that was imposed

without jurisdiction at any time.” But “[m]otions under Crim. P.

35(c) are the proper postconviction route in which to challenge

convictions or sentences as unconstitutional.” Collier, 151 P.3d at

670. Unlike Crim. P. 35(a) motions, Crim. P. 35(c) motions are

subject to the time limits of section 16-5-402(1), C.R.S. 2021. See

Collier, 151 P.3d at 671.

A. The Two Clearly Constitutional Claims

¶ 11 Fletcher claimed that his prior convictions are

“constitutionally infirm” and that he is entitled to a jury trial on the

habitual criminal charges. So, the postconviction court properly

construed these two claims as constitutional Crim. P. 35(c) claims.

4

See id. On appeal, Fletcher does not contest the postconviction

court’s conclusion on those issues.

B. The Claim Regarding the Timing of the Prosecution’s

Filing of the Habitual Criminal Charges

¶ 12 For the third issue, Fletcher challenged the prosecution’s filing

of the habitual criminal counts after the jury was sworn in. On

appeal, he asserts that this is a jurisdictional claim or illegal

sentence claim under Crim. P. 35(a). We disagree.

¶ 13 The record shows that the prosecution filed a “motion to file

habitual criminal counts” early in the pretrial proceedings, which

the trial court granted over a defense objection. However, it was not

until after the jury was sworn at trial that the prosecution actually

filed the habitual criminal charges. The trial court accepted the

filing of those charges, again over a defense objection.

¶ 14 Fletcher relies on People v. Palmer, 2018 COA 38, and People

v. Manyik, 2016 COA 42, to argue that the allegedly late filing of the

habitual criminal charges deprived the trial court of jurisdiction or

resulted in an illegal sentence. In both cases, divisions of this court

on direct appeal held that the late amendment of an information to

5

add a crime of violence count violated Crim. P. 7(e). See Palmer,

¶¶ 8-23; Manyik, ¶¶ 43-57.

¶ 15 But these cases don’t help him. Both Palmer and Manyik

involved direct appeals, not Crim. P. 35(a) claims. And neither of

those divisions held that those late amendments deprived the

courts of jurisdiction or resulted in illegal sentences. Notably, the

Palmer division specifically emphasized that, “unlike the situation

where the prosecutor amends the information to bring a habitual

criminal count, the amendment to the information in this case

changed the facts that needed to be proved to the jury’s satisfaction

at trial, and not simply facts that needed to be proved before

sentencing.” Palmer, ¶ 21.

¶ 16 The timing of the prosecution’s filing of the habitual charges

did not deprive the trial court of jurisdiction. The filing of the

habitual criminal charges gave the trial court jurisdiction over the

charges because “[t]he filing of an information or complaint in the

district court by the district attorney gives the court subject matter

jurisdiction of the offense charged.” Secrest v. Simonet, 708 P.2d

803, 806 (Colo. 1985). And because section 18-1.3-803(6), C.R.S.

2021, allows the prosecution to add habitual criminal charges after

6

trial but before sentencing under certain circumstances, we

conclude that the late filing of the charges was not so fundamental

as to deprive the court of jurisdiction.

¶ 17 And the timing of the prosecution’s filing of the habitual

criminal charges does not render Fletcher’s sentences illegal. See

People v. Jenkins, 2013 COA 76, ¶ 11 (“An illegal sentence is one

that is not authorized by law, meaning that it is inconsistent with

the sentencing scheme established by the legislature.”).

¶ 18 Because the timing of the filing did not deprive the court of

jurisdiction or render his sentences illegal, Fletcher has not shown

that the postconviction court erred in construing this claim as a

Crim. P. 35(c) claim.

C. The Claim Regarding Not Arraigning Fletcher

on the Habitual Criminal Charges

¶ 19 Lastly, on appeal, Fletcher raises a new claim that the trial

court lacked jurisdiction over the habitual criminal counts because

he was not arraigned on those counts under section 18-1.3-803(3),

(6) (formerly section 16-13-103(3), (6)).

7

¶ 20 But this claim is also properly construed as a Crim. P. 35(c)

claim because it was not jurisdictional and did not allege an illegal

sentence.

¶ 21 Even accepting as true Fletcher’s allegation that he was never

formally arraigned on the habitual criminal charges, this claim was

waivable and therefore was not jurisdictional. See Horton v.

Suthers, 43 P.3d 611, 615 (Colo. 2002) (“[S]ubject-matter

jurisdiction is not an issue waivable by the parties . . . .”)

¶ 22 An arraignment is “[t]he initial step in a criminal prosecution

whereby the defendant is brought before the court to hear the

charges and to enter a plea.” Black’s Law Dictionary 134 (11th ed.

2019). “No irregularity in the arraignment which does not affect the

substantial rights of the defendant shall affect the validity of any

proceeding in the cause if the defendant pleads to the charge or

proceeds to trial without objecting to the irregularity.” § 16-7-203,

C.R.S. 2021 (emphasis added); see People v. Swain, 43 Colo. App.

343, 346, 607 P.2d 396, 398-99 (1979) (finding no reversible error

where defendant did not object at trial to the lack of arraignment).

¶ 23 Also, the cases on which Fletcher relies — People v. Ziglar, 45

P.3d 1266 (Colo. 2002), and People v. Mason, 643 P.2d 745 (Colo.

8

1982) — did not involve arraignment issues or jurisdictional claims,

and so they do not help him.

II. The Crim. P. 35(c) Claims Were Time Barred and Successive

¶ 24 The Crim. P. 35(c) claims were time barred. Under section

16-5-402(1), Fletcher had three years to file the claims after the

trial court amended the mittimus in 2008 following his direct

appeal. But Fletcher filed the motion at issue in 2017, six years

after the deadline, and the exceptions to the time bar under section

16-5-402(2) do not apply here.

¶ 25 The Crim. P. 35(c) claims were also successive under Crim. P.

35(c)(3)(VII). Fletcher could have raised them in a prior proceeding,

such as on direct appeal or in his first Crim. P. 35(c) motion, but he

failed to do so. None of the exceptions under Crim. P. 35(c)(3)(VII)

apply here (including the exception for jurisdictional claims under

Crim. P. 35(c)(3)(VII)(d)).

III. Conclusion

¶ 26 The order is affirmed.

JUDGE LIPINSKY and JUDGE BROWN concur.