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 December 13, 2018

No. 17CA0280, People v. Taylor — Criminal Procedure — Postconviction Remedies — Successive Postconviction Proceedings

A division of the court of appeals holds that Crim. P.

35(c)(3)(VII) supersedes the rule stated in People v. Naranjo,

(Colo. App. 1987), that a defendant can file a second

Crim. P. 35(c) motion raising new postconviction claims if the

defendant filed an initial Crim. P. 35(c) motion pro se. COLORADO COURT OF APPEALS

Court of Appeals No. 17CA0280 Arapahoe County District Court No. 05CR1909 Honorable Charles M. Pratt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Joseph Taylor,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE WEBB Harris and Welling, JJ., concur

Announced December 13, 2018

Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lisa A. Polansky Attorney at Law, LLC, Lisa A. Polansky, Boulder, Colorado, for Defendant-Appellant ¶1 This case is about two bites at the proverbial apple.

Defendant, Christopher Joseph Taylor, appeals the postconviction

court’s order denying his second Crim. P. 35(c) motion. We affirm

because the motion was successive. Answering an undecided

question, we hold that Crim. P. 35(c)(3)(VII) supersedes the rule

stated in People v. Naranjo,

(Colo. App. 1987),

that a defendant can file a second Crim. P. 35(c) motion raising new

postconviction claims if the defendant filed an initial Crim. P. 35(c)

motion pro se.

I. Background

¶2 A jury found defendant guilty of first degree murder,

attempted first degree murder, and assault. On direct appeal, a

division of this court affirmed the judgment of conviction. See

People v. Taylor, (Colo. App. No. 06CA2614, Sept. 9, 2010) (not

published pursuant to C.A.R. 35(f)) (Taylor I).

¶3 Defendant moved for transcripts at state expense to prepare a

Crim. P. 35(c) motion. The postconviction court denied the motion.

¶4 A few months later, defendant filed a pro se Crim. P. 35(c)

motion raising seven claims, most of them asserting that his trial

1 counsel had provided ineffective assistance. He also requested the

appointment of postconviction counsel.

¶5 The postconviction court summarily denied defendant’s Crim.

P. 35(c) motion and his request for the appointment of

postconviction counsel. A division of this court affirmed. See

People v. Taylor, (Colo. App. No. 12CA1984, Jan. 16, 2014) (not

published pursuant to C.A.R. 35(f)) (Taylor II). The opinion does not

indicate that defendant appealed the denial of his motion for

transcripts at state expense.

¶6 Defendant then filed a second pro se Crim. P. 35(c) motion,

which he amended. He renewed some of the claims from his first

Crim. P. 35(c) motion and raised new claims. This time, the

postconviction court appointed counsel, who filed a supplemental

motion. The prosecution responded, arguing in part that the new

claims in the second motion were barred as successive.

¶7 The postconviction court issued a written order denying the

second Crim. P. 35(c) motion without a hearing. The court first

held that the claims from defendant’s first Crim. P. 35(c) motion

were barred as successive under Crim. P. 35(c)(3)(VI). But the court

did not bar defendant’s new claims as successive. Instead, the

2 court explained that it was “not convinced” that Crim. P.

35(c)(3)(VII) supersedes prior case law holding that a defendant can

raise new postconviction claims in a second Crim. P. 35(c) motion if

the first Crim. P. 35(c) motion was filed pro se. The court denied

the new claims on the merits.

II. Standard of Review

¶8 We review de novo. See People v. Lopez,

(an appellate court reviews de novo a postconviction court’s denial

of a Crim. P. 35(c) motion without a hearing); People v. Bonan,

(an appellate court reviews de novo whether a Crim.

P. 35(c) motion is properly denied as successive). And we may

affirm a district court’s ruling for any reason supported by the

record. People v. Heisler,

.

III. Crim. P. 35(c)(3)(VI)

¶9 Starting with the claims in defendant’s second Crim. P. 35(c)

motion that he had raised in his first Crim. P. 35(c) motion,

defendant argues that the claims are not barred as successive

under Crim. P. 35(c)(3)(VI) because they were not “raised and

resolved” in the proceedings on the first Crim. P. 35(c) motion. See

Crim. P. 35(c)(3)(VI) (“The court shall deny any claim that was

3 raised and resolved in a prior appeal or postconviction proceeding

on behalf of the same defendant.”). He emphasizes that in

preparing and filing his first Crim. P. 35(c) motion, he was not

represented by counsel and did not have access to the trial

transcripts.

¶ 10 But defendant does not cite, nor are we aware of, any

authority holding that a defendant does not “raise” a claim within

the meaning of Crim. P. 35(c)(3)(VI) merely because the defendant is

pro se or lacks access to trial transcripts. To “raise” a claim means

“to bring [it] up for consideration.” Webster’s Third New

International Dictionary 1877 (2002); see also Black’s Law

Dictionary 1449 (10th ed. 2014) (“[t]o bring [it] up for discussion or

consideration; to introduce or put forward”). Defendant’s first Crim.

P. 35(c) motion addressed seven claims in twenty-two pages of

argument supported by twenty-six pages of exhibits. So, we

conclude that he “raised” those claims in his first Crim. P. 35(c)

motion within the meaning of Crim. P. 35(c)(3)(VI).

¶ 11 And we further conclude that the claims were “resolved” within

the meaning of Crim. P. 35(c)(3)(VI). After all, the postconviction

4 court denied the first Crim. P. 35(c) motion in a written order and a

division of this court affirmed. See Taylor II.

¶ 12 For these reasons, we discern no error in the postconviction

court’s ruling that the renewed claims in the second Crim. P. 35(c)

motion are barred as successive under Crim. P. 35(c)(3)(VI). But

whether defendant’s new claims were equally successive presents a

closer question.

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

¶ 13 Addressing the new postconviction claims in the second Crim.

P. 35(c) motion, the Attorney General argues that these claims are

barred as successive under Crim. P. 35(c)(3)(VII). Defendant

responds that the claims are not because Crim. P. 35(c)(3)(VII) —

which was added to Crim. P. 35 in 2004 — did not supersede prior

case law holding that a defendant can raise new postconviction

claims in a second Crim. P. 35(c) motion if the first Crim. P. 35(c)

motion was filed pro se. See, e.g., People v. Hubbard,

,

(1974); Naranjo,

. We

conclude that these cases have been superseded by Crim. P.

35(c)(3)(VII).

5 ¶ 14 In Hubbard, the supreme court held that “all allegations

relating to the violation of a defendant’s constitutional rights should

be included in a single Crim. P. 35(b) motion.” Id. at 249,

. But the supreme court premised that holding on a

defendant being represented by postconviction counsel. It

explained that “without the assistance of counsel, a convicted

defendant would be hard-pressed to assemble into a single Crim. P.

35(b) motion all of the legal arguments which might result in

post-conviction relief.”

,

.

¶ 15 In Naranjo, a division of this court applied Hubbard and held

that if a defendant is not represented by counsel when the

defendant files a first Crim. P. 35(c) motion, the defendant may file

a second Crim. P. 35(c) motion raising new postconviction claims.

See

.

¶ 16 Importantly, when Hubbard and Naranjo were decided, the

provision in Crim. P. 35 barring successive postconviction claims

provided as follows: “The court need not entertain a second motion

or successive motions for similar relief based upon the same or

similar allegations on behalf of the same prisoner.” Crim. P. 35(c)(3)

(1987) (emphasis added); Crim. P. 35(b)(2) (1974) (emphasis added).

6 Thus, Crim. P. 35(c) barred only claims that had already been

raised in a prior Crim. P. 35(c) motion. It did not bar new

postconviction claims raised for the first time in a second or

subsequent Crim. P. 35(c) motion. Further, the language was

permissive: a court “need not” entertain a successive postconviction

motion. Crim. P. 35(c)(3) (1987); Crim. P. 35(b)(2) (1974).

¶ 17 In 2004, the supreme court added Crim. P. 35(c)(3)(VII), which

differs from the old rule in two ways. First, this provision now bars

postconviction claims that “could have been presented in an appeal

previously brought or postconviction proceeding previously

brought.” Crim. P. 35(c)(3)(VII). Second, the new language is

mandatory rather than permissive: a postconviction court “shall”

deny any such new postconviction claims. Crim. P. 35(c)(3)(VII); see

Willhite v. Rodriguez-Cera,

(“The word ‘shall’

connotes a mandatory requirement.”).

¶ 18 Crim. P. 35(c)(3)(VII) lists five exceptions to the general rule

barring new postconviction claims raised in a second or subsequent

Crim. P. 35(c) motion. But defendant does not argue that any of

those five enumerated exceptions applies. Rather, he merely

7 repeats that the rule from Hubbard and Naranjo remains in full

force.

¶ 19 This argument falls short because Crim. P. 35(c)(3)(VII) does

not include an exception codifying Naranjo. If the supreme court

had intended to preserve the rule from Naranjo when it adopted

Crim. P. 35(c)(3)(VII), it could have specifically accounted for a

defendant who filed the first Crim. P. 35(c) motion pro se. Because

it did not do so, we treat that omission as intentional. See Cain v.

People,

(“Under the rule of interpretation

expressio unius exclusio alterius, the inclusion of certain items

implies the exclusion of others.”) (citation omitted); In re Marriage of

Chalat,

(Colo. 2005) (“[W]e must presume that the

General Assembly, having chosen to speak with such exactitude,

did not intend any implied exceptions.”); see also People v. Steen,

(“We employ the same interpretive rules applicable

to statutory construction to construe a rule of criminal procedure.”).

¶ 20 Crim. P. 35(c)(3)(VII) has been in effect throughout this case.

Thus, when defendant filed his first Crim. P. 35(c) motion, he was

on notice that he needed to include all of his postconviction claims

in that Crim. P. 35(c) motion. See Adams v. Sagee,

,

8 ¶ 12 (“[T]he state may require pro se defendants in criminal cases to

adhere to procedural rules, though their cases often implicate

constitutional rights.”); cf. People v. McPherson,

(Colo. App. 2001) (A “defendant’s indigence, ignorance of the law,

and lack of legal counsel do not amount to justifiable excuse or

excusable neglect for an untimely filed collateral attack.”).

¶ 21 For these reasons, we reject defendant’s argument that being

pro se when he filed his first Crim. P. 35(c) motion is an exception

to the rule barring a second Crim. P. 35(c) motion raising new

postconviction claims.

¶ 22 Defendant also argues that he should have been allowed to file

a second Crim. P. 35(c) motion raising new claims because, when

he filed his first Crim. P. 35(c) motion, he did not have access to the

trial transcripts. The postconviction court did not address that

argument.

¶ 23 Defendant does not explain how lack of access to the

transcripts prevented him from raising all of his postconviction

claims in his first Crim. P. 35(c) motion. Recall, in his first Crim. P.

35(c) motion, defendant was able to raise seven claims spanning

twenty-two pages without access to transcripts. The lack of

9 transcripts is not an enumerated exception under Crim. P.

35(c)(3)(VII), nor is access to the trial transcript a constitutional

right. See Jurgevich v. Dist. Court,

(Colo. 1995)

(stating that “[a] defendant does not have a constitutional right to a

free transcript to search for errors to raise in a collateral attack”).

And the federal circuits have held that lack of access to transcript is

not a basis for equitable tolling. See Lloyd v. Van Natta,

(7th Cir. 2002) (“[T]he other circuits to consider this issue

have held that the unavailability of a transcript does not allow

equitable tolling to excuse an otherwise untimely [habeas] petition.

We find these cases persuasive, and we join our sister circuits in

holding that equitable tolling does not excuse [petitioner’s] late filing

simply because he was unable to obtain a complete trial transcript

before he filed his [habeas] petition.”) (citations omitted).

¶ 24 In the end, we decline defendant’s invitation to read into the

rule exceptions that it does not contain. As written, Crim. P.

35(c)(3)(VII) bars defendant’s new postconviction claims raised for

the first time in his second Crim. P. 35(c) motion.

V. Conclusion

¶ 25 The order is affirmed.

10 JUDGE HARRIS and JUDGE WELLING concur.

11