23CA0488 Peo v White 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0488

City and County of Denver District Court No. 13CR4239

Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas James White,

Defendant-Appellant.

ORDER AFFIRMED

Division II

Opinion by JUDGE GROVE

Fox and Sullivan, JJ., concur

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

Announced August 1, 2024

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Thomas James White, Pro Se

1

¶ 1 Defendant, Thomas James White, appeals the denial of his

postconviction motion challenging the proportionality of his

sentence under the reasoning of Wells-Yates v. People, 2019 CO

90M. Because White filed his postconviction motion more than

three years after his conviction became final, and because he has

not established justifiable excuse or excusable neglect for his

untimely filing, we conclude that his motion is time barred. We

therefore affirm.

I. Background

¶ 2 In 2014, White was convicted of the following:

• pimping of a child,

• pandering of a child,

• procurement of a child,

• keeping a place of child prostitution, and

• contributing to the delinquency of a minor.

At sentencing, White was adjudicated as a habitual offender based

on three prior felony convictions.

1

1

White was convicted of second degree robbery in Missouri in 1997,

federal felon in possession of a firearm in Missouri in 2001, and

another federal felon in possession of a firearm in Missouri in 2007.

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a controlling term of forty-eight years in the custody of the

Department of Corrections, with all of his sentences to run

concurrently. Through counsel, White challenged the

proportionality of his sentence at the sentencing hearing. After

conducting an abbreviated proportionality review, the court

concluded the sentence was not grossly disproportionate.

¶ 3 White appealed, alleging two trial errors; he did not argue that

his sentence was grossly disproportionate. People v. White, (Colo.

App. No. 15CA0296, Mar. 1, 2018) (not published pursuant to

C.A.R. 35(e)). The division issued its mandate in February 2019.

Shortly thereafter, White filed a pro se Crim. P. 35(c) motion, which

was denied without a hearing. White also filed a Crim. P. 35(a)

motion to correct an illegal sentence and a Crim. P. 35(b) motion for

sentence reconsideration; both were summarily denied.

¶ 4 In April 2022, White filed the instant postconviction motion

arguing that his sentence is grossly disproportionate under Wells-

Yates. The postconviction court denied the motion without a

hearing after conducting an abbreviated proportionality review. The

court’s order did not address whether White’s motion should be

procedurally barred.

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¶ 5 This appeal followed.

II. Timeliness

¶ 6 We review do novo the denial of a Crim. P. 35(c) motion

without an evidentiary hearing. People v. Chalchi-Sevilla, 2019 COA

75, ¶ 8. “A court may deny a defendant’s Crim. P. 35(c) motion

without an evidentiary hearing ‘only where the motion, files, and

record in the case clearly establish that the allegations presented in

the defendant’s motion are without merit . . . .’” Id. at ¶ 7 (citation

omitted). Additionally, we may affirm the postconviction court’s

summary denial based on timeliness even if the postconviction

court denied the motion on other grounds. § 16-5-402(1.5), C.R.S.

2023.

¶ 7 A postconviction motion arguing that the defendant’s sentence

is grossly disproportionate is a challenge to the constitutionality of

the sentence and is therefore cognizable under Crim. P. 35(c)(2)(I).

Lucero v. People, 2017 CO 49, ¶ 26. For felony convictions other

than class 1 felonies, a challenge to the constitutionality of a

sentence must be brought within three years of the sentence

becoming final. § 16-5-402(1). When a defendant directly appeals

his conviction (and does not prevail on appeal), the conviction

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becomes final when the appellate mandate issues. See People v.

Hampton, 876 P.2d 1236, 1238 (Colo. 1994); see also People v.

Stanley, 169 P.3d 258, 259 (Colo. App. 2007).

¶ 8 If a defendant files a postconviction motion more than three

years after his conviction becomes final, he must affirmatively plead

justifiable excuse or excusable neglect for the late filing. § 16-5-

402(2)(d); People v. Wiedemer, 852 P.2d 424, 440 n.15 (Colo. 1993).

¶ 9 Here, White acknowledges that he filed the current

postconviction more than three years after the mandate issued from

his direct appeal, but he asserts that it is not time barred for two

reasons. First, he argues that the procedural bars to Crim. P. 35(c)

do not apply to proportionality reviews for habitual offenders. And

second, White contends that his late filing should be excused

because Wells-Yates established a new rule of constitutional law for

conducting a proportionality review under the habitual offender

statute. See Crim. P. 35(c)(3)(VI)(b), (VII)(c); see also People v.

Rainer, 2013 COA 51, ¶ 28 (holding that a significant change in

constitutional law can constitute justifiable excuse for an otherwise

untimely postconviction filing), rev’d on other grounds, 2017 CO 50.

We disagree on both points.

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¶ 10 First, citing People v. Session, 2020 COA 158, and People v.

Anaya, 894 P.2d 28 (Colo. App. 1994), White asserts that a

defendant who is sentenced under the habitual criminal statute is

“always entitled” to a proportionality review “upon request,” and

apparently without regard to timing. At least three published

decisions issued by divisions of this court have held otherwise. See

People v. McDonald, 2023 COA 23, ¶ 8 (applying statutory time bar

to proportionality claim raised by defendant sentenced under

habitual criminal statutes) (cert. granted Nov. 14, 2023); People v.

Moore-El, 160 P.3d 393, 395 (Colo. App. 2007) (same); People v.

Talley, 934 P.2d 859, 860 (Colo. App. 1996) (same). White does not

offer any persuasive reason to depart from the holdings of these

cases, and we agree with their reasoning. Accordingly, White’s

postconviction claim is time barred unless he is able to establish

justifiable excuse or excusable neglect for his late filing. We turn to

that question next.

¶ 11 Second, in some cases, a defendant can establish justifiable

excuse or excusable neglect for an otherwise untimely

postconviction filing by basing the claim on a new rule of

substantive constitutional law established in case law. See Rainer,

6

¶ 29. New rules of constitutional law generally do not apply

retroactively to cases that have become final before the rule is

announced. Teague v. Lane, 489 U.S. 288, 310 (1989); Edwards v.

People, 129 P.3d 977, 980 (Colo. 2006). But there are two

exceptions to this bar against retroactivity: (1) if the rule is

substantive, meaning that it “alter[s] the range of conduct or the

class of persons that the law punishes,” as opposed to procedural,

meaning that it “regulate[s] only the manner of determining the

defendant’s culpability”; or (2) if the rule is a “watershed”

procedural rule that implicates the fundamental fairness and

accuracy of the criminal proceeding. People v. Johnson, 142 P.3d

722, 725-27 (Colo. 2006) (quoting Schriro v. Summerlin, 542 U.S.

348, 353 (2004)); see also Edwards, 129 P.3d at 983-84, 986-87.

¶ 12 McDonald, ¶¶ 12-24, is informative. In that case, as here, the

defendant requested a proportionality review several years after his

conviction became final based on the supreme court’s opinion in

Wells-Yates. Id. at ¶¶ 6, 9. The division evaluated that request

under Rule 35(c), just as we do here, even though it was not

designated as such. Id. at ¶¶ 8-10. The defendant argued, among

other things, that his late filing should be excused because his

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motion was based on new rules of constitutional law announced in

Wells-Yates that applied retroactively. Id. at ¶ 9.

¶ 13 The McDonald division disagreed, concluding that even if

Wells-Yates did create any new rules of constitutional law, those

rules are procedural, not substantive, and therefore did not apply

retroactively. Id. at ¶ 12. As the division explained, Wells-Yates

clarified Colorado’s approach to proportionality challenges,

announcing that (1) when evaluating the gravity or seriousness of a

defendant’s offenses, courts should consider relevant legislative

amendments enacted after the date of the offense, even if they do

not apply retroactively; and (2) the per se grave and serious

designation should be reserved for the rare crimes that, based on

their statutory elements, necessarily involve grave or serious

conduct, and not all drug offenses are per se grave or serious.

McDonald, ¶¶ 15, 18 (citing Wells-Yates, ¶¶ 45, 63, 76). The

division reasoned that these rules are procedural because they “did

not ‘change[] the scope of the underlying criminal proscription” but

“only clarified the methods Colorado courts should use when

evaluating whether a habitual sentence is constitutionally

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disproportionate in a given case.” Id. at ¶ 21 (alteration in original)

(citation omitted).

¶ 14 McDonald further noted that, while the defendant in that case

did not argue that the rules announced in Wells-Yates satisfied the

second exception for “watershed” rules of criminal procedure, it

“d[id]n’t see how they could.” Id. at ¶ 23. It added that the United

States Supreme Court has “emphasiz[ed] the limited scope of the

watershed-rules-of-criminal-procedure exception” and has

“explain[ed] that [the exception] is ‘clearly meant to apply only to a

small core of rules requiring the observance of those procedures

that . . . are implicit in the concept of ordered liberty.’” Id. (quoting

Beard v. Banks, 542 U.S. 406, 417 (2004)).

¶ 15 We agree with the holding in McDonald and therefore follow it.

Any new rules announced in Wells-Yates do not apply retroactively

and do not provide a basis for a finding of justifiable excuse or

excusable neglect for White’s untimely Rule 35(c) motion seeking a

proportionality review. As a result, his motion is time barred.

III. Disposition

¶ 16 We affirm the postconviction court’s order.

JUDGE FOX and JUDGE SULLIVAN concur.