Collateral Attack - CRS 16-5-402 Cases
In People v. Germany, 674 P.2d 345 (Colo. 1983), the supreme court held that Colo. Sess. Laws 1981, ch. 190 at 926, now codified as 16-5-402(1), C.R.S. 1999, was unconstitutional because, as then in effect, it prohibited collateral attacks outside the statutorily specified time limits even if the failure to act within those limits resulted from justifiable excuse or excusable neglect.
Although the constitutionality of the absolute bar in 16-5-402(3), C.R.S. 1999, for convictions that had been affirmed on appeal was not directly at issue in Germany, the supreme court cited it as one example of the statute's "capricious effects" and opined that subsection 3 contained "even greater restrictions" than the provision of 16-5-402(1) that it specifically held to be unconstitutional. People v. Germany, supra, 674 P.2d at 351-53.
In response to Germany, the General Assembly amended 16-5-402(2) to include a justifiable excuse or excusable neglect exception to the time limitations. However, it did not repeal the provision of 16-5-402(3) which completely denied post-conviction relief to defendants whose convictions had been affirmed on direct appeal. See 16-5-402(2) and 16-5-402(3), C.R.S. 1999.
Subsequently, in People v. Thomas, supra, the supreme court reiterated the concerns it had expressed in Germany respecting 16-5-402(3).
The court in Thomas then explicitly declared 16-5-402(3) unconstitutional, while noting that it was "arguable" that it had already done so in Germany. People v. Thomas, supra, fn. 7. Thus, because the decision in Germany pre-dated defendant's convictions, the tenuous existence of 16-5-402(3) cannot constitute justifiable excuse or excusable neglect for failing to pursue collateral relief. Indeed, the later ruling in Thomas would have been anticipated by any reasonable person.
Although the issue of justifiable excuse or excusable neglect is ordinarily a question of fact to be determined by a hearing in the trial court, see People v. Abad, 962 P.2d 290 (Colo. App. 1997).