Motion for Appointment of Counsel Not Time Barred
Defendant appeals from the trial court order denying without a hearing his Crim. P. 35(c) motion.
That court concluded both that defendant's motion was time-barred and that it was substantively meritless.
Because we conclude, as a matter of law, that the motion was time-barred, we affirm without reaching the merits of defendant's contentions.
In 1986, defendant was convicted after a jury trial of first degree arson, intimidating a witness, conspiracy to intimidate a witness, and four counts of being an habitual criminal.
On direct appeal, a division of this court reversed the conviction of conspiracy to intimidate a witness, but all other convictions were affirmed. People v. X (Colo. App. No. 86CA0600, Oct. 12, 1989) (not selected for official publication).
The supreme court denied certiorari on February 20, 1990.
On April 17, 1997, more than seven years later, defendant filed a motion for appointment of counsel referring to a "concurrently" filed motion to vacate the judgment of conviction.
The trial court denied the motion because no motion to vacate the judgment had been filed.
Defendant then filed his "second supplemental motion to vacate" on June 16, 1997, which included among the attachments a motion to vacate, signed January 26, 1997, and a supplement to motion to vacate, signed March 5, 1997.
He asserted that his motion to vacate was mailed to the court shortly after it was signed.
The trial court ordered defendant to show cause why his motion was not time-barred by 16-5-402, C.R.S. 1999. In his response, defendant asserted that he could not have filed his motion until the announcement of People v. Thomas, 867 P.2d 880 (Colo. 1994) (holding Colo. Sess. Laws 1981, ch. 190 at 927, now codified as 16-5-402(3), C.R.S. 1999, unconstitutional) and that his motion was filed on January 27, 1997, within three years of the announcement of Thomas.
Relying upon Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), he argued that submission of his motion to the mailroom staff where he was incarcerated set the date of filing of the motion.
The trial court assumed that People v. Thomas, supra, did apply and that defendant's motion had to be filed no later than January 31, 1997, to avoid the time bar of 16-5-402.
Rejecting defendant's assertion that he had mailed the motion on January 27, 1997, the trial court concluded that he had merely shown that he had submitted some documents for mailing to someone on that date.
The trial court then proceeded to reject all the claims raised in the motion to vacate judgment.
On appeal, the defendant asserts that the trial court erred in concluding that his motion was time-barred, arguing that his motion was filed within three years after the announcement of People v. Thomas, supra. We are not persuaded.
Accordingly, because defendant's motion was not timely, the trial court properly denied that motion without a hearing.
The order denying defendant's Crim. P. 35(c) motion is affirmed.