     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
                                                              March 26, 2020

                                2020COA48

No. 17CA1815, People v. Hunsaker — Criminal Procedure —
Postconviction Remedies — Correction of an Illegal Sentence

     This opinion considers whether the holding in Leyva v. People,

184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an illegal

sentence resets the three-year limitations period for filing a Crim. P.

35(c) motion — applies to any collateral attack that a defendant

might assert, or, alternatively, only to those claims that relate to

how the illegality in that sentence potentially affected the

defendant’s original convictions. Disagreeing with People v. Baker,

2017 COA 102, rev’d on other grounds, 2019 CO 97M, the majority

concludes that the correction of an illegal sentence only resets the

time period for filing a Crim. P. 35(c) motion for those claims that

relate to how the illegality in the sentence potentially affected a

defendant’s original convictions.
COLORADO COURT OF APPEALS                                        2020COA48


Court of Appeals No. 17CA1815
Larimer County District Court No. 03CR1173
Honorable Devin R. Odell, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

William J. Hunsaker, Jr.,

Defendant-Appellant.


                               ORDER AFFIRMED

                                  Division VI
                          Opinion by JUDGE GROVE
                              Graham*, J., concurs
                Richman, J., concurs in part and dissents in part

                            Announced March 26, 2020


Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Hunsaker Emmi, P.C., William J. Hunsaker, Golden, Colorado, for Defendant-
Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    In this appeal, we decide whether the holding in Leyva v.

 People, 184 P.3d 48, 50-51 (Colo. 2008) — that the correction of an

 illegal sentence resets the three-year limitations period for filing a

 Crim. P. 35(c) motion — applies to any collateral attack that a

 defendant might assert, or, alternatively, only to those claims that

 relate to how the illegality in that sentence potentially affected the

 defendant’s original convictions. We conclude that the correction of

 an illegal sentence only resets the time period for filing a Crim. P.

 35(c) motion for those claims that relate to how the illegality in the

 sentence potentially affected a defendant’s original convictions. For

 that reason, all but one of the claims asserted by defendant,

 William J. Hunsaker, Jr., in his Crim. P. 35(c) motion are untimely.

 And, because the timely claim may be denied as a matter of law, we

 affirm the district court’s order denying that motion.

¶2    In reaching this conclusion, we disagree with People v. Baker,

 2017 COA 102, rev’d on other grounds, 2019 CO 97M, in which

 another division of this court held that the correction of an illegal

 sentence resets the statutory time bar for collaterally attacking the

 original judgment of conviction in all respects.




                                    1
                           I.    Background

¶3    In 2006, a jury found Hunsaker guilty of sexual assault on a

 child and sexual assault on a child as part of a pattern of abuse

 (pattern count). The court sentenced him to concurrent prison

 terms of eight years to life for sexual assault on a child and sixteen

 years to life on the pattern count. On appeal, a division of this

 court affirmed Hunsaker’s convictions. People v. Hunsaker, (Colo.

 App. No. 06CA2088, Mar. 4, 2010) (not published pursuant to

 C.A.R. 35(f)) (Hunsaker I). The mandate issued on January 31,

 2011.

¶4    In 2011, Hunsaker filed a Crim. P. 35(a) motion, arguing that

 the court had illegally imposed sentences applicable to

 extraordinary risk crimes despite the fact that neither of his

 convictions presented an extraordinary risk of harm. The

 prosecution agreed that Hunsaker had not been convicted of an

 extraordinary risk crime and, accordingly, conceded that Hunsaker

 had received an illegal sentence for the count of sexual assault on a

 child. With respect to the pattern count, however, the prosecution

 maintained that the sentence was legal because the pattern count

 was a crime of violence. The district court agreed with Hunsaker


                                    2
 and amended the mittimus to reflect sentences of six years to life on

 the sexual assault on a child count and twelve years to life on the

 pattern count.

¶5    The People appealed the court’s decision to resentence

 Hunsaker on the pattern count. A division of this court agreed that

 the original sentence of sixteen years to life was legal and remanded

 the case for the district court to reinstate that sentence. People v.

 Hunsaker, 2013 COA 5, ¶¶ 24, 45-46 (Hunsaker II), aff’d, 2015 CO

 46, ¶ 40. The mandate issued on August 6, 2015. In February

 2016, the district court amended the mittimus to reinstate the

 sentence of sixteen years to life on the pattern count.

¶6    On February 16, 2016, Hunsaker filed the Crim. P. 35(c)

 motion that is the subject of this appeal. He argued that the

 district court violated his

           right to due process, by failing to follow the statutory

            requirements for determining his competency and

            allowing him to be tried and sentenced without

            determining whether he was competent;

           right to a jury trial, by imposing a sentence in 2006 that

            exceeded the maximum in the presumptive range on the

                                    3
           pattern count without a jury finding of aggravating

           circumstances; and

          right to be free of double jeopardy, by reinstating the

           sentence of sixteen years to life on the pattern count after

           he had completed the minimum term of the

           indeterminate sentence and had been released on parole

           because he had a legitimate expectation of finality once

           he had been released on parole.

¶7    Hunsaker also asserted that the four attorneys who

 represented him during the pretrial proceedings, trial, and

 sentencing provided ineffective assistance by

          failing to adequately prepare for trial;

          advising him to flee the jurisdiction;

          representing him while under a conflict of interest;

          failing to raise the issue of competency; and

          failing to object to the court’s imposition of sentences

           that were modified for extraordinary risk crimes even

           though the crimes of which he was convicted did not

           constitute an extraordinary risk of harm.




                                   4
¶8     After the People filed a response, Hunsaker filed a reply

  arguing that he did not receive reasonable notice that he was

  subject to a sentence with a minimum term that exceeded the

  maximum in the presumptive range without a finding of aggravated

  circumstances.

¶9     The district court denied Hunsaker’s Crim. P. 35(c) motion

  without a hearing.

                        II.   Abandoned Argument

¶ 10   Because he did not reassert it on appeal, Hunsaker has

  abandoned his double jeopardy argument. See People v. Osorio,

  170 P.3d 796, 801 (Colo. App. 2007).

          III.   Timeliness of Hunsaker’s Crim. P. 35(c) Claims

¶ 11   As for the issues that Hunsaker has raised on appeal, he

  argues that the district court erred by denying his motion without a

  hearing because he alleged facts that, if true, would provide a basis

  for relief. We conclude that all but one of Hunsaker’s claims are

  untimely.

¶ 12   We review de novo a district court’s denial of a Crim. P. 35(c)

  motion without a hearing. See People v. Phipps, 2016 COA 190M,

  ¶ 20. A court may deny the motion without a hearing if “the


                                    5
  motion, the files, and the record clearly establish that the defendant

  is not entitled to relief.” Osorio, 170 P.3d at 799.

¶ 13   Generally, a defendant must file a Crim. P. 35(c) motion within

  three years after the date of his felony conviction. See § 16-5-

  402(1), C.R.S. 2019. Where, as here, there was a direct appeal, a

  conviction is final when the appellate process has been exhausted.

  See People v. Hampton, 857 P.2d 441, 444 (Colo. App. 1992), aff’d,

  876 P.2d 1236 (Colo. 1994). The date of Hunsaker’s conviction for

  purposes of section 16-5-402(1) was January 31, 2011 — the date

  the mandate issued in Hunsaker I. The statutory limitations period

  thus expired on January 31, 2014, but Hunsaker did not file his

  Crim. P. 35(c) motion until February 16, 2016.1

¶ 14   Nonetheless, citing Leyva, Hunsaker argues (as he did in the

  Crim. P. 35(c) motion) that the motion was timely filed because his

  convictions did not become final (and the three-year limitations

  period did not start) until the district court reinstated the sentence


  1 Although there is an exception to the three-year limitations period
  if a defendant shows that his “failure to seek relief within the
  applicable time period was the result of circumstances amounting
  to justifiable excuse or excusable neglect,” § 16-5-402(2)(d), C.R.S.
  2019, Hunsaker did not allege that there was justifiable excuse or
  excusable neglect for the late Crim. P. 35(c) arguments.

                                     6
  of sixteen years to life on the pattern count on February 29, 2016.

  He contends that the People’s appeal of the sentence on the pattern

  count tolled the deadline for filing a Crim. P. 35(c) motion as to any

  issue involving his convictions or sentences.

¶ 15   In Leyva, the supreme court held that “when an illegal

  sentence is corrected pursuant to Crim. P. 35(a), it renews the

  three-year deadline for collaterally attacking the original judgment

  of conviction pursuant to Crim. P. 35(c).” Leyva, 184 P.3d at 50-51.

  Yet, despite the apparent breadth of this language, Leyva limited its

  holding by stating that the illegality allows a defendant “to pursue

  any good-faith arguments for postconviction relief addressing how

  that illegality potentially affected his or her original conviction.” Id. at

  50 (emphasis added). We read this sentence as requiring some

  nexus between the original illegal sentence and the claims raised in

  a future Crim. P. 35(c) motion. Indeed, as the dissenting justices in

  Leyva noted, the majority tried “to limit the consequences of its

  rationale by suggesting that the defendant’s right to collaterally

  attack his judgment of conviction remains restricted, even after

  today’s holding, to matters sufficiently affected by or related to the

  illegality of his sentence.” Id. at 51 (Coats, J., dissenting).


                                       7
¶ 16   We conclude that Leyva limits the renewal of the three-year

  deadline for filing a Crim. P. 35(c) motion to claims that are related

  to how the illegality in the original sentence potentially affected a

  defendant’s original conviction. Thus, the illegality in the original

  sentence on Hunsaker’s conviction for sexual assault on a child did

  renew the three-year period for him to file a Crim. P. 35(c) motion

  on all claims — but instead only for claims that relate to how the

  illegality in that sentence may have affected his conviction.

¶ 17   Hunsaker’s postconviction claims relate to the district court’s

  actions in determining his competency and in imposing the original

  sentence on the pattern count (which was legal from the time that it

  was imposed); trial counsel’s performance before and during the

  trial on matters unrelated to his sentences; and trial counsel’s

  performance during sentencing related to the pattern count. Only

  the last of these claims — that defense counsel rendered ineffective

  assistance by failing to object to the imposition of an extraordinary

  risk sentence where the conviction did not present an extraordinary

  risk of harm — even arguably relates to the illegality in his original

  sentence for sexual assault on a child.




                                     8
¶ 18   Therefore, with the exception of that argument, Hunsaker’s

  limitations period expired on January 31, 2014, three years after

  the mandate issued in Hunsaker I. Any Crim. P. 35(c) claims that

  did not relate to how the illegality in Hunsaker’s sentence may have

  affected his conviction were untimely, and the district court

  properly denied them without a hearing. See Osorio, 170 P.3d at

  799; see also People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)

  (an appellate court may affirm the district court on any ground

  supported by the record).

¶ 19   In reaching this conclusion, we necessarily disagree with the

  division in Baker. See People v. Thomas, 195 P.3d 1162, 1164

  (Colo. App. 2008) (one division of this court is not bound by the

  decision of another division). In Baker, the division declined to read

  any limitation into Leyva’s holding, concluding that the supreme

  court (1) repeatedly phrased its holding broadly; and (2) remanded

  the case for “consideration of the defendant’s ineffective assistance

  of counsel claims on all of the defendant’s convictions, even though

  it determined the defendant’s sentence was illegal on only one

  count.” Baker, ¶¶ 40-41.




                                    9
¶ 20   We are not persuaded that Leyva’s phrasing negated the

  limiting language used in the opinion. Nor do we believe that the

  broad remand in that case requires a similar result here. To the

  contrary, the scope of Leyva’s mandate was consistent with the

  opinion’s limiting language because the defendant’s Crim. P. 35(c)

  motion included an argument that “the late-discovered illegality in

  his sentence helps establish that he received ineffective assistance

  of counsel.” Leyva, 184 P.3d at 50.

¶ 21   In our view, it makes sense to require some connection

  between the illegality that formed the basis of an illegal sentence

  and an otherwise belatedly raised claim. Concluding that no such

  connection is necessary would run counter to the state’s interest in

  the finality of convictions by allowing otherwise time-barred

  defendants to file repeated motions under Crim. P. 35(a) with the

  hope of discovering an illegality that reopens the Crim. P. 35(c)

  door. But we discern no good reason to allow the period for filing

  any and all potential Crim. P. 35(c) claims to recommence simply

  because some component of a defendant’s sentence was

  inconsistent with statutory authority, regardless of the extent of the

  illegality. See People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.


                                    10
  2006) (“[A] sentence is ‘illegal’ under Crim. P. 35(a) if it is

  ‘inconsistent with the statutory scheme outlined by the legislature.’”

  (quoting People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005))).

¶ 22   Here, unlike the defendant in Leyva, Hunsaker made no

  attempt in his postconviction motion to link the illegality of the

  sentence on the sexual assault on a child count to his collateral

  attack on the judgment of conviction. That is, he did not argue that

  the illegality in his sentence had any bearing on the question

  whether his underlying conviction was constitutionally obtained.

  Thus, Baker’s reliance on Leyva’s remand does not persuade us

  that the statutory limitations period should be reset for all of

  Hunsaker’s claims.

                IV.   Extraordinary Risk Crime Argument

¶ 23   Next, we will assume, without deciding, that the three-year

  limitations period was reset with respect to Hunsaker’s claim that

  trial counsel was constitutionally ineffective for failing to object

  when the court modified the presumptive range for an extraordinary

  risk crime and that the claim was timely filed. Even so, we

  conclude that the claim fails as a matter of law.




                                      11
¶ 24   A court may deny an ineffective assistance of counsel claim, as

  a matter of law, if the defendant does not make sufficient

  allegations that, if true, would entitle him to relief. See People v.

  Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011), aff’d on other

  grounds, 2015 CO 37.

¶ 25   To prove an ineffective assistance of counsel claim, a

  defendant must show that his counsel’s performance was deficient

  — that is, it fell below an objective standard of reasonableness —

  and that the deficient performance prejudiced the defense. See

  Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). “Because a

  defendant must show both deficient performance and prejudice, a

  court may resolve the claim solely on the basis that the defendant

  has failed in either regard.” People v. Karpierz, 165 P.3d 753, 759

  (Colo. App. 2006).

¶ 26   The test for evaluating counsel’s performance is whether

  counsel’s conduct was “within the range of competence demanded

  of attorneys in criminal cases under prevailing professional norms.”

  People v. Garcia, 815 P.2d 937, 941 (Colo. 1991). “To prove

  prejudice, a defendant must show a reasonable probability that, but

  for counsel’s ineffective assistance, the result of the proceeding


                                     12
  would have been different.” Karpierz, 165 P.3d at 759. “A

  reasonable probability is a probability sufficient to undermine

  confidence in the outcome.” Id.

¶ 27    In the Crim. P. 35(c) motion, Hunsaker alleged that trial

  counsel’s performance was deficient for failing to object to the

  court’s modification of the presumptive sentencing ranges for

  extraordinary risk crimes, even though the crimes for which he was

  convicted were no longer considered to be an extraordinary risk of

  harm after the legislature repealed the classification in 2004. He

  argued that counsel’s deficient performance prejudiced his defense

  because, if counsel had brought the repeal to the court’s attention,

  it would have resulted in the court imposing a sentence of twelve

  years to life.

¶ 28    Although Hunsaker did not specify this, a sentence of twelve

  years to life would have been applicable only to the pattern count.

  Therefore, we limit our analysis of how the illegality in the sentence

  on the sexual assault on a child count could have affected the

  sentence on the pattern count.

¶ 29    We agree that the allegation that trial counsel’s failure to

  object to the court’s modification of the sentencing range for an


                                     13
  extraordinary risk crime when the crime of sexual assault on a

  child was not an extraordinary risk crime, if true, would have

  constituted deficient performance. However, Hunsaker has not

  shown how the outcome of the sentencing hearing would have been

  different with regard to the sentence on the pattern count, because

  the fact that the presumptive sentencing range on the sexual

  assault on a child count should have been different has no bearing

  on the presumptive sentencing range on the pattern count.

  Hunsaker’s claim regarding the presumptive range on the pattern

  count is time barred because the original sentence on that count

  was legal. The limitations period has not been reset with regard to

  that claim.

¶ 30   Under these facts, we conclude that the court also properly

  denied this claim without a hearing. See Osorio, 170 P.3d at 799;

  see also Aarness, 150 P.3d at 1277.

                            V.   Conclusion

¶ 31   The order is affirmed.

       JUDGE GRAHAM concurs.

       JUDGE RICHMAN concurs in part and dissents in part.




                                   14
       JUDGE RICHMAN, concurring in part and dissenting in part.

¶ 32   I agree with the majority’s comment that for purposes of

  enforcing a time limitation on postconviction motions, it makes

  sense to require some connection between the illegality that formed

  the basis of a successful illegal sentence claim and a later-filed

  claim under Crim. P. 35(c). Otherwise, the goal of finality embodied

  in section 16-5-402(1), C.R.S. 2019, is undermined.

¶ 33   However, I cannot state with certainty that the language of

  Leyva v. People, 184 P.3d 48, 50-51 (Colo. 2008), requires that

  connection, and thus I must express my disagreement with the

  majority. At least three times in the Leyva opinion, the majority

  states its holding without requiring a connection between the illegal

  sentence and the scope of the Crim. P. 35(c) motion.

             [T]he three-year deadline for bringing a Crim.
             P. 35(c) motion regarding the original
             conviction was not triggered until Leyva’s
             sentence was corrected, and his judgment of
             conviction amended.

  184 P.3d at 49.

             [T]he only question is whether Leyva’s
             collateral attack on his 1993 conviction,
             brought within three years of his resentencing,
             was properly brought within three years “of



                                    15
             said conviction,” as that term is used in
             section 16-5-402(1).

  Id. at 49-50.

             We conclude that when an illegal sentence is
             corrected pursuant to Crim. P. 35(a), it renews
             the three-year deadline for collaterally
             attacking the original judgment of conviction
             pursuant to Crim. P. 35(c).

  Id. at 50-51.

¶ 34   While the opinion also states that “[i]f an illegality is

  discovered in a prisoner’s sentence, the prisoner should be allowed

  to pursue any good-faith arguments for postconviction relief

  addressing how that illegality potentially affected his or her original

  conviction,” id. at 50, that sentence, until further clarified by the

  supreme court, does not appear to be the holding of the case. See

  People v. Baker, 2017 COA 102, ¶ 40, rev’d on other grounds, 2019

  CO 97M.1




  1The supreme court granted certiorari in Baker on this very issue.
  People v. Baker, No. 17SC570, 2017 WL 5477160 (Colo. Nov. 13,
  2017) (unpublished order) (“Whether the correction of a sentence
  not authorized by law renews the three-year deadline for collaterally
  attacking the original judgment of conviction in all respects.”).
  However, it then decided the case on different grounds. Perhaps it
  will grant certiorari in this case and clarify the issue.

                                     16
¶ 35   Thus, I must disagree with the majority’s reliance on that

  sentence. I must further disagree that all of Hunsaker’s claims,

  other than the one regarding trial counsel’s failure to object to the

  district court’s modification of the sentencing range for an

  extraordinary risk crime, are barred by the time limitation.

¶ 36   Nonetheless, I concur with the majority that the district court

  properly denied the claim regarding trial counsel’s failure to object

  to the court’s modification of the sentencing range for an

  extraordinary risk crime, for the reasons stated by the majority.

¶ 37   I would also conclude that Hunsaker’s claim that the district

  court denied his right to due process by failing to follow the

  statutory requirements for determining his competency, and by

  allowing him to be tried and sentenced without a competency

  determination, was an issue that could have been presented in a

  previous appeal. It was therefore successive and barred under

  Crim. P. 35(c)(3)(VII). Accordingly, I would affirm the district court’s

  order as to this claim.

¶ 38   Finally, because I conclude that Hunsaker’s ineffective

  assistance of counsel claims were timely brought, I would remand

  this case for a hearing on his claims that counsel was ineffective for


                                    17
  (1) failing to adequately prepare for trial; (2) advising him to flee the

  jurisdiction; and (3) failing to raise the issue of competency. I do

  not find the district court’s reasons for denying these claims to be

  persuasive for several reasons.

¶ 39   First, the district court’s order does not appear to address the

  claim that counsel was inadequately prepared for trial.

¶ 40   Second, the order concludes that the allegation that counsel

  advised Hunsaker to flee the jurisdiction is “very difficult to believe.”

  That may be so, but a defendant is entitled to a hearing so long as

  he has asserted facts in his postconviction motion that, if true,

  would provide a basis for relief under Crim. P. 35. People v.

  Morones-Quinonez, 2015 COA 161, ¶ 6 (citing White v. Denver Dist.

  Court, 766 P.2d 632, 635 (Colo. 1988)). The district court did not

  apply that standard.

¶ 41   Third, the order rejected the claim that counsel improperly

  failed to raise the issue of competency by simply stating, “counsel

  properly raised and resolved that issue.” While the record reflects

  that counsel stated that Hunsaker’s mental health issues, which

  were previously raised, had “been resolved with regard to his

  lawyers,” that statement does not clarify that these issues were


                                     18
  withdrawn after consultation with Hunsaker and with his consent.

  On remand, I would order the district court to examine the

  circumstances that led to counsel’s statement and determine

  whether it was authorized by Hunsaker.

¶ 42   To the extent that the district court denied Hunsaker’s other

  postconviction claims, I would affirm those rulings.




                                   19
