     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
                                                                  May 3, 2018

                                2018COA61

No. 15CA2082, People v. Cali — Criminal Procedure —
Postconviction Remedies — Collateral Attack Upon a Criminal
Judgment

     A division of the court of appeals considers whether a

defendant is entitled to the benefit of a statutory amendment that

took effect before his conviction was final on appeal even though the

defendant requested the benefit of the amendment in a Crim. P.

35(c) postconviction motion after his conviction became final on

appeal. The division concludes that under People v. Boyd, 2017 CO

2, the statutory amendment that took effect before the defendant’s

conviction was final on appeal deprived the State of the authority to

prosecute the defendant for the offense of which he was convicted.

Although the defendant did not raise the State’s loss of authority to

prosecute him before his conviction became final on appeal, the
division concludes that the defendant could collaterally attack his

conviction on this ground under Crim. P. 35(c)(2)(VI) after his

conviction became final on appeal. The defendant is therefore

entitled to the benefit of the statutory amendment.
COLORADO COURT OF APPEALS                                        2018COA61



Court of Appeals No. 15CA2082
El Paso County District Court No. 11CR3659
Honorable Barney Iuppa, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Osmundo Rivera Cali,

Defendant-Appellant.


                  ORDER REVERSED, JUDGMENT VACATED,
                  AND CASE REMANDED WITH DIRECTIONS

                                 Division VII
                          Opinion by JUDGE ASHBY
                              Terry, J., concurs
                             Nieto*, J., dissents

                            Announced May 3, 2018


Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Osmundo Rivera Cali, Pro Se


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Osmundo Rivera Cali, appeals the postconviction

 court’s order denying his Crim. P. 35(c) motion. We apply People v.

 Boyd, 2017 CO 2, to conclude that a defendant whose conviction

 has been affirmed on direct appeal may nevertheless collaterally

 attack that conviction in a postconviction motion on the ground

 that the State lost the authority to prosecute his conviction during

 the pendency of his direct appeal. We therefore reverse the

 postconviction court’s order, vacate Cali’s conviction, and remand

 the case with directions.

                             I. Background

¶2    In 2012, Cali was convicted of theft and theft by receiving,

 both class 4 felonies, as well as two habitual criminal counts. The

 trial court sentenced him to eighteen years in the custody of the

 Department of Corrections.

¶3    In August 2012, Cali directly appealed his convictions,

 arguing, among other things, that he could not be convicted of theft

 and theft by receiving because both offenses involved the same

 stolen property. A division of this court agreed and, in October

 2014, vacated his theft conviction while affirming his theft by




                                   1
 receiving conviction. See People v. Cali, (Colo. App. No. 12CA1730,

 Oct. 2, 2014) (not published pursuant to C.A.R. 35(f)).

¶4    Meanwhile, in June 2013, after Cali had filed his notice of

 appeal in the direct appeal and while the appeal was still pending,

 the legislature reclassified theft by receiving, as committed by Cali,

 to a class 6 felony. Ch. 373, sec. 3, § 18-4-410, 2013 Colo. Sess.

 Laws 2197-98 (repealing theft by receiving statute); Ch. 373, sec. 1,

 § 18-4-401, 2013 Colo. Sess. Laws 2195-96 (incorporating

 substantive offense of theft by receiving into offense of theft). Cali

 did not request the benefit of the amended theft by receiving statute

 in his direct appeal. Instead, after his direct appeal became final,

 Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant

 here, that he was entitled to the benefit of the changed statute.

¶5    The postconviction court denied Cali’s motion without a

 hearing. In doing so, it ruled that Cali was not entitled to the

 benefit of the changed statute because “the law changed after his

 sentence was imposed, his sentence has been affirmed on appeal

 and because the ‘new’ Theft [sic] statute was intended to have

 prospective, not retroactive, application.”




                                    2
¶6    Cali now appeals the postconviction court’s ruling.1 He argues

 that the trial court erred by analyzing his postconviction claim as a

 request for retroactive application of the statutory amendment.

 Instead, he argues that because the amendment took effect while

 his direct appeal was still pending and before his conviction became

 final, he is entitled to the benefit of the amendment. We agree.

      II. Cali Was Entitled to the Benefit of the Changed Statute

¶7    As the postconviction court acknowledged, whether Cali is

 entitled to the benefit of the changed statute is a purely legal

 question. We therefore review the postconviction court’s ruling de

 novo. See People v. Valdez, 178 P.3d 1269, 1278 (Colo. App. 2007).

¶8    The prosecution argues that “the long-established rule in

 Colorado is that the law in effect at the time the offense is

 committed is the law that controls both the prosecution and

 punishment of the defendant.” It cites People v. Orr, 39 Colo. App.

 289, 566 P.2d 1361 (1977), for this rule. But this argument

 misconstrues the relevant rule and the holding in Orr. Contrary to


 1Cali’s other claims in his pro se Crim. P. 35(c) motion are
 unrelated to the statutory amendment and are not before us in this
 appeal.


                                    3
  the prosecution’s argument, the rule in Colorado, as stated by the

  division in Orr, is that “[g]enerally the law in effect at the time the

  offense is committed controls; however, if a lesser penalty is enacted

  by the legislature before the final disposition of a defendant’s case,

  the defendant is entitled to the benefits of the legislative change.”

  Id. at 293, 566 P.2d at 1364 (citation omitted).

¶9     This rule originated in People v. Thomas, 185 Colo. 395, 398,

  525 P.2d 1136, 1138 (1974), wherein the supreme court held that a

  criminal defendant was entitled to the benefit of a statutory change

  that took effect after he committed the offense but before his

  conviction became final. In doing so, the court said, “[t]he view that

  amendatory legislation mitigating the penalties for crimes should be

  applied to any case which has not received final judgment finds

  substantial support in the common law.” Id.

¶ 10   For decades, “both the supreme court and the court of appeals

  have consistently applied the Thomas rule to give convicted criminal

  defendants the ‘benefit of amendatory legislation which became

  effective at any time before the conviction became final on appeal.’”

  People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold,

  190 Colo. 136, 137, 543 P.2d 1251, 1252 (1975)), aff’d, 2017 CO 2.


                                      4
  While this rule itself is clear, what is not clear is whether its

  application implicates retroactivity principles. In other words, it is

  not clear whether giving a defendant the benefit of a changed

  statute before his or her conviction becomes final on appeal is

  retroactive application of the new statute or merely application of

  the new statute to a still-pending case. The supreme court’s recent

  opinion in Boyd suggests the latter.

¶ 11   Boyd was convicted of possession of a small amount of

  marijuana and sentenced. Id. at ¶ 2. But before that conviction

  and sentence became final on appeal, an amendment to the state

  constitution (Amendment 64) took effect that made it legal to

  possess the amount of marijuana that Boyd had been convicted of

  possessing. Id. at ¶ 4. A division of this court held that under

  Thomas and its progeny, Amendment 64 applied retroactively to de-

  criminalize Boyd’s conduct because the amendment took effect

  while Boyd’s direct appeal was still pending. Id. at ¶¶ 14-25. Both

  the majority and the partial dissent in that division specifically and

  thoroughly addressed Thomas and its progeny, along with several

  statutes implicating retroactivity principles. Id. at ¶¶ 14-35; id. at

  ¶¶ 55-86 (Bernard, J., concurring in part and dissenting in part).


                                      5
¶ 12   After granting certiorari, the supreme court took a different

  approach. The supreme court majority affirmed that Boyd was

  entitled to the benefit of Amendment 64. Boyd, 2017 CO 2, ¶ 10.

  But, as the dissent pointed out, the majority did so without

  addressing retroactivity principles and without even using the term

  “retroactive” in its substantive analysis. Id. at ¶ 11 (Eid, J.,

  dissenting) (“The majority carefully avoids using the term

  ‘retroactive’ (except when it cannot, as in the certiorari question

  upon which this court granted).”) (citation omitted). Instead, the

  majority held that as of Amendment 64’s effective date, the State

  lost the authority to prosecute Boyd’s conviction. Id. at ¶ 9

  (majority opinion). Because Amendment 64 deprived the State of its

  authority to prosecute Boyd before her conviction became final on

  appeal, the majority reasoned that Boyd was entitled to reversal of

  that conviction. Id. at ¶ 10.

¶ 13   We understand the supreme court’s holding in Boyd to be that

  a convicted defendant is entitled to the benefit of changes to the

  State’s prosecutorial authority if those changes take effect before

  the conviction and sentence are final on appeal — irrespective of

  retroactivity principles. Although Boyd addressed the loss of the


                                      6
  State’s prosecutorial authority by constitutional amendment,

  nothing in the supreme court’s analysis suggests that the loss of

  the State’s prosecutorial authority by statutory amendment would

  have any different effect. And in our view, there is no legally

  significant difference; the State either has the authority to

  prosecute a defendant for a specific offense based on his or her

  conduct and impose the specific penalties based on the legislative

  classification for that offense or it does not.

¶ 14   Here, the circumstances of Cali’s case are essentially the same

  as those in Boyd. At the time of his conviction and sentence, the

  theft by receiving statute provided that Cali’s offense was a class 4

  felony. But before his conviction and sentence became final on

  appeal, that statute was repealed and replaced with a new statute

  that classified his offense as a class 6 felony. In other words, before

  Cali’s conviction became final, the State lost the authority to

  prosecute Cali for committing the class 4 felony of theft by

  receiving. Id.

¶ 15   We recognize that the elements of the class 4 felony and the

  class 6 felony are identical. But that does not matter. The

  Supreme Court, in United States v. Chambers, 291 U.S. 217 (1934),


                                      7
  a case upon which our supreme court relied in Boyd, explained that

  the State’s authority to prosecute a defendant “necessarily

  depend[s] upon the continued life of the statute that the

  prosecution seeks to apply.” Id. at 223. The statute classifying

  theft by receiving as a class 4 felony died when the amendment took

  effect. The State therefore lost the authority to apply that statute to

  Cali. That a different statute classifying theft by receiving as a class

  6 felony could then be applied to Cali does not change the fact that

  the State lost the authority to enforce the statute under which Cali

  had been convicted.

¶ 16   Thus, under Boyd and Chambers, Cali could have successfully

  requested reversal of his class 4 felony conviction had he done so

  during his direct appeal. However, Cali failed to do so. Instead, he

  requested this relief in a postconviction motion after his conviction

  became final on appeal. Boyd did not address this specific

  circumstance. And the prosecution argues that this procedural

  difference bars Cali from receiving the benefit of the new statute.

  We disagree.

¶ 17   The prosecution seeks to construe Cali’s postconviction claim

  as one “essentially seeking relief under section 18-1-410(1)(f)(I),”


                                     8
  C.R.S. 2017. This provision authorizes “retroactive application of

  [a] changed legal standard” in the interests of justice. § 18-1-

  410(1)(f)(I). Relief under this provision is, however, unavailable if a

  judgment of conviction has been affirmed on appeal. See § 18-1-

  410(1)(f)(II). And Crim. P. 35(c)(1) provides for the same relief under

  the same conditions and with the same limitations.

¶ 18   But, as the supreme court made clear in Boyd, it is not

  retroactive application of the amendment that entitles Cali to the

  benefit of the new statute. Instead, under Boyd, the amended

  statute applies to Cali because the State lost the authority to apply

  the old statute to him when it was repealed during the pendency of

  his direct appeal and before his conviction was final. Because Cali’s

  claim was not based on retroactive application of the new statute, it

  was not cognizable as a claim for relief under section 18-1-

  410(1)(f)(I) or Crim. P. 35(c)(1).

¶ 19   Cali’s postconviction claim sought to reverse his conviction of

  the class 4 felony and instead stand convicted of the class 6 felony.

  It was therefore cognizable as a collateral attack on the class 4

  felony conviction under section 18-1-410(1)(g) and Crim. P.

  35(c)(2)(VI). Each of those provisions authorizes a defendant to file


                                       9
  a postconviction motion based on “[a]ny grounds otherwise properly

  the basis for collateral attack upon a criminal judgment” after that

  judgment has been affirmed on appeal. And although Cali could

  have raised this issue in his direct appeal, because the statute

  changed after he initiated that appeal, the claim was not barred.

  See Crim. P. 35(c)(3)(VII)(a) (providing that a court shall deny any

  claim that could have been raised in prior appeal except “[a]ny

  claim based on events that occurred after initiation of the

  defendant’s prior appeal”).

¶ 20   Finally, the dissent argues that allowing Cali to request

  application of the changed statute to his case after his conviction

  was final on appeal would violate longstanding principles of finality.

  We respectfully point out that Crim. P. 35(c)(2)(VI) specifically

  authorizes defendants to collaterally attack their convictions on

  “[a]ny grounds otherwise properly the basis for collateral attack”

  after their convictions are final on appeal. And we are unaware of

  any authority stating that the State’s loss of authority to prosecute

  a defendant for the offense he was convicted of is an improper

  ground on which to collaterally attack a conviction.




                                    10
¶ 21    We therefore conclude that Cali has asserted a timely

  postconviction claim under section 18-1-410(1)(g) and Crim. P.

  35(c)(2)(VI) that entitles him to reversal of his conviction of class 4

  felony theft by receiving. However, because a jury found that he

  was guilty of theft by receiving and because that offense is a class 6

  felony under the new statute, the trial court must convict him of the

  class 6 felony and sentence him accordingly.

       III. Additional Authority That Does Not Affect Our Conclusion

¶ 22    Because they have impacted the development of case law in

  this area, we make observations about two additional sources of

  authority relevant to our conclusion, although the parties did not

  raise either. First, we are aware that the supreme court, in People

  v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973), addressed whether

  reducing a defendant’s sentence under a provision of section 18-1-

  410 violated the separation of powers doctrine by empowering

  courts to grant commutations. Then, as now, the Colorado

  Constitution provided that only the governor has the power to grant

  “reprieves, commutations and pardons after conviction.” Colo.

  Const. art. IV, § 7.




                                     11
¶ 23     The Herrera defendants2 sought postconviction review of their

  sentences under a statute that provided for postconviction review if

  “there has been a significant change in the law, applied to

  [defendant’s] conviction or sentence, [a]llowing in the interest of

  justice retroactive application of the changed legal standard.”

  Herrera, 183 Colo. at 159, 516 P.2d at 627 (quoting § 40-1-510(1)(f),

  C.R.S. 1971 & amended by Ch. 152, sec. 2, § 40-1-510, 1973 Colo.

  Sess. Laws 533). The court held that the defendants’ requests for

  judicial review of their sentences under this statute were effectively

  requests for judicial commutations. Id. at 161-62, 516 P.2d at 628.

  Because Colorado’s constitution gives the commutation power

  exclusively to the governor, the supreme court denied the

  defendants’ requests for review. Id. at 162, 516 P.2d at 629.

¶ 24     We perceive no separation of powers violation resulting from

  our conclusion in Cali’s case. Unlike the Herrera defendants, Cali

  is not requesting a judicial commutation or reduction of his

  sentence. The Herrera court defined the power of commutation as

  “the power to reduce punishment from a greater to a lesser


  2   Eight cases were consolidated for appeal.


                                     12
  sentence.” Id. at 161, 516 P.2d at 628. Cali has not asked for a

  reduction of his sentence; he has sought reversal of his class 4

  felony conviction. If Cali’s sentence is reduced, it will be because he

  will stand convicted of a different class of felony, not because his

  sentence was commuted. As discussed above, Cali’s claim is a

  collateral attack on his class 4 felony conviction, not a request that

  we commute his sentence and leave his conviction intact.

¶ 25   Second, we address section 2-4-303, C.R.S. 2017. That

  provision states that

             [t]he repeal, revision, amendment, or
             consolidation of any statute or part of a statute
             . . . shall not have the effect to release,
             extinguish, alter, modify, or change in whole or
             in part any penalty, . . . either civil or criminal,
             which shall have been incurred under such
             statute, unless the repealing, revising,
             amending, or consolidating act so expressly
             provides.

¶ 26   The statutory language appears to contradict the Thomas rule

  and our holding that Cali is entitled to the benefit of the new

  statute. But the supreme court has explained that the

  postconviction review remedies of section 18-1-410 effectively

  trump section 2-4-303 in criminal cases. See Noe v. Dolan, 197

  Colo. 32, 36 n.3, 589 P.2d 483, 486 n.3 (1979) (“Where a criminal


                                     13
  penalty is at issue, this court has consistently adhered to the

  principle enunciated in [Thomas] . . . . This result is dictated by the

  legislative intent evidenced by the postconviction review remedy

  authorized by section 18-1-410(1)(f) . . . .”) (addressing retroactive

  application of a changed legal standard).

¶ 27   More importantly, the supreme court concluded in Boyd that

  when the State loses the authority to prosecute a defendant’s

  conviction before that conviction is final on appeal, the defendant is

  entitled to reversal of that conviction. As discussed above, we see

  no reason why it would be legally significant that the State’s

  authority is removed by statutory rather than constitutional

  amendment. Applying section 2-4-303 to uphold convictions that

  the State has lost the authority to prosecute before they are final on

  appeal would therefore violate the holding in Boyd.

¶ 28   Finally, we note that the supreme court has granted certiorari

  in two cases in which the respective defendants committed theft

  before the new theft statute took effect, but were found guilty,

  convicted, and sentenced after the new statute took effect. See

  People v. Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017);

  People v. Patton, (Colo. App. No. 14CA2359, Aug. 11, 2016) (not


                                     14
  published pursuant to C.A.R. 35(e)) (cert. granted Feb. 6, 2017). In

  both cases, the opinions of this court, announced prior to the

  supreme court’s opinion in Boyd, analyzed whether the respective

  defendants were entitled to the benefit of the changed statute under

  principles of retroactivity. See Stellabotte, ¶¶ 44-48; Patton, No.

  14CA2359, slip op. at 11-12. We expect and hope that the supreme

  court will consider Boyd’s applicability to those cases.

                              IV. Conclusion

¶ 29   The postconviction court’s order denying Cali’s claim that he

  was entitled to the benefit of the changed theft statute is reversed.

  We also vacate Cali’s conviction of the class 4 felony and remand

  the case to the postconviction court with directions to enter a

  judgment of conviction of the class 6 felony and sentence Cali

  accordingly.

       JUDGE TERRY concurs.

       JUDGE NIETO dissents.




                                    15
       JUDGE NIETO, dissenting.

¶ 30   In a well-written opinion, the majority has determined that the

  supreme court in People v. Boyd, 2017 CO 2, has abandoned the

  longstanding rules on the retroactive application of amendatory

  statutes. I do not agree with the majority’s reading of Boyd and do

  not agree that it has application to the facts of this case. Instead, I

  conclude that because Cali’s conviction was final before he filed his

  Crim. P. 35(c) motion, the trial court properly denied the motion.

  Therefore, I respectfully dissent.

                                  I. Boyd

¶ 31   Boyd is distinguishable for several reasons. First, and

  importantly, Boyd’s conviction was on direct appeal and was not

  final, while here, Cali’s conviction was final before he filed his Crim.

  P. 35(c) motion that is the subject of this appeal. The majority finds

  the finality of Cali’s conviction to be of no consequence in its

  application of Boyd to this appeal. This conclusion, in my view,

  implies that the supreme court in Boyd abandoned, or at least

  disregarded, its decision in People v. Thomas, 185 Colo. 395, 525

  P.2d 1136 (1974), and its progeny, which have consistently applied

  amendatory legislation only to convictions that were not final. See


                                       16
  People v. Boyd, 2015 COA 109, ¶ 21 (“[B]oth the supreme court and

  the court of appeals have consistently applied the Thomas rule to

  give” the benefit of amendatory legislation to defendants where

  convictions were not final.) (collecting cases), aff’d, 2017 CO 2. In

  another case, our supreme court noted that “[w]e have also

  recognized that the concept of finality is an important landmark on

  the Colorado criminal justice landscape. And we have noted its

  enhanced significance in the context of Crim. P. 35(c) proceedings.”

  Edwards v. People, 129 P.3d 977, 982 (Colo. 2006) (citation

  omitted). It seems to me that the supreme court would not have

  made this significant change to an important and longstanding rule

  only by implication in an opinion that does not even mention

  Thomas.

¶ 32   Second, in Boyd, the supreme court very clearly said what it

  was deciding. “This case presents an opportunity to resolve

  whether Amendment 64 deprived the State of the power to continue

  to prosecute cases where there was a nonfinal conviction . . . with a

  pending right to appeal when Amendment 64 became effective.”

  Boyd, 2017 CO 2, ¶ 5 (emphasis added). The court also made clear

  what it was not deciding. “We do not find it necessary to address


                                    17
  the effect of Amendment 64 on final convictions.” Id. at ¶ 2 n.1

  (emphasis added). Therefore, I would not rely on Boyd in a

  postconviction proceeding as authority to apply an amendatory

  statute to a conviction that had become final following direct

  appeal.

¶ 33   Third, I would note the fundamental difference between the

  constitutional amendment in Boyd and the statutory amendment

  here. The constitution is the root source of all the State’s authority

  to act. Once Amendment 64 was effective, the State no longer had

  authority to prosecute Boyd for the offenses alleged in that case.

  The amendment provided that “the following acts are not unlawful

  and shall not be an offense under Colorado law . . . .” Colo. Const.

  art. XVIII, § 16(3). Thus, the underpinning necessary for the State

  to take criminal action against Boyd was taken away by

  Amendment 64 as of its effective date. The statutory amendment

  here left intact the authority of the State to prosecute theft crimes,

  and it only changed the penalties that can be imposed for offenses

  that occur after the effective date of the amendment. See § 2-4-202,

  C.R.S. 2017 (“A statute is presumed to be prospective in its

  operation.”). This fundamental difference in the effect of


                                    18
  Amendment 64 and the statutory amendment here makes Boyd

  inapplicable in this case. The amendatory statute here did not

  purport to deprive the State of its authority to prosecute a

  defendant for conduct defined as criminal by the General Assembly.

  The majority has equated a statute that amended the penalty

  prescribed for certain conduct to a constitutional amendment that

  specifically removed the State’s authority to prosecute certain

  conduct. It interprets Boyd to imply that the statutory amendment

  that adjusted the penalty for a crime constituted a “loss of the

  State’s prosecutorial authority.” Supra ¶ __. I do not agree with

  that proposition.

¶ 34   Accordingly, I would decide this appeal without attempting to

  apply the holding in Boyd to the facts of this case.

                                II. Finality

¶ 35   The majority has set out the facts and pertinent history of this

  case. I will not repeat them here, except to emphasize that Cali’s

  conviction was affirmed on appeal, certiorari was denied, and the

  mandate issued in May 2015 — making his conviction final before

  he filed the postconviction motion in September 2015.




                                    19
¶ 36   Cali’s Crim. P. 35(c) motion claimed, among other things not

  raised here, that his sentence was improper under the June 2013

  legislative amendment. The trial court rejected this claim, finding

  that the amendment occurred after his sentencing, his sentence

  had been affirmed on appeal, and the amendment was prospective.

¶ 37   In this appeal Cali pursues only the claim that the 2013

  amendment applies in his case. If the amendment applies, the

  conviction would be a class 6 felony, which would yield a lower

  habitual offender sentence. I perceive no error and would affirm the

  trial court’s order.

¶ 38   Cali’s request to apply a “substantive change in the law” would

  fall within the provision in Crim. P. 35(c) permitting a motion based

  on “a significant change in the law, applied to the applicant’s

  conviction or sentence, allowing in the interests of justice

  retroactive application.” But this rule only applies if “judgment on

  that conviction has not then been affirmed upon appeal” prior to

  filing the motion. Crim. P. 35(c)(1); see also § 18-1-410(1)(f)(I), (II),

  C.R.S. 2017 (containing the same limitation). The text of both the

  statute and the rule prohibit the relief Cali requested after his




                                      20
  conviction became final. In People v. White, a division of this court

  agreed with this plain meaning of Crim. P. 35(c):

               While Crim. P. 35(c)(1) provides a remedy to an
               offender whose conviction or sentence is
               affected by a change in the law during the
               pendency of a direct appeal of such conviction
               or sentence, it does not provide a remedy to an
               offender claiming the benefit of changes in the
               law that occur during the pendency of other
               post-conviction proceedings.

  804 P.2d 247, 250 (Colo. App. 1990).

¶ 39   Cali contends that his conviction was not final, and, therefore,

  he was entitled to be sentenced under the amended statute. I do

  not agree.

¶ 40   Convictions are final when direct appeal has been exhausted

  and a petition for certiorari has been forfeited or denied. Edwards,

  129 P.3d at 983; People v. Hampton, 876 P.2d 1236, 1239 (Colo.

  1994). Significantly, in the binding precedent, People v. Arellano,

  185 Colo. 280, 524 P.2d 305 (1974), the relevant statute was

  amended while the appeal was pending, but the issue was not

  raised until after finality had attached to the conviction. Our

  supreme court held that, even there, relief could not be granted

  after the conviction was final. The facts in the Arellano case are on



                                     21
  all fours with the present case: the relevant statute was amended

  while Cali’s appeal was pending, but Cali filed his motion after the

  mandate issued in his direct appeal. His conviction was final, and

  he is not entitled to the relief he requested.

¶ 41   Finality is not just a technicality; it is a hard boundary. The

  following cases demonstrate how firm the boundary is. In People v.

  Herrera, 183 Colo. 155, 516 P.2d 626 (1973), when the General

  Assembly explicitly authorized courts to review sentences after a

  conviction became final, the supreme court invalidated the statute

  as a breach of the separation of powers doctrine. In People v.

  Carter, 186 Colo. 391, 527 P.2d 875 (1974), the supreme court held

  that judicial review of sentences before finality is a proper judicial

  function. In People v. Arellano, the supreme court held that after

  the conviction was final, relief could not be granted on a motion

  filed after finality. 185 Colo. at 283, 524 P.2d at 306. Then in

  People v. Thomas, the defendant filed a motion for postconviction

  review of his sentence while his direct appeal was pending. The

  motion was based on a statute that amended the penalty for his

  offense. The supreme court held that the motion could be




                                     22
  entertained because it was filed before his conviction was final. 185

  Colo. at 397, 525 P.2d at 1137.

¶ 42   In each of these cases the decision pivoted on when the

  conviction became final.

¶ 43   All these cases drew the line at finality. I would continue to do

  so and would affirm the trial court’s denial of Cali’s Crim. P. 35(c)

  motion because his conviction was final before he filed his motion,

  and therefore the rule and section 18-1-410(1)(f)(I), (II) deny him the

  relief he requested.




                                    23
