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People v. McDonald.

2023 COA 23. No. 21CA0750. Postconviction Remedies—Sentencing—Illegal Sentence—Proportionality Review.

March 9, 2023

McDonald was convicted of attempted first degree murder and second degree assault, both with crime of violence enhancements, and possession of a weapon by a previous offender. The trial court also adjudicated him a habitual offender. McDonald was sentenced to a controlling term of 72 years in prison. A court of appeals division affirmed the judgment of conviction and sentence, and the Supreme Court denied certiorari. McDonald subsequently filed two Crim. P. 35(c) motions that were denied. A court of appeals division affirmed the denials, and the Supreme Court denied certiorari. McDonald then filed a third postconviction motion requesting a new proportionality review of his sentence and asking the district court to vacate his sentence based on illegality because, after he was sentenced, the Department of Corrections (DOC) didn’t complete the violent offender evaluation required under CRS § 18-1.3-406(1)(a). The district court found that (1) the proportionality claim was successive and therefore procedurally barred under Crim. P. 35(c); and (2) the claim regarding the violent offender evaluation wasn’t an illegal sentence claim that could be brought anytime under Crim. P. 35(a), so it was also procedurally barred. The court denied the motion without an evidentiary hearing.

On appeal, the People contended that McDonald’s proportionality claim is subject to Crim. P. 35(c) and is therefore procedurally barred. McDonald argued that his proportionality challenge should nevertheless be considered under Wells-Yates v. People, 2019 CO 90M, because otherwise procedurally barred postconviction claims can be brought if they are based on a new rule of constitutional law that applies retroactively, and Wells-Yates announced such a rule. In Wells-Yates, the Supreme Court clarified how Colorado courts should evaluate proportionality challenges under the Habitual Criminal Act. However, to the extent Wells-Yates announced new constitutional rules, those rules are procedural and don’t apply retroactively. Consequently, the exceptions to Crim. P. 35(c)’s procedural bars don’t apply to McDonald’s claims regarding the proportionality of his sentence, and they were properly denied.

McDonald also contended that the district court erred by denying his Crim. P. 35(a) claim that his sentence is illegal because the DOC failed to submit a violent offender evaluation after he was sentenced and in custody. However, the evaluation isn’t a component of McDonald’s sentence, so this claim isn’t an illegal sentence claim. Further, to the extent McDonald’s claim that the DOC failed to complete and transmit the required violent offender evaluation is cognizable at all under Crim. P. 35, it is better understood as an illegal manner claim, which must be brought within 126 days after the sentence was imposed or after certain appellate action on direct appeal, and McDonald filed his motion well after that time. Therefore, the district court didn’t err by denying this claim.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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