HOUSE BILL 971225
BY REPRESENTATIVES Adkins, Epps, Hagedorn, S. Johnson, Kaufman, Lamborn, McPherson, Morrison, Nichol, Paschall, Pfiffner, Reeser, Schwarz, Smith, Tool, Young, and Zimmerman;
also SENATORS Wells, B. Alexander, Chlouber,
Dennis, and Powers.
CONCERNING A UNITARY PROCEDURE FOR REVIEW IN CLASS
1 FELONY CASES IN WHICH A DEATH SENTENCE IS SOUGHT AS PUNISHMENT.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. Article
12 of title 16, Colorado Revised Statutes, 1986 Repl. Vol., as
amended, is amended BY THE ADDITION OF A NEW PART to read:
PART 2
UNITARY REVIEW IN DEATH PENALTY CASES
1612201. Legislative declaration.
(1) THE GENERAL ASSEMBLY HEREBY DECLARES THAT THE PURPOSE
OF THIS PART 2 IS TO ESTABLISH AN EXPEDITED SYSTEM OF UNITARY
REVIEW OF CLASS 1 FELONY CASES IN WHICH A DEATH SENTENCE IS IMPOSED.
(2) THE GENERAL ASSEMBLY FINDS THAT ENACTMENT
OF THIS PART 2 WILL ACCOMPLISH THE FOLLOWING GOALS:
(a) ENSURING COMPLIANCE WITH THE REQUIREMENTS
OF THE FEDERAL "ANTITERRORISM AND EFFECTIVE DEATH PENALTY
ACT OF 1996", 28 U.S.C. SEC. 2261, ET SEQ.;
(b) IMPROVING THE ACCURACY, COMPLETENESS,
AND JUSTICE OF REVIEW PROCEEDINGS BY REQUIRING THAT POSTCONVICTION
REVIEW COMMENCE IMMEDIATELY AFTER THE IMPOSITION OF A SENTENCE
OF DEATH;
(c) ALLOWING FOR THE FULL AND FAIR EXAMINATION
OF ALL LEGALLY COGNIZABLE POSTCONVICTION AND APPELLATE ISSUES
BY THE TRIAL COURT AND THE COLORADO SUPREME COURT; AND
(d) ELIMINATING, TO THE FULLEST EXTENT
POSSIBLE, UNREASONABLE AND UNJUST DELAYS IN THE RESOLUTION OF
POSTCONVICTION ISSUES BY COMBINING AND REDUCING THE NUMBER OF
PROCEEDINGS IN CLASS 1 FELONY CASES.
1612202. Unitary procedure
for appeals scope and applicability.
(1) NOTWITHSTANDING ANY STATE STATUTE OR RULE OF THE
COLORADO SUPREME COURT TO THE CONTRARY, THIS PART 2 AND THE SUPREME
COURT RULES ADOPTED PURSUANT TO THIS PART 2 ESTABLISH THE ONLY
PROCEDURE FOR CHALLENGING A SENTENCE OF DEATH OR THE CONVICTION
THAT RESULTED IN THE SENTENCE OF DEATH.
(2) THIS PART 2 DOES NOT APPLY TO CLASS
1 FELONY CASES IN WHICH A SENTENCE OF DEATH IS NOT SOUGHT OR TO
CLASS 1 FELONY CONVICTIONS FOR WHICH THE DEATH PENALTY IS NOT
IMPOSED.
(3) THIS PART 2 SHALL APPLY TO ANY CLASS
1 FELONY CONVICTION FOR WHICH THE DEATH PENALTY IS IMPOSED AS
PUNISHMENT, REGARDLESS OF WHETHER THE SENTENCE IS IMPOSED PURSUANT
TO SECTION 1611103 OR 1611802, WHICH DEATH
SENTENCE IS IMPOSED ON OR AFTER THE DATE UPON WHICH THE SUPREME
COURT ADOPTS RULES IMPLEMENTING THE UNITARY SYSTEM OF REVIEW ESTABLISHED
BY THIS PART 2.
(4) FOR CASES IN WHICH A DEATH SENTENCE
IS IMPOSED PRIOR TO THE DATE UPON WHICH THE COLORADO SUPREME COURT
ADOPTS RULES IMPLEMENTING THE UNITARY SYSTEM OF REVIEW ESTABLISHED
BY THIS PART 2, APPELLATE REVIEW AND POSTCONVICTION REVIEW SHALL
BE AS OTHERWISE PROVIDED BY LAW.
1612203. Definitions.
AS USED IN THIS PART 2, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1) "DIRECT APPEAL" MEANS THE
APPEAL TO THE COLORADO SUPREME COURT OF ANY ISSUES RAISED AT THE
ENTRY OF A GUILTY PLEA, BEFORE TRIAL, AT TRIAL, AT THE PENALTY
PHASE HEARING, OR IN A MOTION FOR NEW TRIAL.
(2) "DIRECT APPEAL COUNSEL"
MEANS THE ATTORNEY RETAINED BY THE DEFENDANT, OR APPOINTED BY
THE TRIAL COURT TO REPRESENT AN INDIGENT DEFENDANT, AS THE SUCCESSOR
TO TRIAL COUNSEL FOR PURPOSES OF REPRESENTING THE DEFENDANT IN
DIRECT APPEAL PROCEEDINGS.
(3) "NEW POSTCONVICTION COUNSEL"
MEANS THE ATTORNEY RETAINED BY THE DEFENDANT, OR APPOINTED BY
THE TRIAL COURT TO REPRESENT AN INDIGENT DEFENDANT, FOR THE PURPOSES
OF REPRESENTING THE DEFENDANT IN POSTCONVICTION REVIEW AND POSTCONVICTION
REVIEW APPEAL PROCEEDINGS. NEW POSTCONVICTION COUNSEL CANNOT HAVE
PREVIOUSLY REPRESENTED THE DEFENDANT WITH REGARD TO THE CLASS
1 FELONY CHARGE.
(4) "POSTCONVICTION REVIEW"
MEANS REVIEW AS PROVIDED IN THIS PART 2 BY THE TRIAL COURT THAT
OCCURS AFTER CONVICTION IN A CLASS 1 FELONY CASE IN WHICH THE
DEATH PENALTY IS IMPOSED AS PUNISHMENT.
(5) "POSTCONVICTION REVIEW APPEAL"
MEANS THE APPEAL TO THE COLORADO SUPREME COURT OF ANY ISSUES RAISED
IN POSTCONVICTION REVIEW PROCEEDINGS.
(6) "TRIAL COUNSEL" MEANS THE
ATTORNEY WHO REPRESENTS THE DEFENDANT WITH REGARD TO THE CLASS
1 FELONY CHARGE: FOR THE PURPOSES OF ANY GUILTY PLEA; BEFORE TRIAL;
AT TRIAL; AT THE PENALTY PHASE HEARING; FOR THE PURPOSES OF A
MOTION FOR NEW TRIAL; FOR THE PURPOSES OF POSTCONVICTION REVIEW
IF THE DEFENDANT CHOOSES TO CONTINUE WITH TRIAL COUNSEL FOR PURPOSES
OF POSTCONVICTION REVIEW; AND FOR THE PURPOSES OF DIRECT APPEAL
IF THE DEFENDANT CHOOSES TO CONTINUE WITH TRIAL COUNSEL FOR PURPOSES
OF DIRECT APPEAL. "TRIAL COUNSEL" DOES NOT INCLUDE NEW
POSTCONVICTION COUNSEL APPOINTED PURSUANT TO SECTION 1612205
OR DIRECT APPEAL COUNSEL.
1612204. Stay
of execution postconviction review. (1) THE
THREEJUDGE PANEL OR THE TRIAL COURT, WHICHEVER IS APPLICABLE,
UPON THE IMPOSITION OF A DEATH SENTENCE, SHALL SET THE TIME OF
EXECUTION PURSUANT TO SECTION 1611403 AND ENTER AN
ORDER STAYING EXECUTION OF THE JUDGMENT AND SENTENCE UNTIL RECEIPT
OF AN ORDER FROM THE COLORADO SUPREME COURT. THE TRIAL COURT SHALL
DIRECT THE CLERK OF THE TRIAL COURT TO MAIL TO THE COLORADO SUPREME
COURT, WITHIN SEVEN DAYS AFTER THE DATE UPON WHICH THE SENTENCE
OF DEATH IS IMPOSED, A COPY OF THE JUDGMENT, SENTENCE, AND MITTIMUS.
(2) THE TRIAL COURT SHALL ORDER THE DEFENDANT,
TRIAL COUNSEL, AND THE PROSECUTION TO ATTEND A HEARING TO BE HELD
AFTER THE DATE UPON WHICH THE SENTENCE OF DEATH IS IMPOSED. AT
THE HEARING, THE TRIAL COURT SHALL:
(a) ADVISE THE DEFENDANT OF THE NATURE
OF REVIEW AS PROVIDED IN THIS PART 2;
(b) ADVISE THE DEFENDANT OF THE RIGHT
TO DIRECT APPEAL COUNSEL;
(c) ADVISE THE DEFENDANT THAT THE ISSUE
OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BEFORE TRIAL, AT TRIAL,
OR DURING THE PENALTY PHASE HEARING MAY ONLY BE RAISED ON POSTCONVICTION
REVIEW AND ON POSTCONVICTION REVIEW APPEAL;
(d) ADVISE THE DEFENDANT THAT THE ISSUE
OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING DIRECT APPEAL BY TRIAL
COUNSEL OR DIRECT APPEAL COUNSEL MAY ONLY BE RAISED BY WAY OF
A PETITION FOR REHEARING FILED IN THE COLORADO SUPREME COURT BY
NEW POSTCONVICTION COUNSEL OR THE DEFENDANT PURSUANT TO THE RULES
ADOPTED BY THE COLORADO SUPREME COURT TO IMPLEMENT THIS PART 2;
(e) DETERMINE WHETHER THE DEFENDANT INTENDS
TO PURSUE POSTCONVICTION REVIEW; AND
(f) IF THE DEFENDANT INTENDS TO PURSUE
POSTCONVICTION REVIEW, DETERMINE WHETHER THE DEFENDANT INTENDS
TO PROCEED WITH OR WITHOUT COUNSEL.
(3) AFTER A FULL DISCUSSION ON THE RECORD,
IF THE DEFENDANT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVES
THE RIGHT TO PURSUE POSTCONVICTION REVIEW, TRIAL COUNSEL OR DIRECT
APPEAL COUNSEL, IF APPOINTED OR RETAINED, OR THE DEFENDANT, IF
PROCEEDING WITHOUT COUNSEL, MAY FILE ANY NOTICE OF APPEAL WITH
THE COLORADO SUPREME COURT, AS PROVIDED BY COLORADO SUPREME COURT
RULE.
1612205. Postconviction
review appointment of new postconviction counsel
qualifications compensation. (1) AT
THE HEARING HELD PURSUANT TO SECTION 1612204 (2),
IF THE DEFENDANT CHOOSES TO PURSUE POSTCONVICTION REVIEW, THE
TRIAL COURT SHALL ENTER AN ORDER APPOINTING NEW POSTCONVICTION
COUNSEL FOR THE DEFENDANT IF THE TRIAL COURT FINDS THAT THE DEFENDANT
IS INDIGENT AND EITHER THE DEFENDANT REQUESTS AND ACCEPTS SUCH
APPOINTMENT OR THE TRIAL COURT FINDS THAT THE DEFENDANT IS UNABLE
TO COMPETENTLY DECIDE WHETHER TO ACCEPT OR REJECT THE APPOINTMENT.
HOWEVER, THE TRIAL COURT SHALL NOT APPOINT NEW POSTCONVICTION
COUNSEL IF:
(a) THE DEFENDANT HAS RETAINED NEW POSTCONVICTION
COUNSEL; OR
(b) THE DEFENDANT HAS ELECTED TO PROCEED
WITHOUT COUNSEL AND THE TRIAL COURT FINDS, AFTER A FULL DISCUSSION
ON THE RECORD, THAT THE DEFENDANT'S ELECTION TO PROCEED WITHOUT
COUNSEL IS KNOWING, INTELLIGENT, AND VOLUNTARY; OR
(c) THE DEFENDANT ELECTS TO HAVE TRIAL
COUNSEL CONTINUE REPRESENTING THE DEFENDANT FOR PURPOSES OF POSTCONVICTION
REVIEW AND THE TRIAL COURT FINDS, AFTER A FULL DISCUSSION ON THE
RECORD, THAT:
(I) THE DEFENDANT UNDERSTANDS THAT NEW
POSTCONVICTION COUNSEL CAN BE RETAINED BY THE DEFENDANT FOR PURPOSES
OF POSTCONVICTION REVIEW OR APPOINTED BY THE TRIAL COURT FOR THE
DEFENDANT IF THE DEFENDANT IS INDIGENT;
(II) THE DEFENDANT UNDERSTANDS THAT, BY
ELECTING TO HAVE TRIAL COUNSEL CONTINUE TO REPRESENT THE DEFENDANT
FOR PURPOSES OF POSTCONVICTION REVIEW, THE DEFENDANT WAIVES THE
RIGHT TO CHALLENGE THE EFFECTIVENESS OF TRIAL COUNSEL'S REPRESENTATION
AT ANY STAGE OF THE PROCEEDINGS;
(III) THE DEFENDANT'S ELECTION TO HAVE
TRIAL COUNSEL CONTINUE TO REPRESENT THE DEFENDANT FOR PURPOSES
OF POSTCONVICTION REVIEW IS KNOWING, INTELLIGENT, AND VOLUNTARY;
AND
(IV) TRIAL COUNSEL AGREES TO CONTINUE
REPRESENTING THE DEFENDANT FOR PURPOSES OF POSTCONVICTION REVIEW.
(2) IN APPOINTING NEW POSTCONVICTION COUNSEL
TO REPRESENT AN INDIGENT DEFENDANT, THE TRIAL COURT SHALL APPOINT
ONE OR MORE ATTORNEYS WHO, ALONE OR IN COMBINATION, MEET ALL OF
THE FOLLOWING MINIMUM QUALIFICATIONS:
(a) EACH APPOINTED ATTORNEY SHALL BE LICENSED
TO PRACTICE LAW IN COLORADO OR BE ADMITTED TO PRACTICE IN COLORADO
SOLELY FOR THE PURPOSE OF REPRESENTING THE DEFENDANT;
(b) AT LEAST ONE OF THE APPOINTED ATTORNEYS
SHALL HAVE A MINIMUM OF FIVE YEARS' EXPERIENCE IN CRIMINAL LAW
LITIGATION, INCLUDING WORK ON TRIALS AND POSTCONVICTION PROCEEDINGS;
(c) AT LEAST ONE OF THE APPOINTED ATTORNEYS
SHALL HAVE A MINIMUM OF THREE YEARS' EXPERIENCE IN TRYING FELONY
CASES, INCLUDING HAVING TRIED AT LEAST FIVE FELONY CASES TO VERDICT
IN THE PRECEDING FIVE YEARS OR HAVING TRIED A MINIMUM TOTAL OF
TWENTYFIVE FELONY CASES; AND
(d) AT LEAST ONE OF THE APPOINTED ATTORNEYS
SHALL HAVE A MINIMUM OF THREE YEARS' EXPERIENCE IN HANDLING APPEALS
OF FELONY CASES, HAVING SERVED AS COUNSEL IN AT LEAST FIVE APPEALS
IN FELONY CASES.
(3) IN APPOINTING NEW POSTCONVICTION COUNSEL,
THE TRIAL COURT MAY ALSO CONSIDER THE FOLLOWING FACTORS:
(a) WHETHER THE ATTORNEY UNDER CONSIDERATION
HAS PREVIOUSLY APPEARED AS COUNSEL IN A CLASS 1 FELONY CASE IN
WHICH THE DEATH PENALTY WAS SOUGHT;
(b) WHETHER THE ATTORNEY UNDER CONSIDERATION
HAS TRIED AT LEAST ONE FIRST DEGREE MURDER CASE TO VERDICT;
(c) WHETHER, WITHIN THE PRECEDING FIVE
YEARS, THE ATTORNEY UNDER CONSIDERATION HAS TAUGHT OR ATTENDED
A CONTINUING LEGAL EDUCATION COURSE THAT DEALT IN SUBSTANTIAL
PART WITH THE TRIAL, APPEAL, AND POSTCONVICTION REVIEW OF CLASS
1 FELONY CASES IN WHICH THE DEATH PENALTY IS SOUGHT;
(d) THE WORKLOAD OF THE ATTORNEY UNDER CONSIDERATION AND HOW THAT WORKLOAD WOULD AFFECT THE ATTORNEY'S REPRESENTATION OF THE DEFENDANT;
(e) THE DILIGENCE AND ABILITY OF THE ATTORNEY
UNDER CONSIDERATION; AND
(f) ANY OTHER FACTOR THAT MAY BE RELEVANT
TO A DETERMINATION OF WHETHER THE ATTORNEY UNDER CONSIDERATION
WILL FAIRLY, EFFICIENTLY, AND EFFECTIVELY REPRESENT THE DEFENDANT
FOR PURPOSES OF POSTCONVICTION REVIEW.
(4) IN ANY CASE IN WHICH THE TRIAL COURT
APPOINTS NEW POSTCONVICTION COUNSEL OR NEW POSTCONVICTION COUNSEL
IS RETAINED, SAID NEW POSTCONVICTION COUNSEL SHALL NOT BE RETAINED
OR APPOINTED TO ACT AS COCOUNSEL WITH TRIAL COUNSEL AND
SHALL NOT BE ASSOCIATED OR AFFILIATED WITH TRIAL COUNSEL. NEW
POSTCONVICTION COUNSEL SHALL EXERCISE INDEPENDENT JUDGMENT AND
ACT INDEPENDENTLY FROM TRIAL COUNSEL.
(5) THE INEFFECTIVENESS OF COUNSEL DURING
POSTCONVICTION REVIEW SHALL NOT BE A BASIS FOR RELIEF.
(6) THE OFFICE OF THE PUBLIC DEFENDER
OR THE OFFICE OF ALTERNATIVE DEFENSE COUNSEL, WHICHEVER IS APPROPRIATE,
SHALL PAY THE COMPENSATION AND REASONABLE LITIGATION EXPENSES
OF DEFENDANT'S COUNSEL INCURRED DURING THE UNITARY REVIEW PROCEEDING.
1612206. Postconviction
review motion. (1) (a) IN
ANY CASE IN WHICH A DEFENDANT HAS BEEN CONVICTED OF A CLASS 1
FELONY AND BEEN SENTENCED TO DEATH, ALL MOTIONS FOR POSTCONVICTION
REVIEW AND ALL POSTCONVICTION REVIEW PROCEEDINGS ARE GOVERNED
BY THIS PART 2 AND BY THE SUPREME COURT RULES ADOPTED TO IMPLEMENT
THIS PART 2.
(b) ANY MOTION FOR POSTCONVICTION REVIEW
SHALL STATE WITH PARTICULARITY THE GROUNDS UPON WHICH THE DEFENDANT
INTENDS TO RELY, INCLUDING A STATEMENT OF THE FACTS AND CITATIONS
OF LAW. A MOTION FOR POSTCONVICTION REVIEW MAY INCLUDE ONLY THOSE
ISSUES SPECIFIED IN PARAGRAPH (c) OF THIS SUBSECTION (1) AND SHALL
NOT INCLUDE ANY ISSUES THAT WERE RAISED AT THE ENTRY OF ANY GUILTY
PLEA, BEFORE TRIAL, AT TRIAL, AT THE PENALTY PHASE HEARING, OR
IN THE MOTION FOR NEW TRIAL.
(c) A MOTION FOR POSTCONVICTION REVIEW MAY RAISE ONLY THE FOLLOWING ISSUES:
(I) WHETHER THERE EXISTS EVIDENCE OF MATERIAL
FACTS, NOT PREVIOUSLY PRESENTED AND HEARD, WHICH BY THE EXERCISE
OF REASONABLE DILIGENCE COULD NOT HAVE BEEN KNOWN OR LEARNED BY
THE DEFENDANT OR TRIAL COUNSEL PRIOR TO THE IMPOSITION OF THE
SENTENCE AND WHICH REQUIRE THAT THE CONVICTION OR THE DEATH SENTENCE
BE VACATED IN THE INTERESTS OF JUSTICE; OR
(II) WHETHER THE CONVICTION WAS OBTAINED
OR THE SENTENCE WAS IMPOSED IN VIOLATION OF THE CONSTITUTION OR
LAWS OF THE UNITED STATES OR COLORADO; OR
(III) WHETHER THE DEFENDANT WAS CONVICTED
UNDER A STATUTE THAT VIOLATES THE CONSTITUTION OF THE UNITED STATES
OR COLORADO OR WHETHER THE CONDUCT FOR WHICH THE DEFENDANT WAS
PROSECUTED WAS CONSTITUTIONALLY PROTECTED; OR
(IV) WHETHER THE JUDGMENT WAS RENDERED
WITHOUT JURISDICTION OVER THE DEFENDANT OR THE SUBJECT MATTER;
OR
(V) ANY OTHER GROUNDS THAT ARE PROPERLY
THE BASIS FOR COLLATERAL ATTACK UPON A CRIMINAL JUDGMENT; OR
(VI) WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE.
(2) BY ALLEGING THAT TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE, THE DEFENDANT AUTOMATICALLY WAIVES THE
ATTORNEYCLIENT PRIVILEGE BETWEEN THE DEFENDANT AND TRIAL
COUNSEL, BUT ONLY WITH RESPECT TO THE INFORMATION THAT IS RELATED
TO THE DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE.
(3) NEITHER THE DEFENDANT NOR THE PROSECUTION
MAY FILE A MOTION FOR RECONSIDERATION OR REHEARING OF THE TRIAL
COURT'S RULING ON THE MOTION FOR POSTCONVICTION REVIEW. THE GRANTING
OR DENYING OF A MOTION FOR POSTCONVICTION REVIEW UNDER THIS SECTION
IS A FINAL ORDER REVIEWABLE ON APPEAL BY THE COLORADO SUPREME
COURT.
1612207. Supreme court
appeal filing of notice.
(1) (a) IF THE DEFENDANT WAIVES HIS OR HER RIGHT
TO POSTCONVICTION REVIEW AS PROVIDED IN SECTION 1612204,
BUT INTENDS TO PROCEED WITH DIRECT APPEAL, TRIAL COUNSEL, DIRECT
APPEAL COUNSEL, IF APPOINTED OR RETAINED, OR THE DEFENDANT, IF
PROCEEDING ON DIRECT APPEAL WITHOUT COUNSEL, SHALL FILE ANY NOTICE
OF APPEAL FOR PURPOSES OF DIRECT APPEAL IN THE COLORADO SUPREME
COURT.
(b) IF THE TRIAL COURT CONDUCTS POSTCONVICTION
REVIEW AND THE DEFENDANT INTENDS TO SEEK DIRECT APPEAL OR POSTCONVICTION
REVIEW APPEAL, THE NOTICES OF APPEAL, INCLUDING BOTH DIRECT APPEAL
AND POSTCONVICTION REVIEW APPEAL ISSUES, SHALL BE FILED IN THE
COLORADO SUPREME COURT.
(2) ANY APPEAL TO THE COLORADO SUPREME
COURT FILED BY THE DEFENDANT PURSUANT TO THIS PART 2 SHALL CONSOLIDATE
AND RESOLVE, IN ONE PROCEEDING, ALL DIRECT APPEAL AND POSTCONVICTION
REVIEW APPEAL ISSUES.
(3) THE PROSECUTION MAY APPEAL ANY FINAL
RULING BY THE TRIAL COURT IN THE COURSE OF PROCEEDINGS PURSUANT
TO THIS PART 2, INCLUDING BUT NOT LIMITED TO:
(a) A RULING GRANTING A MOTION FOR NEW
TRIAL OR OTHER RELIEF; AND
(b) A RULING BY THE TRIAL COURT GRANTING
POSTCONVICTION RELIEF; AND
(c) A RULING BY THE TRIAL COURT THAT ANY
STATUTE, INCLUDING BUT NOT LIMITED TO A STATUTE PROVIDING FOR
THE IMPOSITION OF THE DEATH PENALTY, IS ADJUDGED INOPERATIVE OR
UNCONSTITUTIONAL FOR ANY REASON.
(4) ANY APPEAL FILED BY THE DEFENDANT
OR BY THE PROSECUTION PURSUANT TO THIS PART 2 SHALL BE TAKEN DIRECTLY
TO THE COLORADO SUPREME COURT.
1612208. Supreme court
rules. (1) NO LATER
THAN JANUARY 1, 1998, THE COLORADO SUPREME COURT SHALL ADOPT RULES
TO ESTABLISH PROCEDURES, INCLUDING TIME LIMITS, FOR THE POSTCONVICTION
REVIEW AND UNITARY APPEAL PROCESS CREATED BY THIS PART 2.
(2) THE RULES ADOPTED BY THE COLORADO
SUPREME COURT PURSUANT TO SUBSECTION (1) OF THIS SECTION SHALL
ADDRESS, BUT ARE NOT LIMITED TO:
(a) FILING AND RESOLUTION OF MOTIONS FOR
NEW TRIAL;
(b) THE TIMING OF THE ADVISEMENT HEARING
DESCRIBED IN SECTION 1612204 (2);
(c) THE PREPARATION OF TRANSCRIPTS FOR
POSTCONVICTION REVIEW AND UNITARY APPEAL;
(d) FILING AND RESOLUTION OF MOTIONS FOR
POSTCONVICTION REVIEW, INCLUDING BUT NOT LIMITED TO PROVISIONS
FOR DETERMINING WHETHER EVIDENTIARY HEARINGS ARE NECESSARY TO
RESOLVE SUCH MOTIONS;
(e) RECIPROCAL DISCOVERY FOR THE DEFENDANT
AND THE PROSECUTION DURING THE POSTCONVICTION REVIEW PROCESS;
(f) PROMPT ACCESS BY NEW POSTCONVICTION
COUNSEL TO TRIAL COUNSEL'S FILES AND MATERIALS;
(g) WAIVER OF A DEFENDANT'S RIGHT TO POSTCONVICTION
REVIEW AND APPEAL OF A CONVICTION AND SENTENCE OF DEATH;
(h) RESOLUTION OF CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL ON DIRECT APPEAL BY WAY OF A PETITION FOR
REHEARING;
(i) FILING OF NOTICES OF APPEAL IN THE
SUPREME COURT;
(j) CERTIFICATION OF THE APPELLATE RECORD
TO THE SUPREME COURT;
(k) FILING OF BRIEFS IN THE SUPREME COURT;
(l) ESTABLISHMENT OF EXPEDITED PROCEDURES
FOR RESOLVING SECOND OR SUBSEQUENT REQUESTS FOR RELIEF FILED BY
A DEFENDANT AFTER CONCLUSION OF THE PROCESS ESTABLISHED BY THIS
PART 2, INCLUDING BUT NOT LIMITED TO MOTIONS FILED UNDER SECTION
1612209;
(m) CREATION OF MEANINGFUL SANCTIONS FOR
VIOLATIONS OF THE RULES PROMULGATED BY THE SUPREME COURT; AND
(n) ISSUANCE AND DISSOLUTION OF STAYS
OF EXECUTION.
(3) THE SUPREME COURT RULES ADOPTED PURSUANT
TO SUBSECTION (1) OF THIS SECTION SHALL ENSURE THAT ALL PROCEEDINGS
FOR POSTCONVICTION REVIEW, THE CERTIFICATION OF THE RECORD, AND
ALL APPELLATE BRIEFING SHALL BE COMPLETED WITHIN TWO YEARS AFTER
THE DATE UPON WHICH THE SENTENCE OF DEATH IS IMPOSED. THERE SHALL
BE NO EXTENSIONS OF TIME OF ANY KIND BEYOND THE TWOYEAR
PERIOD.
(4) UNLESS OTHERWISE PROVIDED IN THIS
PART 2, THE COLORADO APPELLATE RULES GOVERN THE PROCEDURES TO
BE FOLLOWED IN APPEALS TO THE COLORADO SUPREME COURT OF TRIAL
COURT RULINGS UNDER THIS PART 2.
(5) THE GENERAL ASSEMBLY URGES THE COLORADO
SUPREME COURT TO RENDER ITS DECISIONS EXPEDITIOUSLY IN REVIEW
OF CLASS 1 FELONY CONVICTIONS WHERE THE DEATH PENALTY HAS BEEN
IMPOSED AND ANY ORDER BY THE TRIAL COURT GRANTING OR DENYING POSTCONVICTION
RELIEF IN SUCH CASES. IT IS THE GENERAL ASSEMBLY'S INTENT THAT
THE COLORADO SUPREME COURT GIVE PRIORITY TO CASES IN WHICH A SENTENCE
OF DEATH HAS BEEN IMPOSED OVER ALL OTHER CASES BEFORE THE COURT,
EXCEPT TO THE EXTENT OF ANY CONFLICT WITH THE REQUIREMENT THAT
THE COURT GIVE THE HIGHEST PRIORITY TO ENFORCEMENT ACTIONS BROUGHT
IN ACCORDANCE WITH SECTION 20 (1) OF ARTICLE X OF THE STATE CONSTITUTION.
1612209. Limitation on
postconviction review. (1) NO
FURTHER POSTCONVICTION REVIEW IS AVAILABLE TO THE DEFENDANT AFTER
THE TIME SPECIFIED BY SUPREME COURT RULE FOR FILING A PETITION
FOR POSTCONVICTION REVIEW HAS EXPIRED. ANY CLAIM OR PETITION FILED
THEREAFTER SHALL BE DEEMED WAIVED AND SHALL BE DISMISSED SUMMARILY
UNLESS THE DEFENDANT ESTABLISHES THAT:
(a) THE FAILURE TO RAISE THE CLAIM WITHIN
THE TIME LIMIT WAS THE DIRECT RESULT OF INTERFERENCE BY GOVERNMENT
OFFICIALS WITH THE PRESENTATION OF THE CLAIM IN A MANNER WHICH
VIOLATED THE CONSTITUTION OR LAWS OF THE UNITED STATES OR COLORADO;
OR
(b) THE FACTS UPON WHICH THE CLAIM ARE
BASED WERE UNKNOWN TO THE DEFENDANT AND COULD NOT HAVE BEEN ASCERTAINED
BY THE EXERCISE OF DUE DILIGENCE; OR
(c) THE RIGHT ASSERTED BY THE DEFENDANT IS A CONSTITUTIONAL RIGHT THAT WAS RECOGNIZED BY THE SUPREME COURT OF EITHER THE UNITED STATES OR COLORADO AFTER THE TIME LIMITS SPECIFIED BY SUPREME COURT RULE FOR THE FILING OF THE PETITION FOR POSTCONVICTION REVIEW HAD EXPIRED AND THE CONSTITUTIONAL RIGHT APPLIES RETROACTIVELY.
(2) IF THE DEFENDANT FILES A MOTION FOR
POSTCONVICTION REVIEW RAISING ANY OF THE GROUNDS SPECIFIED IN
SUBSECTION (1) OF THIS SECTION, THE MOTION SHALL BE FILED WITH
THE TRIAL COURT WITHIN THIRTY DAYS AFTER THE DATE UPON WHICH THE
GROUNDS ARE DISCOVERED.
1612210. Severability.
IF ANY PROVISION OF THIS PART 2 OR THE APPLICATION OF THIS PART
2 TO ANY PERSON OR CIRCUMSTANCE IS HELD TO BE INVALID OR UNCONSTITUTIONAL,
SUCH INVALIDITY OR UNCONSTITUTIONALITY SHALL NOT AFFECT OTHER
PROVISIONS OR APPLICATIONS OF THIS PART 2 THAT CAN BE GIVEN EFFECT
WITHOUT THE INVALID OR UNCONSTITUTIONAL PROVISION OR APPLICATION.
THEREFORE, TO THIS END, THE PROVISIONS OF THIS PART 2 ARE DECLARED
TO BE SEVERABLE.
SECTION 2. 1611103
(6) (a), Colorado Revised Statutes, 1986 Repl. Vol., as amended,
is amended to read:
1611103. Imposition of sentence in
class 1 felonies appellate review.
(6) (a) Whenever a sentence of death is imposed
upon a person pursuant to the provisions of this section, the
supreme court shall review the propriety of that sentence, having
regard to the nature of the offense, the character and record
of the offender, the public interest, and the manner in which
the sentence was imposed, including the sufficiency and accuracy
of the information on which it was based. The procedures to be
employed in the review shall be as provided by supreme court rule.
THE SUPREME COURT SHALL COMBINE ITS REVIEW PURSUANT TO THIS SUBSECTION
(6) WITH CONSIDERATION OF ANY APPEAL THAT MAY BE FILED PURSUANT
TO PART 2 OF ARTICLE 12 OF THIS TITLE.
SECTION 3. 1611802
(6) (a), Colorado Revised Statutes, 1986 Repl. Vol., as amended,
is amended to read:
1611802. Imposition of sentences in
class 1 felonies for crimes committed on or after July 1, 1988,
and prior to September 20, 1991 appellate review.
(6) (a) Whenever a sentence of death is imposed upon a person
pursuant to the provisions of this section, the supreme court
shall review the propriety of that sentence, having regard to
the nature of the offense, the character and record of the offender,
the public interest, and the manner in which the sentence was
imposed, including the sufficiency and accuracy of the information
on which it was based. The procedures to be employed in the review
shall be as provided by supreme court rule. THE SUPREME COURT
SHALL COMBINE ITS REVIEW PURSUANT TO THIS SUBSECTION (6) WITH
CONSIDERATION OF ANY APPEAL THAT MAY BE FILED PURSUANT TO PART
2 OF ARTICLE 12 OF THIS TITLE.
SECTION 4. 1612101.5
(2), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is
amended to read:
1612101.5. Review of proceedings
regarding class 1 felony convictions legislative intent.
(2) In any direct appeal of any class 1 felony case
in which a conviction is entered and in which a sentence of death
is ordered
IMPOSED PRIOR TO THE DATE UPON WHICH THE COLORADO SUPREME COURT
ADOPTS RULES IMPLEMENTING THE UNITARY SYSTEM OF REVIEW ESTABLISHED
BY PART 2 OF THIS ARTICLE, all challenges to any such conviction
or sentence, with the exception of any newly discovered evidence
or any claim of ineffective assistance of counsel, shall be included
in the brief of the person challenging such conviction or sentence,
as such brief is defined by rule 28 of the Colorado appellate
rules, at the time such brief is filed with the supreme court
of the state of Colorado. Any issue which is not raised in the
manner prescribed in this section shall be deemed to be irrevocably
waived by the person challenging such conviction or sentence.
The failure of such person to file a brief within any time limits
ordered by the supreme court of the state of Colorado shall constitute
an irrevocable waiver of all issues which could have been raised
in such brief.
SECTION 5. 181410
(1.5) and (3), Colorado Revised Statutes, 1986 Repl. Vol., as
amended, are amended to read:
181410. Postconviction
remedy. (1.5) An application
for postconviction review in a class 1 felony case where a sentence
of death has been imposed shall be limited to claims of newly
discovered evidence and ineffective assistance of counsel; EXCEPT
THAT, FOR ANY SENTENCE OF DEATH IMPOSED ON OR AFTER THE DATE UPON
WHICH THE COLORADO SUPREME COURT ADOPTS RULES IMPLEMENTING THE
UNITARY SYSTEM OF REVIEW ESTABLISHED BY PART 2 OF ARTICLE 12 OF
TITLE 16, C.R.S., ANY APPLICATION FOR POSTCONVICTION REVIEW IN
SUCH CASE SHALL BE GOVERNED BY THE PROVISIONS OF PART 2 OF ARTICLE
12 OF TITLE 16, C.R.S.
(3) (a) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (b) OF THIS SUBSECTION (3), an appeal of any order by the district court granting or denying postconviction relief in a case in which a sentence of death has been imposed shall be to the Colorado supreme court as provided by section 134102 (1) (h), C.R.S. The procedures to be followed in the implementation of such review shall be in accordance with any rules adopted by the Colorado supreme court in response to the legislative intent expressed in section 1612101.5 (1), C.R.S.
(b) IN ANY CLASS 1 FELONY CASE IN WHICH
A SENTENCE OF DEATH IS IMPOSED ON OR AFTER THE DATE UPON WHICH
THE COLORADO SUPREME COURT ADOPTS RULES IMPLEMENTING THE UNITARY
SYSTEM OF REVIEW ESTABLISHED UNDER PART 2 OF ARTICLE 12 OF TITLE
16, C.R.S., THE PROCEDURES FOR APPEALING ANY ORDER BY THE DISTRICT
COURT GRANTING OR DENYING POSTCONVICTION RELIEF AND REVIEW BY
THE COLORADO SUPREME COURT OF SUCH ORDER SHALL BE GOVERNED BY
THE PROVISIONS OF PART 2 OF ARTICLE 12 OF TITLE 16, C.R.S., AND
BY SUCH RULES ADOPTED BY THE SUPREME COURT.
SECTION 6. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Joan M. Albi
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE OF COLORADO