Opinion
Court of Appeals No. 09CA0308
09-23-2010
The People of the State of Colorado, Plaintiff-Appellee, v. Brian Gargan, Defendant-Appellant.
John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Brian Gargan, Pro Se
Arapahoe County District Court Nos. 95CR1095 & 95CR1106
Honorable Carlos A. Samour, Jr. Judge ORDER AFFIRMED Division II
Opinion by JUDGE HAWTHORNE
Gabriel and Sternberg*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Brian Gargan, 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. 2010. ¶ 1 Defendant, Brian Gargan, appeals the trial court's order denying his Crim. P. 35(c) motion. We affirm. ¶ 2 In 1996, defendant pleaded guilty to two counts of aggravated robbery, a class three felony, committed while he was on parole. Pursuant to the parties' sentencing stipulation, the trial court sentenced him to concurrent terms of twenty-four years in the Department of Corrections, plus five years of mandatory parole. ¶ 3 In a motion dated November 7, 2008, citing Crim. P. 35(a), defendant sought postconviction relief arguing that the five-year mandatory parole period violated his plea agreement. The district court denied the motion in a written order dated January 9, 2009, stating:
Defendant has raised the exact same issues multiple times in the past in successive Rule 35 motions. The court has ruled repeatedly that his sentence is legal and that defendant was clearly advised of the mandatory parole period on the Rule 11 advisement form he executed when he entered his plea.The trial court cited Crim. P. 35(c) and stated that it need not entertain a second or successive motion for similar relief based upon the same or similar allegations for the same prisoner. ¶ 4 Defendant contends the trial court erred by denying his motion. We disagree. ¶ 5 Initially, regardless of defendant's citation to Crim. P. 35(a), his contention that his plea agreement was violated when the court ordered him to serve a five-year mandatory parole period following his concurrent twenty-four-year prison terms is a claim cognizable under Crim. P. 35(c). See Crim. P. 35(a), (c); People v. Rockwell, 125 P.3d 410, 424 n.7 (Colo. 2005); People v. Collier, 151 P.3d 668, 670-72 (Colo. App. 2006) (substance of a postconviction motion controls whether it is designated a Crim. P. 35(a) or 35(c) motion). Thus, defendant's postconviction motion is subject to the procedural bars applicable to Crim. P. 35(c) motions. See Crim. P. 35(c)(3). ¶ 6 A postconviction motion is properly denied as successive if it alleges claims that merely reformulate claims raised and resolved on direct appeal or in prior postconviction motions. See Crim. P. 35(c)(3)(VI); People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996); see also People v. Hampton, 187 Colo. 131, 133, 528 P.2d 1311, 1312 (1974) (Crim. P. 35 proceedings are intended to prevent injustices after conviction and sentencing, not to provide perpetual review). Subject to exceptions, Crim. P. 35(c)(3)(VI) requires the trial court to deny such claims. ¶ 7 Defendant has filed many postconviction motions that the trial court has denied. The record shows that defendant raised the issue of whether his sentence violated his plea agreement in prior motions, and the trial court considered and denied his claim. Contrary to defendant's contentions on appeal, even though he pursued his claims pro se, the issue was litigated, and People v. Norton, 63 P.3d 339 (Colo. 2003), does not establish any new legal principle applicable to his claim. Further, defendant has not alleged that his sentence is inconsistent with the statutory scheme outlined by the legislature. See Rockwell, 125 P.3d at 414 (sentence is illegal if it is inconsistent with statutory scheme outlined by legislature); Collier, 151 P.3d at 670 (same). Thus, the court properly denied his 2008 Crim. P. 35(c) motion as successive. See Crim. P. 35(c)(3)(VI); Rodriguez, 914 P.2d at 249. ¶ 8 In any event, the record shows that defendant's claim fails on its merits as well. The plea agreement included a stipulated twenty-four-year prison sentence on each count to be served concurrently. Defendant signed and initialed the Request to Plead Guilty (Rule 11 Advisement), including the statement, "I know that I could be required to serve up to five years on parole after serving a sentence." The record does not indicate that the parties stipulated to nineteen-year prison terms plus five years mandatory parole or that the parties intended to waive mandatory parole illegally. See People v. Johnson, 13 P.3d 309, 313 (Colo. 2000) (parole period is mandatory and may not be waived by offender or waived or suspended by trial court; mandatory parole is distinct sentencing element, separate from imprisonment terms or sentence length imposed by trial court and statutorily attaches when prison sentence imposed). ¶ 9 The order is affirmed.
JUDGE GABRIEL and JUDGE STERNBERG concur.