Opinion · Colorado Court of Appeals

People v. Goldman

20 Brief Times Rptr. 1126

Type
Opinion
Court
Colorado Court of Appeals
Jurisdiction
Colorado
Date
1996-07-11
Topic
general

holding that allegations not raised in a Crim. P. 35(c) motion and thus not ruled on by the postconviction court are not properly before the Court of Appeals | refusing to follow procedure adopted in Hickey--remanding Rule 35(c) proceeding to the trial court to consider claim 39 alleging ineffective assistance of counsel in the Rule 35(c) proceeding--because this claim was not first raised in the trial court | allegations not raised before trial court in course of postconviction proceedings are not preserved and may not be raised on appeal for the first time | allegations not raised in a postc onviction motion aren’t properly before this court for review | “ Allegations not raised in a Crim. P. 35(c) motion . . . are not properly before this court for review.” | allegations not raised in a postconviction motion and, thus, not ruled on by the district court, are not properly postured for appellate review | “Allegations not raised in a Crim. P. 35(c) motion . . . are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | allegations not raised in a Crim. P. 35(c) motion or hearing on that motion and not ruled upon by trial court are not properly before this court for review | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | allegations not raised in a Crim. P. 35(c) motion or hearing on that motion and not ruled upon by trial court are not properly before this court for review | “Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a [Rule] 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim.P. 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion or during the hearing on that motion and thus not ruled on by the [postconviction] court are not properly before this court for review.” | “Allegations not raised in a Crim. P. 35(c) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review.” | “Allegations not raised in a C

Citator

Cited by
27 opinions

Opinion by

Judge HUME.

Defendant, Michael Winston Goldman, appeals the trial court’s order denying his Crim.P. 35(c) motion. We dismiss the appeal.

Pursuant to a plea agreement, defendant was convicted of first degree assault and a corresponding crime of violence count and was sentenced to a twelve-year prison term.

Defendant thereafter filed a pro se Crim.P. 35(c) motion, claiming that his plea had not been knowingly and voluntarily entered because he had received ineffective assistance of plea counsel and an inadequate Crim.P. 11 advisement from the trial court. As pertinent here, defendant maintained that he was under the influence of a “mind altering prescription drug” dindng his providency hearing and was therefore unable to understand the court’s advisement and the consequences of his plea. With respect to the ineffective assistance of counsel claim, defendant contended that counsel “should not have let de *375 fendant” enter a plea while under the influence of the medication.

The trial court appointed counsel to represent defendant on the motion. Following an evidentiary hearing, defendant withdrew his claim regarding the propriety of his Crim.P. 11 advisement. Based on the evidence presented at the hearing, the trial court found that plea counsel’s performance had not been deficient and denied the motion.

On appeal, defendant contends that he received ineffective assistance of counsel in the Crim.P. 35(c) proceeding. More specifically, he claims counsel was ineffective because he failed to call an expert witness regarding the effects of the medication, if any, on defendant’s mental state during the providency hearing and his ability to make a knowing and voluntary plea while on the medication. Defendant did not raise this issue in the trial court. Consequently, the trial court has not had an opportunity to rule on defendant’s claim.

Allegations not raised in a Crim.P. 35(e) motion or during the hearing on that motion and thus not ruled on by the trial court are not properly before this court for review. See People v. Simms, 185 Colo. 214, 523 P.2d 463 (1974); People v. Hampton, 857 P.2d 441 (Colo.App.1992), aff'd, 876 P.2d 1236 (Colo.1994). Accordingly, this appeal must be dismissed.

We are aware that in People v. Hickey, 914 P.2d 377 (Colo.App.1995), under circumstances similar to those presented here, a division of this court declined to dismiss the appeal and remanded the cause to the trial court with directions to consider the merits of the defendant’s claim, provided he filed an appropriate CrimJP. 35(c) motion. In our view, however, remand is not a procedurally appropriate alternative to dismissal where, as here, there is no pending motion for the court to consider on remand. We thus decline to follow Hickey.

The appeal is dismissed.

STERNBERG, C.J., and ROTHENBERG, J., concur.