People v. Sharp, Court of Appeals No. 04CA0619 (CO 11/3/2005)

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The People of the State of Colorado, Plaintiff-Appellee, v. Brett Wayne Sharp, Defendant-Appellant.

Court of Appeals No. 04CA0619.

Colorado Court of Appeals.

Division V.

November 3, 2005.

Arapahoe County District Court No. 98CR3035, Honorable Thomas C. Levi, Judge.

Defendant, Brett Wayne Sharp, appeals the judgment of conviction entered upon jury verdicts finding him guilty of one count of sexual assault on a child (pattern of abuse), four counts of sexual assault on a child (position of trust), four counts of aggravated incest, four counts of second degree sexual assault, and sentence enhancers of bodily injury to the victim and use of threats, intimidation, or force. We affirm.

JUDGMENT AFFIRMED.

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROMÁN

Defendant was convicted of sexually assaulting his five-year-old daughter, C. The child's mother testified that when C returned from a visit with her father, she reported that her father had touched her inappropriately.

The mother called the police, and C was taken to a children's advocacy center, where she underwent a videotaped interview by a private forensic interviewer in which she was kept away from police and prosecutors and never informed of their involvement.

At trial, the prosecution attempted to have C testify, but after it became apparent she was too traumatized to testify, the trial court found her unavailable as a witness. At that time, portions of the videotaped interview were shown to the jury. The jury found defendant guilty on the above counts, and defendant was sentenced to the Department of Corrections for fifty years.

In 2002, another division of this court affirmed the convictions but vacated the sentence, determining that the trial court had erred in concluding that the former § 16-11-309 (now codified with amendments at § 18-1.3-406, C.R.S. 2005) required it to impose consecutive sentences for each conviction of sexual assault on a child. People v. Sharp, (Colo. App. No. 00CA0772, Jan. 10, 2002) (not published pursuant to C.A.R. 35(f)). The Colorado Supreme Court denied defendant's petition for certiorari on August 19, 2002, and a mandate was issued on August 26, 2002.

At resentencing, the trial court re-imposed defendant's fifty-year sentence. Three days later, the United States Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defendant filed a notice of appeal on March 30, 2004.

I. Timeliness of Appeal and Applicability of Crawford

Defendant contends Crawford applies retroactively to his case because Crawford was decided three days after his resentencing and thus during his forty-five-day direct appeal period, at a time when his conviction was not yet final. We agree.

In Crawford, supra, the Supreme Court announced a framework for evaluating Confrontation Clause claims so that it now differs substantially from the analysis applicable at the time of defendant's trial. Because Crawford announced a new rule for the conduct of criminal prosecutions, it must be applied retroactively to all cases, state or federal, pending on direct review or not yet final when Crawford was decided. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication"); People v. Compan, 100 P.3d 533, 537 (Colo. App. 2004) ("Although not decided until after defendant was tried and sentenced, Crawford nevertheless applies to defendant's direct appeal."), aff'd, ___ P.3d ___ (Colo. No. 04SC422, Oct. 3, 2005).

In this case, we must decide when a defendant's case is "final" for purposes of retroactive application of Crawford. In other words, is a defendant's case final when he has exhausted all appeals regarding only his convictions, or not until he has exhausted all appeals regarding his convictions and sentence?

The Griffith Court defined the term "final" as "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith, supra, 479 U.S. at 321 n.6, 107 S.Ct. at 712.

Based on Griffith, courts in some jurisdictions have concluded that a judgment of conviction is "final" for retroactivity purposes once the state appellate courts have affirmed the defendant's convictions, regardless of a remand for resentencing. See Richardson v. Gramley, 998 F.2d 463 (7th Cir. 1993)(defendant's conviction final before Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), decided, even though defendant's resentencing remained); United States v. Baron, 721 F. Supp. 259 (D. Hawaii 1989) (defendant's conviction final, for purpose of determining retroactive application of Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), where, although the appellate court had remanded for resentencing, it had affirmed defendant's conviction, and the United States Supreme Court had denied certiorari); People v. Holman, 547 N.E.2d 124 (Ill. 1989)(for purpose of determining whether Batson applied, defendant's conviction was final, despite appellate court's remand for resentencing, because appellate court had decided his direct appeal and the United States Supreme Court had denied his petition for certiorari).

Other courts, however, have interpreted Griffith to mean "a judgment cannot be considered final so long as a defendant may appeal either the conviction or sentence." United States v. Colvin, 204 F.3d 1221, 1224 (9th Cir. 2000); see also Cochran v. Herring, 43 F.3d 1404, 1409 n.7, modified, 61 F.3d 20 (11th Cir. 1995) (Batson applied retroactively because defendant's sentence was still being reviewed when Batson was decided).

We conclude that the rationale of the latter line of cases should be applied here because it accords with the law of this state regarding when a conviction becomes final. Citing the definition of "judgment of conviction" under Crim. P. 32(c), defendant argues that his conviction is not final until he is sentenced and the time to appeal has expired. In our view, defendant's interpretation of Crim. P. 32(c) is correct.

The meaning of "conviction" may vary depending upon the statute in which it is used and the issue in the particular case. People v. Hamilton, 876 P.2d 1236 (Colo. 1994). The key is the legislative intent behind the use of that word in the statute in question. People v. Roberts, 865 P.2d 938 (Colo. App. 1993). Under Crim. P. 32(c), a "judgment of conviction" consists of "a recital of the plea, the verdict of findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant" (emphasis added). Thus, in Colorado, a "judgment of conviction" is final only after a sentence is passed. See Hellman v. Rhodes, 741 P.2d 1258 (Colo. 1987); People v. Fisher, 189 Colo. 297, 539 P.2d 1258 (1975).

This result is consistent with 28 U.S.C. § 1257(a), which governs Supreme Court jurisdiction of state court judgments. Section 1257(a) authorizes the Court to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had . . . where any title, right, privilege, or immunity is specially set up or claimed under the Constitution." For review of criminal prosecutions under § 1257(a), "finality generally is defined by a judgment of conviction and the imposition of a sentence." Florida v. Thomas, 532 U.S. 774, 777, 121 S.Ct. 1905, 1908, 150 L.Ed.2d 1 (2001); see also Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937) ("Final judgment in a criminal case means sentence. The sentence is the judgment. . . . To create finality it [is] necessary that [defendant's] conviction should be followed by a sentence . . . ." (citations omitted)).

Accordingly, we conclude that, for the purpose of retroactive application of a new rule of law such as Crawford, in Colorado a judgment of conviction cannot be considered final so long as a defendant may directly appeal the conviction or sentence.

We believe such a bright-line rule will help avoid litigation over the finality question as well as allow defendants to exhaust their appeals on direct review before bringing collateral attacks. Under this rule, "a defendant will have no doubt when the judgment becomes final and will be able to coordinate his direct and collateral appeals accordingly." Colvin, supra, 204 F.3d at 1226.

Here, Crawford was decided three days after defendant's resentencing, and during defendant's forty-five-day direct appeal period. Because defendant timely filed his notice of appeal within that period, he is entitled to seek relief under Crawford, as Crawford was announced before his conviction became final. The fact defendant now appeals trial issues rather than sentencing issues has no bearing on the appeal's timeliness in the circumstances of this case. See Hellman, supra, 741 P.2d at 1260 ("The fact that [defendant] appeals trial issues rather than sentencing issues has no bearing on the timeliness of filing his appeal.").

Accordingly, we conclude defendant may raise his confrontation issue on appeal. We thus proceed to the merits of his contention.

II. Constitutional Confrontation Rights

At the outset, we note defendant raised no Confrontation Clause claim at trial. Where a defendant fails to object at trial, the plain error standard of review applies to allegations of constitutional error. See People v. Miller, 113 P.3d 743 (Colo. 2005). Plain error is error that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of...