v. Bryce

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 April 2, 2020

                                

No. 18CA2295, People v. Bryce — Criminal Procedure —
Postconviction Remedies — Reduction of Sentence

     A division of the court of appeals holds that, if more than 126

days have passed since sentencing, Crim. P. 35(b) does not allow for

reconsideration of a defendant’s sentence while an appeal is

pending.
COLORADO COURT OF APPEALS                                       

Court of Appeals No. 18CA2295
Adams County District Court No. 17CR3552
Honorable Roberto Ramirez, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brett Allen Bryce,

Defendant-Appellant.


                               MOTION DENIED

                                 Division A
                        Furman, Berger, and Grove JJ.
                               PER CURIAM

                           Announced April 2, 2020


Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Polansky Law Firm, Hillary C. Aizenman, Ryan A. Dawson-Erdman, Boulder,
Colorado, for Defendant-Appellant
¶1    Defendant, Brett Allen Bryce, has moved for a limited remand

 of his appeal, which is currently pending before us, to allow the trial

 court to consider an emergency motion for a reduction of sentence

 that he intends to file under Crim. P. 35(b). Bryce seeks immediate

 release due to the health risk arising from the COVID-19 pandemic.

 We decline to issue an order of limited remand because more than

 126 days have passed since the date of sentencing and, therefore,

 the filing of a motion for reconsideration at this time would not

 comply with Crim. P. 35(b). Instead, Bryce must wait until the

 mandate issues in this case to file a motion for reconsideration.

¶2    Crim. P. 35(b) provides that, on motion, a court may reduce a

 defendant’s sentence if the motion is filed within 126 days after

 (1) imposition of the sentence; (2) “receipt by the court of a

 remittitur issued upon affirmance of the judgment or sentence or

 dismissal of the appeal”; or (3) “entry of any order or judgment of

 the appellate court denying review or having the effect of upholding

 a judgment of conviction or sentence.” A motion filed outside of

 these “prescribed period[s] . . . must be denied unless it falls under

 a recognized exception.” Ghrist v. People, 

 (Colo.

 1995). Thus, in People v. District Court, 

, 67 (Colo.


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 1981), our supreme court held that “an appeal of a final judgment

 terminates trial court jurisdiction and does not restore it . . . until

 the events described in subpart (2) or (3) of Crim. P. 35(b) take

 place.”1

¶3    Bryce was sentenced on October 18, 2018. Under the plain

 language of Crim. P. 35(b), he was required to seek sentence

 reconsideration within 126 days of his sentence date or,

 alternatively, no more than 126 days after the issuance of the

 appellate mandate. Because more than 126 days have passed since

 sentencing and this court has not yet issued its mandate, his

 proposed motion does not fall within either time period. It is

 therefore either untimely or premature.

¶4    Our denial of this motion turns exclusively on the plain

 language requirements of Crim. P. 35(b). It has no bearing on other

 1 In People v. District Court, 

, 67 (Colo. 1981), the court
 also stated that its resolution of the jurisdictional issue under Crim.
 P. 35(b) did “not rule out, in a meritorious situation, the filing of a
 request in the appellate court for a limited remand to the trial court
 to entertain a motion to modify the final judgment under appeal.”
 We do not read this language as modifying the jurisdictional
 limitations outlined elsewhere in the opinion. Rather, we
 understand it as clarifying that a limited remand may be
 appropriate so long as there are no jurisdictional barriers
 preventing a district court from granting the relief requested.


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 possible actions that the executive or judicial branch may take to

 protect public health or welfare from the COVID-19 pandemic.

¶5    We therefore deny Bryce’s motion for a limited remand.




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