WARD v. PEOPLE (2024)

¶1 David L. Ward asks this court to apply the holdings we announced in Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191, which altered proportionality review for habitual criminal sentences, retroactively to his case. Consistent with the companion case we announce today, McDonald v. People, 2024 CO 75, ¶¶ 1, 34, ––– P.3d ––––, we hold that Wells-Yates didn't announce new substantive rules of constitutional law, and so Wells-Yates’s holdings don't apply retroactively to cases, like Ward's, on collateral review.

I. Facts and Procedural History

¶2 In 1993, a jury convicted Ward of robbery (a class 4 felony), aggravated robbery (a class 3 felony), and three habitual criminal counts. The habitual criminal counts were based on two prior felony convictions: (1) a 1987 conviction for offering violence to a correctional officer in Missouri and (2) a 1981 conviction for second degree burglary in Colorado. The trial court sentenced Ward to life imprisonment.

¶3 Ward appealed, and the division affirmed his convictions for robbery and aggravated robbery but remanded the case to the trial court to consider whether Ward had demonstrated justifiable excuse or excusable neglect for his untimely challenge to the prior convictions upon which his habitual criminal convictions were predicated. People v. Ward, No. 93CA268 (Oct. 6, 1994). On remand, the trial court found no justifiable excuse or excusable neglect and affirmed Ward's habitual criminal counts. Ward appealed that decision, and the division again affirmed Ward's convictions and sentence. People v. Ward, No. 97CA366 (Oct. 22, 1998). Ward's convictions became final in 1999.

¶4 In 2020, Ward filed a pro se motion requesting a proportionality review of his sentence under Wells-Yates. The postconviction court concluded Ward's claims were time-barred under section 16-5-402, C.R.S. (2024). On appeal, the division concluded that “Wells-Yates didn't create a new substantive constitutional rule that applies retroactively ․ [; it] changed only the process for conducting an extended proportionality review.” People v. Ward, No. 20CA1921, ¶¶ 13–14, 2023 WL 2744839 (Mar. 30, 2023). Accordingly, it concluded that Ward's collateral attack was untimely. Id. at ¶ 15.

¶5 We then granted Ward's petition for certiorari review.¹

II. Analysis

¶6 We discussed habitual criminal sentencing, Eighth Amendment proportionality review, and the retroactive application of judicially created rules in today's companion case, McDonald, ¶¶ 7–32. So, we don't repeat that discussion here. Instead, we simply apply our conclusion in McDonald—that Wells-Yates’s holdings don't apply retroactively to cases on collateral review—to Ward's case to determine whether Ward's collateral attack is time-barred.²

¶7 Section 16-5-402 provides that defendants convicted of any felony other than a class 1 felony must bring a collateral attack of their convictions within three years of being convicted unless they can show that their failure to do so “was the result of circumstances amounting to justifiable excuse or excusable neglect.” § 16-5-402(2)(d).

¶8 Ward hasn't established justifiable excuse or excusable neglect for failing to collaterally attack his prior convictions within three years of being convicted. And Ward can't rely on Wells-Yates’s holdings to justify an untimely collateral attack because that opinion doesn't apply retroactively. See McDonald, ¶¶ 1, 34.

¶9 Therefore, we conclude that Ward's collateral attack is untimely.

III. Conclusion

¶10 We affirm the judgment of the court of appeals.

FOOTNOTES

1.   We granted certiorari to review the following issue:1. Whether Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191, announced a new, substantive rule of constitutional law that applies retroactively.

2.   Because Ward didn't raise at trial or on appeal his due process argument or his argument that the Colorado Constitution provides broader protection than its federal counterpart, those issues aren't properly before us on certiorari review, and we don't address them. See Martinez v. People, 244 P.3d 135, 140 (Colo. 2010) (vacating the portion of an opinion that reached the merits of an unpreserved constitutional claim because, “[t]o preserve a Colorado Constitutional argument for appeal, ․ a defendant must make an objection sufficiently specific to call the attention of the trial court to the potential Colorado Constitutional error”).

JUSTICE HOOD delivered the Opinion of the Court.