author: Judge LOEB.

text:
    Dan GROSSMAN, as Colorado House Minority Leader, Plaintiff-Appellant, v. Doug DEAN, as Speaker of the House, Colorado General Assembly; Lola Spradley, as Colorado House Majority Leader; Bill Cadman, as Colorado State Representative; Lauri Clapp, as Colorado State Representative; Bill Crane, as Colorado State Representative; David Schultheis, as Colorado State Representative; and William D. Sinclair, as Colorado State Representative, Defendants-Appellees.
    No. 02CA1219.
    Colorado Court of Appeals, Div. I.
    Oct. 23, 2003.

      Ballard, Spahr, Andrews & Ingersoll, LLP, Michael E. Lindsay, A. Thomas Downey, Andrew C. Testerman, Denver, Colorado, for Plaintiff-Appellant.
    Hale Hackstaff Friesen, LLP, Richard A. Westfall, Denver, Colorado, for Defendants-Appellees.
    Schwarz, Semenoff, McNab & Bailey, P.C., Christopher M. Hamper, Denver, Colorado, for Amicus Curiae Common Cause of Colorado.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, for Amicus Curiae Colorado League of Women Voters.
   Opinion by

Judge LOEB.

Plaintiff, Dan Grossman, as Colorado House Minority Leader, appeals the trial court’s judgment dismissing his complaint against the Colorado General Assembly; Doug Dean, as Speaker of the House; Lola Spradley, as House Majority Leader; and Bill Cadman, Lauri Clapp, Bill Crane, David Schultheis, and William D. Sinclair, as Colorado State Representatives. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff sought a declaratory judgment that the use of a “supermotion” pursuant to House Rule 25(j)(l)(G) to kill a proposed bill without prior committee consideration on the merits of the bill violates the GAVEL Amendment, Colo. Const, art. V, § 20. He also sought a declaration that three specific uses of the supermotion in this way by representatives of the majority party in the House be deemed null and void.

Defendants filed a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5). The trial court granted the motion, finding that the House Rule complied with the GAVEL amendment and that the relief requested, if granted, would constitute an injunction and would therefore improperly interfere with legislative functions. This appeal followed.

GAVEL, which stands for “Give A Vote to Every Legislator,” is a group of amendments to the Colorado Constitution passed in 1988 by ballot initiative. The amendments were designed to correct certain perceived abuses in the legislative process.

The GAVEL amendment at issue in this case states, in pertinent part:

Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference upon such a measure within appropriate deadlines. A motion that the committee report the measure favorably to the committee of the whole, with or without amendments, shall always be in order within appropriate deadlines.

Colo. Const, art. V, § 20.

House Rule 25(j)(l)(G), promulgated soon after the GAVEL amendments were passed, provides that a representative may make a motion out of order, commonly called a su-permotion, that a committee report a measure favorably to the full House of Representatives, otherwise known as the committee of the whole. The House Rule states:

If a motion is made that a committee report a measure favorably to the committee of the whole ... when such measure is not in the order of business ... then such measure shall be considered by the committee upon its merits. If such motion fails to pass, the failure of such motion to pass shall have the same effect in all respects as the adoption of a motion that consideration of the measure be indefinitely postponed.

A motion that a committee report a measure favorably to the full House is a standard motion that a bill’s supporter normally makes after a committee conducts a hearing on the bill. Such a motion becomes a supermotion under the GAVEL amendment and the House Rule when it is made out of order of the calendared business of the committee.

When a supermotion is made, the House Rule requires that the measure be “considered by the committee on its merits.” If the supermotion fails to pass, the measure is deemed “indefinitely postponed,” and the bill is not subsequently considered during the session; in other words, the bill is killed in committee.

The complaint alleges that, during the 2002 regular session, three bills sponsored by Democratic members of the House minority were referred to committee. At each committee meeting, members of the public were prepared to testify in favor of the proposed legislation. In each committee, a Republican member of the House majority who was opposed to the bill made a supermotion that the bill be reported favorably to the committee of the whole, but requested a “no” vote on the motion. In each instance, no committee discussion or debate occurred, and no testimony was received on the merits of the measure. A vote was then taken on each supermotion, and each failed along party lines. The failures had the effect of indefinitely postponing each bill.

One bill that was indefinitely postponed in this manner was HCR 1009, which was introduced and sponsored by plaintiff and supported by Colorado Common Cause, amicus curiae here. HCR 1009 would have placed a campaign finance reform proposal on the ballot for the 2002 election. The other two bills referenced in the complaint were sponsored by other members of the minority party.

Plaintiff concedes on appeal that, because the 2002 legislative session has ended, his second claim for relief, seeking a declaratory judgment that the permanent tabling of the three proposed bills be deemed null and void, is moot. However, he maintains that the trial court erred in dismissing his first claim for relief, seeking a declaratory judgment that the use of the supermotions here violated the GAVEL amendment and therefore was unconstitutional. We agree that dismissal was not warranted.

When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), a court must accept all allegations of material fact as true and view the allegations in the complaint in the light most favorable to the plaintiff. We review a trial court’s ruling on a motion to dismiss de novo. Pub. Serv. Co. v. Van Wyk, 27 P.3d 377 (Colo.2001).

I. Justiciability

Initially, we address defendants’ contention that this case is not justiciable for three reasons: (1) plaintiff lacks standing; (2) the case is moot; and (3) the claims improperly interfere with the activities of the legislature and therefore violate the political question doctrine. We disagree with each contention.

A. Standing

First, we address defendants’ argument that plaintiff lacks standing to bring this action.

Standing is a jurisdictional prerequisite that requires a named plaintiff to bring suit only to protect a cognizable interest. Friends of Black Forest Reg’l Park, Inc. v. Bd. of County Comm’rs, 80 P.3d 871, 2003 WL 1923823 (Colo.App. No. 01CA2253, Apr. 24, 2003). Whether a plaintiff has standing is determined as of the time the action is filed. See Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 709, 145 L.Ed.2d 610 (2000); cf. Miller v. Accelerated Bureau of Collections, Inc., 932 P.2d 824 (Colo.App.1996)(plaintiff not having standing at the outset of litigation may later acquire it; standing would then relate back to commencement of proceeding).

To determine standing, we must consider (1) whether the plaintiff was injured in fact, and (2) whether the injury was to a legally protected right. Romer v. Colo. Gen. Assembly, 810 P.2d 215, 218 (Colo.1991).

Injury in fact may be proved by showing that the action complained of has caused or has threatened to cause injury. See Romer v. Colo. Gen. Assembly, supra. The requirement that the injury be to a legally protected interest “is grounded on prudential considerations of judicial self restraint.” Romer v. Colo. Gen. Assembly, 810 P.2d at 218 (quoting Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo.1985)(Lamm I)). The question is whether the plaintiff is protected by law from the alleged injury; this determination is “inextricably tied” to the merits of the dispute. See Lamm I, supra.

Initially, we disagree with defendants that plaintiff lacks standing because he is no longer in the House of Representatives. Plaintiff was a member of the House when the complaint was filed, and his standing to bring this action is determined as of that time. See Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., supra.

Here, plaintiff has adequately alleged a legally protected interest. GAVEL specifically creates a legally protected right for each legislator to have a committee of reference consider and vote on a bill on its merits. Plaintiffs allegation that the committee to which his bill was assigned was deprived of the opportunity to consider that bill on its merits sufficiently alleges an injury to a legally protected interest. See Romer v. Colo. Gen. Assembly, supra (governor alleged an injury in fact to his legally protected interest in his constitutional power to veto provisions of an appropriations bill); Maurer v. Young Life, 779 P.2d 1317 (Colo.1989)(legally protected interest is recognized where created by statutory or constitutional provision).

Plaintiff has also adequately alleged injury in fact because, as a member of the House and as the sponsoring legislator of HCR 1009 when the suit was filed, he asserts that he was deprived of the opportunity to have his bill considered on its merits and voted on by the committee of reference, as mandated by the GAVEL amendment. See Colo. Gen. Assembly v. Lamm, 704 P.2d 1371 (Colo.1985)(Lamm II Xlegislature suffered an injury in fact as a result of governor’s exercise of his line item veto power); Lamm I, supra (legislature had standing to bring suit against governor challenging transfer of funds between executive offices in violation of legislature’s power of appropriation).

However, in contrast to his alleged injury in fact concerning HCR 1009, plaintiff has not alleged injury in fact with respect to the two bills he did not sponsor, although he does have a legally protected interest created by GAVEL.

Moreover, we reject plaintiffs further contention that, solely by virtue of his position as House Minority Leader, he has standing to challenge defendants’ use of the House Rule to kill all three bills, including the two bills that he did not individually sponsor. We have not found any support under Colorado law for this contention and thus conclude that plaintiffs position as House Minority Leader, by itself, does not provide a basis for standing to pursue this action. We therefore affirm the trial court’s dismissal of the complaint insofar as it concerns the two bills that plaintiff did not sponsor.

Nevertheless, because plaintiff has sufficiently alleged injury in fact to a legally protected interest based on his status as the sponsoring representative of HCR 1009, he has standing to pursue this action for a declaratory judgment with respect to that bill.

We disagree with defendants that Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), compels a different result. In Raines v. Byrd, the United States Supreme Court held that individual members of Congress did not have standing to challenge the constitutionality of the Line Item Veto Act.

Although federal decisions may be considered for guidance, we are ultimately governed here by state principles of standing, rather than the federal principles created by Article III of the United States Constitution and addressed in Raines v. Byrd. See Maurer v. Young Life, supra 779 P.2d at 1324 n. 10 (federal court doctrine of standing has different constitutional basis and is not coextensive with Colorado standing inquiry); Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977)(state courts are not subject to provisions of Article III of United States Constitution).

On several occasions, the Colorado Supreme Court has upheld the standing of public officials under Colorado law to bring litigation alleging injury to their official interests. See Romer v. Colo. Gen. Assembly, supra (governor had standing to sue legislature concerning veto override procedures); Lamm II, supra (under Colorado principles of standing, the legislature had standing to challenge the governor’s exercise of his line item veto power); Lamm I, supra (under Colorado principles of standing, legislature had standing to bring suit against governor challenging transfer of funds between executive offices in violation of legislature’s power of appropriation). These cases reflect a more expansive view of standing under Colorado law than that expressed under federal law in Raines. Indeed, the concurrence in Raines specifically cites Lamm II, supra, as support for the proposition that the parties in Raines arguably suffered an injury in fact. See Raines v. Byrd, supra, 521 U.S. at 833, 117 S.Ct. at 2324 (Souter, J., concurring).

In addition, Raines is distinguishable from this case in two important respects. First, Raines involved legislation that had been validly passed by Congress and was being challenged as unconstitutional by individual members of Congress who had voted against the legislation. Here, HCR 1009 was allegedly killed in committee in violation of the GAVEL amendment without receiving committee consideration and a vote on its merits, and it is the method by which that bill was killed that is being challenged, rather than the substance of the legislation itself.

Indeed, Raines acknowledges that individual legislators may have standing in circumstances where their votes are deprived of validity. See Raines v. Byrd, supra, 521 U.S. at 823, 117 S.Ct. at 2319 (distinguishing Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939)(legislators have standing to challenge ratification of amendment to federal ' constitution effectuated through governor’s deciding vote)). Here, plaintiff contends that the committee vote killing HCR 1009 was essentially invalid because the measure was not considered by the committee on its merits, as required by GAVEL.

Second, the holding in Raines is premised, in large part, on the principle that, to support standing, a plaintiffs complaint must establish that plaintiff has a personal stake in the alleged dispute and that the alleged injury is particularized as to the plaintiff. Raines v. Byrd, supra, 521 U.S. at 819, 117 S.Ct. at 2317. The plaintiffs in Raines had no particular stake in the dispute; they simply had voted against the legislation being challenged. Here, in contrast, plaintiff proposed and sponsored HCR 1009 and alleges that he was specifically injured because defendants denied him the right to have the committee consider and vote on his bill on its merits.

Accordingly, we conclude that plaintiff has standing to bring this action with respect to HCR 1009.

B. Mootness

As discussed above, plaintiff concedes that his second claim for relief is moot because the 2002 legislative session has ended. However, defendants contend that the first claim for relief for a declaratory judgment challenging the constitutionality of the use of the supermotion here is also moot for the same reason. We are not persuaded.

Ordinarily, a court invokes its judicial power only when an actual controversy exists between adverse parties. An issue becomes moot when the relief granted by the court would not have a practical effect upon an existing controversy. When an issue is moot, a court normally refrains from addressing it. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095 (Colo.1998).

There are two exceptions to the mootness doctrine. First, a court may resolve what is an otherwise moot case when the issue involved is one that is capable of repetition, yet evading review. Second, a court may decide a moot case involving issues of great public importance or recurring constitutional violations. Dempsey v. Romer, 825 P.2d 44 (Colo.1992); Campbell v. Meyer, 883 P.2d 617 (Colo.App.1994).

We conclude that both exceptions to the mootness doctrine apply here.

First, this case involves an issue that is capable of repetition, yet evading review. Because the supermotion, as allegedly utilized here, is the product of a House rule that is still in effect, the actions that allegedly occurred here are capable of being repeated. See Russell v. City of Central, 892 P.2d 432, 436 (Colo.App.1995)(declaratory judgment action challenging amendment is capable of repetition yet evading review where amendment can be applied in future); see also Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm’n, 620 P.2d 1051, 1054 (Colo.1980)(case capable of repetition yet evading review despite fact that precise factual circumstances in which controversy arose are unlikely to recur); cf. Freedom from Religion Found., Inc. v. Romer, 921 P.2d 84, 88 (Colo.App.1996)(issue not capable of repetition yet evading review where plaintiffs did not seek a declaration as to any general statute, ordinance, or regulation that might be applied in future situations).

Furthermore, although plaintiff brought his ease soon after his bill was killed in committee, the length of the appeals process is such that the legislative session ended before this case was at issue before us. Because the legislative session is limited to 120 days, see Colo. Const, art. Y, § 7, in almost all instances, the session would end before this court could reach a decision. See Trinidad Sch. Dist. No. 1 v. Lopez, supra (action capable of repetition yet evading review even though some students possibly would be able to initiate and litigate a case through appellate review prior to graduation where named plaintiff had graduated during the litigation process); In re Marriage of Finer, 893 P.2d 1381, 1387 (Colo.App.1995)(review of temporary injunction not moot because of short duration of injunction prior to entry of permanent orders).

In addition, the issues here are of great public importance. The case involves the interpretation of a state constitutional amendment adopted by ballot initiative. It also implicates the public’s ability to petition the government for redress and the ability of representatives to serve their constituents in accordance with the requirements of the GAVEL amendments. See Humphrey v. Southwestern Dev. Co., 734 P.2d 637 (Colo.1987)(resolution of significant jurisdictional dispute affects future water court proceedings, is of statewide public importance, and is therefore not moot); Englewood Police Benefit Ass’n v. City of Englewood, 811 P.2d 464 (Colo.App.1990)(issue whether city may hold special election on same day as municipal general election is a matter of great public concern and therefore not moot).

C. Political Question

Defendants also contend that we should not address the merits of plaintiffs claim because to do so would encroach on the province of the legislature. We disagree.

A request that the court enjoin conduct by the legislature generally entails an improper intrusion into legislative affairs, but a request for a declaratory judgment that an action is unconstitutional may be addressed by the court. See Colo. Common Cause v. Bledsoe, 810 P.2d 201 (Colo.1991)(Common Cause).

In Common Cause, the plaintiff requested both a declaratory judgment that the majority caucus’s actions violated another provision of the GAVEL amendments and injunctive relief prohibiting the caucus from violating that provision in the future. The court cautioned against the judiciary infringing on the powers and duties of a coequal branch of government, but found that the interpretation of constitutional provisions in that case did not present a nonjusticiable political question.

Similarly, here, we are asked to interpret a constitutional amendment and to determine whether the application of the House Rule violates that amendment. As in Common Cause, our interpretation of the constitution and the House Rule in no way infringes on the powers and duties of a coequal branch of government. Indeed, interpretation of the constitution is peculiarly within the province of the judiciary. Lamm II, supra, 704 P.2d at 1378 (citing Marbury v. Madison, 5 U.S. (1 Craneh) 137, 2 L.Ed. 60 (1803)).

Moreover, in Common Cause, supra, 810 P.2d at 211, although the court found that the claim for injunctive relief was properly dismissed, the court stated that “declaratory-judgment actions do not present the same kind or degree of affirmative interference with legislative activities.”

Here, as in Common Cause, the trial court dismissed both of plaintiffs claims, finding that they were in essence requests for in-junctive relief. We agree with plaintiff that the dismissal on this basis was error. Plaintiff seeks a declaratory judgment that defendants’ actions, in utilizing the supermotion as alleged here, violated the GAVEL amendment to article 5, section 20 of the Colorado Constitution. This claim seeks declaratory, not injunctive, relief and therefore can and should be addressed on its merits. See Common Cause, supra; see also Colo. Const, art. V, § 22b (providing remedy for violations of GAVEL amendments).

D. Motion For Substitution

Pursuant to CAR 43, plaintiff has moved to substitute former Representative Jennifer Veiga, his successor as House Minority Leader, as the named plaintiff in this case. We deny the motion.

There is no allegation that Representative Veiga was the sponsor of any of the bills at issue in this case and thus suffered any injury in fact. Because we have concluded that plaintiff does not have standing based solely on his status as House Minority Leader, but that his standing to pursue this action is based on his status as sponsor of HCR 1009, it is thus neither necessary nor appropriate to substitute Representative Veiga as a named plaintiff.

II. Analysis of Plaintiffs Claim

We now turn to the substance of plaintiffs constitutional claim.

Plaintiff contends that article V, section 20, as amended by GAVEL, requires some level of committee discussion, debate, or testimony on the merits of each measure prior to a committee vote and that defendants’ use of the supermotion here violates-that amendment because it allowed HCR 1009 to be indefinitely postponed without any discussion, debate, testimony, or similar committee consideration of the merits of the bill. Defendants contend that the language of section 20 as amended does not require discussion, debate, or testimony in a committee of reference and that a vote on a supermotion under the House Rule, by itself, constitutes consideration and vote on the merits. We agree with plaintiff.

A. Interpretation of Section 20

Plaintiff interprets the amendment to section 20 to require both “consideration and a vote by a committee” and further argues that “consideration” means something more than a vote on the supermotion made here. Defendants argue that the amendment’s requirement of “consideration” is met by each member of the committee voting on the su-permotion because, in order to vote, each individual member must necessarily “consider” the bill. We are not persuaded by defendants’ interpretation.

When interpreting a constitutional amendment, we should ascertain and give effect to the intent of those who adopted it. When, as here, the provision was adopted by popular vote, we must determine what the voters believed the language of the amendment meant when they approved it, by giving the language the natural and popular meaning usually understood by the voters. Bd. of County Comm’rs v. City & County of Broomfield, 62 P.3d 1086, 1088 (Colo.App.2002).

Moreover, we must liberally construe the GAVEL amendment to effectuate its purpose. Common Cause, supra, 810 P.2d at 210. Courts should not engage in a narrow or technical reading of language contained in a constitutional amendment if such a reading would defeat the intent of the voters. If the intent of the voters is not clear from an amendment’s language, courts should consider the amendment as a whole and construe it in light of the objective it seeks to achieve and the mischief it seeks to avoid. Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo.1996); Bd. of County Comm’rs v. City & County of Broomfield, supra. We are obligated to construe the constitution in such a manner as will prevent an evasion of its legitimate operation. Common Cause, supra, 810 P.2d at 207.

The plain language of the GAVEL amendment at issue here supports plaintiffs contention that the voters intended to require something beyond a mere vote on a bill. The amendment specifically states that both committee consideration and a vote are required. It requires that every measure “shall be considered by the committee upon its merits” and that no rule shall deny “consideration and vote by a committee of reference.” We do not read “consideration” as merely implicit in every vote. To do so would render the language redundant. See Colo. Comp. Ins. Auth. v. Jorgensen, 992 P.2d 1156 (Colo.2000) (interpretations that render statutory provisions redundant and superfluous should be avoided). By including the word “consideration,” the electorate must have intended that a committee of reference engage in some activity in addition to a simple vote. See People v. Woellhaf — P.3d —, 2003 WL 21403159 (Colo.App. No. 00CA2351, June 19, 2003)(in interpreting a statute, a court will not follow construction that defeats legislative intent or leads to an unreasonable or absurd result; a court should endeavor to give effect to each word in a statute).

In addition, the plain language of the amendment requires that every measure “be considered by the committee.” Consideration by the committee as a group necessarily involves something more than the individual mental process of each legislator and requires some kind of interaction and communication among the members of the committee.

When interpreting a constitutional amendment, we may look to the explanatory publication of the Legislative Council of the Colorado General Assembly, otherwise known as the Blue Book. While not binding, the Blue Book provides important insight into the electorate’s understanding of the amendment when it was passed and also shows the public’s intentions in adopting the amendment. See Macravey v. Hamilton, 898 P.2d 1076 (Colo.1995)(the Blue Book provides helpful source equivalent to the legislative history of a proposed amendment); Common Cause, supra, 810 P.2d at 209; Bd. of County Comm’rs v. City & County of Broomfield, supra.

The Blue Book supports the conclusion that the public intended consideration and a vote to be two separate requirements. See Colorado Legislative Council, Research Pub. No. 326, An Analysis of 1988 Ballot Proposals (1988)(J3Zwe Book)-, Common Cause, supra (expressly relying on the Blue Book for interpretation of GAVEL).

According to the Blue Book, the proponents of the GAVEL amendment to section 20 believed that it would require that “all bills will be afforded a hearing before a committee.” The Blue Book further stated that committee chairpersons would not be able to deny committee members “the right to hear and vote on a certain piece of legislation,” and “citizens should not be denied the right to testify in favor of or against legislation” because the bill was disfavored by the committee chair or by the majority party’s political philosophy. Hence, the proponents of the GAVEL amendments understood that the amendment at issue here would ensure that bills referred to a committee could not be killed procedurally without first having some kind of hearing or committee interaction and allowing an opportunity for the public to give testimony, if appropriate. Blue Book, supra, at 20.

Further, the Blue Book noted that opponents and critics of the GAVEL amendment to section 20 argued that “a requirement that all bills be afforded a hearing would lengthen the legislative session.” See Blue Book, supra, at 21. Thus, even the amendment’s opponents appeared to agree that the amendment, if adopted, would require some kind of interactive consideration by a committee on every bill.

This interpretation is also consistent with the objectives the amendment sought to achieve and the mischief it sought to avoid. The GAVEL amendments were intended to correct three perceived abuses of the legislative process relating to (1) the power of a committee chair to withhold action on a bill, in effect “killing it”; (2) the system by which bills were scheduled for debate that permitted the Rules Committee to “kill” a bill by choosing not to schedule it for floor debate within certain deadlines; and (3) the system of party caucus positions, whereby members of a political party agree in advance to vote in a particular way. Common Cause, supra, 810 P.2d at 210.

The amendment to section 20 was designed to correct the first listed abuse, and that abuse itself had two perceived aspects: (1) the power of a committee chair to kill a bill in committee by not scheduling it for hearing, and (2) the power of a committee chair to kill a bill in committee by not bringing it to a vote after a hearing. See Blue Book, supra, at 20. The first aspect was addressed in the GAVEL amendment to section 20 by the sentence, “Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits.” The second aspect was addressed by the amendment’s proscription that “no rule of either house shall deny the opportunity for consideration and vote by a committee of reference upon such a measure.” Moreover, under the amendment, a committee chair would also be prohibited from allowing debate, but then limiting action on a bill by excluding a motion that the bill be reported favorably to the full House. Hence, the amendment provides that “[a] motion that the committee report the measure favorably to the committee of the whole ... shall always be in order.”

Thus, as pertinent here, the GAVEL amendment to section 20 was intended both to prevent a committee chair from killing a bill without the committee first considering its merits and to prevent a committee chair, after a bill had been so considered, from refusing to call the bill to a vote in committee. Therefore, the specific evils the amendment was intended to remedy involved the deprivation of both consideration and a vote, not merely a vote.

Further, while the GAVEL amendment to section 20 does not explicitly contain the words “testimony,” “debate,” or “hearing,” the intent of GAVEL in requiring “consideration” was that legislators be precluded from completely prohibiting interactive committee consideration of the merits of a bill, which interaction normally includes some level of discussion, debate, or testimony.

However, we need not interpret the GAVEL amendment to mandate any specific form of committee consideration in every situation. The amendment is intentionally general and leaves the General Assembly to determine, on a case-by-case basis, the level of discussion, debate, or testimony that is required. See House Rule 25(j)(l)(E 2) (“The chairman of each committee of reference may limit testimony and discussion on a measure to that which is adequate, in the chairman’s discretion, to enable the committee to consider the measure on its merits.”).

In some cases, a full hearing with public testimony and committee debate may be appropriate. In other cases, mere debate may suffice. In yet other cases, a simple presentation to the committee on the merits of a bill by its sponsor may be enough. Various other alternatives might be consistent with the constitution as well. We conclude here only that some committee consideration on the merits is required and that actions that preclude such consideration violate the GAVEL amendment.

Indeed, plaintiff asks us only to determine whether defendants’ actions, as alleged in the complaint, violated the intent of the electorate in adopting the GAVEL amendment to section 20. Any more detailed delineation of the specific requirements of “consideration” is not necessary here and is better left to the General Assembly in the first instance. See Colo. Const, art. V, § 12 (each house shall have the power to determine the rules of its proceedings).

Accordingly, we conclude that “consideration on the merits” contemplates, at a minimum, some interactive consideration by members of a committee and that each measure must be so considered before being voted on by the committee on its merits.

B. Constitutionality of House Rule 25(j)(l)(G)

Given this interpretation of the amendment to section 20, we must address the parties’ further arguments concerning whether the House Rule, on its face, violates section 20. We conclude that it does not.

We presume that a rule is constitutional on its face. See Woldt v. People, 64 P.3d 256, 266 (Colo.2003)(determining constitutionality of a statute). We should not seek out reasons to invalidate a rule, but rather, we should interpret it to preserve its validity. See People v. Gonzales, 188 Colo. 272, 275, 534 P.2d 626 (1975)(same). A rule is facially unconstitutional only if no conceivable set of circumstances exists under which it may be applied in a constitutionally permissible manner. See Woldt v. People, supra.

House Rule 25(j)(l)(G) specifically provides that when a supermotion is made to report a measure favorably to the full House, “such measure shall be considered by the committee upon its merits.” This language comports with the requirement in section 20 that every measure referred to a committee of reference “shall be considered by the committee upon its merits,” as we have interpreted that requirement above. Further, the House Rule was enacted after the GAVEL amendments were adopted and tracks the language of the section 20 amendment.

Thus, we reject defendants’ interpretation of the House Rule that would equate a vote on a supermotion with consideration by the committee on the merits of a bill. Defendants’ reading of the House Rule is also inconsistent with other House rules that treat “consideration” and a “vote” as different processes. See House Rule 25(j)(l)(E) (“Each measure assigned or referred to a committee shall be set for committee consideration at a scheduled meeting, considered by the committee upon its merits, and acted upon by the committee.”); House Rule 25(j)(l)(E.3) (limiting “consideration” in the Appropriations Committee of any bill that has already been considered by another committee to the “measure’s fiscal impact”).

Plaintiff contends that the House Rule is rendered unconstitutional in part by the provision that, “If such motion [a supermotion] fails to pass, the failure of such motion to pass shall have the same effect in all respects as the adoption of a motion that consideration of the measure be indefinitely postponed.” According to plaintiff, once a super-motion fails to pass, the rule requires the bill to be indefinitely postponed without the measure ever having been considered. We disagree with this interpretation.

Under a proper interpretation of the House Rule, before a vote may occur on a supermotion, a bill must be “considered upon its merits”; in other words, there must be some interactive consideration of the bill by the committee, as required by the GAVEL amendment. Under these circumstances, if a supermotion fails to pass, GAVEL’s requirement that the committee consider a bill on its merits should already have been met. Thus, when “consideration” on the measure is “indefinitely postponed,” this simply means that the bill cannot be resurrected and reconsidered. Only through this interpretation does the House Rule avoid contradiction, absurdity, and unconstitutionality. See Rodriguez v. Schutt, 914 P.2d 921, 925 (Colo.1996)(we will give effect to the plain meaning of the statute’s words and phrases, unless the result is absurd or unconstitutional).

Accordingly, if, upon the making of a su-permotion, a measure is first considered by the committee on its merits and then voted upon, there is no constitutional infirmity in the House Rule’s further provision that if the motion fails to pass, the measure is then deemed indefinitely postponed.

Finally, we disagree with plaintiffs argument that a vote pursuant to a supermotion is not a vote on the merits, but is only a procedural vote. If a committee first has an opportunity to consider a bill on its merits, any subsequent vote, whether to recommend the bill favorably to the full House, to kill the bill in committee, or to take some other action consistent with the House rules for deciding on a bill, is a vote on the merits.

Accordingly, we conclude that House Rule 25(j)(l)(G), on its face, complies with the GAVEL amendment to section 20.

C. Constitutionality of Defendants’ Actions

However, we agree with plaintiff that his complaint adequately alleges a claim for declaratory relief that defendants’ alleged actions with respect to HCR 1009 in forcing a vote on the supermotion without prior committee consideration on the merits, as we have interpreted that term, violated section 20.

The complaint alleges that certain defendants forced a vote on a supermotion concerning HCR 1009 without any prior interactive consideration by the committee on the merits of the measure itself. Thus, if we assume the truth of the facts alleged in the complaint, the actions taken here would have violated the GAVEL amendment requirement that the committee of reference consider the measure on its merits. Further, the actions alleged here would have violated the House Rule as well, which also requires consideration on the merits.

Both the GAVEL amendment and the House Rule were intended to allow a legislator who supports a bill to obtain both committee consideration and a vote on the merits of the bill when a majority party committee chair might otherwise kill the bill without a hearing and vote. Here, a legislator who did not support the bill and a majority party committee chair allegedly used the supermotion device to kill plaintiffs bill without prior committee consideration on the merits in a way that effectively turned the GAVEL amendment to section 20 on its head, thus defeating the intention of the electorate in adopting that amendment.

The trial court’s judgment granting the motion to dismiss is affirmed insofar as the complaint concerns the two bills not sponsored by plaintiff. In all other respects, the judgment is reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion.

Judge TAUBMAN and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge CASEBOLT.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip J. ZUNIGA, Sr., Defendant-Appellant.
    No. 02CA0724.
    Colorado Court of Appeals, Div. V.
    Oct. 23, 2003.

      Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Phillip J. Zuniga, Sr., Pro Se.
   Opinion by

Judge CASEBOLT.

Defendant, Phillip J. Zuniga, Sr., appeals the order denying his motion for postconviction relief. We affirm.

In a consolidated plea agreement reached in three cases, defendant pleaded guilty to one count of theft by receiving and two counts of unlawful distribution, manufacturing, dispensing, sale, and possession of marihuana and marihuana concentrate. With respect to the latter convictions, defendant admitted that he used or displayed a gun during the commission of the offense and that he was thus subject to enhanced sentencing as a special offender pursuant to § 18-18-407, C.R.S.2002. In exchange for his guilty pleas, the People agreed to dismissal of the remaining charges, including the four habitual offender charges filed in each of the three cases. The parties agreed that the sentences imposed for the three convictions would run consecutively.

After accepting defendant’s guilty plea, the trial court sentenced him to a six-year prison term for the theft by receiving conviction and a twelve-year term for each of the drug-related convictions. The trial court ordered the sentences to be served consecutively.

Defendant thereafter filed a Crim. P. 35 motion asserting that: (1) the theft by receiving charge was barred by the statute of limitations because he obtained the property ten years before the charge was fried; (2) his guilty plea was invalid because he received an inadequate providency advisement and the prosecution coerced him into pleading guilty by filing the habitual offender charges; (3) he received ineffective assistance of counsel; (4) the sentences imposed for his drug-related convictions are illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (5) those sentences are excessive and constitute an abuse of discretion by the trial court. The trial court denied the motion without appointing counsel or holding a hearing.

I.

Defendant first asserts that his theft by receiving conviction must be vacated because the charge was filed after the statute of limitations had expired. We disagree.

Because the statute of limitations is jurisdictional in a criminal case, a violation of the statute may be raised at any time. Hence, defendant did not waive this claim by pleading guilty. See People v. Verbrugge, 998 P.2d 43 (Colo.App.1999).

A.

The statute of limitations applicable to the offense of theft by receiving is three years. Section 16-5-401(l)(a), C.R.S.2002.

When an offense is based on a series of acts performed at different times, the period of limitations begins to run when the last act is committed. Section 16-5-401(4), C.R.S.2002; People v. Chavez, 952 P.2d 828 (Colo.App.1997); see also People v. Flagg, 18 P.3d 792, 794 (Colo.App.2000)(a crime “is not committed until all the elements are complete”).

When a crime is a continuing offense that is perpetrated over time, the crime continues, and the statute of limitations does not begin to run, as long as the illegal conduct continues. See People v. Thorn Prods. Co., 70 P.3d 1188 (Colo.2003).

A crime will not be considered a continuing offense unless the language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that the legislature must surely have intended that it be treated as a continuing one. People v. Thorn Prods. Co., supra.

As pertinent here, a person commits theft by receiving when he or she “retains ... anything of value of another, knowing or believing that said thing of value has been stolen, and when he intends to deprive the lawful owner permanently of the use or benefit of the thing of value.” Section 18—4— 410(1), C.R.S.2002.

The General Assembly did not specifically define theft by receiving as a continuing offense as it has defined some other crimes. See, e.g., § 18-2-204(1), C.R.S.2002 (defining conspiracy as a continuing course of conduct). We conclude, however, that the nature of the offense of theft by receiving is such that the General Assembly must have intended it to be a continuing course of conduct when, as here, the charge is based on the defendant’s retention of stolen property.

The theft by receiving statute does not define the word “retain.” The most common dictionary definition of “retain” is “to keep in possession or use.” Webster’s Third New International Dictionary 1938 (1986); see Halverstadt v. Dep’t of Corr., 911 P.2d 654 (Colo.App.1995)(adopting same definition of “retain” in analyzing meaning of state personnel rule); see also People v. Thorn Prods. Co., supra, 70 P.3d at 1194 (noting that courts frequently look “to the dictionary to ascertain the meaning of undefined words in a statute”). This definition connotes something other than mere momentary possession and is thus consistent with the generally accepted legal definition of “retain,” which is “to continue to hold, have, use ... and to keep.” Black’s Law Dictionary 1316 (6th ed.1990).

We note that possession of stolen property is not otherwise a separate offense in Colorado, and, by using the word “retain” in the theft by receiving statute, the General Assembly defined the crime to include the offense of possession of stolen property. See People v. McCoy, 870 P.2d 1231, 1238 n. 13 (Colo.1994); People v. Hampton, 758 P.2d 1344, 1355 n. 5 (Colo.1988).

A defendant necessarily continues to commit any crime involving possession, including the offense of possession of stolen property, during the entire period he or she possesses the property. See Von Eichelberger v. United States, 252 F.2d 184, 185 (9th Cir.1958)(when “the essence” of a crime, such as concealing or retaining stolen property, is possession, the offense is a continuing one); see also State v. Lawrence, 312 N.W.2d 251 (Minn.1981)(concealing or possessing stolen goods is a continuing offense for purposes of statute of limitations); State v. Lodermeier, 481 N.W.2d 614, 620-21 (S.D.1992)(under possession of stolen property statute which “incorporated” the crime of “receiving and retaining,” the use of the word “retain” indicated a clear intent to make that aspect of the crime a continuing one); cf. People v. Morgan, 785 P.2d 1294 (Colo.1990)(defen-dant’s alleged theft of two canoes in Colorado and his admitted possession of them on the Navajo Reservation constituted a continuing course of conduct).

Our conclusion that, by using the word “retain,” the General Assembly intended to make this aspect of the crime of theft by receiving a continuing offense is supported by the fact that some federal and many other state courts have analyzed similar statutes and reached the same conclusion. See United States v. Blizzard, 27 F.3d 100 (4th Cir.l994)(concealing and retaining stolen government property is a continuing offense and the statute of limitations does not run during the defendant’s possession of the property); Von Eichelberger v. United States, supra, United States v. Cunningham, 902 F.Supp. 166, 169 (N.D.Ill.1995)(possession of stolen mail is a continuing offense for purposes of the statute of limitations); United States v. Fleetwood, 489 F.Supp. 129 (D.Or.1980)(concealing and retaining United States savings bonds and freedom share notes constitutes a continuing offense), disapproved on other grounds by United States v. Wyatt, 737 F.2d 1499 (9th Cir.1984); Scott v. State, 69 Ark.App. 121, 10 S.W.3d 476 (2000); State v. Temple, 65 Haw. 261, 650 P.2d 1358 (1982)(inclusion of the term “retain” in receiving stolen property statute evinces legislative intent to make that aspect of the crime a continuing one for purposes of statute of limitations); State v. Maidwell, 137 Idaho 424, 50 P.3d 439 (2002); State v. Lawrence, supra; Davis v. State, 586 So.2d 817 (Miss.1991)(receipt of stolen property is a continuing course of conduct); State v. Homer, 78 Ohio App.3d 477, 605 N.E.2d 426 (1992); State v. Harelson, 147 Or.App. 556, 938 P.2d 763 (1997); State v. Lodermeier, supra.

We recognize that courts in several other jurisdictions have reached a different result, but we disagree with those cases and are satisfied that ours is the better conclusion. See State v. Saathoff, 29 P.3d 236 (Alaska 2001)(eoncluding that theft by receiving is not a continuous offense and that the word “retain” describes a defendant’s actions at a particular point in time); People v. Kimbro, 182 Ill.App.3d 572, 131 Ill.Dec. 451, 538 N.E.2d 826 (1989); State v. Harrison, 561 N.W.2d 28 (Iowa 1997)(theft by exercising control over stolen property is not a continuing offense for statute of limitations purposes); State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980); State v. Nuss, 235 Neb. 107, 454 N.W.2d 482 (1990).

Here, because theft by receiving based on defendant’s retention of stolen property is a continuing offense, the statute of limitations did not begin to run until defendant no longer possessed the property. Because the stolen property was seized from defendant four days before the charge was filed, the trial court correctly rejected his statute of limitations claim.

B.

To the extent defendant contends either that the property was not stolen or that he did not retain it through the date alleged in the information and that there was thus no factual basis for the charge, he waived that claim when he entered his guilty plea. See People v. Flagg, supra (pleading guilty is the equivalent of admitting all material facts alleged in the charge, and by pleading guilty a defendant admits involvement in the crime up to and including the last date alleged in the charge); see also People v. Sandreschi, 849 P.2d 873 (Colo.App.1992).

C.

We reject defendant’s suggestion that he could not be charged with theft by receiving because he was the person who stole the property and could have been charged with theft if the statute of limitations on that offense had not run.

A defendant cannot be convicted of both theft and theft by receiving when the charges arise out of the same transaction and involve the same property. People v. Taylor, 647 P.2d 682 (Colo.1982); People v. Jackson, 627 P.2d 741 (Colo.1981). However, theft and theft by receiving are separate and distinct crimes, and the prosecution may charge the person who stole property with theft by receiving the property instead of theft. People v. Smith, 938 P.2d 111 (Colo.1997); see also People v. Allen, 21 Cal.4th 846, 89 Cal.Rptr.2d 279, 984 P.2d 486 (1999); State v. Homer, supra.

II.

Defendant next contends that his plea is invalid because he received an inadequate providency advisement. More specifically, defendant asserts he was not advised of the elements of the special offender charges or their effect on the range of sentences that could be imposed. He also contends his advisement was deficient because the court did not tell him the special offender sentence enhancer could not apply unless a jury determined beyond a reasonable doubt that he used or displayed a weapon during the commission of the crimes. We disagree.

To satisfy the requirements of due process, the record as a whole must show that the defendant entered a guilty plea knowingly and voluntarily. Lacy v. People, 775 P.2d 1 (Colo.1989); Waits v. People, 724 P.2d 1329 (Colo.1986). A trial court may assure itself that a guilty plea is being entered in accordance with constitutional requirements by complying with Crim. P. 11(b). People v. Leonard, 673 P.2d 37 (Colo.1983); People v. Weed, 830 P.2d 1095 (Colo.App.1991).

Here, before entering his guilty plea, defendant signed the written plea agreement and by doing so acknowledged that he understood its contents, including an admission that he was subject to enhanced sentencing as a special offender. Contrary to defendant’s assertion, the written plea agreement accurately advised him of the elements of the special offender charges and indicated that by pleading guilty, he was waiving his right to a jury trial on all the charges, including the special offender sentence enhancer.

During the provideney hearing, the court again advised defendant of the elements of the special offender charges and reminded him that by pleading guilty he was waiving his right to have his status as a special offender determined beyond a reasonable doubt by a jury. The court also advised defendant that he would be subject to enhanced penalties as a special offender. The record thus establishes that defendant was advised both in writing and orally by the provideney court of the elements of the special offender charges and that by pleading guilty he was waiving his right to a jury determination on that issue.

It is true, as defendant contends, that the advisements erroneously indicated that, as a result of his status as a special offender, he could be sentenced to between two and twelve years for each conviction. The enhanced range was actually between eight and forty-eight years. See § 18-18-407(1), C.R.S.2002 (providing that a defendant who is found to be a special offender must be sentenced to at least the minimum presumptive-range sentence' but not more than twice the maximum presumptive-range sentence for class two felonies). However, the sen-fences defendant received were within the range of sentences he was advised of and are on the low end of the range required by the special offender statute. Thus, defendant was not prejudiced by the erroneous advise-ments, and the fact that they understated the maximum allowable sentence does not undermine the validity of his guilty plea. See Craig v. People, 986 P.2d 951, 964 (Colo.1999)(an inadequate advisement regarding mandatory parole is harmless if the period of incarceration imposed plus the parole period does not exceed the maximum prison sentence the defendant was advised he could receive); People v. Tyus, 776 P.2d 1143 (Colo.App.1989)(same).

Consequently, defendant was adequately advised regarding the special offender sentence enhancer.

We note that in his brief on appeal, defendant asserts that because he had used so many drugs for such a prolonged period, he is unable to understand complex concepts and the entire provideney advisement was not sufficiently clear or repetitive for him to understand it. He also contends that he was taking antidepressant medications when he entered his guilty plea and that the court did not conduct a sufficient inquiry into the effect of the medication on his ability to understand his provideney advisement.

However, because defendant did not raise these claims in the trial court, they are not properly before us. We therefore decline to consider them on appeal. See People v. Lesney, 855 P.2d 1364 (Colo.1993); People v. Boyd, 30 P.3d 819 (Colo.App.2001); People v. Goldman, 923 P.2d 374 (Colo.App.1996).

Finally, we reject defendant’s claim that his plea was involuntary because the prosecution coerced him into pleading guilty by filing habitual offender charges against him. See Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967)(threats by prosecutor to file additional charges, including habitual criminal charges, if defendant does not plead guilty, do not constitute coercion).

III.

Defendant further contends that the postconviction court erred by rejecting his claim that under Apprendi v. New Jersey, supra, his sentence is unconstitutional because the sentence enhancing factor of being a special offender was not determined beyond a reasonable doubt by a jury.

Apprendi does not apply retroactively to convictions, such as defendant’s, that were final before that decision was announced. See People v. Bradbury, 68 P.3d 494 (Colo.App.2002).

IV.

To the extent defendant contends the sentences imposed for his two drug-related convictions were excessive and constituted an abuse of discretion by the trial court, we agree with the postconviction court’s denial of his motion in that regard.

A sentence constitutes an abuse of discretion only if it is manifestly arbitrary, unreasonable, or unfair. Absent a showing of a clear abuse of the court’s wide discretion in sentencing, we will not reverse a trial court’s sentencing decision on appeal. People v. Hayward, 55 P.3d 803 (Colo.App.2002); People v. Harding, 17 P.3d 183 (Colo.App.2000).

In exercising its sentencing discretion, a trial court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating circumstances, and the public interest in safety and deterrence. People v. Piro, 701 P.2d 878 (Colo.App.1985). A trial court may properly consider the defendant’s criminal history and the circumstances giving rise to other charges dismissed at the time of the plea as aggravating factors. People v. Lowery, 642 P.2d 515 (Colo.1982); People v. Fleming, 3 P.3d 449 (Colo.App.1999).

Here, the sentences are on the low end of the presumptive range provided by the special offender statute. See § 18-1.3-401(l)(a)(V)(A), C.R.S.2002 (providing that the presumptive range of penalties for class two felonies is eight to twenty-four years); § 18-18-407(1) (a defendant designated as a special offender must be sentenced within the range for a class two felony).

Moreover, there is ample evidence in the record, including defendant’s extensive criminal history, which supports the trial court’s sentencing decision. Because the sentences imposed are within the range required by law, are based on appropriate considerations as reflected in the record, and are factually supported by the circumstances of the case, the postconviction court properly rejected defendant’s claim that they are excessive and constitute an abuse of discretion. See People v. Fuller, 791 P.2d 702 (Colo.1990).

In so concluding, we reject defendant’s contention that the trial court abused its discretion by imposing consecutive, rather than concurrent sentences. Defendant acknowledged both in writing and orally at the providency hearing that the imposition of consecutive sentences for separate offenses was within the discretion of the trial court, and he agreed that he would receive consecutive sentences. See People v. Wilson, 819 P.2d 510 (Colo.App.1991); see also People v. Thomas, 916 P.2d 582 (Colo.App.1995)(sen-tencing court has discretion to impose a sentence to be served consecutively or concurrently with a sentence already imposed).

V.

In the trial court, defendant did not raise his claim that, pursuant to the compulsory joinder statute, the prosecution was required to file the two drug charges in the same information, and that if the charges had been brought in the same case, the trial court would have been required to impose concurrent, rather than consecutive sentences for those convictions under § 18-1-408, C.R.S. 2002. Therefore, we decline to address it on appeal. See People v. Lesney, supra.

VI.

Defendant also contends he received ineffective assistance of counsel. Again, we disagree.

To prevail in a proceeding for posteonviction relief based on a claim of ineffective assistance of counsel, the defendant must demonstrate not only that counsel’s performance was deficient, but also that it prejudiced the defense. People v. Valdez, 789 P.2d 406 (Colo.1990); People v. Davis, 849 P.2d 857 (Colo.App.1992), aff'd, 871 P.2d 769 (Colo.1994).

Because there is a presumption of validity that attaches to a judgment of conviction, the burden is on the defendant to prove both elements by a preponderance of the evidence. People v. Naranjo, 840 P.2d 319 (Colo.1992); People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973).

To satisfy the second requirement of this test, a defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Davis, supra. Thus, defendant here was required to demonstrate that, but for counsel’s alleged dereliction, he would not have pleaded guilty. See People v. Garcia, 815 P.2d 937 (Colo.1991); People v. Pozo, 746 P.2d 523 (Colo.1987).

A.

Based upon our conclusion that theft by receiving is a continuing offense, the court correctly rejected defendant’s claim that counsel was ineffective because he did not file a motion to dismiss that charge.

B.

We also reject defendant’s claim that counsel was ineffective in telling defendant he would receive a much shorter sentence than the aggregate sentence actually imposed.

A defense attorney’s erroneous assessment of a probable sentence does not constitute ineffective assistance of counsel. People v. DiGuglielmo, 33 P.3d 1248 (Colo.App.2001). Thus, absent a showing of a deliberate misrepresentation that induced a defendant’s guilty plea, counsel’s erroneous assessment concerning sentencing does not constitute ineffective assistance of counsel. People v. Chavez, 902 P.2d 891 (Colo.App.1995); People v. Rael, 681 P.2d 530 (Colo.App.1984); cf. People v. Adams, 836 P.2d 1045 (Colo.App.1991)(the duty of defense counsel is to discuss the case with complete candor and to offer the best estimate possible as to the outcome, and competent advice of counsel does not constitute coercion sufficient to invalidate a guilty plea).

Here, defendant did not argue, and nothing in the record suggests, that counsel’s alleged misrepresentation regarding the likely sentence was deliberate or designed to manipulate him into pleading guilty.

C.

Defendant argues generally that counsel was ineffective because he conducted an inadequate investigation into the facts of the crime and the validity of the convictions on which the habitual offender charges were based.

However, defendant has not explained what additional investigation counsel should have done, what the results of those efforts would have been, and how they would have affected the outcome of the case. Such eon-clusory allegations regarding counsel’s allegedly deficient performance are insufficient to demonstrate that defendant may be entitled to postconviction relief and that the record might contain specific facts that would substantiate his claim. See People v. Chambers, 900 P.2d 1249 (Colo.App.1994); People v. Barefield, 804 P.2d 1342 (Colo.App.1990); see also People v. Rodriguez, 914 P.2d 230 (Colo.1996). Accordingly, the trial court correctly denied defendant’s motion in that regard.

VII.

Finally, because the trial court properly denied defendant’s motion as a matter of law, it was not required to hold a hearing. See People v. Thomas, 867 P.2d 880 (Colo.1994); People v. Lopez, 12 P.3d 869 (Colo.App.2000); People v. Moriarity, 8 P.3d 566 (Colo.App.2000). Nor was the court required to appoint counsel to represent defendant on the motion. See Duran v. Price, 868 P.2d 375 (Colo.1994); Brinklow v. Riveland, 773 P.2d 517 (Colo.1989); People v. Lopez, supra.

The order is affirmed.

JUDGE ROY and JUDGE PICCONE concur.


author: COATS, Chief Judge.

text:
    Eric MORROW, Appellant/Cross-Appellee, v. STATE of Alaska, Appellee/Cross-Appellant.
    Nos. A-8396, A-8405.
    Court of Appeals of Alaska.
    Nov. 21, 2003.

      Michael Jude Pate, Office of Public Advocacy, Sitka, and Brant McGee, Public Advocate, Office of Public Advocacy, Anchorage, for Appellant/Cross-Appellee.
    Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appel-lee/Cross-Appellant.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Eric Morrow appeals his conviction for failing to appear at his felony sentencing. Morrow contends on appeal that Superior Court Judge Larry C. Zervos abused his discretion in (1) denying his motion to dismiss the indictment, (2) denying his motion to bifurcate his trial, and (3) admitting evidence of two prior incidents where Morrow had failed to appear. We conclude that Judge Zervos did not abuse his discretion.

The State cross-appeals, arguing that Judge Zervos erred in instructing the jury on the culpable mental state for failure to appear. We conclude that this issue is moot in light of Morrow’s conviction.

Factual background

On May 2, 2001, Morrow pleaded guilty to felony assault in Sitka Superior Court. Both Morrow and his attorney were present at this change of plea hearing. The court set July 12, 2001, as the sentencing date. Morrow failed to appear at the July 12th hearing. The court issued a warrant for Morrow’s arrest for failure to appear. Morrow was arrested on July 24, 2001, in Sitka.

A grand jury indicted Morrow on one count of failure to appear. At trial, Morrow testified that he had mistakenly written down the sentencing date as August 12, 2001, rather than July 12, 2001. A jury convicted Morrow of failure to appear. Morrow appeals.

Morrow’s motion to dismiss the indictment

Susan Roberson, the in-court clerk for the Sitka superior court, was the only witness called to testify before the grand jury. She testified that she was acting as the in-court clerk on the day that Morrow pleaded guilty to the assault charge. She also testified that, at this hearing, the court informed Morrow of the time and date of his sentencing.

Roberson further testified that she was the in-court clerk at the scheduled July 12th sentencing hearing. She testified that although the hearing started on time, Morrow was not present; however, his defense attorney was. The defense attorney offered no explanation for Morrow’s absence, and the court issued a warrant for Morrow’s arrest.

At one point during the grand jury hearing, the prosecutor offered the grand jury a certified copy of the conditions of release form which the court gave to Morrow prior to the change of plea hearing. This document did not say anything about the sentencing hearing date which the court later set after Morrow had changed his plea. The prosecutor apparently introduced the form to show the grand jury that the court had informed Morrow of his duty to appear at all scheduled court proceedings. A grand juror then asked how they could know that Morrow understood when his next court date was. The prosecutor responded as follows:

Prosecutor: I think you’re getting into deliberations. The state has presented the evidence that I’m going to rely on in this case. And again, it’s your decision whether all of that evidence taken together, unexplained or uncontradicted, would warrant a trial jury to return a verdict of guilty.

The following exchange then ensued regarding the conditions of release form:

Grand Juror: I have one more question on this. The exhibit that you gave me, there’s a section down here called agreement by defendant. I have reviewed the above order. I promise to appear at all court hearings and comply with all other conditions set. And it’s not signed. Prosecutor: I can tell you that it’s not the practice of this jurisdiction that those be signed, the copies of those. I think it indicates on the bottom the copies are distributed. Basically as copies are distributed. That is true. That it’s not signed. If you want further testimony on that I can recall Ms. Roberson. It is not the practice to have those signed in this jurisdiction.

The prosecutor later reviewed all of the elements of failure to appear under AS 12.30.060. The prosecutor told the grand jury that it needed to decide if Morrow acted knowingly when he failed to appear for his sentencing. The grand jury returned a true bill indicting Morrow for failure to appear.

Morrow moved to dismiss the indictment, arguing that the prosecutor’s statement that the practice in the jurisdiction was not to have defendants sign the form amounted to improper testimony. Although witnesses testified that the court often did not require defendants to sign the form, the State conceded that the prosecutor’s statement about local practice was improper because it amounted to testimony by the prosecutor. But the State argued that Morrow had not been prejudiced by this error.

Under Stem v. State, “when a defendant proves that the grand jury heard improper evidence, the superior court must engage in a two-part analysis.” First, the court must remove the improper evidence from the case heard by the grand jury and decide whether the evidence that remains is legally sufficient to support the indictment. If the indictment survives the first step of the analysis, the court must then examine the degree to which the improper evidence might have unfairly influenced the grand jury’s decision. The question becomes whether “the probative force of [the] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury’s decision to indict.”

Judge Zervos applied the Stem standard. He concluded that, after striking the prosecutor’s improper comment, there was sufficient evidence to support the grand jury’s decision to indict. He then weighed whether the prosecutor’s comment could have prejudiced Morrow. He concluded that the prosecutor had responded “inappropriately and probably incorrectly ... about local practices.” But he concluded that the evidence which the State presented about Morrow’s knowledge of the date of his sentencing hearing was strong because Morrow was “present when the date was set.” Judge Zervos concluded that “[t]he prosecutor’s statement was such a small part of the [g]rand [j]ury presentation and on such a side issue that it could not have been ‘a decisive factor in the [g]rand [jjury’s decision to indict.’ ”

Our review of the record convinces us that Judge Zervos correctly applied the Stem analysis and did not err in refusing to dismiss the indictment. Morrow argues that the prosecutor’s comments constituted prose-cutorial misconduct and therefore required dismissal of the indictment. But, as Judge Zervos pointed out, although the supreme court has previously admonished prosecutors for making improper statements to the grand jury, it has not ordered indictments dismissed on this basis if the impropriety did not affect the grand jury’s decision. Judge Zervos pointed out that the prosecutorial misconduct which Morrow alleged in this ease had only a minor effect on the grand jury proceeding. He accordingly refused to dismiss the indictment based on prosecutorial misconduct and applied the Stem standard. We agree with Judge Zervos’s analysis.

Morrow’s motion to bifurcate his trial

When a court releases a defendant following a criminal charge or conviction, a defendant who knowingly fails to appear in court as required in that ease is guilty of the offense of failure to appear. If the person is released in connection with a misdemeanor charge, the failure to appear is a misdemean- or offense. But if the failure to appear is in connection with a felony charge, the failure to appear is a felony. Morrow argued that the jury would be prejudiced against him if the State introduced evidence that the court proceeding at which he failed to appear was a felony sentencing. He therefore proposed a bifurcated trial. In the first part of the trial, the jury would determine whether Morrow had knowingly failed to appear at a scheduled court proceeding. Only if the jury found Morrow guilty in the first part of the trial would the jury decide whether Morrow’s release was in connection with a felony offense. Judge Zervos denied the motion to bifurcate the trial but cautioned the jury not to be prejudiced by the fact that Morrow had been released on a felony. Morrow argues that Judge Zervos abused his discretion in refusing to bifurcate his trial.

Thirty years ago the Alaska Supreme Court first noted that it was within the discretion of trial courts to order bifurcation. We have considered the issue of whether to bifurcate trials in several more recent cases. The most recent case in which we discussed bifurcation is Ostlund v. State. The State charged Ostlund with felony driving while intoxicated (DWI). In order to convict Ostlund of felony DWI, the State needed to establish that Ostlund drove while intoxicated and that he had two or more prior convictions for driving while intoxicated within the previous five years. Ostlund moved for a bifurcated trial. In the first part of the trial the jury would determine whether Ostlund had committed his current driving while intoxicated offense. If the jury found him guilty of this offense, Ostlund agreed to stipulate to his two prior driving while intoxicated convictions. The trial judge denied Ostlund’s motion for a bifurcated trial; he was convicted and appealed.

We reversed Ostlund’s conviction. We pointed out that under the facts of that case, Ostlund’s prior offenses were only relevant to establish that his driving while intoxicated offense was a felony. Presenting the jury with evidence of Ostlund’s prior convictions unnecessarily risked prejudicing the jury:

The state never argued that Ostlund’s pri- or offenses were relevant for any purpose other than to establish that his driving while intoxicated offense was a felony. By holding a unitary trial in which the state was allowed to present evidence that Ost-lund had two prior convictions for DWI, the judge unnecessarily presented the jurors with information that could have unfairly prejudiced their deliberations. Having heard that Ostlund had committed DWI on two prior occasions, the jury might have used this information for the purpose prohibited by Evidence Rule 404(b)(1): to infer that Ostlund was a person who characteristically drove while intoxicated, thus making it more likely that he was guilty of the current DWI charge.[]

But Morrow’s case is different. The fact that Morrow failed to appear for a felony sentencing was relevant for a purpose other than to establish that he had committed a felony. Morrow contended that he made a mistake about when his sentencing was scheduled. Such a mistake is much more plausible if Morrow had failed to appear for a relatively insignificant hearing on a misdemeanor case. The fact that the hearing which Morrow missed was for sentencing on a felony ease tends to make his claim of mistake less believable. Therefore, Judge Zervos could determine that the fact that the hearing that Morrow missed was a felony sentencing had probative value.

Another factor in favor of Judge Zervos’s ruling is the policy argument which we discussed in State v. McLaughlin. The State charged McLaughlin with felon in possession (possession of a coneealable firearm by a previously convicted felon). McLaughlin offered to stipulate to his prior conviction and have the jury decide only the issue of whether McLaughlin knowingly possessed a coneealable firearm. The trial judge agreed to this procedure, and the State filed a petition for review. We granted the petition and reversed the trial court’s decision. We held that the government was entitled to show that the reason McLaughlin could not legally possess a firearm was that he had a prior felony conviction. We reasoned that because possession of a coneealable firearm was generally legal, the government’s prosecution would not make sense to the jury unless it could show that McLaughlin was a convicted felon. We concluded that it was important for the jury to understand the nature of McLaughlin’s offense in order to properly fulfill its role in the criminal justice system.

Judge Zervos could properly have similar concerns in Morrow’s case. In arguing that any juror would know that failure to appear for a court appearance is unlawful, Morrow points out that a prospective juror is informed that if the juror fails to appear for jury duty after receiving a summons, the juror may be found in contempt and punished. He concludes that the jury might not sympathize with someone who failed to appear. He also argues that the jury might assume that Morrow was being prosecuted for a $25 traffic ticket and not take the matter seriously and convict him. But Morrow’s argument illustrates a concern that Judge Zervos could have legitimately had: the jury might be prejudiced by the lack of information about the nature of the charge Morrow faced. The jury might erroneously suspect that the State was prosecuting Morrow for missing a much less significant proceeding. Judge Zervos could have concluded that it would be better to accurately inform the jury about the nature of the State’s case against Morrow.

We emphasize that trial judges have discretion to determine when prior bad act evidence, including evidence of prior convictions, is admissible at trial. This is a balancing which trial judges perform under Evidence Rule 404(b)(1) and Evidence Rule 403. If the trial judge determines that the prior crimes evidence is relevant, the trial judge is to consider the danger that jurors will view a previously convicted defendant as a person who commits criminal acts and will presume his guilt from his prior criminal acts. The judge must weigh this possible prejudice against the probative value of the evidence.

In the circumstances of this case, we conclude that Judge Zervos did not abuse his discretion in deciding that evidence of Morrow’s felony charge was relevant, and that Morrow’s motion for a bifurcated trial should be denied. We note that Judge Zervos gave the jury a cautionary instruction and the jury was not informed of the nature of the felony charge for which Morrow did not appear.

Admission of Morrow’s prior incidents when he failed to appear

The present case was not Morrow’s first failure to appear. In 1988, Morrow failed to report to his probation officer for three months. The probation officer then filed a petition to revoke Morrow’s probation. A court hearing was set, and Morrow did not appear at the hearing. In 1989, Morrow was arrested on a bench warrant for this failure to appear. An adjudication date was set on a petition to revoke Morrow’s probation. Morrow did not appear at this hearing. Morrow absconded to Washington where he lived for several years. In 1992, while back in Alaska, he was arrested on the outstanding warrant issued due to his failure to appear at the 1989 hearing.

Prior to trial, the prosecutor asked Judge Zervos to rule that she could introduce evidence of these incidents in order to prove Morrow’s knowledge of his obligation to make court appearances and to show that Morrow’s current failure to appear was not a mistake. Judge Zervos ruled that these incidents would be admissible if Morrow claimed that he did not appear because he made a mistake about the date of the sentencing hearing. He ruled that only the fact that Morrow had previously failed to appear would come before the jury, not the nature of Morrow’s underlying offenses, in order to lessen the danger of unfair prejudice. Morrow testified at trial that he failed to appear because he made a mistake about the date when he was supposed to appear. Judge Zervos then allowed the disputed evidence to come before the jury. Morrow argues that this was error.

Admission of evidence of prior bad acts is governed by Evidence Rule 404(b). Evidence Rule 404(b)(1) forbids admitting prior bad acts for the sole purpose of showing a person’s propensity to commit criminal acts. But the rule does allow admission of prior bad acts for other purposes such as the absence of mistake or accident. If such evidence is relevant for a proper purpose, the trial court must still examine the evidence under Evidence Rule 403, which directs courts to exclude such evidence if the danger of unfair prejudice outweighs the probative value of the evidence. The State must show that the defendant’s past criminal behavior “bear[s] a relevant factual similarity to the charged offense before these past acts can be admitted....”

Judge Zervos could properly determine that Morrow’s prior incidents of failure to appear were relevant to rebut Morrow’s claim of mistake. The only issue at trial was whether Morrow had knowingly failed to appear for his sentencing. Morrow defended on the ground that he had made a mistake about the date of the sentencing. The fact that Morrow had, on two previous occasions, failed to appear for a court hearing was relevant to rebut his claim of mistake. Morrow points out that there was a danger of unfair prejudice. He also points out that the prior incidents of failure to appear were for the same type of incident for which he was on trial. He argues that the jury might have misused the incidents for forbidden propensity purposes. He also argues that these incidents were of limited probative value because they occurred over ten years prior to the incident which resulted in the current charge.

But Judge Zervos reached a different conclusion. He concluded that Morrow’s prior incidents of failure to appear were highly relevant to rebut Morrow’s claim of mistake. He also concluded that if the State was limited to showing only that Morrow had failed to appear on these two occasions, without being permitted to show any of the underlying offenses, the danger of unfair prejudice was limited.

We conclude that Judge Zervos did not abuse his discretion in admitting the evidence of Morrow’s prior failures to appear. This evidence was relevant to Morrow’s claim of mistake. Failure to appear in court does not appear to be the kind of prior offense which would unfairly prejudice the jury against a defendant. And Judge Zervos took steps to limit the evidence to the fact that Morrow had failed to appear and prohibited the State from introducing any surrounding circumstances that might unnecessarily inform the jury of Morrow’s prior criminal history. Judge Zervos also gave the jury a cautionary instruction. We find no error.

The State’s cross appeal

The State cross appeals, arguing that Judge Zervos erred in instructing the jury on the culpable mental state for failure to appear. But the State has conceded that, if we affirm Morrow’s conviction, it is unnecessary for us to resolve this claim. We accordingly decline to address it.

Conclusion

We have addressed Morrow’s claims of error and found that those claims have no merit. We accordingly affirm Morrow’s conviction.

The conviction is AFFIRMED.

      . AS 12.30.060.

      . 827 P.2d 442, 445 (Alaska App.1992).

      . Id. at 445-46.

        .Id.

      . Id. at 446 (citing Oxereok v. State, 611 P.2d 913, 916 (Alaska 1980); Panther v. State, 780 P.2d 386, 393-94 (Alaska App.1989); Newman v. State, 655 P.2d 1302, 1306 (Alaska App.1982)).

      . Quoting Stern, 827 P.2d at 446.

      . Coleman v. State, 553 P.2d 40, 50 (Alaska 1976).

      . AS 12.30.060.

      . AS 12.30.060(2).

      . AS 12.30.060(1).

      . Kinsman v. State, 512 P.2d 901, 903-04 (Alaska 1973) (citing Holmes v. United States, 363 F.2d 281 (D.C.Cir.1966)).

      . See, e.g., Ross v. State, 950 P.2d 587, 592 (Alaska App.1997); Tallent v. State, 951 P.2d 857, 865 (Alaska App.1997).

      . 51 P.3d 938 (Alaska App.2002).

      . Id. at 939.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 942.

      . Id. at 941.

      . Id.

      . 860 P.2d 1270 (Alaska App.1993).

      . Id. at 1271.

      . Id. at 1272.

      . Id.

      . Id. at 1272, 1278.

      . Id. at 1277-78.

      . Id. at 1274, 1277-78.

      . Id. at 1277-78.

      .A.R.E. 403; A.R.E. 404(b)(1); Ostlund, 51 P.3d at 943-49 (Alaska App.2002) (Mannheimer, J., concurring).

      . A.R.E. 404(b)(1).

      . A.R.E. 403; Calapp v. State, 959 P.2d 385, 387-88 (Alaska App.1998).

      . Calapp, 959 P.2d at 388 (citing Adkinson v. State, 611 P.2d 528, 530-32 (Alaska 1980) (affirming admission of evidence that defendant had twice previously pointed a shotgun at trespassers to rebut defendant’s assertion that his shooting of a trespasser was an accident); Allen v. State, 759 P.2d 541, 546-47 (Alaska App.1988) (affirming the admission of a prior similar incident to rebut a defendant’s "good Samaritan” defense to a terroristic threatening charge); Sheakley v. State, 644 P.2d 864, 873-74 (Alaska App.1982) (affirming admission of two prior incidents where defendant had attempted to gouge out eyes where current charge for mayhem was for intentionally gouging the victim’s eyes)); see also Kelly v. State, 663 P.2d 967, 972 (Alaska App.1983) (affirming admission of evidence of a series of bad checks written by defendant when current charge was for writing a single bad check).