The Colorado Supreme Court In Denver

The Ralph L. Carr Colorado Judicial Center in downtown Denver, home of the Colorado Supreme Court.

The Colorado Supreme Court on Monday denied a sentence reduction to a man whose felony was reclassified to a lower-level crime while he appealed his case.

Osmundo Rivera Cali stole two metal storm grates from a construction site worth approximately $2,616 and sold them. A jury convicted him of two class four felony theft offenses, and a district court sentenced him to 18 years for each.

While his appeal was pending in June 2013, an amended version of the theft statute went into effect, making the crime with which Cali was charged a lower-level felony. Cali’s lawyer did not reference this change in his appeal.

After the Colorado Court of Appeals upheld Cali’s conviction and sentence, he raised the issue that new sentencing guidelines would now give him one year to 18 months in prison for the same crime that he was serving 18 years. Another appeals panel was divided, but sided with Cali, saying that a defendant may benefit from changes in the law if they take effect before the conviction and sentence are final on appeal.

Justice Richard L. Gabriel, writing for the Supreme Court, agreed with the principle that “a defendant is entitled to the benefit of amendatory legislation that has mitigated the penalties for the crime at issue as long as the defendant has requested such relief before his or her conviction has become final.”

Gabriel drew a distinction to a similar case in which the court of appeals reversed a marijuana possession conviction shortly after Amendment 64 changed the law. In that instance, the issue was raised before the final decision of the court, unlike in Cali’s case.

“[B]ecause Cali’s conviction became final upon the issuance of the mandate from the court of appeals and he did not file his petition for postconviction relief until after that date, the trial court could not grant him the relief that he requested,” Gabriel wrote. He noted that only the governor can reduce Cali’s sentence at this point.

The Supreme Court denied relief to Cali. It also dismissed Cali’s claim of ineffective counsel, saying that the justices cannot consider arguments raised for the first time to the high court.

The case is The People of Colorado v. Osmundo Rivera Cali.

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