Representative Cases ? The following is a limited summary of the facts, and results obtained, in actual cases:

Reported Cases - Mark T. Langston was counsel of record for the Defendant in the following reported appellate cases:

Writings - In addition to his criminal defense practice, Attorney Mark T. Langston is also an author and lecturer on a variety of criminal law topics. Some examples:

YOUR CLIENT'S CRIMINAL HISTORY:

A REVISIONIST APPROACH

By Mark T. Langston, (Copyright 1994)

Criminal law practitioners regularly face representing a client who has a prior history of criminal arrests, prosecutions and convictions. Knowing the outcome of those previous cases, understanding how the resultant record impacts your client, and being aware of potential remedial measures is critical to effective case preparation, plea negotiations, motions practice, trial strategy, and sentencing. While it is not as common an issue in civil litigation, it is important for the civil practitioner to be aware of a client's criminal history and fully appreciate how it may affect a particular case. For instance, C.R.E. 608(b) allows the introduction of a prior felony conviction into evidence for the purpose of attacking your client's credibility. Clients also ask about how their involvement in the justice system may affect matters such as employment, licensing and educational opportunities, and often seek advice on how to minimize the consequences.

The purpose of this article is not to identify all of the potential pitfalls and legal issues that might arise from your client's less than exemplary legacy, and we will assume that you've already realized that trying to explain these transgressions will be ineffective, or worse. The next step is to move beyond merely coping with your client's criminal history, and instead attempting to rewrite it. The following is an introduction to some available corrective procedures.

Sealing Criminal Records

Pursuant to the Criminal Justice Records Act, ß24-72-301, et seq., C.R.S., it is public policy in Colorado that all records of any arrest, indictment or charging by information, disposition, judicial determination of mental or physical condition, and orders regarding participation in any correctional or rehabilitative programs, be maintained and open to the public for inspection.

In most cases that do not result in a final conviction (i.e, when no formal charges are filed or where there is a complete dismissal or acquittal), it is possible to petition the District Court of the district in which any arrest and criminal records information is located for an order sealing all such records. See, ß24-72-308, C.R.S. If an order to seal records is obtained, it allows your client, and all involved criminal justice agencies, to state that no such records exist. Furthermore, "employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records information that has been sealed, include a reference to or information concerning such sealed information and may state that no such action has ever occurred." ß24-72-308(1)(f)(I), C.R.S.

The provisions of this statute do not apply to traffic offenses or infractions, and do not apply to records pertaining to any sexual assault offense as defined in part 4 of article 3 of title 18, C.R.S. Furthermore, for purposes of complying with "federal requirements," governmental entities may access the records of any applicant, licensee, registrant or person certified for the practice of a profession or occupation. Lastly, the statutory prohibition against petitioning for the sealing of records of cases resulting in any conviction has been held to be retroactive and to apply to all cases, including those that predate the 1988 amendment of the statute. People v. D.K.B., 843 P.2d 1326 (Colo. 1993).

Vacating Prior Convictions

A felony conviction obtained in violation of the Constitution or laws of the United States or the Constitution or laws of the State of Colorado may be challenged in the trial court that entered the judgment of conviction. ß18-1-410, C.R.S; C.R.Crim.Pro. 35(c).

A prior conviction obtained in violation of a fundamental constitutional right of the accused is invalid, is inadmissible, and cannot be used in a subsequent criminal proceeding to support guilt or to enhance punishment. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Watkins v. People, 655 P.2d 834 (Colo. 1982). In order to obtain relief from a prior conviction pursuant to Rule 35(c), the defendant bears the burden of proving its constitutional invalidity by a preponderance of the evidence. People v. McClellan, 515 P.2d 1127 (Colo. 1973).

A successful challenge to a prior conviction pursuant to Rule 35(c) will result in the conviction actually being vacated. If the government is then unable or unwilling to prosecute again, this chapter of your client's criminal history is effectively rewritten and no longer exists. However, if circumstances are otherwise, the client is indeed exposed to being retried on the original charges. Waits v. People, 724 P.2d 1329 (Colo. 1986).

Moreover, if the prior conviction was the result of a plea bargain, the client may then be subjected to prosecution on all of the original charges and, if convicted again, may potentially receive a sentence greater than that originally imposed. It is therefore absolutely necessary for counsel to carefully evaluate the potential risks and benefits associated with this endeavor.

Collateral Motions to Suppress

Relying on the axiom that unconstitutionally obtained convictions cannot be used against your client, counsel should always explore the viability of a motion to suppress the use of a prior conviction in a subsequent case. Unlike a Rule 35(c) motion, a collateral motion to suppress is filed in a later, unrelated case, and heard by the court in that case rather than the court that originally entered the judgment of conviction. A collateral motion to suppress seeks only to prohibit the use of a prior conviction in the pending case, and does not work to vacate the conviction.

One significant advantage to challenging a prior conviction with acollateral motion to suppress, rather than through a Rule 35(c) motion, is that the burden of proof is shifted. While the defendant bears the initial burden of establishing prima facie evidence of the constitutional invalidity of the conviction, the prosecution must then prove the constitutionality of the conviction by a preponderance of the evidence. Lacy v. People, 775 P.2d 1 (Colo. 1989).

Limitations on Actions

Despite the apparently fundamental prohibition against the use of an unconstitutionally obtained conviction against an individual in a subsequent legal proceeding, there are statutory limitations on the initiation of post-conviction challenges. ß16-5-402(1), C.R.S., prohibits an attack on the validity of a criminal conviction unless such attack is commenced within these applicable time periods following said conviction: six months for petty offenses, eighteen months for misdemeanors, three years for felonies (class 2-6). There is no such limitation on class 1 felonies. ß16-5-402(2), C.R.S, provides for some exceptions to these time limitations. The most frequently litigated, and least well-defined, exception is in cases where the failure to seek relief within the applicable time period was the result of circumstances amounting to "justifiable excuse" or "excusable neglect." For a discussion of the factors the court should consider in determining if such circumstances exist, see People v. Wiedemer, 852 P.2d 424 (Colo. 1993).

Conclusion