Thomas rule in Colorado

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2018See, e.g. , People v. Griswold , 190 Colo. 136 , 543 P.2d 1251 , 1253 (1975) (holding defendant was entitled to resentencing under an indeterminate sentencing scheme that was enacted after the date he committed his offense); People v. Truesdale , 190 Colo. 286 , 546 P.2d 494 , 497 (1976) (same); Glazier v. People , 193 Colo. 268 , 565 P.2d 935 , 936 (1977) (holding defendant was entitled to subsequent change from felony conviction to petty offense); People v. Bloom , 195 Colo. 246 , 577 P.2d 288 , 292 (1978) (holding defendant was entitled to ameliorative benefits of July 1975 amendment that r

2026The supreme court concluded that although “the procedure followed in People v. Thomas . . . was by way of post-conviction relief[,] . . . there is no valid reason not to grant similar relief under the Thomas rule, where, as here, the application for relief is sought by direct appeal.” Thornton, 529 P.2d at 628 ; see also Stellabotte, ¶ 17 (“[I]n People v. Thornton we extended the Thomas rule to apply to defendants seeking the benefit of ameliorative changes in sentencing laws on direct appeal.”). ¶ 74 Accordingly, in 2019, when the Douglas I division considered Douglas’s first appeal, Douglas

2026The supreme court concluded that although “the procedure followed in People v. Thomas . . . was by way of post-conviction relief[,] . . . there is no valid reason not to grant similar relief under the Thomas rule, where, as here, the application for relief is sought by direct appeal.” Thornton, 529 P.2d at 628 ; see also Stellabotte, ¶ 17 (“[I]n People v. Thornton we extended the Thomas rule to apply to defendants seeking the benefit of ameliorative changes in sentencing laws on direct appeal.”). ¶ 74 Accordingly, in 2019, when the Douglas I division considered Douglas’s first appeal, Douglas

2018The Thomas court further noted that the "view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law ." Id. at 1138 (emphasis added and citations omitted). ¶ 17 And in People v. Thornton we extended the Thomas rule to apply to defendants seeking the benefit of ameliorative changes *178 in sentencing laws on direct appeal. 187 Colo. 202 , 529 P.2d 628 , 628 (1974).

2018The Thomas court further noted that the "view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law ." Id. at 1138 (emphasis added and citations omitted). ¶ 17 And in People v. Thornton we extended the Thomas rule to apply to defendants seeking the benefit of ameliorative changes *178 in sentencing laws on direct appeal. 187 Colo. 202 , 529 P.2d 628 , 628 (1974).

2025Thus, you may not consider any of the defendant’s prior Driving Under the Influence or Driving While Ability Impaired convictions as you consider whether or not the defendant was Driving Under the Influence on January 2, 2021. ¶ 14 Thomas now asserts that he is entitled to a new trial because the limiting instruction referenced only his prior convictions for DUI and DWAI, not his prior convictions for vehicular homicide and vehicular assault. ¶ 15 Even assuming waiver does not bar Thomas’s claim, plain error review applies, see People v. Griffin, 224 P.3d 292, 298 (Colo. App. 2009), and under

2025Thus, you may not consider any of the defendant’s prior Driving Under the Influence or Driving While Ability Impaired convictions as you consider whether or not the defendant was Driving Under the Influence on January 2, 2021. ¶ 14 Thomas now asserts that he is entitled to a new trial because the limiting instruction referenced only his prior convictions for DUI and DWAI, not his prior convictions for vehicular homicide and vehicular assault. ¶ 15 Even assuming waiver does not bar Thomas’s claim, plain error review applies, see People v. Griffin, 224 P.3d 292, 298 (Colo. App. 2009), and under

2025Thus, you may not consider any of the defendant’s prior Driving Under the Influence or Driving While Ability Impaired convictions as you consider whether or not the defendant was Driving Under the Influence on January 2, 2021. ¶ 14 Thomas now asserts that he is entitled to a new trial because the limiting instruction referenced only his prior convictions for DUI and DWAI, not his prior convictions for vehicular homicide and vehicular assault. ¶ 15 Even assuming waiver does not bar Thomas’s claim, plain error review applies, see People v. Griffin, 224 P.3d 292, 298 (Colo. App. 2009), and under

2025Thus, you may not consider any of the defendant’s prior Driving Under the Influence or Driving While Ability Impaired convictions as you consider whether or not the defendant was Driving Under the Influence on January 2, 2021. ¶ 14 Thomas now asserts that he is entitled to a new trial because the limiting instruction referenced only his prior convictions for DUI and DWAI, not his prior convictions for vehicular homicide and vehicular assault. ¶ 15 Even assuming waiver does not bar Thomas’s claim, plain error review applies, see People v. Griffin, 224 P.3d 292, 298 (Colo. App. 2009), and under

2019See, e.g., People v. Wester-Gravelle, 2018 COA 89M , ¶ 22; People v. Vigil, 2015 COA 88M , ¶ 41; Childress, ¶¶ 28-29; People v. Devine, 74 P.3d 440, 443 (Colo. App. 2003). ¶ 16 Importantly, the prosecution’s presentation of evidence of multiple acts that might constitute the offense does not automatically require an election or a modified unanimity instruction.

2019See, e.g., People v. Wester-Gravelle, 2018 COA 89M , ¶ 22; People v. Vigil, 2015 COA 88M , ¶ 41; Childress, ¶¶ 28-29; People v. Devine, 74 P.3d 440, 443 (Colo. App. 2003). ¶ 16 Importantly, the prosecution’s presentation of evidence of multiple acts that might constitute the offense does not automatically require an election or a modified unanimity instruction.

2018In doing so, the court said, “[t]he view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law.” Id. ¶ 10 For decades, “both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the ‘benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.’” People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold, 190 Colo. 136, 137 , 543 P.2d 1251, 1252 (19

2018In doing so, the court said, “[t]he view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law.” Id. ¶ 10 For decades, “both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the ‘benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.’” People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold, 190 Colo. 136, 137 , 543 P.2d 1251, 1252 (19

2018Compare Thomas , 525 P.2d at 1137 , with Riley , 828 P.2d at 258 . ¶ 23 The People argue this court's more recent cases in Macias , McCoy , and Riley govern because either (1) they abrogated Thomas or (2) Thomas 's reach was merely limited to that specific time period because of the legislature's overhaul of Colorado's criminal code in 1972.

2018Compare Thomas , 525 P.2d at 1137 , with Riley , 828 P.2d at 258 . ¶ 23 The People argue this court's more recent cases in Macias , McCoy , and Riley govern because either (1) they abrogated Thomas or (2) Thomas 's reach was merely limited to that specific time period because of the legislature's overhaul of Colorado's criminal code in 1972.

2018In doing so, the court said, “[t]he view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law.” Id. ¶ 10 For decades, “both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the ‘benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.’” People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold, 190 Colo. 136, 137 , 543 P.2d 1251, 1252 (19

2018In doing so, the court said, “[t]he view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law.” Id. ¶ 10 For decades, “both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the ‘benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.’” People v. Boyd, 2015 COA 109, ¶ 21 (quoting People v. Griswold, 190 Colo. 136, 137 , 543 P.2d 1251, 1252 (19

2015Court, 189 Colo. 21, 23 , 536 P.2d 36, 37 (1975); Shook v. Dist.

2015Court, 189 Colo. 21, 23 , 536 P.2d 36, 37 (1975); Shook v. Dist.

2015And the court concluded that, although the “procedure followed in” Thomas arose out of section 40—1—510(1)(f), “there was no valid reason not to grant similar relief under the Thomas rule, where, as here, the application for relief is sought by direct appeal under section 40-1-509.” Id. at 203, 529 P.2d at 628 ; accord People v. Race, 187 Colo. 204, 205 , 529 P.2d 629, 630 (1974)(the defendant could seek the benefits of amendatory legislation in an appeal filed under section 40-1-509).

2015And the court concluded that, although the “procedure followed in” Thomas arose out of section 40—1—510(1)(f), “there was no valid reason not to grant similar relief under the Thomas rule, where, as here, the application for relief is sought by direct appeal under section 40-1-509.” Id. at 203, 529 P.2d at 628 ; accord People v. Race, 187 Colo. 204, 205 , 529 P.2d 629, 630 (1974)(the defendant could seek the benefits of amendatory legislation in an appeal filed under section 40-1-509).

2015The court explained: “As we have repeatedly held, a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.” 193 Colo. at 269 , 565 P.2d at 936 ; see also Palmer, 42 Colo.App. at 461-62 , 595 P.2d at 1062 (giving the defendant the benefit of a reduction in,the maximum penalty from two to fifteen years .to a maximum $100 fine). ¶25 Accordingly, under the long-established Thomas rule and section 18—1— 410(l)(f), defendant is entitled to the ameliorating effect of Amendment 64.

2015The court explained: “As we have repeatedly held, a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.” 193 Colo. at 269 , 565 P.2d at 936 ; see also Palmer, 42 Colo.App. at 461-62 , 595 P.2d at 1062 (giving the defendant the benefit of a reduction in,the maximum penalty from two to fifteen years .to a maximum $100 fine). ¶25 Accordingly, under the long-established Thomas rule and section 18—1— 410(l)(f), defendant is entitled to the ameliorating effect of Amendment 64.

2015See also Huber, 264 P.3d at 889 (stating presumption that a constitutional amendment has prospective application only). • For the reasons discussed above, however, this general rule or presumption is subject to the more specific exception set forth in section 18-l-410(l)(f) and the Thomas rule providing for the retroactive application to a conviction or sen tence of a changed legal standard resulting from a significant change in the law. • Nothing in section 16(9) expresses a manifest intent that it prevail over section 18-l-410(l)(f) or the Thomas rule. ¶ 42 Accordingly, the general presumpti

2015See also Huber, 264 P.3d at 889 (stating presumption that a constitutional amendment has prospective application only). • For the reasons discussed above, however, this general rule or presumption is subject to the more specific exception set forth in section 18-l-410(l)(f) and the Thomas rule providing for the retroactive application to a conviction or sen tence of a changed legal standard resulting from a significant change in the law. • Nothing in section 16(9) expresses a manifest intent that it prevail over section 18-l-410(l)(f) or the Thomas rule. ¶ 42 Accordingly, the general presumpti

2015See People v. Rivas, 77 P.3d 882 , 893 (Colo. App. 2003) (if the defendant is unable to establish prejudice, the court need not determine whether counsel was deficient); see also *130 People v. Hayes , 229 Cal.App.3d 1226 , 280 Cal.Rptr. 578 , 584 (1991) ("Because the record wholly lacks a showing that had [the defendant] been permitted to present his testimony there is a reasonable probability of a more favorable outcome ... [the defendant] has failed to establish ineffective assistance of counsel.").

2015See People v. Truesdale, 190 Colo. 286, 288, 290 , 546 P.2d 494, 495, 497 (1976). 2 ¶ 21 Since Thornton , both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” People v. Griswold, 190 Colo. 136, 137 , 543 P.2d 1251, 1252 (1975); see also People v. Montgomery, 737 P.2d 413 , 414 n, 4 (Colo.1987); People v. Bloom, 195 Colo. 246, 251-52 , 577 P.2d 288, 292 (1978); Glazier v. People, 193 Colo. 268, 269 , 5

2015See People v. Truesdale, 190 Colo. 286, 288, 290 , 546 P.2d 494, 495, 497 (1976). 2 ¶ 21 Since Thornton , both the supreme court and the court of appeals have consistently applied the Thomas rule to give convicted criminal defendants the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” People v. Griswold, 190 Colo. 136, 137 , 543 P.2d 1251, 1252 (1975); see also People v. Montgomery, 737 P.2d 413 , 414 n, 4 (Colo.1987); People v. Bloom, 195 Colo. 246, 251-52 , 577 P.2d 288, 292 (1978); Glazier v. People, 193 Colo. 268, 269 , 5

2015See People v. Rivas, 77 P.3d 882 , 893 (Colo. App. 2003) (if the defendant is unable to establish prejudice, the court need not determine whether counsel was deficient); see also *130 People v. Hayes , 229 Cal.App.3d 1226 , 280 Cal.Rptr. 578 , 584 (1991) ("Because the record wholly lacks a showing that had [the defendant] been permitted to present his testimony there is a reasonable probability of a more favorable outcome ... [the defendant] has failed to establish ineffective assistance of counsel.").

2015See People v. Rivas, 77 P.3d 882 , 893 (Colo. App. 2003) (if the defendant is unable to establish prejudice, the court need not determine whether counsel was deficient); see also *130 People v. Hayes , 229 Cal.App.3d 1226 , 280 Cal.Rptr. 578 , 584 (1991) ("Because the record wholly lacks a showing that had [the defendant] been permitted to present his testimony there is a reasonable probability of a more favorable outcome ... [the defendant] has failed to establish ineffective assistance of counsel.").

1994See Strickland v. Washington, 466 U.S. 668, 687-96 , 104 S.Ct. 2052, 2064-69 , 80 L.Ed.2d 674 (1984); Cummings v. People, 785 P.2d 920, 925 (Colo.1990). rv For the foregoing reasons, the judgment of the trial court is reversed and the ease is remanded to that court with directions to conduct an evidentiary hearing to determine the merits of Thomas’ claim that the representation afforded him at trial was constitutionally deficient.

1994See Strickland v. Washington, 466 U.S. 668, 687-96 , 104 S.Ct. 2052, 2064-69 , 80 L.Ed.2d 674 (1984); Cummings v. People, 785 P.2d 920, 925 (Colo.1990). rv For the foregoing reasons, the judgment of the trial court is reversed and the ease is remanded to that court with directions to conduct an evidentiary hearing to determine the merits of Thomas’ claim that the representation afforded him at trial was constitutionally deficient.

1994See Strickland v. Washington, 466 U.S. 668, 687-96 , 104 S.Ct. 2052, 2064-69 , 80 L.Ed.2d 674 (1984); Cummings v. People, 785 P.2d 920, 925 (Colo.1990). rv For the foregoing reasons, the judgment of the trial court is reversed and the ease is remanded to that court with directions to conduct an evidentiary hearing to determine the merits of Thomas’ claim that the representation afforded him at trial was constitutionally deficient.