Background
After a 2014 trial arising from a domestic-violence incident, Zachary Justin Fournier was acquitted of first degree assault but convicted of second degree assault with a deadly weapon, felony menacing, and third degree assault. The trial court adjudicated him a habitual criminal and imposed an aggregate thirty-two-year Department of Corrections sentence. Although the jury had not proved the separately charged crime-of-violence counts, those counts appeared on the mittimus.
Fournier pursued a direct appeal and multiple postconviction proceedings. In November 2024, he filed a Crim. P. 35(a) motion challenging the legality and constitutionality of the crime-of-violence counts and seeking resentencing without a crime-of-violence enhancement. The postconviction court agreed the counts had been included on the mittimus in error and ordered their removal, but concluded that the error had not affected Fournier’s sentence.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that removing the unproved crime-of-violence counts from the mittimus was a proper clerical correction under Crim. P. 36. Any substantive challenge to those counts was cognizable under Crim. P. 35(c), and was untimely and successive.
The court further held that the correction did not render Fournier’s sentence illegal. His second degree assault conviction necessarily included use of a deadly weapon, making it an extraordinary-risk crime with an eight-year maximum presumptive range. Because Fournier was a habitual criminal, the governing statute required a sentence of four times that maximum—thirty-two years. The unproved crime-of-violence counts played no role in that calculation, and no judicial factfinding increased the sentence.
Key Takeaways
- A mittimus may be corrected at any time to remove clerical errors, including unproved counts mistakenly listed as convictions.
- A habitual-criminal sentence based on the extraordinary-risk maximum is not invalid merely because unrelated crime-of-violence counts were mistakenly included on the mittimus.
- New appellate claims challenging the convictions were not considered because they were unpreserved and, in any event, untimely and successive postconviction claims.
Why It Matters
The decision distinguishes a clerical error in the judgment record from an unlawful sentence. Where the sentence is independently authorized by the verdict and habitual-criminal statute, correcting an erroneous mittimus does not require resentencing.
The court also underscores the procedural limits on serial postconviction litigation: challenges that could have been raised earlier are barred, and requests for ordinary sentence review must be timely pursued.