| Osmundo Cali was charged with one count of theft of a thing of value of one thousand dollars or more but less than twenty thousand dollars, then a class four felony. In addition, he was charged with one count of theft by receiving and two habitual criminal counts. The charges stemmed from allegations that Cali took metal storm grates from a construction site and sold them to a scrap metal processing company. The evidence established that the stolen grates were worth approximately $2,616, based on the price paid for them by the construction company. Cali’s case proceeded to trial, a jury convicted him of the two substantive offenses, and the trial court adjudicated him a habitual criminal. The court then sentenced Cali to eighteen years on each of the substantive counts, to be served concurrently in the Department of Corrections. Cali appealed. The Court of Appeals agreed that Cali could not be convicted of both theft and theft by receiving of the same property and vacated his conviction for theft, allowing the theft by receiving conviction to stand. The Colorado Supreme Court subsequently denied Cali’s petition for a writ of certiorari, and the mandate issued on May 11, 2015. On June 5, 2013, while Cali’s appeal was pending, an amendment to the theft statute became effective. Pertinent here, the amended statute eliminated the separate crime of theft by receiving and incorporated that offense into the general theft provision. It also modified the classifications for theft. Although these amendments took effect prior to the date on which Cali’s appellate counsel filed the opening brief in Cali’s direct appeal, Cali did not address in his appeal the applicability of these provisions to his case. After the court of appeals issued its mandate in Cali’s case, Cali filed a pro se petition for post-conviction relief pursuant to Crim. P. 35(c). In this petition, Cali raised, as pertinent here, a claim for relief based on a “Substantial Change In The Law.” The Supreme Court concluded Cali was not entitled to the benefit of the statutory amendment because he did not seek relief based on that amendatory legislation until after his or her conviction became final. |
