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16-5-402. Limitation for collateral attack upon trial judgment.

Statute text

(1) Except as otherwise provided in subsection (2) of this section, no person who has been convicted as an adult or who has been adjudicated as a juvenile under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction or adjudication unless such attack is commenced within the applicable time period, as provided in this subsection (1), following the date of said conviction, or for purposes of juvenile adjudication the applicable time period will begin at the time of the juvenile's eighteenth birthday:

 

All class 1 felonies: No limit
All other felonies: Three years
Misdemeanors: Eighteen months
Petty offenses: Six months

(1.5) If an appellate court can determine on the face of the motion, files, and record in a case that a collateral attack is outside the time limits specified in subsection (1) of this section, the appellate court may deny relief on that basis, regardless of whether the issue of timeliness was raised in the trial court.

(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:

(a) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the subject matter of the alleged offense;

(b) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the person of the defendant or juvenile;

(c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the defendant or juvenile to an institution for treatment as a person with a mental illness; or

(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

(3) Repealed.

(4) For purposes of this section:

(a) "Adjudication", except as used in paragraph (c) of subsection (2) of this section, includes "adjudicated" and has the same meaning as defined in section 19-1-103 (2), C.R.S.

(b) "Juvenile" means a child as defined in section 19-1-103 (18), C.R.S.

History

Source: L. 81: Entire section added, p. 926, 3, effective July 1. L. 84: (2)(b) and (2)(c) amended and (2)(d) added, p. 486, 1, effective February 6. L. 98: (1.5) added, p. 948, 10, effective May 27. L. 2001: Entire section amended, p. 734, 4, effective July 1. L. 2002: (4)(b) amended, p. 1016, 17, effective June 1; (3) repealed, p. 761, 11, effective July 1. L. 2006: (2)(c) amended, p. 1397, 41, effective August 7.

Annotations

Cross references: For collateral attacks upon convictions of traffic infractions, see 42-4-1708 (5); for collateral attacks upon convictions of alcohol- or drug-related traffic offenses, see 42-4-1702.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Attacking Prior Convictions in Habitual Criminal Cases: Avoiding the Third Strike", see 11 Colo. Law. 1225 (1982). For article, "Colorado's Revived Collateral Attack Statute", see 19 Colo. Law. 843 (1990).

Convictions which occurred prior to 1972 are included within the statutory limitations. People v. Padilla, 878 P.2d 4 (Colo. App. 1993), rev'd on other grounds, 907 P.2d 601 (Colo. 1995).

Expiration of time period in subsection (1) was not intended to divest the trial court of subject matter jurisdiction to consider defendant's contentions. People v. Shackelford, 851 P.2d 218 (Colo. App. 1992).

The purpose of the limitations period in this section is to alleviate the difficulties attending litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders. People v. Merchant, 983 P.2d 108 (Colo. App. 1999); Robbins v. People, 107 P.3d 384 (Colo. 2005).

Prosecution must assert the time bar in trial court. Section does not automatically divest trial court of jurisdiction to hear defendant's contentions. People v. Shackelford, 851 P.2d 218 (Colo. App. 1992).

State waived time bar to Crim. P. 35(b) motion by not raising it in trial court. People v. St. John, 934 P.2d 865 (Colo. App. 1996).

The time limits in subsection (1) are specifically categorized by level of offense, so, in a case in which defendant is convicted of a class 1 felony and other felonies, the time limit for the class 1 felony does not control the time limit for all of the convictions that are not class 1 felonies. Defendant's challenges to the non-class 1 felonies in a Crim. P. 35(c) motion were subject to the three-year statute of limitations. People v. Stovall, 2012 COA 7M, 284 P.3d 151.

The subsection (1) limitation period is not tolled during the litigation of a postconviction relief motion. People v. Clouse, 74 P.3d 336 (Colo. App. 2002).

Neither the timely commencement of a collateral attack, nor the pendency of an appeal from the denial of Crim. P. 35(c) relief, tolls the limitation period with respect to later asserted postconviction claims. People v. Clouse, 74 P.3d 336 (Colo. App. 2002); People v. Silva, 131 P.3d 1082 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 156 P.3d 1164 (Colo. 2007).

A hand-written letter that does not assert any claims for defendant's Crim. P. 35(c) motion does not toll the time limit in this section. People v. Stovall, 2012 COA 7M, 284 P.3d 151.

A late Crim. P. 35(c) motion may still be considered if a defendant can establish justifiable excuse or excusable neglect. Silva v. People, 156 P.3d 1164 (Colo. 2007).

When an illegal sentence is corrected pursuant to Crim. P. 35(a), it renews the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c). Leyva v. People, 184 P.3d 48 (Colo. 2008).

When original judgment of conviction contains an illegal sentence on one count, the entire sentence is illegal. Leyva v. People, 184 P.3d 48 (Colo. 2008).

The sentence is therefore subject to correction, and the judgment of conviction is subject to amendment, making the judgment of conviction not final or fully valid. Leyva v. People, 184 P.3d 48 (Colo. 2008).

When original judgment of conviction contains an illegal sentence on one count, the entire sentence is illegal. Leyva v. People, 184 P.3d 48 (Colo. 2008).

The sentence is therefore subject to correction and the judgment of conviction is subject to amendment, making the judgment of conviction not final or fully valid. Leyva v. People, 184 P.3d 48 (Colo. 2008).

Defendant bears the burden of establishing the existence of justifiable excuse or excusable neglect and must allege facts which, if proven, would carry that burden. Absent such allegations, he is not entitled to a hearing on the applicability of the time bar. People v. Abad, 962 P.2d 290 (Colo. App. 1997); People v. White, 981 P.2d 624 (Colo. App. 1998).

There is no authority for the proposition that a habeas corpus action in federal court affects either the finality of a judgment entered at the conclusion of a criminal appeal in the state courts or the jurisdiction of the state courts to entertain a collateral challenge to the conviction. People v. Abad, 962 P.2d 290 (Colo. App. 1997).

Ignorance of time bar itself does not constitute justifiable excuse or excusable neglect. People v. White, 981 P.2d 624 (Colo. App. 1998).

The lack of legal assistance does not constitute justifiable excuse or excusable neglect. Nor does the defendant's limited statutory right to post-conviction counsel include the right to have counsel appointed for the purpose of establishing justifiable excuse or excusable neglect unless some factually sufficient grounds to support that assertion are appropriately alleged. People v. White, 981 P.2d 624 (Colo. App. 1998).

An exception to the time limit in subsection (1), for bringing post-conviction motions under Crim. P. 35(c), exists if a defendant demonstrates that the failure to seek timely relief was the result of justifiable excuse or excusable neglect. People v. Green, 36 P.3d 125 (Colo. App. 2001).

Counsel's affirmative and erroneous advice about the immigration consequences of a defendant's plea may constitute justifiable excuse or excusable neglect for failure to pursue timely collateral relief, and therefore merits a hearing. If a trial court finds that justifiable excuse or excusable neglect exists for a late filing, then the trial court should determine the merits of the defendant's section (c) motion. People v. Martinez-Huerta, 2015 COA 69, 363 P.3d 754.

There is no express implication that the equitable doctrine of laches was abrogated by the enactment of this section. Robbins v. People, 107 P.3d 384 (Colo. 2005).

The doctrine of laches is applicable to persons convicted of class one felonies. The absence of a limitations period for class one felonies in subsection (1) is because the general assembly determined that it would be inappropriate to establish a fixed period for post-conviction motions for the most serious offenses. Such a legislative determination does not manifest a clear intent to deprive courts of their preexisting ability to apply the doctrine of laches to class one felony cases. Trial courts may continue to assess individually whether equitable considerations should preclude post-conviction relief when a defendant has been convicted of a class one felony. People v. Robbins, 87 P.3d 120 (Colo. App. 2003), aff'd, 107 P.3d 384 (Colo. 2005).

The doctrine of laches should apply in the analysis when a Crim. P. 35(c) claim is timely filed within statutory limits but not subsequently timely pursued. Crim. P. 35(c) provides a postconviction remedy grounded in equitable principles, and under certain circumstances, laches may work to bar defendant's claim for relief where this section would not. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

Trial court was correct to consider whether postconviction counsel's conduct constituted justifiable excuse or excusable neglect and may therefore provide an exception to the operation of the doctrine of laches. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

Detrimental reliance, unlike prejudice, is not an element of laches. Prosecution was prejudiced by defendant's delay in filing postconviction motion and was not required to show that it detrimentally relied on defendant's failure to file a postconviction motion within a reasonable time. People v. Lanari, 2014 COA 73, __ P.3d __.

This section violates due process of law under the federal and state constitutions because it precludes collateral challenges to the constitutional admissibility of prior convictions in pending prosecutions solely on the basis of a time bar, without providing the defendant an opportunity to show that the failure to assert a timely constitutional challenge was the result of circumstances amounting to justifiable excuse or excusable neglect. People v. Leonard, 673 P.2d 37 (Colo. 1983); People v. Dugger, 673 P.2d 351 (Colo. 1983); People v. Germany, 674 P.2d 345 (Colo. 1983) (all decisions decided prior to enactment of subsection (2)(d) in 1984).

Constitutionality. The construction that this section applies to postconviction challenges to criminal convictions under Crim. P. 35(c) does not violate the constitutional protections of habeas corpus, separation of powers, due process, or equal protection of the laws. People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993); People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993).

The application of this section to bar a motion to challenge a prior conviction in an unrelated proceeding does not violate the constitution. The justifiable excuse or excusable neglect exception in subsection (2)(d) provides a defendant with a meaningful opportunity to challenge allegedly unconstitutional convictions. People v. Deskins, 904 P.2d 1358 (Colo. App. 1995), aff'd in part and rev'd in part on other grounds, 927 P.2d 368 (Colo. 1996).

Defendant lacks standing to challenge constitutionality of 16-5-402 based on the argument that subsection (3) violates due process because subsection (3) is severable from the other provisions of this section that are directly implicated, subsection (3) has no application to the present proceeding, and the defendant failed to show he is effected by the alleged unconstitutionality of subsection (3). It is best to defer validity of subsection (3) until the issue is presented by one whose rights are affected and who has an interest in challenging the statute. People v. Heitzman, 852 P.2d 443 (Colo. 1993).

Subsection (3) is unconstitutional. People v. Thomas, 867 P.2d 880 (Colo. 1994).

Holding in Thomas case could have been anticipated by any reasonable person from holding in People v. Germany, 674 P.2d 345 (Colo. 1983), and thus Crim. P. 35(c) motion was time-barred. People v. Collins, 8 P.3d 520 (Colo. App. 2000).

Five-year grace period from the effective date of this section on July 1, 1984, was implied for person seeking to challenge a constitutionally flawed conviction under 18-1-410, where conviction predated the length of time specified as a limitation period under this section. People v. Fagerholm, 768 P.2d 689 (Colo. 1989); People v. Stephens, 837 P.2d 231 (Colo. App. 1992), cert. dismissed, 854 P.2d 231 (Colo. 1993).

However, for the five-year grace period to apply, a conviction must antedate July 1, 1984, the effective date of this section, by an interval of time in excess of the limitations set forth in this section. People v. Brack, 796 P.2d 49 (Colo. App. 1990).

Only convictions occurring after July 1, 1984, the effective date of this section, are unaffected by the five-year grace period. People v. Janke, 895 P.2d 1102 (Colo. App. 1994).

Judicially created five-year grace period under this section does not give notice that same five-year grace period applies to collateral attacks brought under 42-4-1501.5. People v. Trimble, 839 P.2d 1168 (Colo. 1992).

The U.S. supreme court decision in Custis v. U.S. does not require a state court to consider a collateral attack on a state court conviction used to enhance a sentence in federal court when the state court conviction was outside of the five-year grace period. People v. Vigil, 955 P.2d 589 (Colo. App. 1997).

Present need standard for postconviction relief not established under collateral attack statute for 30-year-old conviction for violations of municipal ordinances. City and County of Denver v. Rhinehart, 742 P.2d 948 (Colo. App. 1987).

"Present need" challenge not available. People v. Robinson, 833 P.2d 832 (Colo. App. 1992).

Statute of limitations set forth in this section does not bar the filing of a Crim. P. 35(c) motion by a defendant convicted of first degree murder, a class 1 felony. Duran v. Price, 868 P.2d 375 (Colo. 1994).

Term "collateral attack" includes challenge to a conviction in a suppression hearing in another criminal proceeding. People v. Fultz, 761 P.2d 242 (Colo. App. 1988).

"Collateral attack" as used in this section includes relief sought pursuant to Crim. P. 35. People v. Robinson, 833 P.2d 832 (Colo. App. 1992); People v. Hampton, 857 P.2d 441 (Colo. App. 1992); People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993).

Term "collateral attack" includes relief sought pursuant to Crim. P. 35. Although a distinction exists between collateral attacks and other types of postconviction relief, a successful attack under Crim. P. 35 results in vacation of the conviction at issue and therefore comes within the commonly accepted meaning of "collateral" in the criminal-law context. People v. Robinson, 833 P.2d 832 (Colo. App. 1992); People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993).

Motions under Crim. P. 35(c) are subject to the time bar of this section. People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Vigil, 983 P.2d 805 (Colo. App. 1999).

To give effect to the legislative intent expressed clearly in subsection (2), a more expansive definition of "collateral attack" is necessary. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).

Reference to collateral attacks in this section was intended to include Crim. P. 35(c) motions that seek directly to set aside a judgment in the same court in which it was obtained as well as motions to suppress convictions in a proceeding where the convictions serve a purpose such as establishing a predicate offense for some other charge. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).

Time bar in this section applies to requests for post-conviction relief under both 18-1-410 (1)(b) and Crim. P. 35 (c)(2)(II) where defendant's motion is a collateral attack. People v. Vigil, 983 P.2d 805 (Colo. App. 1999).

The limitation period cannot commence until there is a right to pursue a collateral attack. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).

Time bar in this section does not apply to a defendant's Crim. P. 32(d) motion. This section imposes time limitations for commencing collateral attacks on judgments of conviction, but a motion to withdraw a guilty plea under Crim. P. 32(d) is not a collateral attack on a judgment of conviction because no judgment of conviction was ever entered. People v. Corrales-Castro, 2015 COA 34M, __ P.3d __.

Defendant's motion alleging a violation of 16-14-102(3) was time-barred under this section because it did not allege a jurisdictional defect. While violation of 16-14-102 (3) would have entitled the defendant to dismissal of the charges, regardless of whether he suffered any prejudice, it did not deprive the court of jurisdiction. Therefore, the trial court properly dismissed defendant's motion as untimely under this section. People v. Slusher, 43 P.3d 647 (Colo. App. 2001).

Collateral attacks on infirmities related to the adjudication of habitual criminality correctly considered under this section. People v. Hampton, 876 P.2d 1236 (Colo. 1994).

Timely collateral attack, not completely adjudicated, upon a previous conviction does not toll the limitations period of this section and allow future attacks upon that same conviction regardless of when such later attacks are filed. People v. Merchant, 983 P.2d 108 (Colo. App. 1999).

Rule of lenity does not apply as the intention of the legislature is expressed with sufficient clarity. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).

Time limitations in this section are supplementary to and not in conflict with 18-1-410 and are intended to apply to all forms of post conviction attacks on judgments. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).

Irreconcilable conflict exists between this section and 18-1-410, and this section prevails as it is the later enacted statute. People v. Heitzman, 852 P.2d 443 (Colo. 1993).

Statutory limitations in this section do not usurp the supreme court's rule-making authority. While the statute has an incidental effect on judicial procedure, it is primarily an expression of public policy, and therefore it prevails over terms of Crim. P. 35(c)(3) stating that motion may be filed "at any time". People v. Robinson, 833 P.2d 832 (Colo. App. 1992).

Evaluate the applicability of the justifiable excuse or excusable neglect exception by balancing the interests under the facts of a particular case to give effect to the overriding concern that a defendant have the meaningful opportunity required by due process to challenge his conviction. People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993); People v. Shepherd, 43 P.3d 693 (Colo. App. 2001).

In determining if the justifiable excuse or excusable neglect exception applies, consider the following: 1. Circumstances existing throughout the entire period from the inception of the conviction in question; 2. Relative strengths of various interests at stake; 3. Existence of circumstances or outside influences preventing a challenge to a prior conviction; 4. Extent to which a defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of avenues of relief available to him; 5. Whether the defendant had any previous need to challenge a conviction; 6. Whether the defendant either knew that it was constitutionally infirm or had reason to question its validity; 7. Whether the defendant had other means of preventing the government's use of the conviction so that a postconviction challenge was previously unnecessary; and 8. Extent of time between the date of conviction and the defendant's challenge and the effect that the passage of time has on the state's ability to defend against the challenge. People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993); People v. Shepherd, 43 P.3d 693 (Colo. App. 2001).

Whether the defendant qualifies for the exception under subsection (2)(d) is a question of fact to ordinarily be resolved by the trial court. People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Heitzman, 852 P.2d 443 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993); People v. Clouse, 74 P.3d 336 (Colo. App. 2002).

Whether a defendant has demonstrated justifiable excuse or excusable neglect is a question of fact to be resolved by the trial court, whose ruling is not to be overturned if the record supports its findings. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002).

Justifiable excuse and excusable neglect exception was adopted for the specific purpose of preventing an unconstitutional result of the statute being applied in a manner that would violate due process of law. People v. Heitzman, 852 P.2d 443 (Colo. 1993).

Implicit in any finding that the statutory exception is not satisfied in a particular case is the conclusion that, acting as a bar to a defendant's claims, the statute is not unconstitutional as applied. People v. Heitzman, 852 P.2d 443 (Colo. 1993).

Defendant established justifiable excuse under subsection (2)(d) because the U.S. supreme court set forth a new substantive rule of constitutional law that was not previously available to defendant. People v. Rainer, 2013 COA 51, __ P.3d __.

This section is applicable to postconviction remedies filed pursuant to Crim. P. 35; accordingly, a defendant must be given an opportunity to present evidence of justifiable excuse or excusable neglect when a court raises the time limitation of this section sua sponte. People v. Lanford, 867 P.2d 50 (Colo. App. 1993).

The limitations of this section are applicable to a proportionality review of a sentence imposed pursuant to the habitual criminal statutes. People v. Talley, 934 P.2d 859 (Colo. App. 1996).

Request for proportionality review alleging that sentence violates the eighth amendment to the U.S. constitution is subject to the limitation period set forth in this section. People v. Moore-El, 160 P.3d 393 (Colo. App. 2007).

For the purpose of this section, the word "conviction" includes the recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs. People v. Lanford, 867 P.2d 50 (Colo. App. 1993).

Justifiable excuse or excusable neglect. The "excusable neglect" exception to this section cannot be read so broadly that the statutory limitation becomes meaningless. In this instance, the failure to attack the prior conviction within the time period allowed by this section and the grace period was not justified just because the defendant had no present need to attack the conviction until the habitual offender charges were filed. People v. Stephens, 837 P.2d 231 (Colo. App. 1992), cert. dismissed, 854 P.2d 231 (Colo. 1993); People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993).

"Excusable neglect" not found. No excusable neglect existed where defendant claimed he was unable to appeal because he was under the influence of a drug during appeal period, but made no reasonable effort to appeal once free from that influence. People v. Fultz, 761 P.2d 242 (Colo. App. 1988).

Defendant's claim that he had not challenged previous convictions until habitual criminal charges were filed because he had no present need not excusable neglect. People v. Mershon, 844 P.2d 1240 (Colo. App. 1992), aff'd, 874 P.2d 1025 (Colo. 1994); People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993); People v. Penrod, 892 P.2d 383 (Colo. App. 1994).

Defendant's recent discovery of a legal basis for a collateral attack on his conviction based on the provisions of 16-14-102 did not constitute excusable neglect where he had not otherwise demonstrated some unavoidable hindrance that would have caused a reasonably prudent person to neglect to pursue timely collateral relief. The alleged ineffective assistance of counsel also did not excuse his delay. People v. Slusher, 43 P.3d 647 (Colo. App. 2001).

Lack of funds while incarcerated does not qualify as justifiable excuse or excusable neglect. People v. Merchant, 983 P.2d 108 (Colo. App. 1999).

Defendant's indigence, ignorance of the law, and lack of legal counsel do not amount to justifiable excuse or excusable neglect. Further, the trial court gave no credence to defendant's claim that his counsel failed to advise him of his postconviction rights, since defendant immediately filed a motion to withdraw his plea when a sentence to the department of corrections was imminent. People v. McPherson, 53 P.3d 679 (Colo. App. 2001).

No justifiable excuse or excusable neglect where defendant did not raise a direct appeal or collateral attack of his Virginia conviction until almost 14 years after his conviction had entered. People v. Landis, 9 P.3d 1165 (Colo. App. 2000).

No justifiable excuse or excusable neglect where defendant waited nine years from the date conviction became final to file collateral attack challenging its validity. People v. Jackson, 98 P.3d 940 (Colo. App. 2004).

No justifiable excuse or excusable neglect where defendant asserted he or she could not file a second motion until the first postconviction proceedings were concluded. People v. Silva, 131 P.3d 1082 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 156 P.3d 1164 (Colo. 2007).

No justifiable excuse or excusable neglect where defendant waited to file his Crim. P. 35(c) motion until he could accumulate an "unassailable mass" of research studies. The studies cited by defendant, unapplied academic theories, did not constitute evidence, let alone new evidence, for purposes of his motion. People v. Bonan, 2014 COA 156, 357 P.3d 231.

Defendant's motion was untimely filed with no justifiable excuse, because, even though she commenced her collateral attack with a motion filed within the three-year period, that motion was denied and defendant did not appeal the denial. A subsequent motion, filed after the three-year period, could not be considered as relating back to the original motion. People v. Cummins, 37 P.3d 507 (Colo. App. 2001).

Ineffective assistance of counsel in Crim. P. 35(c) proceedings is colorable grounds for appointment of conflict-free counsel and a trial court hearing on justifiable excuse and excusable neglect. The allegation that postconviction counsel failed to inform the court of the constitutional limitations of defendant's sentence, which in turn resulted in a sentence twice the constitutionally permissible level, is within the standard for measuring ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Close v. People, 180 P.3d 1015 (Colo. 2008).

Justifiable excuse or excusable neglect would be established if the public defender's conflict of interest was the reason for not filing a motion for post-conviction relief on behalf of defendant. People v. Chang, 179 P.3d 240 (Colo. App. 2007).

Justifiable excuse or excusable neglect would be established if the public defender's failure to file a motion for post-conviction relief on behalf of defendant was the result of ineffective counsel. People v. Chang, 179 P.3d 240 (Colo. App. 2007).

Because there is no requirement that appellate counsel advise a defendant of time limitations for seeking postconviction relief, the absence of such advice is not a justifiable excuse for defendant's neglect. People v. Alexander, 129 P.3d 1051 (Colo. App. 2005).

Defendant's misplaced reliance on parole board's interpretation of law concerning parole decisions for sex offenders did not constitute justifiable excuse or excusable neglect to attack conviction outside of three-year period. People v. Perez, 895 P.2d 1090 (Colo. App. 1994).

A defendant's intentional abandonment of claims raised at an earlier proceeding does not amount to justifiable excuse or excusable neglect that would permit a late filing of a postconviction motion. People v. Abeyta, 923 P.2d 318 (Colo. App. 1996).

Ineffective assistance of counsel can constitute justifiable excuse or excusable neglect. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

Mere failure to challenge a conviction does not establish ineffective assistance of counsel nor constitute excusable neglect or justifiable excuse. People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993); People v. Penrod, 892 P.2d 383 (Colo. App. 1994); People v. Rhorer, 946 P.2d 503 (Colo. App. 1997), rev'd on other grounds, 967 P.2d 147 (Colo. 1998).

As a matter of law, postconviction counsel's seven-year delay in filing a supplemental motion in a challenge that was filed within the time limits prescribed by this section was, in light of all the circumstances, outside the wide range of professionally competent assistance. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

It is appropriate for a trial court to raise the issue sua sponte of whether a defendant's motion for post-conviction relief is untimely under this section. People v. Xiong, 940 P.2d 1119 (Colo. App. 1997).

If a defendant's motion for post-conviction relief is untimely, the trial court may deny the motion without conducting a hearing if the defendant has failed to allege facts which, if true, would establish justifiable excuse or excusable neglect. People v. Xiong, 940 P.2d 1119 (Colo. App. 1997).

The timely commencement of a collateral attack fails to toll the limitations period with respect to additional postconviction claims not contained in the timely filed motion. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002).

For purposes of this section and postconviction review, a "conviction" occurs when the trial court enters judgment and sentence is imposed, if there is no appeal; if an appeal is pursued, then the conviction is not final until the appellate process is exhausted. People v. Hampton, 857 P.2d 441 (Colo. App. 1992), aff'd, 876 P.2d 1236 (Colo. 1994); People v. Clouse, 74 P.3d 336 (Colo. App. 2002).

Where a defendant initiates a direct appeal from a conviction, this section's three-year limitations period does not begin to run until the appeal is exhausted; tolling of the period is not warranted during the pendency of an appeal from the denial of a Crim. P. 35(c) motion. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002).

Direct appeal not reinstated extending the time periods of this section. When, under a Crim. P. 35 motion, post-conviction court appoints counsel to pursue any error in the original appeal, it is not reinstating defendant's direct appeal. People v. Shepard, 151 P.3d 580 (Colo. App. 2006).

Resentencing, upon revocation of probation or rejection from community corrections, does not create a new "conviction". The statutory sentencing scheme, under which a defendant who receives probation may subsequently have his or her probation revoked and receive a sentence to community corrections or to the department of corrections, contemplates a system of escalating sentencing alternatives available to the court. Hence, resentencing after a revocation of probation or a rejection from community corrections does not result in the entry of a new judgment of conviction for purposes of this section. People v. McPherson, 53 P.3d 679 (Colo. App. 2001).

The date of conviction for purposes of this section is the date the appeal is exhausted, not the date of the amended mittimus reflecting the reduction of sentence, where a Crim. P. 35(b) motion has been filed and granted after the conclusion of a direct appeal. People v. Metcalf, 979 P.2d 581 (Colo. App. 1999).

The date of resentencing, after defendant violated the conditions of her probation, does not trigger the commencement of a new three-year period for collateral attack. Even though a Crim. P. 35(b) motion was filed within three years after the defendant was sentenced to the department of corrections for violation of her conditions of probation, the motion was untimely because it was filed more than three years after the date the judgment of conviction was entered. People v. Cummins, 37 P.3d 507 (Colo. App. 2001); People v. Collier, 151 P.3d 668 (Colo. App. 2006).

Subsection (1.5) is discretionary and a court may elect to address a defendant's claims on the merits. People v. Kilgore, 992 P.2d 661 (Colo. App. 1999).

Applied in People v. Smith, 856 P.2d 26 (Colo. App. 1992); People v. Vigil, 983 P.2d 805 (Colo. App. 1999); People v. Russell, 36 P.3d 92 (Colo. App. 2001).


PART 5
INCARCERATION