22CA0188 Peo v Williams 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0188

Arapahoe County District Court No. 03CR439

Honorable Eric B. White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gary Robert Williams,

Defendant-Appellant.

ORDER AFFIRMED

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Gary Robert Williams, appeals the postconviction

court’s denial of his Crim. P. 35(c) motion. Because the motion was

untimely, we affirm.

I. Background

¶ 2 A jury convicted Williams of two counts of second degree

burglary, a class three felony. The trial court adjudicated him a

habitual criminal and sentenced him to two consecutive

forty-eight-year terms in the custody of the Department of

Corrections (DOC) plus five years of mandatory parole.

¶ 3 Williams directly appealed his conviction and sentence, and a

division of this court affirmed. See People v. Williams, (Colo. App.

No. 05CA0309, Nov. 6, 2008) (not published pursuant to C.A.R.

35(f)). The supreme court denied certiorari, and the mandate was

issued on March 6, 2009.

¶ 4 On March 17, 2017, Williams filed a Crim. P. 35(a) motion to

correct an illegal sentence. He argued that he was illegally

sentenced to mandatory, rather than discretionary, parole. On May

25, 2017, the postconviction court granted the motion, vacated the

mandatory parole provision, ordered discretionary parole, and

issued an amended mittimus.

2

¶ 5 On March 19, 2020, Williams requested the appointment of

alternate defense counsel to draft a Crim. P. 35(c) motion. Because

he asserted “no specific factual or legal assertions on which the

court could grant relief,” the postconviction court denied the

request.

¶ 6 On May 27, 2020, a defense attorney entered a special

appearance “for the purposes of filing a pro se motion pursuant to

Crim. P. 35(c),” as well as a motion to file a Crim. P. 35(c) motion

out of time. Counsel simultaneously filed “Part One” of Williams’

Crim. P. 35(c) motion, indicating that “Part Two” was being mailed

by Williams. Counsel explained that the Crim. P. 35(c) deadline

was May 26, 2020, but due to a clerical error, the motion was filed

one day late due to justifiable excuse or excusable neglect. On May

29, 2020, Williams filed “Part Two” of the Crim. P. 35(c) motion, his

claims for relief.

¶ 7 In November 2020, the postconviction court issued an order

granting the motion to file out of time, finding “that a modest delay

of a few days during a public health crisis, when access to legal

resources [was] limited, qualifie[d] as justifiable excuse for the

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purposes [of] § 16-5-402(2)(d).” The court appointed Williams

postconviction counsel to supplement his motion.

¶ 8 The People filed a response to Williams’ pro se Crim. P. 35(c)

motion, arguing that it was untimely and that he failed to establish

justifiable excuse or excusable neglect.

¶ 9 Postconviction counsel then filed a supplemental Crim. P.

35(c) motion, asserting that trial counsel was ineffective for failing

to (1) move to dismiss under the speedy trial statute; (2) object to a

violation of the rape shield statute; (3) object to hearsay testimony;

(4) object to CRE 404(b) evidence; (5) conduct pretrial investigation;

(6) call witnesses to testify at trial; and (7) object to the admission of

an investigative report. He also asserted that trial counsel’s

cumulative errors deprived Williams of effective assistance of

counsel, and requested a proportionality review of his sentence.

Counsel argued that the motion was timely because, under Leyva v.

People, 184 P.3d 48 (Colo. 2008), abrogated by Hunsaker v. People,

2021 CO 83 (Hunsaker II), and People v. Baker, 2017 COA 102,

rev’d, 2019 CO 97M, the correction of Williams’ sentence in 2017

renewed the three-year deadline for collaterally attacking his

original judgment of conviction pursuant to Crim. P. 35(c).

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¶ 10 The People responded to the supplemental motion, again

arguing that the motion was untimely. They asserted that the

correction of Williams’ sentence from mandatory to discretionary

parole did not renew the three-year deadline to file Crim. P. 35(c)

claims.

¶ 11 In December 2021, the postconviction court issued an order

denying Williams’ Crim. P. 35(c) motion without a hearing because

the motion was untimely. At the time, divisions of this court were

split on whether the correction of an illegal sentence renews the

three-year deadline for filing Crim. P. 35(c) claims. The division in

Baker applied the rule from Leyva and held that the correction of

the defendant’s illegal sentence reset the deadline for him to file his

Crim. P. 35(c) motion. Baker, ¶¶ 35-37. And the division in People

v. Hunsaker, 2020 COA 48, ¶ 16 (Hunsaker I), aff’d and remanded,

2021 CO 83, held more narrowly that “Leyva limits the renewal of

the three-year deadline for filing a Crim. P. 35(c) motion to claims

that are related to how the illegality in the original sentence

potentially affected a defendant’s original conviction.” In the order

here, the postconviction court found Hunsaker I’s reasoning more

persuasive and concluded that Williams’ Crim. P. 35(c) claims

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“ha[d] no connection to the illegal sentence that was corrected when

the Court granted his Crim. P. 35(a) motion.” The court also found

that Williams “[did] not argue that his failure to bring his

postconviction claims within three years of the date his conviction

became final was the result of either justifiable excuse or excusable

neglect.”

II. Williams’ Crim. P. 35(c) Motion Is Time Barred

¶ 12 Williams contends that the postconviction court erred by

denying his Crim. P. 35(c) motion as untimely. First, he concedes

that his Crim. P. 35(c) motion is time barred but argues, for the first

time on appeal, that justifiable excuse or excusable neglect existed

for the late filing. Second, he contends that he is entitled to a

hearing on the timeliness of his motion. And third, he urges us to

reject supreme court precedent that has since resolved the division

split on whether the correction of an illegal sentence renews the

three-year deadline for filing Crim. P. 35(c) claims. We reject his

contentions.

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A. Standard of Review

¶ 13 We review de novo a postconviction court’s denial of a Crim. P.

35(c) motion without an evidentiary hearing. People v. Cali, 2020

CO 20, ¶ 14.

B. Applicable Law

¶ 14 Except for class 1 felonies, Crim. P. 35(c) claims must be filed

within three years of a felony conviction becoming final.

§ 16-5-402(1), C.R.S. 2024. If a defendant pursues a direct appeal,

as was the case here, a conviction becomes final for purposes of

section 16-5-402(1) when the mandate issues from that appeal.

See Hunsaker II, ¶ 36. A Crim. P. 35(c) motion filed outside of the

three-year time limit is barred unless the defendant affirmatively

pleads facts supporting the existence of an exception to the

statutory time bar, such as justifiable excuse or excusable neglect.

Crim. P. 35(c)(3)(I).

¶ 15 Crim. P. 35(a) allows a convicted defendant to challenge their

sentence as illegal or as illegally imposed. A claim that a defendant

should be subject to discretionary, rather than mandatory, parole

constitutes an illegal sentence claim under Crim. P. 35(a). See

People v. Rockwell, 125 P.3d 410, 416 (Colo. 2005). A successful

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Crim. P. 35(a) motion may reset the time limits for filing a Crim. P.

35(c) motion in some circumstances. Hunsaker II, ¶ 26.

¶ 16 One week after the postconviction court issued its order in this

case, the supreme court announced Hunsaker II. As explained,

before Hunsaker II, divisions of this court were split on whether the

correction of an illegal sentence under Crim. P. 35(a) renewed the

deadline for filing Crim. P. 35(c) claims. The confusion stemmed

from the seemingly contradictory language in Leyva, which adopted

both broad and narrow interpretations of the effect of a successful

Crim. P. 35(a) motion on an untimely Crim. P. 35(c) motion. Leyva,

184 P.3d at 50 (compare “[T]he term ‘conviction’ must refer to a

valid, final determination of guilt and sentencing” with “If an

illegality is discovered in a prisoner’s sentence, the prisoner should

be allowed to pursue any good-faith arguments for postconviction

relief addressing how that illegality potentially affected his or her

original conviction”).

¶ 17 After recognizing the contradictory language in Leyva, the

supreme court resolved the division split. The court held that “[a]

defendant who successfully corrects an illegal sentence may

thereafter collaterally attack their conviction, but [he] may only

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raise arguments addressing how the illegality in the sentence

potentially affected the original conviction.” Hunsaker II, ¶ 26.

Therefore, a defendant could bring an otherwise untimely Crim. P.

35(c) claim following a successful Crim. P. 35(a) motion only if the

Crim. P. 35(c) claim addressed how the illegality of the sentence

affected the original conviction. Id. Hunsaker II characterized this

as justifiable excuse because “[a] court’s correction of an illegal

sentence is precisely the sort of outside circumstance that excuses

the untimely filing of a collateral attack with regard to claims that

the illegal sentence rendered the conviction itself infirm.” Id. at

¶ 34.

C. Application

¶ 18 Here, the mandate in Williams’ direct appeal was issued on

March 6, 2009. He could therefore file Crim. P. 35(c) claims until

March 6, 2012. Williams did not file the pro se and supplemental

motions at issue here until 2020 and 2021, respectively, rendering

them over eight and nine years late. Accordingly, Williams’ motion

is time barred.

¶ 19 First, Williams attempts to exclude his motion from the time

bar by arguing, for the first time on appeal, that justifiable excuse

9

or excusable neglect exists for the late filing. Specifically, he claims

that the DOC “illegally deprived him of essential legal documents he

needed for his 35(c) motion,” and “the numerous lockdowns in the

correctional facilities he was in from 2009-2012 prevented him from

accessing the law library to draft his 35(c) motion.” However, we

will not consider allegations never presented to the postconviction

court. People v. Ortega, 899 P.2d 236, 239 (Colo. App. 1994)

(appellate courts will not consider factual allegations concerning

justifiable excuse or excusable neglect raised for the first time on

appeal); see also People v. Clouse, 74 P.3d 336, 340 (Colo. App.

2002) (“A defendant must allege in a Crim. P. 35 motion facts that,

if true, would establish justifiable excuse or excusable neglect for a

belated filing.”). Because Williams cannot assert these arguments

for the first time on appeal, we also reject his request for a hearing

on whether he established justifiable excuse or excusable neglect.

¶ 20 Second, Williams argues that the three-year deadline for filing

Crim. P. 35(c) claims was renewed when his illegal sentence was

corrected in 2017. In doing so, he urges us not to follow Hunsaker

II and to instead follow a broad interpretation of the holding in

Leyva. He concedes that “although [his] originally imposed

10

sentence was illegal, the illegal sentence does not have to do with

his claims in his Crim. P. 35(c) motion.” Indeed, Williams’ Crim. P.

35(c) claims regarding ineffective assistance of counsel and

sentence proportionality do not address how the illegality of his

sentence affected the original conviction. Yet he argues that under

Leyva, his entire sentence was illegal until it was corrected in 2017,

which reset the clock. However, Hunsaker II abrogated Leyva, and

we are bound by the supreme court’s decisions. People v. Harmon,

2019 COA 156, ¶ 3 n.1 (the Colorado Court of Appeals is bound by

the holdings of the Colorado Supreme Court).

¶ 21 For these reasons, the postconviction court did not err by

denying Williams’ Crim. P. 35(c) motion as untimely.

III. Disposition

¶ 22 The order is affirmed.

JUDGE GROVE and JUDGE SULLIVAN concur.