23CA1164 Peo v Chavez 11-13-2025 COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1164 Adams County District Court No. 03CR949 Honorable Patrick H. Pugh, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. Raul Moreno Chavez, Defendant-Appellant.

ORDER AFFIRMED Division A Opinion by CHIEF JUDGE ROMÁN Graham* and Berger*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025.

¶1 Defendant, Raul Moreno Chavez, appeals the postconviction court’s order denying his motion for a proportionality review. We affirm.

I. Background ¶2 More than twenty years ago, a jury found Chavez guilty of nine counts of attempted first degree murder, conspiracy to commit first degree murder, two counts of illegal discharge of a firearm, two counts of felony menacing, and crime of violence counts. The district court imposed an aggregate 144-year prison sentence. A division of this court affirmed the judgment of conviction. See People v. Chavez, (Colo. App. No. 04CA2151, July 20, 2006) (not published pursuant to C.A.R. 35(f)). The mandate issued in November 2006.

¶3 Thereafter, Chavez filed numerous unsuccessful postconviction motions and appeals. See People v. Chavez, (Colo. App. No. 17CA0784, Sept. 6, 2018) (not published pursuant to C.A.R. 35(e)); People v. Chavez, (Colo. App. No. 15CA0307, Feb. 25, 2016) (not published pursuant to C.A.R. 35(f)); People v. Chavez, (Colo. App. No. 10CA2677, Dec. 22, 2011) (not published pursuant

to C.A.R. 35(f)); People v. Chavez, (Colo. App. No. 08CA1668, July 9, 2009) (not published pursuant to C.A.R. 35(f)).

¶4 In 2021, Chavez filed his sixth postconviction motion — a motion for a proportionality review of his sentences — based on the then-recently announced Colorado Supreme Court opinion in Wells- Yates v. People, 2019 CO 90M. He argued that his motion should be exempt from the applicable procedural bars because, among other things, Wells-Yates announced new substantive rules of constitutional law that should be retroactively applied to his case, in accordance with Montgomery v. Louisiana, 577 U.S. 190 (2016).

¶5 While this postconviction matter was pending, a division of this court considered Montgomery and concluded that, to the extent Wells-Yates announced new constitutional rules, those rules were procedural and, therefore, did not apply retroactively. People v. McDonald, 2023 COA 23, ¶¶ 2, 12, 22, 24 (McDonald I), aff’d, 2024 CO 75. The division determined that, because Wells-Yates’s new procedural rules did not apply retroactively, the court did not err by denying as successive and untimely the defendant’s postconviction request for a proportionality review based on Wells-Yates. Id. at ¶¶ 2, 6-9, 24.

¶6 Relying on McDonald I, the postconviction court denied Chavez’s motion as procedurally barred. Chavez appeals this order.

II. Legal Authority and Standard of Review ¶7 A postconviction request for a proportionality review is cognizable under Crim. P. 35(c). People v. Moore-El, 160 P.3d 393, 395-96 (Colo. App. 2007). A court must deny a Crim. P. 35(c) claim that was, or could have been, raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant.

Crim. P. 35(c)(3)(VI), (VII). However, such a claim may not be denied if it is based on a new rule of constitutional law that was previously unavailable and if the rule has been, or should be, applied retroactively. Crim. P. 35(c)(3)(VI)(b), (VII)(c).

¶8 A defendant must file a Crim. P. 35(c) motion within three years of their conviction for an offense other than a class 1 felony.

§ 16-5-402(1), C.R.S. 2025; Crim. P. 35(c)(3)(I). Where, as here, a defendant filed a direct appeal, “conviction” in section 16-5-402(1) means the date the mandate issued in the direct appeal affirming the conviction. Hunsaker v. People, 2021 CO 83, ¶ 36; People v. Hampton, 876 P.2d 1236, 1240 (Colo. 1994).

¶9 A postconviction claim must be excluded from the three-year time limitation period if a court finds that the “failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.”

§ 16-5-402(2)(d). A claim based on a new rule of substantive constitutional law can constitute justifiable excuse for the failure to timely file a postconviction motion. See People v. Rainer, 2013 COA 51, ¶¶ 24-29, rev’d on other grounds, 2017 CO 50; see also People v. Gardner, 55 P.3d 231, 232 (Colo. App. 2002).

¶ 10 We review de novo the denial without a hearing of a Crim. P. 35(c) motion. We also review de novo the question of whether new authority applies retroactively on collateral review. People v. Cali, 2020 CO 20, ¶ 14; see also People v. Cooper, 2023 COA 113, ¶ 7.

III. Analysis ¶ 11 While this appeal was pending, the Colorado Supreme Court affirmed McDonald I, concluding that “the new rules Wells-Yates announced are procedural, not substantive” and that, “[a]ccordingly, Wells-Yates’s holdings don’t apply retroactively to cases on collateral review.” McDonald v. People, 2024 CO 75, ¶¶ 1, 34-35 (McDonald II).

¶ 12 Chavez contends that McDonald II was wrongly decided because its conclusion that Wells-Yates announced new nonretroactive, procedural rules of constitutional law contravenes the holding in Montgomery. We are bound by that decision. See People v. Eason, 2022 COA 54, ¶ 68.

¶ 13 Chavez’s motion was untimely because it was filed more than three years after his direct appeal mandate issued. See § 16-5-402(1); Crim. P. 35(c)(3)(I); Hunsaker, ¶ 36. His motion was successive because his request for a proportionality review was raised in a prior postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII). Because Wells-Yates does not support an exception to these procedural bars, we conclude that the postconviction court did not err by denying Chavez’s motion as untimely and successive.

IV. Disposition ¶ 14 The order is affirmed.

JUDGE GRAHAM and JUDGE BERGER concur.