Peo v. Jebe

23CA1676 Peo v Jebe 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1676
City and County of Denver District Court No. 22CR6515
Honorable Nikea T. Bland, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Quinn M. Jebe,

Defendant-Appellee.

APPEAL DISMISSED

Division VII
Opinion by JUDGE PAWAR
Tow and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Beth McCann, District Attorney, Alison Suthers, Deputy District Attorney,
Denver, Colorado, for Plaintiff-Appellant

LFM Defense, Robert Werking, Greenwood Village, Colorado, for Defendant-
Appellee
¶1 The prosecution appeals the district court’s order dismissing

with prejudice all charges against Quinn M. Jebe. We dismiss the

appeal because it was filed more than forty-nine days after the final

judgment, a motion for reconsideration does not extend the time to

file a prosecutorial appeal, and the prosecution failed to show

excusable neglect for its untimely filing.

I. Procedural Background

¶2 Jebe was taken into custody on November 23, 2022, on

charges of sexual assault on a child (pattern of abuse) and

distribution of a controlled substance to a minor. He was unable to

post his $50,000 bond. At his arraignment, the court calculated his

speedy trial deadline to be August 28, 2023. Trial was set for

August 1.

¶3 A few days before trial, the prosecution moved to dismiss the

case without prejudice, asserting that the alleged victim was unable

to testify due to a mental condition. Defense counsel objected and

asked instead to reset the trial for the speedy trial deadline, but the

prosecution indicated that it would be unable to proceed even with

a delay. The district court then dismissed the case with prejudice

on July 28, 2023.

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¶4 That same day, the prosecution filed a motion for

reconsideration. Defense counsel filed an objection, and the

prosecution replied. The district court denied the prosecution’s

motion on September 5, 2023 — thirty-nine days after its original

dismissal order.1 The prosecution appealed on September 28, 2023

— twenty-three days after the order denying its motion to

reconsider.

¶5 Because the prosecution filed its notice of appeal more than

forty-nine days after the district court entered a final, appealable

dismissal order, this court issued an order to show cause why the

appeal should not be dismissed with prejudice for failure to timely

appeal under C.A.R. 4(b)(6)(a). The prosecution responded that it

timely filed its appeal within forty-nine days of the order denying its

motion to reconsider, and, alternatively, that we may consider its

untimely filing because its misplaced reliance on People v. Tuffo,

209 P.3d 1226, 1229 (Colo. App. 2009); People v. Melton, 910 P.2d

672, 675 n.4 (Colo. 1996); and People v. Blue, 253 P.3d 1273, 1276

(Colo. App. 2011), constitutes excusable neglect.

1 At this time, the prosecution still had ten days to timely file a

notice of appeal. See C.A.R. 4(b)(6)(A).

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¶6 We first conclude that a prosecutorial motion for

reconsideration of a final judgment does not extend the time for

filing an appeal. Next, assuming that C.A.R. 4(b)(3) — as revised in

July 2022 — allows the prosecution to assert excusable neglect, we

conclude there was no showing of excusable neglect to justify the

late filing here.

II. Prosecutorial Postjudgment Motions Do Not Suspend Finality

¶7 The prosecution argues that its motion for reconsideration

suspended the finality of the district court’s July 28 dismissal

order. Not so.

¶8 A defendant’s “right to direct appeal of a criminal conviction is

fundamental.” People v. Baker, 104 P.3d 893, 895 (Colo. 2005); see

also § 16-12-101, C.R.S. 2024 (providing that “[e]very person

convicted of an offense . . . has the right of appeal to review the

proceedings resulting in conviction”). For that reason, appellate

courts retain jurisdiction to review criminal convictions appealed

beyond the forty-nine days prescribed in C.A.R. 4(b)(1) in some

circumstances, including when the defendant files certain timely

post-trial motions. C.A.R. 4(b)(2).

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¶9 Prosecutorial appeals, however, are not granted the same

exceptions. Section 16-12-102(1), C.R.S. 2024, provides that the

procedure for filing prosecutorial appeals “shall be as provided by

applicable rule of the supreme court of Colorado.” And C.A.R.

4(b)(6)(A) provides the time allowed for filing non-interlocutory

prosecutorial appeals: “within 49 days after the entry of judgment

or order appealed from” unless otherwise provided by statute or the

Colorado Appellate Rules.

¶ 10 A dismissal of all charges in a criminal prosecution “clearly

ends the particular action in which the order of dismissal is entered

and therefore constitutes a final judgment for purposes of the

appellate review of any ruling in the case.” People v. Gabriesheski,

262 P.3d 653, 657 (Colo. 2011); see Dike v. People, 30 P.3d 197,

201 (Colo. 2001) (“A judgment of dismissal is a final, appealable

order.”). Here, the district court’s July 28 order dismissing all

charges was a final judgment.

¶ 11 The prosecution’s motion for reconsideration did not suspend

the finality of that judgment or toll the time for appeal under C.A.R.

4(b)(2), which extends the time for appeal pending resolution of a

defendant’s post-trial “motion in arrest of judgment, for judgment of

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acquittal, or for a new trial.” C.A.R. 4(b)(2) extends the time for

appealing only a judgment of conviction. There was no judgment of

conviction in this case.

¶ 12 We are unaware of, and the prosecution does not point to, any

other appellate rule or statute that either suspends the finality of a

criminal judgment or tolls the time to appeal a criminal judgment

pending resolution of a postjudgment motion for reconsideration.

See People v. Retallack, 804 P.2d 279, 279-80 (Colo. App. 1990) (“[A]

motion filed after entry of [a postconviction] order challenged on

appeal does not extend the time for the prosecution to file its notice

pursuant to C.A.R. 4(b)[].”); see also People v. Thomas, 195 P.3d

1162, 1164 (Colo. App. 2008) (the defendant’s motion to reconsider

a postconviction order denying a new trial did not extend the time

to file an appeal); cf. People v. Ong, 2021 COA 113, ¶ 13 (concluding

that the finality of a district court’s order dismissing all charges was

unaffected by a twenty-one-day stay issued by the court pursuant

to § 16-8.5-116(10), C.R.S. 2020).

¶ 13 We are not persuaded that case law grants us jurisdiction over

the prosecution’s untimely appeal. The cases relied on by the

prosecution are inapposite as they arise from wholly different

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procedural postures: Tuffo involves a criminal defendant’s appeal

under unusual procedural circumstances, see Tuffo, 209 P.3d at

1228-29;2 and Melton and Blue address interlocutory appeals that

are subject to different rules and timelines, see Melton, 910 P.2d at

675 n.4; Blue, 253 P.3d at 1276; see also § 16-12-102(2); C.A.R.

4.1; C.A.R. 4(b)(6)(B).

¶ 14 Given the absence of authority supporting the prosecution’s

position, we cannot conclude that its motion for reconsideration of

district court’s dismissal order suspended finality. The

prosecution’s appeal is untimely.

III. The Prosecution Has Not Shown Excusable Neglect

¶ 15 C.A.R. 4 allows an extension of time to file a notice of appeal

based on a showing of excusable neglect. C.A.R. 4(b)(3). We reject

the prosecution’s argument that its neglect is excusable because it

relied on certain language in Tuffo, Melton, and Blue in its late

filing.

2 The language the prosecution quotes from Tuffo is also derived

from a case addressing interlocutory appeals. See People v. Powers,
47 P.3d 686, 689 (Colo. 2002).

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¶ 16 At the outset, we note that prior to 2022, the excusable neglect

provision of C.A.R. 4 did not apply to prosecutorial appeals. See

C.A.R. 4(b)(1), 2021 (providing that the time for filing appeals by a

criminal defendant may be extended upon a showing of excusable

neglect); see also People v. Gilmore, 97 P.3d 123, 128 (Colo. App.

2003) (holding that the excusable neglect provision in a prior

version of C.A.R. 4(b)(1) does not apply to appeals filed by the state

or the prosecution); Ong, ¶ 27 (same). But the supreme court

changed C.A.R. 4(b) in 2022, and C.A.R. 4(b)(3) now provides:

Upon a showing of excusable neglect the
appellate court may, before or after the time
has expired, with or without motion and
notice, extend the time for filing a notice of
appeal for a period not to exceed 35 days from
the expiration of the time otherwise prescribed
by this section (b).

¶ 17 As a result, the plain language of C.A.R. 4(b) no longer

expressly limits extensions of time based on excusable neglect to

appeals by criminal defendants. Given that the new language in

C.A.R. 4(b)(3) strongly suggests that we now have discretion to

extend the time for filing a prosecutorial appeal based on excusable

neglect, we will assume without deciding that we have such

discretion. However, we decline to exercise it here because we

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perceive no showing of excusable neglect. See Weason v. Colo. Ct. of

Appeals, 731 P.2d 736, 738 (Colo. 1987) (holding that we have

broad discretion to determine whether excusable neglect has been

shown).

¶ 18 Excusable neglect occurs when there is failure to act at the

proper time due to “circumstances which would cause a reasonably

careful person to neglect a duty” or “some unavoidable hindrance or

accident.” Farmers Ins. Grp. v. Dist. Ct., 507 P.2d 865, 867 (Colo.

1973); see Estep v. People, 753 P.2d 1241, 1247 (Colo. 1988)

(adopting the excusable neglect standard from Farmers Insurance

Group in the context of criminal appeals). The critical question

before us is the prosecution’s reason for its late filing. Riggs Oil &

Gas Corp. v. Jonah Energy LLC, 2024 COA 57, ¶ 28.

¶ 19 The prosecution asserts only that it misrelied on cases that

addressed timeliness in the context of inapplicable categories of

appeals. This legal error resulted from neither unusual

circumstances nor an unavoidable hindrance — a misinterpretation

of the law is avoidable. See Farm Deals, LLLP v. State, 2012 COA 6,

¶¶ 20-21. C.A.R. 4(b)(6)(A) is clear as to when a non-interlocutory

prosecutorial appeal must be filed. And the prosecution is obligated

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to determine when there is a final, appealable order “in a diligent

and informed manner.” Chavez v. Chavez, 2020 COA 70, ¶ 36; see

also People in Interest of L.B-H-P., 2021 COA 5, ¶ 15 (“[A]bsent

unusual circumstances, an attorney’s negligence in failing to meet a

deadline does not constitute excusable neglect.”). Moreover,

because the district court ruled on the prosecution’s motion to

reconsider ten days before an appeal was due, nothing prevented

the prosecution from timely filing its appeal.

IV. Disposition

¶ 20 The appeal is dismissed.

JUDGE TOW and JUDGE SCHUTZ concur.

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