Peo v. Farrow

23CA0006 Peo v Farrow 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0006
Arapahoe County District Court No. 15CR2605
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Dehawn Farrow,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 3, 2024

Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Michael Dehawn Farrow (Farrow), appeals the

postconviction court’s order denying without a hearing his Crim. P.

35(b) motion. We affirm.

I. Background

¶2 After attempting to run over his housemates with his car,

Farrow was convicted by a jury in November 2017 of attempted first

degree assault (a class 4 felony), menacing (a class 5 felony),

reckless endangerment (a class 3 misdemeanor), reckless driving (a

class 2 misdemeanor traffic offense), and a crime of violence

sentence enhancer. The jury found that the prosecution had

proved the sentence enhancer, as Farrow had used his car as a

deadly weapon.

¶3 Farrow’s housemates testified at trial that while they were

arguing with Farrow about evicting him, he attempted to kill them

outside the home with his car. Farrow’s theory of defense was that

he acted in self-defense after a housemate threatened to get a gun

and returned to the house to retrieve it. Farrow was sentenced to

twelve years in the custody of the Department of Corrections (DOC)

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on the attempted assault offense, with the other sentences to run

concurrently.

¶4 A division of this court affirmed Farrow’s judgment of

conviction on direct appeal. See People v. Farrow, (Colo. App. No.

17CA2352, Aug. 12, 2021) (not published pursuant to C.A.R. 35(e)).

The supreme court denied his petition for certiorari.

¶5 In September 2022, Farrow filed a Crim. P. 35(b) motion

seeking to reduce his sentence. Providing over 300 pages of

exhibits to support his request, Farrow argued that his sentence

should be reduced because he was not receiving sufficient mental

health treatment in DOC. The court ordered a response from the

prosecution and, following briefing, denied the motion, finding that

Farrow’s sentence was appropriate.

¶6 In December 2022, Farrow filed a motion to reconsider the

court’s denial, asserting that he had not been served with either the

prosecution’s response to his Rule 35(b) motion or the court’s order

denying the same. He argued that, due to a clerical error, Farrow’s

counsel had not been listed as counsel of record in the court’s e-

filing system. The court summarily denied the motion to

reconsider.

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¶7 On appeal, Farrow contends that the court abused its

discretion by (1) denying his Crim. P. 35(b) motion and his motion

to reconsider because he had not been given the opportunity to

reply to the prosecution’s response to his Rule 35(b) motion and (2)

failing to provide a sufficient explanation for denying his request for

a sentence reduction given the new and substantial information

concerning his mental health.

II. Standard of Review and Applicable Law

¶8 We review a district court’s ruling on a Crim. P. 35(b) motion

for an abuse of discretion. People v. Chavez, 2020 COA 80M, ¶ 8.

A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or based on a misunderstanding

or misapplication of the law. People v. Miller, 2024 COA 66, ¶ 40. A

court fails to exercise its judicial discretion by refusing to consider

mitigating information and failing to make findings in support of its

decision. People v. Busch, 835 P.2d 582, 583 (Colo. App. 1992).

¶9 “A court’s review of a Crim. P. 35(b) motion focuses on the

fairness of the sentence in light of the purposes of the sentencing

laws.” People v. Dunlap, 36 P.3d 778, 780 (Colo. 2001). When

presented with such a motion, the court may consider all relevant

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and material factors, including new evidence and facts the district

court knew when it imposed the original sentence. Id. “Crim. P.

35(b) does not require the trial court to make findings of fact,” but

the court “should provide a statement of the basic reasons in

support of its ruling.” Id. at 782. And “[t]he court may, after

considering the motion and supporting documents, if any, deny the

motion without a hearing.” Id. at 780.

III. Analysis

¶ 10 The Attorney General argues that we do not need to reach the

merits of Farrow’s two contentions because they challenge the

propriety of his sentence. We do not read Farrow’s argument that

narrowly. Nonetheless, we conclude that the court did not abuse

its discretion when it denied his motion.

¶ 11 As to Farrow’s first argument — that the court improperly

denied his Rule 35(b) motion and the motion to reconsider because

he could not file a reply — we reject that the district court abused

its discretion. Crim. P. 35(b) does not provide defendants the right

to reply. Instead, a court may rule on a motion for sentence

reduction based solely on the “motion and supporting documents, if

any.” Crim. P. 35(b).

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¶ 12 Even so, Farrow argues that he was denied the opportunity to

request to file a reply because he was not served with the

prosecution’s response or the court’s denial of his Rule 35(b)

motion. Acknowledging the clerical error in its order denying

Farrow’s motion to reconsider, the court also noted that it had not

asked Farrow to file a reply to his Rule 35(b) motion. Given that

Rule 35(b) does not authorize an automatic right to reply, the

court’s ruling suggests that it would not have accepted such a

submission (or requested one) even if Farrow’s counsel had been

served with the prosecution’s response. Cf. People v. Nozolino, 2023

COA 39, ¶ 8 (an appellate court reviews a postconviction court’s

failure to comply with the procedures of Crim. P. 35(c) for harmless

error).

¶ 13 And even assuming Farrow had submitted a reply, we also

reject his second argument that the district court did not provide

sufficient factual findings in its order denying relief. Farrow asserts

that the court failed to consider the substantial new information

regarding his mental health and treatment that he had submitted in

both motions. Farrow specifically refers to two psychologists’

evaluations in 2022 and their belief that he likely has borderline

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personality disorder (BPD). He explained that for a patient with

BPD to progress in treatment, the person must receive both

individual and group dialectical behavioral therapy (DBT) sessions

and medications. Farrow outlined in his motion that he had not

been offered DBT or a modified form of treatment for correctional

environments, such as “DBT-CM,” during his incarceration.

¶ 14 Farrow has pointed to nothing in the record to suggest that

the district court failed to review and consider the new information

he submitted. In fact, as required by Crim. P. 35(b), the court

noted that it had reviewed “the file and the pleadings and

considered all relevant and material factors including Defendant’s

actions while incarcerated.” The court also acknowledged that it

was “aware of the . . . mental health issues raised by the defense in

their motion,” indicating that it had considered the attached

information as part of its ruling.

¶ 15 Even so, Farrow contends that the district court’s findings are

insufficient given the substantial amount of information he

submitted. But the court was not required to make any specific

findings of fact about Farrow’s mental health or his treatment

plans. See Dunlap, 36 P.3d at 780. The court laid out its basis for

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denying the motion when it indicated that Farrow had not

established a factual issue warranting a hearing. Although Farrow

highlighted his struggles to obtain treatment in DOC, this does not

require the court to reduce his sentence. As the postconviction

court reasoned, “[t]he original trial court had sufficient information

prior to sentencing, and the benefit of a full pre-sentence

investigatory report.” The order continued, “The [original trial]

Court weighed the options available and chose a sentence that was

neither the bottom of the range nor the top. The Court finds that

the sentence was [then] and is [now] appropriate.” Based on this

record, we discern no basis to set aside the district court’s ruling.

See Chavez, ¶ 8.

IV. Conclusion

¶ 16 The order is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.

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