Peo v. Coleman

23CA1270 Peo v Coleman 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1270
Jefferson County District Court No. 15CR2510
Honorable Russell Klein, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Lovell Coleman,

Defendant-Appellant.

ORDER AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Martinez* and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

James Coleman, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, James Lovell Coleman, appeals the district court’s

order denying his Crim. P. 35(c) motion without a hearing. We

affirm.

I. Background

¶2 Coleman pled guilty to attempted first degree murder in

exchange for the dismissal of the remaining charges. On December

9, 2016, the district court sentenced Coleman to forty-eight years in

prison. Coleman did not file a direct appeal; however, he filed a

Crim. P. 35(b) motion to reconsider his sentence, which the court

denied.

¶3 In September 2017, Coleman filed a Crim. P. 35(a) motion.

The district court denied that motion, and a division of this court

affirmed. People v. Coleman, (Colo. App. No. 18CA0680, Apr. 30,

2020) (not published pursuant to C.A.R. 35(e)). The mandate

issued on June 29, 2020.

¶4 In June 2023, Coleman filed a pro se Crim. P. 35(c) motion

asserting various claims of ineffective assistance of trial counsel.

Acknowledging that his motion was untimely, Coleman asserted

that (1) the time to file a Crim. P. 35(c) was tolled from the date he

filed his Crim. P. 35(a) motion (September 15, 2017) until the

1
mandate issued following appeal of that motion (June 29, 2020);

and (2) prison lockdowns and restricted access to the library and

other inmates due to the COVID-19 pandemic provided additional

justifiable excuse for the “period during which [he] should have filed

his [Crim. P. 35(c)] motion” following the issuance of the mandate in

his Crim. P. 35(a) proceedings.

¶5 The district court denied Coleman’s motion. The court

concluded that the motion was untimely, and that Coleman had not

alleged sufficient justifiable excuse or excusable neglect to avoid its

untimeliness.

II. Discussion

¶6 Coleman contends that the district court erred by denying his

motion without a hearing. Because we conclude that his motion is

time barred, we perceive no reversible error.

A. Standard of Review

¶7 We review de novo whether the facts alleged in a Crim. P. 35(c)

motion, if true, would constitute justifiable excuse or excusable

neglect pursuant to section 16-5-402(2)(d), C.R.S. 2024, to entitle a

defendant to a hearing. People v. Hinojos, 2019 CO 60, ¶ 12.

2
B. Analysis

¶8 Section 16-5-402(1) provides that postconviction challenges to

non-class 1 felony convictions must be brought within three years

of the conviction becoming final. Where, as here, a defendant does

not directly appeal a conviction, the conviction is final on the date

the defendant is sentenced. People v. Shepard, 151 P.3d 580, 582

(Colo. App. 2006). Therefore, Coleman’s conviction became final on

December 9, 2016, when the district court sentenced him, and he

had until December 9, 2019, to file a Crim. P. 35(c) motion.

Coleman did not file his motion, however, until June 12, 2023,

three and a half years too late.

¶9 Even so, the failure to file a Crim. P. 35(c) motion within the

three-year limitations period does not bar the motion if a defendant

proves that their “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). The supreme court

has identified six non-exclusive factors that may bear on the

justifiable excuse or excusable neglect inquiry. See People v.

Wiedemer, 852 P.2d 424, 441-42 (Colo. 1993) (listing factors a court

should consider).

3
¶ 10 It is the defendant’s burden to allege and establish justifiable

excuse or excusable neglect. People v. Abad, 962 P.2d 290, 291

(Colo. App. 1997). Because Coleman is pro se, we broadly construe

his allegations to ensure he is not denied review simply because he

does not articulate his claims like a lawyer would. People v.

Bergerud, 223 P.3d 686, 696-97 (Colo. 2010). But in doing so, we

may not rewrite his pleadings or act as an advocate on his behalf.

People v. Cali, 2020 CO 20, ¶ 34.

¶ 11 Our review of Coleman’s Crim. P. 35(c) motion reveals that

Coleman failed to establish justifiable excuse or excusable neglect

for its late filing. First, Coleman asserts that the filing of his Crim.

P. 35(a) motion “and its subsequent appeal tolled [the time to file

his Crim. P. 35(c) motion] until June 29, 2020, minus 9 months.”

As we understand Coleman’s argument, “minus 9 months” refers to

the nine months from the date he was sentenced until the date he

filed his Crim. P. 35(a) motion. But because the section

“16-5-402(1) limitation period is not tolled during the litigation of a

postconviction relief motion,” People v. Clouse, 74 P.3d 336, 339

(Colo. App. 2002), the litigation and appeal of Coleman’s Crim. P.

4
35(a) motion cannot provide justifiable excuse for the failure to

timely file his Crim. P. 35(c) motion.

¶ 12 Second, Coleman asserts that the COVID-19 pandemic kept

him from filing his Crim. P. 35(c) motion due to lockdowns, library

closures, and restrictions on “communicating with other inmates

about the preparation of his pro se . . . motion.” But because the

timeframe to file his Crim. P. 35(c) motion was not tolled due to the

litigation of his Crim. P. 35(a) motion, and the COVID-19 pandemic

did not begin until three months after the deadline to file his Crim.

P. 35(c) motion had already expired, the restrictions imposed on

him as a result of the COVID-19 pandemic do not provide justifiable

excuse or excusable neglect for the belated filing.

¶ 13 Accordingly, we conclude that Coleman has not alleged

sufficient facts that, if true, would establish justifiable excuse or

excusable neglect. Therefore, his Crim. P. 35(c) motion was

untimely, and the district court properly denied it without a

hearing. See People v. Salinas, 55 P.3d 268, 270 (Colo. App. 2002)

(A district court may deny an untimely Crim. P. 35(c) motion

without a hearing “if the defendant has failed to allege facts that, if

true, would establish justifiable excuse or excusable neglect.”).

5
¶ 14 Finally, to the extent Coleman raises new claims of justifiable

excuse or excusable neglect in his brief on appeal, we will not

consider them.1 See People v. Ortega, 899 P.2d 236, 239 (Colo.

App. 1994) (appellate courts will not consider factual allegations

concerning justifiable excuse or excusable neglect for the first time

on appeal); see also Cali, ¶ 34 (“[A]lthough we will broadly construe

a pro se litigant’s pleadings to effectuate the[ir] substance, rather

than the[ir] form, . . . we will not consider issues not raised before

the district court in a motion for postconviction relief.”).

¶ 15 Having so concluded, we need not address the People’s

alternate contention that the district court properly denied

Coleman’s Crim. P. 35(c) motion because it violates Crim. P.

35(c)(3)(VII)’s rule against piecemeal litigation.

1 Coleman asserts that (1) the three-year limitations period did not

begin until the district court denied his Crim. P. 35(b) motion; (2) he
relied on the holding in Leyva v. People, 184 P.3d 48, 50-51 (Colo.
2008), that when an illegal sentence is corrected, the three-year
deadline to collaterally attack a conviction is renewed, and Leyva
was abrogated by Hunsaker v. People, 2021 CO 83, when he did not
have access to the law library due to the COVID-19 pandemic; and
(3) the district court was without jurisdiction to address a Crim. P.
35(c) motion while his Crim. P. 35(a) motion was being litigated on
appeal.

6
III. Disposition

¶ 16 The order is affirmed.

JUSTICE MARTINEZ and JUDGE TAUBMAN concur.

7