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Attacking Your Felony Conviction (Not AN APPEAL) Crim.p. Rule 35(c) Proceedings

Section 18-1-410, C.R.S. and Rule 35(c) of the Colorado Rules of Criminal Procedure allow defendants to raise certain claims in the trial court even after they have been convicted and exhausted all of their direct appeal rights.

Such claims are called “collateral attacks.” For example, a defendant may believe that he has located important new evidence that was not previously available to the defense that would have changed the outcome of his case,

…or may come to believe that his attorney did not provide adequate representation to him during the pendency of the case.

Claims like these may be raised under Rule 35(c) even if the case was appealed in the regular fashion and that appeal was unsuccessful.

Not every type of claim can be raised under Rule 35(c).

The Rule does not establish the right to re-try the case, nor to raise issues that, with very limited exceptions, were previously decided or could have been presented as part of the initial appeal.

Issues that may be raised under Rule 35(c) are limited to

1) significant changes in the law,

2) constitutional violations in the statute or underlying the conviction or sentence,

3) a lack of jurisdiction by the trial court that heard the case,

4) newly discovered evidence,

5) any other grounds “properly the basis for collateral attack”, or

6) claims that the sentence has been fully served.


There are time limits within which such claims must be brought. There is an interest in having some finality to decisions of the court, and there is a cost involved in litigating these claims, especially as more and more time passes since the conviction.

Therefore, the legislature passed a statute of limitations on collateral attacks, and required that a person bringing such attacks, including motions pursuant to Rule 35(c), do so within three years of any felony conviction other than for a class 1 felony, eighteen months of a misdemeanor conviction and six months for a petty offense conviction.

There is no statute of limitations for collateral attacks involving a conviction of a class 1 felony.

Motions presenting collateral attacks that are filed after the time limits must be justified by a specified exception, such as the court lacked personal or subject matter jurisdiction or the failure to file a timely motion was due to “justifiable excuse” or “excusable neglect”.

The Specified Time Limits to Attack a Prior Conviction

Colorado Revised Statutes §16-5-402(1) provides that a person who has been convicted under a criminal statute in Colorado or another state may collaterally attack the validity of that conviction only if such attack is brought within a specified time period or completion of the direct appeal process for that conviction, unless one of the exceptions listed in §16-5-402(2), C.R.S. are applicable.

The specified time periods are as follows:

All class 1 felonies: No time limit

All other felonies: Three years

Misdemeanors: Eighteen months

Petty offenses: Six months

There are limited EXCEPTIONS to this time deadline

(1) The court entering judgment of conviction did not have jurisdiction over the subject matter of the alleged offense;

(2) The court entering judgment of conviction did not have jurisdiction over the person of the Defendant;

(3) The failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the Defendant to an institution for treatment as a mentally ill person; or

(4) The failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

Justifiable Excuse or Excusable Neglect

However, Crim. P. 35(c), section 16-5-402(2)(d), contains a provision excusing operation of the time bar when the defendant has justifiable excuse or excusable neglect for not bringing the claim within the otherwise applicable time period. The statute provides:

(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:

(d) Where the court hearing the collateral attack 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), C.R.S. (2007).

Justifiable excuse or excusable neglect based on the alleged ineffective assistance of counsel is a matter that should be addressed, in the first instance, by the trial court.

The defendant must allege facts that, if true, would establish justifiable excuse or excusable neglect in order to entitle him or her to a hearing on the applicability of this exception to the time bar. People v. Wiedemer, 852 P.2d 424, 440 n. 15 (Colo.1993).

A defendant need not set forth the evidentiary support for his or her allegations; instead, a defendant need only assert facts that, if true, would provide a basis for relief.

Here is the Law Regarding A Claim of Ineffective Assistance of Counsel

“[T]he standard for making a successful ineffective assistance of counsel claim is very high.”

…a defendant must show that counsel’s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different

Here is a NON EXHAUSTIVE list of grounds for Excusable Neglect

The issue of justifiable excuse or excusable neglect under section 16-5-402

(1) whether there are circumstances or outside influences preventing a challenge to a prior conviction and the extent to which the defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of relevant avenues of relief that are available;

(2) whether a defendant had any previous need to challenge a conviction and either knew that it was constitutionally infirm or had reason to question its validity;

(3) whether a defendant had other means of preventing the government’s use of the conviction, so that a post-conviction challenge was previously unnecessary;

and (4) whether the passage of time has an effect on the State’s ability to defend against the challenge.

Every Ground Must Be Included in the Same Colorado 35 C Motion

Successive 35 C Motion Attacks On A Prior Felony Conviction

ALL grounds for attacking a conviction MUST BE BROUGHT in the one 35 C Petition.

 With specific exceptions provided for in Criminal Procedure Rule 35(c)(3)(VII), the court shall deny any claim that could have been presented in an appeal or post conviction proceeding previously brought.

Therefore, all claims related to the conviction under attack in this petition must be listed in this petition, or future motions may be denied.

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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