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People v. Marquez.

2020 COA 169, 170, and 171. Nos. 19CA1810, 19CA1811, & 19CA1812. Criminal Law—Crim. P. 35(c) Motions—Postconviction Counsel.

December 10, 2020

Defendant was found guilty of second degree assault in three cases stemming from his assaults on correctional officers in prison. Between 2013 and mid-2016, defendant filed several pro se Crim. P. 35(c) motions, which the postconviction court summarily denied.

In 2016 the Public Defender’s Office, which had represented defendant at trial, filed a motion on his behalf requesting that alternate defense counsel be appointed to represent him. The motion was titled a Rule 35(b) motion but alleged that defendant had received ineffective assistance from the public defender who represented him at trial. The postconviction court thus construed the motion as a Rule 35(c) motion and appointed alternate defense counsel. Postconviction counsel entered her appearance in the case in March 2017, and in March 2018 she filed a motion asserting that defendant was incompetent at that time and during his trial. The postconviction court denied the motion. In 2019 postconviction counsel filed a Rule 35(c) motion claiming defendant was incompetent at the time of his trial and raising ineffective assistance of counsel claims. The court summarily denied the motion.

On appeal, defendant contended that the postconviction court’s decision to appoint postconviction counsel in 2016 obligated it to (1) require the prosecution to respond to the 2016 motion and (2) hold a hearing on that motion. Even when a postconviction court has appointed postconviction counsel to represent a defendant, it may summarily deny a defendant’s Rule 35(c) motion under Rule 35(c)(3)(IV) and (V) without directing the prosecution to respond to the motion and without conducting a hearing where the court (1) is satisfied that the motion, case files, and record show defendant is not entitled to relief; and (2) enters written factual findings and legal conclusions denying the motion. Here, the postconviction court adhered to the rule requirements and therefore did not abuse its discretion.

Defendant also contended that the postconviction court erred in denying the 2019 motion without a hearing. Within 49 days of being appointed, postconviction counsel must either file a Rule 35(c) motion or seek an extension of time to do so. Here, the motion was filed outside the time limit, and the court wasn’t required to excuse counsel’s failure to comply with that limit because the motion was filed more than two years after postconviction counsel was appointed. Further, the 2019 motion was successive of the 2018 motion, so it is properly construed as the second Rule 35(c) motion, and counsel failed to cite a legal basis for filing an “intermediate” motion in 2018 and then waiting 14 months to file the 2019 motion. Lastly, defendant’s alleged incompetency at the time of trial wasn’t an issue to continually relitigate in postconviction proceedings, and the record is inadequate to evaluate defendant’s ineffective assistance claims. Accordingly, the postconviction court did not err.

The orders were affirmed.


Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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