Peo v. Duran

20CA0433 Peo v Duran 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0433

Pueblo County District Court No. 13CR1413

Honorable Larry C. Schwartz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip Duran,

Defendant-Appellant.

ORDER AFFIRMED

Division I

Opinion by JUDGE FOX

Schutz and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Phillip Duran, 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. 2021.

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¶ 1 Defendant, Phillip Duran, appeals the denial of his Crim. P.

35(c) motion for postconviction relief. We affirm.

I. Background

¶ 2 Duran pleaded guilty to a single count of distribution of a

controlled substance (heroin) in violation of section 18-18-405,

C.R.S. 2021, then a class 3 felony. As part of the plea agreement,

Duran and the prosecution stipulated to a twenty-four-year

sentence in the Department of Corrections’ (DOC) custody, allowing

the court to determine whether his operative sentence (for case

number 13CR1413) would run concurrently with or consecutively

to his revoked deferred judgment in case number 10CR758

(menacing). On January 28, 2014, the district court sentenced

Duran to twenty-four years in DOC custody and ordered the

sentence to run consecutively to his six-year sentence in the

menacing case.

¶ 3 On April 23, 2014, Duran invoked Crim. P. 35(b) and asked

the court to reconsider the consecutive aspect of his 2014 sentence.

That request was denied. Duran filed another Crim. P. 35(b) motion

in early 2017 seeking sentence reconsideration. The court denied

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that motion for lack of jurisdiction and because Duran had not

established excusable neglect for his untimely filing.

¶ 4 Duran’s next motion, docketed on February 10, 2020, and

filed pursuant to Crim. P. 35(c), asked that the consecutive element

of his sentence be reconsidered in light of Senate Bill 20-076, 72d

Gen. Assemb., 2d Reg. Sess. (Colo. 2020) — concerning Parole

Eligibility for Youthful Offenders — which (1) reflects a softening of

society’s views on some of his predicate offenses and (2) merits a

proportionality review under Wells-Yates v. People, 2019 CO 90M.

Although the court’s order indicated that no action was being

taken, it also stated that the proposed law did not support Duran’s

requested relief and that his sentence was legal at the time of

sentencing.

¶ 5 Duran now appeals the postconviction court’s ruling on his

Rule 35(c) motion.

II. Timeliness of Duran’s Crim. P. 35(c) Claims

¶ 6 The prosecution asserts, and we agree, that Duran’s claim is

untimely.

¶ 7 We review de novo a court’s denial of a Crim. P. 35(c) motion

without a hearing. See People v. Phipps, 2016 COA 190M, ¶ 20. A

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court may deny the motion without a hearing if “the motion, the

files, and the record clearly establish that the defendant is not

entitled to relief.” People v. Osorio, 170 P.3d 796, 799 (Colo. App.

2007).

¶ 8 Generally, a defendant must file a Crim. P. 35(c) motion within

three years after the date of his felony conviction. See § 16-5-

402(1), C.R.S. 2021. The date of Duran’s conviction for purposes of

section 16-5-402(1) was January 28, 2014 — he was sentenced

immediately following his guilty plea and judgment entered. See

People v. Wiedemer, 899 P.2d 283, 284 (Colo. App. 1994); Crim. P.

32(b). The statutory limitations period thus expired on January 28,

2017, but Duran did not file his Crim. P. 35(c) motion until early

2020.

¶ 9 With limited exceptions, the postconviction court “shall deny

any claim that could have been presented in . . . [a] postconviction

proceeding previously brought.” Crim. P. 35(c)(3)(VII). Regardless

of how a criminal defendant captions his pleading, the substance of

a postconviction motion controls its designation. See, e.g., People v.

Collier, 151 P.3d 668, 670 (Colo. App. 2006).

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¶ 10 To the extent Duran again seeks reconsideration of his

sentence, thus replicating the issues resolved in his prior Crim. P.

35(b) proceedings, his claim is also successive. See id.; see also

People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (an appellate

court may affirm the district court on any ground supported by the

record).

III. Conclusion

¶ 11 The postconviction court’s order is affirmed.

JUDGE SCHUTZ and JUDGE GRAHAM concur.