Peo v. Merchant

23CA0239 Peo v Merchant 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0239
Douglas County District Court No. 10CR403
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas Phil Merchant,

Defendant-Appellant.

ORDER AFFIRMED AND APPEAL DISMISSED IN PART

Division V
Opinion by JUDGE GROVE
Welling and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tillman Clark, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Thomas Phil Merchant, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion. We dismiss a

portion of Merchant’s appeal and otherwise affirm the court’s order.

I. Background

¶2 In 2010, Merchant was arrested and charged with theft by

receiving, a traffic offense, and five habitual criminal charges. He

pleaded not guilty and a jury trial was scheduled for August 2011.

The case then progressed as follows:

• On July 29, 2011, Merchant waived his right to a speedy

trial. The trial was rescheduled for November 28, 2011.

• On August 23, 2011, the trial court was notified that

Merchant had been arrested in Wyoming on a warrant from

Nebraska. He was incarcerated in Nebraska from August

2011 until August 2014.

• On August 24, 2011, after learning of the Wyoming arrest,

the trial court issued a no bond hold warrant for Merchant.

• On November 22, 2011, Merchant’s counsel requested that

the jury trial be vacated. The motion was granted.

• In September 2014, after he had completed his sentence in

Nebraska and returned to Colorado, Merchant appeared on

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the warrant and the court set a monetary bond. Merchant

then appeared with his attorney and waived speedy trial.

The trial was subsequently set for January 21, 2015.

• On the morning of the first day of trial, defense counsel

orally moved to dismiss the case, arguing that Merchant’s

constitutional right to a speedy trial had been violated by

the delay in bringing him to trial. The court denied the

motion.

• A jury found Merchant guilty of theft by receiving and the

traffic offense. He was subsequently convicted of the five

habitual criminal counts. Merchant was sentenced to forty-

eight years in the custody of the Department of Corrections.

• After trial, Merchant filed a motion raising, among other

things, the constitutional speedy trial issue. The court

denied the motion.

• Merchant, through counsel, filed a direct appeal in which

he argued that the evidence presented at trial was

insufficient to support his conviction, challenged the

admission of certain evidence offered by the prosecution,

and asserted that he should receive the benefit of

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amendatory legislation that would have the effect of

reducing his prison sentence. The appeal did not assert

that Merchant’s constitutional speedy trial rights had been

violated. A division of this court affirmed his convictions

and sentence. See People v. Merchant, (Colo. App. No.

15CA0811, Jan. 12, 2017) (not published pursuant to

C.A.R. 35(e)).

• Merchant filed a petition for a writ of certiorari. After

deciding People v. Stellabotte, 2018 CO 66, the Colorado

Supreme Court granted certiorari on the sentencing

question, vacated the division’s opinion, and remanded the

case. The division vacated Merchant’s sentence. See People

v. Merchant, (Colo. App. No. 15CA0811, Jan. 17, 2019) (not

published pursuant to C.A.R. 35(e)).

• On remand to the trial court, Merchant was resentenced to

a sentence of twenty-four years in the custody of the

Department of Corrections.

¶3 Merchant then filed a timely pro se Crim. P. 35(c) petition for

postconviction relief. As relevant to this appeal, he claimed that the

trial court violated his right to a speedy trial and that his direct

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appeal counsel was ineffective because he “did not bring the issue

of speedy trial violation to the higher court.”1 Although Merchant’s

pro se motion mentioned both the constitutional and statutory right

to a speedy trial, he did not develop any substantive argument

concerning the constitutional right. The postconviction court

appointed counsel, who filed a two-page document titled “Adoption

and Amendment of Crim. P. 35(c) Petition for Relief.”

Acknowledging that Merchant’s pro se motion had “base[d] his

speedy trial argument on a violation of [section 18-1-405, C.R.S.

2024],” postconviction counsel “amend[ed]” Merchant’s pro se

motion “[t]o include the authority of the Sixth Amendment to the

United States Constitution and Art. 2, Sec. 16 of the Colorado

Constitution.” Like the pro se motion, however, postconviction

counsel’s supplemental motion did not offer any substantive

explanation of how Merchant’s constitutional speedy trial rights had

been violated. And, although the supplement mentioned

1 Merchant also claimed that trial counsel was ineffective and that

the trial court lacked jurisdiction over his claims. He has
abandoned those arguments on appeal. See People v. Osorio, 170
P.3d 796, 801 (Colo. App. 2007) (“[C]laims raised in [a] defendant’s
postconviction motion, but not reasserted [on appeal], have been
abandoned on appeal.”).

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Merchant’s pro se claim regarding direct appeal counsel’s

performance — specifically, the omission of a constitutional speedy

trial claim on direct appeal — it did not include any additional

argument on that claim at all.

¶4 Approximately six weeks later, Merchant filed a pro se

“Petition for a Writ of Habeas Corpus,” in which he argued that his

sentence was constitutionally disproportionate and requested that

the court provide him with “a new Habitual Sentencing hearing that

includes a new abbreviated proportionality review.” The court

denied Merchant’s Crim. P. 35(c) motion in a written order a few

days later. Its order did not address the “habeas” petition.

¶5 Merchant appeals, arguing that the court erred by failing to

hold a hearing on (1) his constitutional speedy trial claim; (2) his

claim that direct appeal counsel was ineffective; and (3) his request

for an abbreviated proportionality review.

II. The Postconviction Court’s Order

¶6 Merchant’s appeal includes two interrelated constitutional

speedy trial claims: (1) that the trial court should have granted his

pretrial motion to dismiss because the delay in bringing him to trial

violated his constitutional speedy trial right, and (2) that direct

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appeal counsel provided ineffective assistance of counsel by failing

to challenge the trial court’s constitutional speedy trial ruling.

¶7 As we have already discussed, however, Merchant’s pro se

motion raised only a statutory speedy trial claim. Postconviction

counsel’s supplement incorporated that argument and then

purported to “amend” Merchant’s pro se motion to add a

constitutional speedy trial claim. The constitutional claim added by

counsel, however, was cursory in the extreme. Indeed, it did no

more than cite the relevant portions of the Federal and Colorado

Constitutions and assert that counsel was adding the constitutional

claim because section 18-1-405, the speedy trial statute,

“implement[s] . . . the constitutional rights to a speedy trial.”

¶8 In a written order analyzing the constitutional speedy trial

factors outlined in Barker v. Wingo, 407 U.S. 514, 525 (1972), based

on Merchant’s motion, the supplement, the existing record, and the

People’s response, the court concluded that (1) the delay between

Merchant’s arraignment and trial was “more than four and a half

years,” but (2) most of the delay was “attributable to Merchant,”

(3) Merchant did not assert his speedy trial right until the first day

of his trial, and had entered several speedy trial waivers before

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then, and (4) the motion and supplement did not assert that

Merchant was prejudiced as a result of the delay. The court thus

found that there had been no violation of Merchant’s constitutional

speedy trial right. Although the court discussed Merchant’s

repeated waivers of his statutory right to a speedy trial, it did not

explicitly resolve his statutory speedy trial claim.

¶9 Turning to Merchant’s allegation of ineffective assistance of

direct appeal counsel, the court observed that Merchant had not

“assert[ed] that the speedy trial issue was stronger than the other

issues raised in the appeal.” Accordingly, based on the holding in

People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007), the court

appears to have concluded that the omission of that argument was

a strategic decision. In any event, however, the court ruled in the

alternative that Merchant would have been unlikely to prevail on a

constitutional speedy trial claim even if it had been raised on direct

appeal.

III. Standard of Review and Applicable Law

¶ 10 We review a postconviction court’s denial of a Crim. P. 35(c)

motion without a hearing de novo. People v. Wilson, 397 P.3d 1090,

1094 (Colo. App. 2011), aff’d, 2015 CO 37. We also review

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interpretations of the rules of criminal procedure de novo, People v.

Corson, 2016 CO 33, ¶ 44, including whether a postconviction

motion is successive, People v. Thompson, 2020 COA 117, ¶ 42.

¶ 11 Crim. P. 35(c) permits postconviction review of alleged

constitutional errors in criminal proceedings. People v. Sherman,

172 P.3d 911, 915-16 (Colo. App. 2006). A postconviction court

may deny a Rule 35(c) motion without a hearing when (1) the

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

entitled to relief; (2) the allegations, even if true, do not provide a

basis for relief; or (3) the claims are bare and conclusory in nature

and lack supporting factual allegations. See Crim. P. 35(c)(3)(IV);

People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). If a court

summarily denies a postconviction motion, it “shall enter written

findings of fact and conclusions of law in denying the motion.”

Crim. P. 35(c)(3)(IV).

¶ 12 The Rule also bars successive postconviction claims. A Crim.

P. 35(c) claim is successive if it was previously raised and resolved

or could have been previously raised and resolved in a prior appeal

or postconviction proceeding. Crim. P. 35(c)(3)(VI)-(VII). “Rule 35

proceedings are intended to prevent injustices after conviction and

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sentencing, not to provide perpetual review.” People v. Rodriguez,

914 P.2d 230, 249 (Colo. 1996). Subject to exceptions inapplicable

here, a court is required to deny any successive postconviction

claims. See Crim. P. 35(c)(3)(VI)-(VII).

IV. Constitutional Speedy Trial

¶ 13 We decline to address Merchant’s constitutional speedy trial

claim because, even if we were to assume that it was adequately

asserted in Merchant’s postconviction motion or supplement, it is

successive. As noted above, Crim. P. 35(c)(3)(VII) requires dismissal

of a claim that, in the exercise of due diligence, could have been

presented in a prior appeal or postconviction proceeding. See

People v. Valdez, 178 P.3d 1269, 1275 (Colo. App. 2007). This rule

is mandatory, meaning a postconviction court must deny a

procedurally barred claim. People v. Taylor, 2018 COA 175, ¶ 17.

¶ 14 Merchant does not deny that his constitutional speedy trial

claim could have been included in his direct appeal. Indeed, his

contention that direct appeal counsel was ineffective because he

omitted that issue demonstrates that it could have been raised in

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an earlier proceeding.2 Nor does he contend that any of the

exceptions in Crim. P. 35(c)(3)(VII) apply.

¶ 15 Instead, in his reply brief, Merchant urges us to overlook the

bar on successive postconviction motions in the interest of judicial

economy and address the issues he raises due to the “obvious

ineffectiveness of postconviction counsel that prevented proper

presentation of Merchant’s constitutional claims.” While we

recognize the existence of authority that provides us with some

flexibility in this area, see, e.g., People v. Huggins, 2019 COA 116,

¶ 19, we are not persuaded that judicial economy would be

furthered by either addressing the merits of Merchant’s

constitutional speedy trial claim or reversing the postconviction

court’s order. We therefore conclude that the postconviction court

appropriately ruled that Merchant was not entitled to a hearing on

his constitutional speedy trial claims, albeit on different grounds.

See People v. Glover, 2015 COA 16, ¶ 22 (holding that an appellate

court may affirm a postconviction court’s ruling on grounds

2 Constitutional speedy trial claims may be, and frequently are,

raised on direct appeal. See, e.g., People v. West, 2019 COA 131,
¶¶ 6-15; People v. Jompp, 2018 COA 128, ¶¶ 28-34; People v.
Valles, 2013 COA 84, ¶¶ 44-51.

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different from those employed by the postconviction court, as long

as they are supported by the record).

V. Direct Appeal Counsel

¶ 16 As we have already noted, Merchant’s claim that he received

ineffective assistance of counsel in his direct appeal is based on his

constitutional speedy trial claim. In particular, he argues that

direct appeal counsel was ineffective because the appeal he filed did

not raise the constitutional speedy trial issue, and that if it had, the

result of the appeal would have been different. The postconviction

court rejected this claim without holding a hearing, and we discern

no error in that ruling.

A. Applicable Law

¶ 17 Both the United States and Colorado Constitutions guarantee

a criminal defendant a right to the effective assistance of counsel.

U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. The United

States Supreme Court established the test for the ineffective

assistance of counsel in Strickland v. Washington, 466 U.S. 668

(1984). To prevail on an ineffective assistance of counsel claim, a

defendant must prove that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced the defense. Id. at

11
687. Unless both showings are made, a defendant has not proved

that he was denied the effective assistance of counsel. Id.

¶ 18 For the performance prong, a defendant must prove that

counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 688. In conducting the reasonableness

inquiry, a court must make “every effort . . . to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. at 689. And “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id.

¶ 19 For the prejudice prong, a defendant must show that “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. “Only where both the

performance prong and the prejudice prong have been proven will a

defendant be entitled to postconviction relief because of the

ineffective assistance of counsel.” Dunlap v. People, 173 P.3d 1054,

1063 (Colo. 2007). “Because a defendant must show both deficient

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performance and prejudice, a court may resolve the claim solely on

the basis that the defendant has failed in either regard.” People v.

Romero, 2015 COA 7, ¶ 25.

¶ 20 “The same two-part Strickland test applies to claims of

ineffective assistance of appellate counsel.” People v. Long, 126

P.3d 284, 286 (Colo. App. 2005). To demonstrate the performance

prong, “the defendant must show that counsel failed to present the

case effectively. For example, a defendant could demonstrate error

by showing that appellate counsel ignored issues that are clearly

stronger than those presented.” Id. But “[a]ppellate counsel is not

required to raise on appeal every nonfrivolous issue a defendant

desires to raise.” Trujillo, 169 P.3d at 238. “‘[O]nly when ignored

issues are clearly stronger than those presented, will the

presumption of effective assistance of counsel be overcome,’ even in

the context of a direct appeal.” Id. (quoting Ellis v. Hargett, 302

F.3d 1182, 1189 (10th Cir. 2002)). “To demonstrate prejudice, the

defendant must show a reasonable probability [of success].” Long,

126 P.3d at 286.

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B. The Postconviction Motion

¶ 21 In his pro se postconviction motion, Merchant alleged in

pertinent part:

The trial court denied Merchant’s Motion to
Dismiss due to a Speedy Trial Violation. The
defendant contends that this was error on the
Court’s part (see Issue #1, above [the Speedy
Trial Argument]). The court denied the motion,
in part, due to the fact that Merchant
‘absented himself’ from trial due to
incarceration in Nebraska . . . . The defendant
was prejudiced by this omission in that the
conviction was allowed to stand and he is
currently serving a 24-year sentence in the
Department of Corrections.

¶ 22 As discussed above, Merchant’s pro se motion arguably did

not raise, and certainly did not adequately develop, a constitutional

speedy trial argument. Moreover, although postconviction counsel

did make it clear that he intended to pursue the constitutional

speedy trial issue, the supplement did not include any substantive

argument and barely even mentioned Merchant’s claim of ineffective

assistance of direct appeal counsel. The postconviction court could

have denied the motion on this ground alone. See People v. Osorio,

170 P.3d 796, 799 (Colo. App. 2007) (holding that a district court

may deny a claim of ineffective assistance of counsel if the claim is

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bare and conclusory in nature, or lacks supporting factual

allegations). Nonetheless, based on the limited information it had,

the court conducted a detailed analysis of Merchant’s constitutional

speedy trial claim and ultimately concluded that it was unlikely to

prevail on the merits. As a result of the substantive argument’s

weakness, the court concluded, direct appeal counsel was not

ineffective for failing to pursue it.

¶ 23 We discern no error in the court’s ruling. In order to prevail

on his ineffective assistance claim, Merchant would eventually have

needed to establish that the underlying constitutional speedy trial

claim was viable. Otherwise, he would not be able to establish

Strickland’s prejudice prong. And while he did not need to set forth

detailed evidentiary support for the allegations in his Rule 35(c)

motion in order to qualify for a hearing, see People v. Delgado, 2019

COA 55, ¶ 33, it was still incumbent on him to advance a colorable

claim. Neither the pro se motion nor the supplement did so. For

example, neither filing even mentioned the factors relevant to

evaluating a constitutional speedy trial claim outlined in Barker.

Instead, the pro se motion focused on arguments related to

statutory speedy trial claims, and the supplement merely

15
mentioned that Merchant’s motion had a constitutional angle as

well. Without some allegations concerning the Barker factors —

especially prejudice — Merchant could not have qualified for relief.

See, e.g., United States v. Larson, 627 F.3d 1198, 1210-11 (10th Cir.

2010) (concluding that the applicant “fail[ed] to show prejudice,” in

part because his “generalized and conclusory references to the

anxiety and distress that purportedly are intrinsic to incarceration

are not sufficient to demonstrate particularized prejudice”).

¶ 24 To succeed on his ineffective assistance claim, Merchant

would eventually need to carry the burden of demonstrating that,

but for counsel’s errors, he would have prevailed on direct appeal.

See Long, 126 P.3d at 286. Similarly, to qualify for a hearing,

Merchant needed to make allegations that would support a

conclusion that there was a reasonable probability his

constitutional speedy trial claim would succeed on direct appeal.

Because his Crim. P. 35(c) motion made no allegations that would

support such a finding, the postconviction court correctly ruled that

no hearing was required.

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VI. Habeas Petition

¶ 25 The parties agree that Merchant’s “habeas petition,” filed on

October 14, 2022, should be construed as a Crim. P. 35(c) motion

based on its substance. DePineda v. Price, 915 P.2d 1278, 1280

(Colo. 1996) (“A habeas corpus petition [that seeks relief available

under Crim. P. 35] should be treated as a Crim. P. 35 motion based

upon the substantive constitutional issues raised therein, rather

than [upon] the label placed on the pleading.” (quoting White v.

Denver Dist. Ct., 766 P.2d 632, 634 (Colo. 1988))).

¶ 26 However, the court never ruled on Merchant’s habeas petition

and its associated claim that his twenty-four-year sentence was

unconstitutionally disproportionate under the Eighth Amendment.

Without an appealable postconviction order, we lack jurisdiction to

consider this claim. § 13-4-102(1), C.R.S. 2024. We therefore

dismiss this portion of Merchant’s appeal.

VII. Disposition

¶ 27 We affirm the postconviction court’s order and dismiss the

appeal to the extent that it seeks review of Merchant’s habeas

petition.

JUDGE WELLING and JUDGE JOHNSON concur.

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