Peo v. Arvelo

24CA0840 Peo v Arvelo 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0840
El Paso County District Court No. 10CR1735
Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Obdulio Arvelo,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE MOULTRIE
Kuhn, J., concurs
Berger*, J. specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Obdulio Arvelo, 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, Obdulio Arvelo, appeals the district court’s order

denying his motion for a proportionality review. We affirm.

I. Background

¶2 In 2011, a jury convicted Arvelo of theft by receiving property

worth $20,000 or more, a class 3 felony, and possession of burglary

tools, a class 5 felony. The district court adjudicated him a

habitual criminal based on three prior felonies: theft in 1994, a

class 4 felony; first degree trespass of a dwelling in 2009, a class 5

felony; and identity theft in 2009, a class 4 felony.

¶3 The district court sentenced Arvelo to a controlling term of

forty-eight years in the custody of the Department of Corrections.

¶4 Arvelo directly appealed, and a division of this court affirmed

his convictions and sentence. People v. Arvelo, (Colo. App. No.

12CA2220, Feb. 4, 2016) (not published pursuant to C.A.R. 35(f))

(Arvelo I). The mandate was issued on August 26, 2016.

¶5 In July 2017, Arvelo filed a timely Crim. P. 35(c) motion,

asserting ineffective assistance of counsel. The district court denied

the motion without a hearing.

¶6 Approximately two weeks after the denial, Arvelo filed a motion

requesting an abbreviated proportionality review of his sentence. In

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part, he claimed that in 2013, the General Assembly reclassified his

triggering offense of theft by receiving and his predicate offense of

theft to lower class felonies, and he was entitled to the benefits of

the amendatory legislation. The district court denied this motion as

untimely, after which Arvelo filed a motion to reconsider the ruling.

In reconsidering its ruling, the court denied the motion requesting

an abbreviated proportionality review as successive.

¶7 A division of this court affirmed the denial of both motions,

concluding that Arvelo’s motion for an abbreviated proportionality

review was successive because he could have raised the claim in his

first Crim. P. 35(c) motion. People v. Arvelo, (Colo. App. No.

18CA0138, Oct. 3, 2019) (not published pursuant to C.A.R. 35(e))

(Arvelo II).

¶8 From 2020 through 2022, Arvelo filed numerous additional

unsuccessful postconviction motions, some of which he appealed.

See People v. Arvelo, (Colo. App. No. 21CA0957, Aug. 25, 2022) (not

published pursuant to C.A.R. 35(e)) (Arvelo III); People v. Arvelo,

(Colo. App. No. 22CA2159, Dec. 14, 2023) (not published pursuant

to C.A.R. 35(e)) (Arvelo IV). Several of those motions included

challenges to the proportionality of his sentence or requests for a

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proportionality review, which were denied as untimely, successive,

or both.

¶9 Before the mandate in the last appeal issued, Arvelo filed

another motion for a proportionality review in March 2024. He

argued that two of his predicate offenses, theft and identity theft,

were now misdemeanors following legislative changes, and therefore

could not be used to adjudicate him as a habitual criminal. He also

again asserted that his triggering offense of theft by receiving had

been reclassified to a lower level felony in 2013. The district court

denied the motion without a hearing as untimely and successive,

finding that Arvelo “has argued his entitlement to a proportionality

review in nearly all of his post-conviction motions.”

II. Discussion

¶ 10 On appeal, Arvelo contends that the district court erred by

denying his 2024 motion for a proportionality review without a

hearing as time barred and successive.1 We disagree.

1 In his opening brief, Arvelo says that he filed a motion seeking

proportionality review in December 2022 that “is now the subject of
this appeal.” However, per his notice of appeal, he is appealing the
order issued on March 22, 2024, that denied his proportionality
review motion filed on March 13, 2024. Moreover, the record does
not contain a motion filed in December 2022.

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A. Standard of Review

¶ 11 A request for a proportionality review is cognizable under

Crim. P. 35(c). People v. Moore-El, 160 P.3d 393, 395 (Colo. App.

2007). We review de novo the denial of a Crim. P. 35(c) motion

without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

B. Arvelo’s Motion Is Time Barred

¶ 12 Where, as here, a defendant filed a direct appeal, the

defendant’s conviction becomes final upon the issuance of the

mandate. See Hunsaker v. People, 2021 CO 83, ¶ 36. Absent

justifiable excuse or excusable neglect, the time limit for filing

postconviction challenges to non-class 1 felony convictions is three

years after the date the conviction becomes final. See

§ 16-5-402(1), (2)(d), C.R.S. 2024.

¶ 13 Here, the mandate was issued on August 26, 2016, which

afforded Arvelo until August 26, 2019, to file Crim. P. 35(c) motions.

He filed his latest request for a proportionality review in 2024,

almost five years too late. It is therefore time barred.

¶ 14 Arvelo asserts he is excused from the timeliness procedural

bar for several reasons, which he did not raise in his motion for a

proportionality review. See People v. Hinojos, 2019 CO 60, ¶ 14 (a

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defendant who invokes the justifiable excuse or excusable neglect

exception must allege in his motion facts that, if true, would entitle

him to relief). Although we generally do not review issues not raised

in the district court, see Cali, ¶ 34, we do so in this instance in the

interest of judicial efficiency because no further factual development

is required, see People v. Chase, 2013 COA 27, ¶ 77.

¶ 15 Arvelo first argues that he is excused from the timeliness

procedural bar because he in fact filed a timely request for a

proportionality review in 2017, which the district court erroneously

denied as untimely. However, the district court reconsidered its

first ruling on that motion and determined that it was instead

barred as successive because Arvelo could have raised the

proportionality claim in his first Crim. P. 35(c) motion. And this

ruling was affirmed on appeal in Arvelo II.

¶ 16 Arvelo also asserts an exception from the timeliness bar

because he has not been given a “meaningful opportunity to be

heard” and because courts should consider legislative amendments

in proportionality proceedings. Neither of these assertions

constitute justifiable excuse or excusable neglect for the untimely

filing of his motion. See People v. Wiedemer, 852 P.2d 424, 440-41

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(Colo. 1993) (listing nonexhaustive factors relevant to evaluating

justifiable excuse or excusable neglect, including whether

circumstances prevented defendant’s timely challenge to a

conviction or whether defendant had any previous need to challenge

a conviction and either knew that it was constitutionally infirm or

had reason to question its validity); Cali, ¶ 13 (“[D]efendants are not

entitled to the benefit of amendatory legislation when they first seek

relief based on that legislation after their convictions are final, even

if the legislation went into effect before their convictions became

final.”); Moore-El, 160 P.3d at 395 (a general assertion of justifiable

excuse or excusable neglect is insufficient to overcome the time

bar).

¶ 17 Accordingly, the district court did not err by denying Arvelo’s

motion as time barred.

C. Arvelo’s Motion Is Successive

¶ 18 A court must deny a Crim. P. 35(c) claim as successive if the

claim was raised, or could have been raised, in a previous appeal or

postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII). The language

of the rule “is mandatory rather than permissive.” People v. Taylor,

2018 COA 175, ¶ 17.

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¶ 19 Because Arvelo’s request for a proportionality review was

raised in multiple prior Crim. P. 35(c) motions, it is also barred as

successive.

¶ 20 Arvelo asserts that his motion is excused from the

successiveness procedural bar because his request for a

proportionality review has not been “fully and finally litigated.”

While he did not assert any exceptions to the successiveness bar in

his motion for a proportionality review, we again exercise our

discretion to review this claim in the interest of judicial efficiency.

See Chase, ¶ 77.

¶ 21 Arvelo cites People v. Hubbard, 519 P.2d 945 (Colo. 1974);

People v. Wimer, 681 P.2d 967 (Colo. App. 1983); and People v.

Billips, 652 P.2d 1060 (Colo. 1982), for the proposition that a Crim.

P. 35(c) claim cannot be denied as successive if it has not been fully

or finally litigated or resolved on the merits in a prior proceeding.

But these cases were based on a legal standard that predated

amendments to Crim. P. 35 in 2004. See Taylor, ¶ 13 (concluding

that Crim. P. 35(c)(3)(VII) has superseded Hubbard). Prior to 2004,

Crim. P. 35(c)(3) stated that “[t]he court need not entertain a second

motion or successive motions for similar relief based upon the same

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or similar allegations on behalf of the same prisoner.” Crim. P.

35(c)(3) (1999). But in 2004, Crim. P. 35(c)(3)(VI) and (VII) were

added, which bar a claim as successive “that was raised and

resolved in a prior appeal or postconviction proceeding on behalf of

the same defendant” and a claim “that could have been presented

in an appeal previously brought or postconviction proceeding

previously brought,” subject to certain exceptions. When Arvelo

first requested a proportionality review in 2017, the district court

denied the claim as successive because he could have raised it in

his first Crim. P. 35(c) motion (a decision that was affirmed on

appeal in Arvelo II). See Crim. P. 35(c)(3)(VII). And the claim is

successive now because he raised it in prior postconviction

motions. See Crim. P. 35(c)(3)(VI).

¶ 22 For these reasons, we conclude that the district court did not

err by denying Arvelo’s motion as successive.

D. Denial of a Hearing

¶ 23 Arvelo contends that he was erroneously denied a hearing on

his motion because he presented sufficient factual allegations to

support his claim. However, a district court may deny a Crim. P.

35(c) motion without a hearing if the motion, files, and record of the

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case clearly show that the defendant is not entitled to relief. Crim.

P. 35(c)(3)(IV). Here, the motion, files, and record clearly show that

Arvelo’s motion is time barred and successive. He was therefore not

entitled to a hearing.

III. Disposition

¶ 24 The order is affirmed.

JUDGE KUHN concurs.

JUDGE BERGER specially concurs.

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JUDGE BERGER, specially concurring.

¶ 25 Both the district court’s orders and this court’s opinion, which

I reluctantly join, reek of some of the absurdities that were

comically illustrated more than sixty years ago in Joseph Heller’s

novel, Catch-22, and the motion picture of the same name.

¶ 26 But unlike the fictional character in Catch-22, Obdulio Arvelo

is a real person serving a real sentence. The convictions at issue on

this appeal were theft by receiving property worth $20,000 or more,

a class 3 felony, and possession of burglary tools, a class 5 felony.

He was sentenced as a habitual criminal to forty-eight years in

prison based on three prior felony convictions — theft in 1994; first

degree trespass of a dwelling in 2009; and identity theft in 2009.

¶ 27 I do not minimize either the seriousness of these offenses, or

the number of convictions. At the same time, it is appropriate to

observe that these crimes are far from the apex of crimes defined in

the criminal code. More importantly, it is undisputed that the

sentence imposed would have been unlawful if imposed today based

on the General Assembly’s intervening amendments to the criminal

code.

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¶ 28 Because of Arvelo’s various procedural missteps and defaults,

no court has ever determined whether Arvelo’s sentence was

constitutionally proportionate to his crimes. As a citizen, it seems

obvious to me that a court should, once and for all, determine

whether his sentence was constitutionally proportionate. But as a

judge, I am bound by supreme court rules and precedents, which

the court’s opinion correctly apply.

¶ 29 Given the many difficulties in prevailing on a proportionality

review, perhaps Arvelo would lose such a challenge if he were given

the opportunity to make such a challenge. But at least he should

have an opportunity to have a court adjudicate such a challenge on

the merits.

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