Peo v. Vreeland

22CA1704 Peo v Vreeland 10-16-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1704
Douglas County District Court No. 04CR706
Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Delmart Vreeland,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE SULLIVAN
Welling and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 16, 2025

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor
General and Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-
Appellee

Brownstone P.A., George Thomas, Winter Park, Florida, for Defendant-
Appellant
¶1 Defendant, Delmart Vreeland, appeals the postconviction

court’s order denying his most recent motion for postconviction

relief. We affirm.

I. Background

¶2 In 2004, Vreeland sexually assaulted two teenage boys after

promising to pay them in exchange for letting Vreeland photograph

them in their underwear. Vreeland also provided both boys with

cocaine and alcohol.

¶3 In 2006, a jury convicted Vreeland of two counts of

inducement of child prostitution, two counts of soliciting for child

prostitution, four counts of sexual exploitation of children, two

counts of sexual assault, two counts of contributing to the

delinquency of a minor, and one count of distribution of a

controlled substance. Vreeland appealed his convictions and a

division of this court affirmed. People v. Vreeland, (Colo. App. No.

08CA2468, Feb. 14, 2013) (not published pursuant to C.A.R. 35(f))

(Vreeland I).

¶4 In 2017, Vreeland filed his first postconviction petition, which

the postconviction court denied. Vreeland appealed the denial and

a division of this court affirmed. People v. Vreeland, (Colo. App. No.

1
17CA1648, Aug. 27, 2020) (not published pursuant to C.A.R. 35(e))

(Vreeland II).

¶5 In 2021, Vreeland filed a second postconviction petition under

Crim. P. 35(a) and 35(c), raising thirty-five separate claims. In a

detailed order, the postconviction court denied the petition without

a hearing. This most recent denial prompted this appeal.

¶6 We group Vreeland’s contentions in this appeal as follows:

(1) the trial court lacked jurisdiction over his case; (2) the

postconviction court erred by denying most of his postconviction

claims as either successive or time barred; (3) his attorneys in the

postconviction phase provided ineffective assistance of counsel;

(4) the postconviction court erred by denying his challenge to his

illegal sentence; and (5) courts on direct appeal and in the

postconviction phase have violated his right to due process by

enforcing word limits in briefs.

II. Standard of Review and Applicable Law

¶7 We review de novo a district court’s denial of a defendant’s

postconviction motion without a hearing. See People v. Joslin, 2018

COA 24, ¶ 5. To warrant a hearing on a Crim. P. 35(c) motion, a

defendant must allege facts that, if true, entitle the defendant to

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postconviction relief. Id. at ¶ 4. A district court may deny a

defendant’s postconviction motion under Crim. P. 35(c) without an

evidentiary hearing only where the motion, files, and record in the

case clearly establish that the allegations presented in the motion

are without merit and don’t warrant postconviction relief. Ardolino

v. People, 69 P.3d 73, 77 (Colo. 2003).

¶8 Postconviction proceedings are designed to prevent injustices

after a defendant’s conviction and sentencing, not to provide a

perpetual right of review. People v. Hampton, 528 P.2d 1311, 1312

(Colo. 1974). As a result, a postconviction court must deny any

claim that the defendant presented and the court resolved in a

previous appeal or postconviction proceeding. Crim. P. 35(c)(3)(VI).

But there are exceptions. As relevant here, this bar on successive

claims doesn’t apply to claims “based on evidence that could not

have been discovered previously through the exercise of due

diligence.” Crim. P. 35(c)(3)(VI)(a).

¶9 A postconviction court must also deny any claim that the

defendant could have presented in a previous appeal or

postconviction proceeding, except, as relevant in this case, any

claim based on evidence that couldn’t have been discovered

3
previously through the exercise of due diligence; any claim over

which the sentencing court lacked subject matter jurisdiction; and

any claim where an objective factor, external to the defense and not

attributable to the defendant, made raising the claim impracticable.

See Crim. P. 35(c)(3)(VII)(b), (d), (e).

¶ 10 In addition, a court may correct a sentence imposed without

jurisdiction or not authorized by law “at any time.” Crim. P. 35(a).

III. Jurisdiction

¶ 11 We first address two of Vreeland’s claims that he characterizes

as “jurisdictional.” See Crim. P. 35(c)(2)(III), (c)(3)(VII)(d). Vreeland

contends that (1) the trial’s venue in Douglas County, Colorado,

was improper; and (2) defects in the charging information deprived

the trial court of jurisdiction.

A. Venue

¶ 12 In general, a criminal action must be tried in the county where

the offense was committed. § 18-1-202(1), C.R.S. 2025.

¶ 13 Before trial, Vreeland challenged whether Douglas County was

the proper venue for his trial. Although the trial court rejected his

challenge, he didn’t raise any venue argument in his direct appeal.

We therefore can’t address the merits of his venue argument at this

4
postconviction stage. See Crim. P. 35(c)(3)(VII). Contrary to

Vreeland’s argument, venue isn’t a jurisdictional issue that can be

raised at any time. See People v. Joseph, 920 P.2d 850, 851-52

(Colo. App. 1995).

¶ 14 Vreeland nonetheless asserts that he couldn’t raise venue in

his direct appeal because the relevant trial court records were

“hidden” from him. But even if that were true, Vreeland’s venue

argument fails for a different reason — it came too late. Absent a

showing of good cause, a defendant waives any challenge to venue

by failing to raise it in writing within twenty-one days of their

arraignment. § 18-1-202(11). Here, Vreeland was arraigned on

July 6, 2005. But he didn’t raise his venue challenge until seven

months later. Nor does he advance any good cause to excuse his

delay.

¶ 15 Accordingly, the postconviction court didn’t err by denying

Vreeland’s venue challenge.

B. Sufficiency of the Charging Information

¶ 16 Vreeland argues that the trial court lacked jurisdiction

because the charging information (1) didn’t contain sufficient

information regarding the time and location of his alleged offenses;

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(2) failed to allege the required mental state for inducement of child

prostitution (counts one and two) and soliciting for child

prostitution (counts three and four); and (3) didn’t include victim

information for two of the counts alleging sexual exploitation of

children (counts seven and eight).

¶ 17 In a criminal case, a trial court’s jurisdiction is invoked by the

filing of a legally sufficient complaint, information, or indictment.

People v. Sims, 2019 COA 66, ¶ 15. A charging document is legally

sufficient if it identifies the essential elements of the crime charged

in the language of the statute. Id. at ¶ 16.

¶ 18 We conclude that the charging information in this case was

legally sufficient, thus providing the trial court with jurisdiction.

For each count, the information identified the essential elements of

the charged offense by generally tracking the language of the

relevant statute.

¶ 19 True, the information didn’t allege the specific time that

Vreeland committed each alleged offense. But the time of their

commission wasn’t an essential element. See People v. James, 40

P.3d 36, 48 (Colo. App. 2001), overruled in part on other grounds by,

McDonald v. People, 2021 CO 64. Moreover, the information did

6
identify a date range for each alleged offense, thus giving Vreeland a

fair and adequate opportunity to prepare his defense. See People v.

Madden, 111 P.3d 452, 456 (Colo. 2005).

¶ 20 The same is true regarding the place where Vreeland’s offenses

allegedly occurred. The county where an offense is alleged to have

occurred generally doesn’t constitute an element of the offense.

§ 18-1-202(11). But even if it did, the information alleged that each

of Vreeland’s offenses was “committed, or triable,” in Douglas

County.

¶ 21 We also reject Vreeland’s argument that the information failed

to allege the required mental state for counts one through four. The

information alleged in counts one through four that Vreeland acted

“feloniously.” At trial, the court instructed the jury that the

prosecution had to prove beyond a reasonable doubt that Vreeland

acted “knowingly” when committing counts one through four. The

word “feloniously” in a charging document is equivalent to

“knowingly.” People v. Trujillo, 731 P.2d 649, 651 (Colo. 1986).

Thus, the information adequately alleged the required mental state

that the prosecution had to prove at trial.

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¶ 22 Nor are we persuaded that the prosecution’s failure to identify

the specific child victims in counts seven and eight deprived the

trial court of jurisdiction over the sexual exploitation of children

charges. In counts seven and eight, the prosecution alleged that

Vreeland knowingly prepared, arranged for, published, produced,

promoted, made, sold, financed, offered, exhibited, advertised, dealt

in, or distributed “sexually exploitative material.” § 18-6-403(3)(b),

C.R.S. 2004. Under the applicable version of the statute, “sexually

exploitative material” means “any photograph, motion picture,

videotape, print, negative, slide, or other mechanically,

electronically, chemically, or digitally reproduced visual material

that depicts a child engaged in, participating in, observing, or being

used for explicit sexual conduct.” § 18-6-403(2)(j), C.R.S. 2004.

Thus, although the statute required the prosecution to prove that

the visual material depicted actual children, nothing demanded

“evidence of [the] child[ren]’s identification.” People v. Brown, 313

P.3d 608, 613 (Colo. App. 2011).

¶ 23 Accordingly, the postconviction court didn’t err by rejecting

Vreeland’s claims that he characterizes as jurisdictional.

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IV. Successive Claims

¶ 24 The postconviction court determined that the bulk of

Vreeland’s remaining claims were procedurally barred. The People

defend the court’s conclusion under Crim. P. 35(c)(3)(VII), arguing

that Vreeland could have presented twenty-nine of his thirty-five

claims in a previous appeal or postconviction proceeding. Vreeland

disagrees, contending that (1) his claims rely on new evidence;

(2) an objective factor, external to the defense, made raising the

claims earlier impracticable; (3) his claims haven’t been “fully and

finally” resolved in a prior judicial proceeding; and (4) certain of his

claims asserted that the court imposed an illegal sentence, which

the court can correct at any time under Crim. P. 35(a).

A. Newly Discovered Evidence

¶ 25 Vreeland says the following, among other things, constitute

new evidence favorable to him: (1) thousands of minutes of recorded

telephone calls between himself and his counsel, revealing both his

counsel’s misconduct and the government’s violation of his right to

confidentiality with counsel; (2) a videotaped interview of a witness

supporting his assertion that no sexual contact occurred in the

home; and (3) evidence that government investigators violated a

9
sequestration order and withheld exculpatory material by speaking

to witnesses during trial and failing to disclose that an investigator

was seen with a witness.

¶ 26 We conclude Vreeland’s asserted new evidence didn’t push his

claims within Crim. P. 35(c)(3)(VII)(b)’s safe harbor for newly

discovered evidence. As to the recorded phone calls and interview

tape, Vreeland acknowledged in his petition that both were available

either before or during trial.1 The postconviction court similarly

concluded that recorded calls were available to Vreeland before

trial. Thus, the recorded calls and interview tape didn’t constitute

1 Vreeland’s postconviction counsel partially backtracked in a

supplement to the petition, saying that some of the recorded calls
(those recorded while Vreeland was temporarily jailed in Iowa) were
sealed and inaccessible before trial. But counsel acknowledged
receiving even those recordings more than a year before the
postconviction court denied Vreeland’s petition. The postconviction
court explained that, despite having the recordings for that period,
Vreeland failed to provide “a scintilla of support” for his claim. On
appeal, too, Vreeland fails to point us to any specific recording in
the record that supports his claims. Like the division in People v.
Vreeland, ¶ 31 n.2 (Colo. App. No. 17CA1648, Aug. 27, 2020) (not
published pursuant to C.A.R. 35(e)) (Vreeland II), we decline to
scour the record to determine if any of the thousands of recorded
calls support Vreeland’s claims. See also People v. Gutierrez-Vite,
2014 COA 159, ¶ 28 (“We will not play archaeologist with the
record.”).

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new evidence that “could not have been discovered previously.”

Crim. P. 35(c)(3)(VII)(b).

¶ 27 In addition, the division in Vreeland II previously addressed

Vreeland’s contention that the recorded calls established his

attorneys’ blameworthiness, rendering this portion of his claim

successive under Crim. P. 35(c)(3)(VI). See Vreeland II, ¶¶ 30-32.

¶ 28 Turning to the government’s alleged violation of a

sequestration order and withholding of exculpatory evidence,

Vreeland didn’t allege sufficient facts to show that he couldn’t have

discovered these alleged violations earlier through the exercise of

due diligence. Crim. P. 35(c)(3)(VII)(b). Moreover, in resolving

Vreeland’s first postconviction motion, the postconviction court

rejected Vreeland’s allegations that a government investigator had

inappropriate relationships with witnesses in this case, again

rendering this portion of his claim successive under Crim. P.

35(c)(3)(VI).

¶ 29 Vreeland’s remaining allegations of new evidence are

undeveloped. In his opening brief, Vreeland mentions briefly that a

camera allegedly fell out of the chain of custody, that a victim

allegedly lied about his grandfather’s suicide, and that the mother

11
of one of the victims allegedly would have provided “impeachment

evidence.” He also asserts that unspecified “new evidence”

supported claims one through ten and twenty-nine in his petition.

But Vreeland doesn’t develop these arguments, much less explain

why such evidence couldn’t have been discovered earlier through

the exercise of due diligence. We therefore decline to address

Vreeland’s conclusory arguments. See People v. Romero, 2015 COA

7, ¶ 53 (declining to address a Crim. P. 35(c) argument that the

defendant presented in a perfunctory and conclusory manner).

B. Objective Factor External to the Defense

¶ 30 We similarly conclude that Vreeland’s “objective factor”

argument under Crim. P. 35(c)(3)(VII)(e) is undeveloped. Without

citing supporting case law, Vreeland devotes just two sentences in

his opening brief to this argument. Thus, we decline to address it.

See Romero, ¶ 53.

C. Fully and Finally Adjudicated Claims

¶ 31 Relying on People v. Diaz, 985 P.2d 83, 85 (Colo. App. 1999),

Vreeland argues that the postconviction court should have

addressed the merits of his claims that a prior court hadn’t yet

“fully and finally” resolved. But Diaz predates the supreme court’s

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2004 adoption of Crim. P. 35(c)(3)(VII). See Rule Change 2004(02),

Colorado Rules of Criminal Procedure (Amended and Adopted by

the Court En Banc, Jan. 29, 2004), https://perma.cc/3TUK-PLAX.

As discussed above, the current rule bars not only claims that the

defendant actually raised in a prior appeal or postconviction

proceeding but also claims that the defendant could have raised.

See People v. Taylor, 2018 COA 175, ¶¶ 13-20 (discussing the 2004

adoption of Crim. P. 35(c)(3)(VII) and rejecting the defendant’s

reliance on pre-2004 case law construing the prior version of the

rule).

¶ 32 Accordingly, because the Diaz division applied a version of

Crim. P. 35 that is no longer in effect, Vreeland’s reliance on its

analysis is misplaced.

D. Illegal Sentence Claims

¶ 33 Sentences that are inconsistent with the statutory scheme

outlined by the General Assembly are illegal and may be corrected

at any time. Crim. P. 35(a); People v. Jenkins, 2013 COA 76, ¶ 11.

By contrast, Crim. P. 35(c)(3) authorizes postconviction challenges

to the “judgment of conviction” itself. Constitutional challenges to a

defendant’s conviction or sentence are also governed by

13
Crim. P. 35(c). People v. Collier, 151 P.3d 668, 670 (Colo. App.

2006). The substance of the postconviction motion controls

whether it falls under Crim. P. 35(a) or 35(c), not the label placed on

it. See id.

¶ 34 With the exception of Vreeland’s claim involving count nine,

which we discuss below, we agree with the People that none of

Vreeland’s postconviction claims constitutes an illegal sentence

claim under Crim. P. 35(a). While Vreeland attempts to

characterize several of his claims as illegal sentence claims —

including his challenges to the constitutionality of his convictions

and sentence, the sufficiency of the evidence and charging

information underlying the habitual criminal charges, and the

evidence admitted at the habitual criminal hearing — those claims

don’t allege that Vreeland’s sentence is inconsistent with the

General Assembly’s statutory scheme. Instead, the claims, at most,

allege that these errors led to a sentence that is inconsistent with

the statutory scheme. The same can be said of all postconviction

claims. As a result, these claims don’t fall under Crim. P. 35(a) and

aren’t exempt from the bar on successive postconviction claims.

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V. Ineffective Assistance of Postconviction Counsel

¶ 35 Vreeland next contends that the postconviction court erred by

denying his claim that the private attorney who represented him in

his first postconviction appeal (first postconviction counsel)

provided ineffective assistance of counsel. Vreeland also argues

that, to the extent we reject his contention that new evidence

requires reversal of the postconviction court’s summary denial of

his second postconviction petition, the attorney who represented

him on his second postconviction petition (second postconviction

counsel) provided ineffective assistance of counsel.

A. Applicable Law and Standard of Review

¶ 36 A criminal defendant has a constitutional right to the effective

assistance of counsel in their defense. People v. Rainey, 2023 CO

14, ¶ 1. But this constitutional right doesn’t apply during the

postconviction phase. Silva v. People, 156 P.3d 1164, 1167 (Colo.

2007). Instead, a criminal defendant in Colorado has a limited

statutory right to counsel in postconviction proceedings. Id. at

1168.

¶ 37 Like an ineffective assistance of trial counsel claim, to prevail

on an ineffective assistance of postconviction counsel claim, the

15
defendant must show that (1) counsel’s performance was deficient,

and (2) the deficient performance prejudiced their defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Silva,

156 P.3d at 1169 (Strickland applies to ineffective assistance of

postconviction counsel claims). Prejudice in this context means

that the defendant has shown a reasonable probability that, but for

postconviction counsel’s unprofessional errors, the outcome of the

proceeding would have been different. Strickland, 466 U.S. at 694.

A defendant must establish both prongs under Strickland to

succeed on their ineffective assistance of postconviction counsel

claim. People v. Garcia, 815 P.2d 937, 941 (Colo. 1991).

¶ 38 Ineffective assistance of postconviction counsel claims present

a mixed question of law and fact. People v. Corson, 2016 CO 33,

¶ 25. We review the postconviction court’s legal conclusions de

novo but defer to the court’s factual findings if they are supported

by the record. Id.

B. Analysis

¶ 39 At the outset, we address two threshold issues.

¶ 40 First, Vreeland understandably didn’t challenge the

effectiveness of his second postconviction counsel below. See

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People v. Kelling, 151 P.3d 650, 657 (Colo. App. 2006) (defense

counsel “could not be expected to litigate his own ineffectiveness”).

Because that particular claim of ineffective assistance of

postconviction counsel hasn’t yet been presented to the

postconviction court, we will not consider it in the first instance.

See People v. Cali, 2020 CO 20, ¶¶ 33-36.

¶ 41 Second, the People argue that the limited statutory right to

postconviction counsel in Colorado doesn’t guarantee those

defendants who retain private postconviction counsel the

corresponding right to effective assistance of counsel under

Strickland. Cf. Silva, 156 P.3d at 1171 (Coats, J., dissenting) (“It is

unclear to me whether the majority’s rationale contemplates a right

to constitutionally effective assistance only for indigent defendants,

or if it would extend the same right to non-indigent defendants who

hire their own counsel for post-conviction proceedings, even without

a corresponding statutory right to counsel.”). We need not decide

whether Vreeland was entitled to effective assistance from his first

postconviction counsel because, even if he was, Vreeland’s claim of

ineffectiveness fails on its merits.

17
¶ 42 Turning to those merits, Vreeland argues that his first

postconviction counsel provided ineffective assistance by advising

him that counsel couldn’t complete the opening brief a mere seven

days before it was due, forcing Vreeland to complete the brief on his

own. According to Vreeland, counsel then advised this court that

he would prepare a reply brief to “cure any defects” in the opening

brief but then failed to do so, requiring Vreeland to find a new

lawyer to complete the reply brief. The Vreeland II division

ultimately rejected Vreeland’s contentions of error.

¶ 43 Even if we assume that first postconviction counsel’s

performance was deficient, Vreeland hasn’t shown prejudice. To

prove prejudice, Vreeland needed to show a reasonable probability

that, but for his private counsel’s failure to file a merits brief, he

would have prevailed on appeal. See Smith v. Robbins, 528 U.S.

259, 285 (2000). But Vreeland’s second petition for postconviction

relief didn’t identify any potential appellate issues that his first

postconviction counsel should have raised in lieu of, or in addition

to, the issues that Vreeland raised on his own. Nor did he explain

how such issues were stronger or had a better chance of prevailing

18
than the issues he was able to raise.2 See People v. Trujillo, 169

P.3d 235, 238-39 (Colo. App. 2007). In the absence of such

allegations, the postconviction court didn’t err by denying

Vreeland’s ineffective assistance of counsel claim without a hearing.

See id.; see also People v. Villanueva, 2016 COA 70, ¶ 68 (A

“conclusory allegation is insufficient to establish prejudice under

Strickland.”).

¶ 44 Accordingly, the postconviction court didn’t err by rejecting

Vreeland’s ineffective assistance of counsel claim.

VI. Vreeland’s Sentence

¶ 45 Vreeland next contends that the postconviction court erred by

denying his challenge to his illegal sentence. His argument is two-

fold: (1) the sentence on one of his sexual assault convictions (count

nine) should have run consecutively to the sentences on his other

convictions under section 18-1.3-1004(5)(a), C.R.S. 2025;3 and

2 Vreeland suggests that “prejudice can be presumed,” but he

devotes only one sentence of his opening brief to this argument and
cites no supporting case law. We decline to address this
undeveloped contention. See People v. Romero, 2015 COA 7, ¶ 53.
3 Vreeland acknowledges in his opening brief that his argument on

this issue may result in a longer sentence, explaining that “[e]ven if
a longer sentence results, it does not change the fact that [he] is
suffering from an illegal sentence.”

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(2) the trial court failed to exercise judicial discretion when it

declined to impose concurrent sentences on the subset of

convictions related to each of the two victims, with the two

“batches” of sentences running consecutively.

A. Additional Background

¶ 46 In October 2008, the trial court sentenced Vreeland to an

indeterminate sentence of twenty-four years to life on count nine

under the Colorado Sex Offender Lifetime Supervision Act of 1998

(SOLSA), §§ 18-1.3-1001 to -1012, C.R.S. 2025, and to an aggregate

336-year sentence on the other counts. The court’s indeterminate

sentence on count nine ran concurrently with the sentences on the

other counts. The 336-year sentence included 48 years each on

counts one through six and count ten, all running consecutively to

one another. Vreeland’s determinate sentences on the remaining

counts ran concurrently to the 336-year sentence.

¶ 47 In June 2025, while this appeal was pending in our court, the

postconviction court purported to alter Vreeland’s sentence on

count nine so that it ran consecutively, rather than concurrently, to

his related conviction on count eight for sexual exploitation of

children. The court said it was entering its amended sentence

20
“pursuant to” section 18-1.3-1004(5)(a). The court also

characterized its amended sentence as a “clerical” correction of the

mittimus under Crim. P. 36.

B. Count Nine

¶ 48 We first address whether the postconviction court possessed

jurisdiction in June 2025 to amend Vreeland’s sentence on count

nine while his appeal was pending in this court. See People v.

S.X.G., 2012 CO 5, ¶ 9 (appellate court may raise jurisdictional

defects sua sponte). We conclude that it didn’t. After a party has

perfected an appeal of a final judgment, the trial court lacks

jurisdiction to entertain any motion for an order affecting the

judgment. People v. Dist. Ct., 638 P.2d 65, 66 (Colo. 1981); see also

Molitor v. Anderson, 795 P.2d 266, 269 (Colo. 1990) (“[T]he filing of a

notice of appeal divests a trial court of authority to consider matters

of substance affecting directly the judgment appealed from.”). A

defendant’s sentence is part of the judgment of conviction. Crim. P.

32(b)(3).

¶ 49 In this appeal, Vreeland challenged multiple aspects of his

sentence, including whether the sentence on count nine should run

concurrently with or consecutively to his sentences on the other

21
counts. Given the scope of his challenge, Vreeland’s notice of

appeal, filed well before the postconviction court’s June 2025 order,

divested the court of jurisdiction to consider matters directly

affecting his sentence. See Molitor, 795 P.2d at 269. As a result,

the portion of the June 2025 order amending Vreeland’s sentence

on count nine is void. See People v. Jones, 631 P.2d 1132, 1133

(Colo. 1981).

¶ 50 The postconviction court’s characterization of the amendment

as a “clerical” correction under Crim. P. 36 doesn’t change our

conclusion. Crim. P. 36 doesn’t allow a trial court to amend a

sentence itself; rather, the rule permits the court to make

“perfunctory changes” so that the judgment conforms to the

sentence actually imposed. People v. Wood, 2019 CO 7, ¶ 39

(quoting People v. Emeson, 500 P.2d 368, 369 (Colo. 1972)).

¶ 51 Here, the trial court’s original sentence on count nine ran

concurrently with Vreeland’s sentences on the other counts.

Attempting to alter the sentence on count nine so that it now runs

consecutively to the other sentences doesn’t constitute a mere

perfunctory change, so Crim. P. 36 doesn’t apply. See id.

22
¶ 52 As to the merits of Vreeland’s sentencing contentions, the

People agree with Vreeland’s first sentencing argument in part.

They assert that section 18-1.3-1004(5)(a) required the trial court to

impose a sentence on count nine that ran consecutively to

Vreeland’s related conviction on count eight for sexual exploitation

of children, reasoning that those two offenses arose from the same

incident. The People disagree, however, that Vreeland’s

indeterminate sentence on count nine must run consecutively to his

remaining sentences.

¶ 53 A sentencing court ordinarily has discretion to impose either

concurrent or consecutive sentences when the defendant is

convicted of multiple offenses. Juhl v. People, 172 P.3d 896, 899

(Colo. 2007). But under section 18-1.3-1004(5)(a), which has

remained unchanged since Vreeland’s offenses, the trial court must

impose consecutive sentences in SOLSA cases involving multiple

convictions arising from the “same incident” if the court imposes an

indeterminate prison sentence for the sex offense.

¶ 54 We decline to disturb the trial court’s sentence on count nine.

Vreeland doesn’t point us to any portions of the record establishing

that his conduct underlying count nine and the remaining counts

23
occurred as part of a single incident. See C.A.R. 28(a)(7)(B)

(appellant’s opening brief must contain “citations to the authorities

and parts of the record on which the appellant relies”).

¶ 55 While the People come closer on the narrower question of

whether Vreeland’s conduct underlying counts eight and nine

occurred as part of a single incident, their supporting record

citations also don’t show an illegal sentence. Instead of pointing us

to evidence introduced at trial, the People rely on the prosecution’s

closing argument, the charging information, pretrial pleadings, and

statements supporting law enforcement’s request for an arrest

warrant. Absent “affirmative evidence” showing otherwise, we

presume that the trial court didn’t err when imposing sentence.

LePage v. People, 2014 CO 13, ¶ 15; cf. Juhl, 172 P.3d at 900

(explaining, in the identical-evidence context, that the “mere

possibility” that identical evidence may support two convictions

isn’t sufficient to remove the trial court’s sentencing discretion; the

evidence must support “no other reasonable inference than that the

convictions were based on identical evidence”).

¶ 56 Accordingly, we discern no basis for disturbing the trial court’s

original sentence on count nine.

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C. Judicial Discretion at Sentencing

¶ 57 Vreeland’s contention that the trial court failed to exercise

appropriate discretion at sentencing to impose concurrent

sentences on all convictions corresponding to a single victim

constitutes an illegal manner claim under Crim. P. 35(a). See

People v. Swainson, 674 P.2d 984, 986 (Colo. App. 1983), rev’d on

other grounds, 713 P.2d 479, 480 (Colo. 1986).

¶ 58 An illegal manner claim must be filed “within the time

provided [in Crim. P. 35(b)] for the reduction of sentence.”

Crim. P. 35(a). Where, as here, the defendant filed a direct appeal

of the judgment, they must file their illegal manner claim “within

126 days (18 weeks) after entry of any order or judgment of the

appellate court denying review or having the effect of upholding a

judgment of conviction or sentence.” Crim. P. 35(b)(3).

¶ 59 The division in Vreeland I issued its mandate affirming

Vreeland’s convictions on January 28, 2014. But Vreeland didn’t

file his illegal manner claim until March 4, 2021, more than seven

years later. Accordingly, Vreeland’s illegal manner claim is

untimely.

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VII. Word Limitations

¶ 60 Finally, Vreeland contends that his right to due process has

been violated because courts on direct appeal and during the

postconviction phase have enforced word limits in briefs (including

in this appeal), requiring that he abandon certain arguments.

¶ 61 To the extent Vreeland challenges word limits imposed in

either Vreeland I or Vreeland II, those claims either were brought or

could have been brought in those proceedings. See Vreeland II,

¶ 36. They are therefore barred as successive. Crim. P. 35(c)(3)(VI),

(VII).

¶ 62 To the extent Vreeland challenges restrictions imposed by the

postconviction court related to his most recent petition for

postconviction relief, he fails to identify those restrictions with

specificity, so we don’t address them. See Romero, ¶ 53.

¶ 63 We also aren’t convinced that Vreeland was denied a fair

opportunity to present his contentions of error in this appeal. See

People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003)

(“Procedural due process . . . requires notice and a fair opportunity

to be heard.”). Although this court denied Vreeland leave to file an

oversized 12,708-word opening brief, he doesn’t identify any specific

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argument that he was forced to abandon as a result. See C.A.R.

28(g) (an opening brief is limited to 9,500 words).

¶ 64 Moreover, having reviewed Vreeland’s briefs in detail, we

conclude that certain portions could have been “editorially revised

to a more concise form without any loss, and probably with

significant gain, in impact.” People v. Galimanis, 728 P.2d 761, 763

(Colo. App. 1986); see also Watts v. Thompson, 116 F.3d 220, 224

(7th Cir. 1997) (appellate court’s enforcement of page limits is a

“rather ordinary practice” and didn’t amount to a due process

violation).

¶ 65 Accordingly, we perceive no due process violation.

VIII. Disposition

¶ 66 We affirm the order.

JUDGE WELLING and JUDGE GOMEZ concur.

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