Peo v. Gordon

24CA1995 Peo v Gordon 02-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1995
Douglas County District Court No. 16CR1099
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Todd Michael Gordon,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE HAWTHORNE*
Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 12, 2026

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Todd Michael Gordon, 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. 2025.
¶1 Defendant, Todd Michael Gordon, appeals the postconviction

court’s order denying his latest postconviction motion without a

hearing. We affirm.

I. Background

¶2 The People charged Gordon with sexual assault, stalking, and

violation of a protection order. In exchange for these charges being

dismissed, Gordon pleaded guilty to an added misdemeanor charge

of unlawful sexual contact – no consent. In 2017, the district court

sentenced him, under the plea agreement, to sixty days in jail and

four years of probation with sex offender terms and conditions.

Gordon later admitted that he violated probation and the court

resentenced him to two years in jail with 144 days of presentence

confinement credit.

¶3 Gordon then timely filed his first pro se Crim. P. 35(c) motion

seeking to withdraw his plea based on ineffective assistance of

counsel. He claimed that plea counsel had failed to investigate and

develop his defense and had not properly advised him on the plea

offer’s consequences. The postconviction court denied the motion

without a hearing. Gordon appealed and a division of this court

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affirmed. People v. Gordon, (Colo. App. No. 20CA0385, March 3,

2022) (not published pursuant to C.A.R. 35(e)) (Gordon I).

¶4 In 2024, Gordon filed the postconviction motion subject to this

appeal under Crim. P. 35(a) and (c). He asserted, for the first time,

that (1) his sentence was illegal; (2) there was newly discovered

exculpatory evidence; and (3) Counterman v. Colorado, 600 U.S. 66

(2023), supplied a new rule of constitutional law previously

unavailable to him. He also reasserted his claims of ineffective

assistance based on plea counsel’s failure to investigate and develop

his defense and failure to properly advise him on the plea offer’s

consequences.

¶5 The postconviction court denied the motion, concluding that

Gordon failed to articulate why his sentence was illegal and that his

Crim. P. 35(c) claims were time barred and successive.

II. Undeveloped Crim. P. 35(a) Claim

¶6 We agree with the postconviction court that Gordon failed to

articulate a cognizable Crim. P. 35(a) claim.

¶7 A sentence is illegal and “not authorized by law” for purposes

of Crim. P. 35(a) when it is inconsistent with the statutory scheme.

Tennyson v. People, 2025 CO 31, ¶ 25; see also People v. Baker,

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2019 CO 97M, ¶ 19 (“[A] sentence is not authorized by law within

the meaning of Rule 35(a) if any of the sentence’s components fail to

comply with the sentencing statutes.”). In contrast, a challenge to

the constitutionality of a conviction or sentence falls under Crim. P.

35(c). See People v. Collier, 151 P.3d 668, 670 (Colo. App. 2006).

¶8 Gordon argues that his sentence was illegal and “is subject to

correction.” But he does not explain how his sentence was

inconsistent with the applicable statutory scheme, or what

component of his sentence requires correction. Thus, “[i]n light of

the . . . cursory[] and undeveloped manner in which [Gordon]

presents this . . . assertion, we decline to address it.” People v.

Gingles, 2014 COA 163, ¶ 29; see also People v. Simpson, 93 P.3d

551, 555 (Colo. App. 2003) (“We decline to consider a bald legal

proposition presented without argument or development . . .”).

¶9 To the extent Gordon argues that his sentence was illegal

because “[i]neffective counsel is not authorized by law,” ineffective

assistance of counsel claims are constitutional claims cognizable

under Crim. P. 35(c), not Crim. P. 35(a). See Collier, 151 P.3d at

670 (the substance of a motion, not its label, determines whether it

falls under Crim. P. 35(a) or Crim. P. 35(c)); see also People v.

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Sifuentes, 2017 COA 48M, ¶ 15 (“Ineffective assistance of counsel

during plea bargaining may constitute an adequate ground for

postconviction relief under Crim. P. 35(c).”).

III. Crim. P. 35(c) Claims

¶ 10 We review de novo a postconviction court’s denial of a Crim. P.

35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

¶ 11 We broadly construe pleadings filed by unrepresented litigants

“to ensure that they are not denied review of important issues

because of their inability to articulate their argument like a lawyer.”

Jones v. Williams, 2019 CO 61, ¶ 5. But we will not rewrite an

unrepresented litigant’s pleadings or act as his advocate. Cali,

¶ 34.

A. Gordon’s Motion Was Untimely

¶ 12 Gordon concedes that his motion was filed “outside the

statutory eighteen-month allowance for requesting postconviction

relief” on his misdemeanor conviction. See § 16-5-402, C.R.S. 2025

(collateral attack on a misdemeanor conviction must be filed within

eighteen months following the date of conviction). However, he

argues that his motion was not time barred because of newly

discovered evidence.

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¶ 13 The deadline for filing a postconviction motion may be

extended if “the failure to seek relief within the applicable time

period was the result of circumstances amounting to justifiable

excuse or excusable neglect.” § 16-5-402(2)(d). To obtain a

hearing, a defendant must allege facts that, if true, would establish

justifiable excuse or excusable neglect. Close v. People, 180 P.3d

1015, 1019 (Colo. 2008); People v. Chavez-Torres, 2016 COA 169M,

¶ 12, aff’d, 2019 CO 59. Newly discovered evidence may establish

justifiable excuse or excusable neglect for an untimely filing. § 16-

5-402(2)(d); see also People v. Clouse, 74 P.3d 336, 340 (Colo. App.

2002) (defendant’s belated claim of newly discovered evidence did

not support a finding of justifiable excuse or excusable neglect

where the evidence was known to him before his trial).

¶ 14 Gordon argues that justifiable excuse existed for the untimely

filing of his motion because his medical condition at the time of the

offense — low testosterone resulting in erectile dysfunction —

constitutes new evidence. He claims that his medical records from

about October 2016 would have shown that, based on his medical

condition, he was “incapable” of committing the offense.

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¶ 15 The record, however, shows that this evidence is not “new.”

Gordon effectively conceded in his motion that he knew of this

medical condition at the time of his offense, writing that “because of

his severe ED, he feared his body’s lack of response” at the time of

the offense, but “surprisingly his body reacted.” We agree with the

postconviction court that Gordon was aware of his medical

condition and “had a responsibility to provide this information to

his counsel.” See Farrar v. People, 208 P.3d 702, 706 (Colo. 2009)

(“[E]vidence will be considered newly discovered for purposes of a

motion for new trial only if it was both unknown to the defendant

and his counsel in time to be meaningfully confronted at trial and

unknowable through the exercise of due diligence.”).

¶ 16 So, Gordon’s medical condition at the time of the offense does

not constitute newly discovered evidence and does not show

justifiable excuse or excusable neglect for the untimely filing of his

most recent postconviction motion.

B. Gordon’s Claims Were Successive

¶ 17 We also agree with the postconviction court that Gordon’s

ineffective assistance of counsel claims were successive and

therefore procedurally barred.

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¶ 18 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 a

successive Crim. P. 35(c) claim that was, or could have been, raised

and resolved in a prior appeal or postconviction proceeding. Crim.

P. 35(c)(3)(VI), (VII); see People v. Rodriguez, 914 P.2d 230, 249

(Colo. 1996). An argument that does not precisely duplicate an

issue that was previously raised and resolved will be precluded if its

review is nothing more than a second appeal addressing the same

issues but on a recently contrived constitutional theory. Rodriguez,

914 P.2d at 249.

¶ 19 The ineffective assistance of counsel claims Gordon raised in

his most recent postconviction motion — that plea counsel had

failed to investigate and develop his defense and had failed to

adequately advise him of the consequences of pleading guilty — are

the same claims that he raised in his first postconviction motion.

See Gordon I. Thus, unless an exception applies, his claims are

procedurally barred as successive. See Crim. P. 35(c)(3)(VI).

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¶ 20 Gordon argues that an exception applies because Counterman,

in his view, announced a new rule of constitutional law which

invalidated his stalking charge. See Crim. P. 35(c)(3)(VII)(c). But

the stalking charge was dismissed as part of Gordon’s plea

agreement, and, as the postconviction court concluded, a dismissed

charge cannot be “subject to a postconviction constitutional

challenge.” See People v. Kazadi, 284 P.3d 70, 75 (Colo. App. 2011)

(“Under Crim. P. 35(c)(3), a defendant must claim a right either ‘to

be released’ or ‘to have a judgment of conviction set aside’ on one of

the grounds enumerated in Crim. P. 35(c)(2).” (emphasis added)).

¶ 21 To the extent Gordon seeks to overcome the successiveness

bar based on newly discovered evidence, his medical condition, as

noted above, does not constitute “evidence that could not have been

discovered previously through the exercise of due diligence.” Crim.

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

¶ 22 Thus, Gordon’s remaining claims are successive because he

raised them, or could have raised them, in his first postconviction

motion, and he does not assert any valid exceptions to the

successiveness bar in his Crim. P. 35(c) motion or in his opening

brief. See People v. Taylor, 2018 COA 175, ¶ 17 (holding that,

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because the language in Crim. P. 35(c)(3)(VII) is “mandatory rather

than permissive,” the court must deny any successive claims unless

one of the five exceptions applies).

C. Postconviction Counsel

¶ 23 Gordon argues that the postconviction court should have

appointed counsel to assist him on his motion, but the right to

postconviction counsel is triggered only if the motion survives the

postconviction court’s initial review under Crim. P. 35(c)(3)(IV). See

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

¶ 24 Because the postconviction court properly denied the motion

as time barred and successive, the court also properly concluded

that Gordon was not entitled to postconviction counsel. See People

v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (“A trial court may

decline to appoint counsel in connection with a motion that may be

denied as a matter of law without an evidentiary hearing.”).

IV. Disposition

¶ 25 The order is affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.

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