Peo v. Hill

24CA2277 Peo v Hill 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2277
City and County of Denver District Court No. 06CR4898
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Luther Hill,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE MEIRINK
J. Jones and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 21, 2026

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

Luther Hill, Pro Se
¶1 Defendant, Luther Hill, appeals the postconviction court’s

order denying his most recent postconviction motion. We affirm.

I. Background

¶2 In 2008, a jury found Hill guilty of second degree kidnapping,

sexual assault, unlawful sexual contact, and possession of a

controlled substance. In a separate proceeding, the trial court

found that the prosecution had proven seven habitual criminal

counts, and it sentenced Hill to an aggregate term of 174 years to

life in the custody of the Department of Corrections.

¶3 On direct appeal, a division of this court affirmed the

judgment of conviction and sentence. See People v. Hill, (Colo. App.

No. 09CA0021, May 9, 2013) (not published pursuant to C.A.R.

35(f)). The mandate was issued in 2014.

¶4 In 2017, Hill filed his first Crim. P. 35(c) motion, raising

numerous postconviction claims. The trial court denied the motion,

and a division of this court affirmed. See People v. Hill, (Colo. App.

No. 17CA1772, July 25, 2019) (not published pursuant to C.A.R.

35(e)).

¶5 In 2024, the United States Supreme Court held in Erlinger v.

United States that a criminal defendant has the constitutional right

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to have a jury determine whether the defendant’s prior convictions

were committed on different occasions for purposes of a federal

habitual criminal statute, the Armed Career Criminal Act (federal

ACCA). See 602 U.S. 821 (2024); see also People v. Gregg, 2025 CO

57, ¶¶ 15-26 (applying Erlinger to the pre-2025 version of

Colorado’s habitual criminal statute).1

¶6 Later that year, Hill filed the pro se postconviction motion at

issue, which he labeled a Crim. P. 35(a) motion “pursuant to the

Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and Erlinger v. United States.” In it, he argued that,

based on Erlinger, he had the right to have a jury determine

whether his prior convictions arose out of separate and distinct

criminal episodes under Colorado’s habitual criminal statute. And

near the end of his motion, he asserted, “As Defendant’s habitual

criminal charges were tried by a judge and not a jury, the

1 In 2025, the General Assembly amended Colorado’s habitual

criminal statute to require a jury, rather than the district court, to
determine whether the defendant has the alleged previous felony
convictions, whether the convictions were separately brought and
tried, and whether the convictions arose out of separate and
distinct criminal episodes. See Ch. 344, sec. 1, § 18-1.3-803(1),
2025 Colo. Sess. Laws 1866.

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convictions and sentences which resulted therefrom were obtained

in violation of the United States Constitution, the sentences are

therefore not authorized by law, are in fact illegal sentences, and

must therefore be vac[a]ted.”

¶7 The postconviction court denied the motion without a hearing,

concluding, among other things, that Hill’s sentences were

authorized by law under Crim. P. 35(a) and Erlinger does not apply

retroactively on collateral review.

II. Analysis

¶8 We first address the foundational issue of whether Hill’s

postconviction claim is properly construed as a Crim. P. 35(a) claim

or a Crim. P. 35(c) claim.

¶9 Hill contends that his sentence is “illegal” under Crim. P.

35(a). However, a sentence is “not authorized by law,” in other

words illegal, under Crim. P. 35(a) “if any of the sentence’s

components fail to comply with the sentencing statutes.” People v.

Baker, 2019 CO 97M, ¶ 19 (emphasis added); see also People v.

Bice, 2023 COA 98, ¶ 12 (“A sentence is illegal, or ‘not authorized

by law,’ when it is ‘inconsistent with the sentencing scheme

established by the legislature.’” (citation omitted)).

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¶ 10 But the Erlinger holding was grounded in a criminal

defendant’s rights under the Fifth and Sixth Amendments of the

United States Constitution. See 602 U.S. at 825. And indeed, as

Hill claimed in his postconviction motion, the issue he presents on

appeal is “[w]hether [his] Fifth and Sixth Amendment rights were

violated when he was subject to an increased maximum sentence

based on the trial court’s finding that his past offenses were

committed on separate occasions.”

¶ 11 Hill is raising a constitutional claim, not an illegal sentence

claim. And “a claim that [a] sentence is unconstitutional . . .

properly falls under Rule 35(c).” Lucero v. People, 2017 CO 49, ¶ 26

(also stating that the party presentation principle “does not prevent

a court from properly characterizing an issue that has been

improperly characterized by a party.”); People v. Collier, 151 P.3d

668, 670 (Colo. App. 2006) (“The substance of a postconviction

motion controls whether it is designated as a Crim. P. 35(a) or 35(c)

motion.”). Therefore, the postconviction motion at issue was a

Crim. P. 35(c) motion, not a Crim. P. 35(a) motion.

¶ 12 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;

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see also People v. Cooper, 2023 COA 113, ¶ 7 (reviewing de novo

whether a case applies retroactively on collateral review). We may

affirm the court’s denial of a Crim. P. 35(c) motion on any ground

supported by the record. See People v. Aarness, 150 P.3d 1271,

1277 (Colo. 2006).

¶ 13 Given that Hill’s motion is a Crim. P. 35(c) motion, the rule

barring successive Crim. P. 35(c) motions and the statute and rule

barring untimely Crim. P. 35(c) motions apply. Unless an

enumerated exception applies, Hill’s postconviction motion was

successive because he could have raised it in his first Crim. P. 35(c)

motion filed in 2017, as we explain below regarding Hill’s argument

that Erlinger simply extended the rule from Apprendi v. New Jersey,

530 U.S. 466 (2000). See Crim. P. 35(c)(3)(VII). And unless an

enumerated exception applies, Hill’s postconviction motion was

time barred because he filed it in 2024, well beyond the three-year

deadline in 2017 from when the mandate was issued in 2014. See

§ 16-5-402(1), (1.5), C.R.S. 2025; Crim. P. 35(c)(3)(I); Hunsaker v.

People, 2021 CO 83, ¶ 36; Aarness, 150 P.3d at 1277.

¶ 14 That brings us to the issue of whether any such exception

applies here to the rule barring successive Crim. P. 35(c) motions

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and the statute and rule barring untimely Crim. P. 35(c) motions.

Hill did not specifically allege in his postconviction motion that any

such exception applies (instead, he erroneously asserted that he

was raising an “illegal sentence” claim under Crim. P. 35(a)).

However, in the motion, Hill did request that the postconviction

court “accept and consider this motion based on the recency of the

Supreme Court’s opinion” in Erlinger.

¶ 15 Because we liberally construe a pro se litigant’s pleadings, see

Cali, ¶ 34, we will construe Hill’s request as a sufficient allegation

that the exception to successiveness in Crim. P. 35(c)(3)(VII)(c)

applies here; namely, that his claim is “based on a new rule of

constitutional law that was previously unavailable, if that rule

should be applied retroactively to cases on collateral review.” That

exception can also qualify as an exception to the time bar in section

16-5-402(1) — that “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); see People v. Rainer,

2013 COA 51, ¶ 28 (“A reviewing court has the discretion to address

the merits of an untimely motion for postconviction relief if the

motion is premised on newly arising authority of constitutional

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magnitude” that applies retroactively to cases on collateral review.”),

rev’d on other grounds, 2017 CO 50. Hill argues, without

explanation, that “retroactivity is immaterial,” but if it is, then Hill

doesn’t meet any exception to the rule barring successive Crim. P.

35(c) motions and the statute and rule barring untimely Crim. P.

35(c) motions.

¶ 16 Hill argues that Erlinger doesn’t need to be retroactive for him

to obtain relief on his Crim. P. 35(c) claim because Erlinger simply

extended the rule from Apprendi, which stands for the proposition

that only a jury may find facts that increase “the prescribed range

of penalties to which a criminal defendant is exposed.” 530 U.S. at

490. Hill argues that he should obtain relief on his Crim. P. 35(c)

claim based solely on Apprendi. If he is correct, however, that

means he should have raised this claim based on Apprendi in his

first Crim. P. 35(c) motion filed in 2017. He failed to do so. Such a

claim would therefore be barred as successive. See Crim. P.

35(c)(3)(VII).

¶ 17 That brings us to the question of whether Erlinger applies

retroactively to cases on collateral review (in other words, whether

Erlinger applies retroactively after the judgment has become final,

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which in this case occurred when the mandate was issued from

Hill’s direct appeal, see Hunsaker, ¶ 36). A division of this court

recently answered that question in People v. Medina, 2026 COA 36.

After thoroughly analyzing the issue, the division held that the rule

announced in Erlinger does not apply retroactively on collateral

review. Id. at ¶ 37.

¶ 18 For the reasons explained below, we conclude that Medina’s

holding is correct, and we follow it here. New constitutional rules of

criminal procedure generally do not apply retroactively to cases on

collateral review. Schriro v. Summerlin, 542 U.S. 348, 352 (2004);

Edwards v. People, 129 P.3d 977, 980 (Colo. 2006). “[R]ules that

regulate only the manner of determining the defendant’s culpability

are procedural.” Schriro, 542 U.S. at 353. And “[r]ules that allocate

decisionmaking authority” between a judge and a jury “are

prototypical procedural rules.” Id.

¶ 19 The question in Erlinger — whether a criminal defendant has

the constitutional right to have a jury, rather than a judge,

determine whether the defendant’s prior convictions were

committed on different occasions — is procedural because it

pertains only to the manner of adjudicating habitual criminal

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charges, specifically, whether a judge or a jury should adjudicate

them. See Medina, ¶ 33; see also Schriro, 542 U.S. at 355-58

(holding that a rule requiring a jury, rather than a judge, to find an

aggravating circumstance necessary for imposition of the death

penalty is procedural); People v. Johnson, 142 P.3d 722, 724-25

(Colo. 2006) (holding that the rule from Blakely v. Washington, 542

U.S. 296 (2004), is procedural).

¶ 20 There is an “extremely narrow” exception to the rule

precluding retroactive application of procedural rules on collateral

review: a “watershed rule of criminal procedure . . . without which

the likelihood of an accurate conviction is seriously diminished.”

Schriro, 542 U.S. at 352 (citation omitted). We will assume, without

deciding, that the exception continues to apply under Colorado law.

See Medina, ¶ 23 n.4 (noting that the Colorado Supreme Court has

not determined whether the exception continues to apply in

Colorado state courts, despite the fact that federal courts no longer

recognize the exception).

¶ 21 However, as explained in Medina, ¶ 35, the United States

Supreme Court and Colorado Supreme Court have both held that

the watershed exception did not apply in cases involving the

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allocation of decision-making authority between a judge and a jury.

See Schriro, 542 U.S. at 355-58; Johnson, 142 P.3d at 726-28. Like

the division in Medina, ¶ 36, we conclude that the rule from

Erlinger, which also involves the allocation of decision-making

authority between a judge and a jury, does not fall within the

watershed exception. So, like Medina, ¶ 37, we hold that the

Erlinger rule doesn’t apply retroactively to cases on collateral review.

¶ 22 Hill’s reliance on Welch v. United States, 578 U.S. 120 (2016),

and Johnson v. United States, 576 U.S. 591 (2015), is misplaced. In

Johnson v. United States, the United States Supreme Court held

that the phrase “violent felonies” in the federal ACCA to refer to the

types of convictions that qualify as prior convictions was

unconstitutionally vague. See 578 U.S. at 593-606. And in Welch,

the United States Supreme Court held that its decision in Johnson

announced a substantive rule that applies retroactively to cases on

collateral review because Johnson changed the “substantive reach”

of the federal ACCA by “altering ‘the range of conduct or the class of

persons that the [Act] punishes.’” Welch, 578 U.S. at 129 (quoting

Schriro, 542 U.S. at 353).

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¶ 23 Although Johnson v. United States and Erlinger pertain to the

federal ACCA, they’re distinguishable from each other because the

former announced a substantive rule and the latter announced a

procedural rule. The meaning of the phrase “violent felonies” — the

issue in Johnson v. United States — was substantive because it

affected what and who was punishable under the ACCA. In

contrast, the question in Erlinger was purely procedural and

addressed how a habitual criminal case needs to be tried in

Colorado courts.

¶ 24 Because the Erlinger rule doesn’t apply retroactively to cases

on collateral review, the exception to the rule barring successive

Crim. P. 35(c)(3)(VII)(c) motions doesn’t apply to Hill’s postconviction

motion. The postconviction motion is barred as successive, and it

is also time barred.

III. Disposition

¶ 25 The order is affirmed.

JUDGE J. JONES and JUDGE LUM concur.

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