Peo v. Rosales

24CA0331 Peo v Rosales 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0331
Jefferson County District Court No. 01CR3022
Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Luque Rosales,

Defendant-Appellant.

ORDER AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Martinez*, and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 28, 2026

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado for Defendant-Appellant

*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, Daniel Luque Rosales, appeals the postconviction

court’s order denying his most recent Crim. P. 35(c) motion. We

affirm.

I. Background

¶2 In 2002, a jury found Rosales guilty of, among other offenses,

two counts of first degree murder and the trial court sentenced him

to life in prison without the possibility of parole. On direct appeal,

a division of this court affirmed the judgment. See People v.

Rosales, 134 P.3d 429 (Colo. App. 2005) (Rosales I).

¶3 In May 2007, Rosales filed his first pro se Crim. P. 35(c)

motion, raising numerous postconviction claims and requesting

that postconviction counsel be appointed (the May 2007 motion).

Later that month, the trial court issued a written order saying,

“After reviewing Mr. Rosales’ motion, I believe it is appropriate to

appoint counsel for Mr. Rosales, who is indigent. If the appointed

counsel determines that there is merit to Mr. Rosales’ [motion], I

will grant leave to amend the [motion] by Mr. Rosales’ counsel” (the

May 2007 order).

¶4 In the appeal currently before us, the parties dispute whether

the trial court actually appointed postconviction counsel, or instead

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merely expressed an intent to do so in the May 2007 order. What is

clear is that no attorney ever entered an appearance to represent

Rosales on the May 2007 motion.

¶5 Then, in August 2007 — two and a half months after

expressing at least an intent to appoint postconviction counsel —

the trial court changed course by issuing a written order summarily

denying the May 2007 motion (the August 2007 order). The court

summarized its ruling as follows:

After carefully considering Mr. Rosales’
multiple contentions and engaging in yet
another review of his file and the trial record, I
conclude that no hearing on his motion is
necessary because the file and the record do
not support his allegations. On the contrary,
they clearly establish that Mr. Rosales is not
entitled to the relief he seeks.

Notably, the court also wrote, “For the same reason, I deny Mr.

Rosales’ motion for appointment of postconviction counsel.”

¶6 On appeal, a division of this court affirmed the August 2007

order. See People v. Rosales, (Colo. App. No. 07CA1881, Mar. 26,

2009) (not published pursuant to C.A.R. 35(f)) (Rosales II). In terms

of the postconviction counsel issue, the division did not mention the

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May 2007 order; it only mentioned the August 2007 denial of

counsel. See id.

¶7 In 2016, Rosales filed his second pro se Crim. P. 35(c) motion

(the 2016 motion). As pertinent here, he raised ineffective

assistance claims against the public defender’s office for not

appearing on his behalf and filing a supplement to the May 2007

motion.

¶8 The postconviction court issued a written order summarily

denying the 2016 motion. As pertinent here, the court found that,

despite the trial court’s May 2007 order, it never actually appointed

postconviction counsel to represent Rosales. The postconviction

court thus rejected Rosales’s ineffective assistance claims against

the public defender’s office because a public defender was never

appointed to represent him.

¶9 On appeal, a division of this court affirmed. See People v.

Rosales, (Colo. App. No. 17CA0685, Oct. 3, 2019) (not published

pursuant to C.A.R. 35(e)) (Rosales III). As pertinent here, the

division first held that any claim challenging the August 2007 order

had to have been brought in the Rosales II appeal. Id. at ¶ 21.

Nevertheless, the division held in the alternative that (1) the trial

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court never appointed counsel to represent Rosales on the May

2007 motion, and (2) the court had the discretion to reconsider the

May 2007 order by issuing the August 2007 order denying Rosales’s

request for postconviction counsel. Id. at ¶¶ 22, 26.

¶ 10 In 2023, Rosales (this time through counsel) filed his third

Crim. P. 35(c) motion, the motion at issue here (the 2023 motion).

In it, he “raise[d] only one issue — that the district court lacked

jurisdiction when it [denied] Mr. Rosales’s original pro se Crim. P.

35(c) motion” in August 2007. In support of this “jurisdictional”

claim, he asserted — contrary to the findings of the postconviction

court and the Rosales III division — that the trial court did appoint

postconviction counsel to represent him on the May 2007 motion.

He argued that the postconviction court was therefore required to

follow the procedures outlined in Crim. P. 35(c)(3)(V), and the court

did not have “jurisdiction” to issue the August 2007 order without

having followed those procedures.

¶ 11 The postconviction court construed the 2023 motion as a

motion to reconsider the August 2007 order, not as a Crim. P. 35(c)

motion, and denied the motion without a hearing. Unlike the

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postconviction court, we construe the 2023 motion as a separate

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

II. Standard of Review

¶ 12 We review de novo a postconviction court’s decision to deny a

Crim. P. 35(c) motion without an evidentiary hearing. People v.

Cali, 2020 CO 20, ¶ 14.

III. Analysis

¶ 13 Rosales is, in essence, again challenging the trial court’s

decision in August 2007 to deny the May 2007 motion, including

his request for postconviction counsel, despite that the court had

previously expressed an intent to appoint postconviction counsel for

him. Rosales appears to have simply repackaged his claim as a

“jurisdictional” one. See People v. Rodriguez, 914 P.2d 230, 249

(Colo. 1996) (“[A]n argument raised under Rule 35 which does not

precisely duplicate an issue [previously raised] will be precluded if

its review would be nothing more than a second appeal addressing

the same issues on some recently contrived [theory].” (citation

modified)).

¶ 14 Even as a separate jurisdictional claim, Rosales’s new

postconviction claim is barred as successive under Crim. P.

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35(c)(3)(VII) unless one of the exceptions therein is met. The only

exception that might arguably apply here is if Rosales is raising a

claim that the trial court “lacked subject matter jurisdiction.” Crim.

P. 35(c)(3)(VII)(d). We will construe Rosales’s jurisdictional claim as

a subject matter jurisdiction claim.

¶ 15 The claim fails. “‘[S]ubject matter jurisdiction’ concerns the

court’s authority to deal with the class of cases in which it renders

judgment, not its authority to enter a particular judgment within

that class.” People v. C.O., 2017 CO 105, ¶ 24. “In Colorado,

district courts are courts of general jurisdiction, and have original

jurisdiction in ‘all civil, probate, and criminal cases, except as

otherwise provided’ in the constitution.” Wood v. People, 255 P.3d

1136, 1140 (Colo. 2011) (emphasis added) (quoting Colo. Const. art.

VI, § 9).

¶ 16 So, the postconviction court had subject matter jurisdiction to

resolve Rosales’s postconviction motion in this criminal case.

Where “[a] court has already obtained subject matter jurisdiction, a

later failure to follow statutory requirements does not divest the

court of subject matter jurisdiction.” C.O., ¶ 24 (citation omitted).

And like a failure to follow statutory requirements, the trial court’s

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alleged failure to follow the procedures in Crim. P. 35(c)(3)(V) “d[id]

not divest the court of subject matter jurisdiction.” C.O., ¶ 24.1

IV. Disposition

¶ 17 The order is affirmed.

JUSTICE MARTINEZ and JUDGE TAUBMAN concur.

1 Although Crim. P. 35(c)(3)(VII)(d) excepts only claims challenging

“subject matter jurisdiction,” we note that the trial court also had
personal jurisdiction over Rosales because he is a party to the case
and he appeared in court at his preliminary hearing. See Chatfield
v. Colo. Ct. of Appeals, 775 P.2d 1168, 1173 (Colo. 1989) (In a
criminal case, “[t]he presence of the defendant in court is sufficient
to confer jurisdiction over his person.”); see also People v. C.O.,
2017 CO 105, ¶ 22 (“A court’s jurisdiction generally consists of two
elements: jurisdiction over the subject matter of the issue to be
decided (subject matter jurisdiction), and jurisdiction over the
parties (personal jurisdiction).”).

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