Peo v. Moreno

22CA1329 Peo v Moreno 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1329
Weld County District Court No. 13CR1326
Honorable Timothy Kerns, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Corey Louie Moreno,

Defendant-Appellant.

APPEAL DISMISSED IN PART
AND ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Gomez and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

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

Patrick R. Henson, Alternate Defense Counsel, Chelsea A. Carr, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Corey Louie Moreno appeals the postconviction court’s order

granting in part and denying in part his combined Crim. P. 35(b)

and 35(c) motion. The court granted the motion in part by reducing

Moreno’s prison sentence by five years. We dismiss the appeal in

part and otherwise affirm.

I. The District Court Proceedings

A. The Proceedings Through Sentencing (2013-2014)

¶2 In 2013, the prosecution charged Moreno with two counts of

first degree murder, seven counts of attempted first degree murder,

one count of first degree assault, seven crime of violence counts,

and one count of violating the Colorado Organized Crime Control

Act. The district court appointed alternate defense counsel (plea

counsel) to represent him.

¶3 The parties later entered into a plea agreement under which

Moreno agreed to plead guilty to an added count of second degree

murder, the prosecution agreed to dismiss the original charges, and

the parties stipulated to a sentencing range of twenty-five to forty

years in the custody of the Department of Corrections (DOC).

¶4 In October 2014, the district court sentenced Moreno to forty

years in the custody of the DOC.

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¶5 Moreno did not file a direct appeal.

B. The Original Rule 35(b) Motion and Investigation by
Postconviction Counsel (2015-2021)

¶6 In February 2015, plea counsel filed a motion to reconsider

Moreno’s sentence within the 126-day deadline under Crim. P.

35(b). Plea counsel clarified that he filed the motion “to satisfy the

[Rule 35(b)] deadline” and asked the district court to “set a hearing

on the reconsideration motion on a date certain, but

not . . . consider the merits of this motion until after all supporting

documents can be supplied to the Court.”

¶7 However, according to the record before us, plea counsel never

filed any further documents in support of the Rule 35(b) motion; the

only document he filed thereafter was a November 2015 transcript

request form requesting a copy of the sentencing hearing transcript.

There is also no indication in the record that plea counsel ever

formally withdrew from representing Moreno in the case.

¶8 Further, there is no indication in the record that the district

court took any action on the Rule 35(b) motion. It never set the

requested hearing or gave plea counsel a deadline to file the

supporting documentation.

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¶9 In December 2018 — approximately four years after

sentencing and the filing of the Rule 35(b) motion — Moreno sent a

pro se letter to the court asking it “to accept [his] request of

ineffective assistance of counsel, because [he] feel[s] there was

inadequate representation in [his] case by [plea] counsel.” The

postconviction court promptly appointed the Public Defender’s

Office (PD’s Office) to represent Moreno on the ineffective assistance

claim, and after the PD’s Office withdrew because of a conflict, the

court appointed new alternate defense counsel.

¶ 10 Moreno’s first postconviction counsel entered her appearance

and filed three requests for extensions of time to investigate

potential postconviction claims on Moreno’s behalf. But in 2020,

Moreno’s first postconviction counsel withdrew and new

postconviction counsel entered her appearance to represent

Moreno. Over the next year and a half, Moreno’s new

postconviction counsel filed six more requests for extensions of time

to investigate potential claims and to file a postconviction motion on

Moreno’s behalf.

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C. Moreno’s Combined Crim. P. 35(b) and 35(c) Motion (2021)

¶ 11 In November 2021 — nearly three years after the original

appointment of the PD’s Office — postconviction counsel filed the

combined supplemental Rule 35(b) and 35(c) motion at issue, along

with numerous exhibits. In the motion, postconviction counsel

requested that the court “engage in a sentence reconsideration,

either upfront based on the pending Rule 35(b) motion before it, or

based on a finding that Mr. Moreno’s [plea] counsel rendered

ineffective assistance of counsel relative to Moreno’s sentence.”

(Emphasis added.)

1. The Rule 35(b) Motion

¶ 12 As to Moreno’s long-pending Rule 35(b) motion, postconviction

counsel argued that “[b]ecause Mr. Moreno’s [plea] counsel filed a

timely Rule 35(b) Motion and this Court has not yet addressed that

Motion, this Court has jurisdiction and is, respectfully, required to

consider it.” Counsel also asserted that the court should consider

the arguments in, and exhibits attached to, the supplemental Rule

35(b) motion.

¶ 13 The exhibits attached to the motion included two reports from

a licensed clinical social worker detailing Moreno’s traumatic

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childhood and rehabilitation in the DOC. According to the first

report, during Moreno’s childhood he suffered from fetal alcohol

syndrome, homelessness, and extensive physical and sexual abuse.

And according to the second report, Moreno had “grown

tremendously” during his time in the DOC, including cofounding

the Reimagine Program, an inmate-led intensive rehabilitation pre-

release program; and serving on the advisory board for the

University of Denver’s Prison Research Innovation Network.

2. The Rule 35(c) Motion

¶ 14 Moreno also raised Rule 35(c) claims in the motion, arguing

that his plea counsel provided ineffective assistance (1) through

errors at the sentencing hearing, (2) by not advising Moreno of his

right to file a direct appeal of his sentence, and (3) by not pursuing

the original Rule 35(b) motion. The motion also requested a

proportionality review of Moreno’s forty-year sentence.

¶ 15 Moreno acknowledged that the Rule 35(c) motion was untimely

because it was filed well beyond the three-year deadline, which had

expired in October 2017. See § 16-5-402(1), C.R.S. 2024. However,

Moreno asserted that he had justifiable excuse or excusable neglect

for missing the deadline because (1) plea counsel did not advise him

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of his right to seek postconviction relief under Rule 35(c); (2) he was

unaware of that right “until the August to September 2017 time

frame,” soon before the October 2017 deadline; and (3) he had been

placed in administrative segregation in July 2017, where he

remained “for many months” and where his access to the law

library was severely limited.

D. The Hearing and Ruling on the Combined
Rule 35(b) and 35(c) Motion (2022)

1. The Rule 35(b) Ruling

¶ 16 According to a minute order issued in early 2022, the

postconviction court set a Rule 35(b) hearing, which was ultimately

held over two days in June 2022. At the hearing, the court

confirmed that it was holding a Rule 35(b) hearing to reconsider

Moreno’s sentence, and that it had reviewed all the materials

submitted with the supplemental Rule 35(b) motion.

¶ 17 Moreno and two of his family members testified at the hearing.

Following their testimony, the defense argued that the court should

reduce Moreno’s sentence to twenty-five years based on the

evidence of his tragic childhood and rehabilitation in the DOC. In

response, the prosecutor emphasized the severity of Moreno’s

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crimes and that his offer for Moreno to plead guilty to one count of

second degree murder was “extremely generous.” However, the

prosecutor conceded that a reduction of Moreno’s sentence to

thirty-five years was warranted because Moreno had gone “above

and beyond” in his efforts to rehabilitate himself in the DOC.

¶ 18 In the postconviction court’s oral ruling, it first said — without

specifically addressing the years-long delay since the original Rule

35(b) motion was filed — that it had the authority to reconsider

Moreno’s sentence under Rule 35(b). The court then emphasized

the severity of Moreno’s crimes and that the original charges could

have resulted in a life sentence in the DOC without the possibility of

parole. It also concluded that the stipulated sentencing range of

twenty-five to forty years reflected some mitigation based on

Moreno’s young age (he was twenty-one years old at the time of his

crimes). The court then balanced the relevant sentencing factors

and concluded that the original imposition of a forty-year sentence

was “extremely reasonable,” and that it would be surprised if any

similarly situated judge would have imposed anything less than

that.

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¶ 19 However, the court concluded that a reduction in Moreno’s

sentence was warranted based on the “substantial new information

in terms of the Reimagine Program, the letters of recommendation

that were filed, [and] what [it] view[ed] as rehabilitation in terms of

that criminal mindset.” The court ultimately decided to reduce

Moreno’s sentence by five years to a sentence of thirty-five years in

the DOC nunc pro tunc to the date of the original sentencing

hearing. In doing so, the court emphasized that it was not simply

following the prosecutor’s recommendation but instead was

exercising its independent discretion in determining the appropriate

sentence on reconsideration.

2. The Effect of the Rule 35(b) Ruling on the Rule 35(c) Claims

¶ 20 At the Rule 35(b) hearing, the court also repeatedly asked

Moreno’s counsel whether its ruling on the Rule 35(b) motion would

render the Rule 35(c) claims moot. Postconviction counsel clarified

that the combined Rule 35(b) and 35(c) motion was solely intended

to challenge Moreno’s sentence, not to undermine the validity of the

plea agreement in any way. However, postconviction counsel said

that there was one particular Rule 35(c) claim that she was not

presently willing to concede the mootness issue, specifically, the

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claim that plea counsel failed to advise Moreno of his right to file a

direct appeal challenging his sentence. The court set a further

status hearing to give counsel time to discuss that issue with

Moreno.

¶ 21 A week later, in early August 2022, Moreno filed a “motion to

vacate [status] hearing and for issuance of final, appealable order.”

The motion recounted that the postconviction court had “addressed

all but arguably one of the claims raised as part of Mr. Moreno’s

Rule 35(c) Motion,” and that the court had “set a status hearing to

address Mr. Moreno’s one arguably remaining Rule 35(c) claim.”

The motion then reported, “After further researching and conferring

with Mr. Moreno regarding that one arguably remaining Rule 35(c)

claim, the Defense respectfully requests the Court vacate the

[August 2022] status hearing and that it otherwise issue a written

final, appealable order respecting Mr. Moreno’s Combined Rule

35(b) and Rule 35(c) Motion.”

¶ 22 Further, a minute order located in the register of actions

indicates that, at a hearing in December 2022, the postconviction

court found that Moreno had voluntarily, knowingly, and

intelligently agreed to withdraw his Rule 35(c) claims. See People v.

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Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (“A court may take judicial

notice of the contents of court records in a related proceeding.”).

II. Analysis

A. The Postconviction Court Had Jurisdiction to Rule on
the Original Rule 35(b) Motion

¶ 23 The People argue that the postconviction court no longer had

jurisdiction in 2022 to rule on Moreno’s original Rule 35(b) motion

filed in 2015 (which postconviction counsel supplemented in 2021).

On the record before us, we disagree.

¶ 24 To determine whether a district court still has jurisdiction to

rule on a timely filed Rule 35(b) motion, we use a two-step analysis.

Herr v. People, 198 P.3d 108, 112 (Colo. 2008). We first consider

whether the district court ruled on the Rule 35(b) motion within a

reasonable time. Id. If we conclude that it did not, we then

consider whether the defendant made reasonable efforts to secure a

ruling in the face of the district court’s excessive delay or, by

contrast, whether the defendant effectively abandoned the Rule

35(b) motion. Id. at 112-13.

¶ 25 Again, the postconviction court did not specifically address

this issue in concluding that it still had the authority to rule on

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Moreno’s Rule 35(b) motion. However, we conclude that we can

resolve this issue in the first instance on appeal. See id. at 111-12

(“[A] challenge to a court’s subject matter jurisdiction is not

waivable, and may be raised for the first time on appeal. . . . [A]

challenge to the timeliness of a 35(b) motion or ruling calls into

question a trial court’s continued subject matter jurisdiction over a

given case.”); People v. Walker, 252 P.3d 1225, 1227 (Colo. App.

2011) (a jurisdictional challenge, including whether a moving party

has effectively abandoned a motion, is reviewed de novo).

¶ 26 In the first step of the Herr test, we conclude that the district

court did not rule on the original Rule 35(b) motion within a

reasonable time. To be sure, the court cannot be faulted for failing

to do so because the original Rule 35(b) motion lacked any

substantive argument or information, and plea counsel never filed

the promised supplemental information in support of the motion.

However, the district court could have set a hearing on the original

Rule 35(b) motion or otherwise set a deadline for plea counsel to file

the additional documentation. The court did not do so, and the

original Rule 35(b) motion remained pending when the

postconviction court began presiding over the case, when it

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appointed postconviction counsel to represent Moreno, and when

postconviction counsel filed the combined Rule 35(b) and 35(c)

motion.

¶ 27 That brings us to the second step of the Herr test regarding

whether Moreno effectively abandoned the original Rule 35(b)

motion. On the record before us, we decline to find that Moreno

abandoned the original Rule 35(b) motion. In Swainson v. People,

712 P.2d 479, 480 (Colo. 1986), our supreme court held that if a

defendant “was unconstitutionally deprived of the opportunity to file

his [Rule 35(b)] motion because of ineffective assistance of counsel,

then the trial court would have jurisdiction and could extend the

time limit for filing the motion.” See also People v. Duke, 36 P.3d

149, 153 (Colo. App. 2001) (“Post-conviction counsel’s failure to file

a timely Crim. P. 35(b) motion deprived [the] defendant of the right

to seek a reduction of sentence. Counsel’s omission may have

constituted ineffective assistance of counsel, which would excuse or

permit a belated filing of the motion.”).

¶ 28 We conclude that the rule from Swainson and Duke applies

with equal force here, where (1) plea counsel filed a timely Rule

35(b) that was devoid of any substantive argument or information,

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but which promised to file further information in support of the

motion; and (2) plea counsel never filed any such information and

did not otherwise pursue the motion further.

¶ 29 The record indicates, quite strongly, that plea counsel

provided ineffective assistance in relation to the original Rule 35(b)

motion. Beyond plea counsel’s request for the sentencing hearing

transcript, he did not file any further documents in support of the

Rule 35(b) motion. And significantly, plea counsel did not file any

document explaining to the court why he did not further pursue the

Rule 35(b) motion, such as, for example, notifying the court that he

was withdrawing from the case, or informing the court that a

breakdown in communication between him and Moreno prevented

him from further pursuing the motion. The failure of plea counsel

to at least keep the district court informed regarding the status of

supplementing the Rule 35(b) motion constituted ineffective

assistance of counsel.

¶ 30 Further, we do not have a sufficient basis in the record to

place any blame on Moreno personally on the abandonment issue.

Our conclusion would likely be different if, for example, plea

counsel had notified Moreno and the court that he was withdrawing

13
from the case, and Moreno thereafter did not timely supplement the

Rule 35(b) motion or seek a ruling on it. But there is no indication

in the record that plea counsel ever withdrew from representing

Moreno on the Rule 35(b) motion. See People v. Branch, 805 P.2d

1075, 1081 (Colo. 1991) (stating that a criminal defendant has the

right to rely on counsel as a “medium” between him and the state)

(citation omitted); cf. People v. Valdez, 789 P.2d 406, 408 (Colo.

1990) (a criminal defendant has the right to rely on his counsel to

file a petition for writ of certiorari).

¶ 31 The People emphasize the very lengthy delay of seven years

between when the original Rule 35(b) motion was filed and when

the combined Rule 35(b) and 35(c) motion was filed. However, two

key issues prevent us from concluding that the seven-year delay

resulted in the court losing jurisdiction to rule on the Rule 35(b)

motion. First, during the first four years of the delay, Moreno was

(1) apparently still represented by plea counsel (there is no evidence

to the contrary), and (2) apparently still relying on plea counsel to

supplement the Rule 35(b) motion. Indeed, plea counsel never filed

any document with the court suggesting otherwise.

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¶ 32 And second, the three-year delay between the fourth year and

seventh year since the filing of the original Rule 35(b) motion was

caused by (1) Moreno initially being represented by a postconviction

counsel who later withdrew, requiring the appointment of new

postconviction counsel; and (2) those two postconviction counsel

filing a total of nine motions for extensions of time to investigate the

case and file the combined Rule 35(b) and 35(c) motion. We cannot

discern any basis in the record to blame Moreno personally for

those extensive delays.

¶ 33 For these reasons, we conclude that the postconviction court

retained jurisdiction to rule on the Rule 35(b) motion.

B. We Will Not Review the Propriety of Moreno’s
Thirty-Five-Year Sentence

¶ 34 Moreno argues that the postconviction court “abused its

discretion and reversibly erred when the court adopted the

recommendations of the district attorney without correctly

balancing the factors regarding Mr. Moreno’s significant

rehabilitation and contributions to the community.” (Emphasis

added.) He also argues that the postconviction court “abused its

discretion when it failed to fully take into account Mr. Moreno’s

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significant rehabilitation and contributions to the community.”

(Emphasis added.)

¶ 35 We construe these arguments as challenging the propriety of

the court’s decision to resentence Moreno to thirty-five years in the

DOC. See Sullivan v. People, 2020 CO 58, ¶ 13 (noting that “the

propriety of the sentence” implicates “the intrinsic fairness or

appropriateness of the sentence itself taking into account ‘the

nature of the offense, the character of the offender, and the public

interest.’” (quoting People v. Malacara, 606 P.2d 1300, 1302-03

(Colo. 1980))); People v. Bloom, 251 P.3d 482, 483 (Colo. App. 2010)

(an argument that the district court did not properly weigh the

relevant sentencing considerations constitutes a challenge to the

propriety of the sentence), overruled on other grounds by Sullivan,

¶¶ 11-18.

¶ 36 In appealing a ruling on a Rule 35(b) motion, a defendant may

not seek judicial review of the propriety of the resentencing decision.

See Malacara, 606 P.2d at 1303; People v. Barnett, 2020 COA 167,

¶ 31; see also People v. Dennis, 649 P.2d 321, 322 & n.3 (Colo.

1982) (noting that the supreme court on numerous occasions has

reaffirmed Malacara’s holding on this point). Moreno may not

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appeal the postconviction court’s ruling on how it decided to

balance the applicable sentencing factors in arriving at a thirty-five-

year sentence on reconsideration.

¶ 37 Further, even if Moreno could appeal the propriety of his

thirty-five-year sentence because he never filed a direct appeal

challenging his forty-year sentence, see § 18-1-409(1), C.R.S. 2024

(“[T]he person convicted shall have the right to one appellate review

of the propriety of the sentence.”), his current challenge to the

propriety of his thirty-five-sentence is barred because the sentence

falls within the stipulated sentencing range in the plea agreement.

See id. (“[I]f the sentence is within a range agreed upon by the

parties pursuant to a plea agreement, the defendant shall not have

the right of appellate review of the propriety of the sentence.”)

¶ 38 Moreno’s only argument on appeal that could be construed as

challenging the propriety of the Rule 35(b) proceeding — which can

be challenged in an appeal of a Rule 35(b) ruling, see Malacara, 606

P.2d at 1302-03 — is that the postconviction court failed to exercise

its discretion in simply approving the prosecutor’s recommendation

that Moreno be resentenced to thirty-five years in the DOC. We

reject any such argument. The transcript of the Rule 35(b) hearing

17
clearly indicates that the postconviction court exercised

independent discretion in arriving at the thirty-five-year sentence by

balancing all the relevant sentencing considerations. Indeed, the

court went so far as to specify that it was not simply adopting the

prosecutor’s recommendation, but instead arrived at the thirty-five-

year sentence by exercising independent discretion. In doing so,

the court specifically gave Moreno some credit for his rehabilitation

in the DOC. But Moreno’s argument that his rehabilitation should

have resulted in a lower sentence is an unreviewable challenge to

the propriety of the thirty-five-year sentence.

C. Moreno Effectively Abandoned His Rule 35(c) Claims

¶ 39 Again, the postconviction court repeatedly questioned

Moreno’s counsel at the Rule 35(b) hearing regarding whether its

ruling on the Rule 35(b) motion rendered the Rule 35(c) claims

moot. The only specific claim Moreno’s counsel identified as not

being moot was that plea counsel was ineffective in not advising

Moreno regarding his right to file a direct appeal of his sentence.

¶ 40 However, after the postconviction court set a status hearing to

discuss that sole Rule 35(c) claim, postconviction counsel, after

18
further research and discussion with Moreno, filed the “motion to

vacate [status] hearing and for issuance of final, appealable order.”

¶ 41 We conclude that this motion to vacate the status hearing

clearly constituted an abandonment of any remaining Rule 35(c)

claims. See Walker, 252 P.3d at 1227 (“Whether a moving party

has abandoned his or her claim for relief is determined as a matter

of law.”). Indeed, Moreno specifically requested that the

postconviction court issue a “final, appealable order,” and Moreno

could not have filed this appeal until all his postconviction claims in

the combined Rule 35(b) and 35(c) motion had been resolved. See

People v. Hamm, 2019 COA 90, ¶¶ 20-21 (to avoid piecemeal

appellate proceedings, all claims raised in a postconviction motion

must be resolved before an appeal is brought); People v. Thomas,

116 P.3d 1284, 1285 (Colo. App. 2005) (“[A]n appeal may be

prosecuted only from a final appealable order,” and “[a] final

appealable order is one that effectively terminates the proceedings

in the court below and is a jurisdictional prerequisite to appellate

review.”).

¶ 42 So although the postconviction court found in December 2022

that Moreno had voluntarily, knowingly, and intelligently agreed to

19
withdraw any remaining Rule 35(c) claims, we conclude that

Moreno effectively abandoned any and all Rule 35(c) claims (1) by

moving in August 2022 for the postconviction court to vacate the

status hearing and issue a final, appealable order on his combined

Rule 35(b) and 35(c) motion; and (2) filing this appeal the same

month. There are no Rule 35(c) claims for us to consider in this

appeal.

III. Disposition

¶ 43 The portion of Moreno’s appeal challenging the propriety of his

thirty-five-year sentence is dismissed. The postconviction court’s

order is otherwise affirmed.

JUDGE GOMEZ and JUDGE LUM concur.

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