Peo v. Garcia

24CA0899 Peo v Garcia 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0899
City and County of Denver District Court No. 19CR5690
Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenneth Louis Garcia,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Schock and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Kenneth Louis Garcia, 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, Kenneth Louis Garcia, appeals the denial of his

Crim. P. 35(c) motion without a hearing. We affirm.

I. Background

¶2 After Garcia stole property from an elderly homeowner who

had hired him to perform yard work, he was charged with multiple

counts of theft and giving false information to a pawnbroker.

¶3 Trial was set for July 2020, during the height of the COVID-19

pandemic, when most jury trials had been suspended by order of

the Chief Justice of the Colorado Supreme Court. The Chief Justice

granted an exemption, however, to allow two test trials to proceed,

one of which was Garcia’s. The jury found Garcia guilty of all

charges, and the court sentenced him to a controlling term of nine

years in prison.

¶4 On direct appeal, Garcia argued:

• Several of the trial court’s COVID-19 protocols — specifically,

requiring prospective and impaneled jurors to wear masks,

assigning prospective jurors to the jury selection room in the

order they checked in, and seating the impaneled jurors

throughout the courtroom rather than in the jury box —

violated his constitutional rights.

1
• The court erred by conducting voir dire in his absence.

• The court erred by admitting expert valuation testimony.

• The prosecution committed misconduct.

• The evidence was insufficient to support his convictions.

A division of this court rejected those arguments and affirmed the

judgment of conviction. See People v. Garcia, 2022 COA 144, ¶ 1.

¶5 While the direct appeal was pending, Garcia filed a pro se

Crim. P. 35(c) motion for postconviction relief, and, once the

mandate issued, he filed several addendums to the motion

(together, the Rule 35(c) motion). The Rule 35(c) motion alleged

numerous trial court errors and ineffective assistance of counsel

claims.

¶6 In a thorough, written order, the postconviction court denied

the Rule 35(c) motion without conducting an evidentiary hearing.

The court concluded that Garcia was not entitled to postconviction

relief because his claims were successive, vague and conclusory, or

directly refuted by the record.

2
II. Analysis

¶7 On appeal, Garcia reasserts many, but not all, of the claims

raised in his Rule 35(c) motion.1 He contends that the

postconviction court erred by summarily denying these claims. We

disagree.

A. Standard of Review

¶8 We review de novo a postconviction court’s order denying a

Crim. P. 35(c) motion without a hearing. People v. Nozolino, 2023

COA 39, ¶ 7.

B. Successive Claims

¶9 Crim. P. 35(c) allows a defendant to challenge a judgment of

conviction on the grounds that it was obtained in violation of his

constitutional or statutory rights. See Crim. P. 35(c)(2)(I)-(II); People

v. Valdez, 178 P.3d 1269, 1279 (Colo. App. 2007). But a defendant

is not entitled to perpetual review of his postconviction claims.

People v. Melendez, 2024 COA 21M, ¶ 38. Therefore, absent limited

exceptions not relevant here, a postconviction court must deny any

1 Claims that were raised in the Rule 35(c) motion but not

reasserted on appeal are deemed abandoned. See People v. Ortega,
266 P.3d 424, 428 (Colo. App. 2011).

3
successive claim. See Crim. P. 35(c)(3)(VI)-(VII); see also People v.

Taylor, 2018 COA 175, ¶ 17 (the language directing a court to deny

successive postconviction claims is “mandatory rather than

permissive”). A claim is successive if it was already resolved on

appeal or in a prior postconviction proceeding, Crim. P. 35(c)(3)(VI),

or it could have been raised in an earlier appeal or postconviction

proceeding, Crim. P. 35(c)(3)(VII). In other words, claims cannot be

raised more than once, and they must be raised at the first

opportunity.

¶ 10 We conclude that most of the claims Garcia raised in his Rule

35(c) motion and reasserted on appeal are successive because they

4
were resolved on direct appeal or could have been raised on direct

appeal.2

• Claim No. 2. The claim that the trial court erred by proceeding

with the trial even after a juror was exposed to COVID-19 and

was replaced with an alternate juror could have been raised on

direct appeal.

• Claim No. 3. The claim that the victim committed perjury in

her victim impact statement could have been raised on direct

appeal.

• Claim No. 4. The claim that the mittimus contained an error

could have been raised on direct appeal. Regardless, the trial

2 To the extent Garcia includes allegations of ineffective assistance

of counsel within certain of his claims — i.e., that counsel sat too
far away from him at trial, that counsel should have challenged an
alleged false statement in the victim impact statement, that he did
not have enough time to consult with his lawyer before sentencing,
and that counsel did not properly represent him at trial or at
sentencing — those claims are vague and conclusory because they
lack specific factual allegations concerning deficient performance or
prejudice. See People v. Delgado, 2019 COA 55, ¶ 8; see also
Strickland v. Washington, 466 U.S. 668, 687 (1984) (To prevail on
an ineffective assistance of counsel claim, “the defendant must
show that counsel’s performance was deficient” and “that the
deficient performance prejudiced his defense.”).

5
court issued an amended mittimus correcting the error in

January 2024.3

• Claim No. 5. The claim that the trial court erred by allowing

the victim to be referred to as “Dr. Kerr” could have been

raised on direct appeal. In addition, according to the

postconviction court, the victim testified at trial that she

earned a Ph.D. from Columbia University. See People v.

Duran, 2025 COA 34, ¶ 15 (The court may deny a

postconviction claim without a hearing when “the record

directly refutes the allegations.”).

• Claim No. 6. The claim that the trial court erred by admitting

expert valuation testimony was raised and resolved on direct

appeal. See Garcia, ¶ 54.

• Claim No. 7. The claim that the trial court closed the

courtroom to the public, including members of Garcia’s family,

could have been raised on direct appeal.

3 To the extent Garcia argues that the error in the mittimus affected

his direct appeal, he offers no support — factual or legal — for that
argument, so we decline to address it. See People v. Larsen, 2023
COA 28, ¶ 19 n.4 (declining to address conclusory arguments
presented without supporting authority).

6
• Claim No. 8. The claim that the prosecution committed

misconduct was raised and resolved in the direct appeal. The

division rejected Garcia’s arguments that the prosecutors

committed misconduct by referring to the homeowner as “our

victim,” explaining that Garcia “asked for a trial,” misstating

evidence, or by suggesting that an acquittal would have to be

based on speculation. See id. at ¶¶ 59-62. Garcia’s additional

argument that one of the prosecutors portrayed him in a

“negative” and “demeaning” light during opening statement

and closing argument could have been raised on direct appeal.

• Claim No. 9. The claim that the Denver police improperly

caused Garcia to be late to trial was raised and rejected on

direct appeal. See id. at ¶ 40 (explaining that the record

established that Garcia was “present for voir dire and other

parts of the trial”). To the extent Garcia argues that the police

violated his Fourth Amendment rights, that claim could have

been raised on direct appeal.

• Claim No. 10. The claim challenging the sentence could have

been raised on direct appeal. And to the extent Garcia alleged

that the court improperly imposed consecutive sentences, the

7
mittimus shows that the sentences were ordered to run

concurrently. See Duran, ¶ 15.

• Claim No. 11. The claim that the trial court erred by denying

Garcia’s motion for a mistrial based on an alleged violation of

his right to a fair cross section of jurors could have been

raised on direct appeal.

• Claim No. 13. The claim that the trial court erred by denying

Garcia’s objection to proceeding to trial in July 2020 was

partially raised and resolved on direct appeal. In his objection,

Garcia argued that requiring jurors to wear masks and be

seated throughout the courtroom would violate his

constitutional rights. The division rejected those arguments.

See Garcia, ¶¶ 16-26. To the extent the objection raised

additional arguments, those arguments could have been

raised on direct appeal.

• Any claim related to the sufficiency of the evidence to support

the convictions is successive because the division rejected

Garcia’s sufficiency challenges on direct appeal. See id. at

¶¶ 44-48.

8
C. Unpreserved Claims

¶ 11 Two of Garcia’s claims were not raised in his Rule 35(c)

motion. Therefore, they are not preserved for review. See DePineda

v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (“Issues not raised before

the district court in a motion for postconviction relief will not be

considered on appeal of the denial of that motion.”).

• Claim No. 1. The claim that the Chief Justice lacked authority

or jurisdiction to exempt Garcia’s trial from the COVID-19

order barring jury trials was raised for the first time on appeal,

not in the Rule 35(c) motion.

• Claim No. 12. The claim that the trial court erred by denying

Garcia’s C.A.R. 21 petition to the supreme court was raised for

the first time on appeal. In any event, neither the trial court

nor this court has jurisdiction to review a C.A.R. 21 petition.

See People v. Sherwood, 2021 CO 61, ¶ 13 (“C.A.R. 21(a)(1)

vests [the supreme court] with sole discretion to exercise [its]

original jurisdiction.”).

III. Disposition

¶ 12 The order is affirmed.

JUDGE SCHOCK and JUDGE BERGER concur.

9