Peo v. Vaughan

23CA1351 Peo v Vaughan 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1351
Larimer County District Court No. 06CR859
Honorable Stephen J. Jouard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Anthony Vaughan,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Johnson and Gomez, JJ., concur

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

Philip J. Weiser, Attorney General, Erin K. Grundy, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Robert Anthony Vaughan, appeals the district

court’s order denying his Crim. P. 35(c) motion for postconviction

relief. Because we conclude that Vaughan’s motion is time barred,

we affirm.

I. Background

¶2 Vaughan was charged with second degree kidnapping, second

degree assault, menacing, and attempted first degree murder with a

crime of violence sentence enhancer. The charges stemmed from

allegations that he assaulted his common law wife over the course

of five days. The prosecution later added one count each of

tampering with a witness or victim and violation of a protection

order.

¶3 After a trial, a jury convicted Vaughan of second degree

assault, tampering with a witness or victim, and violation of a

protection order. He was acquitted of the remaining counts. The

district court imposed a controlling sentence of twenty years in the

custody of the Department of Corrections.

¶4 On direct appeal, a division of this court affirmed Vaughan’s

judgment of conviction. See People v. Vaughan, (Colo. App. No.

12CA0970, July 3, 2014) (not published pursuant to C.A.R. 35(f))

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(Vaughan I). His conviction became final when this court issued its

mandate on February 11, 2015.

¶5 In 2017, Vaughan filed a pro se motion to correct an illegal

sentence under Crim. P. 35(a). Vaughan claimed his sentence was

illegal because the district court failed to consider restitution at

sentencing. The district court denied the motion, but a division of

this court reversed and remanded the case to the district court for

consideration of the amount of restitution, if any. People v.

Vaughan, (Colo. App. 18CA0299, May 9, 2019) (not published

pursuant to C.A.R. 35(e)) (Vaughan II).

¶6 In 2021, Vaughan filed a pro se motion for postconviction

relief under Crim. P. 35(c), alleging various claims of ineffective

assistance of trial counsel. Vaughan asserted that he was “only

filing this 35(c) at this time due to time limitations on [his]

misdemeanor [conviction].” The district court appointed counsel,

who supplemented the motion. In a section titled “Jurisdictional

Issues,” counsel noted the three-year statutory time bar for

collaterally attacking a conviction, the prior division’s correction of

Vaughan’s illegal sentence (including the date of the mandate

following that appeal — June 28, 2019), and the date Vaughan filed

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his pro se motion, namely, March 17, 2021. The prosecution filed a

written reply opposing the merits of the motion but did not address

whether it was filed timely. In a written order, the court considered

the timeliness of the motion:

It appears to the court that the motion has
been timely filed pursuant to C.R.S. § 16-5-
402(1) and the People do not argue otherwise.
See, People v. St. John, 934 P.2d 865 (People
waive time bar if not raised in the trial court).

The district court then granted an evidentiary hearing on four of

Vaughan’s claims but denied the remaining eleven.

¶7 At the evidentiary hearing, the parties did not discuss the

timeliness of Vaughan’s motion, nor did the district court request

that they do so. Following the hearing, the court issued a written

order denying all four claims. In its order, the court repeated its

prior finding that it “appear[ed]” that Vaughan’s motion was timely,

but added the following footnote:

In Hunsaker v. People, 2021 CO 83, the
Colorado Supreme Court clarified that the
period for filing a timely [motion for]
postconviction relief is extended where there is
a determination that the Defendant was
subject to an illegal sentence. However, the
Court determined that the three year period is
only extended to allow a defendant to raise
arguments that address how the illegality in

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their sentence affected the original conviction.
Because the People have not argued that
Defendant’s motion is untimely, the court will
not address the issue.

¶8 This appeal follows.

II. Discussion

¶9 On appeal, Vaughan contends that the district court erred by

denying his Crim. P. 35(c) motion. In particular, he asserts that (1)

he was entitled to a hearing on two of the claims that the court

summarily denied; (2) the court utilized an incorrect legal standard

for assessing prejudice as to the four claims for which the court

found deficient performance by counsel; and (3) the court failed to

consider cumulative prejudice.

¶ 10 The Attorney General responds that Vaughan’s motion was

untimely and, because he did not assert facts that would establish

justifiable excuse or excusable neglect for his late filing, we should

exercise our discretion under section 16-5-402(1.5), C.R.S. 2025,

and affirm the court’s denial of Vaughan’s motion on alternate

grounds.

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¶ 11 We agree with the Attorney General that the motion was time

barred. Therefore, we affirm the district court’s order, but on

grounds other than those relied on by the district court.

A. Cross-Appeal and Waiver

¶ 12 Initially, we reject Vaughan’s assertion that we should not

consider the Attorney General’s arguments concerning the

timeliness of the motion because they did not cross-appeal the

district court’s timeliness and waiver findings.

¶ 13 The Attorney General is not seeking relief greater than what

was granted in the judgment; it is merely defending that judgment.

See People v. Suttmiller, 240 P.3d 504, 506-07 (Colo. App. 2010)

(cross-appeal required when party seeks to increase rights under

judgment). And a party on appeal may defend a district court’s

judgment on any ground supported by the record, regardless of

whether that ground was relied upon or even contemplated by the

district court. People v. Eppens, 979 P.2d 14, 22 (Colo. 1999).

Thus, the Attorney General may defend, on timeliness grounds, the

district court’s order denying Vaughan’s motion and supplement.

¶ 14 We also reject Vaughan’s assertion that the prosecution

waived the application of section 16-5-402(1)’s time bar because it

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did not raise this procedural bar until appeal. It was not the

prosecution’s burden to raise the time bar. Instead, it was

Vaughan’s burden to establish the existence of justifiable excuse or

excusable neglect necessary to bypass section 16-5-402(1)’s time

bar, including alleging facts that, if proved, would carry that

burden. See People v. Abad, 962 P.2d 290, 291 (Colo. App. 1997).

¶ 15 Moreover, section 16-5-402(1.5) specifically authorizes an

appellate court to notice that a Crim. P. 35(c) motion is time barred,

even if the issue of timeliness was not raised to the district court.

Section 16-5-402(1.5) provides:

If an appellate court can determine on the face
of the motion, files, and record in a case that a
collateral attack is outside the time limits . . . ,
the appellate court may deny relief on that
basis, regardless of whether the issue of
timeliness was raised in the trial court.

(Emphasis added.) Therefore, section 16-5-402(1.5) permits us to

address the motion’s timeliness irrespective of whether the issue

was raised below. See People v. Kilgore, 992 P.2d 661, 663 (Colo.

App. 1999) (reflecting that section 16-5-402(1.5) “contains no

evidence of a legislative intent to deprive the judiciary of its

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traditional right to exercise its discretion in deciding whether to

address an issue not previously raised”).

¶ 16 Moreover, Vaughan’s reliance on People v. Davis, 2018 COA

113, and Wood v. Milyard, 566 U.S. 463 (2012), for the proposition

that the prosecution waived the application of section 16-5-402(1)’s

time bar by not raising it until appeal is misplaced.

¶ 17 Relying on People v. St. John, 934 P.2d 865, 866 (Colo. App.

1996), the Davis division noted that it would not consider the

timeliness of Davis’s Crim. P. 35(c) motion (even though it was filed

more than fourteen years after his conviction was final) because

“the record d[id] not indicate that the People responded to Davis’s

2003 motion, much less that they argued it was time barred.”

Davis, ¶ 5 n.1. But St. John was abrogated by statute, as another

division of this court recognized in Kilgore, 992 P.2d at 663. And,

unlike the instant case, the prosecution in Davis did not raise the

timeliness issue on appeal.

¶ 18 In Wood, the prosecution asserted that it would “not challenge,

but [was] not conceding,” the timeliness of the defendant’s habeas

motion. Wood, 566 U.S. at 465. Concluding that the prosecution

deliberately waived the timeliness issue, the Supreme Court held

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that the appellate court abused its discretion in applying it. Id. at

474. But Wood involved statutory authority that extended to

federal courts applying a federal statute, which is not applicable

here. And as noted, the General Assembly has enacted a specific

statutory provision permitting divisions of this court to address the

timeliness of a collateral attack even if the issue was not raised in

the district court. See Robbins v. People, 107 P.3d 384, 390 (Colo.

2005) (“Our legislature and courts have evinced a strong desire to

curb stale postconviction claims in order to ensure finality of

convictions in our criminal justice system, give force to repeat

offender statutes, and alleviate the difficulties of litigating stale

claims.”); see also People v. Gardner, 55 P.3d 231, 232 (Colo. App.

2002) (“The timeliness issue was not presented in the trial court,

but [section] 16-5-402(1.5) . . . gives us discretion to deny relief on

appeal on that ground nonetheless.”).

¶ 19 Accordingly, we conclude that the prosecution was not

required to file a cross-appeal in order to defend the judgment

based on timeliness, and that the application of 16-5-402(1)’s time

bar was not waived. We turn next to the timeliness of Vaughan’s

motion.

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B. The Motion Was Untimely

¶ 20 We review de novo whether a motion is untimely or can be

considered on the merits based on justifiable excuse or excusable

neglect. Close v. People, 180 P.3d 1015, 1019 (Colo. 2008); People

v. Bonan, 2014 COA 156, ¶ 16. Further, we may affirm a district

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

by the record, even if the court did not consider or contemplate that

ground. People v. Hamm, 2019 COA 90, ¶ 23.

¶ 21 A defendant must file a Crim. P. 35(c) motion within three

years after the date their felony conviction is final. See § 16-5-

402(1); People v. Wiedemer, 852 P.2d 424, 442 (Colo. 1993). Where,

as here, there was a direct appeal, a conviction is final when the

appellate process has been exhausted. See People v. Hampton, 857

P.2d 441, 444 (Colo. App. 1992), aff’d, 876 P.2d 1236 (Colo. 1994).

¶ 22 For purposes of section 16-5-402(1), Vaughan’s conviction

became final on February 11, 2015 — that is, the date the mandate

was issued in his direct appeal. Therefore, Vaughan had until

February 11, 2018, to file a Crim. P. 35(c) motion. Vaughan did not

file his motion, however, until March 17, 2021. Accordingly,

Vaughan’s motion was untimely, and “it cannot proceed unless an

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exception under section 16-5-402(2) applies.” Hunsaker v. People,

2021 CO 83, ¶ 36 (Hunsaker II).

¶ 23 As relevant here, a defendant’s untimely submission of a Crim.

P. 35(c) motion may be excused if the defendant’s “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). The supreme court has identified six

non-exclusive factors that may bear on the justifiable excuse or

excusable neglect inquiry. See Wiedemer, 852 P.2d at 441-42

(listing factors a court should consider). It is the defendant’s

burden to allege and establish justifiable excuse or excusable

neglect. People v. Clouse, 74 P.3d 336, 340 (Colo. App. 2002).

¶ 24 On appeal, Vaughan appears to concede that he did not allege

circumstances amounting to justifiable excuse or excusable neglect

sufficient to justify the untimeliness of his motion. Nevertheless, he

asserts that there was no need to make such a showing because the

motion appeared timely under Leyva v. People, 184 P.3d 48 (Colo.

2008), and People v. Baker, 2017 COA 102, rev’d, 2019 CO 97M.

Therefore, in his view, we should either affirm the district court’s

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ruling that the motion was timely or remand for additional findings

regarding justifiable excuse or excusable neglect.

¶ 25 To begin, we note that in Leyva, the supreme court espoused

both broad and narrow interpretations of a successful Crim. P.

35(a) motion’s effect on the three-year time limit for Crim. P. 35(c)

motions. Leyva, 184 P.3d at 50-51; see also Hunsaker II, ¶ 24.

This caused confusion in subsequent cases about whether a

successful Crim. P. 35(a) motion resets the three-year Crim. P. 35(c)

time limit for all claims, or whether it resets the three-year time

limit for only those claims related to the illegal sentence. Compare

Baker, ¶¶ 37, 40-41, with People v. Hunsaker, 2020 COA 48, ¶¶ 16,

19-21 (Hunsaker I), aff’d, Hunsaker II.

¶ 26 In Hunsaker II, the supreme court resolved this issue by

affirming the latter view: a successful Crim. P. 35(a) motion resets

the three-year Crim. P. 35(c) time limit for only those claims based

on “how the illegality in the sentence potentially affected the original

conviction.” Hunsaker II, ¶ 26.

¶ 27 The claims in Vaughan’s Crim. P. 35(c) motion and

supplement do not relate to the illegality in his sentence. However,

his motions were filed in the post-Leyva era of confusion and before

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the supreme court’s clarification in Hunsaker II. This means that if

Vaughan had relied on the broad interpretation of Leyva (a

successful Crim. P. 35(a) motion resets the time limit for all Crim.

P. 35(c) claims), he may well have had a justifiable excuse argument

for not filing his Crim. P. 35(c) motion during the period starting

when his sentence was deemed illegal and corrected (June 2019)

and ending when he ultimately filed his Crim. P. 35(c) motion

(March 2021). See Hunsaker II, ¶ 41 (concluding that the defendant

should be permitted to argue justifiable excuse or excusable neglect

on remand because he “seems likely to have relied on the language

in Leyva that we have now disavowed in delaying the filing of his

Crim. P. 35(c) motion”).

¶ 28 But when assessing a justifiable excuse or excusable neglect

argument, we consider the circumstances existing throughout the

entire period between the expiration of the filing time limit and the

actual filing of the late motion. See Wiedemer, 852 P.2d at 441-42

(In determining the applicability of the justifiable excuse or

excusable neglect exception, we “consider the circumstances

existing throughout the entire period from the inception of the

conviction in question.”). And Vaughan’s successful Crim. P. 35(a)

12
motion and the potential confusion around Leyva accounts for less

than all of that period here. This is because Vaughan’s original

three-year Crim. P. 35(c) time limit expired in February 2018,

sixteen months before his sentence was deemed illegal and

corrected. During these sixteen months immediately after his

three-year time limit had expired, Leyva did not apply (because his

sentence had not yet been deemed illegal) and there was no reason

for Vaughan not to file his Crim. P. 35(c) motion.

¶ 29 Because it was Vaughan’s burden to allege and establish

justifiable excuse or excusable neglect — and he failed to do so for

the sixteen-month period leading up to the correction of his illegal

sentence — we decline his request to remand the case for further

consideration of the matter. See Clouse, 74 P.3d at 340; see also

People v. Metcalf, 979 P.2d 581, 583 (Colo. App. 1999) (“[B]ecause

[the] defendant did not allege circumstances of justifiable excuse or

excusable neglect in his Crim. P. 35(c) motion, we reject his

alternative argument that the untimeliness of his Crim. P. 35(c)

motion was the result of justifiable excuse or excusable neglect” and

“we [need not] remand to allow the trial court to consider such an

argument.”).

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¶ 30 Accordingly, because the record shows that Vaughan’s motion

was time barred and the exceptions to Crim. P. 35(c)’s time

limitations bar do not apply to his claims, we exercise our discretion

under section 16-5-402(1.5) and conclude, albeit on different

grounds, that the district court did not err by denying his motion.

See People v. Knoeppchen, 2019 COA 34, ¶ 32 (acknowledging that

timeliness was not raised by the prosecution in the district court

and exercising discretion under section 16-5-402(1.5) to affirm on

alternate grounds), overruled on other grounds by People v. Weeks,

2021 CO 75.

III. Disposition

¶ 31 The order is affirmed.

JUDGE JOHNSON and JUDGE GOMEZ concur.

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