Peo v. Robinson

24CA0537 Peo v Robinson 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0537
Arapahoe County District Court No. 08CR2799
Honorable Eric B. White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cordell Dominick Robinson,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE MEIRINK
Dunn and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

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

Cordell Dominick Robinson, Pro Se
¶1 Defendant, Cordell Dominick Robinson, appeals the district

court’s order denying his most recent postconviction motion without

a hearing. We affirm.

I. Background

¶2 In 2010, a jury convicted Robinson of multiple charges based

on a high-speed chase that occurred in 2008.1

¶3 In 2010 and 2011, the district court held separate proceedings

concerning Robinson’s habitual offender status. Robinson had

prior felony convictions in Oklahoma from 2003 for assault with a

deadly weapon, eluding, and altering a firearm; he also had a prior

Colorado conviction from 2004 for attempted possession of

marijuana with intent to distribute, which, at the time of the

habitual offender hearing, was a class five felony. After concluding

that the prosecution met its burden of establishing the prior

1 During the chase, Robinson injured an officer and damaged two

patrol vehicles. He was convicted of first degree assault, second
degree kidnapping, second degree assault on a peace officer,
attempted second degree assault on a peace officer, vehicular
eluding, criminal mischief, third degree assault, resisting arrest,
driving under the influence, leaving the scene of an accident, and
eluding a police officer.

1
convictions, the district court adjudicated Robinson a habitual

criminal.

¶4 A division of this court affirmed Robinson’s convictions on

direct appeal, and the mandate issued on March 4, 2015. People v.

Robinson, (Colo. App. No. 11CA2176, July 31, 2014) (not published

pursuant to C.A.R. 35(f)) (Robinson I).

¶5 In 2013, while Robinson’s direct appeal was pending, the

legislature enacted Senate Bill 13-250, which reclassified certain

felony drug offenses and reduced their penalties. See generally Ch.

333, 2013 Colo. Sess. Laws 1900-44. The bill expressly applied

prospectively. Ch. 333, sec. 71, 2013 Colo. Sess. Laws at 1943.

¶6 In July 2015, Robinson filed a pro se Crim. P. 35(b) motion to

reconsider his sentences, which he later amended to include Crim.

P. 35(a) and 35(c) claims. Robinson argued that his sentence was

illegal because, following the enactment of Senate Bill 13-250, his

prior marijuana-related felony could no longer be used to adjudicate

him a habitual criminal. He also claimed that appellate counsel

was ineffective for not arguing that he was entitled to the benefit of

2
the new legislation or otherwise staying the appeal given the new

legislation.2

¶7 The district court denied Robinson’s claims in a combined

order without a hearing.

¶8 Robinson appealed. A division of this court agreed with

Robinson that the district court improperly classified second degree

assault and attempted second degree assault as crimes of violence

subject to the extraordinary risk sentence enhancer, but it rejected

Robinson’s other claims, including his argument that his prior

marijuana-related felony could no longer be used to adjudicate him

a habitual criminal following the enactment of Senate Bill 13-250.

People v. Robinson, slip op. at ¶¶ 15, 25 (Colo. App. No. 17CA0547,

Aug. 6, 2020) (not published pursuant to C.A.R. 35(e)) (Robinson II).

Specifically, the division held that Robinson was “not entitled to the

retroactive benefit of [Senate Bill 13-250] because the General

Assembly expressly stated that the amendment applie[d] only

2 Robinson further argued that his sentences for second degree

assault and attempted second degree assault were illegal because
the district court erroneously applied the extraordinary risk
sentence enhancer and the mandatory consecutive sentence
provision of the crime of violence statute to both crimes.

3
prospectively to offenses committed on or after October 1, 2013,”

whereas Robinson committed his offenses in 2008 and was

sentenced in 2011. Id. at ¶ 15.

¶9 In October 2020, Robinson filed another pro se postconviction

motion. He again argued that he was entitled to the benefit of

certain legislative amendments, including Senate Bill 13-250. The

district court denied the motion “as meritless and successive,”

concluding that the division in Robinson II had “directly addressed

and denied Defendant’s exact claim.” Robinson did not appeal the

denial of this motion.

¶ 10 In July 2021, Robinson filed a pro se Crim. P. 35(c) motion.

He asserted several ineffective assistance of counsel claims and

requested a new proportionality review of his sentence following the

announcements of Wells-Yates v. People, 2019 CO 90M, Melton v.

People, 2019 CO 89, and People v. McRae, 2019 CO 91. The district

court denied the motion as successive and without merit. appeal, a

division of this court affirmed, concluding that Robinson’s claims

were time barred and successive. People v. Robinson, (Colo. App.

No. 21CA1503, Mar. 16, 2023) (not published pursuant to C.A.R.

35(e)) (Robinson III).

4
¶ 11 In November 2023, Robinson filed the postconviction motion

at issue here, asserting that the supreme court’s decision in

Thomas v. People, 2021 CO 84, applied to his case. Thomas, the

court held that certain “drug felonies qualify as neither triggering

offenses nor predicate offenses for habitual criminal purposes.” Id.

at ¶ 63. Robinson claimed that, because Thomas created a new

substantive rule of constitutional law that was not previously

available, its holding applied retroactively. Robinson argued that,

under Thomas, the habitual criminal portion of his sentence must

be vacated because his prior marijuana-related felony could no

longer be used to adjudicate him a habitual criminal. Further,

because Thomas established a new substantive rule of

constitutional law that applied retroactively, he argued that his

claims were not successive and were excused from the procedural

time bars of section 16-5-402, C.R.S. 2024, and Crim. P. 35(c).

¶ 12 The district court did not hold a hearing and denied

Robinson’s motion as time barred, successive and without merit. It

also explicitly rejected his argument that Thomas established a new

substantive rule of constitutional law that should be applied

retroactively.

5
II. Discussion

¶ 13 On appeal, Robinson contends that the district court erred by

denying his motion. He reasserts his claim that his sentence is

illegal because his prior marijuana-related felony can no longer be

used to adjudicate him as a habitual criminal following the

enactment of Senate Bill 13-250. He also argues that Thomas

created a new substantive rule of constitutional law that was not

previously available and applies retroactively to his case. And he

reasserts that his motion was excused from the timeliness and

successiveness Crim. P. 35(c) procedural bars due to the

applicability of Thomas. We perceive no error in the district court’s

denial of his motion.

A. Standard of Review

¶ 14 We review the summary denial of a postconviction motion de

novo, regardless of whether it is a motion under Crim. P. 35(a) or

Crim. P. 35(c). See Magana v. People, 2022 CO 25, ¶ 33 (legality of

a sentence); People v. Gardner, 250 P.3d 1262, 1266 (Colo. App.

2010) (summary denial of a Crim. P. 35(c) motion).

6
B. Analysis

¶ 15 First, we reiterate that the division in Robinson II rejected

Robinson’s claim that his sentence was illegal because his prior

marijuana-related felony can no longer be used to adjudicate him a

habitual criminal following the enactment of Senate Bill 13-250.

See People v. Tolbert, 216 P.3d 1, 5 (Colo. App. 2007) (Crim. P. 35(a)

claims are subject to the law of the case doctrine, under which

courts follow earlier rulings from the same case unless it would

result in error, or the rulings are no longer sound due to changed

conditions). Indeed, Senate Bill 13-250 applied only prospectively

to offenses committed on or after October 1, 2013. Ch. 333, sec.

71, 2013 Colo. Sess. Laws at 1943. Robinson committed his

offenses in 2008. Therefore, Senate Bill 13-250 does not apply to

Robinson’s case.

¶ 16 Second, assuming without deciding that Thomas announced a

new substantive rule of constitutional law, we conclude that

Thomas is not applicable to Robinson’s case because it is

distinguishable. In Thomas, the supreme court held that the

defendant’s prior offenses did not qualify as predicate offenses for

habitual criminal sentencing purposes because “at the time he

7
committed the triggering offense,” his predicate offenses had

already been reclassified as level 4 drug felonies. Thomas, ¶¶ 60,

65. In contrast, Robinson’s marijuana-related predicate offense

was not reclassified until years after he committed the triggering

offenses and was adjudicated a habitual criminal. In other words,

when Robinson committed his triggering offenses, his marijuana-

related predicate offense had not yet been reclassified and could

still be used to adjudicate him as a habitual criminal. Thus,

Thomas is not applicable here.

¶ 17 Finally, to the extent Robinson raises a constitutional claim

under Crim. P. 35(c), we conclude that any such claim is time

barred and successive.

¶ 18 For non-class 1 felony convictions, a district court must deny

a Crim. P. 35(c) claim as untimely if the defendant raised the claim

more than three years after the defendant’s conviction became final.

See § 16-5-402(1). Where, as here, a defendant filed a direct

appeal, the defendant’s conviction becomes final upon the issuance

of the mandate. See Hunsaker v. People, 2021 CO 83, ¶ 36.

¶ 19 Here, the mandate in Robinson’s direct appeal was issued on

March 4, 2015. Therefore, he had until March 4, 2018, to file Crim.

8
P. 35(c) claims. He did not file the motion at issue here until 2023,

well after the deadline passed. Therefore, any Crim. P. 35(c) claims

are time barred.

¶ 20 Crim. P. 35(c)(3)(VI) and (VII) require a court to deny any

claims as successive that were raised and resolved in, or could have

been raised in, a prior appeal or postconviction proceeding. The

language of the rule “is mandatory rather than permissive.” People

v. Taylor, 446 P.3d 918, 921 (Colo. App. 2018). Here, any Crim. P.

35(c) claims raised in this motion were either raised or could have

been raised in previous postconviction motions. Therefore, they are

successive.

¶ 21 A defendant may be excused from the timeliness or

successiveness procedural bars if they can establish that a new

substantive rule of constitutional law was announced that was

previously unavailable and should be applied retroactively. See

§ 16-5-402(2)(d) (a court may consider the merits of an untimely

Crim. P. 35(c) claim if circumstances amounting to justifiable

excuse or excusable neglect led to the late filing); People v. Rainer,

2013 COA 51, ¶¶ 24-29 (a claim based on a new substantive rule of

constitutional law can constitute justifiable excuse or excusable

9
neglect for a late filing under section 16-5-402), rev’d on other

grounds, 2017 CO 50; Crim. P. 35(c)(3)(VI)(b), (VII)(c) (an exception

to the successiveness bar applies to claims based on a new rule of

constitutional law that was previously unavailable if that rule

should be applied retroactively). Robinson argues that Thomas

supplied such a rule. However, as discussed, Thomas is

inapplicable to Robinson’s case. Thus, he has not established an

exception to the timeliness or successiveness procedural bars.

¶ 22 For these reasons, we conclude that the district court did not

err by denying Robinson’s motion.

III. Disposition

¶ 23 The order is affirmed.

JUDGE DUNN and JUDGE TOW concur.

10