Peo v. Fernau

23CA1356 Peo v Fernau 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1356
El Paso County District Court No. 13CR2230
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Casey Thomas Fernau,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE GOMEZ
Fox and Bernard*, JJ., concur

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

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-
Appellee

Mark G. Walta, Alternate Defense Counsel, Littleton, 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. 2024.
¶1 Defendant, Casey Thomas Fernau, appeals the postconviction

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

relief as untimely filed. He contends that the court erred by finding

that he didn’t establish that the failure to timely file the motion was

the result of justifiable excuse or excusable neglect. We disagree

and, therefore, affirm.

I. Background

¶2 The prosecution charged Fernau with five counts of aggravated

robbery, one count of conspiracy to commit aggravated robbery, one

count of first degree aggravated motor vehicle theft, one count of

conspiracy to commit first degree aggravated motor vehicle theft,

and two habitual criminal counts. Fernau was out of custody on

bond for felony charges pending in other criminal cases at the time

of the charged offenses.

¶3 Fernau later pleaded guilty to two counts of aggravated

robbery in exchange for stipulated sentencing terms, the dismissal

of the other felony charges in this case, and the dismissal of six

other criminal cases. In 2014, the district court sentenced him to

two consecutive ten-year terms in the custody of the Department of

Corrections (DOC), which were run consecutive to a four-year DOC

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sentence imposed in a separate criminal case. Fernau didn’t appeal

the judgment of conviction or sentence.

¶4 In 2018, Fernau filed an untimely Crim. P. 35(b) motion for a

reduction of his sentence, in which he argued that the failure to

timely file that motion was due to the ineffective assistance of the

same counsel who represented him during the plea proceedings.

The postconviction court denied the motion, finding that counsel’s

purported inaction didn’t excuse the untimely filing and that,

nevertheless, the original sentence imposed was proper.

¶5 In 2021, Fernau filed a Crim. P. 35(c) motion, which was later

supplemented by appointed postconviction counsel. In that motion,

Fernau asserted that his plea counsel was ineffective for

misadvising him that he would be parole eligible after serving 50

percent of his sentence. He also asserted that he wouldn’t have

pleaded guilty had he known that he would actually reach parole

eligibility only after serving 75 percent of his sentence. Fernau

argued that justifiable excuse or excusable neglect existed to excuse

the untimely filing of his motion because he had only recently

learned about the correct parole eligibility calculation and, until

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then, he’d had no reason to question plea counsel’s incorrect parole

eligibility advisement.

¶6 At a hearing on the issue of justifiable excuse or excusable

neglect, Fernau testified that “[t]he only way” a prison inmate can

check on their parole eligibility date is to meet with a case manager,

and that an inmate’s ability to schedule such a meeting was a

“[n]early impossible process.” However, he later acknowledged that,

during his incarceration, he’d had three in-person meetings with

his case managers. He further admitted that an inmate’s parole

eligibility date can be retrieved from the DOC’s online inmate

database. Fernau stated that he didn’t ask his case managers

about his parole eligibility date at their meetings and that, despite

speaking with his mother a couple times each week, he didn’t ask

her to look up his parole eligibility date on the DOC’s online

database.

¶7 Fernau testified that he didn’t inquire into his parole eligibility

date because knowledge of the date would have been a “painful

remainder of how much more time” he had to serve, and he wanted

to serve his time without counting down to a release date. Instead,

he said, he focused his time in the DOC on ensuring that he would

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be granted parole when he became eligible. And he said he learned

that plea counsel’s 50 percent parole eligibility advisement was

incorrect only when his case manager advised him that his actual

parole eligibility date precluded him from being moved to minimum

restricted custody.

¶8 In finding that Fernau didn’t establish justifiable excuse or

excusable neglect for the untimely filing of his Crim. P. 35(c)

motion, the postconviction court questioned the credibility of

Fernau’s testimony that he had only recently discovered his correct

parole eligibility calculation. But the court held that, even if he

didn’t learn about his parole eligibility date until recently, Fernau

had reason to question the accuracy of plea counsel’s alleged parole

eligibility advisement years earlier, and there were no

circumstances or outside influences that prevented him from timely

filing a collateral challenge to his conviction.

¶9 Specifically, the postconviction court found that Fernau’s

Crim. P. 35(b) motion demonstrated that, in 2018, he was “very

focused on his sentence, the terms of his sentence,” and had

concerns with the quality of plea counsel’s representation. The

court accordingly determined that, “[a]t the very least, [Fernau] was

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given an opportunity at that time to realize that his plea counsel

had not completely done the things that he wished for them to do,

and there may have been a problem with plea counsel’s quality of

representation.” And, the court further determined, despite being

“focused on his sentence and the terms of his sentence for some

time,” Fernau could have, but did not, inquire about his parole

eligibility date during the meetings with his case managers. The

court also distinguished the facts Fernau alleged from those in

People v. Chavez-Torres, 2019 CO 59, ¶¶ 24-30, which involved

defense counsel’s alleged failure to advise the defendant of the

immigration consequences of his plea.

II. Legal Authority and Standard of Review

¶ 10 A Crim. P. 35(c) motion must be filed within three years of a

defendant’s conviction for a felony offense other than a class 1

felony. § 16-5-402(1), C.R.S. 2024; Crim. P. 35(c)(3)(I). “For

purposes of [section] 16-5-402 and postconviction review, if there is

no direct appeal, a conviction occurs when the trial court enters

judgment and sentence is imposed.” People v. Collier, 151 P.3d 668,

671 (Colo. App. 2006). But, as relevant here, a postconviction claim

shall be excluded from the time limitation period where a court

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finds that the “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).

¶ 11 “[T]he justifiable excuse or excusable neglect exception must

be evaluated by balancing the interests under the facts of a

particular case so as to give effect to the overriding concern . . . that

a defendant have the meaningful opportunity required by due

process to challenge [their] conviction.” People v. Wiedemer, 852

P.2d 424, 441 (Colo. 1993). The Colorado Supreme Court has

provided a non-exhaustive list of factors important to this balancing

consideration:

(1) whether there existed circumstances or
outside influences preventing a challenge to a
prior conviction; (2) whether a defendant
having reason to question the constitutionality
of a conviction investigates its validity and
takes advantage of avenues of relief that are
available; (3) whether a defendant either knew
that the conviction was constitutionally infirm
or had reason to question its validity;
(4) whether a defendant had other means of
preventing the government’s use of the
conviction so that a post-conviction challenge
was previously unnecessary; (5) the length of
time that has elapsed between the date of
conviction and defendant’s challenge; and
(6) the effect that such period has on the
state’s ability to defend against the challenge.

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People v. Vigil, 983 P.2d 805, 809-10 (Colo. App. 1999) (citing

Wiedemer, 852 P.2d at 441-42).

¶ 12 Whether a defendant has demonstrated justifiable excuse or

excusable neglect is a question of fact to be resolved by the

postconviction court. People v. Chavez-Torres, 2016 COA 169M,

¶ 14, aff’d, 2019 CO 59; People v. Clouse, 74 P.3d 336, 340 (Colo.

App. 2002).1

¶ 13 We review a postconviction court’s factual findings for clear

error and its legal conclusions de novo. Martinez v. People, 2024

CO 6M, ¶ 24; People v. Smith, 2024 CO 3, ¶ 16. Under the clear-

error standard, we must affirm the court’s findings so long as they

are supported by the record. Martinez, ¶ 34; see also Smith, ¶ 16;

Vigil, 983 P.2d at 810 (affording deference to a court’s factual

findings after a hearing concerning justifiable excuse or excusable

1 Fernau contends that while the factual findings underlying this

issue are reviewed for clear error, the ultimate determination of
whether a defendant has demonstrated justifiable excuse or
excusable neglect is a question of law to be reviewed de novo. But
he doesn’t cite any authorities holding as much, and the authorities
cited in the text indicate otherwise. Nonetheless, even if we were to
review the ultimate determination de novo, we agree with the
postconviction court’s conclusion that Fernau hasn’t demonstrated
justifiable excuse or excusable neglect.

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neglect). We also defer to the court’s credibility findings following a

hearing if there is record support for them. See People v.

Washington, 2014 COA 41, ¶ 17; People v. Kyler, 991 P.2d 810, 819

(Colo. 1999); see also People v. Wheeler, 2020 CO 65, ¶ 8.

III. Analysis

¶ 14 Having reviewed the record, we conclude that the

postconviction court did not clearly err in finding that Fernau failed

to establish justifiable excuse or excusable neglect to excuse the

untimely filing of his Crim. P. 35(c) motion.

¶ 15 The record shows that parole eligibility was an important

factor in Fernau’s decision to plead guilty and in his approach to

serving his DOC sentence. Indeed, in his Crim. P. 35(c) motion,

Fernau insisted that, despite the stipulated sentencing terms and

the dismissal of multiple felony charges in this case and other

cases, he accepted the plea agreement primarily in reliance on plea

counsel’s advisement that he would become parole eligible after

serving 50 percent of his sentence. And, in his Crim. P. 35(b)

motion, Fernau asked for a sentence reduction so that he could be

released on parole as soon as possible. In denying the Crim. P.

35(b) motion, the court expressed its belief that Fernau “ha[d] done

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very well in prison” and “appear[ed] to deserve parole consideration

whenever he [wa]s eligible.”

¶ 16 Yet, despite the purported importance of parole eligibility to

Fernau, he assertedly chose not to avail himself of opportunities to

inquire into the DOC’s calculation of his parole eligibility date and

the veracity of the advice plea counsel had allegedly given him

regarding that date. He made this decision despite agreeing, as a

term of the plea documents, that “[his] plea [wa]s voluntary and

[wa]s not the result of any promises or representations from

anyone, including [his] lawyer,” and despite acknowledging in the

Crim. P. 35(b) motion that he had concerns about other aspects of

plea counsel’s representation.

¶ 17 We are convinced that this record supports the postconviction

court’s factual finding that, at a minimum, Fernau had reason to

question the validity of his conviction earlier than 2021 and that

there were no circumstances or outside influences that hindered

him from pursuing the issue. See People v. Slusher, 43 P.3d 647,

651 (Colo. App. 2001) (“[R]ecent discovery of a legal basis for a

collateral attack on a conviction does not constitute excusable

neglect where the defendant has not otherwise demonstrated some

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unavoidable hindrance that would cause a reasonably prudent

person to neglect to pursue timely collateral relief.”).

¶ 18 Fernau argues, however, that plea counsel’s alleged ineffective

assistance itself constituted justifiable excuse or excusable neglect

for the untimely filing of his Crim. P. 35(c) motion. And it is true

that ineffective assistance of counsel can constitute justifiable

excuse or excusable neglect. See Close v. People, 180 P.3d 1015,

1019 (Colo. 2008); People v. Valdez, 178 P.3d 1269, 1278 (Colo.

App. 2007). But to establish justifiable excuse or excusable neglect

based on such ineffective assistance, a defendant must demonstrate

that the ineffective assistance caused the failure to timely file a

postconviction motion. See, e.g., Valdez, 178 P.3d at 1279-80,

1282-83 (counsel’s inaction on the defendant’s postconviction

motion constituted ineffective assistance, which established

justifiable excuse or excusable neglect to avoid the application of

the time bar to his untimely filed claims); People v. Chang, 179 P.3d

240, 244, 246 (Colo. App. 2007) (counsel’s inaction on the

defendant’s postconviction motion may constitute ineffective

assistance, which could establish justifiable excuse or excusable

neglect to avoid the application of the time bar to his untimely filed

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claims). Otherwise, if every ineffective assistance claim were

deemed to constitute justifiable excuse or excusable neglect, then

such claims would always be exempt from section 16-5-402(1)’s

timeliness requirements.

¶ 19 But Fernau didn’t demonstrate why plea counsel’s asserted

ineffective assistance years before caused the untimely filing of his

Crim. P. 35(c) motion. Accordingly, we conclude that he didn’t

establish justifiable excuse or excusable neglect. See § 16-5-402(1);

Wiedemer, 852 P.2d at 441; see also People v. Hinojos, 2019 CO 60,

¶ 26 (recognizing that no appellate court has held in an ineffective

assistance case, other than one involving immigration advice, that

an attorney’s affirmative misadvisement can constitute justifiable

excuse or excusable neglect for an untimely Crim. P. 35(c) motion).

IV. Disposition

¶ 20 The order is affirmed.

JUDGE FOX and JUDGE BERNARD concur.

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