Peo v. Nardello

20CA1349 Peo v Nardello 11-24-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1349

Larimer County District Court No. 09CR1781

Honorable Juan G. Villasenor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Andrew Charles Nardello,

Defendant-Appellant.

ORDER AFFIRMED

Division VII

Opinion by JUDGE PAWAR

Navarro and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 24, 2021

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Andrew Charles Nardello, Pro Se

1

¶ 1 Defendant, Andrew Charles Nardello, appeals the district

court’s order denying his most recent postconviction motion. We

affirm.

I. Background

¶ 2 In 2011, Nardello pleaded guilty to two counts of attempted

first degree murder and one count of first degree burglary, and the

district court sentenced him to consecutive sentences on each

count for an aggregate sentence of 108 years in the custody of the

Department of Corrections.

¶ 3 Since then, Nardello filed two postconviction motions claiming,

among other things, that his sentences were unconstitutionally

aggravated in violation of Blakely v. Washington, 542 U.S. 296

(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000); the court

imposed aggravating sentences without findings of aggravation; his

plea was not knowingly, voluntarily, and intelligently entered; and

he received ineffective assistance from his plea counsel. The district

court summarily denied the first motion, and a division of this court

affirmed that order on appeal. See People v. Nardello, (Colo. App.

No. 13CA0815, May 14, 2015) (not published pursuant to C.A.R.

35(f)) (Nardello I). As for the second motion, the district court

2

denied it after a hearing, and another division of this court affirmed

that order. See People v. Nardello, (Colo. App. No. 16CA1031, Sept.

14, 2017) (not published pursuant to C.A.R. 35(e)) (Nardello II).

¶ 4 Undeterred, Nardello filed his most recent postconviction

motion in 2020 alleging various claims of ineffective assistance from

his plea counsel, trial court errors, an invalid plea, and ineffective

assistance from his postconviction counsel for failing to investigate

the improper entry of a restitution order in his absence. The

district court denied that motion without a hearing finding that it

was time barred pursuant to section 16-5-402(1), C.R.S. 2021, and

that Nardello had not alleged justifiable excuse or excusable neglect

to overcome the time bar.

II. Discussion

¶ 5 Reviewing de novo the district court’s summary denial of

Nardello’s postconviction motion, see People v. Gardner, 250 P.3d

1262, 1266 (Colo. App. 2010), we perceive no error.

A. Procedural Bars

¶ 6 Crim. P. 35(c)(2)(I) authorizes postconviction motions alleging

that a conviction or sentence was obtained or imposed in violation

of the Constitutions or laws of the United States or Colorado.

3

However, Crim. P. 35(c) claims are subject to the following

procedural bars: (1) absent justifiable excuse or excusable neglect,

postconviction challenges to non-class 1 felonies must be brought

within three years of the conviction becoming final, see § 16-5-

402(1), (2)(d); and (2) subject to certain exceptions, the court is

required to deny any claim that either was raised and resolved, or

could have been presented, in a previous postconviction proceeding,

see Crim. P. 35(c)(3)(VI), (VII).

1. Time Barred Claims

¶ 7 Because Nardello did not pursue a direct appeal, his

convictions became final in 2011 when the deadline for filing a

direct appeal expired. See People v. Chavez-Torres, 2019 CO 59, ¶

12 n.4. In his most recent motion, filed in 2020, Nardello raised

numerous claims regarding ineffective assistance from his plea

counsel, trial court errors, and the validity of his plea agreement.

However, because he raised those claims more than eight years

after his conviction became final, and did not allege facts that, if

true, would establish justifiable excuse or excusable neglect for the

late filing, the postconviction court did not err in denying those

claims as time barred. See Crim. P. 35(c)(2)(I) (any motion filed

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outside the time limits of section 16-5-402 must allege facts that, if

true, would establish an exception to the time bar); see also Chavez-

Torres, ¶ 13 (the motion must allege facts which, if true, would

entitle the defendant to relief from the time bar) (citing People v.

Wiedemer, 852 P.2d 424, 440 n.15 (Colo. 1993)).

¶ 8 To the extent Nardello’s motion alleged ineffective assistance of

postconviction counsel, he raised that claim more than three years

after his conviction became final and, thus, was required to assert

specific facts that, if true, would establish justifiable excuse or

excusable neglect for the untimely filing. See People v. Clouse, 74

P.3d 336, 341 (Colo. App. 2002) (the timeliness of postconviction

counsel claims will almost always be assessed under a justifiable

excuse or excusable neglect rubric because the postconviction

proceedings will generally consume and even exceed the limitation

period as measured from the date of conviction). Although Nardello

asserts in his motion that ineffective assistance of postconviction

counsel can provide justifiable excuse or excusable neglect, he

waited more than eighteen months from the mandate of Nardello II

to file his most recent motion. And, because his motion did not

allege specific facts that, if true, would explain why he waited so

5

long to file this postconviction counsel claim, the district court did

not err in denying that claim as untimely. See Chavez-Torrez, ¶ 13.

Even so, as discussed in part II.B below, his ineffective

postconviction counsel claim fails.

2. Successive Claims

¶ 9 Other than his ineffective assistance of postconviction counsel

claim, Nardello’s claims are also successive because they either

were raised and resolved, or could have been presented, in his prior

postconviction motions. Thus, because the exceptions outlined in

Crim. P. 35(c)(3)(VI) and (VII) are not applicable here, the

postconviction court was required to deny those claims as

successive. Crim. P. 35(c)(3)(VI)(a)-(b) (excludes claims based on

newly discovered evidence or new rules of constitutional law that

apply retroactively), (VII)(a)-(e) (excludes claims based on newly

discovered evidence, new rules of constitutional law that apply

retroactively, events occurring after the prior postconviction

proceeding, or the court lacking subject matter jurisdiction, and

any claim that could not have been raised earlier due to an

objective factor not attributable to the defendant); see also Dunlap

v. People, 173 P.3d 1054, 1062 n.4 (Colo. 2007); People v. Houser,

6

2020 COA 128, ¶ 15; see also People v. Aarness, 150 P.3d 1271,

1277 (Colo. 2006) (holding that an appellate court may affirm the

trial court on any grounds supported by the record).

B. Ineffective Assistance of Postconviction Counsel Claim Is Bare

and Conclusory

¶ 10 Finally, even if we assume that Nardello’s ineffective

assistance of postconviction counsel claim is not procedurally

barred, we nevertheless conclude that the district court did not err

in summarily denying it.

¶ 11 A district court may deny a postconviction motion without a

hearing if the claims are bare and conclusory in nature and lack

supporting factual allegations. People v. Venzor, 121 P.3d 260, 262

(Colo. App. 2005).

¶ 12 As presented in Nardello’s motion, the claim that

postconviction counsel provided ineffective assistance merely states

that postconviction counsel failed to investigate trial counsel’s

ineffectiveness for failing to object to restitution. However, Nardello

does not allege facts to establish that the restitution order was

erroneously entered or that there was some defense to the

restitution amount. Thus, this allegation is bare and conclusory,

7

and the district court did not err in summarily denying it. See id.;

see also Aarness, 150 P.3d at 1277.

¶ 13 To the extent Nardello’s opening brief on appeal alleges an

additional claim regarding postconviction counsel’s failure to

provide record support for his invalid guilty plea claim, we decline

to address that issue because it is raised for the first time on

appeal. 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.”); People v. Goldman, 923 P.2d 374, 375 (Colo. App.

1996) (allegations not raised in a postconviction motion aren’t

properly before this court for review).

III. Conclusion

¶ 14 The order is affirmed.

JUDGE NAVARRO and JUDGE GROVE concur.