Peo v. King

24CA0228 Peo v King 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0228
Arapahoe County District Court No. 05CR20
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeffery David King,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

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

Jeffery David King, Pro Se
¶1 Defendant, Jeffery David King, appeals the postconviction

court’s denial of his most recent Crim. P. 35(c) motion. We affirm.

I. Background

¶2 In 2006, a jury convicted King of false imprisonment, sexual

assault on a child as a crime of violence, and indecent exposure.

The trial court sentenced him to an indeterminate term of forty-five

years to life in the custody of the Department of Corrections (DOC)

on the sexual assault count and concurrent one-year jail terms on

the other two counts. The court also determined that King was a

sexually violent predator (SVP).

¶3 On direct appeal, a division of this court affirmed King’s

convictions but vacated his sentence as illegal. People v. King,

(Colo. App. No. 06CA1227, Jul. 15, 2010) (not published pursuant

to C.A.R. 35(f)) (King I). The mandate was issued on December 29,

2010. King was resentenced on the sexual assault count to a term

of twelve years to life in DOC custody.

¶4 In 2015, King filed a pro se Crim. P. 35(c) motion, arguing that

his Fourth Amendment right to be free from unlawful searches and

seizures had been violated and that the trial court incorrectly

designated him an SVP. The postconviction court denied the

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motion as successive because King could have raised the issues on

direct appeal. King did not appeal.

¶5 In May 2019, King filed an identical pro se Crim. P. 35(c)

motion, which the postconviction court denied as successive later

the same month. King appealed.

¶6 In November 2019 and January 2020, while his appeal of the

postconviction court’s denial of his May 2019 motion was pending,

King filed two additional Crim. P. 35(c) motions, both asserting an

unlawful revocation of parole. Specifically, he argued that (1) the

parole board improperly relied on evidence to revoke his parole that

had not been disclosed to him before the hearing; (2) the parole

board revoked his parole without first imposing intermediate

sanctions as allegedly proposed by his parole officer; and (3) the

structure of his parole was unconstitutional. This court granted

King a limited remand to allow the postconviction court to address

his parole revocation claims.

¶7 The postconviction court appointed counsel who filed a

supplemental motion in August 2020. Counsel reasserted King’s

claims from his November 2019 and January 2020 motions, except

his claim that the structure of his parole was unconstitutional.

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Counsel also made three additional claims regarding King’s parole

revocation. In a September 2020 order, the postconviction court

denied the supplemental motion on the merits without a hearing.

¶8 The matter was recertified, the parties filed their appellate

briefs, and a division of this court affirmed the September 2020

order. People v. King, (Colo. App. No. 19CA1542, Feb. 16, 2023)

(not published pursuant to C.A.R. 35(e)) (King II). The division

deemed abandoned King’s claims from his May 2019 motion

because he did not reassert them on appeal or otherwise challenge

the postconviction court’s May 2019 order denying that motion. Id.

at ¶ 5 n.3. King did not argue on appeal that the postconviction

court had neglected to address any claims raised in the November

2019, January 2020, or August 2020 motions.

¶9 In 2023, King filed the pro se Crim. P. 35(c) motion at issue.

He asserted a claim of ineffective assistance of direct appeal counsel

for failure to raise his Fourth Amendment and SVP designation

challenges. He also reasserted the claim from his November 2019

and January 2020 motions that the structure of his parole was

unconstitutional. The postconviction court denied the motion as

successive.

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II. Analysis

¶ 10 King contends that the postconviction court erred by denying

his Crim. P. 35(c) motion as successive. He asserts that he is

entitled to a hearing on his claims because, if true, they establish

violations of his constitutional rights. We disagree.

A. Standard of Review

¶ 11 Under Crim. P. 35(c), a defendant may move to set aside his

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

constitutional rights. Crim. P. 35(c)(2)(I). A defendant is entitled to

an evidentiary hearing on his motion when he alleges facts that, if

true, would entitle him to relief. White v. Denver Dist. Court, 766

P.2d 632, 634-35 (Colo. 1988). A postconviction court may deny a

Crim. P. 35(c) motion without a hearing when the defendant’s

allegations are bare and conclusory; the allegations do not warrant

postconviction relief, even if true; the claims raise only an issue of

law; or the record directly refutes the defendant’s allegations.

People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). We review

de novo a postconviction court’s denial of a Crim. P. 35(c) motion

without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

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B. The Motion Is Time Barred

¶ 12 Absent an enumerated exception, section 16-5-402(1), C.R.S.

2024, gives defendants convicted of non-class 1 felonies three years

from the date of their convictions to file a Crim. P. 35(c) motion.

Hunsaker v. People, 2021 CO 83, ¶ 21. When a defendant directly

appeals his judgment of conviction, as King did, the period for

seeking postconviction review under Crim. P. 35(c) begins to run

when the direct appeal has been exhausted. Id. at ¶ 22. This is

true even if an illegal sentence is subsequently corrected, as it was

here. Id. at ¶ 26 (disavowing the notion that, for purposes of the

time limitation on Crim. P. 35(c) review, a conviction does not occur

until an illegal sentence is corrected).

¶ 13 Accordingly, King had until December 29, 2013 — three years

from when the mandate was issued in his direct appeal — to file a

Crim. P. 35(c) motion. Because the motion at issue in this appeal

was filed in 2023, it is time barred, unless King demonstrates

justifiable excuse or excusable neglect for the late filing. See

§ 16-5-402(2); see also People v. Clouse, 74 P.3d 336, 340 (Colo.

App. 2002) (“A defendant must allege in a Crim. P. 35 motion facts

that, if true, would establish justifiable excuse or excusable neglect

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for a belated filing.”). In determining whether justifiable excuse or

excusable neglect exists, we must “consider the circumstances

existing throughout the entire period from the inception of the

conviction in question.” People v. Wiedemer, 852 P.2d 424, 441

(Colo. 1993).

¶ 14 King has not alleged facts that, if true, amount to justifiable

excuse or excusable neglect for not timely filing his claim of

ineffective assistance of direct appeal counsel. King’s conviction

became final in 2010. He has not explained why he waited thirteen

years to argue that direct appeal counsel was ineffective for failing

to raise his Fourth Amendment and SVP designation challenges.1

¶ 15 King has also failed to allege facts that, if true, amount to

justifiable excuse or excusable neglect for not timely filing his claim

that his parole structure was unconstitutional. Even assuming

such a claim could not arise until King’s parole was revoked in July

1 Even giving King the benefit of the doubt that he did not know

direct appeal counsel had provided ineffective assistance until the
postconviction court denied his 2015 postconviction motion raising
these two claims, he still has not explained why he waited another
eight years to bring his ineffective assistance of appellate counsel
claim.

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2019, King has not explained why it took him almost four years to

file this postconviction claim.2

¶ 16 Thus, we conclude that King’s 2023 postconviction motion is

time-barred, and we affirm the postconviction court’s order on this

alternative basis. See People v. Dyer, 2019 COA 161, ¶ 39 (An

appellate court “may affirm a trial court’s decision on any ground

supported by the record, whether relied upon or even considered by

the trial court.”).

C. The Ineffective Assistance Claim Is Successive

¶ 17 A postconviction court must deny as successive any Crim. P.

35(c) claim that was raised and resolved in, or could have been

raised or resolved in, a prior appeal or postconviction proceeding.

Crim. P. 35(c)(3)(VI)-(VII). In other words, Crim. P. 35(c) claims

cannot be raised more than once, and they must be raised at the

first opportunity, or they are successive. King could have raised his

ineffective assistance of appellate counsel claim in his 2015 Crim.

2 We are aware that King in fact raised this claim in a 2019

postconviction motion, but we conclude that claim was abandoned,
as discussed in Part II.D.

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P. 35(c) motion, but he did not. Thus, we affirm the postconviction

court’s order that this claim was successive.

D. The Unconstitutional Parole Structure Claim Was Abandoned

¶ 18 King asserts that his pro se claim that the structure of his

parole was unconstitutional is not successive because it was never

truly resolved by the postconviction court. True, the postconviction

court did not address this claim in its order denying the 2020

supplemental motion. However, this was because postconviction

counsel chose not to reraise the claim in the 2020 supplemental

motion, which counsel was entitled to do. See People v. Smith, 2024

CO 3, ¶¶ 26, 30 (postconviction counsel serves as “captain of the

ship” with regard to a defendant’s representation and has final

authority to choose which postconviction claims to pursue or

abandon in a Crim. P. 35(c) motion, even if the defendant disagrees

with that decision). Because counsel did not reraise the claim, it

was abandoned. See id. at ¶¶ 17-23 (claims presented in a pro se

Crim. P. 35(c) motion that are not pursued in a supplemental

motion by counsel are deemed abandoned). Thus, we affirm the

postconviction court’s order denying this claim on this alternative

ground. See Dyer, ¶ 39.

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¶ 19 For these reasons, we conclude that the postconviction court

did not err by denying King’s Crim. P. 35(c) motion without

conducting a hearing.

III. Disposition

¶ 20 The order is affirmed.

JUDGE J. JONES and JUDGE YUN concur.

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