Peo v. Moore

23CA2071 Peo v Moore 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2071
Mesa County District Court No. 07CR1198
Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brandon Moore,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE PAWAR
Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 10, 2025

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Brandon Moore, Pro Se
¶1 Defendant, Brandon Moore, appeals the order denying his

postconviction motion. We affirm.

I. Background

¶2 In 2008, a jury convicted Moore of first degree murder and

child abuse resulting in death. The trial court sentenced him to life

in prison without parole for first degree murder and a concurrent

forty-eight-year prison sentence for child abuse.

¶3 Moore appealed his convictions. A division of this court

affirmed the child abuse conviction but reversed the murder

conviction and remanded for a new trial on that count. People v.

Moore, (Colo. App. No. 08CA2039, Aug. 30, 2012) (not published

pursuant to C.A.R. 35(f)). The mandate was issued on July 25,

2014.

¶4 On remand, the prosecution dismissed the first degree murder

charge. Moore pleaded guilty to an added count of retaliation

against a witness or victim. As part of the plea agreement, he

agreed to withdraw a previously filed motion to reconsider his

sentence for the child abuse conviction. The trial court sentenced

Moore on March 27, 2015, to a fifteen-year prison sentence to run

consecutive to his forty-eight-year prison sentence for child abuse.

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¶5 In September 2023, Moore filed a pro se combined Crim. P.

35(a) and 35(c) motion specifically challenging his conviction and

sentence for retaliation against a witness or victim. As best we

understand his arguments, he asserted claims that (1) his sentence

should not have run consecutively to his child abuse sentence; (2)

his sentence violated double jeopardy because the retaliation

conviction was based on the same conduct as his child abuse

conviction; (3) his plea was not knowing, voluntary, and intelligent;

(4) his trial and appellate counsel provided ineffective assistance;

and (5) his sentence was disproportionate to the crime. Moore

conceded that his Crim. P. 35(c) claims were time barred but alleged

justifiable excuse or excusable neglect for the late filing.

Specifically, he claimed that his public defender’s ineffective

assistance and his mental health issues prevented a timely filing.

Moore requested the appointment of counsel and a hearing.

¶6 The postconviction court denied Moore’s motion without

appointing counsel and without conducting a hearing. It found that

Moore’s sentence was legal under Crim. P. 35(a) and denied his

Crim. P. 35(c) claims as untimely without sufficient allegations of

justifiable excuse or excusable neglect.

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II. Discussion

¶7 On appeal, and as we understand his arguments, Moore

contends that the postconviction court erred by denying his motion

because at least one of his claims was potentially meritorious, the

court misquoted the record, and the record on appeal is incomplete.

As we explain below, he reasserts some of his Crim. P. 35(c) claims

from his motion and maintains that he established justifiable

excuse or excusable neglect for their late filing.

A. Crim. P. 35(a) or 35(c)?

¶8 Initially, we must determine whether Moore’s claims are

cognizable under Crim. P. 35(a) or 35(c). “The substance of a

postconviction motion controls whether it is designated as a Crim.

P. 35(a) or 35(c) motion.” People v. Collier, 151 P.3d 668, 670 (Colo.

App. 2006).

¶9 In his motion, Moore raised only one argument regarding the

legality of his sentence: that his retaliation sentence should not

have run consecutively to his child abuse sentence. See Crim. P.

35(a) (“The court may correct a sentence that was not authorized by

law or that was imposed without jurisdiction at any time . . . .”);

Collier, 151 P.3d at 670 (“A sentence is ‘not authorized by law’ if it is

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inconsistent with the statutory scheme outlined by the

legislature.”). But on appeal, Moore now concedes that his

sentences should have run consecutively. Instead, he asserts that

had he known the length of the consecutive sentence would exceed

five years, he would have proceeded to trial. We construe this as

part of his claim that his plea was not knowing due to the

ineffective assistance of his counsel and thus part of his 35(c)

claims which we address next.

¶ 10 The remainder of Moore’s claims fall under Crim. P. 35(c).1

See Collier, 151 P.3d at 670 (“Motions under Crim. P. 35(c) are the

proper postconviction route in which to challenge convictions or

sentences as unconstitutional.”); Crim. P. 35(c)(2)(I) (providing for

relief where “the conviction was obtained or sentence imposed in

violation of the Constitution or laws of the United States or the

constitution or laws of this state”).

1 We note that Moore has not reasserted his sentence

proportionality claim on appeal. We therefore deem that Crim. P.
35(c) claim abandoned. See People v. Hunsaker, 2020 COA 48,
¶ 10, aff’d, 2021 CO 83.

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B. Untimeliness

¶ 11 Crim. P. 35(c) claims must be filed within three years of a

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

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

becomes final for purposes of section 16-5-402 when the appellate

mandate is issued in the defendant’s direct appeal, see Hunsaker v.

People, 2021 CO 83, ¶¶ 26, 36, or, if the defendant does not directly

appeal, “when the trial court enters judgment and sentence is

imposed,” Collier, 151 P.3d at 671. Here, Moore did not directly

appeal his retaliation against a witness or victim conviction. He

was sentenced on March 27, 2015, which gave him until March 27,

2018, to file Crim. P. 35(c) claims. He concedes that his motion was

untimely, given that he filed it in September 2023.

¶ 12 But there is an exception to the three-year time bar when 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). We review de novo whether

the facts alleged in a Crim. P. 35(c) motion, if true, would constitute

justifiable excuse or excusable neglect. People v. Hinojos, 2019 CO

60, ¶ 12. To be entitled to a hearing, a defendant is not required to

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provide evidentiary support for their allegations but “must allege

facts which, if true, would entitle [them] to relief from the time bar.”

Id. at ¶ 14.

¶ 13 In determining whether justifiable excuse or excusable neglect

exists, a court must consider “the particular facts of [the] case, so

as to give effect to the overriding concern that defendants have a

meaningful opportunity to challenge their convictions as required

by due process.” Close v. People, 180 P.3d 1015, 1019 (Colo. 2008).

A court must consider certain factors, including as relevant here,

whether circumstances or outside influences existed that prevented

a challenge to the prior conviction. People v. Wiedemer, 852 P.2d

424, 441-42 (Colo. 1993).

¶ 14 Moore alleges that the untimely filing of his Crim. P. 35(c)

claims was due to the fact that his public defender rendered

ineffective assistance. See Close, 180 P.3d at 1019 (ineffective

assistance of counsel can constitute justifiable excuse or excusable

neglect for an untimely postconviction motion). Specifically, in his

motion he claimed that his attorney had advised him that, because

of his plea agreement, “he forfeited any and all rights for any type of

appeal [or] postconviction action of any kind.” And because of the

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“total trust” he had in his attorney, he did not question this. But

Moore clearly discovered at some point that he could collaterally

attack his conviction. Yet, he fails to allege when or how this

occurred, and why he waited over eight years to assert the

challenge. See Wiedemer, 852 P.2d at 441 (a defendant must

account for the entire period up to the filing of the untimely claim).

¶ 15 Although Moore also alleged in his motion that his mental

health affected his ability to timely file Crim. P. 35(c) claims, he has

not reasserted that claim on appeal. We therefore consider it

abandoned. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d,

2021 CO 83.

¶ 16 Based on these reasons and the record before us, we conclude

that the postconviction court did not err by denying Moore’s motion.

Because our review is de novo, whether the postconviction court

misquoted the record, as Moore contends, is of no import to our

conclusion.

C. Incomplete Record

¶ 17 Moore claims that he “was not provided with all the records

that were requested with his Designation of Record on appeal.” He

asserts that the postconviction court “decided what documents were

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pertinent to the case and sent only those documents” and that he

received only “partial CD copies” of “these documents.” He claims

this “prejudice[d] [him] and limit[ed] his ability to argue his issues

appropriately.”

¶ 18 When complaining about an incomplete record, a defendant

must establish specific prejudice that resulted from the incomplete

record and cannot rely on bare assertions that the incomplete

record impaired their ability to appeal. People v. Rodriguez, 914

P.2d 230, 301 (Colo. 1996). Because Moore does not allege that he

was prejudiced by the incomplete record beyond saying that it

impaired his ability to appeal, we conclude that his assertions do

not entitle him to relief.

D. Request for Postconviction Counsel

¶ 19 Moore maintains that he is entitled to the appointment of

postconviction counsel. However, there is no constitutional right to

postconviction counsel. Silva v. People, 156 P.3d 1164, 1167 (Colo.

2007). There is only a limited statutory right to postconviction

counsel for meritorious postconviction claims. Id. at 1168.

Because we have concluded that Moore’s postconviction claims are

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conceded, abandoned, or untimely, he is not entitled to

postconviction counsel.

E. Additional Claims

¶ 20 To the extent Moore raises claims on appeal that he did not

assert in his motion, such as that the prosecution committed Brady

violations, we decline to address these issues. See People v. Cali,

2020 CO 20, ¶ 34 (“[A]lthough we will broadly construe a pro se

litigant’s pleadings to effectuate the substance, rather than the

form, of those pleadings, we will not consider issues not raised

before the district court in a motion for postconviction relief.”).

III. Disposition

¶ 21 The order is affirmed.

JUDGE HARRIS and JUDGE GROVE concur.

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