Peo v. Owens

24CA1060 Peo v Owens 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1060
Mesa County District Court No. 16CR327
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nathanael Eugene Owens,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE TOW
Yun and Sullivan, JJ., concur

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

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Nathanael Eugene Owens, Pro Se
¶1 Defendant, Nathanael Eugene Owens, appeals the district

court’s order denying his postconviction motion. We affirm.

I. Background

¶2 In 2017, Owens pleaded guilty to two counts of aggravated

robbery, § 18-4-302(1)(d), C.R.S. 2024, and one count of vehicular

eluding, § 18-9-116.5, C.R.S. 2024, in exchange for the dismissal of

ten remaining counts. Owens stipulated to a sentence between

twenty and twenty-six years in the custody of the Department of

Corrections (DOC) plus parole. Specifically, he stipulated to

ten-year consecutive sentences for the aggravated robbery counts,

to be run either concurrently or consecutively — at the court’s

discretion — with the vehicular eluding sentence. Owens also

agreed to waive his right to seek reconsideration of his sentence

under Crim. P. 35(b).

¶3 On May 22, 2017, the district court sentenced Owens to ten

years for each aggravated robbery count and four years for the

vehicular eluding count, all to run consecutively.

¶4 One month later, the DOC filed a violent crime report in the

district court.

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¶5 On August 25, 2017, Owens filed a motion to reconsider his

sentence under Crim. P. 35(b). The district court denied the

motion, finding that Owens had waived his right to sentence

reconsideration under Crim. P. 35(b) in the plea agreement.

Alternatively, the court found that reconsideration was

unwarranted based on the facts of the case and Owens’s criminal

history.

¶6 On April 23, 2024, Owens filed a motion captioned “MOTION

FOR TO CORRECT ILLEGAL SENTENCE UNDER 35A AND 35B

RECONSIDERATION.” He argued that the DOC violated his plea

agreement and miscalculated his parole eligibility date (PED) by

treating his aggravated robbery convictions as crimes of violence,

which resulted in his PED being calculated based on him serving

seventy-five percent of his sentence, as opposed to fifty percent.

But, in his view, he did not plead guilty to a crime of violence. He

also claimed that the district court held an ex parte hearing to

enhance his sentence after the DOC filed the violent crime report,

which he argued violated his due process rights. Finally, Owens

asserted that “the mandatory parole component of his prison

sentence, five (5) years, should be subtracted from his 24 years.”

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¶7 The district court denied Owens’ motion, finding that (1) the

sentence imposed was legal under Crim. P. 35(a); (2) Owens had

waived his right to seek reconsideration under Crim. P. 35(b), and

any Crim. P. 35(b) motion nevertheless would have been untimely;

and (3) the motion was successive.

II. Discussion

¶8 On appeal, Owens contends that the district court erred by

denying his motion. He reasserts only his claim that his due

process rights were violated when the district court held an ex parte

hearing after the DOC filed its violent crime report.1 He also claims

that this court, the Mesa County District Court, and the supreme

court violated his due process rights “by denying him the record in

this case.” We disagree with Owens’s contentions.

A. Ex Parte Hearing

¶9 The substance of a postconviction motion, and not its caption,

controls how it is designated. See People v. Collier, 151 P.3d 668,

670 (Colo. App. 2006). Although Owens captioned his motion

1 Owens has abandoned the remaining claims in his motion by not

pursuing them on appeal. See People v. Hunsaker, 2020 COA 48,
¶ 10, aff’d, 2021 CO 83.

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under Crim. P. 35(a) and 35(b), he does not claim that his sentence

was illegal or was imposed in an illegal manner. See Crim. P. 35(a).

Nor does he seek reconsideration of his sentence. See Crim. P.

35(b). Rather, he claims that his due process rights were violated

when an alleged ex parte hearing took place. This is a claim

cognizable under Crim. P. 35(c). See id. (a postconviction motion is

properly brought under Crim. P. 35(c) when the defendant

challenges the constitutionality of his conviction or sentence); Crim.

P. 35(c)(2)(I) (permitting postconviction review on the basis that “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”).

¶ 10 We review de novo the denial of a Crim. P. 35(c) claim without

a hearing. People v. Cali, 2020 CO 20, ¶ 14.

¶ 11 Claims arising under Crim. P. 35(c) are subject to the time

limitation set forth in section 16-5-402(1), C.R.S. 2024. Except in

the case of class 1 felony convictions, a Crim. P. 35(c) claim is time

barred if it is filed more than three years after the conviction is

final, unless the defendant can establish justifiable excuse or

excusable neglect, or another statutory exception, to permit an

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untimely challenge. See § 16-5-402(1), (2)(d). Where, as here, a

defendant does not pursue a direct appeal, his conviction becomes

final on the date of sentencing. People v. Shepard, 151 P.3d 580,

582 (Colo. App. 2006). Thus, Owens had until May 22, 2020 —

three years after sentencing — to file his Crim. P. 35(c) claims.

¶ 12 Because Owens filed his motion in April 2024 and did not

allege facts to support a claim of justifiable excuse or excusable

neglect or any other statutory exception, the motion was time

barred. Accordingly, we perceive no error in the district court’s

denial of this claim, though we rest our conclusion on different

grounds. See People v. Manyik, 2016 COA 42, ¶ 69 (“We may affirm

the court’s ruling on any ground supported by the record, even if

that ground was not articulated or considered by the court.”);

§ 16-5-402(1.5) (an appellate court may affirm the denial of a Crim.

P. 35(c) claim on the ground that it was time barred, even if the

issue of timeliness was not considered by the postconviction court).2

2 Notably, even if we were to reach the merits of Owens’s claim, it

would fail because the record does not show that any hearing,
much less an ex parte hearing, took place after the violent crime
report was filed. Nor is there any requirement to conduct such a
hearing. See People v. Olivas, 911 P.2d 675, 678 (Colo. App. 1995).

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B. Denial of Record

¶ 13 After Owens filed his notice of appeal, he filed a designation of

record, stating that “[t]he record the defendant is requesting is the

recordings of the Rule 11 plea agreement hearing, the sentencing

hearing[,] and the violent crime report hearing. Defendant does not

want transcripts but request[s] the actual recording of all three

hearings.” Thereafter, the appellate record was certified and

transmitted to this court. Owens then filed with this court a motion

to compel the Mesa County District Court to provide the actual

recordings of the three hearings. We denied the motion, finding

that any transcripts or recordings would not be relevant to this

appeal. People v. Owens, (Colo. App. No. 24CA1060, July 29, 2024)

(unpublished order). We reasoned that the district court issued an

order on July 5, 2024, denying Owens’s motion requesting that the

recordings, not transcripts, be certified as part of the appellate

record, and finding that “it did not rely on any transcripts or

recordings in making its rulings presented for this Court’s review.”

Id. Owens filed a similar motion to compel in the supreme court,

which the court denied. In Re People v. Owens, (Colo. No. 24SA233,

Sept. 26, 2024) (unpublished order).

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¶ 14 Finally, 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). Owens does not

articulate how (or, for that matter, that) he was prejudiced by any

purported shortcomings in the record aside from saying that he did

not receive it. Indeed, we cannot identify how any such prejudice

can arise from the lack of recordings, when those recordings had no

bearing on the denial of Owens’s claim. Thus, we reject his claim

on this basis as well.

III. Disposition

¶ 15 The order is affirmed.

JUDGE YUN and JUDGE SULLIVAN concur.

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