Peo v. Nakai

24CA0923 Peo v Nakai 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0932
La Plata County District Court No. 07CR294
Honorable Jeffrey R. Wilson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Harold Nakai,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division A
Opinion by JUSTICE MARTINEZ*
C.J. Román, and Taubman*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 21, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, 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. 2025.
¶1 Defendant, Harold Nakai, appeals the district court’s order

denying his Crim. P. 35(c) motion without a hearing. We reverse

the order and remand the case for further proceedings consistent

with this opinion.

I. Background

¶2 A jury convicted Nakai of sexual assault (physically helpless

victim) and criminally negligent homicide. His first appeal led to a

reversal on due process grounds and two new trials. See People v.

Nakai, slip op. at 18 (Colo. App. No. 08CA2443, May 15, 2014) (not

published pursuant to C.A.R. 35(f)). The jury in Nakai’s second trial

rendered a guilty verdict on the criminally negligent homicide count

but deadlocked on the sexual assault count. The jury in Nakai’s

third trial delivered a guilty verdict on the sexual assault count.

¶3 The district court sentenced Nakai to prison for forty-eight

years to life for the sexual assault conviction and a consecutive

three years for the criminally negligent homicide conviction. A

division of this court affirmed the judgment of conviction and

sentence. See People v. Nakai, (Colo. App. No. 17CA0187, Nov. 18,

2021) (not published pursuant to C.A.R. 35(e)).

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¶4 In August 2023, Nakai filed a pro se Crim. P. 35(c) motion, in

which he asserted claims of ineffective assistance of trial and direct

appeal counsel. Nakai requested the appointment of counsel.

Consistent with his request for counsel in the Crim. P. 35(c) motion,

Nakai also filed an “Application for a State Paid Professional” (form

application), asking the district court to appoint him counsel for his

Crim. P. 35(c) motion. Shortly thereafter, Nakai filed a “Motion for

Recusal in Rule 35(c) Proceedings,” asking the court to recuse itself

from the pending Crim. P. 35(c) proceedings.

¶5 In October 2023, the district court issued an order concerning

both the pro se Crim. P. 35(c) motion and the motion to recuse.

The court noted that the Crim. P. 35(c) motion was timely and

otherwise complied with Crim. P. 35(c)(3)(IV). The court

acknowledged Nakai’s request for counsel as one “which the Court

will approve by separate order.” The court then directed that “[t]he

clerk shall send a complete copy of the motion and the motion for

recusal to the special prosecutor and Public Defender’s Office.”

Finally, the court deferred ruling on the motion to recuse “until

after the prosecutor and defense counsel…have had a chance to

respond” The same day, the court issued a second order granting

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Nakai’s request for counsel by checking a box labeled “Request

Granted” on Nakai’s form application and signing and dating that

form.

¶6 Approximately two weeks later, the prosecution filed a written

response objecting to Nakai’s motion to recuse. A public defender

never entered an appearance or otherwise responded to the court’s

order appointing counsel.

¶7 In March 2024, the district court issued an order denying

Nakai’s motion to recuse and his pro se Crim. P. 35(c) motion. As

pertinent here, the court noted that it had reviewed the Crim. P.

35(c) motion and found that it was timely filed but concluded that

the claims asserted therein were barred by Crim. P. 35(c)(3)(VI) or

otherwise without merit.

II. Discussion

¶8 Nakai contends that the order denying Crim P. 35(c) relief

must be reversed because either (1) the district court failed to follow

the procedural requirements of Crim. P. 35(c)(3)(V) or (2) the public

defender provided ineffective assistance by failing to respond as

required by Crim. P. 35(c)(3)(V). In the alternative, he contends that

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the court erred by denying postconviction relief without appointing

counsel.

¶9 Because we conclude that the district court did not comply

with the procedures set forth in Crim. P. 35(c)(3)(V), we reverse the

order and remand the case for the court to forward a complete copy

of Nakai’s motion to the public defender, or alternate defense

counsel, and to conduct further proceedings in accordance with

Crim. P. 35(c)(3)(V).

A. Standards of Review and Reversal

¶ 10 We review de novo the denial of a Crim. P. 35(c) motion

without a hearing and the interpretation of the rules of criminal

procedure. See People v. Higgins, 2017 COA 57, ¶ 11.

¶ 11 If a district court’s order does not comply with the provisions

of Crim. P. 35(c)(3)(V), we review for harmless error. People v.

Nozolino, 2023 COA 39, ¶ 8. “An error is not harmless, as relevant

here, if it affected the fairness of the district court proceedings.”

Higgins, ¶ 16.

B. Preservation

¶ 12 We reject the People’s assertion that Nakai’s claim on appeal

was not preserved, and thus subject to plain error review, because

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he did not challenge the procedure the district court implemented

in summarily denying his motion. Nakai requested counsel, and

this request was itself sufficient to preserve his challenge to the

court’s noncompliance with the procedures of Crim. P. 35(c)(3)(V).

See Nozolino, ¶ 9; Higgins, ¶¶ 6-10.

C. Analysis

¶ 13 Crim. P. 35(c)(3)(IV) permits a district court to deny a

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

the files, and the record clearly show that the defendant is not

entitled to relief. Higgins, ¶ 4. If the court does not summarily

deny the motion under Crim. P. 35(c)(3)(IV), Crim. P. 35(c)(3)(V)

requires the court to serve a complete copy of the motion on the

prosecuting attorney and, if the defendant has requested counsel,

on the public defender. Higgins, ¶ 5. The public defender then

determines whether it can represent the defendant and, if so,

“which claims (if any) lack arguable merit and should be

abandoned, which arguably meritorious claims (if any) should be

supplemented, and which new claims (if any) have arguable merit

and should be added.” People v. Segura, 2024 CO 70, ¶ 7.

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¶ 14 The parties’ dispute centers around whether the district

court’s October order triggered the provisions of Crim. P. 35(c)(3)(V).

Nakia contends that it did. The People contend that because the

court indicated that it would “approve [the appointment of counsel]

by separate order,” and subsequently failed to do so, the October

order was not a final determination of the merits of the claims

raised in Nakai’s motion. Instead, the People contend that the

court’s later March order was the court’s “final order.” Thus, the

People conclude that because the March order summarily denied

Nakai’s claims under Crim. P. 35(c)(3)(IV), the court was not

required to forward the motion to the public defender.

¶ 15 Our review of the record suggests that the People may have

overlooked an order that resolves this dispute. The same day the

district court issued its October order, it issued the second order

granting Nakai’s request for counsel. The bottom of Nakai’s form

application for counsel contains a “Staff Use Only” box where the

court approved the appointment of counsel request. Moreover, the

electronic register of actions in the underlying case, of which we

take judicial notice, see People v. Parks, 2021 COA 61, ¶ 1 n.1,

confirms that the court issued an order appointing counsel — titled

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“Order: Application for a State Paid Professional” — alongside the

October order. Therefore, the record belies the People’s assertion

that “no order was subsequently issued regarding the appointment

of counsel.”

¶ 16 Because the district court ruled in its October order that

Nakai’s pro se motion complied with Crim. P. 35(c)(3)(IV) and

warranted the appointment of counsel, its decision not to

summarily deny Nakai’s motion triggered its obligation to comply

with Crim. P. 35(c)(3)(V)’s procedure — namely, sending a complete

copy of the motion to the public defender. See Higgins, ¶ 15. While

the October order indicated that “[t]he clerk shall send a complete

copy of the [Crim. P. 35(c)] motion and the motion for recusal to the

special prosecutor and Public Defender’s Office,” it does not appear

this occurred. Certainly, the public defender never responded to

the appointment nor did they enter an appearance. By not sending

Nakai’s postconviction motion to the public defender, the court

effectively deprived Nakai of the opportunity to have the public

defender respond or add other claims with arguable merit. See id.

at ¶ 17.

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¶ 17 The district court’s procedural error is not harmless precisely

because the public defender can add claims it finds to have

arguable merit. We presume prejudice because the procedures

mandated by Crim. P. 35(c)(3)(V) inure to the defendant’s benefit.

People v. Davis, 2012 COA 14, ¶ 14. Thus, we must remand to the

district court to continue with the case at the point where it stopped

following the proper procedure. Nozolino, ¶ 36. Therefore, we

reverse the order denying Nakai’s pro se Crim. P. 35(c) motion and

remand the case for the court to forward a complete copy of the

motion to the public defender.

¶ 18 Last, we note that the public defender’s irreconcilable conflict

that precluded it from representing Nakai in this appeal may also

affect its ability to represent Nakai on his Crim. P. 35(c) motion.

The district court should resolve this question and proceed

accordingly. Once it is determined who will represent Nakai,

Nakai’s counsel should be provided with the opportunity to consider

and, if warranted, supplement the claims in his motion as required

by Crim. P. 35(c)(3)(V).

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¶ 19 Given our disposition of this appeal, we do not address Nakai’s

alternative contentions, nor do we express any opinion on the

merits of any of his pro se claims.

III. Disposition

¶ 20 The order is reversed, and the case is remanded for further

proceedings consistent with the views expressed in this opinion.

CHIEF JUDGE ROMÁN and JUDGE TAUBMAN concur.

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