Peo v. Ahuero

• Court: Colorado Court of Appeals
• Decided: March 5, 2026
• Docket: 24CA1412
• Status: Unpublished

Opinion

24CA1412 Peo v Ahuero 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1412 City and County of Denver District Court No. 12CR1562 Honorable W. Terry Ruckriegle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Stephen J. Ahuero,

Defendant-Appellant.

APPEAL DISMISSED

Division III Opinion by JUDGE MOULTRIE Dunn and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 5, 2026

Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Adrienne R. Teodorovic, Alternate Defense Counsel, Windsor, 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 Stephen J. Ahuero appeals the postconviction court’s denial of

his Crim. P. 35(c) motion for postconviction relief. He contends that

his trial counsel was ineffective by failing to challenge a juror for

cause and thereby allowing a biased juror to serve on the jury. We

conclude that Ahuero’s notice of appeal was untimely and dismiss

the appeal.

I. Background

¶2 In April 2012, Ahuero was charged with one count of sexual

assault on a child and one count of sexual assault on a child —

position of trust. A jury found him guilty as charged.

¶3 On direct appeal, a division of this court reversed Ahuero’s

convictions. People v. Ahuero, (Colo. App. No. 13CA0453, Sept. 17,

2015) (not published pursuant to C.A.R. 35(f)) (Ahuero I). Our

supreme court reversed and remanded the case to this court to

decide several issues that were not decided in Ahuero I. People v.

Ahuero, 2017 CO 90, ¶ 17 (Ahuero II). On remand, the division

affirmed Ahuero’s convictions. People v. Ahuero, (Colo. App. No.

13CA0453, Feb. 1, 2018) (not published pursuant to C.A.R. 35(e))

(Ahuero III).

1 ¶4 In October 2018, Ahuero timely filed a Crim. P. 35(c) petition

for postconviction relief. The postconviction court appointed him

counsel, and postconviction counsel filed a supplement. The

postconviction court denied several of Ahuero’s claims without a

hearing. However, the court held a two-day hearing on nine claims

of ineffective assistance by Ahuero’s trial counsel, including, as

relevant here, that his counsel was ineffective with respect to his

voir dire questioning of a specific juror, “Juror V” (voir dire claim).

¶5 In November 2022, the postconviction court issued an order

granting in part and denying in part Ahuero’s claims of ineffective

assistance of trial counsel (Rule 35(c) order). The court found

multiple instances of deficient representation. Accordingly, the

postconviction court vacated Ahuero’s convictions and ordered a

new trial. But the postconviction court rejected Ahuero’s remaining

assertions of ineffective assistance, including his voir dire claim —

the issue in this appeal.

¶6 In January 2023, the People timely filed a notice of appeal of

the Rule 35(c) order. See People v. Ahuero, slip op. at ¶ 14 (Colo.

App. No. 23CA0096, Jan. 25, 2024) (not published pursuant to

C.A.R. 35(e)) (Ahuero IV). The Ahuero IV division reversed the

2 postconviction court, concluding in part that there weren’t “any

instances of trial counsel’s deficient performance that prejudiced

defendant, . . . let alone multiple instances of prejudice, that would

justify vacating defendant’s convictions.” Ahuero IV, slip. op. at

¶ 52. Neither party raised, nor did the division address, the

postconviction court’s denial of Ahuero’s voir dire claim.

¶7 On June 24, 2024, the supreme court denied Ahuero’s petition

for writ of certiorari, and the mandate issued the next day. Ahuero

filed a motion for appointment of appellate counsel and to proceed

in forma pauperis shortly thereafter. The postconviction court

expressed concerns about “what grounds exist to appeal this

[c]ourt’s prior Crim. P. 35(c) ruling given that an appeal of that

[o]rder to the appellate courts has already been completed and

returned to this [c]ourt,” but it granted the motion considering “the

long history of this matter.”

¶8 On August 6, 2024, 615 days after the postconviction court

issued its Rule 35(c) order but 42 days after the Ahuero IV mandate

issued, Ahuero filed the notice of appeal in this case.

3 II. Analysis

¶9 Ahuero contends that the postconviction court erred when it

denied his voir dire claim. The People assert that we should not

reach this appeal’s merits because Ahuero’s (1) notice of appeal was

untimely and we therefore lack jurisdiction; (2) claim is successive

under Rule 35(c)(3)(VII); and (3) arguments differ from those he

raised to the postconviction court and are thus unpreserved.

Ahuero argues that his appeal is timely because ripeness and/or

mootness concerns didn’t allow him to challenge unfavorable

rulings in the Rule 35(c) order during the Ahuero IV appeal.

A. Ahuero’s Notice of Appeal Is Untimely

¶ 10 We lack jurisdiction to consider an untimely appeal. People v.

Baker, 104 P.3d 893, 895 (Colo. 2005). “Timeliness is determined

by the Colorado Appellate Rules.” Chavez v. Chavez, 2020 COA 70,

¶ 20 (citing C.A.R. 4(a)); see People v. Jenkins, 2025 COA 90, ¶ 12

(applying Chavez to C.A.R. 4(b)). C.A.R. 4(b)(1) provides that,

absent exceptions not relevant here, a criminal defendant’s “notice

of appeal must be filed in the appellate court and an advisory copy

served on the lower court within 49 days after entry of the judgment

or order appealed from.” And “[a] judgment or order is entered

4 within the meaning of [C.A.R. 4(b)] when it is entered in the

criminal docket.” C.A.R. 4(b)(4).

¶ 11 Ahuero argues his appeal is timely because until the Ahuero IV

division decided the People’s appeal, any appeal he might have

brought was not ripe because his postconviction motion was

partially granted. And he argues that any cross-appeal would have

been moot had the Ahuero IV division denied the People’s appeal.

But the timeliness of Ahuero’s appeal is based on when the

postconviction court entered the Rule 35(c) order — not when, by

Ahuero’s assessment, certain issues were “ripe” or “not moot”

because of the division’s resolution of Ahuero IV. Ahuero therefore

needed to file any notice of appeal within 49 days after the

postconviction court entered the Rule 35(c) order; that the People

appealed doesn’t change that requirement. His notice of appeal in

this case, which was filed nearly two years after the postconviction

court entered its order, is untimely.

B. Ahuero Has Not Established Good Cause for This Court to Accept His Untimely Notice of Appeal

¶ 12 We could still exercise our discretion to accept the untimely

notice of appeal if we find good cause to do so.

5 C.A.R. 26(b) allows the appellate court to enlarge the time for filing or permit an act to be done after the expiration of a deadline for good cause shown. C.A.R. 2 also allows the court of appeals to suspend the requirements or provisions of any of the appellate rules in a particular case “in the interest of expediting decision, or for other good cause shown.” Taken individually and collectively, the Rules confer discretion on the court of appeals to extend jurisdiction over appeals filed outside the forty-[nine] day time limit under certain circumstances upon a showing of excusable neglect or good cause.

Baker, 104 P.3d at 896 (citation omitted).

¶ 13 Our “discretion in accepting late-filed notices of appeal is

broad” but “may not be exercised in a manner that is arbitrary,

unreasonable or unfair.” Id. “The determination of whether good

cause exists naturally depends on the particular facts of each case

and should be made after assessing the totality of the

circumstances.” Id. Three nonexclusive factors that we may

consider include “1) the potential prejudice the People may suffer

from late filing, 2) the interests of judicial economy, and 3) the

propriety of requiring the defendant to pursue other remedies.” Id.

at 896-97.

6 ¶ 14 We directed the parties to submit supplemental briefing

regarding whether there is good cause, under Baker, for us to

accept Ahuero’s notice of appeal if we determined it to be untimely.

Ahuero argues that there is good cause to accept his untimely

notice of appeal because (1) there is no prejudice to the People in

allowing this appeal to proceed on the merits because, as indicated

by his zealous defense of the Rule 35(c) order in the Ahuero IV

appeal, the People were on notice of his intent to seek affirmance of

that order; (2) any failure to timely file a cross-appeal of the Rule

35(c) order is attributable to his prior postconviction counsel rather

than to him; and (3) addressing his arguments’ merits is in the

interest of judicial economy because dismissing this appeal will

likely result in additional postconviction proceedings and “[f]urther

delay will serve neither society’s nor Ahuero’s interest in finality.”

And at oral argument, Ahuero’s attorney suggested that his

circumstances are similar to those that led the supreme court to

find good cause in Estep v. People, 753 P.2d 1241 (Colo. 1988), the

case which informs Baker. We aren’t persuaded.

¶ 15 Even assuming that there is limited prejudice to the People

(which the People acknowledge), we disagree that the circumstances

7 of this case are such that there is good cause for this court to

accept Ahuero’s untimely appeal for three reasons.

¶ 16 First, we disagree with Ahuero that the circumstances here are

akin to those in Estep. In Estep, the postconviction court — at the

urging of both parties — attempted to extend the deadline to appeal

the denial of the defendant’s Rule 35(c) motion so the court could

retain jurisdiction to decide pending Rule 35(a) and Rule 35(b)

motions. Id. at 1243-44. But in part because “parties may not

extend filing deadlines by stipulation without the approval of the

appellate court,” id. at 1246, and in part due to clear inexcusable

negligence by defense counsel, the defendant’s notice of appeal was

rejected as untimely by a division of this court. See id. at 1244-46.

The supreme court reversed, concluding that the circumstances

“establish[ed] good cause for the untimely filing of the notice of

appeal under C.A.R. 26(b).” Id. at 1249.

¶ 17 The circumstances here differ from those in Estep in a

significant way because, unlike with the defendant in Estep, neither

the People nor the postconviction court contributed to Ahuero’s

untimely appeal. See id. at 1248 (“[W]e cannot ignore the fact that

the defendant’s attempt to accommodate the People’s preference for

8 a single appeal — and the necessity that the trial court delay

consideration of the pending Rule 35(a) and 35(b) motions —

contributed in part to the untimely filing.”); see also Baker, 104

P.3d at 897 (“Baker’s failure to file a timely appeal can be attributed

to the failure of both his trial counsel and the trial court to perform

duties owed to criminal defendants.”). Moreover, in Estep it was

“clear from the circumstances . . . that defense counsel’s neglect

was inexcusable,” Estep, 753 P.2d at 1247, whereas here it’s not

clear whether Ahuero’s prior counsel’s decision not to raise the voir

dire claim in the Ahuero IV appeal constituted strategy or neglect.

¶ 18 Second, to the extent that Ahuero argues that his concerns

about ripeness or mootness are circumstances that we should

consider — and weigh in his favor — to conclude that there is good

cause to accept his untimely appeal, we reject that argument.

Whether an issue raised on appeal is ripe or moot is ultimately a

legal determination for this court, see People v. Vigil, 2023 COA 12,

9 ¶¶ 12, 15, and Ahuero failed to raise these concerns during the

Ahuero IV appeal.1

¶ 19 Third, contrary to Ahuero’s assertions, he could have

challenged the postconviction court’s denial of his ineffective

assistance claim during the Ahuero IV appeal. C.A.R. 3(h)

contemplates cross-appeals in all cases, not just civil cases,2 and

cross-appeals by criminal defendants are not uncommon. See, e.g.,

People v. Dunlap, 124 P.3d 780, 792 (Colo. App. 2004) (“By

cross-appeal, defendant challenges the partial denial of his [Rule

35(c)] motion.”). Divisions of this court have acknowledged the right

to cross-appeal even when the district court grants a criminal

defendant his full requested relief. See People v. Hansen, 972 P.2d

283, 284 (Colo. App. 1998) (in an appeal of an order granting a Rule

35(c) motion, noting that the defendant did not cross-appeal the

1 Although the answer brief Ahuero filed in Ahuero IV is not in the

record on appeal, we take judicial notice of it under CRE 201. See People v. Linares-Guzman, 195 P.3d 1130, 1135 (Colo. App. 2008) (“A court may take judicial notice of its own records.”). 2 C.A.R. 4(b) doesn’t specifically address cross-appeals, but that

doesn’t mean that the rule prohibits them. Instead, by “not provid[ing] for sequential submissions, as is provided for civil cross- appeals,” the rule “mandates that both parties submit their notices of appeal during the same forty-[nine]-day period.” People v. Gilmore, 97 P.3d 123, 128 (Colo. App. 2003).

10 postconviction court’s “determination as to sufficiency of the

evidence concerning permanent disfigurement nor its failure to

address his remaining contentions”); People v. Kovacs, 2012 COA

111, ¶ 20 (in an appeal of criminal charges dismissed for lack of

probable cause, declining to address an argument rejected by the

district court because the defendant hadn’t renewed the argument

“either by way of a conditional cross-appeal or by way of an

alternative argument for affirmance”); see also People v. Notyce,

2014 COA 52, ¶ 18 (Webb, J., specially concurring) (concluding that

“applying a procedural bar based on [a] defendant’s failure to

cross-appeal is consistent with Colorado criminal cases”).

¶ 20 Further, since Ahuero was only seeking affirmance of the Rule

35(c) order, he could have raised his voir dire claim as an

alternative argument in support of the order without needing to

cross-appeal — even if such an argument required prior counsel to

challenge the postconviction court’s conclusions with respect to the

denied claims. See Blocker Expl. Co. v. Frontier Expl., Inc., 740 P.2d

983, 989 (Colo. 1987) (“An appellee ‘may, without taking a

cross-appeal, urge in support of a decree any matter appearing in

the record, although his argument may involve an attack upon the

11 reasoning of the lower court . . . .’” (quoting United States v. Am. Ry.

Express Co., 265 U.S. 425, 435 (1924))); Kovacs, ¶ 20; see also

People v. Hamm, 2019 COA 90, ¶ 23 (appellate courts review a

postconviction court’s legal conclusions de novo and may affirm the

postconviction court’s order on any ground supported by the

record).

¶ 21 We recognize that if we decline to accept Ahuero’s notice of

appeal, he might have a cognizable claim for ineffective assistance

of counsel that would be required to be litigated through additional

postconviction proceedings under Rule 35(c). See Jenkins, ¶ 22.

But that process may be appropriate under the circumstances here.

The record before us doesn’t contain any information surrounding

the circumstances leading up to Ahuero IV. Cf. Estep, 753 P.2d at

1246 (The defendant’s C.A.R. 26(b) motion included “an explanation

of the agreement reached between the trial court, the People, and

the defense”; affidavits from his attorneys; and a transcript of the

“hearing at which the parties and the trial court discussed the best

manner in which to proceed with the appeal.”). By going through

the postconviction process, the parties and the postconviction court

will have the opportunity to develop the record regarding whether

12 Ahuero’s prior counsel’s failure to timely pursue an appeal of the

Rule 35(c) order resulted from a reasonable strategic decision, see

People v. Smith, 2024 CO 3, ¶ 26 (the determination of which

appellate claims to pursue is a strategic decision entrusted to

counsel), or from deficient conduct that entitles him to relief, see

People v. Sharp, 2019 COA 133, ¶ 30 (defendant must show actual

prejudice unless counsel’s ineffectiveness caused the complete

forfeiture of an appeal as matter of right or a postconviction

proceeding).

¶ 22 Because we conclude Ahuero hasn’t established good cause for

filing of his notice of appeal untimely, we don’t reach his appeal’s

merits or the People’s other arguments in opposition to the same.

III. Disposition

¶ 23 Ahuero’s appeal is dismissed.

JUDGE DUNN and JUDGE HAWTHORNE concur.