23CA1843 Peo v Anderson 01-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1843 Arapahoe County District Court No. 90CR171 Honorable LaQunya Baker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Anderson,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE YUN Kuhn and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Brian Anderson, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Brian Anderson, appeals the postconviction court’s
order denying his August 4, 2023, petition for postconviction relief
pursuant to Crim. P. 35(c). Because his petition was filed almost
thirty-one years after his conviction became final and was therefore
time barred, we affirm.
I. Background
¶2 Anderson robbed a fast-food restaurant at gunpoint, took its
manager hostage, stole the manager’s car, and shot the manager in
the head a few miles away from the restaurant. Fortunately, the
manager survived. Two days later, Anderson was arrested in
Nebraska after he tried to flee from a state trooper during a
high-speed chase in the same stolen car.
¶3 In 1990, Anderson was convicted of several crimes related to
the robbery, kidnapping, and shooting in Colorado. See People v.
Anderson, slip op. at 1 (Colo. App. No. 91CA0029, June 25, 1992)
(not published pursuant to C.A.R. 35(f)). A division of this court
affirmed the judgment and sentence on direct appeal. Id. In doing
so, the division rejected Anderson’s claim that the trial court erred
by admitting evidence of his arrest in Nebraska (the Nebraska
1 evidence) under the res gestae doctrine. Id. at 3-5. The appellate
mandate was issued on December 29, 1992.
¶4 Anderson then filed several unsuccessful postconviction
motions and accompanying appeals. See People v. Anderson, (Colo.
App. No. 17CA1349, Mar. 29, 2018) (not published pursuant to
C.A.R. 35(e)); People v. Anderson, (Colo. App. No. 10CA0455,
July 14, 2011) (not published pursuant to C.A.R. 35(f)); People v.
Anderson, (Colo. App. No. 05CA2668, July 12, 2007) (not published
pursuant to C.A.R. 35(f)); People v. Anderson, (Colo. App.
No. 04CA1603, Sept. 1, 2005) (not published pursuant to C.A.R.
35(f)).
¶5 In 2022, Anderson filed a motion titled “Motion for
Appointment of Counsel[] Based on New Colorado Supreme Court
Ruling Abolishing Res Gestae.” Among other things, he sought the
appointment of counsel to challenge his conviction in light of the
supreme court’s abolishment of the res gestae doctrine in Rojas v.
People, 2022 CO 8. The postconviction court construed Anderson’s
motion as a Crim. P. 35(c) motion and summarily denied it.
Anderson appealed the order.
2 ¶6 A division of this court reversed the portion of the
postconviction court’s order addressing Anderson’s Rojas-based
claim on the merits. The division stated that the court had “erred
by converting Anderson’s motion for appointment of counsel into a
substantive Crim. P. 35(c) motion for postconviction relief and
addressing the merits of the claim for which Anderson sought legal
representation.” People v. Anderson, slip op. at 3 (Colo. App.
No. 22CA0912, June 1, 2023) (not published pursuant to C.A.R.
35(e)). The division dismissed the portion of the appeal challenging
the court’s denial of Anderson’s request for counsel, concluding that
the court of appeals lacked jurisdiction to review it because an
order denying such a motion is not final and appealable. Id. at 4-5.
¶7 In August 2023, Anderson filed the instant Crim. P. 35(c)
motion. Although it was filed nearly thirty-one years after his
conviction became final, Anderson checked a box indicating that the
motion was filed within the applicable three-year time limitation set
forth in section 16-5-402(1), C.R.S. 2024. As we understand his
argument, he asserted that his motion was timely because Rojas
was announced in 2022. He further asserted that he was entitled
to relief because “[s]econd courts must give retroactive effect to new
3 watershed rules of criminal procedure implicating the fundamental
fairness [and] accuracy of the criminal proceeding.”
¶8 The postconviction court denied the motion without a hearing.
The court acknowledged the three-year time limitation for collateral
attacks on non-class-1 felonies and the possibility that this time
limitation “does not apply if the [d]efendant’s claim is based on a
new rule of constitutional law that was previously unavailable, if
that rule should be applied retroactively to cases on collateral
review.” The court then concluded that although the abolishment
of the res gestae doctrine in Rojas was a new rule of criminal
procedure, it did not apply retroactively because it was neither a
“new substantive rule of constitutional law” nor “a ‘watershed’ rule
of criminal procedure.”
¶9 Anderson now appeals the denial of his August 2023 motion.
II. Standard of Review
¶ 10 We review de novo a postconviction court’s decision to
summarily deny a Crim. P. 35(c) motion. People v. Cali, 2020 CO
20, ¶ 14.
4 III. Claims Not Properly Before Us
¶ 11 Anderson asserts that the admission of res gestae evidence in
his case would have been “procedurally” and “constitutionally
correct” if it had not been “integrated with two elements” — namely,
(1) exculpatory evidence and (2) United States and Nebraska
Constitutional violations. He lists several items of allegedly
exculpatory evidence and claims that the admission of the Nebraska
evidence was unconstitutional under the United States and
Nebraska Constitutions. He further appears to claim that (1) the
state of Nebraska violated his Sixth Amendment rights by refusing
to appoint counsel for his criminal charges there; (2) the opinions of
the prosecution’s handwriting expert were based on improper,
unethical procedures; and (3) certain photographic line-ups were
improperly suggestive.
¶ 12 However, Anderson did not make any of these assertions in
the postconviction motion currently under review. Accordingly, we
decline to address them. See People v. Osorio, 170 P.3d 796, 801
(Colo. App. 2007) (allegations not raised in a Crim. P. 35(c) motion
are not properly before the appellate court).
5 IV. Anderson’s Rojas-Based Claim is Time Barred
¶ 13 Anderson reasserts, albeit in conclusory fashion, his claim
that “[s]econd courts must give retroactive effect to new watershed
rules of criminal procedure implicating the fundamental fairness
[and] accuracy of the criminal proceeding.” Like the postconviction
court, we construe this as a claim that the supreme court’s
abolishment of the res gestae doctrine in Rojas must be applied
retroactively to invalidate Anderson’s convictions.
¶ 14 However, as the postconviction court noted, a collateral attack
under Crim. P.
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23CA1843 Peo v Anderson 01-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1843 Arapahoe County District Court No. 90CR171 Honorable LaQunya Baker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Anderson,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE YUN Kuhn and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Brian Anderson, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Brian Anderson, appeals the postconviction court’s
order denying his August 4, 2023, petition for postconviction relief
pursuant to Crim. P. 35(c). Because his petition was filed almost
thirty-one years after his conviction became final and was therefore
time barred, we affirm.
I. Background
¶2 Anderson robbed a fast-food restaurant at gunpoint, took its
manager hostage, stole the manager’s car, and shot the manager in
the head a few miles away from the restaurant. Fortunately, the
manager survived. Two days later, Anderson was arrested in
Nebraska after he tried to flee from a state trooper during a
high-speed chase in the same stolen car.
¶3 In 1990, Anderson was convicted of several crimes related to
the robbery, kidnapping, and shooting in Colorado. See People v.
Anderson, slip op. at 1 (Colo. App. No. 91CA0029, June 25, 1992)
(not published pursuant to C.A.R. 35(f)). A division of this court
affirmed the judgment and sentence on direct appeal. Id. In doing
so, the division rejected Anderson’s claim that the trial court erred
by admitting evidence of his arrest in Nebraska (the Nebraska
1 evidence) under the res gestae doctrine. Id. at 3-5. The appellate
mandate was issued on December 29, 1992.
¶4 Anderson then filed several unsuccessful postconviction
motions and accompanying appeals. See People v. Anderson, (Colo.
App. No. 17CA1349, Mar. 29, 2018) (not published pursuant to
C.A.R. 35(e)); People v. Anderson, (Colo. App. No. 10CA0455,
July 14, 2011) (not published pursuant to C.A.R. 35(f)); People v.
Anderson, (Colo. App. No. 05CA2668, July 12, 2007) (not published
pursuant to C.A.R. 35(f)); People v. Anderson, (Colo. App.
No. 04CA1603, Sept. 1, 2005) (not published pursuant to C.A.R.
35(f)).
¶5 In 2022, Anderson filed a motion titled “Motion for
Appointment of Counsel[] Based on New Colorado Supreme Court
Ruling Abolishing Res Gestae.” Among other things, he sought the
appointment of counsel to challenge his conviction in light of the
supreme court’s abolishment of the res gestae doctrine in Rojas v.
People, 2022 CO 8. The postconviction court construed Anderson’s
motion as a Crim. P. 35(c) motion and summarily denied it.
Anderson appealed the order.
2 ¶6 A division of this court reversed the portion of the
postconviction court’s order addressing Anderson’s Rojas-based
claim on the merits. The division stated that the court had “erred
by converting Anderson’s motion for appointment of counsel into a
substantive Crim. P. 35(c) motion for postconviction relief and
addressing the merits of the claim for which Anderson sought legal
representation.” People v. Anderson, slip op. at 3 (Colo. App.
No. 22CA0912, June 1, 2023) (not published pursuant to C.A.R.
35(e)). The division dismissed the portion of the appeal challenging
the court’s denial of Anderson’s request for counsel, concluding that
the court of appeals lacked jurisdiction to review it because an
order denying such a motion is not final and appealable. Id. at 4-5.
¶7 In August 2023, Anderson filed the instant Crim. P. 35(c)
motion. Although it was filed nearly thirty-one years after his
conviction became final, Anderson checked a box indicating that the
motion was filed within the applicable three-year time limitation set
forth in section 16-5-402(1), C.R.S. 2024. As we understand his
argument, he asserted that his motion was timely because Rojas
was announced in 2022. He further asserted that he was entitled
to relief because “[s]econd courts must give retroactive effect to new
3 watershed rules of criminal procedure implicating the fundamental
fairness [and] accuracy of the criminal proceeding.”
¶8 The postconviction court denied the motion without a hearing.
The court acknowledged the three-year time limitation for collateral
attacks on non-class-1 felonies and the possibility that this time
limitation “does not apply if the [d]efendant’s claim is based on a
new rule of constitutional law that was previously unavailable, if
that rule should be applied retroactively to cases on collateral
review.” The court then concluded that although the abolishment
of the res gestae doctrine in Rojas was a new rule of criminal
procedure, it did not apply retroactively because it was neither a
“new substantive rule of constitutional law” nor “a ‘watershed’ rule
of criminal procedure.”
¶9 Anderson now appeals the denial of his August 2023 motion.
II. Standard of Review
¶ 10 We review de novo a postconviction court’s decision to
summarily deny a Crim. P. 35(c) motion. People v. Cali, 2020 CO
20, ¶ 14.
4 III. Claims Not Properly Before Us
¶ 11 Anderson asserts that the admission of res gestae evidence in
his case would have been “procedurally” and “constitutionally
correct” if it had not been “integrated with two elements” — namely,
(1) exculpatory evidence and (2) United States and Nebraska
Constitutional violations. He lists several items of allegedly
exculpatory evidence and claims that the admission of the Nebraska
evidence was unconstitutional under the United States and
Nebraska Constitutions. He further appears to claim that (1) the
state of Nebraska violated his Sixth Amendment rights by refusing
to appoint counsel for his criminal charges there; (2) the opinions of
the prosecution’s handwriting expert were based on improper,
unethical procedures; and (3) certain photographic line-ups were
improperly suggestive.
¶ 12 However, Anderson did not make any of these assertions in
the postconviction motion currently under review. Accordingly, we
decline to address them. See People v. Osorio, 170 P.3d 796, 801
(Colo. App. 2007) (allegations not raised in a Crim. P. 35(c) motion
are not properly before the appellate court).
5 IV. Anderson’s Rojas-Based Claim is Time Barred
¶ 13 Anderson reasserts, albeit in conclusory fashion, his claim
that “[s]econd courts must give retroactive effect to new watershed
rules of criminal procedure implicating the fundamental fairness
[and] accuracy of the criminal proceeding.” Like the postconviction
court, we construe this as a claim that the supreme court’s
abolishment of the res gestae doctrine in Rojas must be applied
retroactively to invalidate Anderson’s convictions.
¶ 14 However, as the postconviction court noted, a collateral attack
under Crim. P. 35(c) must be timely. Anderson’s motion was time
barred because it was filed more than three years after the mandate
was issued in his direct appeal. See § 16-5-402(1) (establishing a
three-year limitations period for collateral attacks on non-class-1
felonies); Hunsaker v. People, 2021 CO 83, ¶¶ 22, 26 (reaffirming
the notion that the three-year limitations period for collateral attack
starts running once a defendant’s direct appeal has been
exhausted).
¶ 15 A claim that is otherwise time barred may be asserted if it is
based on a new rule of constitutional law that applies retroactively.
See § 16-5-402(2)(d); People v. Rainer, 2013 COA 51, ¶¶ 24-29,
6 rev’d on other grounds, 2017 CO 50. In the context of a new
constitutional rule of criminal procedure, such a rule will apply
retroactively only if it is either (1) substantive in nature or (2) a
“watershed” procedural rule that implicates the fundamental
fairness and accuracy of the criminal proceeding. Teague v. Lane,
489 U.S. 288, 310 (1989); Edwards v. People, 129 P.3d 977, 983
(Colo. 2006) (adopting the Teague test to determine whether
constitutional rules of criminal procedure apply retroactively to
cases on collateral review).
¶ 16 Although the postconviction court analyzed the exceptions to
the general rule of nonretroactivity of new constitutional rules of
criminal procedure to convictions that were final when the new rule
was announced, see, e.g., Montgomery v. Louisiana, 577 U.S. 190,
198 (2016), we do not need to reach the question of retroactivity.
This is so because, despite any change Rojas brought to the
admission of other act evidence, “Rojas did not implicate a
constitutional rule” at all. People v. Cooper, 2023 COA 113, ¶ 11.
Thus, the exception to the time bar set forth in section
16-5-402(2)(d) does not apply.
7 ¶ 17 Accordingly, we affirm the order denying postconviction relief,
albeit on a slightly different basis. See People v. Vondra, 240 P.3d
493, 494 (Colo. App. 2010).
V. Disposition
¶ 18 The order is affirmed.
JUDGE KUHN and JUDGE BERGER concur.