Peo v. Bartelli

• Court: Colorado Court of Appeals
• Decided: April 9, 2026
• Docket: 24CA1625
• Status: Unpublished

Opinion

24CA1625 Peo v Bartelli 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1625 Pueblo County District Court No. 18CR1046 Honorable Thomas Flesher, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Teddy R. Bartelli,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE SCHUTZ Freyre and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026

Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Teddy R. Bartelli, Pro Se ¶1 Defendant, Teddy R. Bartelli, appeals the postconviction

court’s order denying his postconviction motion without a hearing.

We affirm.

I. Background and Procedural History

¶2 In 2018, while on parole, Bartelli robbed a Safeway cashier at

gun point and attempted to rob a Walmart cashier at gun point. He

was arrested and charged with (1) aggravated robbery; (2) two

counts of menacing; (3) four counts of possession of a weapon by a

previous offender; (4) misdemeanor theft; and (5) two crime of

violence sentence enhancers. The prosecution later added three

habitual offender counts.

¶3 In February 2020, Bartelli entered into a plea agreement with

the prosecution, by which he pleaded guilty to three added counts

of identity theft — all of which are class four felonies — in exchange

for having the remaining counts in this case dismissed and three

unrelated criminal cases dismissed. The added identity theft

counts alleged that each crime occurred on the same date using the

same financial device. The counts were added to facilitate the plea

agreement and were not based on the facts of the original counts.

1 ¶4 Bartelli stipulated to a factual basis for each of the offenses he

pleaded guilty to. And he did so with knowledge that the added

claims were fictitious and lacked a factual basis because they were

added to facilitate the plea agreement. In the plea, Bartelli agreed

he would be sentenced to a total of thirty-two years in the custody

of the Department of Corrections, plus three years of parole, in

exchange for the dismissal of the remaining counts and the other

cases. Bartelli acknowledged that he took the deal to avoid a

significantly longer sentence that could have been imposed if he

was convicted on the dismissed charges and cases.

¶5 Consistent with the plea agreement, Bartelli stipulated to a

twelve-year sentence on two of the added counts, and an eight-year

sentence on the third count, with all three sentences to run

consecutively. In October 2020, the plea court sentenced Bartelli in

accordance with the parties’ agreement.

¶6 In June 2024, Bartelli moved for postconviction relief under

Crim. P. 35(a) challenging the voluntariness of the plea agreement

because, prior to entering the agreement, the court advised him

concerning his rights and the consequences of the plea, which

Bartelli argued was an improper involvement in the plea

2 negotiation. Bartelli also asserted he was denied his right to a

speedy trial and that the added counts violated mandatory joinder

principles. Finally, he asserted that the plea court illegally ordered

the sentences to run consecutively rather than concurrently.

¶7 The postconviction court denied Bartelli’s motion without a

hearing after analyzing his claims under Crim. P. 35(a) and Crim. P.

35(c). Specifically, it found that

(1) The plea court appropriately advised Bartelli of his rights,

and that a guilty plea would result in a waiver of those

rights.

(2) Most of Bartelli’s claims, including the improper

involvement in plea negotiations, fell under Crim. P. 35(c)

and were untimely because they were filed more than

three years after his conviction became final, and Bartelli

failed to allege justifiable excuse or excusable neglect for

the tardy filing. See § 16-5-402(1), C.R.S. 2025 (three-

year deadline for filing a Crim. P. 35(c) motion arising out

of cases other than class 1 felonies).

(3) Bartelli’s sentence was not imposed in an illegal manner.

¶8 This appeal followed.

3 II. The Parties’ Contentions

¶9 At the outset, the parties dispute whether Bartelli’s claims are

cognizable under Crim. P. 35(a) or (c). In his postconviction motion,

Bartelli raised five claims: (1) the plea court violated his speedy trial

rights; (2) the plea court improperly inserted itself into the plea

negotiations; (3) the plea court erroneously denied him a

preliminary hearing; (4) the added charges violated compulsory

joinder principles; and (5) the plea court erroneously sentenced him

to consecutive sentences that were supported by the same evidence.

III. Bartelli’s Crim P. 35(c) Claims

¶ 10 The People contend that only the claim on the propriety of the

concurrent sentences is cognizable under Crim. P. 35(a) and that

the remaining claims should have been brought under Crim. P.

35(c). We agree.

A. Standard of Review and Applicable Law

¶ 11 We review the summary denial of a postconviction motion de

novo. People v. Duran, 2015 COA 141, ¶ 10.

¶ 12 The substance of a defendant’s claims, rather than the caption

of the motion or the authorities cited therein, control the question

of whether a claim is properly cognizable under Crim. P. 35(a) or (c).

4 See People v. Collier, 151 P.3d 668, 670 (Colo. App. 2006).

Pursuant to section 16-5-402(1), a Crim. P. 35(c) motion arising out

of a conviction for a class 4 felony must be brought within three

years of the sentence becoming final. In this case, Bartelli’s

conviction became final in October 2020, when the plea court

sentenced him.1

B. Analysis

¶ 13 Bartelli’s speedy trial, preliminary hearing, improper plea

involvement, and compulsory joinder claims are collateral attacks

on the judgment of conviction — meaning that Bartelli is

challenging the validity of the judgment of conviction — rather than

the legality of the sentence. See Crim. P. 35(c)(2)(I), (VI). Bartelli

filed his motion in October 2024. Accordingly, the postconviction

1 Bartelli did not directly appeal his conviction. See People v. Cichuniec, 2025 COA 33, ¶ 8 (concluding the mittimus reflecting convictions and sentences was a final judgment appealable when entered); see also Sanoff v. People, 187 P.3d 576, 579 (Colo. 2008) (concluding a defendant’s sentence, and therefore conviction, “became a final, appealable order upon issuance of the mittimus”).

5 court did not err by concluding that these claims were time barred.

§ 16-5-402(1).2

IV. Bartelli’s Crim. P. 35(a) Claim

¶ 14 The People concede and we agree that Bartelli’s argument

concerning the impropriety of consecutive sentences was properly

treated as a Crim. P. 35(a) claim which is not subject to section 16-

5-402(1)’s time bar. Thus, we turn to the merits of that claim.

A. Illegal Sentence Claims vs. Illegal Manner Claims

¶ 15 Crim P. 35(a) provides as follows: “Correction of Illegal

Sentence. The court may correct a sentence that was not

authorized by law or that was imposed without jurisdiction at any

time and may correct a sentence imposed in an illegal manner

within the time provided herein for the reduction of sentence.” As

the supreme court recently explained:

Crim. P. 35(a) allows a defendant in a criminal case to file a postconviction claim (1) to “correct a sentence that was not authorized by law or that was imposed without jurisdiction” or (2) to “correct a sentence imposed in an illegal manner.” The former is an illegal

2 We also note that Bartelli did not allege justifiable excuse or

excusable neglect before the postconviction court or before this court until his reply brief. We do not address claims asserted for the first time in a reply brief. In Interest of L.B., 2017 COA 5, ¶ 48.

6 sentence claim; the latter is an illegal manner claim.

Tennyson v. People, 2025 CO 31 ¶ 25 (quoting Crim. P. 35(a)).

¶ 16 Thus, Crim. P. 35(a) recognizes both an illegal sentence and a

sentence imposed in an illegal manner. There is no time limit for

bringing an illegal sentence claim. Crim P. 35(a). But an illegal

manner claim must be filed within 126 days of the sentence

becoming final. Crim. P. 35(a)-(b).

¶ 17 In Tennyson, the supreme court provided examples of

sentences that fall within the purview of a sentence that is

unauthorized by law and therefore illegal. One of the examples

provided was “when a court orders sentences to run concurrently,

even though a statute requires them to run consecutively[.]” Id. at

¶ 26 (citing People v. White, 179 P.3d 58, 60 (Colo. App. 2007)).

That is the essence of Bartelli’s claim: that section 18-1-408, C.R.S.

2025 prohibited the plea court from running his sentences

consecutively. We conclude this is an illegal sentence claim based

on the argument that the sentence was not authorized by law.

Tennyson, ¶ 26. Thus, the claim is not time barred.

7 ¶ 18 We turn now to whether Bartelli actually asserted a viable

claim that his consecutive sentences violated section 18-1-408.

B. The Court’s Ability to Impose Consecutive Sentences

¶ 19 Section 18-1-408(2) requires the district attorney to bring all

claims in a single prosecution that “are based on the same act or

series of acts arising from the same criminal episode.” Section 18-

1-408(3) provides that “[w]hen two or more offenses are charged as

required by subsection (2) of this section and they are supported by

identical evidence . . . [and] one guilty verdict is returned as to any

defendant in a prosecution where multiple counts are tried as

required by subsection (2) of this section, the sentences imposed

shall run concurrently; except that, where multiple victims are

involved, the court may, within its discretion, impose consecutive

sentences.” (Emphasis added.) To determine whether the evidence

is identical, courts must consider “whether the charges result from

the same act, so that the evidence of the act is identical.” Juhl v.

People, 172 P.3d 896, 902 (Colo. 2007).

¶ 20 Based on the parties’ agreement, Bartelli pleaded guilty to

three counts of identity theft, which occurs when a person

“[k]nowingly uses the personal identifying information, financial

8 identifying information, or financial device of another without

permission or lawful authority with the intent to obtain cash, credit,

property, services, or any other thing of value or to make a financial

payment.” § 18-5-902(1)(a), C.R.S. 2025. Identity theft is not a

continuing offense. Allman v. People, 2019 CO 78, ¶ 20. When a

person is convicted of multiple identity theft charges based on his

use of a third party’s financial device, the separate uses of the

device constitute separate acts of identity theft. Id.

¶ 21 If multiple counts of identity theft are supported by evidence

unique to each charge, the evidence is not identical within section

18-1-408’s meaning. See id. at ¶¶ 25-27. Thus, in such

circumstances a plea court does not abuse its discretion by running

the sentences consecutively rather than concurrently. See id.

C. Analysis

¶ 22 Bartelli contends that the plea court violated section 18-1-

408(3) because each count in his plea involved the same conduct,

was committed on the same day, and involved the same victim.

¶ 23 The People argue that the claim fails on the merits because

Bartelli stipulated that there was a factual basis for the added

counts in the plea agreement and to consecutive sentencing on

9 those counts. Moreover, as the People note, because the counts

were added for the sake of the plea agreement, there is no

underlying evidence to support the conclusion that the three counts

are based on identical evidence. We agree with the People.

¶ 24 For Bartelli to prevail on his consecutive sentence claim, he

was required to prove that the three identity theft counts resulted

“from the same act, so that the evidence of the act is identical.”

Juhl, 172 P.3d at 902 (“[T]he test for identical evidence is an

evidentiary test rather than an elemental test.”). The mere

possibility that identical evidence might support multiple

convictions does not, alone, deprive a court of the ability to impose

a consecutive sentence. People v. Torrez, 2013 COA 37 ¶ 33.

“Instead, the statute requires courts to impose concurrent

sentences ‘only when the evidence will support no other reasonable

inference than that the convictions were based on identical

evidence.’” Id. (quoting Juhl, 172 P.3d at 900).

¶ 25 Bartelli pleaded guilty to three separate counts of identity

theft, each committed on the same day using the same victim’s

financial device. Contrary to Bartelli’s argument, the fact that these

three offenses were committed on the same day using the same

10 victim’s financial device does not render them one offense. It is

entirely possible for a defendant to use a financial device, such as a

credit card, on three different occasions in a single day without

permission or lawful authority with the intent to obtain cash, credit,

property, services, or any other thing of value or to make a financial

payment. See § 18-5-902(1)(a). That is how these three offenses

were charged, and Bartelli pleaded guilty to those charges.

¶ 26 As Bartelli points out, the added charges did not name or

describe in detail where or at what time of day the financial device

was used. But it does not necessarily follow, as Bartelli’s argument

assumes, that the three unauthorized uses were made at the same

place and time. And, of course, these were fictitious charges added

to facilitate the plea agreement that the parties had reached.

Bartelli knew the charges were fictitious and intended to facilitate

the plea. And with that full knowledge he admitted that there was a

factual basis for the pleas and pleaded guilty to them. He then

stipulated to the sentences running consecutively.

11 ¶ 27 As a division in this court reasoned in People v. Maestas, 224

P.3d 405, 409 (Colo. App. 2009):

[B]y waiving the establishment of a factual basis for the added second degree assault charge, defendant also waived [his] right to rely on section 18-1-408(3). If defendant had wanted to ensure that all of the sentences imposed pursuant to the plea bargain would be subject to the concurrent sentencing mandate of section 18-1-408(3), [he] could have rejected any plea agreement that called for guilty pleas to multiple charges unless the charges were clearly based on identical evidence; or, more simply, [he] could have achieved the same result by rejecting any plea agreement that did not include a stipulation for concurrent sentences.

The same rationale controls here. Thus, we find his argument that

all of the offenses were based on a single event is inconsistent with

the terms of the plea agreement, his representations to the court,

and his guilty plea to each separate count. The postconviction

court therefore did not err by summarily dismissing his illegal

sentence claim.

V. Disposition

¶ 28 The postconviction court’s order is affirmed.

JUDGE FREYRE and JUDGE BROWN concur.