Peo v. Benhmida

• Court: Colorado Court of Appeals
• Decided: September 25, 2025
• Docket: 23CA0407
• Status: Unpublished

Opinion

23CA0407 Peo v Benhmida 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0407 Arapahoe County District Court No. 15CR1270 Honorable Ryan J. Stewart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nicholas Nabill Benhmida,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE SCHUTZ Grove, J., concurs J. Jones, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 25, 2025

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

R. Scott Reisch, Alternate Defense Counsel, Robert F. LeVeen, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Nicholas Nabill Benhmida, appeals the

postconviction court’s order denying his Crim. P. 35 motion without

a hearing. We affirm.

I. Background and Procedural History

A. Crime, Plea Terms, and Sentence

¶2 In May 2015, Benhmida, who was indigent and unhoused,

visited his mother and stepfather in Arapahoe County. Benhmida

and his stepfather started arguing, which culminated with

Benhmida fatally shooting him. Benhmida fled the home and drove

to a local animal hospital in Jefferson County where he held two

employees at gunpoint and demanded that they give him animal

euthanasia drugs. Police arrested him shortly after he left the

animal hospital. Benhmida was initially charged with first degree

murder, aggravated robbery of a controlled substance, menacing,

two counts of false imprisonment, and two crime of violence

sentence enhancers.

¶3 The court set the matter for a jury trial; however, in July 2016,

Benhmida pleaded guilty to added counts of second degree murder

and aggravated robbery, in exchange for dismissal of the remaining

counts. In accordance with the plea agreement, the court

1 sentenced Benhmida to twenty-five years in the custody of the

Department of Corrections.

B. Postconviction Appeal

¶4 In 2022 — six years after he entered the plea — Benhmida

filed a pro se motion, purportedly under Crim. P. 35(a), in which he

asserted claims that (1) he received ineffective assistance of plea

counsel; (2) the court improperly held him without bond which

resulted in a violation of his Sixth Amendment right to counsel of

his choice; (3) the prosecution engaged in misconduct; (4) his

mental health struggles impacted the validity of his plea; (5) venue

was improper; and (6) the court lacked subject matter jurisdiction.1

1 Benhmida challenged the Arapahoe County district court’s

jurisdiction because some of the criminal actions occurred in Jefferson County. The postconviction court denied his claim because every district court is a court of general jurisdiction authorized to preside over cases involving crimes committed wholly or partially within Colorado’s boundaries, and Benhmida admitted to crimes committed in Arapahoe County, thereby admitting to the factual basis of the court’s jurisdiction and venue. See § 18-1- 201(1)(a), C.R.S. 2025 (“A person is subject to prosecution in this state for an offense which he commits . . . either wholly or partly within the state . . . .”); People v. Gardner, 250 P.3d 1262, 1271 (Colo. App. 2010) (guilty plea established factual basis for court’s jurisdiction).

2 ¶5 Benhmida seemingly recognized that his motion was filed

beyond the three-year deadline applicable to Crim. P. 35(c) motions.

See § 16-5-402(1), C.R.S. 2025 (three-year deadline for filing a

Crim. P. 35(c) motion arising out of non-class 1 felonies). In an

apparent effort to avoid the time bar, Benhmida brought his motion

under Crim. P. 35(a), which allows a defendant to challenge an

illegal sentence at any time. Alternatively, Benhmida argued that

his tardy filing was the product of excusable neglect or justifiable

excuse attributable to his mental health struggles, lack of legal

knowledge, counsel’s advice when he accepted the plea agreement

that he could not “appeal or change” his sentence, and inability to

hire an attorney. See § 16-5-402(2)(d) (a court may accept a tardy

filing when “the failure to seek relief within the applicable time

period was the result of circumstances amounting to justifiable

excuse or excusable neglect”).

¶6 The postconviction court treated Benhmida’s motion as one

filed under Crim. P. 35(c) and summarily denied it after finding that

his substantive claims failed on the merits and were untimely.

Benhmida appeals this order.

3 II. Right to Counsel Claim

¶7 On appeal, Benhmida raises only one substantive claim: the

postconviction court erred by failing to address his contention that

he was denied counsel of his choice. Although Benhmida makes

several other arguments — again trying to justify his late filing as

the product of justifiable excuse or excusable neglect — we need not

address those arguments unless we determine that his lone

substantive claim is meritorious.

A. Applicable Law

1. Abandoned Claims

¶8 At the outset, we note that Benhmida failed to appeal the

summary denial of the other substantive claims asserted in his

motion; therefore, those claims are deemed abandoned and we do

not address them further. See People v. Ortega, 266 P.3d 424, 428

(Colo. App. 2011) (explaining that contentions from a postconviction

motion that are not pursued on appeal are deemed abandoned).

2. Standard of Review and Preservation

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

novo. People v. Duran, 2015 COA 141, ¶ 10. The People argue that

Benhmida did not adequately preserve his counsel of choice claim

4 because he failed to raise it before the district court. See Martinez

v. People, 2015 CO 16, ¶ 14 (To preserve an issue for appeal, “a

party must present the trial court with ‘an adequate opportunity to

make findings of fact and conclusions of law’ on the issue.” (quoting

People v. Melendez, 102 P.3d 315, 322 (Colo. 2004))).

¶ 10 Benhmida contends that he adequately raised the claim,

pointing to the following allegation from his motion: “I believe there

was no way this was a capital case, bond was constitutionally

required. Denial hindered my right to a fair trial as I could not get

my affairs in order or liquidate my assets and secure better

representation.”

¶ 11 We acknowledge that Benhmida represented himself in the

postconviction court, and that he arguably alleged he was denied

the right to counsel of his choice. See People v. Bergerud, 223 P.3d

686, 696-97 (Colo. 2010) (we generally disfavor declining to review a

constitutional claim because of a petitioner’s “inability to articulate

[their] concerns within the legal lexicon”). On the other hand, as

the People note, this allegation was mixed in with allegations of

wrongful denial of bail and prosecutorial misconduct, none of which

were fully developed. Nevertheless, even if we assume — without

5 deciding — that Benhmida preserved the counsel of choice

argument, we conclude it fails for other reasons.

3. Crim. P. 35(a) and 35(c)

¶ 12 A postconviction motion’s substance controls whether it is a

Crim. P. 35(a) or 35(c) motion. People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006). Under Crim. P. 35(a), a 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.” A sentence is “not authorized by law” if it is inconsistent with the statutory scheme outlined by the legislature.

Collier, 151 P.3d at 670 (quoting Crim. P. 35(a)).

¶ 13 In contrast, a Crim. P. 35(c) motion is the proper vehicle to

challenge a conviction “obtained or sentence imposed in violation of

the Constitution or laws of the United States or the constitution or

laws of this state” or on “[a]ny grounds otherwise properly the basis

for collateral attack upon a criminal judgment.” Crim. P. 35(c)(2)(I),

(VI).

¶ 14 Benhmida’s postconviction motion did not assert that his

sentence is inconsistent with the statutory scheme, so the

6 postconviction court correctly treated the motion as one brought

under Crim. P. 35(c). Neither party challenges that conclusion on

appeal, so we do not address it further.

¶ 15 A postconviction court may deny a Crim. P. 35(c) motion

without a hearing if (1) “the motion, files, and record in the case

clearly establish that the allegations presented in the defendant’s

motion are without merit and do not warrant postconviction relief,”

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003); (2) “the claims raise

only an issue of law, or . . . the allegations, even if true, do not

provide a basis for relief,” People v. Venzor, 121 P.3d 260, 262 (Colo.

App. 2005); or (3) the allegations are “merely conclusory, vague, or

lacking in detail,” People v. Osorio, 170 P.3d 796, 799 (Colo. App.

2007). A defendant need not provide evidentiary support for the

allegations in his postconviction motion but must assert facts that,

if true, could provide a basis for relief. White v. Denv. Dist. Ct., 766

P.2d 632, 635 (Colo. 1988).

4. The Sixth Amendment Right to Counsel of Choice

¶ 16 The United States and Colorado Constitutions afford a

criminal defendant the right to be represented by counsel of their

choice in state criminal prosecutions if the defendant faces

7 incarceration. Ronquillo v. People, 2017 CO 99, ¶ 15 (citing Gideon

v. Wainwright, 372 U.S. 335, 342 (1963)); see U.S. Const. amend.

VI; Colo. Const. art. II, § 16. The right to counsel of choice applies

whenever a defendant seeks to hire private counsel. Ronquillo,

¶ 20.

¶ 17 The right to be represented by counsel of a defendant’s

choosing is not implicated by “vague request[s] to ‘look for and pay

for an attorney.’” People v. Travis, 2019 CO 15, ¶ 17. Rather, the

defendant may invoke the right to counsel of choice when the

retention of counsel is “substantially definite, in name and in

funds.” People v. Sifuentes, 2019 COA 106, ¶ 12.

¶ 18 To establish a viable claim for denial of the right to counsel of

choice, a defendant must show the following:

• They had the means to hire counsel or that there was non-

court-appointed counsel “willing to represent the defendant

even though he is without funds.” United States v.

Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting Caplin &

Drysdale, Chartered v. United States, 491 U.S. 617, 624-25

(1989)).

8 • The court’s action directly or indirectly denied the defendant

their counsel of choice. United States v. Alcorta, No. 20-

3198, 2023 WL 3835789, at *7 (10th Cir. 2023).

• The court’s denial of their chosen counsel was not justified

by legitimate considerations such as conflicts of interest,

fairness, ethical violations, or the court’s need to manage its

docket. Gonzalez-Lopez, 548 U.S. at 151-52.

B. Analysis

¶ 19 In his motion, Benhmida alleged that the court violated his

Sixth Amendment right to counsel by holding him without bond

because, as a consequence of being denied bail, he could not “get

[his] affairs in order or liquidate [his] assets and secure better

representation.” On appeal, he contends that the postconviction

court erred by failing to address his counsel of choice claim because

“[n]othing in the record clearly establishes [that he] could not have

secured the resources to hire private counsel nor that he could have

secured counsel of choice despite his no-bond hold.” Thus,

Benhmida urges us to reverse the court’s order and “direct the

[postconviction] court to consider his claim [that] he was denied his

Sixth Amendment right to counsel of his choice and should it find

9 the claim has arguable merit, appoint counsel to investigate and

supplement his petition.”

¶ 20 The People argue that Benhmida’s counsel of choice claim was

not viable because his allegations were conclusory, undeveloped,

and not supported by legal authorities. The People also note that

the claim fails on its merits because when Benhmida was arrested,

he was unhoused, unemployed, and indigent, and the motion failed

to explain how he would have been able to hire or otherwise engage

private counsel to represent him.

¶ 21 We agree with the People that Benhmida’s claim fails for

multiple reasons. Benhmida did not identify an attorney whom he

had arranged to retain or allege facts explaining how he would have

been able to engage private counsel. Moreover, he fails to identify

any part of the record where he informed the district court that he

desired to hire private counsel to replace his public defender. In the

absence of any allegations supporting these basic propositions,

Benhmida’s claim fails.

¶ 22 Furthermore, in his postconviction motion, and on appeal,

Benhmida makes only vague assertions, unsupported by specific

factual allegations or legal authorities. The claim was — at best —

10 conclusory and undeveloped. Osorio, 170 P.3d at 799. We

therefore conclude that the postconviction court did not err by

failing to expressly address it. Ardolino, 69 P.3d at 77; People v.

Taylor, 2018 COA 175, ¶ 8 (“[W]e may affirm a [postconviction]

court’s ruling for any reason supported by the record.”).

¶ 23 Because Benhmida failed to state a viable, substantive basis

for postconviction relief, we need not address his arguments that

the belated filing was nonetheless timely because of excusable

neglect or justifiable excuse.

III. Disposition

¶ 24 The postconviction court’s order is affirmed.

JUDGE GROVE concurs.

JUDGE J. JONES specially concurs.

11 JUDGE J. JONES, specially concurring.

¶ 25 I agree with the result reached by the majority — affirmance of

the postconviction court’s order denying defendant’s Crim. P. 35(c)

motion without a hearing. But I would affirm on the bases that the

motion was untimely and the claims were insufficiently developed. I

say this without intending to imply that I disagree with any of the

majority’s rationale.