24CA1327 Peo v Bobian 05-07-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1327 El Paso County District Court No. 14CR1322 Honorable Jessica Curtis, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Conrad Bobian,
Defendant-Appellant.
ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE KUHN Fox, J., concurs Sullivan, J., concurs in part and dissents in part
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026
Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Janet Kinniry, Alternate Defense Counsel, Gardner, Colorado, for Defendant- Appellant ¶1 Defendant, Michael Conrad Bobian, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion for postconviction
relief after an evidentiary hearing. We affirm in part, reverse in
part, and remand the case for further proceedings.
I. Background
¶2 T.D. gave her two children, four-year-old P.D. and six-year-old
C.D., to Bobian for an overnight visit. When Bobian did not return
the children, T.D. spoke with Bobian. He said that he was not
bringing the children back because P.D. had been touched
inappropriately. T.D. contacted the police, who obtained and
executed an arrest warrant at Bobian’s home, where officers found
the children unharmed.
¶3 The prosecution charged Bobian with two counts of second
degree kidnapping, one for each child. See § 18-3-302(2), C.R.S.
2025. The prosecution later amended the complaint to add three
habitual criminal counts for prior felony convictions. See
§ 18-1.3-801(2), C.R.S. 2025. Bobian pleaded not guilty and
proceeded to a jury trial.
¶4 Bobian asked the trial court to instruct the jury on a choice of
evils affirmative defense, asserting that P.D. had alleged sexual
1 abuse by T.D.’s boyfriend and that Bobian had not returned the
children because he was concerned about their safety. See
§ 18-1-702, C.R.S. 2025 (defining the choice of evils affirmative
defense). The court agreed to give a choice of evils instruction with
respect to P.D., but it declined to give one regarding C.D. because
C.D. had not alleged any sexual abuse. After hearing the evidence,
the jury acquitted Bobian on the charge of kidnapping P.D., but it
found him guilty of kidnapping C.D. The court then adjudicated
Bobian a habitual criminal and, after conducting an abbreviated
proportionality review, sentenced him to twenty-four years in
prison.
¶5 Bobian appealed and asserted, among other things, that the
trial court erred by denying him an extended proportionality review
of his sentence. A division of this court rejected his appellate
contentions, affirming the judgment and sentence. See People v.
Bobian, (Colo. App. No. 16CA1999, Nov. 7, 2019) (not published
pursuant to C.A.R. 35(e)).
¶6 Bobian then filed a timely pro se Rule 35(c) motion. The
postconviction court appointed counsel for Bobian, and counsel
2 filed a supplemental motion. After holding an evidentiary hearing,
the court denied Bobian’s Rule 35(c) claims in a written order.
II. Analysis
¶7 Bobian contends that the postconviction court erred when it
denied his Rule 35(c) motion. Specifically, he asserts that the
postconviction court erred by not (1) granting him a new
proportionality review or finding that his appellate counsel should
have raised new supreme court precedent as part of his appeal;
(2) finding that his counsel was ineffective for failing to convey a
plea offer to him; and (3) finding that his counsel was ineffective for
certain actions taken before and during trial. We agree in part.
A. Standard of Review and Applicable Law
¶8 We review the denial of a Rule 35(c) motion after a hearing as
a mixed question of fact and law. People v. Corson, 2016 CO 33,
¶ 25. We defer to the postconviction court’s factual findings if
supported by the record, but we review de novo the court’s ultimate
conclusions on performance and prejudice. People v. Sharp, 2019
COA 133, ¶ 12. The court determines the weight and credibility to
give witness testimony in a Rule 35(c) hearing. People v. Hardin,
2016 COA 175, ¶ 39. Accordingly, “[w]here the evidence in the
3 record supports the findings and holding of the postconviction court
that presided over an evidentiary hearing, the judgment will not be
disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27.
¶9 To succeed on an ineffective assistance of counsel claim, the
defendant must establish that (1) counsel’s performance was
deficient, meaning it fell below an objective standard of
reasonableness; and (2) counsel’s deficient performance prejudiced
the defendant, meaning that a reasonable probability exists that,
but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668,
687-96 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.
2007); see also People v. Long, 126 P.3d 284, 286 (Colo. App. 2005)
(“To demonstrate [ineffective assistance of appellate counsel], the
defendant must show a reasonable probability that, but for
counsel’s errors, he or she would have prevailed on the appeal.”). A
postconviction court may reject an ineffective assistance claim if the
defendant fails to establish either deficient performance or
prejudice. See People v. Aguilar, 2012 COA 181, ¶ 9.
4 B. Proportionality Review and Ineffectiveness Under Wells-Yates
¶ 10 Bobian asserts that the postconviction court erred by denying
his request for a new proportionality review in light of Wells-Yates v.
People, 2019 CO 90M. In the alternative, Bobian asserts that the
court erred by denying his claim that his appellate attorney was
ineffective in his direct appeal for failing to file a notice of
supplemental authority, a request for supplemental briefing, or a
petition for rehearing after the supreme court announced Wells-
Yates. We disagree with his first contention, but we agree with the
second.
¶ 11 The Eighth Amendment protects defendants from sentences
that are grossly disproportionate to the crime committed. Id. at ¶ 5.
Accordingly, a defendant is entitled, on request, to a proportionality
review of a sentence under the habitual criminal statute. McDonald
v. People, 2024 CO 75, ¶ 11. In the first stage — an abbreviated
proportionality review — a court considers the gravity or
seriousness of the offense in relation to the harshness of the
penalty. Wells-Yates, ¶¶ 10-11. If the abbreviated review gives rise
to an inference of gross disproportionality, then the court will
5 “proceed to the second stage, known as an extended proportionality
review.” McDonald, ¶ 14.
¶ 12 In Wells-Yates, the supreme court clarified existing law on
proportionality reviews. Among other things, the supreme court
explained that when conducting an abbreviated proportionality
review “the court must consider each triggering offense and the
predicate offenses together and determine whether, in combination,
they are so lacking in gravity or seriousness as to raise an inference
that the sentence imposed on that triggering offense is grossly
disproportionate.” Wells-Yates, ¶ 2. The supreme court also held
that, “in determining the gravity or seriousness of the triggering
offense and the predicate offenses, the court should consider any
relevant legislative amendments enacted after the dates of those
offenses, even if the amendments do not apply retroactively.” Id.
¶ 13 In this case, the trial court adjudicated Bobian a habitual
criminal and sentenced him to twenty-four years in prison based on
three prior convictions: (1) attempted criminal trespass in 2001;
(2) criminal mischief in 2002; and (3) attempted theft of $500 to
$15,000 in 2006. After an abbreviated proportionality review, the
court determined that Bobian’s sentence did not give rise to an
6 inference of gross disproportionality and declined to conduct an
extended proportionality review.
¶ 14 On direct appeal, Bobian asserted that the trial court had
erred by declining to conduct an extended proportionality review.
See Bobian, No. 16CA1999, slip op. at ¶ 28. After considering the
facts of Bobian’s predicate offenses, the division concluded that,
while none of the prior convictions were for crimes deemed grave or
serious, the “underlying actions in his predicate offenses [were]
grave and serious.” Id. at ¶ 38. For example, the division noted
that the facts alleged in two of the cases supported a charge of
burglary, which, at that time, constituted a per se grave or serious
offense. Id. at ¶ 40.
¶ 15 At the evidentiary hearing, Bobian’s appellate expert testified
that, considering that Wells-Yates was announced a few days before
the announcement of Bobian’s appeal, the attorney should have
either (1) filed a notice of supplemental authority, see C.A.R. 28(i);
(2) asked to submit supplemental briefing, see C.A.R. 27(a); or
(3) petitioned for rehearing, see C.A.R. 40(a). The expert also
testified that “if you run the [division’s] analysis of the
proportionality challenge through Well-Yates, you very likely end up
7 in a different place.” Among other things, the expert said that
second degree burglary was no longer per se grave and serious and
the division “completely ignore[d] the legislative changes,” even
though they were raised by Bobian’s appellate attorney. The expert
witness testified that Bobian’s class 4 felony criminal mischief
conviction had been reclassified to a class 6 felony, while his class 5
attempted felony theft conviction had been reclassified to a class 2
misdemeanor.
¶ 16 The postconviction court denied Bobian’s request for a new
proportionality review because he raised the proportionality of his
sentence on direct appeal, and Rule 35(c)(3)(VI) required it to deny
any claim that was raised and resolved in a direct appeal. The
court also determined that the exceptions in Rule 35(c)(3)(VI)(a)-(b)
did not apply. Because his claim did not involve newly discovered
evidence and Wells-Yates did not announce a new substantive rule,
see McDonald, ¶ 34, we agree. We therefore discern no basis to
reverse this decision.
¶ 17 As to Bobian’s ineffective assistance of appellate counsel
claim, the postconviction court determined that Bobian failed to
establish any prejudice from his appellate counsel’s failure to
8 submit supplemental authority, ask for supplemental briefing, or
petition for rehearing. In support, the court determined that
(1) “the standard articulated in Wells-Yates and the standard used
by the Court of Appeals in analyzing the proportionality of
[Bobian’s] sentence were nearly identical,” and (2) “the Court of
Appeals was presented with subsequent legislative changes.”
¶ 18 We disagree with the postconviction court’s conclusion on this
point. Although the division conducted the proportionality review
by considering Bobian’s triggering and predicate offenses together
to determine whether they were so lacking in gravity or seriousness
as to raise an inference of gross disproportionality, the division’s
analysis would likely have been different under Wells-Yates. First,
in light of Wells-Yates, second degree burglary is no longer
considered per se grave or serious. See People v. Session, 2020
COA 158, ¶ 49. Second, even though Bobian’s appellate attorney
presented evidence of the legislative changes, nothing in the opinion
suggests that the division considered those changes in reaching its
9 decision.1 See Wells-Yates, ¶ 53 (concluding that, because the
division did not consider the statutory changes, it erred).2
¶ 19 We therefore conclude that the postconviction court erred by
determining that Bobian had failed to establish prejudice because a
reasonable probability exists that the outcome of the appeal would
have been different. See Long, 126 P.3d at 286. We reach this
conclusion because, following Wells-Yates, divisions of this court
have frequently reversed or vacated sentences and remanded cases
for a new proportionality review under similar circumstances. See,
e.g., People v. Caime, 2021 COA 134, ¶ 57 (remanding to the trial
court for a new proportionality review where the predicate offenses
1 The partial dissent correctly notes that Bobian didn’t specifically
raise legislative changes in his appellate briefs. However, the legislative changes were argued to the postconviction court, which relied on the legislative changes being presented to the division on direct appeal as a justification for concluding that the division’s analysis wouldn’t have changed under Wells-Yates v. People, 2019 CO 90M. Thus, the legislative changes are a key part of the court’s rationale in the order challenged on appeal. We therefore respectfully disagree that the legislative changes cannot serve as one of the bases for reversal. Moreover, we may “notice any error appearing of record.” C.A.R. 1(d).
2 The People assert that the relevant statutory changes were
“intended merely to account for inflation.” But the People don’t cite any authority that these types of changes aren’t nonetheless relevant under Wells-Yates, 2019 CO 90M.
10 were not considered per se grave and serious after Wells-Yates);
People v. Tran, 2020 COA 99, ¶ 97-101 (remanding, in part,
because the trial court did not consider subsequent legislative
amendments, and it considered a second degree burglary conviction
as per se grave and serious).
¶ 20 Finally, although the postconviction court questioned whether
appellate counsel’s performance was deficient under the
circumstances, it did not definitively rule on whether Bobian’s
appellate counsel’s performance was deficient for failing to raise
Well-Yates.3 See Aguilar, ¶ 9. Because the question of whether
appellate counsel performed deficiently requires additional
factfinding, which is not our role, see People v. A.W., 982 P.2d 842,
852 (Colo. 1999), we must reverse and remand the order to the
postconviction court for further findings and conclusions.
3 The postconviction court was, in part, skeptical that appellate
counsel should have addressed Wells-Yates in the three day window between when it was announced and the announcement of the division’s opinion in Bobian’s direct appeal. Regardless, counsel would have had an additional fourteen days after the division’s opinion was announced to file a petition for rehearing or move for additional time to do so. See C.A.R. 40(a)(1).
11 C. Ineffectiveness for Failing to Present Plea Negotiations
¶ 21 Bobian contends that the postconviction court erred by
denying his claim that his trial attorney was ineffective for failing to
present him with favorable plea offers. We disagree.
¶ 22 If a plea offer is extended to a defendant through counsel but
counsel fails to convey the offer to the defendant, the deficient
performance prong under Strickland is met even if the defendant
received a fair trial. See People v. Perry, 68 P.3d 472, 477 (Colo.
App. 2002); see also People v. Delgado, 2019 COA 55, ¶ 17 (“Failure
to correctly advise a defendant about [a plea offer] deprives the
defendant of the opportunity to make a reasonably informed
decision whether to accept or reject an offer and constitutes
deficient performance under Strickland.”). To establish prejudice,
the defendant must demonstrate a reasonable probability that, but
for counsel’s failure to convey the plea offer, he would have
accepted the plea offer rather than going to trial. See Carmichael v.
People, 206 P.3d 800, 807 (Colo. 2009), overruled on other grounds
by, Lafler v. Cooper, 566 U.S. 156 (2012).
12 ¶ 23 At the hearing, Bobian maintained that the prosecution had
tendered two plea offers to his attorney, but his attorney did not
present either of those offers to him. The two purported offers and
the court’s ruling were as follows:
• Offer 1: Bobian would plead guilty to false imprisonment, a
class 5 felony with a stipulated sentence of four years in
prison with two years parole.
• Offer 2: A plea agreement that would result in a term of
probation.
• After hearing the evidence, the postconviction court found
that plea counsel presented Offer 1 to Bobian, but he
rejected it. The court also found that, contrary to Bobian’s
assertion, the prosecution never made Offer 2. Rather, the
court concluded that, when counsel mentioned Offer 2
during his attorney disciplinary case, he was referring to
Offer 1. Specifically, the court found that “[t]he
discrepancies in trial counsel’s later recollection of whether
the offer was an offer which would have resulted in
probation rather than parole can be explained by the
passage of time.” The court also determined that, even if
13 counsel failed to properly convey a plea agreement, the
evidence did not support a conclusion that Bobian would
have accepted a plea agreement.
¶ 24 We cannot disturb this determination because the record
supports the postconviction court’s findings. See Wardell, ¶ 27;
Hardin, ¶ 39; see also Anderson v. City of Bessemer City, 470 U.S.
564, 574 (1985) (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly
erroneous.”). The prosecution submitted proposed plea paperwork
that described Offer 1. In pertinent part, Bobian’s trial attorney
testified that he presented Bobian with Offer 1, but Bobian rejected
the offer because “he felt he was innocent” and did not want to be
subject to any supervision by either parole or probation. Bobian’s
attorney also testified that he could not remember whether the plea
offer included a probation term rather than a parole term, but he
clarified that there was only one offer and that offer “would have
been no jail time.” And Bobian did not present any evidence beyond
his own testimony that the prosecution had ever tendered an offer
involving probation.
14 D. Ineffective Preparation and Performance of Counsel at Trial
¶ 25 Bobian argues that the postconviction court erred by denying
his claims that trial counsel was ineffective in counsel’s preparation
for and performance during the trial. Specifically, Bobian asserted
that his attorney (1) failed to properly investigate the case because
he did not interview T.D. or the children’s grandmother, R.H.;
(2) did not prepare him to testify at trial, and during his testimony,
did not assist him on direct examination or object during cross-
examination; and (3) improperly elicited prejudicial statements —
which the trial court had already precluded before trial — about a
relationship between him and T.D. when she was underage.
¶ 26 The postconviction court did not determine whether any of
these acts constituted deficient performance. Instead, the court
found that, even if counsel performed deficiently, none of the errors
could have impacted the outcome of the case because Bobian
“admitted to the crimes charged” when he decided to present a
choice of evils affirmative defense.
¶ 27 We disagree because it is undisputed that the trial court
allowed Bobian to present the affirmative defense of choice of evils
15 only with respect to P.D., and the jury found Bobian not guilty of
kidnapping P.D. As to C.D., Bobian did not “admit[] to the crimes
charged,” as the postconviction court found. Rather, Bobian
attempted to establish that he did not intend to keep or conceal
C.D. from her mother and that her mother was an unreliable
witness. Therefore, we are not convinced by the postconviction
court’s reasoning that, even if counsel performed deficiently, these
errors could not have impacted the outcome of the case. See People
v. Sifuentes, 2017 COA 48M, ¶ 20 (noting that the reasonable
probability standard is a “probability sufficient to undermine
confidence in the outcome” and is a lower standard than
preponderance of the evidence).
¶ 28 Because the postconviction court did not rule on whether
Bobian’s trial counsel’s performance was deficient, we must also
reverse and remand this part of the order to the postconviction
court for further findings and conclusions. See A.W., 982 P.2d at
852; Aguilar, ¶ 9.
E. Claim Raised for the First Time on Appeal
¶ 29 Bobian asserts, for the first time, that the prosecution failed to
disclose statements made by T.D. Because this issue is not
16 properly before us, we decline to address it. See People v. Goldman,
923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not raised in a
[Rule] 35(c) motion or during the hearing on that motion and thus
not ruled on by the trial court are not properly before this court for
review.”).
F. Abandoned Claims
¶ 30 Any claims that Bobian raised in his postconviction motion, in
his supplemental motion, or at the hearing but did not reassert in
this appeal are abandoned. See People v. Osorio, 170 P.3d 796, 801
(Colo. App. 2007).
III. Disposition
¶ 31 The order is affirmed in part and reversed in part. The case is
remanded to the postconviction court for it to reconsider whether
Bobian has established ineffective assistance of his trial or appellate
counsel in the areas discussed, supra Part II.B and Part II.D.
JUDGE FOX concurs.
17 JUDGE SULLIVAN, concurring in part and dissenting in part.
¶ 32 I agree with the majority’s well-reasoned decision except for its
conclusion in Part II.B to reverse in part. Specifically, I disagree
with the majority that the postconviction court erred when it denied
Bobian’s claim that his direct appeal counsel provided ineffective
assistance by failing to raise Wells-Yates, 2019 CO 90M. In my
view, no reasonable probability exists that the division that heard
Bobian’s direct appeal would have ruled differently had his
appellate attorney brought Wells-Yates to the division’s attention. I
therefore respectfully dissent from the majority’s decision to reverse
the postconviction court’s order on that issue.
I. Additional Background
¶ 33 Bobian initially raised an Eighth Amendment proportionality
argument with the trial court, prior to his direct appeal. That court
conducted an abbreviated proportionality review and concluded his
sentence wasn’t grossly disproportionate.
¶ 34 On November 4, 2019, the Colorado Supreme Court
announced its decision in Wells-Yates, seeking to “clarify” the
proportionality framework for habitual sentences in Colorado.
Wells-Yates, ¶ 25; see also McDonald v. People, 2024 CO 75, ¶¶ 29-
18 34 (holding Wells-Yates didn’t announce a new substantive rule but
merely clarified how to evaluate the proportionality of a habitual
sentence).
¶ 35 Three days later, the division of this court considering
Bobian’s direct appeal affirmed his sentence without mentioning
Wells-Yates. See People v. Bobian, slip op. at ¶¶ 42-43 (Colo. App.
No. 16CA1999, Nov. 7, 2019) (not published pursuant to C.A.R.
35(e)). While conducting a fact-based assessment of the gravity and
seriousness of Bobian’s offenses as a whole, the division noted in a
single sentence that the facts underlying two of his three predicate
offenses — his 2002 criminal mischief conviction and his 2006
attempted theft conviction — would have supported a burglary
charge, which was considered a per se grave and serious offense
before Wells-Yates. Id. at ¶ 40 (citing People v. Gaskins, 825 P.2d
30, 37 (Colo. 1992)).
¶ 36 Bobian then filed a petition for postconviction relief under
Crim. P. 35(c), claiming his direct appeal counsel provided
ineffective assistance by failing to raise Wells-Yates. In a thorough
order, the postconviction court rejected Bobian’s claim, concluding
that Bobian failed to prove prejudice. The court reasoned that the
19 proportionality standard articulated by Wells-Yates and the
standard applied by the division on direct appeal were “nearly
identical.”
II. Second Degree Burglary
¶ 37 The majority concludes that a reasonable probability exists
that the division considering Bobian’s direct appeal wouldn’t have
affirmed his sentence had it considered Wells-Yates. It notes that,
after Wells-Yates, second degree burglary is no longer designated as
grave or serious per se, Wells-Yates, ¶ 65 n.17, and yet the division
partially relied on that designation when assessing the gravity and
seriousness of two of Bobian’s predicate offenses. On the record
before us, I see no reversible error.
¶ 38 In Bobian’s direct appeal, the division analyzed Bobian’s
conduct that led to his convictions and concluded that, while none
of Bobian’s offenses were per se grave or serious, his “underlying
actions” were “grave and serious.” Bobian, No. 16CA1999, slip op.
at ¶¶ 38-41; cf. Melton v. People, 2019 CO 89, ¶ 25 (while theft isn’t
per se grave or serious, it may rise to a grave or serious offense
based on “the facts and circumstances surrounding the particular
crime committed”). No one claims that Wells-Yates altered how a
20 court analyzes whether a defendant’s particular conduct amounts
to a grave or serious offense. And as the postconviction court
observed, the division in Bobian’s direct appeal adhered to the
established standard. Indeed, by “consider[ing] ‘the harm caused or
threatened to the victim or to society and the culpability of the
offender,’” Bobian, No. 16CA1999, slip op. at ¶ 32 (citation omitted),
the division applied the same standard recited in Wells-Yates, see
Wells-Yates, ¶ 12 (“[C]ourts should consider ‘the harm caused or
threatened to the victim or society,’ as well as ‘the culpability of the
offender.’” (quoting Solem v. Helm, 463 U.S. 277, 292 (1983))).
¶ 39 Moreover, while I agree that the division noted that Bobian’s
underlying conduct in two of his predicate offenses supported a
burglary charge (which constituted a per se grave or serious offense
before Wells-Yates), I don’t believe the division’s ultimate conclusion
depended on that premise. As I read it, the division determined
that Bobian’s predicate offenses were grave or serious because, in
each case, Bobian “entered a dwelling that was not his own without
permission . . . [when] a resident of the dwelling was home,” which
“would reasonably cause residents to have a heightened sense of
alarm, resulting in an increased potential for violence.” Bobian, No.
21 16CA1999, slip op. at ¶ 39. Again, that type of fact-specific
analysis is consistent with Wells-Yates. See Wells-Yates, ¶ 12. I’m
unaware of any case in Colorado in which an appellate court has
reversed or vacated a sentence for a new proportionality review
based on an offense no longer qualifying as a per se grave or serious
crime when the lower court also performed a factual analysis of the
underlying conduct and determined that the defendant’s offense, as
committed, was grave or serious.
¶ 40 Finally, neither Wells-Yates nor the majority’s analysis impacts
the division’s conclusion that Bobian’s triggering offense and his
2001 predicate offense were factually grave or serious as
committed. See Bobian, No. 16CA1999, slip op. at ¶ 41. Once a
court determines that an offense is grave or serious, “any review [of
the harshness of the penalty] is substantially circumscribed
because the legislature’s establishment of the harshness of the
The majority cites People v. Caime, 2021 COA 134, and People v. Tran, 2020 COA 99, to support its decision to reverse and remand. But in both cases, the divisions remanded for a new proportionality review because the trial courts’ designations of certain offenses as per se grave or serious were no longer correct after Wells-Yates. See Caime, ¶¶ 47-48; Tran, ¶¶ 96-103. Unlike the division’s analysis here on direct appeal, no fact-specific analysis occurred in either Caime or Tran.
22 penalty deserves great deference.” Wells-Yates, ¶ 62. This, too,
suggests the division wouldn’t have changed its decision had it
considered Wells-Yates.
¶ 41 Given all this, I don’t perceive a reasonable probability that the
division would have altered its proportionality conclusion had Wells-
Yates been brought to its attention. See People v. Long, 126 P.3d
284, 286 (Colo. App. 2005).
III. Legislative Changes
¶ 42 The majority also points out that the division in Bobian’s
direct appeal didn’t consider intervening legislative changes as
Wells-Yates requires. But Bobian doesn’t mention any legislative
changes in either his opening or reply brief, much less develop any
argument supporting reversal based on such changes.
¶ 43 In light of his limited argument, I wouldn’t rely on unspecified
legislative changes as a basis for reversing the postconviction
court’s judgment. See Galvan v. People, 2020 CO 82, ¶ 45 (“[W]e
adhere to the party presentation principle, which relies on the
parties to frame the issues to be decided and assigns to courts the
role of neutral arbiters of the matters raised.”); People v. Larsen,
2023 COA 28, ¶ 19 n.4 (declining to consider “conclusory and
23 insufficiently developed” arguments regarding sentencing in an
appeal from a postconviction proceeding).
IV. Conclusion
¶ 44 For these reasons, I respectfully dissent from the majority’s
decision to reverse in Part II.B.