Peo v. Carr

• Court: Colorado Court of Appeals
• Decided: October 2, 2025
• Docket: 24CA1686
• Status: Unpublished

Opinion

24CA1686 Peo v Carr 10-2-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1686 El Paso County District Court No. 19CR6978 Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Heshimo Yaphet Carr,

Defendant-Appellant.

ORDERS AFFIRMED

Division IV Opinion by JUDGE SCHOCK Harris and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 2, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Heshimo Yaphet Carr, Pro Se ¶1 Defendant, Heshimo Yaphet Carr, appeals the district court’s

order denying his Crim. P. 35(a) motion to correct an illegal

sentence and two other orders denying similar motions. We affirm.

I. Background

¶2 Carr was originally charged with second degree assault,

menacing, possession of a weapon by a previous offender, and

harassment based on allegations that he choked his wife and

threatened her with a gun. After he was released on bond, Carr

was again alleged to have choked and threatened his wife (this time

with a knife) and was charged with several additional counts in a

separate case. On the prosecution’s motion, the cases were joined

under Crim. P. 8(a)(2) and proceeded under a single case number.

¶3 Carr entered into a plea agreement, under which he agreed to

plead guilty to two counts of second degree assault in exchange for

dismissal of the remaining counts. He stipulated to a sentence of

five years in prison on each count, to be served consecutively, for a

total of ten years. The district court accepted the agreement and

sentenced Carr accordingly on July 24, 2023. The court awarded

Carr 1,232 days of presentence confinement credit (PSCC).

1 ¶4 In October 2023, Carr filed a motion to amend the mittimus to

reflect that the PSCC should count toward both sentences. The

district court denied the motion, explaining that Carr had been

granted the appropriate amount of PSCC. Carr did not appeal.

¶5 In May 2024, Carr filed a motion to correct his sentence under

Crim. P. 35(a), again arguing that he was entitled to 1,232 days of

PSCC for each sentence because he had been confined for both

offenses before he pleaded guilty and the charges stemmed from

what were originally separate cases. He asserted that the joinder of

those cases had improperly prevented him from receiving the

appropriate amount of PSCC. The district court denied the motion,

noting that it had previously denied similar motions and again

concluding that Carr had received the correct amount of PSCC.

¶6 Carr filed two similar motions in September and October 2024,

which the district court summarily denied as well.

II. Analysis

¶7 Carr contends that the district court erred by denying his

motions to apply the PSCC to each sentence. Because his claim is

time barred and would also fail on the merits, we disagree. See

2 People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (noting that an

appellate court may affirm on any ground supported by the record).

¶8 We review de novo the legality of a sentence and the denial of a

Crim. P. 35(a) motion without a hearing. People v. Tennyson, 2023

COA 2, ¶ 9. We also determine de novo whether a postconviction

motion is untimely. People v. Bonan, 2014 COA 156, ¶ 16.

¶9 A challenge to the district court’s calculation of PSCC is a

Crim. P. 35(a) claim that the sentence was imposed “in an illegal

manner.” People v. Baker, 2019 CO 97M, ¶ 20 (quoting Crim. P.

35(a)). Such claims must be brought, as relevant here, within 126

days after the sentence is imposed. See Crim. P. 35(a), (b); Baker,

¶ 20. Because Carr filed the motions at issue in this appeal months

after that deadline, those motions were untimely.1 See Baker, ¶ 20.

¶ 10 Moreover, while C.R.C.P. 36 permits a court to correct a PSCC

error resulting from a “[c]lerical mistake” or “oversight” at any time,

id. at ¶ 21 (quoting C.R.C.P. 36), no such error occurred in this

case. As the district court made clear, its award of a total of 1,232

1 Carr filed his first motion to amend the mittimus within 126 days

of sentencing. The district court denied that motion, and Carr did not appeal. That order is therefore not at issue in this appeal.

3 days of PSCC was not a mistake. Rather, because Carr’s sentences

are consecutive, “crediting the period of presentence confinement

against one of the sentences will assure [him] full credit against the

total term of imprisonment.” People v. Johnson, 797 P.2d 1296,

1298 (Colo. 1990). For the same reason, even if Carr’s motions

were not untimely, the district court appropriately denied them.

¶ 11 Although Carr’s motions primarily centered on his requests for

additional PSCC, he also asserted that the permissive joinder of his

two cases resulted in prejudice and violated due process, equal

protection, and the prohibition on cruel and unusual punishment.

But Carr pleaded guilty after the joinder. In doing so, he waived

any claims of error that arose before the plea. See Neuhaus v.

People, 2012 CO 65, ¶ 8 (“Generally, a guilty plea precludes review

of issues that arose prior to the plea.”); see also Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (reaffirming that defendant

may not raise independent claims relating to deprivation of

constitutional rights that occurred before entry of guilty plea).

¶ 12 Finally, we reject Carr’s assertion that the district court’s

failure to apply PSCC to each sentence violates the prohibition on

double jeopardy. Carr has not cited any authority, and we are

4 aware of none, that would suggest that the application of PSCC to

only one of multiple consecutive sentences implicates — much less

violates — principles of double jeopardy. To the contrary, doing so

credits Carr for the full period of his presentence confinement

against his total term of imprisonment, thus ensuring that he does

not serve “multiple punishments for the same offense.” Woellhaf v.

People, 105 P.3d 209, 214 (Colo. 2005) (citation omitted).

¶ 13 Thus, Carr’s claim is time barred and, even if it were not, it

would fail on the merits because Carr received all the PSCC to

which he is entitled. The district court therefore did not err by

denying Carr’s motions without a hearing.

III. Disposition

¶ 14 The orders are affirmed.

JUDGE HARRIS and JUDGE JOHNSON concur.