Peo v. Ciarcia

• Court: Colorado Court of Appeals
• Decided: March 12, 2026
• Docket: 25CA0053
• Status: Unpublished

Opinion

25CA0053 Peo v Ciarcia 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0053 El Paso County District Court No. 04CR5098 Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jerry Gerard Ciarcia,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE YUN Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 12, 2026

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

Jerry Gerard Ciarcia, Pro Se ¶1 Defendant, Jerry Gerard Ciarcia, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion without a hearing.

We affirm.

I. Background

¶2 A jury convicted Ciarcia of third degree assault, false

imprisonment, menacing, and four counts of sexual assault. The

charges were based on evidence that Ciarcia bound and repeatedly

raped his ex-girlfriend over a period of several hours. The district

court imposed four consecutive indeterminate prison sentences of

twenty years to life on the sexual assault convictions.

¶3 On direct appeal, a division of this court affirmed the

judgment of conviction and sentence. People v. Ciarcia, (Colo. App.

No. 07CA1077, Nov. 18, 2010) (not published pursuant to C.A.R.

35(f)) (Ciarcia I). The appellate mandate was issued in May 2011.

¶4 Thereafter, Ciarcia filed a series of unsuccessful

postconviction motions and appeals. See People v. Ciarcia, (Colo.

App. No. 14CA1438, Mar. 24, 2016) (not published pursuant to

C.A.R. 35(f)) (Ciarcia II); People v. Ciarcia, (Colo. App. No. 17CA0060,

Aug. 2, 2018) (not published pursuant to C.A.R. 35(e)) (Ciarcia III).

1 ¶5 In 2019, Ciarcia filed a Crim. P. 35(a) motion claiming, as

relevant here, that his sexual assault sentences were not authorized

by law. The postconviction court denied the motion. However, a

division of this court disagreed, concluding that the district court

was not authorized to impose crime of violence sentences on

Ciarcia’s sexual assault convictions. See People v. Ciarcia, (Colo.

App. No. 19CA0865, Apr. 22, 2021) (not published pursuant to

C.A.R. 35(e)) (Ciarcia IV). As a result, the division vacated the

sexual assault sentences and remanded the case to the district

court for resentencing on those counts.

¶6 At the resentencing hearing, the district court imposed a

prison term of ten years to life on each count of sexual assault, to

be served consecutively. Ciarcia did not appeal.

¶7 In 2024, represented by counsel, Ciarcia filed a Crim. P. 35(c)

motion, which is at issue here. He claimed ineffective assistance of

resentencing counsel for failing to (1) argue that his sexual assault

convictions constituted a single continuing course of conduct under

section 18-1-408(1)(e), C.R.S. 2025, and thus should have resulted

in only one conviction; and (2) advise him of his right to appeal the

district court’s resentencing order and file a notice of appeal.

2 ¶8 The postconviction court denied Ciarcia’s motion. In a written

order, the court concluded that counsel was not ineffective because

Ciarcia’s section 18-1-408(1)(e) claim was both “time- and

procedurally-barred” and otherwise lacked merit because there was

“no basis to argue that there was only one course of conduct in this

case.” The court also rejected Ciarcia’s claim that counsel was

ineffective for failing to preserve his right to appeal because “this

argument would have failed on appeal as well for the same reason.”

II. Discussion

¶9 Ciarcia contends that the district court erred by denying his

Crim. P. 35(c) motion without a hearing for two reasons: (1) his

statutory challenge to his conviction under section 18-1-408(1)(e)

was not untimely or successive and was otherwise meritorious; and

(2) counsel was ineffective for failing to advise him about his right to

appeal and for failing to file a notice of appeal. We are not

persuaded.

A. Preservation

¶ 10 As an initial matter, we reject the People’s contention that

Ciarcia has abandoned his ineffective assistance of counsel claim

for failing to challenge the validity of his conviction under section

3 18-1-408(1)(e) at the resentencing hearing. While not articulated in

precisely the same way, Ciarcia’s pro se arguments on appeal are

substantively the same as those he asserted through counsel below.

We therefore conclude that the issue is sufficiently raised on

appeal. People v. Cali, 2020 CO 20, ¶ 34 (“Pleadings by pro se

litigants must be broadly construed to ensure that they are not

denied review of important issues because of their inability to

articulate their argument like a lawyer.” (citation omitted)).

¶ 11 However, we agree with the People that the merits of Ciarcia’s

section 18-1-408(1)(e) claim itself — as distinct from the ineffective

assistance claim — were never presented to the postconviction

court. Accordingly, we decline to address this claim for the first

time on appeal. See Cali, ¶ 34 (“[W]e will not consider issues not

raised before the district court in a motion for postconviction

relief.”).

B. Applicable Law and Standard of Review

¶ 12 A defendant seeking postconviction relief under Crim. P. 35(c)

is entitled to a hearing “if [the defendant] asserts specific facts that,

if true, would provide a basis for relief.” People v. Luong, 2016 COA

13M, ¶ 8. Conversely, the court may deny a Crim. P. 35(c) motion

4 without a hearing when “the motion and the files and record of the

case show to the satisfaction of the court that the defendant is not

entitled to relief.” Crim. P. 35(c)(3)(IV). This standard is satisfied

when (1) the allegations are bare and conclusory; (2) the allegations,

even if true, do not warrant relief; or (3) the record directly refutes

the defendant’s claims. People v. Duran, 2025 COA 34, ¶ 15. While

a defendant need not present evidentiary support with the motion,

he must assert facts that, if true, would provide a basis for relief.

White v. Denv. Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).

¶ 13 To prevail on a claim of ineffective assistance of counsel, a

defendant must show both that (1) counsel’s performance was

deficient, meaning it fell below an objective standard of

reasonableness; and (2) this deficient performance prejudiced the

defendant, meaning that there is a reasonable probability that, but

for counsel’s deficient performance, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668,

687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.

2007). A postconviction court may reject an ineffective assistance

of counsel claim if the defendant fails to establish either prong. See

People v. Aguilar, 2012 COA 181, ¶ 9.

5 ¶ 14 We review de novo a postconviction court’s denial of a Crim. P.

35(c) claim without a hearing. Cali, ¶ 14.

C. Failure to Raise Section 18-1-408(1)(e) Claim at Resentencing Hearing

¶ 15 We begin with Ciarcia’s claim that counsel was ineffective for

failing to argue at his resentencing hearing that his four sexual

assault convictions arose from conduct that took place “on the

same evening in the same apartment over a course of approximately

five hours.” Ciarcia maintains that this constitutes one continuing

course of conduct under section 18-1-408(1)(e), requiring “only one

conviction” and a much “shorter sentence.” We reject his challenge

for two reasons.

¶ 16 First, the division’s remand order in the 2019 Crim. P. 35(a)

appeal instructed the district court to address only one issue —

resentencing on the four sexual assault counts. Given this

instruction, we are not convinced that counsel’s failure to raise

arguments concerning the validity of his convictions under section

18-1-408(1)(e) fell below an objective standard of reasonableness.

See People v. Notyce, 2014 COA 52, ¶ 2 (Because “[the] defendant’s

challenges to his jury trial are outside the limited scope of the

6 remand, . . . we will not address them.”); People v. Grassi, 364 P.3d

1144, 1149 (Colo. App. 2011) (declining to address an argument

because “th[e] issue was outside the limited scope of the remand”),

aff’d, 2014 CO 12; see also People in Interest of M.D., 2014 COA

121, ¶ 18 (“When an appellate court remands a case with specific

directions to enter a particular judgment or to pursue a prescribed

course, a trial court has no discretion except to comply with the

instructions.”).

¶ 17 Second, as the postconviction court noted, if counsel had

raised this claim at the resentencing hearing, the district court

would have been required to deny it as both untimely and

procedurally barred. Although Ciarcia’s claim that his four sexual

assault convictions were one continuing course of conduct under

section 18-1-408(1)(e) is cognizable under Crim. P. 35(c), it is

subject to that rule’s procedural limitations. See Crim. P. 35(c)(2)(I)

(claims “[t]hat the conviction was obtained . . . in violation of the . . .

laws of this state” are cognizable under Crim. P. 35(c)). Because his

statutory challenge would have been untimely under that rule and

could have been raised on direct appeal (Ciarcia I) or in his previous

Crim. P. 35(c) motion (Ciarcia II), it would have been both time

7 barred and procedurally barred. See § 16-5-402(1), C.R.S. 2025

(setting forth a three-year time limitation for collateral attacks on

non-class 1 felonies); Crim. P. 35(c)(3)(VII) (a court shall deny any

claim that could have been raised in a prior appeal). Therefore,

counsel could not have provided ineffective assistance by failing to

raise this claim at the resentencing hearing. See Sperry v. McKune,

445 F.3d 1268, 1275 (10th Cir. 2006) (explaining that counsel’s

failure to raise a meritless issue is not ineffective assistance); see

also Hagos v. People, 2012 CO 63, ¶ 25 (Colo. App. 2009) (when an

ineffective assistance claim was premised on counsel’s alleged

failure to attack the search of the defendant’s apartment, and that

search was found to be constitutionally permissible in a companion

case, the claim failed because it could not meet the deficient

performance prong of the Strickland test).

¶ 18 We are not persuaded by Ciarcia’s argument on appeal that

his claim would not have been successive if counsel had raised it at

resentencing because it had “not been fully and finally litigated.”

He relies on People v. Hubbard, 519 P.2d 945, 948 (Colo. 1974), but

the 2004 amendments to Crim. P. 35, which superseded Hubbard,

bar any claims that could have been presented in a previous

8 postconviction proceeding regardless of whether they were actually

presented. See People v. Taylor, 2018 COA 175, ¶ 13 (concluding

that Crim. P. 35(c)(3)(VII) has superseded Hubbard). Because

Ciarcia could have raised this claim on his direct appeal (Ciarcia I)

or in his first Crim. P. 35(c) motion (Ciarcia II), it is barred under

Crim. P. 35(c)(3)(VII).

¶ 19 We likewise reject Ciarcia’s assertion that his claim would

have been timely if raised by counsel at resentencing because he

“first discovered” the claim in 2019, while working on his second

Crim. P. 35(a) appeal. He further argues that the correction of his

illegal sentence in Ciarcia IV allowed him “to subsequently pursue a

collateral attack related to the illegality in the original sentence.”

See Hunsaker v. People, 2021 CO 83, ¶ 26. However, “recent

discovery of a legal basis for a collateral attack on a conviction does

not constitute excusable neglect where the defendant has not

otherwise demonstrated some unavoidable hindrance that would

cause a reasonably prudent person to neglect to pursue timely

collateral relief.” People v. Slusher, 43 P.3d 647, 651 (Colo. App.

2001); see also People v. Chang, 179 P.3d 240, 245 (Colo. App.

2007) (ignorance of the law does not constitute justifiable excuse or

9 excusable neglect). And Ciarcia’s section 18-1-408(1)(e) claim does

not relate to the illegality of his original sentence — which

concerned only the court’s unlawful imposition of crime of violence

sentences on Ciarcia’s sexual assault convictions and not the

validity of those convictions under section 18-1-408(1)(e).

¶ 20 Accordingly, for all these reasons, we conclude that the

postconviction court properly denied this claim without a hearing.

D. Failure to Perfect Appeal Following Resentencing

¶ 21 Next, we address Ciarcia’s claim that counsel was ineffective

for failing to advise him of his right to appeal the district court’s

resentencing order and for failing to file a notice of appeal. Because

Ciarcia has failed to allege deficient performance with sufficient

specificity, his claim fails.

¶ 22 Counsel’s failure to file a notice of appeal is not necessarily

deficient so long as counsel has not disregarded specific

instructions from a defendant. Roe v. Flores-Ortega, 528 U.S. 470,

478 (2000). When counsel receives no instructions from the

defendant on whether to file or forego an appeal, the question is

whether counsel has a constitutional duty to consult with the

defendant about his appellate rights. Id. That duty arises only

10 when counsel has a reason to believe that (1) a rational defendant

would want to appeal (because, for example, there are nonfrivolous

grounds for appeal); or (2) the particular defendant is interested in

appealing. Id. at 480.

¶ 23 Thus, it is not enough for Ciarcia to allege only that his lawyer

did not advise him of his right to appeal the district court’s

resentencing order or file a notice of appeal. That omission alone,

even if true, would not amount to deficient performance. To state a

viable claim, Ciarcia needed to allege that he specifically instructed

his lawyer to file a notice of appeal (which he did not allege).

Alternatively, he needed to allege that his lawyer had a duty to

consult with him about his appellate rights — either because

(1) there were nonfrivolous grounds for appeal (which, as discussed

above, do not exist here); or (2) he indicated some interest in

appealing (which he did not allege). Because Ciarcia did not make

such allegations, this claim fails as well.

¶ 24 Accordingly, we conclude, albeit on slightly different grounds,

that the postconviction court properly denied Ciarcia’s Crim. P.

35(c) motion without a hearing. See People v. Hamm, 2019 COA 90,

¶ 23 (“[W]e will affirm a district court’s denial of a Rule 35 motion

11 on any ground supported by the record, even if the district court did

not consider or contemplate that ground.”).

III. Disposition

¶ 25 The order is affirmed.

JUDGE GROVE and JUDGE SCHOCK concur.