Peo v. Fareti

• Court: Colorado Court of Appeals
• Decided: September 18, 2025
• Docket: 24CA1111
• Status: Unpublished

Opinion

24CA1111 Peo v Fareti 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1111 Douglas County District Court No. 01CR600 Honorable Natalie Girard Stricklin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Herman Fareti,

Defendant-Appellant.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE J. JONES Grove and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Herman Fareti, Pro Se ¶1 Defendant, Herman Fareti, appeals the postconviction court’s

order denying his “petition for rehearing on post-conviction claims.”

We affirm the order but remand for correction of the mittimus to

reflect the postconviction court’s ruling waiving the sex offender

surcharge.

I. Background

¶2 In 2002, Fareti pleaded guilty to sexual assault on a child by

one in a position of trust. The district court sentenced him to an

indeterminate term of four years to life in prison. However, the

district court didn’t impose the sex offender surcharge, which is

mandatory on a conviction for a sex offense, see § 18-21-103(1),

C.R.S. 2025, unless the court waives the surcharge based on the

defendant’s indigency, see § 18-21-103(4).

¶3 Since then, Fareti has filed numerous postconviction motions.

His two motions relevant to this appeal were filed in 2023 and

2024.

¶4 In the 2023 motion, Fareti claimed that his sentence was

illegal under Crim. P. 35(a) because the district court didn’t impose

the sex offender surcharge at sentencing.

1 ¶5 In April 2024, the postconviction court granted the motion “in

part.” The court agreed with Fareti that his sentence was illegal

because of the failure to impose the sex offender surcharge. The

court then waived the surcharge based on its finding that Fareti

didn’t have the ability to pay any portion of the surcharge. In doing

so, the court said, “A new mittimus stating the surcharge has been

waived shall issue.” And the court concluded that the illegality of

Fareti’s sentence didn’t affect the finality of his conviction and that

the rest of Fareti’s original sentence remained final.

¶6 Fareti then filed his “petition for rehearing on post-conviction

claims.” He repeated his argument that his original sentence was

illegal because of the failure to impose the sex offender surcharge.

He also argued that the postconviction court erred by concluding

that the illegality of his sentence did not affect the finality of his

conviction and sentence.

¶7 In May 2024, the postconviction court denied Fareti’s “petition

for rehearing.” The court “continue[d] to find” that Fareti’s original

sentence was illegal because of the failure to impose the sex

offender surcharge. And the court again clarified that it was

waiving the surcharge because of Fareti’s indigency. (Id.) The

2 court again rejected Fareti’s argument that his entire sentence is

illegal and not final. There is no indication in the record, however,

that the mittimus was ever amended in accordance with the court’s

April 2024 order to reflect that the sex offender surcharge was

waived.

II. Analysis

¶8 Fareti contends, the People concede, and we agree that Fareti’s

original sentence was illegal under Crim. P. 35(a) because it didn’t

include any ruling pertaining to the sex offender surcharge. See

People v. Ehlebracht, 2020 COA 132, ¶¶ 45-46.

¶9 Fareti also contends, the People also concede, and we also

agree that the mittimus should be amended to reflect the court’s

ruling in its April 2024 order waiving the sex offender surcharge.

Indeed, the court’s April 2024 order specifically said, “A new

mittimus stating the surcharge has been waived shall issue.” There

isn’t any indication in the record before us or in the register of

actions for the district court case that the mittimus has been

amended accordingly. See People v. Sa’ra, 117 P.3d 51, 55-56

(Colo. App. 2004) (“A court may take judicial notice of the contents

of court records in a related proceeding.”). Thus, we remand the

3 case for the mittimus to be amended to reflect that the sex offender

surcharge is waived.

¶ 10 Some statements in Fareti’s opening brief indicate that

amending the mittimus in that way is the only relief he seeks on

appeal. For example, his opening brief “request[s] the district court

be instructed to correct the sentence by issuing an amended

mittimus showing the surcharge has been removed and waived due

to his indigence.” And he appears to make that even clearer when

he says, “Because the district court has already determined [he] is

indigent and the surcharge should be waived, the only thing left is

to amend the mittimus to reflect this finding.” (Emphasis added.)

¶ 11 However, we are skeptical of Fareti’s claim that his sentence

remains illegal under Crim. P. 35(a) because that notation hasn’t

been added to the mittimus. Given the court’s April 2024 ruling

waiving the sex offender surcharge, it appears that the failure to

amend the mittimus to reflect that ruling amounts to a mere

clerical error under Crim. P. 36, which can be corrected “at any

time.” Crim. P. 36; see also People v. Baker, 2019 CO 97M, ¶ 21

(Clerical errors under Crim. P. 36 can include “not only errors made

by the clerk in entering the judgment, but also those mistakes

4 apparent on the face of the record . . . which cannot reasonably be

attributed to the exercise of judicial consideration or discretion.”

(quoting People v. Glover, 893 P.2d 1311, 1316 (Colo. 1995))). But

even if Fareti’s sentence remains illegal under Crim. P. 35(a)

because the mittimus hasn’t yet been amended to reflect that the

sex offender surcharge has been waived, that illegality in the

sentence can also be corrected “at any time.” Crim. P. 35(a).

¶ 12 That being said, Fareti’s opening brief includes other requests

for relief that aren’t warranted. In the “Argument Summary” of the

opening brief, Fareti argues that the case should be remanded for

“resentencing.” And in the “Conclusion” of the opening brief, Fareti

asks us to remand to the district court with instructions to “vacate”

the illegal sentence.

¶ 13 We decline these requests. “Sentences can be illegal in

different ways, and the nature of the illegality will dictate how

courts correct those sentences.” Hunsaker v. People, 2015 CO 46,

¶ 33. To the extent that Fareti’s sentence remains illegal because

the mittimus hasn’t been amended to reflect the court’s April 2024

ruling waiving the sex offender surcharge, the only appropriate

5 remedy to correct that illegality is to amend the mittimus to reflect

the court’s April 2024 ruling waiving the sex offender surcharge.

III. Disposition

¶ 14 The order is affirmed, and the case is remanded with

directions to amend the mittimus to reflect that the sex offender

JUDGE GROVE and JUDGE SCHUTZ concur.