23CA0006 Peo v Farrow 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0006 Arapahoe County District Court No. 15CR2605 Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Dehawn Farrow,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Michael Dehawn Farrow (Farrow), appeals the
postconviction court’s order denying without a hearing his Crim. P.
35(b) motion. We affirm.
I. Background
¶2 After attempting to run over his housemates with his car,
Farrow was convicted by a jury in November 2017 of attempted first
degree assault (a class 4 felony), menacing (a class 5 felony),
reckless endangerment (a class 3 misdemeanor), reckless driving (a
class 2 misdemeanor traffic offense), and a crime of violence
sentence enhancer. The jury found that the prosecution had
proved the sentence enhancer, as Farrow had used his car as a
deadly weapon.
¶3 Farrow’s housemates testified at trial that while they were
arguing with Farrow about evicting him, he attempted to kill them
outside the home with his car. Farrow’s theory of defense was that
he acted in self-defense after a housemate threatened to get a gun
and returned to the house to retrieve it. Farrow was sentenced to
twelve years in the custody of the Department of Corrections (DOC)
1 on the attempted assault offense, with the other sentences to run
concurrently.
¶4 A division of this court affirmed Farrow’s judgment of
conviction on direct appeal. See People v. Farrow, (Colo. App. No.
17CA2352, Aug. 12, 2021) (not published pursuant to C.A.R. 35(e)).
The supreme court denied his petition for certiorari.
¶5 In September 2022, Farrow filed a Crim. P. 35(b) motion
seeking to reduce his sentence. Providing over 300 pages of
exhibits to support his request, Farrow argued that his sentence
should be reduced because he was not receiving sufficient mental
health treatment in DOC. The court ordered a response from the
prosecution and, following briefing, denied the motion, finding that
Farrow’s sentence was appropriate.
¶6 In December 2022, Farrow filed a motion to reconsider the
court’s denial, asserting that he had not been served with either the
prosecution’s response to his Rule 35(b) motion or the court’s order
denying the same. He argued that, due to a clerical error, Farrow’s
counsel had not been listed as counsel of record in the court’s e-
filing system. The court summarily denied the motion to
reconsider.
2 ¶7 On appeal, Farrow contends that the court abused its
discretion by (1) denying his Crim. P. 35(b) motion and his motion
to reconsider because he had not been given the opportunity to
reply to the prosecution’s response to his Rule 35(b) motion and (2)
failing to provide a sufficient explanation for denying his request for
a sentence reduction given the new and substantial information
concerning his mental health.
II. Standard of Review and Applicable Law
¶8 We review a district court’s ruling on a Crim. P. 35(b) motion
for an abuse of discretion. People v. Chavez, 2020 COA 80M, ¶ 8.
A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or based on a misunderstanding
or misapplication of the law. People v. Miller, 2024 COA 66, ¶ 40. A
court fails to exercise its judicial discretion by refusing to consider
mitigating information and failing to make findings in support of its
decision. People v. Busch, 835 P.2d 582, 583 (Colo. App. 1992).
¶9 “A court’s review of a Crim. P. 35(b) motion focuses on the
fairness of the sentence in light of the purposes of the sentencing
laws.” People v. Dunlap, 36 P.3d 778, 780 (Colo. 2001). When
presented with such a motion, the court may consider all relevant
3 and material factors, including new evidence and facts the district
court knew when it imposed the original sentence. Id. “Crim. P.
35(b) does not require the trial court to make findings of fact,” but
the court “should provide a statement of the basic reasons in
support of its ruling.” Id. at 782. And “[t]he court may, after
considering the motion and supporting documents, if any, deny the
motion without a hearing.” Id. at 780.
III. Analysis
¶ 10 The Attorney General argues that we do not need to reach the
merits of Farrow’s two contentions because they challenge the
propriety of his sentence. We do not read Farrow’s argument that
narrowly. Nonetheless, we conclude that the court did not abuse
its discretion when it denied his motion.
¶ 11 As to Farrow’s first argument — that the court improperly
denied his Rule 35(b) motion and the motion to reconsider because
he could not file a reply — we reject that the district court abused
its discretion. Crim. P. 35(b) does not provide defendants the right
to reply. Instead, a court may rule on a motion for sentence
reduction based solely on the “motion and supporting documents, if
any.” Crim. P. 35(b).
4 ¶ 12 Even so, Farrow argues that he was denied the opportunity to
request to file a reply because he was not served with the
prosecution’s response or the court’s denial of his Rule 35(b)
motion. Acknowledging the clerical error in its order denying
Farrow’s motion to reconsider, the court also noted that it had not
asked Farrow to file a reply to his Rule 35(b) motion. Given that
Rule 35(b) does not authorize an automatic right to reply, the
court’s ruling suggests that it would not have accepted such a
submission (or requested one) even if Farrow’s counsel had been
served with the prosecution’s response. Cf. People v. Nozolino, 2023
COA 39, ¶ 8 (an appellate court reviews a postconviction court’s
failure to comply with the procedures of Crim. P. 35(c) for harmless
error).
¶ 13 And even assuming Farrow had submitted a reply, we also
reject his second argument that the district court did not provide
sufficient factual findings in its order denying relief. Farrow asserts
that the court failed to consider the substantial new information
regarding his mental health and treatment that he had submitted in
both motions. Farrow specifically refers to two psychologists’
evaluations in 2022 and their belief that he likely has borderline
5 personality disorder (BPD). He explained that for a patient with
BPD to progress in treatment, the person must receive both
individual and group dialectical behavioral therapy (DBT) sessions
and medications. Farrow outlined in his motion that he had not
been offered DBT or a modified form of treatment for correctional
environments, such as “DBT-CM,” during his incarceration.
¶ 14 Farrow has pointed to nothing in the record to suggest that
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23CA0006 Peo v Farrow 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0006 Arapahoe County District Court No. 15CR2605 Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Dehawn Farrow,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Michael Dehawn Farrow (Farrow), appeals the
postconviction court’s order denying without a hearing his Crim. P.
35(b) motion. We affirm.
I. Background
¶2 After attempting to run over his housemates with his car,
Farrow was convicted by a jury in November 2017 of attempted first
degree assault (a class 4 felony), menacing (a class 5 felony),
reckless endangerment (a class 3 misdemeanor), reckless driving (a
class 2 misdemeanor traffic offense), and a crime of violence
sentence enhancer. The jury found that the prosecution had
proved the sentence enhancer, as Farrow had used his car as a
deadly weapon.
¶3 Farrow’s housemates testified at trial that while they were
arguing with Farrow about evicting him, he attempted to kill them
outside the home with his car. Farrow’s theory of defense was that
he acted in self-defense after a housemate threatened to get a gun
and returned to the house to retrieve it. Farrow was sentenced to
twelve years in the custody of the Department of Corrections (DOC)
1 on the attempted assault offense, with the other sentences to run
concurrently.
¶4 A division of this court affirmed Farrow’s judgment of
conviction on direct appeal. See People v. Farrow, (Colo. App. No.
17CA2352, Aug. 12, 2021) (not published pursuant to C.A.R. 35(e)).
The supreme court denied his petition for certiorari.
¶5 In September 2022, Farrow filed a Crim. P. 35(b) motion
seeking to reduce his sentence. Providing over 300 pages of
exhibits to support his request, Farrow argued that his sentence
should be reduced because he was not receiving sufficient mental
health treatment in DOC. The court ordered a response from the
prosecution and, following briefing, denied the motion, finding that
Farrow’s sentence was appropriate.
¶6 In December 2022, Farrow filed a motion to reconsider the
court’s denial, asserting that he had not been served with either the
prosecution’s response to his Rule 35(b) motion or the court’s order
denying the same. He argued that, due to a clerical error, Farrow’s
counsel had not been listed as counsel of record in the court’s e-
filing system. The court summarily denied the motion to
reconsider.
2 ¶7 On appeal, Farrow contends that the court abused its
discretion by (1) denying his Crim. P. 35(b) motion and his motion
to reconsider because he had not been given the opportunity to
reply to the prosecution’s response to his Rule 35(b) motion and (2)
failing to provide a sufficient explanation for denying his request for
a sentence reduction given the new and substantial information
concerning his mental health.
II. Standard of Review and Applicable Law
¶8 We review a district court’s ruling on a Crim. P. 35(b) motion
for an abuse of discretion. People v. Chavez, 2020 COA 80M, ¶ 8.
A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or based on a misunderstanding
or misapplication of the law. People v. Miller, 2024 COA 66, ¶ 40. A
court fails to exercise its judicial discretion by refusing to consider
mitigating information and failing to make findings in support of its
decision. People v. Busch, 835 P.2d 582, 583 (Colo. App. 1992).
¶9 “A court’s review of a Crim. P. 35(b) motion focuses on the
fairness of the sentence in light of the purposes of the sentencing
laws.” People v. Dunlap, 36 P.3d 778, 780 (Colo. 2001). When
presented with such a motion, the court may consider all relevant
3 and material factors, including new evidence and facts the district
court knew when it imposed the original sentence. Id. “Crim. P.
35(b) does not require the trial court to make findings of fact,” but
the court “should provide a statement of the basic reasons in
support of its ruling.” Id. at 782. And “[t]he court may, after
considering the motion and supporting documents, if any, deny the
motion without a hearing.” Id. at 780.
III. Analysis
¶ 10 The Attorney General argues that we do not need to reach the
merits of Farrow’s two contentions because they challenge the
propriety of his sentence. We do not read Farrow’s argument that
narrowly. Nonetheless, we conclude that the court did not abuse
its discretion when it denied his motion.
¶ 11 As to Farrow’s first argument — that the court improperly
denied his Rule 35(b) motion and the motion to reconsider because
he could not file a reply — we reject that the district court abused
its discretion. Crim. P. 35(b) does not provide defendants the right
to reply. Instead, a court may rule on a motion for sentence
reduction based solely on the “motion and supporting documents, if
any.” Crim. P. 35(b).
4 ¶ 12 Even so, Farrow argues that he was denied the opportunity to
request to file a reply because he was not served with the
prosecution’s response or the court’s denial of his Rule 35(b)
motion. Acknowledging the clerical error in its order denying
Farrow’s motion to reconsider, the court also noted that it had not
asked Farrow to file a reply to his Rule 35(b) motion. Given that
Rule 35(b) does not authorize an automatic right to reply, the
court’s ruling suggests that it would not have accepted such a
submission (or requested one) even if Farrow’s counsel had been
served with the prosecution’s response. Cf. People v. Nozolino, 2023
COA 39, ¶ 8 (an appellate court reviews a postconviction court’s
failure to comply with the procedures of Crim. P. 35(c) for harmless
error).
¶ 13 And even assuming Farrow had submitted a reply, we also
reject his second argument that the district court did not provide
sufficient factual findings in its order denying relief. Farrow asserts
that the court failed to consider the substantial new information
regarding his mental health and treatment that he had submitted in
both motions. Farrow specifically refers to two psychologists’
evaluations in 2022 and their belief that he likely has borderline
5 personality disorder (BPD). He explained that for a patient with
BPD to progress in treatment, the person must receive both
individual and group dialectical behavioral therapy (DBT) sessions
and medications. Farrow outlined in his motion that he had not
been offered DBT or a modified form of treatment for correctional
environments, such as “DBT-CM,” during his incarceration.
¶ 14 Farrow has pointed to nothing in the record to suggest that
the district court failed to review and consider the new information
he submitted. In fact, as required by Crim. P. 35(b), the court
noted that it had reviewed “the file and the pleadings and
considered all relevant and material factors including Defendant’s
actions while incarcerated.” The court also acknowledged that it
was “aware of the . . . mental health issues raised by the defense in
their motion,” indicating that it had considered the attached
information as part of its ruling.
¶ 15 Even so, Farrow contends that the district court’s findings are
insufficient given the substantial amount of information he
submitted. But the court was not required to make any specific
findings of fact about Farrow’s mental health or his treatment
plans. See Dunlap, 36 P.3d at 780. The court laid out its basis for
6 denying the motion when it indicated that Farrow had not
established a factual issue warranting a hearing. Although Farrow
highlighted his struggles to obtain treatment in DOC, this does not
require the court to reduce his sentence. As the postconviction
court reasoned, “[t]he original trial court had sufficient information
prior to sentencing, and the benefit of a full pre-sentence
investigatory report.” The order continued, “The [original trial]
Court weighed the options available and chose a sentence that was
neither the bottom of the range nor the top. The Court finds that
the sentence was [then] and is [now] appropriate.” Based on this
record, we discern no basis to set aside the district court’s ruling.
See Chavez, ¶ 8.
IV. Conclusion
¶ 16 The order is affirmed.
JUDGE FOX and JUDGE SCHOCK concur.